A History of the Trial of Castner Hanway and Others, for Treason, at Philadelphia in November, 1851 / With an Introduction upon the History of the Slave Question

by Member of the Philadelphia bar

At the time of the declaration of independence, when the colonies escaped from their long pupilage, and, with new rights and new responsibilities, set out to act an independent part among the nations of the earth, the taint of slavery was upon every one of them; in every one, the soil was tilled by negro bondmen. The laws regulating the relations between master and slave, were, it is true, widely different in the different States; in some, as in Connecticut, the privileges annexed to the condition were so wide and the facility of rising from it so great, that the constitutional euphemism which is now-a-days so boldly metaphorical, might with every propriety style them “persons held to service or labor;” in others, they were then, as now, a hopelessly degraded class, whose happiness depended entirely on the arbitrary will of their masters. Of course it is not intended to represent that the various States were equally interested in the institution. Varieties of soil, climate and social habits, had drawn the great mass of this population to what are now known as the Southern States. At the time of the Declaration, no authentic enumeration had been made; but when the first census was taken in 1791, the total number of slaves in what are now known as the Northern States, was 40,370; in the Southern, 653,910. At the earlier period of which we are now speaking, the disproportion was probably less striking, but sufficiently great to make the interests of the two sections totally opposite. The difference, however, did not depend merely upon the amount of capital invested. The feeling in the North, both moral and political, was decidedly and in many cases bitterly hostile to slavery. The most shortsighted, therefore, could not fail to foresee the speedy adoption of those measures which ultimately provided for general emancipation. Even in Virginia and Maryland, not then considered as Southern States, ardent advocates were found to plead the cause of liberty, and organized action had more than once been attempted in its behalf. Below the Virginia line, in the Carolinas and Georgia, an abolitionist was as rare a phenomenon then as he would be now; those States were yet but thinly settled, a great part of their lands unreclaimed, and no prospect of improvement appeared, except in the extensive employment of slave labor, adapted both to the climate and the character of the already established settlers.

Such was, briefly, the position of the two parties at the opening of our independent history; and such it was, also, when the Federal Convention met at Philadelphia in 1787, to frame the present Constitution. The question presented itself to this body in a threefold aspect—First, as to the influence which an enslaved race was entitled to exercise in the government; secondly, as to their further increase by importation; thirdly, as to how far Congress and the Constitution were bound to provide for the security of this sort of property.

The first of these was rightly regarded at the time, as by far the most important, not only because of the magnitude of the interests directly involved in its decision, but still more so, because of the principles which, though scarcely remembered at present, were undoubtedly the basis of the Compromise, in which the deliberations of the convention resulted. A moment’s reference to the slave census, referred to above, will show how great was the contrariety of interests involved, and give a tolerably correct idea of the influences by which the various States were governed in discussing the subject. For whatever pleasure it might give us to conceal the humiliating fact, candor will compel us to acknowledge, that even in those heroic times of our history, interest seldom gave way to any nobler feeling when a question like this was to be determined. The original claim set up by the South but abandoned upon the final vote—except by South Carolina, Georgia, and Delaware—was that the black population should be as largely represented in Congress, as the white. It is impossible to give anything but a very brief outline of the arguments used upon both sides. Without venturing to insist upon the obvious absurdity, that an enslaved and helpless race were really entitled to representation because of any rights they themselves might have to defend or duties which they might be bound to discharge, the Southern members took the position, not regarded at that time as utterly heterodox, that a State is entitled to be represented, not merely because of its containing so many human beings, but because so many human beings are in reality only the exponent of so much wealth or so much power contributed by such State to the support of the general government. The federal value of the State is in direct proportion to the amount of this power, and what difference could it make whether it emanated as in the South from a race called slaves, supported at the direct expense of their masters, who supplied them liberally with all the necessaries of life; or as in the North, from a population occupying precisely the same relative position in the social scale, performing labor of the same description, maintained, though in a somewhat different way by the same capitalist, and called Freeman—if one were entitled to representation, why not the other? The negro population was as essentially a producing power and as original an element of wealth as any body of free laborers could be, and therefore as fully entitled to have their interests consulted in the proceedings of a Government instituted for the express purpose of providing for the security of property. But in addition to this, they were entitled to make this claim not only as producers, but also as consumers of those foreign productions, the importation of which would form one great element of wealth in the Eastern States.

The fallacy of this reasoning, specious as it might seem, was warmly commented on and exposed by the opposite side. If the Southern slave was to be regarded as any other human being, and as possessed of those inalienable rights which the Declaration of Independence proudly claimed for all humanity, why not at once call him a citizen and give him the right to be represented, not by his master, but by himself? If he was nothing but property, why not speak out openly and attempt to make property the basis of representation, and the Government a tool in the hands of a moneyed aristocracy? It was conceded that the slaveholding States were at that time by far the wealthiest part of the confederacy, but this wealth of slavery was not and could not be an element of power, but rather of weakness and confusion. If it was argued that slaves filled, in the South, the same relative position as free laborers in the North, and their employment necessarily excluded to a great extent the introduction of a population which would otherwise be entitled to representation, then in the same way free and active mind, the only thing that deserves to be represented, was likewise excluded. But on a similar principle, the horses, cattle, and even the machinery of the North, which was nothing but a substitute for so much manual labor, were equally entitled to be heard on the floor of Congress. Why should property in one form go to Congress, and be shut out when it takes another and more human one? “The houses in Philadelphia alone,” said Gouverneur Morris, “are worth all the wretched slaves that cover the rice swamps of South Carolina.” He ridiculed the idea of treating the Southern slave as a consumer—“for the Bohea tea used by a Northern Freeman will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence, and the rag which covers his nakedness.”

As a last resort, however, the Carolinas had an argument ready which defied all ingenuity, learning, or statesmanship to answer, and which has so often proved potential in after discussions. “North Carolina would never confederate on any terms that did not rate the black population at least at three-fifths.” Connecticut generosity immediately interposed to prevent so disastrous a result, and after another fruitless effort to obtain an equality of representation, as some of the members rather metaphorically termed it, for the luckless slaves, the clause as it now stands was adopted by an almost unanimous vote. Thus was established the second great compromise of the Constitution. It is in vain to support it now upon the grounds which its friends originally occupied. Truer views of the real origin and real ends of Government, have forever exploded amongst us the notion, that property can in any way with justice be made an element of representation; and that article in the Constitution stands now solely upon any merit which it may have acquired as a necessary concession to reconcile clashing interests; and it will probably hold its place as long as slavery exists, upon the simple ground so tersely laid down at the close of the discussion—that North Carolina would never have confederated without it.

The course of the debate had, however, clearly shown that the slavery question was at best nothing but the stalking horse behind which deeper influences moved; that though the battle cry on one side might be the rights of man, and on the other the rights of the master, yet the battle cry in this, as in many other cases, hinted but remotely at the real grounds of the war. The slaveholding States were at that time the richest part of the Union, but their wealth arose exclusively from agriculture, and their interests of course centered in this, and in the exportation of their products. The Eastern and Middle States, though then comparatively poor, were clearly destined to be the commercial power of the Union, though the extent of that commerce and the enormous wealth of which it has been the source, was then little dreamed of. The great West was as yet a power unknown, and scarcely foreseen even by the most sagacious statesmen. The object of the South, therefore, was to increase their productive power, to give it as great an influence as possible in the affairs of the country, to leave commerce unfettered, and especially to exempt exports from the payment of duties. That of the North, on the other hand, was to give Congress such large powers in the regulation of commerce, as might be employed in the protection of their infant marine against foreign competition; and to diminish the duties on imports. In short it was merely a question as to which should be the predominating interest—whether the South should be a huge plantation to be drained of its wealth by the merchant princes of the North, or whether the northern cities should be nothing but the trading depots of Southern nabobs. The representation of slaves, the chief productive element of Southern wealth, was selected as the test question, and the powers of both parties were developed to the utter-most in debating it. In the end, the North gained the commercial privileges upon which it had insisted, the South three-fifths of the anomalous representation which they demanded, together with the exemption of exports from taxation. The overwhelming power and wealth which the North have since acquired, and which must certainly be in some measure attributed to this early policy, sufficiently proves that they made an excellent “bargain” as one of their members termed it; the morality of the arrangement we do not propose to discuss, but certainly while that compromise, be it good or bad, remains in the Constitution, the interested work of both parties, it would require the nicest casuistry to determine which of them is entitled to indulge in any special self-glorification in the premises.

The second question above stated, acquired great additional importance from the mode in which the first had been determined; though minor and more local interests prevailed to alter the arrangement of the contending forces. The whole of the middle and Eastern States were of course, both from principle and policy, opposed to the perpetuation of the slave trade. They had everything to lose and nothing to gain by it. If this population must needs be represented on the floor of Congress, certainly their next object was to reduce it to the smallest numbers possible. But in addition to these very obvious interests, Virginia and Maryland had other and private reasons for wishing to abolish a trade which, as their lands were already overloaded by this unhappy race, could be of no possible service to them, while to some extent it must deprive them of the ever-extending southern market, into which their surplus, “annually arising and renewing,” might be profitably disgorged. Virginia philanthropy was therefore earnest to put an end to so nefarious a traffic, and its ruinously debilitating and demoralizing effects were vividly depicted by her talented delegates. South Carolina and Georgia, whose original swamps were yet unredeemed from their primeval worthlessness and desolation, and all whose hopes of future greatness, both political and agricultural, depended on the increase of this very available population, were sadly dismayed at the dismal prospect thus suddenly and unfeelingly opened before them by the desertion of their late allies. In vain they sought to discover, and no wonder the problem puzzled them, why it should be a damning crime to buy prisoners of war on the banks of the Niger, but a very laudable and eminently patriotic course to buy black children and mulattoes bred for the purpose on the banks of the Potomac.

We would not, however, represent that this question was debated by all the Northern members with such exclusively interested views as marked their treatment of the preceding one. Many of them were really alive to the horrors of a trade which the whole civilized world was beginning to look upon with detestation, and they protested vehemently against its toleration under a new and republican government. But South Carolina was by this time thoroughly versed in that omnipotent logic which has tied up so many Gordian knots from that time to this. “Religion and humanity,” said Rutledge, “have nothing to do with the question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union.” “South Carolina,” said Cotesworth Pinckney, “can never receive the plan if it prohibits the slave trade;” and “Georgia,” echoed Baldwin, “will never become a member of the Union, if forbidden to import slaves.” Ellsworth, from Connecticut, forthwith took the alarm—“was afraid of losing two States, while such others as might be disposed to stand aloof, would fly into a variety of shapes and directions, and most probably into several confederacies, not without bloodshed.” This singular imaginary spectacle of States flying into a variety of shapes, which has rambled through the brains of successive generations, till the genius of the last great compromiser exalted it into the sublime metaphor of erratic planets rushing madly from their spheres, of course settled the question at once, and the slave trade was tolerated till 1808, under the harmless euphemism of the migration and importation of such persons as any of the then existing States might think proper to admit.

Whether the controversial resources of the Convention were by this time exhausted, or whether revolutionary sagacity failed to discover any new danger to the Union in a clause that in more modern times has proved a mine of most combustible perils; or whether, as is most likely, the members saw that the political interests of the two great sections were in no way staked upon the decision; certain it is, that when, late in the summer, Mr. Butler suggested the restoration of fugitives from labor as an amendment to the article providing for the delivering up of criminals, the only objection offered was that the two clauses seemed somewhat incongruous. The proposal was withdrawn for the moment and submitted a few days afterwards by the same gentleman and C. Pinckney. It was at once agreed to without debate. It is somewhat singular that so many complaints should have been made of the inadequacy of a provision thus expressly fashioned by the party it was intended to benefit, and which is in reality more stringent than the one which, had it not been for the Northern members, would originally have been adopted.

The Convention adjourned about the middle of September, and the members betook themselves to their respective homes—most of them to defend in their State conventions the great work which they had completed. It would be a tedious, and is happily an unnecessary task, to trace the Constitution through the many ordeals it had to pass, ere a final ratification was obtained. The arguments used both by the friends and opponents of the compromises, were the same as those already sketched. Suffice it to say that while the toleration of the slave trade and the apportionment of representatives, met with serious opposition in all the Northern States; yet so far as there are any reports of the debates, there does not appear to have been a word said either for or against the clause relating to the restoration of fugitives, except in Virginia and the two Carolinas, where it was enumerated among the victories gained for the South, and spoken of in terms of high approval. Generally, however, it was passed over without the slightest comment.