Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
I don't believe that is assumed. I contend that it is less about owning slaves in the territories than it is about the RIGHT to own slaves in the territories.
Then would you agree that the right to occupy the territories- slaves or no slaves - was no more and no less available to Southerners than it was to Northerners?
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The real problems arise once a state is formed in the territories. That state is starting out as less than an equal peer to the pre-existing states to her East. Her rights as a state have already been limited. Therefore, once an area in the territories have become a state she should no longer be bound by territorial laws.
Do you have a specific example in mind of an admitted state later being denied a change of free/slave status?
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It's more a matter of individual rights and eventually the right's of the new state. Those individuals happened to be citizens of slave states. I don't deny that something should have been done in an attempt to check the growth of slavery, but not by compromising the rights of the states and the people that the country was built on.
I agree that a "right to own slaves" was an individual right, and therefore reject that it can be a state's right. When those who were selling secession in the gulf states spoke of it, they complained not of a state's rights violation for California or Kansas, they lamented about a state's right violation against themselves for not being able to move westward with their peculiar institution intact. I contend that once an individual, southern of otherwise, moves to a federal territory, whatever he might be restricted from doing there cannot be considered a violation against the sovereignty of the state back East from where he came. In other words, his having been an Alabaman does not make federal restrictions in the Kansas territory an assault on the state of Alabama simply by virtue of where he came from.
Cash, with all due respect, the three statements you provided do not even begin to cover all aspects of the causes for secession. These gentlemen had no authority to make conclusions for the states.
I fail to see how you can claim the Mississippi Declaration of Causes has no authority to make conclusions for Mississippi.
If you check the transcripts of the South Carolina Secession Convention, you'll see that Lawrence Keitt's statement was generally shared by the delegates and that his arguments were agreed to. Henry Benning was a delegate to the Georgia Secession Convention and he faithfully reported to the Virginia Secession Convention the reason for Georgia's secession.
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Originally Posted by Wild_Rose
The Declaration of Causes documents speak for the states. Slavery was, indeed, a large part of the causes, but why? Because of interference in state sovereignty and rights.
Actually, this is false. Nobody was interfering with state sovereignty and rights. In fact, the slaveholders wanted the opposite. They demanded the Federal government interfere with the state sovereignty and rights of free states. They demanded the Federal government force these states to repeal their personal liberty laws designed to help keep their black residents from being kidnapped off the streets.
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Originally Posted by Wild_Rose
Slavery may have been the catalyst, but the real, underlying cause involved the very foundation of state's rights.
Wrong again. State rights had nothing to do with it. The slave states were more than willing to trample all over state rights if it meant protecting slavery.
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Originally Posted by Wild_Rose
It was not, and could never be, acceptable to the Southern states to allow the Northern states to dictate state issues regarding slavery or any issue, anymore than it would have been acceptable to the industrial states for the Southern states to attack their slave-wage labor force or the poor working conditions in the factories.
Regards,
Rose
And you're laboring under the misconception that "Northern states" were dictating any state issues regarding slavery or any other issue. That's a completely false and ahistorical argument. And you're also claiming that the conditions in a small minority of factories were prevalent throughout all factories. Such was not the case.
One of the key holdings of the Dred Scott case was that Congress did NOT have the power, under the Constitution, to bar slavery in the territories.
Its been awhile since I read the Dred Scott decision, but I was under the impression that Taney's opinion was that types of property could not be discriminated against, i.e. slave property was as protected as any other type of personal property without distinction. Is that incorrect?
Governor Moore mentions not only slavery, but peace, interests, security, and honor. I don't consider that as a statement declaring slavery as the cause of secession.
Regards,
Rose
Only if one reads those words in isolation and out of context. If you put them back into context you'll see that he is claiming the destruction of slavery endangers peace, interests, security and honor of slave-holding states. This statement very clearly identifies protection of slavery as the cause of secession.
Based upon your last post, I now understand better your position concerning Congress's right to "legislate" concerning slavery in the territories. Let me explain briefly why the argument doesn't fly.
Before and during the period in which the Constitution was formed, it was generally understood that the existence or not of slavery was generally a matter of local law. In general, localities could decide whether or not they would permit slavery. Within this framework, fairly well-defined rules were developed. For example, if a slaveowner travelled with a slave to a non-slave area, his slave was not generally deemed free the moment he set foot on nonslave soil. State courts developed rules that generally distinguished between temporary sojourns -- for example, a visit for business or personal reasons in which the slaveowner did not intend to establish residence or remain indefinitely -- and permanent removal or change of residence. If the visit was a mere "sojourn", it was generally recognized that the slave remained a slave. If, however, there was a permanent change of the slaveowner's residence, he and his slave became subject to the substantive law of the nonslave state and the slave would be free.
Ironically, even as late as the early 1850's, slaveholding states followed these rules. Assume, for example, that a slaveowner residing in Missouri travelled with his slave to New York and remained there long enough to be deemed to have changed his residence to New York. The slaveowner and slave then returned to Missouri. The slave then sued in a Missouri state court to be declared free (in practice, the procedure was more complex, but I'm simplifying). As late as the early 1850's, the Missouri Supreme Court would generally have applied New York law as a matter of comity and would therefore have freed the slave if the court concluded that the slaveowner had, indeed, changed his residence to New York before returning to Missouri.
No one considered this result discriminatory or that it deprived the slaveowner of his "property" without due process. It was the outcome of a generally-recognized and understood set of common law rules. To put it somewhat differently, the common law and people generally -- including slaveowners -- understood that slaves were not "property" identical to a plough or a horse. There might be property aspects to slavery, but slavery was sufficiently different that separate legal rules grew up to govern it.
(I chose Missouri in the above hypothetical because that is where Dred Scott brought his case(s). One of many ironies of the Dred Scott case is that, if his case had not been so delayed, the Missouri Supreme Court almost certainly would have declared him free using the common law rules outlined above, and the case would never have reached the Supreme Court.)
Nothing in the Constitution changed this analysis or was intended to change this analysis. The Territories Clause granted to Congress the same plenary jurisdiction over territories that the States had over the persons and areas subject to their juridiction. Furthermore, it is evident from their actions with respect to the Northwest Territories and in the Missouri Compromise that both the Framers and their generation, and the succeeding generation, uniformly understood and assumed that the Constitution permitted the Federal government to permit or ban slavery in the territories, just as States were free to permit or ban slavery within their borders. No one seriously contended otherwise until decades later, when the south began developing a theory to "constitutionalize" a right to slavery in the territories.
You have explained that you believe in strict construction of the Constitution. "Strict construction" is something of a misnomer, but as it happens, I too believe that the original understanding of the text is the first and most important thing one must consider. Generally speaking, I agree a lot more often with Justices Scalia and Thomas than with their colleagues. But, ironically, your argument that the Constitution prohibited Congress from barring slavery in the territories is an extremely "loose" construction of the document -- the opposite of "original understanding" jurisprudence.
If "original understanding" is to be your guidepost, you must be consistent, even when original understanding leads to a conclusion that is distasteful. Here, however, there is good news: conservative legal analysis leads to the morally desirable result.
Its been awhile since I read the Dred Scott decision, but I was under the impression that Taney's opinion was that types of property could not be discriminated against, i.e. slave property was as protected as any other type of personal property without distinction. Is that incorrect?
Cedarstripper
Cedarstripper,
Taney's opinion is an incoherent muddle, which is one of the reasons it's so hard to figure out what his reasoning was. Among other things, he spent a good deal of the opinion trying to argue that Congress lacked the power under the Territories Clause to regulate slavery in the territories (and by extension that territorial legislatures lacked such power). That argument sort of fizzled out (because it made no sense). Then, out of nowhere, he briefly suggested that the Due Process Clause of the Fifth Amendment barred Congress from barring slavery (the point you're referring to).
The Due Process argument fails for reasons I've suggested above. The Founders' generation (and the next) recognized that slaves were not "property" like a plow or a horse. It is worthy of note that the Constitution nowhere states or even suggests that slaves are "property" at all. Common law rules, which formed the backdrop for everyone's understanding of slavery at the time, recognized that there were property aspects to slavery. For example, a slaveowner could sue for breach of contract for failure to make good on a contract to sell a slave. But at the same time, the law recognized that slaves were somehow different, and that in particular the right or not to possess slaves could depend on where you were located.
If the visit was a mere "sojourn", it was generally recognized that the slave remained a slave. If, however, there was a permanent change of the slaveowner's residence, he and his slave became subject to the substantive law of the nonslave state and the slave would be free.
What would have been the mechanism used to grant emancipation? Would the slave have to sue in the free state court for his freedom or would the free state take a preemptive role in manumitting him? Also, had Dred Scott been freed by Illinois statute while residing in Illinois, would he have been then regarded as a runaway slave from the perspective of Missouri?
If I may use my hypothetical again, assume a slaveowner and slave travel from their residence in Missouri to New York, and the slaveowner arguably takes up residence in New York. The slave is not automatically free. He would have to commence a suit in New York. (If I recall correctly, the suit would not be to declared free. He would sue for kidnapping or battery. If he won the suit, it would be because he was free and therefore the slaveowner had wrongfully restrained him.)
If he won in a New York court, the New York court would have necessarily found that it had jurisdiction. I believe that, back then, the defendant (the slaveowner) had to be personally served within the state, so jurisdiction would not be in doubt. Assuming jurisdiction in New York, the slaveowner would have no basis for relitigating the issue in Missouri (or anywhere else) because Missouri would be bound, under the Full Faith and Credit Clause, to respect the New York judgment.
I suppose that a slaveowner could later fraudulently seek to recover the slave as a fugitive under the procedures of the Fugitive Slave act. I'm not aware that this ever happened. Even though the slave could not testify under the Fugitive Slave Act, I assume that he could introduce a certified copy of the New York judgment to conclusively prove that he was free and not a fugitive slave.
(If I recall correctly, the suit would not be to declared free. He would sue for kidnapping or battery. If he won the suit, it would be because he was free and therefore the slaveowner had wrongfully restrained him.)
Thanks for the reply. If I recall, Scott had sued Emerson for battery against himself and his wife.
Cedarstripper
Last edited by cedarstripper; 01-12-2006 at 12:17 AM.
In your post #1137, you appear to contradict yourself. In one place you concede that Congress had the right to "legislate slavery in the Territories":
Assuming, as I do, that by "legislate" you mean "forbid", you are correct. Congress had plenary jurisdiction over the territories, just as it had (and has) plenary jurisdiction over the District of Columbia, and was free to permit or forbid slavery in the territories, as the Founders recognized, witness the Northwest Territories ordinance.
But later you go on to say:
One of the key holdings of the Dred Scott case was that Congress did NOT have the power, under the Constitution, to bar slavery in the territories. This contradicts your earlier assertion. More importantly, it was dead wrong. Even under -- or rather particularly under -- a "strict construction" of the Constitution, it is plain that Congress had the power to bar slavery in the territories. Professor Fehrenbacher's book, to which I referred in my earlier post, demonstrates precisely that. Taney reached his decision on this question only by wilfully distorting both the text and the historical original understanding of the Constitutional provisions involved.
In short, Taney was was both legally wrong and morally wrong.
It seems that you left out the part where you believe I contradicted my earlier statement so I don't know what contradiction you refer to.
I'd have to brush up on the Dred Scott case, but I know there were other points that lead to Taney's ruling beside the legality of slavery in the territories. According to the law regarding slaves, Dred Scott didn't even have the right to file suit. IMO, Judge Taney should have refused to hear the case, but he did. He explained that under the fifth amendment the U.S. did not have the right to free the property of his master (or in this case the master's estate) just because the master had brought the slave into the territories.
It seems that Congress did have a right to govern the territories. I confess I need to study this more in depth, Judge Taney certainly didn't share my opinion. But as I mentioned in an earlier post, IMO, they had no right to limit state's rights beyond the limits set forth in the Constitution, all states being equal.
Regards,
Rose
__________________ "Forgive your enemies, but never forget their names".--J.F.K.
The War Between the States established... This principle that the Federal Government is, through its courts, this final judge of its own powers.
-- Woodrow Wilson
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