A 1839 lithograph presenting a satire on enforcement of the “gag rule” in the US House of Representatives.
The Resolution passed (114–108), and Rule 21 was adopted. In December 1840, Adams tried to rescind Rule 21, but he was defeated (82–58). Joshua Reed Giddings assisted Adams in his opposition to the gag rule.
President Van Buren, a Democrat, supported the gag rule when he was a candidate running for reelection, but that didn’t help him win the election in late 1840 against the Whig, Harrison. The 27th Congress (March 1841 to March 1843) was the first with a Whig majority in the House. Since the Whigs were generally less inclined to support the gag rule, Adams anticipated success in overturning the rule. But by mid-June 1841, the Whigs were tired of the politicking and controversy surrounding the gag rule, and were eager to begin work on their policy agenda. Nevertheless, Rule 21 remained, but by a very narrow vote of 119–103.
The Supreme Court
The first Supreme Court in 1789 was composed of six justices, and the Judiciary Act of 1807 increased the number to seven, corresponding to the seven judicial circuits. But by 1837, nine new states had been admitted to the Union. As a practical matter, this meant that almost one-fourth of the nation did not enjoy easy access to a circuit court, which was the chief trial court of the federal judiciary. Over the years, there had been efforts to expand the number of circuits and justices, but Congress was reluctant to give a president the opportunity to fill new seats on the court. However, on President Jackson’s last full day in office, Congress passed the Judiciary Act of 1837.[74] The act reorganized the Seventh Circuit, and formed the Eighth Circuit (Ohio, Kentucky, Tennessee, and Missouri) and the Ninth Circuit (Alabama, Arkansas, Louisiana, and Mississippi). As a result, two new justices were added to reflect the two new circuits. This brought the court’s membership to nine justices. The new justices were John Catron of Tennessee, nominated by President Jackson on his last day, and John McKinley of Alabama, nominated by President Van Buren in September 1837.
President Jackson nominated the new chief justice, Roger B. Taney, in December 1835. Clay, Webster, and Calhoun opposed his nomination, but Taney was confirmed on March 15, 1836. Before then, Taney had served as Jackson’s attorney general (1831–1833) and secretary of the treasury (1833–1834). As he presided over the court for the first time in January 1837, “Taney wore plain democratic trousers, not knee breeches, under his robe.”[75] With Taney and the expansion of the circuits and the membership of the court, the Supreme Court entered a new era.
At the beginning of 1841, six of the nine justices sitting on the bench of the Supreme Court were appointed by President Andrew Jackson (Baldwin, Barbour, Catron, McLean, Taney, and Wayne), and one each by presidents Van Buren (McKinley), Madison (Story), and Monroe (Thompson). Justice Story had served the longest, since 1812, and Justice McKinley was the newest, serving only three years. On February 25, 1841, Justice Philip Barbour died; a week later, President Van Buren nominated Peter V. Daniel, and the Senate confirmed him on January 10, 1842. Both Barbour and Daniel were Virginians. Five of the nine judicial circuits were composed of slave states.
At that time, the justices only met in Washington for short periods, between January and March, while for the rest of the year, the justices served in their respective circuits for at least two sessions a year. In early 1841, the Supreme Court decided two important slavery-related cases.[76] Both cases were argued in February and decided in March. One was the dramatic and emotional maritime slavery controversy, the Amistad; the other was a relatively obscure case involving the interstate slave trade and Mississippi.
The Amistad case was not the first case involving the international slave trade that was brought before the court. The first case was the Antelope,[77] which, in 1825, presented the question of the legitimacy of the international slave trade. A privateer had captured the slave ship, the Antelope, and it was in turn seized by an American revenue cutter, USS Dallas, and brought to Savannah for trial in June 1820. President Monroe instructed Secretary of State John Quincy Adams to advise the US district attorney that an African brought into US jurisdiction “must be free.”[78] A jury acquitted the captain of the Antelope, John Smith, but then he entered the parallel civil proceedings in admiralty, seeking the return of the ship and cargo, competing with the captain of the Dallas and the Portuguese and Spanish original owners of the ship. The Sixth Circuit Court held that the US prohibition against the slave trade was not applicable to foreign vessels, and noted that the slave trade was not prohibited by the law of nations—thus, the ship and its cargo had to be returned to its original owners.
An appeal from the circuit court was docketed at the Supreme Court in 1822, but it was held over for argument until 1825. The question that reached the Supreme Court was what to do with hundreds of Africans found on board and claimed by both Portuguese and Spanish slavers. Attorney General William Wirt[79] and Francis Scott Key argued the US position in February 1825 that the case presented a conflict between a “claim to freedom” and a “claim to property.” Wirt asserted that the slave trade violated international law, and therefore the Africans were free, and could not be considered merchandise. The arguments attracted overflow crowds.[80]
Chief Justice John Marshall wrote the Opinion for the Court. Marshall acknowledged that the slave trade was contrary to nature, but—however noxious—it “could not be pronounced repugnant to the law of nations.”[81] Therefore, some thirty Spanish slaves were returned to their claimant/owners, but some 120 apparent Portuguese slaves were repatriated, since there was no evidence that they actually belonged to anyone. Marshall’s decision clarified that American courts were not available for condemning foreign vessels engaged in the slave trade.[82]
In 1837, the Supreme Court decided a somewhat bizarre case involving the international slave trade prohibition. Slave owners from New Orleans visited France and took their slaves with them. When the slaves returned to New Orleans, zealous federal authorities tried to seize the ships that carried them from France, charging that seizure was proper, since the federal law prohibiting the importation of slaves into the United States was violated. Chief Justice Taney presided over the court for the first time and wrote the Opinion for the Court. In a voice that suggests frustration, Taney said that the law was “obviously pointed against the introduction of negroes or mulattoes who were inhabitants of foreign countries, and cannot properly be applied to persons of colour who are domiciled in the United States, and who are brought back to their place of residence, after a temporary absence.”[83] No law was violated by the return of the slaves. (This idea—that a slave does not lose his slave status by virtue of a “temporary sojourn” in a location where there is no slave law—was presented again exactly twenty years later by Chief Justice Taney in the famous Dred Scott case.)
United States v. Amistad[84]
Even though Spanish law prohibited the slave trade from Africa to Spanish-ruled Cuba, the Spanish government officials looked the other way, because the great sugar plantations needed slave labor. Two planters bought Africans at a slave market in Havana and chartered space for fifty-three Africans on a Spanish schooner, the Amistad, which was sailing from Havana to the plantations along the north coast of Cuba in the Province of Puerto Principe. During the voyage in July 1839, a group of ethnic Mende from present-day Sierra Leone in west Africa revolted, killed the captain and the ship’s cook, and self-emancipated themselves.[85] They coerced the Spanish to sail eastward to Africa, but the captive crew deceived the slaves and directed the schooner in a northerly direction along the American east coast. In late August, the Amistad was seized, along with its “cargo” of forty-two surviving African Mende, off the coast of Long Island by commander Lieutenant Thomas Gedney on the revenue cutter the Washington. The Amistad was towed to New London, Connecticut, and there, Lieutenant Gedney submitted a written statement (technically, a libel) claiming the rights to the salvage of the schooner and its cargo. Under traditional marine law, compensation is permi
tted to persons who save a ship and its cargo from impending loss. The fact that Lieutenant Gedney was acting in his official capacity was irrelevant at that time to his claim for salvage rights.[86]
There ensued an extremely complex set of judicial proceedings.
On August 29, 1839, Judge Judson of the US District Court for Connecticut convened a special session to set a date to hear the claim for a salvage award. In addition, the US attorney announced that he would bring criminal charges against the leaders of the revolt; they were indicted for murder and piracy. A committee of abolitionists, led by Lewis Tappan, raised funds and assembled a team of lawyers to defend the Africans. Roger Sherman Baldwin[87] of New Haven (grandson of the Revolutionary War figure, Roger Sherman), and Seth Staples and Theodore Sedgewick, both New York lawyers, came to their defense, technically serving as “proctors.” The Van Buren administration stationed a navy schooner in New London’s harbor to await the verdict, ready to sail the Africans back to Cuba.[88] The US Circuit Court for the District of Connecticut convened on September 17 and impaneled a grand jury, but the presiding judge (Supreme Court Justice Thompson, sitting as a circuit judge) ruled that the court had no jurisdiction over an alleged crime that took place on the high seas in a non-US vessel. On the other hand, Thompson decided that he could not release the Africans, since they were also the subjects of property claims in the admiralty case before the district court.
On January 7, 1840, Judge Judson opened the maritime trial in the district court. After a five-day trial, the judge announced that the Africans were not slaves, and so he could not order their return to Cuba. Judge Judson also awarded Lieutenant Gedney and his crew one-third of the value of the vessel and its nonslave cargo, as a salvage award. On April 29, the US Circuit Court heard the appeal of Judge Judson’s decision. Justice Thompson quickly upheld the Judson decision, and the case moved quickly to the US Supreme Court on appeal by the US attorney.
From the beginning, the British government brought diplomatic pressure on the Van Buren administration to release the Africans. The British minister in Washington, Henry S. Fox, leaned hard on Secretary of State Forsyth, arguing that the United States had treaty obligations under international law to suppress the slave trade. Forsyth responded by explaining—yet again—that, under the US Constitution, the courts must decide these matters of the applicability of laws without interference by the Executive.
The Spanish government was furious and insisted that the United States had no right to try a case involving harm to Spanish subjects arising from events on a Spanish ship in international waters. The Spanish demanded the immediate return to Cuba of the African slaves. Making a nice point, the Spanish pointed out that domestic slavery was permitted in the United States and in Cuba, and the courts in Cuba were the proper venue to determine the status of these slaves, just as a court in Charleston might similarly determine the status of a slave in South Carolina.
President Van Buren agreed with the Spanish. That decision was motivated, at least in part, by the fact that his reelection campaign was only a year away, and he wanted to demonstrate his administration’s abhorrence of slave uprisings in order to be acceptable to the South.[89] But he hoped the Court would take the issue out of his hands.
The abolitionists’ funding for the defense lawyers ran out, and only two lawyers remained on the case pro bono, including Roger Sherman Baldwin. They asked John Quincy Adams to join them in the appeal to the Supreme Court, and Adams agreed.[90] When he agreed, Adams was not expecting to make a personal court appearance; he had never had much confidence in himself as a lawyer.[91] Adams traveled to Connecticut to meet with the Mende Africans, who remained in federal custody. Adams also requested all the relevant papers from the State Department, and concluded that Secretary of State Forsyth (a Georgia slave owner) was prejudiced against the captives in his correspondence with the Spanish. Adams was interested in the precedential value of the Antelope case, which had been argued by Francis Scott Key, and so Adams consulted Key about the case.[92]
On Washington’s birthday, February 22, 1841—at the same time that president-elect Harrison and vice president-elect Tyler were twisting the lion’s tail in Richmond—the arguments began in the Supreme Court. US Attorney General Henry Gilpin, a Quaker who was born in England, presented the case for the administration. He argued that the United States had treaty obligations to return slave property to the Spanish planters in Cuba. Baldwin began the rebuttal arguments. On February 24, John Quincy Adams made his fifth, and last, appearance before the court. (The last time Adams had appeared before the court to argue a case was in 1809,[93] when Jefferson was leaving the White House.) For more than eight hours, the seventy-three-year-old Adams passionately defended the Africans’ freedom on legal and moral grounds. Adams condemned the Van Buren administration for its efforts to send the Mende Africans back to Cuba. Adams also attacked the Spanish claim that the Africans were robbers and pirates:
According to the construction of the Spanish minister, the merchandise were the robbers and the robbers were the merchandise. The merchandise was rescued out of its own hands, and the robbers were rescued out of the hands of the robbers.[94]
The fact that the former president—and current House abolitionist—played such a prominent and public role certainly infuriated Southern slaveholders.
Supreme Court Justice Philip P. Barbour died in his sleep on February 25, and so the court took a recess in his honor. During the break, Adams sought help from Above. In his diary, he prayed: “I implore the mercy of Almighty God so to control my temper, to enlighten my soul, and to give me utterance, that I may prove myself in every respect equal to the task.”[95] The oral arguments resumed on March 1. Adams concluded his argument and bade farewell to the court. Justice Joseph Story wrote to his wife that the old, former president’s argument was “extraordinary . . . for its power, for its bitter sarcasm, and its dealings with topics beyond the record and points of discussion.”[96]
Joseph Story, US Supreme Court justice (1811-1845), friend of Daniel Webster and drafter of the Court’s Opinion in the Amistad case. Daguerreotype of Story by Mathew B. Brady, 1844–1845.
Five days after the inaugural of President Harrison, on March 9, 1841, Justice Joseph Story, the court’s senior member by ten years, delivered the Opinion of the Court. Six justices joined Story, including Justice Thompson, who had heard the circuit court case in Connecticut. Story said that the Africans had never been slaves, and ordered them freed. Justice Henry Baldwin dissented but wrote no opinion. In seizing the Amistad, wrote Story, the Africans had exercised the “ultimate right of all human beings in extreme cases to resist oppression and to apply force against ruinous injustice.” Story made no rhetorical excess comments about slavery—perhaps to draw his Southern colleagues to his side—and construed the legal issues narrowly to accommodate both moderate antislavery and proslavery interests.[97]
Adams asked his friend from Massachusetts, the new secretary of state, Daniel Webster, to talk with the navy secretary, Upshur, to arrange transport of the Africans on a US ship. But Secretary Upshur was uninterested. By early November 1841, abolitionists had raised enough money to provision a ship (the Gentleman), and on November 27—just two weeks after the Creole entered the harbor at Nassau—the thirty-five surviving Africans, along with one of their interpreters and five white missionaries and teachers, sailed from New York for Sierra Leone on the west coast of Africa.[98]
Although the subjects of the case were not American slaves, and therefore it was not immediately or directly relevant to American slaveholders and American abolitionists, the Amistad affair widened Northern antislavery sympathies and aggravated North-South enmities. It also reinforced Adams’s determination to continue his crusade against slavery. And, of course, it also made Adams even more of a congressional lightning rod on the slavery question. America’s relations with Spain were severely strained, since the ship and its cargo were Spanish, and Spain demanded reparations.[99]
The ot
her major slavery case of 1841 was argued in the Supreme Court over six days in mid-February, and decided five to two on March 10, 1841: Groves v. Slaughter, 40 US 449 (1841). It touched on the explosive issue of the interstate slave trade and the conflict between the power of the federal government over interstate trade, on the one hand, and the power of the states over their internal police authority.
In 1832, Mississippi adopted a constitution that provided that, after May 1833, the introduction of slaves into the state—as merchandise or for sale—was prohibited, although importation of slaves by new settlers in Mississippi was permitted. The goal of this provision was not remotely antislavery. Rather, the goal was to protect the state’s domestic slave regime: the price of local slaves was being depressed by commercial imports; commercial slave traders who had brought slaves into the state often misrepresented their health or character.[100] Despite this Mississippi state constitutional prohibition, a commercial slave trader, Robert Slaughter, sold some slaves in Natchez, Mississippi, in 1835–1836. The buyer gave Slaughter some promissory notes in partial payment for the slaves. The purchaser, Moses Groves, later refused to pay on the notes when they came due; Groves argued that the State’s constitution made the entire transaction void. On the other hand, the seller, Robert Slaughter, claimed that the Mississippi constitution’s provision was void, because it conflicted with the federal power over interstate commerce.
The case made its way to the US Supreme Court. The opening arguments were made on February 12, 1841, and continued for a full week. The court’s decision, written by Justice Smith Thompson of New York, who had been appointed by President Monroe, skirted the potential federal/state conflict issue, by finding that the Mississippi constitutional provision was not self-executing: “[T]his article [of the Mississippi Constitution] does not per se operate as a prohibition to the introduction of slaves as merchandise, but required legislative action to bring it into complete operation.”[101] Four justices—Joseph Story, Smith Thompson, James M. Wayne, and John McKinley—concurred with the court’s narrow Opinion that the US Constitution did not interfere with the regulation of slaves by the Mississippi Constitution. Justice Catron was sick and did not sit on this case, and Justice Barbour died before the case was decided.
The Creole Affair Page 6