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

Such, then, were, upon this subject, the materials of controversy bequeathed to posterity by the framers of the Constitution—harmless enough, it would seem, and not easily tortured out of their quiescent state; but in the gradual change of times and parties, and magnified, too, by sectional interests and passions, found amply sufficient for the political wranglers of three generations, and gifted with a vitality and obstinacy that survive unchanged the conflicts of sixty years—neither broken by the blows nor mollified by the compromising caresses of whole hosts of eloquent statesmen.

The jubilee that hailed the birth of the new government was scarcely over, ere its friends, in their eagerness to push the advantages already gained, and its enemies, in the hope of retrieving their defeat, found means to rouse into new life the scarce quieted troubles of the Convention. The relative importance, however, of the slavery questions, was already beginning to change. The provision apportioning representatives and direct taxes, was so carefully worded and had been so anxiously debated both in the Federal and State Conventions, that no flaw could be found to hang a doubtful construction on, and little hope could be entertained of overturning that which had been so deliberately and so recently agreed upon as in some measure the corner-stone of the structure upon which all the nation’s hopes depended. It was rather the toleration of the slave trade which at this early period stung the consciences or clashed with the interests of a portion of the members. In the first session of the first Congress, when the tariff bill was under discussion, Parker, a delegate from Virginia, first rekindled the wordy war, by moving to insert a clause imposing a duty of ten dollars a head, which was allowed by the Constitution, upon every slave imported. The question seems to have been debated, like its countless progeny, with abundant warmth. Mr. Smith, of South Carolina, informed the House that “no topic had yet been introduced so important to South Carolina and the welfare of the Union.” Jackson, from Georgia, one of the most indefatigable debaters of his day, and a man of very considerable abilities, attacked Virginia with especial bitterness for her interested and hypocritical philanthropy. But perhaps the most remarkable, as it certainly was the most able speech delivered on the subject, was that of Madison in support of the measure. As his opinions are known to have coincided with those of Washington, Jefferson, and Patrick Henry, they may be fairly taken as expounding the sense of Revolutionary Virginia on the great interests of slavery. “By expressing,” said he, “a national disapprobation of that trade, it is to be hoped we may destroy it, and so save ourselves from reproaches, and our posterity from the imbecility ever attendant upon a country filled with slaves. This is as much the interest of South Carolina and Georgia as of any other States. Every addition they receive to the number of their slaves tends to weakness, and renders them incapable of self-defence. In case of hostilities with foreign nations, their slave population will be the means, not of repelling invasion, but of inviting attack. It is the duty of the general government to protect every part of the Union against danger as well internal as external. Everything, therefore, which tends to increase this danger, is a proper subject for the consideration of those charged with the general administration of the government.” Parker finally withdrew his motion, intending, however, to make it the subject of a separate bill. The chief reason assigned for this course was, the unwillingness of many of the members to vote for a clause by which they might seem, however indirectly, to sanction the idea that human beings were to be treated like goods and chattels, and to be classed with and legislated upon as such.

No member, however, was found disposed to moot the question so late in the session, and it slept quietly till March of the following year, when it presented itself in a new and much more troublesome form. The interests of humanity involved in the abolition of slavery, had not been left altogether to the mercy of politicians and political expediency. At a much earlier period, philanthropic and religious organizations had been established with a view to expedite a result so consonant with the aims of humanity and justice. Among these, the Society of Friends had especially distinguished itself, and some of its more active members now resolved to seize the fortunate occasion, offered by the establishment of a new and vigorous government, to direct, if possible, some of its wholesome energies to the attainment of their great object. The Yearly Meetings of Pennsylvania and Delaware, accordingly united in a petition, praying Congress to abolish the slave trade. The phraseology of the petition was a little ambiguous, making it doubtful whether it really prayed an immediate abolition, or only that Congress should use whatever power they might possess under the Constitution, to discourage the hateful traffic. Viewed in the latter light, the prayer was undoubtedly a most proper one; and even if the former be its true construction, the petitioners only shared an error common to some of the first statesmen of the day—that of over estimating the powers of a newly constituted and untried government. But whatever was its true meaning, the petition broke like a thunderbolt over the heads of the irritable congressmen. The debate exceeded in violence anything that had yet been heard. The Quakers who had ventured to appear in the gallery to countenance their unlucky petition, were encountered with scoffing and personal abuse. Jackson renewed his former threats; the hall rang with cries of dissolution; falling columns, torn flags, blood-stained battle fields, and all the dread imagery that seems to be stereotyped in some imperishable material, was paraded with frightful significancy before the startled audience. On the following day, however, to which the debate had been adjourned, the Friends appeared with a formidable auxiliary indeed. Next to Washington, no man was regarded in those days with more general veneration, than the sage and statesman, Franklin. As early as 1787, this great and good man had been chosen first President of a “Society for promoting the abolition of slavery, for the relief of free negroes unlawfully held in bondage, and for improving the condition of the African race”—a society which deserves especial mention here, as one of the latest acts of its useful and honorable career, has been to support the defence in the Treason trials, to a history of which this brief essay is intended as a preface. A petition of the same nature, as that of the Yearly Meetings, was presented from this Society and signed by Franklin—this being perhaps the last official act of a strangely varied life, in the whole course of which it would be difficult to point out a single step taken unadvisedly, or a word uttered which the speaker would afterwards have wished to retract. After a long recital, the memorial concluded, by praying “that Congress would promote mercy and justice towards this distressed race; and step to the very verge of the power vested in them, for discouraging every species of traffic in the persons of our fellow men.”

It would be difficult for any but a congressman, looking at this paper now, to find in it the materials for excited debate, or, at any rate, for violent invectives against the impertinence of its framers. It certainly does not arrogate the privilege of judging or even suggesting the course which it behoved Congress to take. With mingled modesty and confidence, it is left to more deliberate counsels to determine what may be and what ought to be done, the petitioners only imploring, for the sake of humanity, religion, and consistency, that all which could be done, should be done. If such was the spirit that offered it, that which received it was widely different. The debate of the previous day was renewed with additional violence—policy, interest, the Constitution, the Declaration of Independence, history, antiquity, justice, religion, and the Bible, were as usual confidently invoked to the support of both sides. The house was divided much in the same way as the Convention had been on the same subject. But the debate is entitled to particular notice, as opening for the first time the constitutional question which for many years agitated both houses, as to how far Congress could be considered as true to its duty in refusing to listen to and to commit any memorial whatever, not flatly absurd and extravagant—no matter how certain might be the fate which in committee it was doomed to meet. The negative was earnestly insisted upon by Madison and Paige from Virginia, and the petition was finally committed by a vote of forty-three to eleven. After a month’s deliberation the committee produced an elaborate report, submitting that Congress had no power to abolish the slave trade till 1808, though they might regulate the manner in which it was conducted, and impose the tax of ten dollars if they saw fit; that they had no power to emancipate the slaves already held in the various States, nor to interfere with the domestic legislation by which the several State legislatures might see fit to govern or educate this species of property; but that they had the power to prohibit citizens of the United States from supplying foreign countries with slaves, and to forbid foreigners fitting out slave ships in our ports; and finally that they would exercise all the authority they had to promote the views presented by the memorialists.

Our limits will not permit us to give even an abstract of the arguments, thinly scattered through six days of congressional declamation, upon this memorable report. The speakers readily divided themselves into the three parties which have ever since been maintained, whenever a similar question has arisen in either house—the earnest and uncompromising opponents of slavery; its equally zealous defenders; and a third party, which from that day to this has uniformly stood between the two, with temporising, soothing, and compromising measures, promising peace, but sowing the seeds of future war, quieting the temper but not satisfying the understanding, sweet to the mouth but bitter to the belly. Jackson and Smith, after deprecating the question altogether as unconstitutional and uncalled for, finally took bolder ground than any they had yet assumed, insisting on the justice and necessity of their favorite institution; on the happy condition of the Southern slave, as compared with the laborers of Europe, and the lower classes of the North; that slavery, sanctioned by the example of every illustrious nation of ancient and modern times, looked for its original to the will of God himself; that this unnecessary measure bade fair to plunge the Union into confusion; that the South was prepared to defend, and would defend their property against every aggression; that if the compromises of the Constitution were not to be respected, the Union, which had been cemented by them must at once and forever be dissolved.

The opposite side was supported mainly by Virginia, Delaware, and Pennsylvania; but the only speech of interest on their side, was that of Scott, from the last named State, who labored, with no little ingenuity, to prove that Congress were in no wise bound to inactivity by the clause in question; that, as the arbiters of commerce, the framers of naturalization laws, and the punishers of piracy, they could in many ways not only control, but if they saw fit, at once abolish the traffic, in spite of this ambiguous and disgraceful restriction.

There was not, and there could not be, anything original in the views of the third party, except perhaps that their most earnest advocate, Baldwin, came from Georgia.

This famous debate, the parent of a countless offspring, resulted in a compromise, recommended as “the most conciliatory, and the best adapted to the present situation of things.” It consisted in carefully striking out of the report every clause to which any body could frame a serious objection, and entering the rest on the Journal without taking any final action on it. The report as entered, asserted the power of Congress to regulate the slave-trade, so far as to secure the humane treatment of the slaves during their passage, to prohibit foreigners from fitting out slave ships in our ports, and our citizens from supplying foreign States with this commodity; but disclaiming all right to interfere further before 1808, or to exercise any authority in the emancipation of slaves already in bondage, or in the amelioration of their condition. No intimation was made as to how they might choose to exercise the powers thus claimed. The influence which this result has had upon all after times, singularly confirms a prediction made by Scott, in the course of the speech already referred to—“that what was said, and more particularly what was done in Congress, at that time, would in some degree form the political character of America on the subject of slavery.” In fact, congressional legislation has never departed from the standard here established. All attempts to make this really a national question, have been uniformly employed for the mere purposes of temporary agitation, and have as uniformly ended in a compromise between a doubting majority and a resolute and unflinching minority.

A question of much more practical importance at the present day, and on which it would be extremely interesting to know the views expressed by the sages who watched over the infancy of the Republic, must have arisen in the House shortly afterwards. North Carolina had ceded a portion of her enormous but unsettled territory to the General Government, on the express condition, however, that Congress should do nothing towards emancipating the slaves already to be found there. No report, however, of the debate upon the bill has been preserved.

For some time after this, all agitation of the subject was carefully avoided. Petitions were occasionally received from Abolition Societies in New York and Pennsylvania, praying Congress to put to some practical use the powers which, by the report entered on the Journal of the House, they had declared themselves possessed of. Some were referred to committees which never reported, others suffered to sleep quietly on the table of the House, and one from Warner Mifflin, a well-known Delaware Friend, escaped the obscurity in which its fellows were forgotten, only to be returned to him with an abusive speech from North Carolina, which nobody thought it worth while to answer.