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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