The Creole Affair

by Arthur T. Downey

  Therefore, Groves had to pay on the notes, and the court avoided getting into the question of whether a state could ban the introduction of slaves into that state for any reason. But not quite.

  Justice John McLean of Ohio, appointed by President Jackson in 1829, was not a sympathizer with slavery, and he wrote a concurring Opinion. He wanted to present his belief that a state could indeed ban the interstate slave trade without violating the federal commerce clause, even though he acknowledged that Congress has the exclusive power to regulate foreign and interstate commerce. McLean explained that the US Constitution treats slaves as persons, while by the laws of certain states, “slaves are treated as property.”[102] Thus, the Constitution would not permit his home state of Ohio to prohibit the introduction of Southern cotton or Northern manufactures, but the Constitution will permit a state to prohibit slavery or to regulate it. In sum, McLean asserted “Each State has a right to protect itself against the avarice and intrusion of the slave dealer, to guard its citizens against the inconveniences and dangers of a slave population.”[103]

  Chief Justice Roger B. Taney of Maryland had been appointed to the court by President Jackson only five years earlier, when he was Jackson’s attorney general. Taney had not planned to write a separate concurring Opinion, but he felt moved to do so because of Justice McLean’s comments. Taney made absolutely clear that the issue of the “power of Congress to regulate the traffic in slaves between the different States” simply was not before the court, and so McLean’s comments on that topic were dicta (i.e., expressions in a court’s Opinion that go beyond the facts before the court and so are the individual views of the author of the Opinion, and not binding in subsequent cases).[104] To counter the McLean view, Taney flatly stated his opinion that “the power over this subject [to regulate the traffic in slaves between the different states] is exclusively [emphasis added] with the several States . . . and the action of the several States upon this subject cannot be controlled by Congress.”[105]

  Taney went on to explain that he was not arguing the point, but rather he stated his opinion “on account of the interest which a large portion of the Union naturally feel on this matter” and his concern that his silence might be “misconstrued.” In short, Taney was signaling to the southern slaveholding states that the chief justice felt strongly that Congress did not have the power to prohibit the interstate traffic in slaves. One could almost hear a sigh of relief from the slave owners and traders in Taney’s Maryland or in Virginia, when they learned Taney’s view that Congress had no power to block their export of surplus Chesapeake Bay–area slaves to the slave markets in New Orleans.

  Another member of the court could not restrain himself from speaking out. President Jackson appointed Justice Henry Baldwin, a Pennsylvania lawyer and Yale Law School graduate, in January 1830. (He was the only dissenter in the Amistad case.) He too was “not willing to remain silent, lest it may be inferred that [his] opinion coincides with that of the judges who have now expressed theirs.”[106] In direct contrast to McLean, Baldwin noted that though he “may stand alone among the members of this Court,” he felt bound to make it clear that, in his opinion, slaves are property by the law of the states before the Constitution was adopted, and, therefore, this “right of property exists independently of the Constitution.” Slaves were articles of commerce among the several states, “as property capable of being transferred from hand to hand as chattels.” In short, whether slaves or bales of goods, transit of property is lawful commerce among the several states, and the Constitution protects that transit. Thus, Baldwin’s comments must have warmed the hearts of Southern slaveholders concerned about protecting their right to sell slaves in the interstate trade.

  Those slaveholders could take some comfort in knowing that at least two members of the court—Taney and Baldwin—believed that Congress could not prohibit the interstate trade in slaves. Moreover, the court had a five-to-four majority of justices from slaveholding states.

  The issue of runaway slaves was of enormous importance to Southern slaveholders. A case—Prigg v. Pennsylvania—involving the obligation of Pennsylvania to permit the return of slaves to Maryland was at the doorstep of the Supreme Court in 1841.[107]

  During the Constitutional Convention of 1787, South Carolina’s Pierce Butler successfully proposed a provision to Article IV to require fugitive slaves to be returned.[108] The 1793 Fugitive Slave Act implemented this constitutional provision. The act allowed slave owners (or their agents) to capture fugitive slaves in the North, to bring them to any federal or state magistrate in that Northern state to obtain a “certificate of removal,” and then to take the runaway back to the slave state. Northern states over the years enacted laws to protect their free black populations from kidnapping or mistaken seizure. For example, in 1840, New York State adopted a law to empower the governor to appoint and compensate agents to establish proof and take legal proceedings to restore a kidnapped free citizen held in slavery.[109] The constitutionality of such state laws, and the 1793 Federal Fugitive Slave law itself, had never been tested. But as the Creole entered the harbor in Nassau, a heartrending case was set for argument at the Supreme Court. The Southern slaveholders—especially those in the Upper South with borders adjacent to the free states—and the Northern abolitionists were awaiting the oral arguments, and the court’s decision in early 1842.

  The case began in 1837 when a “professional” slave catcher from Maryland, Edward Prigg, seized Margaret Morgan, a runaway slave living in Pennsylvania.[110] Prigg applied to a local justice of the peace for a certificate of removal under the 1793 Fugitive Slave Act and the Pennsylvania personal liberty law (protecting free blacks) of 1826. The justice of the peace refused. Nevertheless, Prigg took Margaret Morgan back to the slave state of Maryland; Pennsylvania then indicted Prigg for kidnapping under its 1826 law. The two states entered into protracted negotiations in an effort to find the best way to reach a resolution. They finally agreed.

  Maryland agreed to extradite Prigg to Pennsylvania for trial (March 7, 1838), and then Pennsylvania passed a law (May 28, 1839) that permitted the case to be expedited through the Pennsylvania Supreme Court, and from there a writ of error would take the case to the US Supreme Court to determine the power of the states to legislate on the rendition of fugitive slaves.[111] In essence, Maryland took the position that Prigg was merely executing a constitutional right and that Pennsylvania was obstructing it.[112] Pennsylvania, on the other hand, asserted that it had an obligation to protect its residents from being kidnapped.

  The case heading to the Supreme Court, Prigg v. Pennsylvania, was the first fugitive slave case to arrive before the US Supreme Court.[113]

  The issue of the rendition of fugitive slaves was critical for the slave states. It was no coincidence that in December 1860, when South Carolina seceded, it asserted that the central cause was the failure of the Northern states to comply with the Constitution’s obligation to return fugitive slaves. When it seceded, South Carolina issued a “Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina from the Federal Union.” After listing the ways in which the Northern states had “rendered useless” the right of slave rendition, the declaration concluded: “Thus the constitutional compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.” So, in late 1841, many Southerners were waiting for the Supreme Court’s decision, which was expected in early 1842.

  Slave-related tensions were not limited to a federal-to-state context. A fugitive slave conflict, involving state-to-state “diplomacy,” occurred between New York State and Virginia; it began in late 1839 but dragged on for years. New York was a center for abolitionist sentiment, and Virginia was the largest border slave state. A Virginia slave escaped to New York on a ship that sailed from Norfolk, Virginia. Virginia authorities charged three free black sailors (all New York State citizens) with aiding the slave’s es
cape. Officers from Virginia traveled to New York, recovered the escaped slave, and had the three sailors jailed in New York under a Virginia warrant. Virginia sought to have the three New Yorkers extradited from New York, but New York governor William Seward refused. Seward asserted that neither the law of New York, nor international law, recognized slavery. In February 1841, the Virginia Assembly retaliated by ordering the inspection of all New York ships leaving ports of Virginia.[114]

  Therefore, in late 1841, when the Creole entered the harbor at Nassau, major slavery issues, including the rendition of escaped slaves and the authority of the federal government to regulate (and, potentially, to eliminate) interstate transportation of slaves, were before the US Supreme Court. And the court had just dealt with a dramatic slave revolt on the high seas.

  1. The top five largest cities were New York City (312,710), Baltimore (102,313), New Orleans (102,193), Philadelphia (93,665), and Boston (93,383). At that time, Brooklyn, ranked seventh, was not a part of New York City. US Bureau of the Census, 1840.

  2. In 1836, the Wisconsin Territory included the present states of Wisconsin, Minnesota, and Iowa, along with parts of the Dakotas east of the Missouri River. In 1838, the Iowa Territory was created.

  3. Julia M. Klein, “An Edgar Allan Poe-pourri,” Wall Street Journal, October 3, 2013, D4.

  4. Stephen E. Ambrose, Nothing Like it in the World: The Men Who Built the Transcontinental Railroad 1863–1869 (New York: Simon & Schuster, 2005), 28.

  5. Ari Kelman, “Perimeters of Pain,” review of River of Dark Dreams in Times Literary Supplement, July 26, 2013, 12.

  6. Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007), xv. The late, great historian of the US House of Representatives, and biographer of Andrew Jackson, Robert V. Remini, said that Jackson embodied the “new American”: “This new man was no longer British. . . . He no longer wore the queue and silk pants. He wore trousers, and he stopped talking with a British accent.” Quoted in the obituary for Remini in the Washington Post, April 5, 2013, B-7.

  7. “Whereas merchants most commonly called the period between March and May 1837 a ‘crisis,’ American politicians preferred the word ‘panic.’ Labeling the crisis a panic worked for both Democrats and Whigs because it implied that it was manufactured, the product of politically assailable policies.” Jessica M. Lepler, The Many Panics of 1837: People, Politics, and the Creation of a Transatlantic Financial Crisis (New York: Cambridge University Press, 2013), 154.

  8. David S. Reynolds, Waking Giant: American in the Age of Jackson (New York: HarperCollins, 2008), 331. At that point, almost 40 percent of America’s banks failed.

  9. Lepler, The Many Panics of 1837, 232.

  10. 5 Stat. 440. The first such statute was the Bankruptcy Act of 1800, but it dealt only with involuntary bankruptcy for merchants and was repealed three years later.

  11. Dennis K. Berman, “When States Default: 2011, Meet 1841,” Wall Street Journal, January 4, 2011, C-1.

  12. Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2005), 456.

  13. In 1834, the Maryland State Colonization Society established Maryland in Liberia, at Cape Palmas, near Liberia’s current border with Côte d’Ivoire. For a scholarly review of that event, see Richard L. Hall, On Africa’s Shore: A History of Maryland in Liberia, 1834–1857 (Baltimore: Maryland Historical Society, 2003).

  14. Edward B. Rugemer, “Slave Rebels and Abolitionists: The Black Atlantic and the Coming of the Civil War,” Journal of the Civil War Era 2, no. 2 (June 2012): 184.

  15. Alan Taylor, The Internal Enemy: Slavery and War in Virginia, 1772–1832 (New York: Norton, 2013), 415.

  16. Stanley Harrold, Border War: Fighting over Slavery before the Civil War (Chapel Hill: University of North Carolina Press, 2010), 70.

  17. Rugemer, “Slave Rebels and Abolitionists,” 187.

  18. Daniel Howe, “Goodbye to the Age of Jackson,” New York Review of Books 35 (May 28, 2009). Professor Howe is Rhodes Professor of American History Emeritus at Oxford and UCLA.

  19. In President Lincoln’s inaugural address in 1861, he dealt head-on with the “mail delivery” issue, promising that it would be “furnished in all parts of the Union.”

  20. Maggie Montesinos Sale, The Slumbering Volcano: American Slave Ship Revolts and the Production of Rebellious Masculinity (Durham: Duke University Press, 1997), 1.

  21. Ironically, the British diplomat responsible for the papal negotiations and the British minister in Washington at the same time were both named Henry Fox. The one in Italy was Henry Edward Fox, while the one in Washington was Henry Stephen Fox.

  22. The description of the Palmerston effort and the papal response is brilliantly treated in John T. Noonan Jr., A Church That Can and Cannot Change (Notre Dame, IN: University of Notre Dame Press, 2005), 104–8. Noonan’s perspective on slavery in particular has been criticized. See Avery Cardinal Dulles, SJ, “Development or Reversal?” First Things (October 2005).

  23. Noonan, A Church, 108.

  24. For a magnificent study of this general issue, particularly as it ultimately impacted the Civil War, see Steven Deyle, Carry Me Back: The Domestic Slave Trade in American Life (New York: Oxford University Press, 2005).

  25. Lepler, The Many Panics of 1837, 14.

  26. Kelman, “Perimeters of Pain,” 12.

  27. Lepler, The Many Panics of 1837, 13.

  28. Jason Berry, “Urban Gumbo: New Orleans became a Creole Society of Mingled Bloodlines,” review of Ned Sublette, The World that Made New Orleans: From Spanish Silver to Congo Square in New York Times Book Review, February 17, 2008, 23.

  29. For a full discussion of the New Orleans/Mississippi system of slavery, see Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Belknap, 2013). See also the review of it: Kelman, “Perimeters of Pain,” 12–13.

  30. For a superb presentation of this issue and the Supreme Court, see David L. Lightner, “The Supreme Court and the Interstate Slave Trade: A Study in Evasion, Anarchy, and Extremism” Journal of Supreme Court History 29, no. 3 (2004): 229.

  31. John Jay was one of the Founding Fathers: president of the Continental Congress (1778–1779), drafter of five of the Federalist Papers, negotiator of the 1795 Jay Treaty with Great Britain, chief justice (1789–1795) appointed by George Washington, and governor of New York (1795–1801). Importantly, Jay was the leading opponent of slavery in his state and, finally, in 1799, he was successful in passing legislation providing for gradual emancipation. His son, Judge William Jay, followed his father’s passion for law and for abolition.

  32. William Jay, A View of the Action of the Federal Government, in Behalf of Slavery (New York: J. S. Taylor, 1839).

  33. The admiral was the older brother of Sir Francis Cockburn, the governor of the Bahamas. See chapter 4.

  34. Jay, A View of the Action, 60–61.

  35. A relatively minor foreign relations issue, but very sensitive in domestic political terms, was the matter of diplomatic relations with Haiti. Abolitionists in the North and in Congress demanded acceptance of the successful black republic, while the slaveholding states insisted that the fruits of a successful slave insurrection should not be exhibited in the United States, and, in any event, Haitian diplomats could not be accepted as social equals in Washington. The Tyler administration, fearful of the contagion of slave uprisings spreading from the Caribbean to the American South, was opposed to diplomatic relations with Haiti. The United States did not diplomatically recognize Haiti until 1862.

  36. Gail Collins, William Henry Harrison (New York: Time Books/Henry Holt, 2012), 83.

  37. Ibid., 85–86.

  38. Richard Brookhiser, “William Henry Harrison Showed Rich Presidential Candidates How to Win,” American History, June 2012, 22.

  39. Ibid., 88.

  40. Mark O. Hatfield, with the Senate Historical Office, Vice Presidents of the U
nited States, 1789–1993 (Washington, DC: US Government Printing Office, 1997), 142.

  41. Thomas Fleming, “How Presidential Politics Fastened Onto Buttons,” Wall Street Journal, September 25, 2012, A-17.

  42. Kathryn Allamong Jacob, Capital Elites: High Society in Washington D.C., After the Civil War (Washington, DC: Smithsonian Institution Press, 1995), 23.