September 1857

Harper's Magazine archives (subscription required) ^ | September 1857

[Homer_J_Simpson]

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

[Homer_J_Simpson]

Continued from August 20 (reply #18).

Nicole Etcheson, Bleeding Kansas: Contested Liberty in the Civil War Era

John Calhoun Kansapedia page

[BroJoeK]

I get lost in the weeds here — Topeka, Lecompton, Leavenworth, Wynadote?
Buchanan supported Lecompton but Douglas & Buchanan’s pro-slavery Governor Walker opposed it?
Topeka was supposedly anti-slavery, but not really...

Oh, my...

[henkster]

I’m trying to decode it myself, from the legal standpoint of the effect of the Dred Scott decision. I still have Fehrenbach’s book on the nightstand, but it will have to wait for me to finish a dual biography of Jefferson & Hamilton, and maybe the Anti-Federalist papers.

But I think it goes like this:

1. The SCOTUS has found the existence of a fundamental property right to own blacks as slaves, who can never be citizens. That property right has now been cloaked with a Constitutional protection under the 5th Amendment;

2. Because there is a fundamental right to slaves as property, Congress cannot abolish that right through legislation, and therefore cannot ban slavery in any territory under its jurisdiction (which would perpetually include the District of Columbia);

3. Slaves, as property, cannot be taken from their owners by Congress through emancipation without triggering the 5th Amendment’s Takings and Due Process Clauses;

4. It is upon this supposition that the convention is claiming that the Dred Scott decision has ended popular soveriegnty, and that despite the wishes of the people, slaveowners can and always will own slaves;

5. BUT; the people at the convention are forgetting the SCOTUS case of Barron v. Mayor of Baltimore, decided 20 years earlier, which held that the 5th Amendment Takings Clause DOES NOT apply to the states, only to the Federal government;

6. This seems implicit in Taney’s opinion, where he did not declare slavery legal everywhere; instead, it was only a limit on Congress, not upon individual states who still had a right to declare slavery illegal;

7. So based upon that decision, in the territory of Kansas, as well as all Territories, slavery is legal. However, once Kansas or any other Territory becomes a state, there is nothing to prevent the STATE from abolishing slavery within its jurisdiction;

8. As the 5th Amendment Takings Clause does not apply to the states, the slaveowners would have no recourse under Federal Law to seek compensation from the state for the loss of their slaves, it would be a matter of state constitutional law.

And that, right now, is kind of where I’m at.

[colorado tanker]

I think you are correct, henkster. Essentially, Dred Scott abolishes Douglas' concept of popular sovereignty, as applied to territories. That might be a bit too nuanced for folks out on the fringe of the frontier, however.

But, the slavers are also correct, as you point out, that the only way to ensure that slavery will always be legal in Kansas is if it comes into the Union as a slave state.

What the free soilers have going for them at this point is that for the time being slavery is legal in Kansas and the easiest thing for the Washington politicians, including Northern Democrat slave sympathizers, to do is nothing.

[henkster]

I found the text of the Lecompton Constitution:

http://www.kansasmemory.org/item/207409/text

Within the Constitution was Article VII on Slavery:

ARTICLE VII.- SLAVERY.

SECTION 1. The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever.

SEC. 2. The Legislature shall have no power to pass laws for the emancipation of slaves without the consent of the owners, or without paying the owners previous to their emancipation a full equivalent in money for the slaves so emancipated. They shall have no power to prevent immigrants to the State from bringing with them such persons as are deemed slaves by the laws of any one of the United States or Territories, so long as any person of the same age or description shall be continued in slavery by the laws of this State: Provided, That such person or slave be the bona fide property of such immigrants: And provided, also, That laws may be passed to prohibit the introduction into this State of slaves who have committed high crimes in other States or Territories. They shall have power to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. They shall have power to oblige the owners of slaves to treat them with humanity, to provide for them necessary food and clothing, to abstain from all injuries to them extending to life or limb, and, in case of their neglect or refusal to comply with the direction of such laws, to have such slave or slaves sold for the benefit of the owner or owners.

SEC. 3. In the prosecution of slaves for crimes of higher grade than petit larceny, the Legislature shall have no power to deprive them of an impartial trial by a petit jury.

SEC. 4. Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offense had been committed on a free white person, and on the like proof, except in case of insurrection of such slave.

***************
There was also this provision in the Bill of Rights:

23. Free negroes shall not be permitted to live in this State under any circumstances.

***************
And finally, under the Schedule providing the mechanism for ratification, Section 14 which called for calling a convention for amending the Constitution. Such a convention could be called by the legislature any time after 1864. There was, however, one particular reservation under Section 14:

...but no alteration shall be made to affect the rights of property in the ownership of slaves.

[colorado tanker]

Is there such a thing as an unamendable Constitution? Can’t the provision against amendment itself be amended?

[henkster]

When I was clerking at the Indiana Judicial Center we law clerks had a discussion about these things. We called them “Prospective Repealers” and the consensus was that they could not be binding on a future legislature. However, in this case, if you read the first section of Article VII, as slavery being a “fundamental right” before all others, the Kansas Supreme Court could hold that slavery is a “fundamental natural law” that cannot be abridged, including by Constitutional Amendment. The inclusion of Section 14 of the Adopting Schedule was a reaffirmation of that.

These provisions were not unknown in the Constitutions of southern states generally. For my “We The People” team last year, I reviewed a number of those prewar Constitutions, and most of the slave states had similar provisions. When it came down to “state’s rights” as the basis for secession, it appears that in most of these states the only right they really cared about was the “right” to own other human beings as property. And they really didn’t intend to let it go.

These provisions in the Lecompton Constitution show that the slaveowning politicians in Kansas saw their state as being 100% southern in all aspects of its organization and operation.

[EternalVigilance]

To say that a Constitution is unamendable is to make a vain attempt to rob posterity of its God-given, unalienable right to government by consent.

Of course, such a silly requirement would be completely unenforceable anyhow, the attempted perpetrators having passed on, and the intended victims being alive and in control.

[colorado tanker]

"Their main purpose, as indicated by all their acts of hostility to slavery, is its final and total abolition. His party declare it; their acts prove it. He has declared it; I accept his declaration. The battle of the irrepressible conflict has hitherto been fought on his side alone. We demand service in this war. Surely no one will deny that the election of Lincoln is the indorsement of the policy of those who elected him, and an indorsement of his own opinions. The opinions of those who elected him are to be found in their solemn acts under oath - in their State governments, indorsed by their constituents. To them I have already referred. They are also to be found in the votes of his supporters in Congress - also indorsed by the party, by their return. Their opinions are to be found in the speeches of Seward, and Sumner, and Lovejoy, and their associates and confederates in the two Houses of Congress. Since the promotion of Mr. Lincoln's party, all of them speak with one voice, and speak trumpet-tongued their fixed purpose to outlaw four thousand millions of our property in the Territories, and to put it under the ban of the empire in the States where it exists. They declare their purpose to war against slavery until there shall not be a slave in America, and until the African is elevated to a social and political equality with the white man. Lincoln indorses them and their principles, and in his own speeches declares the conflict irrepressible and enduring, until slavery is everywhere abolished."

Robert Toombs speech to the Georgia Legislature, November 13, 1860, advocating secession.

No, there is no doubt what "right" Toombs and Georgia were willing to fight for.

[henkster]

Here’s a link to the various Ordinances of Secession.

http://www.civil-war.net/pages/ordinances_secession.asp

To the extent that the states went on record to state a particular grievance identifying the specific state’s right that was being abrogated, with one exception it was slavery. The one exception was Missouri, which claimed it had been invaded by a hostile federal army. Texas threw in some comment about not securing the southern border, but the chief complaint there was slavery.

To those who say that the Civil War was about “state’s rights” and not specifically about slavery, they should read what the state’s own legislators said about why they were committing acts of rebellion and insurrection.

[colorado tanker]

It was crystal clear to the leadership what they were fighting for. It was to avoid what would be the largest sudden loss of wealth in the history of the Republic. Thinking may have been a bit more confused among the ranks in the army who were not slaveholders.

[BroJoeK]

henkster: "...with one exception it was slavery.
The one exception was Missouri, which claimed it had been invaded by a hostile federal army."

Slave-state Missouri was majority pro-Union and never voted to secede.
Missourians served in the Union army over 3-1 versus Confederates.

In October 1861 a rump-assembly of 39 Missouri House and 10 Senate members declared secession and Neosho their capital.
Accepted as the 12th Confederate state, the rump-government was pushed out of Missouri by end of 1861, Confederate Governor Jackson died in 1862 and Marshall, Texas became the Confederates' capital in exile of Missouri.

Bottom line: like Kentucky, Maryland & Delaware, Missouri was a Border slave-state but majority Unionists, on the order of two or three to one.
No majority ever voted to secede and rump-elements which did were never considered legitimate by their own states' citizens.

[BroJoeK]

henkster: "7. So based upon that decision, in the territory of Kansas, as well as all Territories, slavery is legal.
However, once Kansas or any other Territory becomes a state, there is nothing to prevent the STATE from abolishing slavery within its jurisdiction.."

Seems to me, the core essence of Dred-Scott was that slave-holders could take their "property" anywhere in the US, regardless of state laws opposing slavery.
This implied, for example, that slave-holders with work-gangs of slaves could take them to a northern factory, take over the jobs of free-labor there and free-labor would have no recourse to the courts.

You disagree?

[Homer_J_Simpson]

[Continued from September 4 (reply #24). ]

September 14. News in town not much, except the money panic, which is farther than ever from relief. Wall Street stocks panting and trembling under a pressure that reminds one of the financial tragedies of 1837. Prophets of evil say that if it last a week longer everything must go down in wreck, that this is but the beginning of trouble, and that a general smash is certainly close at hand. Things look very blue, undoubtedly. There have been several most startling apprehensions of old houses in the best credit; for example, G.H. Swords, and Allen of Providence, whose wealthy manufacturing concerns are brought down by the failure of one of the Swans (!) and will make a very bad show of assets, it is said.

The Diary of George Templeton Strong, Edited by Allan Nevins and Milton Halsey Thomas

[Homer_J_Simpson]

Sherman’s August 24 letter placed his bank branch – Lucas, Turner and Company – at 12 Wall Street. I did some searching to find out if he was then a neighbor of George Strong’s firm (Strong, Bidwell and Strong). Unsuccessful. Yesterday I send an email to the current iteration of the Strong firm, now known as Cadwalader, Wickersham & Taft LLP, and asked if anyone there knows their historical Wall Street address. I imagine the information exists but not hopeful anyone will be interested in spending unbillable time getting back to me.

This letter is also to Sherman’s wife, Ellen.

Continued from August 24 (reply #24).

Home Letters of General Sherman, edited by M.A. DeWolfe Howe, 1909

[Homer_J_Simpson]

Continued from September 14 (reply #54).

The Diary of George Templeton Strong, Edited by Allan Nevins and Milton Halsey Thomas

[colorado tanker]

It is for good reasons Cape Hatteras earned the nickname, "graveyard of the Atlantic."

Most of the gold was recovered back around 2000 in one of the most spectacular salvage operations in history. As I recall, there is still fighting over the money.

[abb]

http://www.coinworld.com/news/us-coins/2016/09/judge-awards-ss-central-america-treasure-to-salvors.all.html#

Who gets to keep the SS Central America treasure recovered in 2014?
A federal judge’s Aug. 31 ruling addresses recovery operations by Odyssey Marine Exploration
By Paul Gilkes , Coin World
Published : 09/09/16

[colorado tanker]

Thanks. Looks like Tommy Thompson is still fighting with his original investors over some of the money.

[Homer_J_Simpson]

Continued from August 21 (reply #22).

1

2

3

Abraham Lincoln: Speeches and Writings 1832-1858, edited by Don E. Fehrenbacher