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

But, during the second session of the Second Congress, the highly important act was quietly passed, which from that time till 1850 regulated the return of fugitives from justice and labor. The Governor of Virginia, acting under the advice of counsel, had refused to deliver up a fugitive criminal to the Executive of Pennsylvania, conceiving that the provision in the Constitution did not sufficiently define the manner in which this duty was to be complied with. The matter had been submitted to President Washington, who made it the subject of a special message to the Senate, whereupon an Act providing for the practical enforcement of both Constitutional provisions, was shortly after proposed and passed. With regard to fugitives from labor, it enacted that the owner, or his agent, might seize such fugitive, take him before a United States Judge, or any magistrate of the city, town, or county, where the arrest was made, prove to his satisfaction, by evidence written or oral, that the claim was a just one, and, having obtained his certificate to that effect, carry him back as his slave, without any further proceedings whatever.

The Bill became a law, with little or no opposition in either House, attracting scarce any public attention either in the North or South.

From this time till the year 1807, the history of the subject may be very briefly summed up. Petitions were from time to time received, complaining of the hardships suffered by emancipated negroes in some of the southern States, and praying the interference of Congress to mitigate the horrors of the slave trade. They gave birth to the usual amount of declamation, were in some cases referred to committees, in others either rejected, censured, or suffered to sleep on the table. The two parties of Federalists and Democrats, into which the nation was divided had long before this, become distinctly marked, every question which was broached assumed more and more a political aspect, and as the power of the Federalists hurried to its fall, the tendency grew constantly stronger in both, to make almost any sacrifice or concession, to win over southern votes. Hence the triumphs of the friends of emancipation were pretty evenly balanced by their losses. Slavery was rapidly disappearing from the northern States and the attempt repeatedly made to introduce it into the territory of Indiana, was as often defeated. But on the other hand South Carolina, after a long interval, again opened her ports to African slavers, and all attempts failed to impose the Constitutional tax upon the importation; while the purchase of Louisiana and the organization of Mississippi, gave additional strength to the South, though the danger of flooding them with slaves through the open ports of South Carolina was in some measure obviated by a special provision which closed these newly acquired territories against any of the recent arrivals.

The long wished for time at length arrived when Congress might constitutionally abolish the slave trade, when the third compromise of the Federal Convention was at length to expire, and the most glaring contradiction in our history was to exist for the future only as a recollection of the past, not as a present and pressing disgrace. All parties were alike resolved to seize the happy occasion. Even South Carolina for a while did not venture to disturb the general unanimity, and resigned herself quietly to her fate. But as the course of Congressional legislation never yet ran smoothly, so here a singular notion was started in Committee by which it was proposed to prohibit the traffic by heavy penalties, and yet at the same time to enrich the National treasury by its proceeds. This extraordinary plan proposed, in short, that all slaves captured in our vessels by the United States cruisers, should be forfeited and sold by the United States into perpetual slavery. Yet a plan so preposterous as this, by which the National Government was to be deeply implicated in a crime which it was the very object of the law to prevent, was triumphantly carried by the violence of the southern members through every stage of legislation to the very verge of final passage. Happily for the honor of the country the North was at last aroused from her lethargy, and by a desperate effort obtained a recommitment of the bill even at this latest possible moment; the obnoxious clause was altered into a binding out to service for a term of years in the free States, and the bill came up for final action. What possible objection could be taken to a provision which threw almost the whole burthen on the free States, it is hard indeed to discover; but the idea of emancipating an African, no matter under what circumstances, was altogether too much for the equanimity of southern blood. Their members, as Ellsworth would have expressed it, “immediately flew off into a variety of shapes,” protesting that they would sacrifice their lives rather than submit to it, and that military force should in vain attempt to force it on them. This meaningless declamation was persisted in on the following day upon some minor parts of the Bill providing for the transportation of slaves by coasting vessels, requiring manifests certified by proper officers in order to prevent the obvious danger of deception being practised in this way upon the general Government. The most audacious threats were freely uttered. Randolph, the eccentric member from Virginia, took the lead, gave his singular genius for virulent abuse full scope, and at last concluded by hoping that if the Bill were signed by the President in its present form, not a single southern member would be seen on the floor of the next Congress. The bill was nevertheless signed as it passed, the southern members came back punctually at the opening of the next session, and have with praiseworthy regularity been drawing their eight dollars per day from the National Treasury from that time to this.

With the passage of this great measure the victories of the abolitionists reached their climax. From 1807 up to 1818 their successes were fairly balanced by their reverses. The great acquisitions of new territory during this period were so many triumphs for the South, and the new free States which came into existence were erected in districts into which the slave system had never ventured. The spirit which had supported the friends of humanity in their labors seemed to be gradually decaying. The representatives of free principles in the southern States grew yearly less numerous, while an unaccountable apathy was creeping over the once vigorous and energetic societies of the North. Politicians took less and less interest in views which, if openly professed, would rob them of many friends, while candidates for National offices took refuge from such dangerous ground in discreet silence or studied ambiguity. Without spending time, therefore, upon the many less important debates that intervened between this and the year 1819 we may pass at once to the memorable one which in that and the following year, threw the whole nation into a state of unparalleled excitement. A few remarks will serve to explain the origin of this new form of the question. In 1787, before the adoption of the Constitution, the old Congress had, by a unanimous vote, passed their famous ordinance for the government of the territories of the United States. Among the fundamental conditions of this compact, as it was called, and which was “forever to remain unalterable,” except by the mutual consent of both the contracting parties, was an article providing for the perpetual exclusion of slavery from this “virgin soil.” The honor of introducing the provision has been since disputed between Virginia and Massachusetts; but be that as it may, its adoption seems to have been a natural effusion from the spirit of freedom which warmed every heart in those days from New Hampshire to Georgia. The subsequent cessions of territory by Georgia and North Carolina, out of which the States of Mississippi and Tennessee were erected, had, however, been guarded by express reservations of the rights of slaveholders, and these reservations were, as we have seen, necessarily respected by Congress. But upon the purchase of Louisiana and Missouri from France in 1803, no such stipulations had been introduced into the Treaty; yet while Congress does not seem to have thought itself at liberty to interfere with the already vested rights of slaveholders in those territories, every possible measure was adopted to prevent the further increase of the race by migration or importation from abroad. Louisiana was admitted almost immediately, passing with scarce any transition from her condition as a French colony to that of an independent American State. With regard to her, therefore, it was thought inexpedient to startle these recently acquired and scarce reconciled citizens, by legislation which they might misconstrue into arbitrary misgovernment taking advantage of their helplessness. In 1802, 1816 and 1818, Ohio, Indiana and Illinois had been successively and quietly admitted under the terms of the ordinance of ’87. The country was thus in a state of perfect repose so far as this question was concerned. All early excitement had died away, a new generation had arisen in Congress, and new intellects were roaming about seeking the material for agitation and display. At this juncture Missouri applied for admission to the Union. A large majority of the Northern members at once decided that they would in all future legislation bind themselves irrevocably to the free principles of the ordinance of ’87. Missouri, it was true, had at the time a large number of slaves within her borders, but upon these vested rights as the South was pleased to call them, the North did not propose to encroach. But they contended, that up to the last moment of her territorial existence the paramount authority of Congress over her could not be questioned. The Constitution in providing that “new States may be admitted into the Union,” must have intended to allow Congress to exercise some discretionary power in the case, and how could such power possibly be exercised if not by imposing conditions upon the high privilege they were bestowing. Was it to be in the power of any community, no matter how barbarous their laws or how monstrous their social habits, to claim admission into a Union already the hope and admiration of the world, simply upon showing that they numbered the requisite population and had set up a Government which they might choose to call republican? Such a doctrine could never be tolerated in a civilized and Christian society, and never had been acquiesced in heretofore by the general Government. Not a single State had yet been admitted, except upon some conditions or restrictions. And if the general principle were once allowed that the power to impose such restrictions existed, could a case be imagined more urgently demanding its exercise? Were Congress to be called upon at this late day to roll back the tide of legislation which ever since the “immortal ordinance of ’87” had been flowing on towards the fulfillment of those bright visions of universal freedom and equality in which the fathers of the revolution had indulged? Could it be, that the southern members, who had uniformly mourned over slavery as the greatest of evils, and had proclaimed again and again that it was a heavy hereditary curse of which their constituents longed to free themselves, could it be that these very statesmen were seeking to extend this curse, to perpetuate this evil, and fasten upon the growing west an Institution that Washington, Madison and Jefferson had denounced as demoralizing and debilitating?

On the other side, it was argued that the Ordinance of ’87 was never intended by its framers to apply to any other territory than that which was actually in the possession of the United States at the time of its passage; that the established habits of the region which was now to be admitted, peremptorily called for the toleration of slavery; that the Constitution did not, and no power could restrain a sovereign State from establishing slavery, or any other institution she chose, in her midst; that any proviso like this, therefore, pretending to control that sovereignty, was an absurdity; that Congress had no power to legislate, except for territories, and by the very act into which this proviso was sought to be introduced, Missouri would cease to be a territory, and claim equal powers with those who now presumed to dictate to her; that as well might the South seek to impose slavery upon Michigan and the uninhabited forests bordering on the great lakes. As to the inhumanity of extending what was acknowledged to be an evil and a curse, it must be remembered that the narrower the boundaries into which slavery was crowded, the more terrible these evils became, and that it was only by widely diffusing it that a hope could be entertained of ameliorating, and perhaps eradicating them. Of course, the usual hints about dissolution, anarchy, and bloodshed, accompanied these arguments. But the question did not confine itself to Congress. The excitement spread rapidly both North and South. The daily press teemed with the proceedings of public meetings, with private remonstrances, and with legislative resolutions. The future condition of an enormous territory, stretching far into the distant West, was supposed to be at stake. No means were spared to rouse the public feeling to the highest possible pitch; dissolution and civil war, with all their ghastly paraphernalia, were paraded before the people through every possible medium; and when, at last, the session closed, and the question still remained unsettled, there were few hearts firm enough to look with untroubled equanimity upon the rapidly gathering storm.

The debate of the following session was still more violent. The wide-spread popular excitement urged on the Representatives of every section to express, in the angriest terms, the feelings of their constituents. The Senate had repeatedly negatived the restricting proviso, as it was called, and the House as often insisted upon inserting it. At this juncture, Maine applied for admission as a separate and independent State; and as no possible objection could be urged against her, a bill for the purpose passed rapidly through the House, and was sent to the Senate. This happy opportunity for forcing the House into a Compromise was eagerly seized, and an attempt made to saddle the bill with an extraordinary series of amendments providing for the unconditional admission of Missouri. The opponents of slavery in the Senate, though a minority, were, however, a most determined one. But in vain they represented the absurdity of calling this a Compromise, merely because two utterly incongruous measures were strangely crowded into a wholesale bill; and equally in vain, when a separation of the unnatural Union was denied them, did they, for more than a month of anxious debating, struggle to hang their favorite proviso to this already many-tailed monster. The bill, with its amendments, was sent back to the House; but the Representatives had been as busy as their neighbors, and having, by this time, nearly completed a bill of their own on the Missouri claims, the monster of the Senate’s creation was, with little ceremony, stripped of all his tails, and sent back again to that august body in his original simplicity. The crisis was now approaching with a vengeance. In vain the bill was tossed back and forward, from House to House; the fourth of March was rapidly approaching, and owing to her peculiar relations to Massachusetts, the fourth of March was the last day upon which Maine could hope for an independent existence. Rumors of secession grew louder and louder, as the hope of an adjustment grew hourly fainter. The people were wound up to the highest pitch of excitement; all other objects were forgotten in the one absorbing question that agitated every heart; and on the morning of the second of March, an earthquake might almost have rolled away unheeded, as at the battle of Thrasymene. All sides began to be seriously alarmed at the possible consequences of their temerity—the majority yielded, as usual; in a few short hours the great Missouri Compromise was passed, the storm died away, the breakers were cleared, the Union was saved, and the newspapers said that everybody was overjoyed at the happy adjustment. Whether the slaves in Missouri joined in the general jubilee and offered up their thanksgivings for the salvation of the country, does not distinctly appear—possibly, because the slaves of Missouri were not in the habit of expressing their opinions, or offering their worship through the convenient medium of the public press. In substance, the Compromise admitted the new state without the restricting proviso, and prohibited slavery forever in the rest of the purchased territory north of 36° 30´.

For nearly a year, the Union slept in peace, earnestly trying to flatter itself into the conviction, that the “distracting question” was at last put to rest, and obstinately oblivious of an ancient law enacted by Providence long before the foundations of the Union or the earth, either, were laid; and, wherein, it is provided, that of two opposing principles, one must be right, and the other wrong, that no compromise between them, however unanimously voted, can, in the nature of things, be permanent; and that in spite of enthusiastic conventions and full-mouthed Congresses, said compromises will forever tend to change, to decay, and to self-destruction. The operation of this most impracticable law, as modern politicians would term it, suddenly and most disagreeably startled the Union from its comfortable nap. Missouri, after discovering so cheap a path to celebrity, was not disposed to abandon it without further efforts to distinguish her infant name. It was still necessary for her, ere she could take her place in the happy and united family of American States, to frame for herself a Constitution, and present it for the approval of Congress. In this, she made it the duty of her future Legislature to “pass such laws as were necessary to prevent free negroes and mulattoes from coming to and settling in the State, under any pretext whatever.”

The constitutionality of this provision, which has since been adopted by several of the Southern States, has never been judicially determined. The clause with which it is thought to conflict, is that which provides, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” Now, if residence and the right to be protected in acquiring and transmitting property under the laws be sufficient to constitute citizenship, the free negro population of every Northern State would be entitled to some privileges in the State of Missouri; and, assuredly, when a party is entitled to exercise certain rights within a given territory, it can never be legal to deprive him of those rights, by forbidding him to enter it. And even if these qualifications are insufficient to constitute citizenship, (a theory which would exclude a large proportion of the white population in some of the Southern States,) yet in a few of the free States the right of voting is at present added to them; and in these cases, at least, if the clause be not doomed to remain forever a dead letter, it would seem to find its application. On the other hand, it was urged with great force, that if the Legislature of a State esteem a certain class of population dangerous to its existence, it must be entitled by the first principle of self-preservation—the foundation both of national and individual existence—to exclude them from its midst. The clause in the Constitution cannot mean that every citizen of each State is entitled to become such in every other State. This is notoriously untrue. In some States freehold qualifications are required for voters; in others not. In some there are restraints upon the acquisition of property, which in others do not exist. Where, then, is the line to be drawn between constitutional and unconstitutional differences? Each State may determine the qualifications necessary for its voters—why may not one of them be a peculiar color? Each State may exclude from its borders the professors of particular occupations, which may be distasteful to it, or which it may fancy to be dangerous; why not those who have, at any time, exercised such occupations—which would amount to the same thing as the exclusion of an obnoxious race?

During a long and troubled session, this intricate question was argued both by Congress and the people, with a violence unknown before. Mr. Clay, for a long time, struggled in vain to close the rapidly widening breach. In vain, his famous Committee of Thirteen reported a series of compromising resolutions; both sides were too far advanced to retract, and the platform was angrily rejected. No question, however insignificant, could be taken up, into which these bitter feelings were not dragged; the business of the Nation was wholly suspended, while the contending forces hurled harangues of defiance at each others’ heads, which were re-echoed with equal fury from every village in the country. A settlement grew more and more hopeless; and, at last, a formal plan of secession was agreed upon by a minority of the State. The cry of “Danger to the Union” has become so hackneyed of late years, as to be treated with contempt by rational men of all parties; but, if ever it had a serious and alarming meaning, it was at the time we are speaking of. Even President making and President greeting, failed to drown the dismal foreboding, that soon all Presidents might be memories of the past. A storm was raised that no one had power to quell; “the spirits had come from the vasty deep,” and no magician was found who could charm them back again. At length, by slow and cautious advances, Mr. Clay again approached the troubled circle; increased his Committee to twenty-three, representing all the States of the Union, reasoned with them, exhorted them, entreated them; brought all those wondrously conciliatory talents with which he was gifted, to bear personally upon each member he could reach; and after the most laborious and exhausting efforts, succeeded in passing the Compromise, which, at last, quieted the Missouri question. It consisted substantially in referring the subject to the National Judiciary, to whose province it undoubtedly belonged, and to whose solemn decision the North should, from the beginning, have been content to leave it. That it has never been settled by this high authority, and that we are still unable to answer the apparently simple question—“Who are citizens of the United States?”—is certainly a very singular predicament for a great people to be placed in, but one for which the South are in no way to blame.