A hell of a storm, p.3
A Hell of a Storm, page 3
But if slavery was shut out of the Northwest, it had nevertheless begun to extend the perimeter of its southern stronghold. Some seven hundred thousand men, women, and children were captive laborers in the United States in 1787; all of them, except forty thousand, resided below the Mason-Dixon Line.11 Considering these stark statistics, the Founders obviously faced a difficult challenge. How to consolidate the interests of sections moving spatially, culturally, and economically in different directions? How to address the contradictions of rural agrarianism and a budding urban commercialism? And how, finally, to accommodate the concerns of white southerners for the security of their human property?
On this last point, the Constitution went some great way. In particular, three major items inserted into the document gave southerners enough satisfaction to join the Union. These were the three-fifths clause (counting each enslaved person as three-fifths of a human for purposes of taxation and representation, and thus increasing southern power in both the House of Representatives and the Electoral College), the fugitive slave provision (permitting masters to pursue their runaways in the free states), and keeping the slave trade open for at least twenty more years before Congress could take up the question of its closure. During these decades (1788–1808), Georgia and South Carolina, clearly watching the clock, imported more abducted Africans than in any previous twenty-year period. Without these concessions to white southern sensibilities, the Constitution would never have been ratified.
On the indelicate subject of the slave trade, however, even the South divided. Luther Martin, Maryland’s long-standing attorney general, observed that the practice detrimentally affected all the states as the ever-present threat of rebellion, much heightened by the tremorous memory of the twenty thousand black fugitives who had so recently supported Britain during the American Revolution, constituted a national danger. “Slaves weakened one part of the Union,” he declared at the Philadelphia convention, “which the other parts were bound to protect: the privilege of importing them was therefore unreasonable.” He believed still more generally, so he told his fellow delegates, that creating a republic premised in part on unfree labor “was inconsistent with the principles of the revolution and dishonorable to the American character.”12
Virginia also hesitated over the provision to keep the slave trade operating for an additional generation. Mason echoed Martin’s security concerns, noting that “such importation render[ed] the United States weaker, more vulnerable, and less capable of defence.” Possessing by far the largest number of slaves in the country—about 285,000 with South Carolina a faint second at 105,000—the Old Dominion had for years attempted, via prohibitive taxes, to limit shipments of Africans from entering its borders, only, while still in the Empire, to run into Crown opposition. The Revolutionary era’s ensuing nonimportation policy against British goods (including those coming from the Royal African Company) allowed Virginia, among other former colonies, to ban the slave trade—only to see it reopened at the postwar behest of both Georgia and South Carolina. Madison, reflecting the concerns of his state, was sorry to see the unwanted question come up. To little effect, he called the trade “dishonorable” and feared it would “produce… mischief” in America’s new Union.13
Delegates from the Deep South disagreed. For several years, planters below the Chesapeake regarded with suspicion efforts by distant Old Dominion statesmen to limit the Atlantic slave trade. In 1784 Jefferson, for one, had called upon the Continental Congress to pursue its prohibition, to no effect. Now, at the Philadelphia convention, South Carolina’s Pinckney argued that the men pushing policy in Richmond merely wished to line their pockets by increasing through a general scarcity the value of their bondspeople. “Virginia,” he contended, “will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms.”14
Like many of the Virginians, Pinckney’s views on this subject were grounded primarily in economic assumptions. During the late military stages of the Revolution, the Lower South and especially South Carolina experienced astonishingly destructive warfare. In possession of both Charleston and Savannah, British armies, under such officers as the notoriously predacious Lieutenant Colonel Banastre Tarleton, accused of overseeing a massacre in the Waxhaws region of the Carolina upcountry, marauded repeatedly in the Deep South. Historian Walter Edgar writes of the general butchery involved:
As they set about securing what they now considered a conquered province, the British and their loyalist allies committed numerous atrocities. They took hostages… they unlawfully confined civilians; they destroyed and willfully damaged institutions dedicated to religion; they plundered public and private property. And, against a civilian population, they committed torture, imprisonment, murder, and “other inhumane acts.” If these actions had been committed in the 1990s instead of the 1780s, [British commander] Lord Cornwallis and a number of his subordinates… would have been [indicted] by the International Tribunal at the Hague as war criminals.15
Accounting for the carnage left by the war in the Carolinas, including the loss of thousands of runaway slaves, Pinckney and other concerned men from the region regarded the continuance of the African trade for another twenty years a crucial factor in their future prosperity. They would not give it up. Shortly after the convention dispersed, with the trade’s extension safely inserted in the Constitution, Madison wrote to Jefferson in some frustration: “S. Carolina & Georgia were inflexible on the point of the slaves.”16
That winter of 1788, while engaged with Hamilton and John Jay in drafting The Federalist Papers, a collection of several dozen articles promoting the Constitution’s ratification, Madison offered a more public regret regarding the deadly trade’s persistence. He contended in Federalist No. 42, published in the New York Packet in late January: “It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808.” Having made this rhetorical concession, he then directed his Knickerbocker audience to consider the Constitution an overall improvement on the importation question: “It ought to be considered as a great point gained in favor of humanity that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy.”17
Though controversial, the slave-trade settlement produced a definite dénouement—in 1807 Congress voted 113 to 5 to end the commerce. The two other critical slave-related items imbedded in the Constitution, the three-fifths and fugitive slave clauses, by contrast, reached even deeper into the century; these fixed articles of planter rule were overcome only by civil war. The question of how to count the enslaved arose invariably in the nation’s infancy. During congressional debates in 1776 a proposal to raise funds specified that revenue “shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex, and quality, except Indians not paying taxes.” This would have meant taxing slaves. Speaking against the plan, Maryland’s Samuel Chase inelegantly insisted “that Negroes in fact should not be considered as members of the state more than cattle & that they have no more interest in it.”18 The idea of a three-fifths ratio originated in 1783 during fresh discussions on determining wealth in the new republic. Land values, rather than population, dictated the apportionment of taxes, but states habitually undervalued their land to lessen their outlays. Most states supported the notion of fractionally counting enslaved people, though the Articles of Confederation required unanimous agreement and both New Hampshire and New York, for reasons unrelated to the apportionment formula, were opposed. The need for reforming the country’s policy of taxation—and by connection representation—remained, however, and surfaced again during the constitutional debates.
During these deliberations, South Carolina delegate Pierce Butler reasoned with his colleagues for what he called “equal representation.” Madison made note of his speech:
Mr. Butler insisted that the labour of a slave in S. Carola. was as productive & valuable as that of a freeman in Massts., that as wealth was the great means of defence and utility to the Nation they are equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property, and was itself to be supported by property.19
Others remained unpersuaded. Massachusetts delegate and future vice president Elbridge Gerry, born into a wealthy Marblehead merchant family, thought “property not the rule of representation.” Evoking Chase’s old argument for different ends, he denounced the notion that “black… property in the South” should have a greater role in affecting elections “than the cattle & horses of the North.” Watching this sectionally tinctured debate take shape, Madison recognized that certain concessions would have to be made. “Could it be reasonably expected,” he wrote in Federalist No. 54, “that the Southern States would concur in a system which considered their slaves in some degree as men when burdens were to be imposed [taxation], but refused to consider them in the same light when advantages were to be conferred [representation].”20
“Reasonable” expectation dictated the passage of the three-fifths compromise. Its practical effects proved immediate. In 1790 the first U.S. census found a roughly equal number of free citizens in New Hampshire and South Carolina (140,000), though the latter, with its large number of enslaved, claimed two additional congressional seats. Maryland counted a smaller free population than Connecticut but enjoyed greater representation as well.21 One could go on. The upshot is that without the compromise Jefferson would not have defeated John Adams for the presidency in 1800, nor is it likely that, as in fact happened, ten of the country’s first twelve presidents would, at some point in their lives, have owned slaves.
Near the end of the convention, delegates agreed on placing a fugitive slave clause in the Constitution, thus allowing masters to hunt runaways. It reads: “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.” This provision prevented existing domestic antislavery laws in the North from making a fugitive free upon reaching a free state. It is worth remembering that under the soon-to-be discarded Articles of Confederation, these same states could not be compelled to capture and return fugitives. With sentiment in the North turning slowly against slavery, it appeared imperative to southerners like Butler and Pinckney that a potential safe haven for runaways be closed. During the Revolution, tens of thousands of bondsmen and -women had fled to British lines and from there many made their way to freedom. This wartime exodus constituted, so one historian has argued, “the greatest slave rebellion in American history.”22
Looking to prevent future rebellions, delegates, particularly in the Deep South, worked in Philadelphia to ensure the protection of their human property. Pinckney, speaking that fall before the South Carolina state convention that eventually ratified the Constitution by a 149–73 count, insisted that he and his southern brethren had fought a strong fight:
By this settlement we have secured an unlimited importation of negroes for twenty years; nor is it declared that the importation shall be then stopped; it may be continued—we have a security that the general government can never emancipate them, for no such authority is granted…. We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could, but on the whole I do not think them bad.23
Instead of settling the various questions surrounding slavery, however, the Constitution merely established the legal and linguistic terms upon which a great and increasingly intense argument, spanning several decades, began to bloom. The document’s ratification, in fact, prefaced rather than prevented a series of sectional disputes. It served further as a preamble to the combustible events of 1854.
2 Of Crises and Compromises
I know no South, no North, no East, no West to which I owe an allegiance…. My allegiance is to this Union.
Henry Clay, 1850
Though the Constitution created a single nation, the country remained at many points a republic of regions. Friction emerged almost immediately when the centralization of administrative power in the early 1790s attracted a broad if uniquely southern-led discontent. Under the energetic stewardship of treasury secretary Alexander Hamilton arose a governing philosophy—Federalism—that favored industry over agrarianism, deference over democracy, and took a rather dim view of the “baleful” and “abominable” (so one Federalist newspaper said) doctrine of states’ rights. When faced with growing political opposition from supporters of Thomas Jefferson and the nascent Democratic-Republican Party, Federalists in Congress responded by passing the controversial Alien and Sedition Acts (1798), the former making it more difficult for new immigrants, who tended to drift into the Jeffersonian camp, to gain citizenship and vote, the latter criminalizing print criticism of the government. Several anti-Hamilton editors were summarily prosecuted and convicted. One distraught Republican publisher called the offensive legislation “The gag law.” Jefferson quickly identified the sectional dimensions of the acts, writing to fellow Virginia planter John Taylor: “It is true that we are compleatly under the saddle of Massachusets & Connecticut, and that they ride us very hard, cruelly insulting our feelings as well as exhausting our strength and substance. Their natural friends, the three other Eastern states, join them from a sort of family pride.”1
Together, Jefferson and Madison replied to the acts with two anonymously authored protests, the Kentucky and Virginia Resolutions, so named as they were debated and passed by the much-concerned legislatures of those states. Though separately inscribed—Jefferson drafted the Kentucky decree and Madison its Virginia complement—they espoused in common a compact theory of government, describing the Union as little more than a loose and voluntary confederation. Citing the states rather than the people as the Constitution’s creators, the Resolutions recognized their authority to determine if the national Congress had overstepped its powers. Should this occur, they claimed, a state reserved the responsibility for protecting its citizenry from federal tyranny.
In collaboration, these documents called for opposition to the Alien and Sedition Acts, though how they did so revealed important temperamental distinctions between their respective authors. A more conservative Madison asserted Virginia’s liberties without indicating a remedy should these be breached; he thus carefully elided the language of nullification, the idea that states retained the right to invalidate federal law. The older and more militant Jefferson had no such qualms. His notice opened with a ringing endorsement of localism: “Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government.” From there, the document reminded readers of the bound powers invested in the Constitution—“Congress shall make no law… abridging the freedom of speech, or of the press”—before finding that the Sedition Act, in targeting Republican publishers, had rather flagrantly infringed upon the rights of the citizens of the several states. In response, the Kentucky Resolutions, reviewing several instances of “violations” connected to the acts, and more broadly noting the constitutional proviso that “the powers not delegated to the United States” by that document “are reserved to the States,” declared the Alien and Sedition laws “altogether void and of no force.” Thus would Kentucky openly ratify, in Jefferson’s words, “a repeal of the… unconstitutional and obnoxious act[s].”2
Reaction to the Resolutions was quick and, in much of the country, condemnatory. John Marshall, a Virginia nationalist soon to be appointed chief justice of the Supreme Court, thought their adoption “calculated to create unnecessary discontents and jealousies at a time when our very existence, as a nation, may depend on our union.” To the north, Massachusetts senator Theodore Sedgwick called the Resolutions “little short of a declaration of war,” while the Connecticut Federalist Uriah Tracy appeared eager to hit the barricades. “I had wished,” he wrote to a colleague in something of a dark whimsy, “that all the discontented would have made an effort, at this time to overturn the federal Government,” thus giving Yankee legions a reason to invade certain southern hot spots. In conquering Richmond, so he surmised, decades before blue-clad Union armies under Ulysses S. Grant conquered Richmond, nationalists would have “establish[ed] the [central state] with more advantage.”3
Teased by his own martial dreams, Hamilton had also hoped to put the “conspiracy to overturn the government,” as he called it, “to the Test.” In a February 1799 communication he proposed to Sedgwick a decidedly provocative course: “When a clever force has been collected let them be drawn towards Virginia for which there is an obvious pretext—& then let measures be taken to act upon the laws & put Virginia to the Test of resistance. This plan will… enable the Government to triumph with ease.” At the time he wrote this astonishing note, Hamilton was serving as the army’s inspector general, second in command only to former president Washington, who had been coaxed out of retirement to bolster the U.S. military amidst Federalism’s worried response to the French Revolution. Upon Washington’s death that December, Hamilton became the army’s senior officer. “That man,” lamented First Lady Abigail Adams, “Would in my mind become a second Bonaparte if he was possessed of equal power.”4
