Friday, May 14, 2021

The Perpetuation of our Political Institutions, Part XI: The Lincoln Fallacy, contd

    While the events and the outcome of the Missouri Mormon War of the 1830s would certainly have been pertinent to the context in which Abraham Lincoln sought to address the Young Men’s Lyceum in Springfield, Illinois in January of 1838, there undoubtedly remains a subject whose relevance to his stated argument slots more neatly into the man’s reputation and legacy. That subject, of course, is slavery. Lincoln is inarguably most famous for helping to eliminate the institution of chattel enslavement in the United States, to the point that he is often referred to as “The Great Emancipator” when his deeds to that end are recalled. But in 1838, it seemed, so early in his life and career, his opinions on the subject of slavery were either substantially undeveloped or simply unlike what they would become. Granted, Illinois was not a slave state – if only just – and it may have been the case that Lincoln did not give as much thought to the institution as he might have done had he never left his native Kentucky. Then again, the fact that he made reference to both the lynching of Francis MacIntosh and the murder of Elijah Lovejoy in his speech to the Springfield Lyceum – both of which events were indelibly tied to the existence and implications of slavery – would seem to indicate that he actually had given some amount of thought to the social and moral effects which had been wrought upon the American republic by the legal ownership of human beings. Lincoln’s speech was not about slavery, of course, so as much as it was concerned with the significance of vigilantism to the integrity of the United States. But in the era in the 19th century which preceded the Civil War (1861-1865), no aspect of public life was entirely unconnected from the institution in question. Lincoln’s various assertions would seem to amply bear this out, and the implications of his core argument are all the more troubling as a result.

    As aforementioned, the thing that Lincoln was advocating for was a scrupulous – one might almost say religious – observance of the law. There was little else left to help bind the American people together, he observed, and so it fell to them as a community to embrace a new form of civic piety. “Let every man remember [,]” he said,

That to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty […] While ever a state of feeling such as this shall universally or even very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

A bold declaration, to be sure, but not a particularly disconcerting one on its face. Why shouldn’t people obey the law? Wasn’t that the whole point of republican government? Weren’t the laws of the United States the result of a process of consent and negotiation? In theory, perhaps, this was indeed the case. But as Lincoln expanded upon this concept in terms of its practical significance, he also ended up acknowledging one of the thornier issues that a philosophical worship of the law was unlikely to entirely satisfy. “In any case that may arise,” he continued,

As, for instance, the promulgation of abolitionism, one of two positions is necessarily true—that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens, or it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case is the interposition of mob law either necessary, justifiable, or excusable.

    There would seem to be a pretty obvious fallacy at the heart of this statement. Or, if not a fallacy, then tremendous a failure of imagination. Lincoln declared, taking abolitionism as an example, that either the principle was right and deserved to be protected by the law or it was wrong and ought to be prohibited. Fair enough, perhaps, in principle, but this is clearly not how such things work in practice. Things that are right in themselves, whether they ought to be protected or not, are often prohibited by the vested interests that hold the reins of power. And just so, while certain things may be, in principle, wrong and objectionable to the very essence of human nature, they nevertheless enjoy the benefit of legal protection. It is not simply a matter – as Lincoln seemed to intimate – of good policy being protected and bad policy being prohibited, if for no other reason than that measures of “goodness” and “badness” are so often extremely subjective. His stated example of abolitionism was very much a case in point. The various enslaved peoples and free Black peoples then living in the United States most assuredly thought of the abolition of slavery as wholly positive effort. And so, too, did the members of the various anti-slavery societies and Christian denominations located in the northern United States who began to advocate for the elimination of slavery as early as the 1790s. But the inhabitants of the contemporary American South would have been of quite the opposite opinion. Those who owned slaves would almost certainly have described abolitionism as an insupportable attack on their livelihood and culture. And those who didn’t own slaves would doubtless still have found reason to voice much the same opinion on the grounds that their social and economic standing stood to diminish significantly in the event that every enslaved person was suddenly set free. So what, then, did that make abolitionism? Good or bad? Worthy or protection or properly prohibited?

    The answer, notwithstanding Lincoln’s rather simplistic explanation to the contrary, was that such considerations didn’t actually matter. It wasn’t a question of numbers – that is, whether the number of people who were opposed to slavery was greater than or lesser than the number who supported it – but rather one of power. The South, as of the late 1830s, was almost exclusively represented in Congress by people who personally owned slaves, while the North was represented in large part by people who were either dead set against offending their southern colleagues by suggesting that slavery might not be morally defensible or who felt that slavery was strictly a matter for the states to regulate. The result, predictably, was that slavery remained on the books and abolitionism was the subject of frequent controversy and repression. Did this mean that abolitionism was a wrong in itself which ought to have been prohibited? Of course not. As aforementioned, considerations of good and bad, right and wrong hardly entered into the discussion of whether slavery or abolitionism should have been legal or illegal. It was, once again, all just a question of power. Whether one thought of slavery or its abolition as being particularly good or bad, slavery was the law of the land in the American republic in the late 1830s. And this was not just the case in the jurisdictions where the actual ownership of slaves was permitted.

    If slavery was a matter left to the states to regulate as they saw fit, after all, it stood to reason that some of them might choose to prohibit it while others might choose to preserve it. In the resulting patchwork of legal regimes, the difference of a handful of miles might accordingly determine whether a person was property or not. That is to say – in theory at least – if slavery was illegal in Pennsylvania and legal in Maryland then a person who was enslaved in Maryland might cease to be so if they crossed the state line. One doesn’t need much of an imagination to perceive in this kind of arrangement the possibility of a mass exodus of fugitive slaves into such jurisdictions where the practice had been banned. Those who owned slaves were not inclined to tolerate such an outcome, and those who did not were nevertheless conscious of the need to at least nod in the direction of compromise if the union of American states was to be as perpetual as they hoped.  Early efforts aimed at protecting the property of slave owners were accordingly shaped by both the context in which they were offered and the nature of the authority by which they were to be empowered. Deals were made, coalitions were cobbled together, and progress – of either side of the issue – was often halting and limited in scope.

    In 1785, for example, amidst an attempt by the assembled delegates to dispose of a number of competing land claims made by the states via the mechanism of a federally administered “western territory,” Massachusetts delegate Rufus King (1755-1827) sought to add a clause to an existing ordinance which would have mandated the return of fugitive slaves who had escaped into the region to their duly identified owners. This represented a strategic decision of King’s part, for he was at the same time proposing that slavery itself be forbidden in the territory in question. Thomas Jefferson had earlier suggested that the federal lands – and whatever states were formed out of them – be free of slavery, but a clause to that effect was removed before the relevant ordinance was approved by Congress in April of 1784. When King sought to re-insert the anti-slavery provision into the text of the legislation, he accordingly did so in an attitude of conciliation. Jefferson’s failure had proven that Congress would not tolerate a ban slavery in federal territory outright, but perhaps the pro-slavery elements therein would trade an anti-slavery provision for a clause which would ensure that their existing slave property would be protected. King’s “fugitive slave clause” accordingly declared that,    

Upon the escape of any person into any of the states described in the said resolve of Congress of the 23d day of April, 1784, from whom labor or service is lawfully claimed in any one of the thirteen original states, such fugitive may be lawfully reclaimed and carried back to the person claiming his labor or service as aforesaid, this resolve notwithstanding.

But while King’s two-part revision to the Ordinance of 1784 was ultimately shot down, slavery’s days were nevertheless numbered in what was now federal territory in the region of the Great Lakes. Before significant numbers of Americans could begin to migrant into the newly surveyed region, Congress passed yet another ordinance which rather pointedly accomplished both of the measures that King had suggested.

    The Northwest Ordinance (1787) essentially sought to organize the territory that Congress had taken possession of by way of the Ordinance of 1784, specifically in terms of its political, legal, and administrative characteristics. The territory would have a governor, for example, to be appointed by the President, and a secretary, and a court system. A general assembly was also to be established, consisting of an upper house and a lower house, the most important responsibility of which was to send a non-voting delegate to Congress. And in terms of the laws of the region, one particular mandate stood out. Notwithstanding whatever measures that the aforementioned legislature would see fit to take going forward, it was stated in Article 6 of the Northwest Ordinance that,

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

Evidently, though King’s attempt at conciliation was met with failure in 1785, the essence of the thing had had enough of an impact on his fellow delegates to Congress that they reconsidered their objections in fairly short order. If slavery was an issue which the representatives of certain jurisdictions felt strongly enough about to want to see it forbidden in any new states which thereafter joined the union, then perhaps the representatives of those regions in which the institution had become an economic cornerstone ought to seek some means of compromise. To be sure, these pro-slavery partisans would have preferred for the growth of chattel enslavement to be entirely unhindered by federal law, particularly as such ordinances might have limited their own ability to purchase and settle upon cheap and fertile western land alongside their human property, but their more immediate concerns took precedence. If, in order to promote harmonious intersectional relations, the slaveholding interests in Congress allowed for the prohibition of slavery in the trans-Appalachian west, then they might at least succeed in trading such an outcome for the protection of their existing property in slaves.

    Such strategic thinking, as it had motivated Rufus King in 1785 and allowed for the passage of the Northwest Ordinance in 1787, likewise figured into the debates which produced the United States Constitution by way of the Philadelphia Convention. Up to that point, most of the states north of Maryland had at least taken preliminary steps towards the abolition of slavery. Pennsylvania had initiated a gradual process of manumission in 1780. The Supreme Judicial Court of Massachusetts ruled slavery incompatible with the state constitution in 1783, the same year that New Hampshire began its own emancipation process. And Connecticut and Rhode Island did the same beginning in 1784. But while the continued existence of slavery in the various Southern states would seem bound to give rise to an intractable divergence of interests when representatives of the two groups came together in Philadelphia for the purpose of devising a more robust form of national government, the resulting document is remarkably quiet on the subject and its future in the United States of America. The terms “slave” and “slavery,” for example, are nowhere to be seen. Instead, the text of the Constitution talks around the topic in question while offering a fairly limited series of guarantees and restrictions. The slave trade, referred to rather obliquely as, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit [,]” was to be protected from federal restrictions or bans until the year 1808, with the exception of taxes not exceeding ten dollars per head. And for the purpose of representation in Congress and taxation thereby, apportionments were to be made according to, “The whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The category of “all other Persons” naturally referred to slaves.

    And then there was Article IV, Section 2, which contained what is arguably the single clause perhaps most obvious in its unambiguous reference to slavery. According to said provision – in a distinct echo of both King’s 1785 proposal and the cited terms of the Northwest Ordinance of 1787 –  

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Seeing as how the adoption of such language would functionally expand the scope of the fugitive slave clause embedded in the governing charter of the Northwest Territory to cover the whole of the United States, this clause was met with some resistance upon its introduction during the debates of August 28th. As proposed by South Carolinians Charles Pinckney (1757-1824) and Pierce Butler (1744-1822), the idea was for fugitive slaves, “To be delivered up like criminals [,]” a comparison which they doubtless hoped their northern compatriots would uncritically accept. In the immediate, however, this was not to be the case. Pennsylvania’s James Wilson (1742-1798) was the first to object, complaining that, “This would oblige the Executive of the State to do it at the public expence.” This was followed up by Connecticut’s Roger Sherman (1721-1793), who declared that he, “Saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.” Though these both amounted to a rejection of the Southerners’ proposal, it bears noting the degree to which Wilson and Sherman appeared to differ in their view of the fugitive slave issue.

    Sherman’s complaint appeared to be chiefly practical in nature, if also more than slightly dehumanizing. In his opinion, it seemed, a slave was like any other piece of personal property which a person might lose, mislay, or have taken from them. If a person’s horse were to escape its corral, or wander off, or be stolen, was it the state’s responsibility to ensure its safe return? Or was it solely up to the owner to take action as they saw fit? Sherman seemed to of the latter opinion and viewed slave property in this context as being no different than livestock. If a slave escaped from bondage, their owner was free to attempt to track them down. But as this had nothing to do with the general welfare of the community, said owner ought not to expect public assistance of any kind. Wilson’s argument was not wholly dissimilar, though somewhat less bluntly put. Sherman made it sound as though he felt that the protection of private property to the extent that Pinckney and Butler proposed represented an unjustifiably frivolous use of public resources. Wilson, by comparison, phrased his objection in such a way as to suggest that in addition to a practical concern for the use of public monies, he was also disinclined to allow the taxes collected from people who had rejected the institution of slavery to fund the continued enslavement of certain luckless individuals. And this was a perfectly sensible complaint, upon reflection. If the people of Wilson’s own Pennsylvania had opted to abolish slavery within the confines of that state – which, as aforementioned, they had – then why should they have been charged with upholding the continued enslavement of individuals in other states? Why should they have been expected to continue funding something that they had already rejected as being inherently immoral?

    Whether Pinckney and/or Butler saw the wisdom in these arguments or not, they did immediately agree to withdraw their proposition. The business of the day was concluded, the alterations made to the existing draft constitution were read into the record, and the gathering was accordingly adjourned. But then, in the midst of the next day’s discussion, Mr. Butler again proposed the adoption of a national fugitive slave clause. And this time, for whatever reason, nobody objected. It is impossible to know for certain how and why this happened the way that it did, though it does seem probable that more took place than was recorded. James Madison, whose Notes on the Debates of the Federal Convention remains the primacy source document on the day-to-day events of the Philadelphia Convention, did not also keep account of what transpired outside of the formal proceedings thereof. And while much of what the Constitution would eventually become is demonstrably the product of the debates which had been convened for that purpose, one imagines that a fair number of informal discussions also transpired before, after, and in between official sessions. Many delegates shared accommodations with their peers, or frequented the same coffee houses, or took their meals in the same taverns, and it stands to reason that some of the conversations that took place in these otherwise primarily social contexts eventually wound their way back to the overarching political concerns that had brought them all to Philadelphia in the first place. Bearing this in mind, it seemed quite likely that the swift adoption of the fugitive slave clause into the text of the Constitution on August 29th in spite of its swift rejection on August 28th was the product of some series of private discussions between its sponsors – Pinkney and Butler – and the delegates most likely to offer continued resistance to the same. And while there is no way of knowing exactly what was traded in exchange for the tax dollars of otherwise anti-slavery northerners being used to fund the perpetuation of human bondage in the United States, it seems probable that the bargain proceeded along the same lines as similar deals had done previously. Namely, in exchange for a relatively small degree of assistance from states where slavery was otherwise illegal in protecting the enslaved property of states where it was permitted, the slaves states would countenance some relatively minor restrictions on the institution and its expansion.

    The same “back and forth” doubtless also motivated the passage of the Fugitive Slave Act of 1793, the first of two federal laws which sought to provide a mechanism of enforcing Article IV, Section 2 of the United States Constitution. Said act stated, in part,

That when a person held to labor in any of the United States, or in either of the Territories on the Northwest or South of the Ohio river, under the laws thereof, shall escape into any other part of the said States or Territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any Judge of the Circuit or District Courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such Judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such State or Territory, that the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such Judge or magistrate to give a certificate thereof to such claimant, his agent, or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or Territory from which he or she fled.

To a certain kind of person living in one of the states wherein slavery had at that point been abolished, this clause would doubtless have been problematic enough, specifically as it enjoined their local magistrates to uphold the enslavement and certify the recapture of human beings then held in bondage. But the clause that followed, in its various implications, was in many ways far more troubling. “Be it further enacted,” it read,

That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested pursuant to the authority herein given and declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labor, as aforesaid, shall, for either of the said offenses, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any Court proper to try the same, saving moreover to the person claiming such labor or service his right of action for or on account of the said injuries [.]

The extent to which these terms, by essentially forcing private individuals to render assistance in perpetuating the enslavement of other human beings, were almost calculated to cause offence would seem to be fairly obvious.

    The language, for one thing, was at times alarmingly vague. The phrase “knowingly and willingly,” for example, when used in reference to actions taken by a given individual in opposition to the seizure of a fugitive slave, were in actual fact open to a fair bit of interpretation. To that end, consider the following hypothetical. A black person knocks on the door of a farmhouse in a rural area of state in which slavery is prohibited by law. They greet the man who answers, tell them that they have been travelling for some time and would like to rest for the night, and offer to exchange some amount of their labor for the privilege of temporary lodging. The farmer, being a generous sort of person, replies in kindness, invites the traveler inside, and agrees to provide them with a warm bed and a hot meal in trade for a few odd chores. The next morning, however, as the traveler is setting about their agreed-upon duties, an armed party rides up and approaches the farmer. The traveler is a fugitive slave, he is told, and the party has been deputized by the owner in question to capture and transport them back to where they belong. The traveler insists that this isn’t the case, that they were born free and are merely on the way to visit relatives in a nearby town. Who, under these circumstances, is the farmer supposed to believe? If the traveler is indeed a slave, then any attempt to obstruct the capture would constitute a violation of the terms of the aforementioned statute. But if the traveler is telling the truth, and the armed party has either made a mistake or is attempting an illegal abduction, doesn’t the farmer have a moral obligation to refuse his assistance? In either case, how can they be sure of what they are being told? How can they be expected to act in accordance with the law when what they know is only what they have been told? The presumption, of course, is that those who present themselves as having been authorized to recapture fugitives will always be trustworthy, and that those innocents who might get abducted in the process – by mistake or otherwise – are ultimately of no consequence.

    Likewise, consider the cited declaration that those who, “Shall harbor or conceal such person after notice that he or she was a fugitive from labor” would also be held in violation of the law. The troubling phrase, in this case, are the words “after notice.” By what means were those in a position to harbor fugitive slaves to gain notice of the fact? Any sensible runaway slave would surely hesitate before divulging their status to all but the most sympathetic individuals that they might meet during their flight. But if a confession is the only means by which someone might be given notice, in the moment, that the person to whom they are offering shelter is a fugitive slave, then the whole idea of attempting to enjoin local assistance for the recapture of the same would seem to be largely moot. So long as the person prepared to offer assistance does not pry after the status of their charge, then they should presumably have no cause to fear legal repercussion. As this could not possibly have been the intention of the men who framed the act in question, however, some other meaning must have lurked being the concept of “notice.” But what? How was a person living in a state where slavery was prohibited supposed to determine if the individual asking them for shelter wasn’t who they claimed to be? Were they supposed to doubt them on sight? Ask for proof of their freedom? Search through their belongings? Interrogate them mercilessly? And what if they did suspect that it was a fugitive slave who was asking them for help? Could it be proven in a court of law that they chose not to act of their suspicions? Could it be demonstrated conclusively that they chose to violate the law? Once again, there would seem to be a rather distressing presumption underlying the basic precepts of the cited legislation. In such states where free black people were otherwise the norm, requests for assistance from anyone who might be said to “look like a slave” were evidently to be treated with the utmost mistrust.  

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