we cannot honorably lend any encouragement or support to “that exorable commerce in human flesh.” Every principle of morality, of national honor, forbids that we should lend any aid or assistance to those engaged in a traffic in the bodies of men, of women, and of children. . . . Sir, I would not retain a single soldier in service to maintain this slave-trade; on the contrary, I should rejoice if every slave shipped from our slave-breeding States could regain his liberty, either by the strength of his own arms, or by landing on some British island.
Giddings then proceeded to review many of the arguments that had resulted in his censure less than two months earlier: once the Creole had left Virginia waters and that slave state’s jurisdiction, the slaves on the brig were freed. He acknowledged that he was “aware that the expression of these views is not agreeable to the feelings of those around” him, and that they were “also in direct conflict with the letter of instructions from the Secretary of State to our Minister at London.” Nevertheless, he said bitterly that the “people whom I represent are unwilling to be made parties to this purchase and sale of men.” He further explained that his constituents have “no intention to shed their blood in defense of this slave-trade.” Giddings claimed that the logical conclusion of the legal fact that the slaves had been in law free on the high seas, was that the slave owners—in shipping them to New Orleans—had committed the act of piracy! The United States had laws that demanded hanging for those engaged in piracy, and those laws should be enforced. Then, in a nice turn, Giddings asked rhetorically why Secretary Webster had demanded payment from the British “for the bodies of these freemen”:
Neither the British Government, nor the people of England had gained any pecuniary benefit by the freedom of these persons. The Negroes secured their own liberty, and were the only persons benefited. Why then should this nation demand from the people of England compensation for their liberty? . . . the President and Secretary of State have overstepped the limits of their Constitutional authority; that the character of the nation has suffered from this unauthorized attempt to extort money from the people of England to compensate these slave-merchants for the loss of their “human chattels.”
Finally, Giddings pointed directly at Webster, whom he acknowledged was “an eminent lawyer,” and scolded him for calling the Creole slaves mutineers and murderers. This was wrong as a matter of law and of morals, since these men were merely asserting their freedom. Rather, they were heroes! Casting his rhetorical eye directly at Webster, Giddings asked: “Would he [Webster], with a craven heart and a dastardly soul, have quietly submitted to be carried to the barracoons of New Orleans, and sold like a beast of burden?” Many in the House on that June 4 must have been considering yet another censure for that outspoken member, beloved of his constituents.
A British Visitor
It is often helpful, when trying to understand political climate and public pressures, to have the view of an outsider, even if that view is generally critical. The most popular writer in the English-speaking world, Charles Dickens, provided that perspective. His visit to the United States highlighted the anti-British sentiment in the United States, especially in the South, and the impact of the Creole affair.
Exactly one month after the Creole docked in New Orleans, and three weeks before the attack on Adams in the House, Charles Dickens and his wife, Catherine, boarded the steamer Britannia in Liverpool, and set sail for America. They arrived in Boston on January 22, 1842, and were met by adoring crowds. Bostonians warmly referred to the city as “Boz-town.” (“Boz” was the pseudonym used by Dickens since his earliest writings.) Henry Wadsworth Longfellow and Charles Sumner—then a Boston lawyer and Harvard Law School lecturer—took Dickens for a ten-mile walk around the city. Boston held grand dinners in Dickens’s honor, led in part by Oliver Wendell Holmes and Richard Henry Dana, who had published his popular Two Years Before the Mast two years earlier. Dickens then made his way down the coast to New York City, where, on February 20, he attended St. John’s Church with former president Van Buren.
From New York, Dickens visited Philadelphia, arriving late on March 6. Two weeks before his visit, he arranged for a notice in the Philadelphia Gazette explaining that he “declines all dinners, parades, shows, junketings and things of that sort, preferring to meet such private unostentatious hospitalities as a courteous people should extend.”[30] One of those private meetings was with Edgar Allan Poe. It is not unlikely that they discussed Poe’s critique of Dickens’s Barnaby Rudge, but it is unlikely that they discussed the character of Grip, the raven in Barnaby Rudge—which may have inspired Poe’s most successful poem in 1845, “The Raven.” Dickens stayed on Chestnut Street and described the building across the street as “a handsome building of white marble, which had a mournful ghost-like aspect dreary to behold.”[31] That “mournful” building—with its eight severe Doric columns in the Greek Revival style—happened to be the infamous and spectacularly failed second Bank of the United States, a casualty of the panic of 1837. When its charter failed to be renewed in 1836, it became a private corporation and was liquidated the year before Dickens viewed it.
Charles Dickens in London reading his novel Little Dombey, which was published in monthly installments from October 1846 to April 1848.
Dickens arrived in Washington on March 9. The morning after his arrival, he visited the president. Dickens described that event positively:
[A]t a business-like table covered with papers, sat the President himself. He looked somewhat worn and anxious, and well he might; being at war with everybody—but the expression of his face was mild and pleasant, and his manner was remarkably unaffected, gentlemanly and agreeable. I thought that in his whole carriage and demeanor, he became his station singularly well.[32]
Dignitaries called on Dickens at Fuller’s Hotel (later the famous Willard Hotel),[33] including Secretary Webster and Senator Calhoun.[34] (Webster and Dickens had met each other in London a few years earlier.) On March 10, he was formally introduced on the floor of the House of Representatives and was presented to John Quincy Adams. On Sunday, March 12, the Dickenses had dinner at the invitation of Adams, and later that same evening Dickens also had dinner with a State Department friend of Washington Irving’s, Robert Greenhow. Despite all the attention he was receiving, Dickens was not taken with Washington, which he thought should be known as “the City of Magnificent Intentions.” He decided it was an unhealthy place and that “Few people would live in Washington, I take it, who were not obliged to reside there.”[35]
On March 15, Dickens attended President Tyler’s levee—sort of an open house—the last levee of that season. Twenty-six-year-old Priscilla Cooper Tyler, the president’s daughter-in-law, served as the hostess, since the president’s wife was seriously ill and confined to her bedroom.[36] Priscilla had become a charming and effective social mistress for the president; as a former professional Shakespearean actress, she was quite comfortable in the spotlight.
Dickens’s friend and fellow literary celebrity, Washington Irving, was also at the levee, and was the co-honoree. (Tyler would shortly appoint Irving as US minister to Spain.) But Dickens was the star. As one press report put it: “[Dickens was] the greatest lion at the White House. The crowd oppressed him with kindness and thronged him wherever he moved.”[37] Another report noted that, when he arrived,
the fifteen hundred or two thousand people present went in pursuit of him like hounds, horses and riders in pursuit of a fox in the chase. . . . The people gazed, stared . . . stretched their necks. This fever was kept up for some thirty or forty minutes, until Boz turned upon his heels to get rid of his two thousand good-natured American friends who had taken the place by storm.[38]
Appalled by slavery, Dickens listened to Southern congressmen objecting to petitions to end the slave trade in the District and threatening abolitionists who might dare to come south. He also was repelled by the “abundance of drooling and spittle” in the House of Representatives, noting that American politicians “did
not take good aim into their spittoons.”[39] While in Washington, Dickens delivered petitions, signed by British and American literary luminaries (including James Fenimore Cooper and Washington Irving), pleading and demanding an international copyright law to protect stolen works from getting into print. His crusade for copyright did not result in any immediate action from the US government.
Dickens left Washington on March 16 for Richmond, where slavery, and the unseasonable heat, repelled him. He wrote to Lord Brougham about his time in Richmond: “the sight of Slavery, and mere fact of living in a town where it exists being positive misery to me.”[40] The Creole affair had caused virulent anti-British rhetoric in the press and in political discourse. Charles Dickens later wrote to his brother, Fred Dickens, about his time in Richmond, the “southern people are perfectly frantic about the Creole business,” and the British are excoriated for their handling of the mutineers. Dickens also wrote to his close friend, the actor and dramaturge William C. Macready, “The sight of slavery in Virginia; the hatred of British feeling upon that subject; and the miserable hints of impotent indignation of the South have pained me very much.”[41] Whether the topic was intellectual property rights, prison conditions, or copyright protection, Dickens had to be very careful, because of the general “hostility to any British criticism of American social or political practices.”[42]
At a Richmond dinner in his honor, Dickens addressed the audience: “the best flag of truce between two nations having the same common origin and speaking the same language is a fair sheet of white paper inscribed with the literature of each.” In the same theme, one of the hosts offered a toast: “England and America. . . . May their future contests be in literature and not in arms.”[43] These themes of military arms and the need for peace between the United States and United Kingdom were not as present in toasts offered earlier in Boston or New York.
Originally, Dickens planned to travel farther south to Charleston, South Carolina, but he was advised by Senator Henry Clay to change course and avoid the South. So he left Richmond on March 20 for Baltimore, where, on March 24, he left for western Pennsylvania and then traveled as far west as St. Louis.
Within months after sailing from the United States on June 7, Dickens began writing his next book, a travelogue and critique of the United States, American Notes for General Circulation, which was published in October 1842. Much of the material in the book was taken from letters he had written during his travels; most of those letters were written while he was in Baltimore, having just returned from Richmond. At that point in his journey, he seemed to have decided that he knew all there was to know about America.[44] In the book, he takes aim at Washington for being “the head-quarters of tobacco-tinctured saliva,” which is “most offensive and sickening.” Dickens imposed a rule on himself that he would not mention individual names in this book. But, in two passages he refers—but not by name—to John Quincy Adams and Joshua Giddings, in the context of his description of the House of Representatives:
an aged, grey-haired man [Adams], a lasting honour to the land that gave him birth . . . had stood for days upon his trial before this very body, charged with having dared to assert the infamy of that traffic, which has for its accursed merchandise men and women, and their unborn children. . . .
There was but a week to come, and another of that body [Giddings], for doing his duty to those who sent him there; for claiming in a Republic the Liberty and Freedom of expressing their sentiments, and making known their prayer; would be tried, found guilty, and have strong censure passed upon him by the rest.[45]
Dickens was so concerned about slavery in the United States that in American Notes he added a chapter dealing exclusively with slavery. In it, Dickens reproduced dozens of clippings from American newspapers that reported on slave beatings, slave escapes, and so forth, designed to reveal how American “public opinion” is formed by the media. One of the most prominent newspaper reports that he included in his book was one headlined “Interesting Law-Case.” It reported on the Prigg case—the fugitive slave case between Maryland and Pennsylvania—which was decided by the Supreme Court just a week before Dickens arrived in Washington.
At the Supreme Court
On the morning of February 8, 1842, lawyers representing Maryland and Pennsylvania in the case of Prigg v. Pennsylvania arrived at the Supreme Court to begin three days of argument in this case, which dealt for the first time with the scope of the fraught fugitive slave law. Each state sent two attorneys, including the attorney general of Pennsylvania and his deputy. The Supreme Court did not have its own building at that time.[46] Rather, the court met in a chamber directly below the floor of the Senate; after the British burned the Capitol during the War of 1812, the chamber was rebuilt in 1819. It was a relatively dark room, with three windows at the back of the justices’ bench. In front of the bench and before the visitors’ section, there was the place where the lawyers would argue.
The Prigg case brought the thorny political problem of fugitive slaves directly to the court.[47] The issue was how to permit legitimate slave rendition, while at the same time ensuring that kidnapping of free blacks would be prevented. Southern slaveholders watched anxiously in the hope that the court would protect their right to retrieve their slave property from Northern states to which slaves might have fled on the Underground Railroad. At the other end of the political spectrum, Northern abolitionists looked to the court to protect the rights of free blacks from capture by villainous slave catchers. Almost exactly a year before, the court had decided two slave cases (Amistad and Groves), but neither went to the core interests of the North or South, although there were hints in Groves that some justices might in the future decide that Congress had the power to ban the interstate slave trade.
Chief Justice Taney assigned the task of drafting the Opinion of the court to Justice Joseph Story, who had written the Opinion in the Amistad case the year before. Joseph Story of Massachusetts was a friend and mentor of Secretary of State Daniel Webster. Story was very highly regarded, perhaps best known for his treatise Commentaries on the Constitution of the United States, which dominated nineteenth-century jurisprudence. Story was the youngest justice ever appointed to the Supreme Court, at age thirty-two (by President Madison in 1811). It is possible that Taney selected Story because it would be politically wise to have a Northerner deliver the Opinion, which was likely to be seen as pro-slavery, and perhaps also because Story had successfully pulled together a variety of interests in Amistad.[48]
The heartrending facts of the case can be summarized as follows: A Maryland slave owner allowed his slaves to live almost freely, but he did not formally emancipate them. One of them (Margaret) married a free black, had children, and later moved to Pennsylvania, with the apparent agreement of the heirs of her original owner. Margaret bore additional children in that free state. The heirs of her original owner eventually decided to claim Margaret and her children, and they sent a slave catcher, Prigg, into Pennsylvania, from which he dragged them back to Maryland. Pennsylvania had enacted a law in 1826 that prohibited the removal of blacks out of the state for purpose of enslaving them. Under this law, Pennsylvania convicted Prigg of a horrible kidnapping. Maryland claimed that the 1826 Pennsylvania law violated the fugitive slave provision in Article IV, Section 2, of the Constitution.
On March 1, 1842, Justice Joseph Story read the Opinion of the Court in that basement-like chamber under the Senate in the Capitol building. At the outset, Story pointed out that the Fugitive Slave Clause in the Constitution was so essential to Southern interests at the time of its formation that, without it, the Constitution would not have been adopted. Moving from this fundamental historical position, Story announced that Pennsylvania’s Personal Liberty law of 1826 was unconstitutional, because it denied the right of slaveholders to recover their slaves under Article IV of the Constitution and the Federal Fugitive Slave Law of 1793, which overrode Pennsylvania’s law, in accordance with the Supremacy Clause. Prigg’s conviction was rever
sed.
Story explained that slaveholders had the right and the power to seize fugitive slaves wherever they were found, as long as they committed no breach of the peace or engaged in no illegal violence, since the police powers of the states had not been surrendered to the federal government. Thus, Pennsylvania could not interfere with the rendition of fugitive slaves, but it—and other states—could pass laws under their police powers that were broadly fashioned. Seven other justices agreed with Story that the Pennsylvania law must fall, but six justices could not quite agree on the reasoning. The chief justice thought that states could pass laws dealing with fugitive slaves but that those laws could not impair the right of rendition. Justice Daniel of Virginia also disagreed with Story’s view of federal exclusivity, noting that states have concurrent authority to enact laws in aid of slave rendition.
Justice McLean of Ohio was the sole dissenter, though he agreed with Story that Congress had the exclusive power to enact laws enforcing the Fugitive Slave Clause. McLean focused on the practical problem of kidnapping, and he concluded that there were proper exercises of the state’s police power that might interfere with the slave-owner’s right of rendition, if, for example, the slave owner was mistaken. Abolitionists, while pleased with McLean’s dissent, could not have been overjoyed, since his position was relatively narrow.
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