States’ Rights, But To What?
One hundred and fifty years ago today South Carolina declared its independence from the United States. The move had been in the offing since early November, when Abraham Lincoln’s election led the state’s leaders to fear that Washington would begin to restrict slavery in the territories and in their own state. That was the proximate cause, at least; there was more to it. Beyond the election, South Carolina was no longer happy in a union with the free states, where northern opponents of slavery were allowed to openly denounce the “peculiar institution” in Congress and in their home states.
It’s true, then, that South Carolina seceded over states’ rights: though, as neo-confederates are loath to admit, the specific right in question concerned the ownership of human chattel. One of the South’s persistent complaints was the northern states would not vigorously cooperate in the return of fugitive slaves and that the free states allowed antislavery organizations to flourish.
In other words, for South Carolina, slavery and states’ rights were not mutually exclusive; in fact, they were the same thing. Today too few people understand the intricate legal history that connects slavery to states’ rights — and as a result a needless debate continues, 150 years after secession began.
As most people know, until the adoption of the 13th Amendment in 1865, owning slaves was constitutionally protected. But the Constitution also protected the slave-owners’ right to have escaped slaves returned: the Fugitive Slave Clause of Article Four, Section Two of the Constitution declares that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
The clause was awkwardly phrased and deliberately constructed to mislead readers; the delegates to the Constitutional Convention purposely did not use the term “slave” in the Constitution. Its language seemed to imply that the return of fugitive slaves would be entirely a matter of interstate relations. That made sense at the time: slavery was legal in 11 of the 13 states; only Massachusetts and New Hampshire had ended the institution. Pennsylvania, Rhode Island and Connecticut had passed laws to gradually end slavery, but all three had legislation authorizing the return of fugitive slaves.
Despite the ambiguous language of the constitutional clause, in 1793 Congress passed the first fugitive slave law, which regulated the return of runaway slaves and authorized both federal and state judges to enforce it. The standards in this law were weak, and many Northerners feared it would lead to kidnapping.
The federal government got involved at an opportune time, because the slave-owning consensus at the state level was fracturing. By 1804 New York and New Jersey had passed laws to gradually end slavery, while the new northern states, Vermont and Ohio, had banned slavery outright. Moreover, starting in the 1820s, most northern states passed legislation, known as “personal liberty laws,” to protect free blacks from kidnapping. These laws also made it more difficult for Southerners to recover their fugitive slaves because, in addition to the federal requirements regulating the removal of alleged fugitives, they had to fulfill state rules as well.
In 1842 the Supreme Court weighed in with its decision in Prigg v. Pennsylvania. The Court ruled that the personal liberty laws violated a master’s constitutional right to reclaim a runaway slave. The Court went further, holding that a master did not even have to bring a fugitive before a judge, but had a common law right to recapture a runaway as long as it could be done without a breach of the peace. In an attempt to create a uniform national law, the Court also held that northern judges had a constitutional and moral obligation to enforce the 1793 law (though, because they were not paid by the federal government, they could not be required to do so).
Southerners, of course, saw the ruling as a vindication of a constitutional right. But Northerners, incensed by this overwhelming federal protection of slavery, saw it as a license for kidnapping. As a result, with few federal judges in the nation and no national system of law enforcement, Southerners had an unqualified right to seize their fugitive slaves wherever they found them. But they could not necessarily count on any law enforcement from Northerners to help them.
Their fears were soon realized: eight months after the Prigg decision a Virginia master was forced to leave a slave, George Latimer, in Boston in exchange for a sum that was far less than Latimer was worth, because local law enforcement officials would not keep in him in jail long enough for a court to order his return to Virginia. Less than a year later Massachusetts passed the “Latimer Law,” which prohibited the use of state jails or the participation of state judges in the return of fugitive slaves. Most of the other northern states soon passed similar laws.
This led to Southern demands for federal guarantees that they could recover their runaway slaves, culminating in the infamous Fugitive Slave Law of 1850. The law allowed for the appointment of a federal commissioner in every county of the nation, with the power to hear fugitive slave cases and order the return of an alleged fugitive. It was the country’s first federal law enforcement bureaucracy and the first instance of a federal law enforcement presence at the local level.
The law was dramatically unfair: it denied alleged fugitives a jury trial, access to the writ of habeas corpus and, most astoundingly of all, the right to testify at the hearing. Anyone interfering in the return of a fugitive slave could face six months in jail and a $1,000 fine, an enormous sum in the 1850s.
The worst part of the law was the procedure for paying commissioners. They received $5 if they determined that the alleged slave was in fact a free person, but they got $10 if they decided the person was a slave. Congress had reasoned that if a commissioner found for the slaveowner he would have to fill out a great deal of paperwork, and thus need greater compensation. But for the vast majority of Northerners, this seemed like a crude attempt to buy justice.
The Fugitive Slave Law was never as effective as Southerners wanted, but over the next decade about 350 slaves were returned under it. Only a dozen or so were rescued by mobs across the North; while most Northerners opposed the law, few were willing to openly defy it. But where they did — in Boston, Syracuse, Oberlin, Milwaukee and elsewhere — the rescues made headlines as they undermined the credibility of the national government and sent a powerful message to the South.
In short, during the decades leading up to the 1860 election Northerners and Southerners battled over whether, and how, the states or the federal government would control the future of slavery. In this period the Southerners almost always won. But, for South Carolinians, Lincoln’s election appeared to be a takeover of the federal government by opponents not just of slavery, but of the fugitive slave laws that they believed maintained the delicate balance between pro- and anti-slavery sentiments.
Even though Lincoln was on record insisting he would enforce all federal laws in both regions, they had something of a point. In its “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” the state declared that the
ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution: they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.
The South Carolinians put their argument in constitutional terms, arguing secession was both justified, and necessary, because “a geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.”
In other words, the Palmetto State asserted that slavery was threatened because the North no longer followed the Constitution, which protected states’ rights to maintain the institution of slavery and protected the rights of individual southerners to retrieve fugitive slaves. The South Carolinians wrote:
But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. … [They] have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. …. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.
Not all Southerners supported secession; those who opposed it argued that slavery was safer in the Union because they believed the national government could never free the slaves. As Charles Cotesworth Pinckney, the adamantly proslavery leader of the South Carolina delegation to the Constitutional Convention, bragged to his state’s legislature: “We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.”
But these arguments fell on deaf ears. South Carolinians no longer trusted the national government, the free states or the Constitution. In that sense, secession was most definitely about states’ rights. But it is vital to remember just which rights South Carolina was committed to defending.
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Sources: 50 States.com, C-Span, NY Times, Red State.com, Russia Today, Youtube, Google Maps
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