made. On March 2d, 1833, the President signed the bill for the compromise tariff,38 and the enforcement bill. March 11th, the Convention reassembled in South Carolina; repealed the Ordinance of Nullification on account of the passage of the new tariff; and on the 18th, went through the form of nullifying the enforcement act, a perfectly safe proceeding, since obedience to the tariff prevented any test of its validity.39 A year later, the Supreme Court of South Carolina, by a vote of two to one, held that the requirement of an oath of allegiance to the State ignoring the Constitution of the United States was a violation of the State Constitution, which forbade new qualifications for office. One of the judges held that it was also a violation of the Constitution of the United States. The dissenting judge held the act imposing the oath valid, and in his opinion. maintained the rights of nullification and secession.40 The State Constitution was subsequently amended so as to require that public officers should swear allegiance to both the State and the United States. The controversy terminated. Each side claimed a victory. Calhoun's policy had been successful, and the result encouraged his successors when they put to the test the doctrine of the right of secession. § 35. Constitutional Aspects of Slavery.1 The Constitution secured the South against discriminating taxes upon slaves. It gave Congress no power to interfere with slavery within the different States, except possibly in time of war. It also ordered the return of slaves who had escaped into a free State.3 About these points there could be no doubt; and they provoked the speech of Wendell Phillips: "The Constitution is a compact with hell. God damn the Constitution of the United States." It was clear also that Congress had power to prohibit the international slave-trade after 1808, as it did in 1807, and the slave-trade within the District of Columbia, as it did in 1850, 87 Supra, § 16, note 13. 88 4 Stat. at L., p. 629. 89 State Papers on Nullification, pp. 352, 358-374. 40 State ex rel. McCready v. Hunt, 2 Hill (S. C. Law), 1, A. D. 1834. This volume is also published separately as The Book of Allegiance. § 35. 1 All the questions stated in this section will be discussed later under the appropriate titles. 2 Constitution, Article I, Section 9. 3 Constitution, Article IV, Section 2. and to abolish slavery in the District; although the Constitutional guaranty of private property might have been invoked to compel compensation in case of abolition. The free, as well as the slave States, had absolute control over slavery within their jurisdiction. According to international law, slavery is a status, the recognition of which is within the discretion of the State to which a person held as a slave elsewhere is brought, and consequently it was usually held within the free States that slaves were free when brought there voluntarily by their master, either for permanent residence or in the course of transit from one part of the country to another. These points were also generally conceded. But great friction had been caused by the decisions of the Northern courts in cases of the last kind; the abolitionists attacked the fugitive slave law as unconstitutional in some of its provisions; and the slave-owners made the same objection to the personal liberty laws of the Northern States which impeded the recapture of slaves. Much complaint was made in New England against the legislation of the slave States on the coast, especially in South Carolina, which imposed restrictions upon the liberty of colored sailors on vessels from the North. These laws, also, were attacked as impairments of the privileges and immunities secured by the Constitution to citizens of other States. The South claimed that this clause of the Constitution did not apply to negroes; and a majority of the Supreme Court in the Dred Scott case had concurred in this view, which was expressed in the dictum of Chief Justice Taney, that when the Constitution was adopted, it was considered that the blacks "had no rights which the white man was bound to respect." The demonstration by Judge Curtis in his dissent, that this opinion was unsound, was accepted by the North. The more important questions, however, were those upon which in general controversies arose. Congress had the power to regulate interstate commerce. that include the power to regulate the interstate slave-trade? And could Congress thus compel a free or a slave State to allow the introduction of slaves from other States without her will? Or on the other hand, could it forbid the transportation of slaves from 4 Constitution, Article I, Section 8. 5 Lemmon v. People, 20 N. Y., 562, and cases cited in arguments of counsel. Did 6 Constitution, Article IV, Section 2. 7 Dred Scott v. Sandford, 19 How. 392, 407. one State to another? A majority of the justices of the Supreme Court of the United States had agreed that the second at least could not be done. Their opinions were, however, mere dicta, and the case was decided upon another point. Lincoln, in his debate with Douglas, had expressed himself as uncertain upon the subject, and had the Republican party increased in power, undoubtedly some attempt at interference with slavery would have been made in that direction. The live question was as to the right of Congress to regulate slavery in the Territories. For if slavery was not extended to them, they would enter the Union as free States; and in that way enough of a majority might be obtained to amend the Constitution so as to obliterate the sections which protected property in man. By the Missouri Compromise in 1820, it had been provided that slavery should not be allowed in the territory acquired from France, north of the parallel of 36° 30', which, when extended to the Pacific, included all but a small fraction of what are now the States of Texas, New Mexico and Arizona, the Indian Territory, Oklahoma, and a large part of Southern California.10 8 Groves v. Slaughter, 15 Peters, 49. Dispassionate arguments in support of this power of Congress, and the consequent lack of power in the States to interfere with such interstate traffic, were made by Clay and Webster at the bar in this case. On the other hand the act of March 2, 1807 (2 St. at L., pp. 429, 430), which abolished the international slavetrade, in Sections 9 and 10, regulated the interstate slave-trade so far as the shipment of slaves on coasters was concerned. In 1818 the New Jersey legislature instructed the State delegation in Congress to procure an act prohibiting the transportation of slaves from any State whose own laws forbade it. (Schouler's History of the United States, vol. iii, pp. 143, 144, note, citing Journals of Congress, December, 1818.) One of the features of the Clay compromise of 1850, as originally introduced, was the declaration "that Congress has no power to prohibit or obstruct the trade in slaves between the slave-holding It was the general understanding at the time that this was a permanent adjustment of the dividing line between free and slave territories for the future, and it was continued, although with some opposition from the free States, upon the annexation of Texas in 1845. Many in the North, however, rebelled against such a settlement, and subsequent attempts were made by their representatives to disregard it, especially when the Wilmot Proviso,12 which affected the land subsequently acquired from Mexico, was proposed and nearly adopted.13 the same from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." 115 St. at L., 798; Stephens, Constitutional View of the War between the States, vol. ii, p. 164; citing Congressional Globe, 28th Congress, 2d sess., p. 193. 12 It is said that this proviso was originated by Prince John Van Buren at a weekly dining-club of politicians in New York City. According to the story, Samuel J. Tilden then suggested that each of the free-soil representatives in Congress should have a copy of the resolution in his pocket, and at the first opportunity should claim the floor in order to present it. The Speaker recognized David Wilmot of Pennsylvania, the most moderate of the crowd, and thus his name secured a permanent place in history. (Ben. Perley Poore, in the Boston Budget, 1885.) 13 The legislatures of New York and Vermont passed resolutions which were sent to the next session of Congress after the admission of Missouri, denying that any compact was then made between the North and South for a permanent settlement of the question of slavery. (See Stephens, Constitutional View of the War between the States, vol. ii, p. 162, citing Annals of Congress, 16th Congress, 2d Session, pp. 23, 78.) In 1838, upon the application for admission into the Union of Arkansas, which The Missouri Compromise was was formed south of the Compromise line out of a part of the Louisiana purchase, John Quincy Adams and a number of other Northern members voted against its admission as a slave State. (Stephens, Constitutional View of the War between the States, pp. 163, 164.) In 1846, upon the consideration of the bill appropriating $2,000,000 for use by the President in purchasing territory from Mexico, the Wilmot Proviso was moved and supported by most of the Northern Whigs and a number of the Northern Democrats. This declared it to be "an express and fundamental condition to the acquisition of any territory from Mexico that neither slavery nor involuntary servitude shall ever exist therein." At the next session, January 15th, 1847, when the bill to organize a territorial government for Oregon was under consideration, Burke of South Carolina, to test the views of the Northern members, moved an amendment to that clause of the bill excluding slavery from the Territory in the following words: "Inasmuch as the whole of said territory lies North of 36° 30′ latitude, known as the line of the Missouri Compromise." This was voted down by 113 against 82. The negative votes were all from the North. All the Southern members, and only six from the North including Stephen A. Douglas, voted for the amendment. (Ibid. pp. 165, 166.) The Wilmot Proviso, which in 1846 had passed the House and failed in the Senate, and with its failure defeated the $2,000,000 bill, was renewed and only finally abrogated by the passage of the Kansas and Nebraska Bill in 1854.14 It was the contention of the North that the clause in the Constitution which gave Congress power to make all needful rules and regulations respecting the Territories or other property belonging to the United States,1 included absolute power to regulate their domestic institutions. The South, on the other hand, maintained that the guaranty in the Fifth Amendment of pro upon the bill for organizing a territorial government for Oregon, Douglas, who was then in the Senate, moved to strike out the general restriction against slavery, and to insert the following: "That the line of 36° 30′ of north latitude, known as the Missouri Compromise Line, as defined by the eighth section of an act entitled 'An act to authorize the people of Missouri Territory to form a Constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and to prohibit slavery in certain territories,' approved March 6th, 1820, be and the same is hereby declared to extend to the Pacific Ocean, and the said eighth section, together with the Compromise therein affected, is hereby revived and declared to be in full force and binding for the future organization of the territories of the United States in the same sense and with the same understanding with which it was originally adopted." The amendment was carried in the Senate by a vote of 33 to 21, but defeated by a vote of 82 to 121 in the House. The Senate receded from their amendment, and passed the House Bill, with an unconditional restriction against slavery, by a vote of 29 to 25. Every Southern senator present voted for the amendment in the Senate, and but seven Northern members, including Douglas and Dickinson from New York and Campbell of Pennsylvania, joined it. All those votes against it in the Senate were from the North. When the amendment was before the House, on Aug. 11th, all of the eightytwo votes in its favor were from the South, except four. Every one of the 121 against it was from the North, except that of Houston of Delaware. On the final vote in the Senate, every Northern senator voted yea, and every Southern senator nay, except Benton of Missouri. It was claimed by the South that "this was a complete and total abandonment of the Missouri Compromise so-called by both Houses of Congress. It met its final doom on the 12th of August, 1848. On that day it fell and was buried in the Senate, where it had originated twenty-eight years before, but had never quieted the abolitionists a day. It fell, too, not by Southern but by Northern men. The very States to which it owed its paternity struck the last decisive blow." (Stephens, Constitutional View of the War between the States, vol. ii, pp. 172, 173.) 14 Act of May 30, 1854; 10 St. at L., 283. 15 Constitution, Article IV, Section 3. |