by James Oakes
“FREEDOM NATIONAL”
The Creole sailed out of Hampton Roads, Virginia, on October 25, 1841, packed with 135 blacks destined for the slave markets of New Orleans. Two weeks later, as the ship approached the Bahamas, about twenty of the slaves seized control, wounded the captain and several of the crew, killed another crew member, and “with great coolness and presence of mind,” destroyed the documents proving their enslavement and ordered the rest of the crew to sail them into port at Nassau. When the ship reached the island, then known as New Providence, the American consul demanded that the slaves be arrested and sent on their way to Louisiana. Instead the British government freed the slaves, including those who had been identified as “insurrectionists.” The U.S. government responded with outrage, demanding reparations for the “property” improperly confiscated by the English government. Secretary of State Daniel Webster insisted that the slaves were “recognized as property by the Constitution of the United States in those States in which slavery exists.” Webster’s dispatch thus raised the very issue that abolitionists were pressing: Were the rights of property in slaves constitutional? If so, slave property was protected beyond the borders of the slave states. But if slave property was merely “municipal,” grounded in local laws only, wasn’t the property claim in slaves restricted to the locality itself?32
The Creole rebellion presented abolitionists with an opportunity to apply their emerging constitutional theories. If the right to own slaves was merely “a naked legal right,” as Chase had argued in the Matilda case, that right “can have no existence beyond the territorial limits of the state which sanctions it, except in other states whose positive law recognizes and protects it.” Otherwise the right to slave property “vanishes when the master and the slave meet together in a state where positive law interdicts slavery. The moment the slave comes within such a state, he acquires a legal right to freedom.”33 To Chase this meant that Matilda Lawrence had every right to claim her freedom the moment she set foot on Ohio soil. The same principle surely applied to the slaves on board the Creole. Were they not free the moment the ship left the territorial waters of Virginia and local slave laws no longer reached them? On the high seas the law of nations prevailed, and with it the natural law of freedom.
If there was scandal in the diplomatic crisis surrounding the Creole uprising, abolitionists declared, it was not the justifiable rebellion of the slaves but the inexcusable reaction of the U.S. government as reflected in Webster’s dispatch. If slavery was a merely local, or “municipal” institution, the abolitionist lawyer William Jay wondered, why then was “the Federal Government, putting forth and pledging all its powers to protect slavery—not within the United States . . . but on the high seas, and even in the harbor of a nation, that does not acknowledge slavery.” Commenting on the Creole case, Charles Sumner explained that slavery “is not a national institution; nor is it one recognized by the law of nations. It is peculiar to certain States. It draws its vitality from the legislation of those States. Now, this legislation is of course limited to those States. It is not extra-territorial in its influence.”34
In his dispatch Webster claimed that slaves remained slaves even on a ship carrying them from Virginia to Louisiana, so that when the ship arrived in port at Nassau the American consul had every right to claim them as the property of U.S. citizens. Sumner argued that the slaves “became free men when taken, by the voluntary act of their owners, beyond the jurisdiction of the Slave States.” Jay pointed out that the slaves had in fact rebelled on board the ship, thereby emancipating themselves, and that when they arrived in the Bahamas they were already free. In rebelling, the slaves had reclaimed their natural right to freedom. The Creole slaves were, in Jay’s words, “self-emancipated.” What the American consul was therefore demanding was the re-enslavement of free blacks. Sumner and Jay were pushing antislavery constitutionalism onto legal terrain that would have major consequences for the history of slavery’s destruction.35
Reverberations from the Creole rebellion were felt on the floor of the House of Representatives. Congressman Joshua Giddings, an antislavery radical from Ohio, introduced a series of resolutions that reflected the emerging abolitionist principle that slavery was a merely local institution and that beyond the borders of the slave states—on the high seas, for example—freedom prevailed. These were the Giddings resolutions, and there were nine of them. They began by acknowledging the familiar federal consensus, that any individual state of the Union “exercised full and exclusive jurisdiction over the subject of slavery within its own territory.” But slavery, “being an abridgement of the natural rights of man, can exist only by force of positive municipal law, and is necessarily confined to the territorial jurisdiction of the power creating it.” Thus slavery could not exist beyond the reach of the “municipal” law that created it, for where there was no such law there was no slavery, only the natural right of freedom. Accordingly, when an American ship leaves the territorial waters of the states, it comes under the rule of law governing all Americans. When the Creole left Virginia, Giddings declared, the slave laws of Virginia ceased to operate on it. The slaves on board were thereby restored to “their natural rights of personal liberty.” In claiming their freedom, even through insurrection, they violated no U.S. laws. Accordingly, all efforts to re-enslave the passengers aboard the Creole were “unauthorized” by the Constitution. This was the same principle Republican policymakers would invoke a generation later when slaves “rebelled” against their masters by running to Union lines during the Civil War: they had emancipated themselves, recovered their natural right to freedom, and could never be re-enslaved.36
Giddings’s fellow congressmen immediately voted by more than a two-to-one margin to table his nine resolutions and then censured him for introducing such scandalous ideas into the House of Representatives. But the fifty-three votes cast in favor of the resolutions was another indication that abolitionist precepts were penetrating into the political mainstream. Giddings lost the vote, but there was vindication to be had. Having been censured by his colleagues, Giddings resigned from Congress and went back to Ohio, where he ran for reelection and was returned to the House of Representatives by a landslide vote. Giddings had made his point: abolitionist constitutional principles were no longer the preserve of a handful of radical pamphleteers.
CHASE, WELD, GIDDINGS, SUMNER, and others were building a case for cordoning slavery off, restricting it to the states where it existed and barring it from all influence on national policy. They would denationalize slavery. To a generation of Americans accustomed to Jacksonian arguments for the separation of church and state, or the separation of banking from the state, radical demands for the complete separation of slavery from the state made perfect sense. Yet those men were not merely theoreticians. They were also practical politicians, and to succeed they needed to do more than develop the principles that could justify antislavery policies. They needed to build the political organizations that could put such policies into practice. Before they could implement antislavery policies, they needed an antislavery party.
In 1839 political abolitionists, particularly in western New York, proposed the creation of a third party devoted exclusively to the abolition of slavery. The following year, what became known as the Liberty Party fielded its first presidential candidate, James Gillespie Birney, the man whom Chase had defended in the Matilda case. Launching a presidential campaign was a controversial move among political abolitionists, even in Birney’s home state of Ohio. Within the Liberty Party itself differences developed between those who believed the Constitution was an antislavery document that empowered the federal government to abolish slavery in the states and those who believed that, like it or not, the Constitution protected slavery in the states where it already existed. The creation of the Liberty Party also completed the rupture between political abolitionists and the perfectionist strand of the movement led by William Lloyd Garrison and his followers, a rupture that by the 1850s would reduce th
e Garrisonians to relatively marginal figures within the broader antislavery movement.37
The founding principle of the Liberty Party was that the Constitution did not recognize slaves as property, therefore “all attempts to hold men as property within the limits of exclusive national jurisdiction, ought to be prohibited by law.” If slaves were persons rather than property, the Constitution, “which declares that no person shall be deprived of life, liberty, or property, without due process of law,” was incompatible with slavery. Only state law could override the Constitution by establishing slavery, but slavery remained “strictly local” and had no existence beyond the borders of the states that created it. The Liberty Party called for “the absolute and unqualified divorce of the General Government from Slavery.” This did not mean that the federal government should sit by and do nothing about slavery. On the contrary, the Constitution obliged Congress to do everything it could—short of outright abolition in the slave states—to make freedom “national.” The federal government had “shamefully violated” that obligation when it opened Louisiana and Florida to slavery, allowed slavery into the nation’s capital, protected slavery on the high seas, allowed the coastwise slave trade to continue, and granted new slave states entrance to the Union. None of this should have been allowed to happen because “the General Government has, under the Constitution, no power to establish or continue slavery anywhere.” That the federal government has allowed such violations of its own fundamental charter was due to the baneful influence of a “slave power” on national policy.38
Without quite saying so, the Liberty Party platform pushed the logic of antislavery constitutionalism close to the radical proposition that the Constitution was unambiguously hostile to slavery. This was the direction William Goodell, Gerrit Smith, Alvan Stewart, and a handful of other radicals were moving in the 1830s and 1840s, and there is some evidence that at the local level their version of antislavery constitutionalism was making headway within the Liberty Party.39 But the platform stopped short of declaring that Congress had the power to abolish slavery in the states, no doubt because party leaders were divided on the issue. Chase in particular was convinced that it was both constitutionally incorrect and politically suicidal for an antislavery party to deny that the Constitution protected slavery in the states where it already existed. A viable antislavery politics, Chase and others believed, had to acknowledge that the Founders in Philadelphia had compromised with slavery for the sake of the Union, and in so doing had left the abolition of slavery in the states to the states. That the Liberty Party would not acknowledge as much was, in Chase’s mind, the chief reason for its failure to attract a wider constituency. Though it scored some successes in local elections, the Liberty Party never gained nationwide electoral traction. In 1848 it was eclipsed by the Free Soil Party.
Free Soilers were clear where the Liberty Party had been ambiguous: the state laws creating slavery “cannot be repealed or modified by the Federal Government.” Otherwise the constitutional premises of the Free Soil Party were identical to those of its predecessor—hardly a surprise since it was Salmon Chase who wrote the party platform. It would “rescue” the federal government from the control of the “Slave Power” and “return” national policy to the antislavery principles of the Founders. States could establish slavery within their borders, but the Constitution strictly forbade the federal government from supporting slavery in any way. “Congress has no more power to make a SLAVE than to make a KING.” Demanding a strict separation of slavery from the national state, the 1848 Free Soil platform held that it was the “duty” of the federal government to “relieve itself from all responsibility for the existence or continuance of slavery” wherever it was sovereign. Freedom was national, and unqualified support for freedom should therefore be the national policy, tilted in favor of free labor and against slave labor. “No more Slave States,” Free Soilers declared, “and no more Slave Territory. Let the soil of our extensive domains be kept free.” The party’s rallying cry had broad appeal: “Free Soil, Free Labor, Free Speech, Free Men.”40
The Free Soil Party made an impressive showing in the 1848 presidential election, but it was still very much a minority party, explicitly positioning itself in opposition to the two major parties—the Whigs and the Democrats, both of which remained committed to keeping slavery out of national politics altogether. Over the next several years Free Soil leaders emphasized “fusion” with one of the two major parties. Chase put his hopes on the Democrats; others thought fusion with the Whigs was a better bet. Fusion achieved some successes at the state and local levels. It got Chase elected to the Senate from Ohio and Sumner from Massachusetts. But the Compromise of 1850 dampened antislavery sentiment. Far from committing themselves to fusion with the antislavery forces, the Whig and Democratic Parties became more adamant than ever that the slavery issue should be thoroughly excluded from national politics.41
Nevertheless the congressional debate over the compromise measures suggested that antislavery constitutionalism had penetrated still further into the political mainstream. On March 11, 1850, New York Senator William Seward, a prominent northern Whig, delivered the famous speech declaring that there was a “higher law” than the Constitution. Though it immediately earned him a reputation as a radical, Seward’s crucial point was that the “higher” antislavery principles of natural law were already embedded within the Constitution—by then a standard theme among political abolitionists. The “blessings of liberty” were prescribed by the laws of nature, Seward argued, but promised in the Constitution’s preamble. Slavery stood condemned under the law of nations, which the Founders had incorporated into the Constitution through the war powers and treaty-making clauses. Slavery was but a “temporary, accidental, partial, and incongruous” presence in the Constitution, Seward argued. “Freedom on the contrary, is a perpetual, organic, universal one.” Denounced by conservatives as a revolutionary call to overturn the Constitution, Seward’s “higher law” speech in fact ended with a worshipful paean to the nation’s founding charter.42
Seward was not subjecting his fellow senators to a lesson in abstract political philosophy. He was arguing for a national policy in opposition to slavery and in defense of Free Soil. The antislavery precepts of the Constitution virtually required the federal government to protect freedom and undermine slavery in all areas of the “public domain,” the territories held by the people of the United States. Congress could, within the Constitution, “impose conditions” for the admission of new states that were consistent with national principles. Under the “treaty-making power” (the law of nations) the federal government could restrict slave “property” and instead guarantee the “personal right” of freedom. Seward therefore opposed any of the “compromise” measures that would allow any more slave states to enter the Union. Nothing in Seward’s speech was out of line with the principles and policies of the Liberty and Free Soil Parties.43
Yet Seward added an important element to antislavery politics—the conviction that the demise of slavery was inevitable. This was always implicit in the theory, nursed by enlightened opponents of slavery since the eighteenth century, that slavery was a source of weakness and instability. Economically, politically, socially, and militarily—slavery was said to be so debilitating that left to its own devices, it would die a natural death. The only thing preventing slavery from meeting its appointed destiny was the Slave Power, twisting the meaning of the Constitution to wring from the federal government policies that protected slavery and prolonged its life. In the 1840s, Liberty Party agitators and Free Soilers argued that slavery was bound to disappear once the “Slave Power” was overthrown. Republicans in the 1850s inherited that same conviction. Install antislavery men in the seats of federal power and slavery would “in some way or other work its own extinction.”44
Seward took this popular theory of slavery’s intrinsic weakness to its logical conclusion by declaring that abolition was “inevitable.” To his mind, merely restricting slave
ry’s expansion was tantamount to a sentence of death, albeit a gradual and virtually painless one. To be sure, the federal government lacked the authority to implement the “immediate and unconditional abolition of slavery.” Under the Constitution, Seward conceded, only “the people of the slave states, could abolish it.” Yet Seward was openly, even naively, optimistic that with the right federal policies in place the slave states would eventually feel compelled to abolish slavery on their own. “Under the steady, peaceful action of moral, social and political causes,” Seward explained, slavery would “be removed by gradual voluntary effort, and with compensation.” Notwithstanding all the talk of secession in 1850, he foresaw neither the dissolution of the Union nor the violent abolition that dissolution would bring. But he was certain that slavery was doomed. “I feel assured that slavery must give way, and will give way,” he concluded. Stripped of the protective cover of the Slave Power and denied access to fresh western soils, slavery could never compete with the superior advantages of free labor. Under “the ripening influences of economy,” Seward declared, “emancipation is inevitable, and is near.”45 A ban on slavery in the western territories was not the goal; it was the first step on the road to its ultimate extinction.
Seward did not propose to step back and wait for the inevitable to happen, however. On the contrary, he steadfastly opposed any policies that might “fortify” slavery, and supported those that “check its extension and abate its strength, [and] tend to its peaceful extirpation.” Already in 1850 the southerners were asking for “guaranties” that the federal government would seek out and return fugitive slaves in the northern states. “That guaranty you cannot have,” Seward declared. Nor would he offer “a guaranty against the abolition of slavery in the District of Columbia.” He would give slavery no berth in the western territories. In all of these ways Seward would smother the ambitions of the Slave Power. But beyond merely frustrating slavery’s whims, Seward would activate the federal government to move against slavery by every constitutional means at its disposal. There is “no reasonable limit to which I am not willing to go in applying the national treasures to effect the peaceful, voluntary removal of slavery,” Seward declared, suggesting that the federal government could, within the Constitution, purchase slaves from individual masters and then emancipate them. Congress could not “usurp power to abolish slavery in the slave states,” Seward readily admitted, but that did not mean that Congress was powerless to promote slavery’s ultimate extinction.46