Confederate "Heritage" Month, April 19: The Slave Power

One of the more informative histories I've come across on pre-Civil War politics is Leonard Richards' The Slave Power: The Free North and Southern Domination, 1780-1860 (2000).

Richards gives a political history of the strength of the slaveowning states, including a lot of attention to the effect of the Constitution's "three-fifths" clause on boosting Southern clout. The three-fifths clause is in Article 1, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding 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. (my emphasis)

The phrase "other Persons" referred to slaves. The slaves, of course, could not vote. But the white voters in the slave states got additional Congressmen based on the three-fifths rule and therefore gained a voting advantage in Congress. As disputes over slavery became more frequent over the decades, the three-fifths advantage came to be resented more and more by people in nonslaveholding states.

Richards analyzes various key decisions around slavery, including the Missouri Compromise of 1820. The gist of that agreement is that Congress, under the crucial leadership of House Speaker Henry Clay of Kentucky, admitted Missouri to the Union as a slave state with Main admitted as a free state at the same time, while permanently prohibiting slavery in all of the Lousisian Purchase area north of the 36-30' line, except for Missouri itself.

Richards argues that without the three-fifths advantage in Congressional representation, the South could not have won Missouri's admission as a slave state. He refers to the extra representation as "slave seats":

[W]ithout the South's seventeen slave seats, the liklihood of Clay putting together a three-vote Majority would have been slim at best. Historians later forgot this fact; the restrictionists who fought the battle never did. It thus became one of the crucial ingredients in the development of the Slave Power thesis.

Richards looks at a number of different controversies to measure the South's political strength in Congress, including in addition to the Missouri Compromise: Indian removal in 1830; the "Pinckney gag" of 1836; the 1840 gag rule; Texas in 1845; the Wilmot Proviso in 1847, which was connected to the "Three Million Bill"; the Fugitive Slave Act of 1850; the Kansas-Nebraska Act of 1854; and, the Montgomery-Crittenden Amendment of 1858.

Although it didn't involve a Congressional vote, Richards also emphasizes the significance of the Dred Scott decision in early 1847, which the Court delivered two days after James Buchanan's inaguration as President.

The Indian removal act of 1830 is something the Lost Cause advocates prefer to ignore altogether, even though there was a very clear sectional alignment with Souterners voting one way and Northerners another, more so than with the Nullification Controversy that also occurred during Andrew Jackson's Presidency. It also wasn't about slavery, a case with the Lost Causers try to make with the Nullification Controversy. The main reason, I'm sure, is that in the case of Indian removal, the Southerners were aligned in favor of using national power to override any consideration of states' rights, which the Lost Cause mythology holds up as the cause of the Civil War. In their version, the South seceeded to protect states rights, not slavery. But during the Congressional debate over the Indian removal bill, the Northern Whigs mocked the Democrats for overriding states rights, which they defended on other issues.

In his discussion of the Dred Scott decision, which ruled that Congress had no authority to ban slavery from territories, it was widely believed that the Court was willing to allow slaveowners to bring slaves into free states. The suit of Dred Scott and his wife for freedom was based on their temporary residence in free states, but the ruling didn't apply to that argument, because it held that Scott had no legal standing to bring the suit. The Buchanan administration's official paper (i.e., a privately held paper that reflected the administration's viewpoint), the Washington Union, editorialized on 11/17/1857 that it was unconstitutional for Northern states to ban slavery even within their own borders!

The Lemmon Slave Case by John Gordan III (in the Bulletin of The Historical Society of the
Courts of the State of New York; Issue #4)gives an account of this little-known case. Gordan quotes the 03/09/1857 edition of the Albany Evening Journal just after Justice Roger Taney delivered the Supreme Court's most infamous verdict in its history with the Dred Scott decision:

The Lemmon Case is on its way to this corrupt fountain of law. Arrived there, a new shackle for the North will be handed to the servile Supreme Court, to rivet upon us. A decision of that case is expected which shall complete the disgraceful labors of the Federal Judiciary in behalf of Slavery - a decision that slaves can lawfully be held in free States, and Slavery be fully maintained here in New York through the sanctions of "property" contained in the Constitution. That decision will be rendered. The Slave breeders will celebrate it as the crowning success of a complete conquest.

Gordan also quotes this joint resolution of the New York State Senate and Assembly asserting the right of their state to ban slavery against a possible decision by the Taney Supreme Court to override "states rights" to prevent states from banning slavery:

Resolved, That this State will not allow Slavery within her borders, in any form, or under any pretence, or for any time.

Resolved, That the Supreme Court of the United States, by reason of a majority of the Judges thereof, having identified it with a sectional and aggressive party, has impaired the confidence and respect of the people of this State.

Resolved, That the Governor of this State be, and he hereby is, respectfully requested to transmit a copy of this report, the law above mentioned, and these resolutions, to the respective Governors of the States of this Union.

The New York Court of Appeals decided in favor of New York's right to ban slavery in March of 1860. The owner appealed to the US Supreme Court. But, as Gordan quotes William Wiecek:

The owner appealed the decision to the United States Supreme Court, and
antislavery propagandists panicked, fearing that a reversal of the New York
judgment would establish slavery in the free states. The onset of war aborted this
possibility, and Lemmon today is forgotten ...

Well, not entirely forgotten. Readers of Old Hickory Weblog know about it!

Wiecek's article, for the really curious, is, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review, 42 (1974), 86-146. Wiecek there notes that Abraham Lincoln warned of the danger in the Taney Court deciding on the Lemmon case in his now-legendary debates with Stephen Douglass in 1858. He quotes Lincoln at Springfield:

Put this and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits.

And at Galesburg, he continued to warn of a proslavery line of thinking that went like this:

Nothing in the Constitution or laws of any State can destroy a right distinctly and expressly affirmed in the Constitution of the United States. The right of property in a slave is distinctly and expressly affirmed in the Constitution of the United States. Therefore, nothing in the Constitution or laws of any State can destroy the right of property in a slave.

And, as Wiecek comments:

The appeal of the Lemmon case to the United States Supreme Court seemed to abolitionists just the vehicle that Lincoln and others had predicted would be used to force slavery into the free states. Though the case was never decided, Lincoln and the abolitionists were not in the grip of hysteria when they voiced their warning. Taney and his pro-slavery colleagues might well have resolved the conflicts debate engendered by Somerset by annihilating the entire antislavery position.

Somerset was an older British court decision that greatly influenced American legal thinking on slavery. Or, as Wiecek puts it, it "became a basic text of antislavery constitutionalism."

Leonard Richards' methodology in his book focuses on quantifying the Congressional votes and analyzing which groups in the Democratic Party in particular were voting with the slaveowners.

His book is informative and well-written. He marshals his evidence carefully, though I'm not familiar enough with the details of the Congressional votes to critically evaluate the specifics of a lot of his arguments. He does a good job of comgining his careful quantitative analysis with interesting sketches of some of the personalities involved. It was also very interesting to me that California's first two Senators were pro-Southern "doughfaces", even though California came into the Union as a free state.

A review of Richards' book is also available at: Reviewed by William L Barney H-SHEAR (October, 2001).

Tags: civil war, dred scott decision, leonard richards, lemmon slave case, somerset, us civil war