Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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SLAVERY (IN U. S. HISTORY). It may be laid down as a fundamental proposition, that negro slavery in the colonies never existed or was originally established by law, but that it rested wholly on custom. The dictum, so often quoted, that slavery, being a breach of natural right, can be valid only by positive law, is not true: it is rather true that slavery, where it existed, being the creature of custom, required positive law to abolish or control it. In Great Britain, in 1772, custom had made slavery so odious that the Sommersett case justly held that positive law was necessary for the establishment of slavery there in any form; but the exact contrary of this rule, of course, held good in commonwealths where custom made slavery not odious, but legal. In these cases the laws which were passed in regard to slavery were only declaratory of a custom already established, and can not be said to have established slavery. The whole slavery struggle is therefore the history of a custom at first universal in the colonies, then peacefully circumscribed by the rise of a moral feeling opposed to it, but suddenly so fortified in its remaining territory by the rise of an enormous material interest as to make the final struggle one of force. In outlining the history of negro slavery in the United States, it seems advisable to make the following subdivisions: 1, the introduction of slavery, and its increase, 2, its internal policy; 3, the slave trade, foreign and domestic; 4 the suffrage clause and the "slave power"; and 5 slavery in the territories, including new states. The final abolition of slavery in each state, in the territories, and in the nation, is treated elsewhere. (See ABOLITION)


—I. INTRODUCTION OF SLAVERY, AND ITS INCREASE. When English colonization in North America began, Indian and negro slavery was already firmly established in the neighboring Spanish colonies; and from these, particularly from the West Indies, negro slavery was naturally and unconsciously introduced into the English colonies, the Barbadoes being the steppingstone for most of them. Nevertheless, the first authentic case of introduction was from an entirely different source. In August, 1619, a Dutch man-of-war, temporarily in Virginia, landed fourteen negro slaves in exchange for provisions. This is the only colony in which a first case can be found. Everywhere else we find slavery, when first casually mentioned, an institution so long established as to have lost its novelty. In each of them there are three points to be noted: the first mention of slavery, its first regulation by law, and the establishment, by custom or positive law, of the civil law rule, partus sequitur ventrem, instead of the common law rule, partus sequitur patrem. The latter rule, making children take the condition of the father, was the natural rule for English colonists, would have made negro slavery far more tolerable, and would have established a constant agent for its ultimate extinction, since any connection between a slave father and a free mother would have been comparatively rare. The former rule, that the children should take the condition of the mother, which was everywhere adopted by custom from the beginning, not only relieved the system from check, but even gave it an added horror, of which the variations in color among the inferior race are mute but indelible certificates. In summarizing the introduction of slavery into the original thirteen states, we will begin at Mason and Dixon's line, going first southward, and then northward: its introduction into the new states and territories comes under the fifth subdivision.


—In Virginia the acts passed were at first for the mere regulation of servants, the legal distinction being between servants for a term of years (white immigrants under indentures), and servants for life (slaves). Dec. 14, 1662, the civil law rule, partus sequitur ventrem, was adopted by statute. Oct. 3, 1670, servants not Christians, imported by shipping, were declared slaves for their lives. Slavery was thus fully legalized in the colony.


—In Maryland slaves are first mentioned ("slaves only excepted") in a proposed law of 1638. In 1663 the civil law rule was fully adopted by a provision that "negroes or other slaves," then in the province or thereafter imported, should serve durante vita, "and their children also."


—In Delaware the Swedes at first prohibited slavery, but it was introduced by the Dutch. It was in existence probably in 1636; but its first legal recognition was in 1721, in an act providing for the trial of "negro and mulatto slaves" by two justices and six freeholders. With this exception the system rested wholly on custom in Delaware.


—In Carolina, under the first union of the two provinces, the Locke constitution (see NORTH CAROLINA) provided practically for white slavery: the "leetmen," or tenants of ten acres, were to be fixed to the soil under the jurisdiction of their lord without appeal; and the children of leetmen were to be leetmen, "and so to all generations." This provision, like most of the others, was never respected or obeyed. The 110th article provided that every freeman should have "absolute power and authority over his negro slaves of what opinion or religion soever." This met with more respect, and became the fundamental law of North Carolina without anything further than statutes for police regulation.


—In South Carolina the first slavery legislation, an act of Feb. 7, 1690, "for the better ordering of slaves," took place before the separation. Slaves are said to have been introduced by Gov. Yeamans about 1670. June 7, 1712, slavery was formally legalized by an act declaring all negroes and Indians, theretofore sold or thereafter to be sold, and their children, "slaves to all intents and purposes." The civil law rule was made law May 10, 1740. The police regulations of this colony were filled with cruel provisions, such as the gelding of a male slave who should run away for the fourth time; and yet an act was passed in 1704, and re-enacted in 1708, for enlisting and arming negro troops.


—In Georgia slavery was prohibited at the establishment of the colony, in 1732. In 1749, after repeated petitions from the colonists, the trustees obtained from parliament the repeal of the prohibition. In 1755 the legislature passed an act regulating the conduct of slaves; and in 1765 and subsequent years the laws of South Carolina were re-enacted by Georgia.


—In Pennsylvania slavery is first heard of in 1688, when Francis Daniel Pastorius drew up a memorial against the practice for the Germantown Quakers. It was not until 1696 that the Quaker yearly meeting was prepared to act favorably on the memorial. In 1700 the legislature forbade the selling of slaves out of the province without their consent. The other slavery legislation of the colony consisted of efforts, more or less successful, to check or abolish the slave trade; but, as soon as independence was fairly attained, arrangements were made for gradual abolition. So late as 1795, however, the state supreme court decided that slavery was not inconsistent with the state constitution.


—In New Jersey slavery was introduced by the Dutch, but was not recognized by law until the "concessions" of 1664 (see NEW JERSEY), in which the word "slaves" occurs. In East Jersey slaves were given trial by jury in 1694; and in West Jersey the word "slave" was omitted from the laws. Acts for regulating the conduct of slaves began with the junction of the province with New York, in 1702; but these were never harsh, and the condition of the slave was more tolerable than in any other colony where the system was really established.


—In New York slavery came in with the Dutch at an uncertain period, the Dutch West India company supplying the slaves. So early as 1628 the inhabitants were made nervous by the mutinous behavior of some of the slaves, but there was no legal recognition of slavery until 1665, when the duke of York's laws forbade "slavery of Christians," thus by implication allowing slavery of heathens. Full recognition was given by a proviso in the naturalization act of 1683, that it should not operate to free those held as slaves, and by an act of 1706, to allow baptism of slaves without freeing them.


—In Connecticut slavery was never directly established by statute, and the time of its introduction is uncertain. In 1680 the governor informed the board of trade, that, "as for blacks, there come sometimes three or four in a year from Barbadoes, and they are sold usually at the rate of £22 apiece." They were considered as servants, rather than as chattels, could sue their masters for ill treatment or deprivation of property, and the only legal recognition of slavery was in such police regulations as that of 1690, to check the wandering and running away of "purchased negro servants."


—Rhode Island passed the first act for the abolition of slavery in our history, May 19, 1652. In order to check "the common course practiced among Englishmen to buy negers (sic)," the act freed all slaves brought into the province after ten years' service. Unfortunately, the act was never obeyed; custom was too strong for statute law, and existed without law until the final abolition. The only legal recognition of the system was in a series of acts, beginning Jan. 4, 1703, to control the wandering of Indian and negro slaves and servants, and another, beginning in April, 1708, in which the slave trade was indirectly legalized by being taxed.


—In Massachusetts a negro is mentioned in 1633 as an estray, "conducted to his master." In 1636 a Salem ship began the importation of negro slaves from the West Indies, and thereafter Peqnot slaves were constantly exchanged for Barbadoes negroes. In 1641 the fundamental laws forbade slavery, with the following cautious proviso: "unless it be lawful captives taken in just wars [Pequots], and such strangers as willingly sell themselves [probably indentured white immigrants] or are sold to us [negroes]." The explanations inserted will show that this was the first legal recognition of slavery in any colony. Under it slavery grew slowly, and the rule of partus sequitur ventrem was established by custom and court decisions. Public sentiment, after the year 1700, was slowly developed against the system. In December, 1766, a jury gave a negro woman £4 damages against her master for restraining her of her liberty. John Adams notes at the time that this was the first case of the kind he had known, though he heard that there had been many. In 1768 another case was decided for the master, and thereafter the decisions of juries varied to every point of the compass for twenty years; but it is known that many of the cases in which the slaves were successful were gained by connivance of the masters, in order to relieve themselves of the care of aged or infirm slaves. John Quincy Adams gives 1787 as the year in which the state supreme court finally decided, that, under the constitution of 1780, a man could not be sold in Massachusetts.


—In New Hampshire there were but two legal recognitions of slavery, an act of 1714 to regulate the conduct of "Indian, negro and mulatto servants and slaves"; and another in 1718 to regulate the conduct of masters. There were but few slaves in the colony, and slavery had but a nominal existence.


—Vermont never recognized slavery. (See ABOLITION, I.)


—From all the cases it will be seen that slavery was the creature of custom. The only exceptions are a peculiar provision in the law of Maryland (1663) and Pennsylvania (1725-6) making the children of free-born mothers and slave fathers slaves to their father's master until the age of thirty; and the laws in a few states re-enslaving freedmen who refused or neglected to leave the state. This latter provision was the law of Virginia from 1705, and was put into the state constitution in 1850; and laws fully equivalent were passed during their state existence by North Carolina, South Carolina, Georgia, Alabama, Mississippi and Louisiana. In the white heat of the antislavery struggle, laws were passed by Virginia in 1856, by Louisiana in 1859, and by Maryland in 1860, providing for the voluntary enslavement of free negroes; but these were exceptional. Milder provisions, to the same general effect, to punish by fine or sale the coming or remaining of free negroes in the state, were inserted in the constitution of Missouri in 1820, of Texas in 1836 (as a republic). of Florida in 1838, of Kentucky in 1850, of Indiana in 1851, and of Oregon in 1857. (See the states named.) The most troublesome to the northern states were the regulations of the seaboard slave states, under which negro seamen of northern vessels were frequently imprisoned, and sometimes sold. In 1844 Massachusetts sent Samuel Hoar to Charleston to bring an amicable suit there for the purpose of testing the constitutionality of the South Carolina act. He was received in a very unfriendly fashion. The legislature passed resolutions requesting the governor to expel him from the state, and an act making any such mission a high misdemeanor, punishable by fine and banishment. Finally, on receiving unequivocal assurances of personal violence if he remained, Mr. Hoar left Charleston without fulfilling his mission.


—However strongly custom may have established negro slavery in the colonies, it has been suggested that the validity of the system was at least made doubtful by the Sommersett case in England In that country, in 1677, the courts held negro slaves to be property, as "being usually bought and sold among merchants as merchandise, and also being infidels." In 1750 custom had so far changed that the law was again in doubt. In 1771 Charles Stewart, of Boston, took his slave James Sommersett to London, where the latter fell sick, and was sent adrift by his master. Stewart, afterward finding Sommersett recovered, reclaimed him and put him on a ship in the Thames, bound for Jamaica. Lord Mansfield issued a writ of habeas corpus, and decided, June 22, 1772, that the master could not compel his slave to leave England, whose laws did not recognize "so high an act of dominion." If the colonies, by charter and otherwise, were forbidden to pass laws contrary to the laws of England, and if the laws of England did not recognize slavery. was slavery legal in the colonies? It must be remembered that the Sommersett decision was not that the laws of England forbade slavery, but that there was no law in England establishing slavery. There was no attempt to make an English custom override an American custom, and we can not draw any attack on the American system of slavery out of the Sommersett case.


—The colonies, then, began their forcible struggle against the mother country with a system of negro slavery, recognized everywhere by law, moribund in the north, but full of vigor in the south. In the north, where there was a general consciousness that slavery was doomed, the slaves were generally regarded as servants for life, as persons whose personality was under suspension. In the south they were regularly regarded by the law and by private opinion as things, as chattels, with "no rights or privileges but such as those who held the power and the government might choose to grant them," with all the consequences arising from the fact that they had not come to America voluntarily, as persons, but involuntarily, as property. In so far the Dred Scott decision correctly stated the feeling of our forefathers. But the feeling was in great measure a consequence of the unfortunate adoption of the rule partus sequitur rentrem: a race to which the rule was applied could be no other than animal, and a people among whom the rule prevailed could never be emancipated from the feeling. For this reason the revolutionary congress made no attempt to interfere with slavery, except in regard to the slave trade, to be referred to hereafter. The state of war itself did little real harm to the system. In Virginia, Nov. 7, 1775, Lord Dunmore proclaimed freedom to all slaves who would fight for the king, and negro soldiers were enlisted by Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Maryland, Virginia and North Carolina. South Carolina refused to follow the recommendation of congress, in 1779, to enlist 3,000 negro troops. A return of the continental army, Aug. 24, 1778, shows 755 negro soldiers, not including the New Hampshire, Rhode Island, Connecticut or New York troops. At the end of the war Rhode Island, New York and Virginia freed their negro soldiers, but the system remained as before. The treaty of peace bound the British not to carry away any "negroes or other property of the American inhabitants"; and this collocation of terms is repeated in the treaty of Ghent in 1814. All through the period of the confederation, slavery received no detriment, except in the action of individual states (see ABOLITION, I.), and in its exclusion from the northwest territory, to be referred to hereafter. The states and the nation began their course under the constitution with the same general system as before, but with three modifications: the apportionment of representation to three-fifths of the slaves; the power of congress to prohibit the slave trade after 1808; and the fugitive slave clause. The first of these made the system of slavery itself a political factor, represented in the government; the third offered a tempting and dangerous weapon to use against an opposing section; and the second was the death warrant of the whole system in the double event of the acquisition of foreign territory and the development of antagonistic sections. They are therefore treated in special subdivisions.


—Until this time the difference in the slave systems of the north and of the south had been a difference of degree rather than of kind. The basis and the general laws were nominally the same everywhere; and there was a general agreement that the system was evil in itself, and that it was desirable to rid the country of it by gradual abolition. But, from the beginning, the masterful white race had found, in the colder north, that it was easier to do work for itself than to compel work from the black race, and, in the warmer south, that it was easier to compel work from the black race than to do the work for itself. In both sections the ruling race followed naturally the line of least resistance, and negro slavery increased in the south, and decreased in the north. The process may be seen in the number of slaves in the colonies north and south of Mason and Dixon's line, as estimated by the royal governors in 1715, as estimated by congress in 1775, and as ascertained by the first census, in 1790, as follows. North, (1715) 10,900, (1775) 46,102, (1790) 40,370; South, (1715) 47,950, (1775) 455,000, (1790) 657,527. Before 1790 the two sections had begun to show the contrasting results of pushing, self-interested free labor on the one hand, and shiftless, unwilling slave labor on the other. Gouverneur Morris, in the convention of 1787, thus spoke of slavery at the time: "It was the curse of Heaven on the states where it prevailed. Travel through the whole continent, and you behold the prospect continually varying with the appearance and disappearance of slavery. The moment you leave the eastern states and enter New York, the effects of the institution become visible. Passing through the Jerseys, and entering Pennsylvania, every criterion of superior improvement witnesses the change. Proceed southwardly, and every step you take through the great regions of slaves presents a desert, increasing with the increasing proportion of these wretched beings." Nor was the assertion denied by the southerners who heard it. George Mason, of Virginia, said: "Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the emigration of whites, who really enrich and strengthen a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations can not be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects Providence punishes national sins by national calamities." And Jefferson, in the same year, after detailing the evils of slavery, added. "Indeed, I tremble for my country when I reflect that God is just, and that his justice can not sleep forever." But this substantial agreement in sentiment was very soon to be broken by an event which entirely altered the paths of the two sections.


—Few influences have so colored the history of the United States and of negro slavery as the inventions of 1775-93 in England and America. In 1775 Crompton's invention of the mule jenny superseded Hargreaves' spinning machine; in 1783 Watt's steam engine was adapted to the spinning and carding of cotton at Manchester; in 1785 cylinder printing of cottons was invented; and in 1786-8 the use of acid in bleaching was begun. All the machinery of the cotton manufacture was thus standing ready for material. Very little had thus far come from the United States, for a slave could clean but five or six pounds a day for market. In 1784 an American ship which brought eight bags of cotton to Liverpool was seized on the ground that so much of the article could not be the produce of the United States; and Jay's treaty (see that title) at first consented that no cotton should be exported from America. In 1793 Eli Whitney, of Connecticut, then residing in Georgia, changed the history of the country by his invention of the saw-gin, by which one slave could cleanse 1,000 pounds of cotton from its seeds in a day. He was robbed of his invention, which the excited planters instantly appropriated; and slavery ceased to be a passive, patriarchal institution, and became a means of gain, to be upheld and extended by its beneficiaries. The export of cotton, which had fallen from 189,316 pounds in 1791 to 138,328 in 1792, rose to 487,600 in 1793, to 1,601,760 in 1794, to 6,276,300 in 1795, and to 38,118,041 in 1804. Within five years after Whitney's invention cotton had displaced indigo as the great southern staple, and the slave states had become the cotton field of the world. In 1839 the export was 1,386. 468,562 pounds, valued at $161,434,923, and the next largest export (tobacco) was valued at but $21,074,038. Was it wonderful that southerners should say and believe that "cotton is king," and that secession could never be attacked by blockade, since the great commercial nations, even the free states themselves, would not thus allow themselves to be deprived of the raw material of manufacture? The reader may judge the reasonableness of the belief, and the magnitude of the temptations to English intervention, by the value of the English imports of cotton from the United States and elsewhere, 1861-3, and the coincident rise in price: imports from the United States, (1861) $132,851,995, (1862) $6,106,385, (1863) $2,300,000; from other countries, (1861) $65,034,990, (1862) $148,358,840, (1863) $213, 700,000; price per lb., (1861) 7 cents, (1862) 13¾ cents, (1863) 27½ cents. From a purely commercial and agricultural venture the cotton culture had taken a different aspect. Those who controlled it felt very much the same importance as a man might feel who had gained control of the magazine of a man of war, and could threaten to blow up the whole ship if he should be interfered with in any way.


—This development of the culture of cotton was pregnant with consequences to both sections. In the north, manufactures and commerce were developed, and the remnants of slavery slid to extinction down a steeper and smoother descent. In the south, the price of slaves was steadily increasing, and the increased profit thus indicated was steadily stamping labor itself as slavery. It is not in financial matters alone that bad money drives out good: wherever slave labor was extended, it tended constantly to expel free labor from the market. Immigration shunned slave soil as if by instinct, and it was not long before the whole population of the slave states was divided into three great classes: the rich whites, who did no work; the poor whites, who knew not how to work; and the slaves, who only worked when compelled to work. The results on the economical development of the country may easily be imagined. No one was under any special incentive to work, to invent, or to surpass his neighbors; slaves, the only working class, could not be trusted to engage in any labor requiring care or thought; success in anything higher than the culture of cotton, tobacco or sugar, meant the inevitable freedom of the laborer; and long before 1850 "southern shiftlessness" had become chronic, hopeless and proverbial, even in the south. The reader who wishes for details will find them (from the census of 1850) in von Holst's third volume, or in Sumner's speech of June, 1860. as cited below; and an instructive description of affairs in 1860 is in Olmstead's two volumes.


—Even on the culture of the soil the influence of the slave system was for evil. Only free labor can get large profits from a small surface, and the unwilling and unintelligent labor of slaves required so much larger area for its exercise that in 1850 there were to the square mile only 18.93 inhabitants in the southern states to 45.8 in the northern states. Slavery, like Tacitus' Germans, demanded empty acres all around it. In 1860 the acreage of improved to unimproved lands in Virginia was 11,437,821 to 19,679,215; in North Carolina, 6,517,824 to 17,245,685; in South Carolina, 4,572,060 to 11,623,859; and in Georgia, 8,062,758 to 18,587,732. The older slave states have been selected; in the new slave states the comparison is equally or more unfavorable. In the old free state of New York the comparison stood 14,358,403 improved to 6,616,555 unimproved; in the new free state of Illinois, 13,096,374 to 7,815,615. Of the free states, all but California, Iowa, Maine, Michigan, Minnesota, Oregon and Wisconsin had more improved than unimproved land in farms; of the slave states, only Delaware and Maryland. The comparison of the price of lands is still more unfavorable to slavery, varying in such near neighbors as Pennsylvania and Virginia from $25 per acre in the former to $8 per acre in the latter. The average value of northern farms in 1860 was $29 an acre; of southern farms, $9.80. This constant necessity for elbow room for slave labor was the ground reason for its constant effort to stretch out after new territory. A planter's policy was to take up as much land as possible, scratch the surface until his slaves could or would extract no more from it, and then search for virgin soil; for it was cheaper to pass the Mississippi, or invade Texas, than to cultivate a wornout farm with slave labor. Scientific agriculture, and the revivification of so-called worn-out farms, were never attempted until the overthrow of slavery; and, since they have begun, we hear no more of the need for new territory for cotton.


—The influence of slavery upon the section in which it existed was particularly evil in regard to the possibilities of warfare. Not only did it throttle commerce, manufactures, literature, art, everything which goes to make a people independent of the rest of the world: its influence in checking the natural increase of fighting men is plainly perceptible in the decennial census tables. Even when there is an apparent equality of numbers between the two sections, the equality is delusive, so long as the southern scale is partly filled with a population not only non-combatant but actually to be distrusted as possibly hostile. For this reason, in the following table, taking separately the states which were free and slave in 1860, the population of the free states is given first, then the population of the slave states (excluding slaves), and finally the slaves.


Table.  Click to enlarge in new window.


Whatever causes may be assigned to explain the growing disproportion of free population and fighting men of the two sections, it is evident that the slave states were worse fitted at the end of each successive period for a forcible struggle with the free states, and that the sceptre was departing from the south.


—It is not proposed in this article to touch on the moral aspect of slavery, or the absurd Biblical arguments for and against it. the rigid application of the partus sequitur ventrem rule, combined with the material interests of the cotton monopoly, will absolutely distinguish negro slavery in the United States from every system that has preceded it. We may summarize the economical evils of the system, in those points which no one can dispute, in a few words. It paralyzed invention and commerce; it prevented manufactures and the general introduction of railroads, steam machinery, or improved agricultural implements; it degraded labor by white as well as by black men; it stunted all the energies of the people, and deprived them of those physical comforts which were regarded elsewhere as almost necessaries; it dwarfed the military ability of the people, at the same time that it increased the military ambition of the ruling class, and kept the poor whites so ignorant that to them their state was a universe, its will sovereign, and its power irresistible. Every year increased the pile of explosives in the southern territory, and yet the force of events compelled slavery to grow more aggressive as it grew really weaker for war. That a people so situated, with no resources of their own and with little power to draw from without, should have waged the final war as they did, is almost enough to hide in the glory of their defeat the evil thing that went down with them. The enormous strides of the southern states from 1870 until 1880 show what the same people can do under free labor, and nearly all southern writers are agreed that the south was the greatest gainer by the overthrow of slavery. President Haygood, of Georgia, in a thanksgiving sermon of 1880, says: "For one illustration, take the home life of our people. There is ten times the comfort there was twenty years ago. Travel through your own country—and it is rather below than above the average—by any public or private road. Compare the old and the new houses. Those built recently are better in every way than those built before the war. I do not speak of an occasional mansion that in the old times lifted itself proudly among a score of cabins, but of the thousands of decent farm houses and comely cottages that have been built in the last ten years. I know scores whose new barns are better than their old residences. Our people have better furniture. Good mattresses have largely driven out the old-time feathers. Cook stoves, sewing machines, with all such comforts and conveniences, may be seen in a dozen homes to-day where you could hardly have found them in one in 1860. Lamps, that make reading agreeable, have driven out the tallow dip, by whose glimmering no eyes could long read and continue to see. Better taste asserts itself: the new houses are painted; they have not only glass, but blinds. There is more comfort inside. There are luxuries where once there were not conveniences. Carpets are getting to be common among the middle classes. There are parlor organs, pianos and pictures where we never saw them before. And so on, to the end of a long chapter. There are more people at work in the south to-day than were ever at work before; and they are raising not only more cotton, but more of everything else. And no wonder, for the farming of to-day is better than the farming of the old days, first, in better culture, second, in the ever-increasing tendency to break up the great plantations into small farms. Our present system is more than restoring what the old system destroyed."


—II. THE SYSTEM INTERNALLY. The Louisiana civil code (Art. 35) thus defines a slave: "One who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry and his labor; he can do nothing, possess nothing, nor acquire anything but what must belong to his master." This comprehensive definition will show the status of the slave and the rights of the master sufficiently to obviate the necessity of any full statement of the slave laws of the states. For these the reader is referred to the authorities cited below. As slavery rested on custom, its regulation was uniformly by statute, the constitution usually ignoring it, and leaving it wholly in the power of the legislature. Slavery was never mentioned in the state constitutions of Delaware, Maryland (until 1837), Virginia (until 1850), North Carolina (except a mere mention of slaves in 1835), South Carolina (except a qualification of negroes for membership in the legislature in 1790), or Louisiana. In the new states slavery was legalized by that provision of their constitutions which forbade the legislature to emancipate slaves without consent of their owners, or to prevent immigrants from bringing their slaves into the state: such provisions were inserted by Kentucky in 1792, Georgia in 1798, Mississippi in 1817, Alabama in 1819, Missouri in 1820, Tennessee in 1834, Arkansas in 1836, Maryland in 1837, Florida in 1838, Texas in 1836 and 1845, and Virginia in 1850; and these continued in force until the final abolition of slavery. Trial by jury for crimes above the grade of petit larceny was secured to the slave by the constitutions of Kentucky in 1799, Mississippi in 1817. Alabama in 1819, Missouri in 1820, and Texas in 1845, and by various statutes in Georgia, Tennessee, North Carolina and Maryland, but was denied in any case in South Carolina, Virginia and Louisiana. There were also provisions in most of the states for the punishment of the willful and deliberate murder of a slave. The benefit of both these provisions, however, was largely nullified by the universal rules of law that a negro's testimony could not be received against a white man, and that the killing of a slave who should resist "lawful authority" was justifiable homicide. As slavery grew more extensive the necessity for repressive legislation to act upon the slaves became more pressing, and the slave codes more severe, until every white person felt himself to be a part of a military force guarding a dangerous array of prisoners. Education of slaves was strictly forbidden, though this provision was frequently evaded or disobeyed in individual cases. The pass system was in full vigor everywhere, and even the younger girls of the master race did not hesitate to stop a strange negro on the road, examine his pass, or order him to a particular house for examination. It was a strange society, always on the alert, always with its hand on the sword, and cruel and evil things were done in it. The burning of negroes as a punishment for heinous offenses was not an uncommon thing, nor was it by any means the most shocking of the crimes in the punishment of which George Mason's prophetic words of 1787 were rigidly fulfilled. Many of the evils had a reflex influence upon the men of the dominant race; but the women, shielded from personal contact with most of the evil, and trained from childhood in the daily exercise of the heroic virtues, developed an unusual force of character, to which much of the stubborn endurance of the war was due, and even more of the sudden rejuvenation of the south after the war.


Black Codes, or Black Laws. These penal laws of the slave states had a very direct influence upon the legislation of several of the free states, particularly of those to which there had been a large southern migration. Ohio, in 1803, forbade negroes to settle in the state without recording a certificate of their freedom; in 1807 passed an act denying to negroes the privilege of testifying in cases in which a white man was interested on either side; and followed this up by excluding them from the public schools, and requiring them to give bonds for their good behavior while residing in the state. In 1849 these "black laws" were repealed as a part of the bargain between the democrats and free-soilers. (See OHIO.) The legislation of Illinois in 1819, 1827 and 1853, imitated that of Ohio, and in 1851 Indiana inserted similar provisions in her state constitution, which the state courts, in 1866, held to be void, as repugnant to the constitution of the United States. The same provisions were adopted by Iowa in 1851 by statute. and were made a part of the state constitution of Oregon in 1857. Wherever the state constitutions prescribed conditions of admission to the militia, as in Indiana in 1816, Illinois in 1818, Iowa in 1846, Michigan in 1850, Ohio in 1851, and Kansas in 1859, negroes were excluded; and in the states where the composition of the militia was left to the legislature the exclusion was as fully attained by statute. As a general rule, most of this legislation was swept away as rapidly as the republican party obtained complete control of each state, after 1856.


Insurrections. No slave race has organized so few insurrections as the negro race in the United States. This can hardly be due to the natural cowardice of the race, for its members have made very good soldiers when well organized; nor to the exceptional gentleness of the system, for it was one of increasing severity; nor wholly to the affection of the negroes for their masters, for the great plantation system, under which there could be little affection on either side, had been fairly established in 1860. and yet there was no insurrection throughout the rebellion. It is encouraging to believe that the race, by long contact with the white race, has imbibed something of that respect for law which has always characterized the latter, so that the negroes, however enterprising when backed by the forms of law, patiently submitted to legal servitude. It is certain that revolt, during their history as slaves, was regularly individual, and that most of it was only revolt by legal construction. In 1710 a negro insurrection is said to have been planned in Virginia, but it was balked by one of the conspirators, who revealed the plot, and was rewarded by emancipation. In 1740 a local insurrection broke out in South Carolina, but it was stamped out instantly by the militia. In New York a negro plot was unearthed in February and March, 1741, and as a consequence of the intense popular excitement a number of negroes and whites were hung. and several negroes burned, but the whole story of the "conspiracy" seems now of the flimsiest possible construction. In 1820 Denmark Vesey, a St. Domingo mulatto, organized a negro insurrection in Charleston. It was revealed, Vesey and thirty-four others were hung, and a like number were sold out of the state. In August. 1831. the most formidable of all the insurrections broke out in Southampton county, near Norfolk, Virginia, led by Nat Turner. He believed that he had been instructed by Heaven, three years before, to rebel, the sign being an eclipse of the sun in February, 1831, but, oppressed by a sense of the greatness of the task, he fell sick, and did not begin until August. With fifty associates he then began a massacre of the whites, sparing neither age nor sex. The insurrection was at once suppressed, and Turner, after several weeks' concealment, was captured and executed in November. The total loss of life was sixty-one whites and over a hundred negroes. The Seminole war in Florida partook very much of the character of a negro insurrection. While Florida was under Spanish rule, very many fugitive slaves had taken refuge there and intermarried with the Indians; and the desire of reclaiming them was the secret of many of the Indian difficulties of that region. In 1816 American troops blew up the "negro fort" on the Appalachicola, which was the headquarters of the fugitives. On the annexation of Florida (see ANNEXATIONS, II.), slave hunting increased in eagerness, and the fugitives were pursued into the everglades. In 1833 the Seminoles had about 200 slaves of their own and 1,200 fugitives. One of the latter, the wife of Osceola, was seized while trading at Fort King, and her enraged husband at once began open war. It was conducted with inhuman cruelty on both sides, the most prominent example being the massacre of Major Dade's command, Dec. 28, 1835. The American commanders hardly ever made any secret of the great object of the war, the recapture of the fugitives; and, as the Seminoles refused to make any treaty in which the fugitives were not included, the war was long and expensive. In 1845 a treaty was arranged for the removal of both Seminoles and fugitives beyond the Mississippi, but the claimants pursued the latter with every form of legal attack, secured some of them, and, in 1852, obtained payment from congress for the remainder. The Harper's Ferry insurrection (see BROWN, JOHN) closed the list of negro revolts.


—III. THE SYSTEM EXTERNALLY; THE SLAVE TRADE. 1. Foreign Slare Trade. It has long been a general belief that the colonies, before the revolution, were anxious to prohibit the slave trade, but were prevented by the crown's instructions to the governors to veto any such laws; and the Virginia declaration of June 29, 1776, denounces the king for "prompting our negroes to rise in arms among us, those very negroes whom, by an inhuman use of his negative, he had refused us permission to exclude by law." The case is complete enough against the crown. From the time of Hawkins' slaving cruise in 1562 the British government was an active partner in the slave trade. By the treaty of Utrecht, in 1713, it secured for one of its monopolies the slave trade from Africa to the West Indies; in 1750 it beneficently threw open the trade to all its subjects; and its consistent policy is well stated in the official declaration of the earl of Dartmouth in 1775. that "the colonies must not be allowed to check or discourage in any degree a traffic so beneficial to the nation." But it is not so easy to clear the skirts of the colonies. The assertion of their desire to suppress the trade rests on the passage of a great number of acts laying duties upon it: the titles of twenty-four of these acts in Virginia are given in Judge Tucker's Appendix to Blackstone. But almost invariably these acts were passed for revenue only, and the Virginia act of 1752 notices in its preamble that the duty had been found "no ways burdensome to the traders." It was not until the opening of the revolution that any honest effort was made to suppress the trade, except in Pennsylvania, where bills to abolish the slave trade were passed in 1712, 1714 and 1717, and vetoed. The Massachusetts general court passed a bill to prohibit the slave trade, March 7, 1774, and another, June 16 following; but both were vetoed. It was prohibited further by Rhode Island in June, 1774; by Connecticut in October, 1774; and by the non-importation covenant of the continental congress, Oct. 24, 1774, as follows: "We will neither import nor purchase any slave imported after the first day of December next, after which time we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it." This covenant, ratified by the states, north and south, checked the trade for the time. No further attempt was made by congress to interfere with the trade, and the ratification of the articles of confederation in 1781 gave the states the power to regulate this and all other species of commerce.


—In the formation of the constitution the question of the regulation of the slave trade offered a great difficulty. The three southern states demanded its continuance, alleging that Virginia and Maryland desired to prohibit it only to secure a domestic market for their own surplus slaves. The matter was compromised (see COMPROMISES, III.) by allowing congress to prohibit it after 1808. In the meantime the act of March 22. 1794, prohibited the carrying of slaves by American citizens from one foreign country to another; the act of May 10, 1800, allowed United States war vessels to seize ships engaged in such trade, and the act of Feb. 28, 1803, prohibited the introduction of slaves into states which had forbidden the slave trade by law. Virginia had done so by statute in 1778 and 1785, Georgia by constitutional provision in 1798, South Carolina by statute in 1787 (repealed in 1803), and North Carolina by statute in 1798. Finally, congress, by act of March 2, 1807, prohibited the importation of slaves altogether after the close of the year; the acts of April 20, 1818, and March 3, 1819, authorized the president to send cruisers to the coast of Africa to stop the trade; and the act of May 15, 1820, declared the foreign slave trade to be piracy. It can not, however, be truly said that the slave trade was abolished: it never really ceased before 1865. The census of 1870 assigns Africa as the birthplace of nearly 2,000 negroes, and it is impossible even to estimate the number illegally imported from 1808 until 1865. The sixth section of the act of March 2, 1807, allowed negroes confiscated under the act to be disposed of as the legislature of the state might direct; and southern legislatures promptly directed the sale of the confiscated negroes. This absurd section, which introduced slaves into the south, while punishing the importer, was repealed March 3, 1819, and the confiscated negroes were ordered to be returned to Africa. The claim of British naval officers on the African coast to visit and search vessels flying the American flag, but suspected of being slavers, was steadily resisted by the American government, and led to an infinite variety of diplomatic difficulties and correspondence, which the reader will find detailed in William Beach Lawrence's volume, cited below. It was finally compromised by articles eight and nine of the Webster-Ashburton treaty, Aug. 9, 1842, by which the two governments agreed to maintain independent squadrons on the African coast, to act in conjunction. Difficult as this made the slave trade, it by no means suppressed it; and, as the price of negroes in the south rose higher, importations increased, and so did the difficulties of obtaining convictions from southern juries. The most notorious case was that of the Georgia yacht Wanderer, in December, 1858, but it was not the only one. According to the "Evening Post," of New York city, 85 vessels were fitted out from that port for the slave trade during eighteen months of 1859-60, the names of the vessels being given; and another newspaper of the same city estimated the cargoes introduced by these New York vessels alone at from 30,000 to 60,000 negroes annually. Said a Georgia delegate in the Charleston convention of 1860: "If any of you northern democrats will go home with me to my plantation I will show you some darkies that I bought in Virginia, some in Delaware, some in Florida, and I will also show you the pure African, the noblest Roman of them all. I represent the African slave trade interest of my section." In 1858 an ingenious attempt was made to evade the law. A Charleston vessel applied for a clearance to the African coast "for the purpose of taking on board African emigrants, in accordance with the United States passenger laws." Howell Cobb, secretary of the treasury, refused to give the clearance.


—As we approach the year 1860 we find growing apprehensions of the reopening of the foreign slave trade. It must be remembered that congress was only permitted not directed, to abolish the trade after 1808, and that a simple repeal of the law of 1807 would have made it as legal as any other branch of commerce. The inherent weakness of the system of slavery, which grew weaker as it widened, imperatively demanded the repeal. To retain political power it was necessary to introduce the custom of slavery into the new territories in order to prepare them to be slave states. For this the domestic supply would not suffice; and Alex. H. Stephens, in his farewell speech to his constituents, July 2, 1859, says that his object is "to bring clearly to your mind the great truth that without an increase of African slaves from abroad, you may not expect or look for many more slave states." The repeal of the law of 1807, and the revival of the foreign slave trade, were advocated by the southern commercial convention in 1858 and 1859, by De Bow's "Review," and by a great and growing number of leading men and newspapers. It was even taking the aspect of a new phase of a distinct southern political creed, an effort to repeal that which was a standing condemnation of slaveholding and slaveholders. Before anything definite could be attempted, secession intervened. The constitution of the confederate states forbade the foreign slave trade, and "required" congress to pass such laws as should effectually prevent the same. How long this prohibition would have endured, if independence had been achieved, can not be conjectured, but it is certain that a slaveholding government would have found far more difficulty in enforcing such a prohibition than the government of the United States had found.


—2. The Domestic Slave Trade. Even barring secession and rebellion, negro slavery had always a possible danger in the undoubted power of congress to regulate commerce "between the states." Should this power ever find a majority in congress ready to apply it in an unfriendly spirit to the sale of slaves from state to state, and thus to coop up each body of slaves in its own territory, the system would be injured in a vital point. For this reason the ninth section of the act of 1807 allowed the transfer of slaves from point to point along the coast in vessels of not more than forty tons burden. After the abolition of slavery in the British colonies, American coasting vessels with slaves on board would occasionally be forced by stress of weather into British West India ports, when the authorities at once liberated the slaves. Diplomatic complications followed, of course; but the British government steadily refused to pay for the slaves liberated, except in cases which had occurred before the abolition of slavery in the colonies. (See CREOLE CASE, and the authorities there cited for the other cases.) The domestic slave trade by land was never interfered with until the abolition of slavery, except by the unavoidable operations of war during the rebellion. A bill was introduced by Sumner in 1864 to prohibit it, but it came to nothing. A bill to repeal the sections of the act of 1807 permitting the coastwise slave trade was added as a rider to an appropriation bill, and became law July 2, 1864.


—IV. THE SUFFRAGE CLAUSE AND THE "SLAVE POWER." The constitution (see COMPROMISES, I.) gave to the states in which slavery existed legal representation in the lower house of congress for three-fifths of their slaves. In this provision there was innate an influence which was as potent on the political aspect of the slave system as the cotton culture was upon its material aspect. It must be remembered, that, in spite of the number of slaves in the south, slave owning was not at all general in that section. In 1850 the white population of the south was 6,459,946, and De Bow, superintendent of the census, and a proslavery southerner, gives the number of slaveholders as only 347,525, classified as follows, holders of 1 slave, 68,820; 2 to 5 slaves, 105,683; 6 to 10 slaves, 80,765; 11 to 20 slaves, 54,595; 21 to 50 slaves, 29,733; 51 to 100 slaves, 6,196; 101 to 200 slaves, 1,479; 201 to 300 slaves, 187; 301 to 500 slaves, 56; 501 to 1,000 slaves, 9; over 1,000 slaves, 2. But even this statement, De Bow admits, has an element of deceptiveness, for most of the small holders were not slave owners, but slave hirers; and he estimates the actual number of slave owners at 186,531. In 1830, 90 of the 234 members of the house of representatives were apportioned to the slaveholding states. If we omit from their population three-fifths of the number of their slaves in 1830, they would have been entitled in round numbers to but 70 representatives. The other 20 members represented only the 186,531 slave owners, and the loosest examination of the majorities by which bills passed the house of representatives during the anti-slavery conflict will show that the introduction of these 20 votes was usually the decisive factor down to 1855. This consequence was apparent from an early date. The repeal of the suffrage clause was demanded in 1814 (see CONVENTION, HARTFORD); and the demand grew still stronger after 1833, and never failed to excite the hottest wrath of southern members. Perhaps the occasion which roused the most intense feeling was the presentation by John Quincy Adams in congress, Dec. 21, 1843, of a formal proposal from the democratic legislature of Massachusetts to amend the constitution by repealing the three-fifths clause. In congress it was denounced unsparingly, and refused the privilege of printing, and out of congress the fervor of denunciation was unreportable.


—But the direct operation of the three-fifths clause was far less than its indirect influence. It must be remembered that the 200,000 slave owners necessarily included in their ranks almost all the governors, judges, legislators, and leading men of the slave states, and their senators and representatives also, since the purchase of one or more slaves was the first step of any man who began to acquire wealth; and that all these men were united by a common purpose, the protection of property, which was superior in its every-day operation to almost any other claim. Practically, then, the 200,000 slave owners, recruited from time to time by new accessions, formed a dominant class; and the ninety representatives and thirty senators (in 1850) not only represented them, but were selected from their number. Such a political force as this had never before appeared in American politics: the utmost conceivable evils of the influence of corporations must pale their fires before it; and it is no wonder, that, as it rose gloomier and more threatening upon the southern sky, the instinctive political sense of the people gave it the name of the "slave power." In the nature of things this power could not be conservative: it must be aggressive, for the interest represented by it demanded extension to obtain profit; and yet, as it grew wider, it grew weaker, and needed still warmer support. The general, double-acting rule was: the more slaves, the more territory; the more territory, the more slaves. It was not in human nature for the men who made up the slave power to resist an influence so constant, so natural, so silent and so powerful, and the vicious twist given by it to the whole southern policy grew stronger yearly. No influence, even that of honor, could resist its undermining or escape being argued away. It was progressively successful in transplanting the custom of slavery beyond the Mississippi, in swinging the whole force of the nation upon Mexico for the acquisition of new slave territory, and in violating the condition precedent on which it had obtained the admission of Missouri as a slave state; and it was partially prepared in 1861 to shock the conscience of civilization by reopening the foreign slave trade, to whose suppression the good faith of the nation was pledged. But, before this last effort could be made, its time had come. The internal defects of the combined cotton-slave system could not remain stationary. Nothing is more certain than that, from 1850 to 1860, the number of slave owners was diminishing, particularly in the gulf states, the plantations were growing larger, the cotton culture was becoming less and less patriarchal and more and more of a business, and the slave power itself was growing more compact, grasping and reckless. It might have been that, without secession, this concentrating process would have gone on until the non-slaveholding whites of the south would have united against it; but that possibility was never tried. In 1860 the rising anti-slavery tide of the north and west came into flat collision with the rising tide of the slave power, and equilibrium was at last restored by violence.


—It was not alone the inherent grasping nature of the slave power which affronted the non-slave-holding states and helped to bring about the final catastrophe. It is no reflection upon southern legislators of the present to say that the slave-holding member of congress until 1861 was in general an exceedingly unpleasant personage. His faults of thought, feeling, expression and manner, were long ago explained by Jefferson. "If a parent had no other motive, either in his own philanthropy or in his self-love, for restraining the intemperance of passion toward his slave, it should always be a sufficient one that his child is present. But generally it is not sufficient. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose rein to his worst passions, and thus nursed, educated and daily exercised in tyranny, can not but be stamped by it with odious peculiarities." However unjust it may be in theory to wage a political crusade against bad manners, it is as certain as anything can be that the political union of the free states in 1860 was largely brought about by the "odious peculiarities" of slaveholding members of congress in debate. Their boisterous violence, their willingness to take liberties of language, contrasted with their unwillingness to allow the same liberty to opponents, their disposition to supplement discussion with actual violence or threats of it, the indescribable and merciless assumption of an acknowledged superiority, made the debates of 1850-60 a shameful record, and are still remembered by their old opponents, with a certain soreness, as "plantation manners." It was bad enough that a senator should be clubbed into unconsciousness for words spoken in debate (see BROOKS, P. S.); it was, if anything, worse that his first speech on his return to the senate should be answered by a South Carolina senator with the remark that "we are not inclined again to send forth the recipient of punishment howling through the world, yelping fresh cries of slander and malice." Southern writers will never fully understand the election of 1860 until they come to study, in the light of the new training, the debates which preceded it.


—A power so situated, in a constantly weakening minority in the nation, and yet supreme in influence in its own states, was necessarily particularist in theory. Where it ruled, the forefathers had said state sovereignty and meant state rights, while their descendants said state rights and meant state sovereignty. (See that title.) And the development of the great cotton interest made state sovereignty even worse than it was by nature: instead of the jarring and comparatively innocuous demands of state sovereignty, it banded together a number of states by a common controlling interest, and evoked the deadly peril of sectional sovereignty. (See NULLIFICATION, SECESSION.) State rights could never have caused a blow; even state sovereignty would have died a harmless and natural death; but slavery and sectional state sovereignty each so acted and reacted upon the evil points of the other that the combined tumor was at last beyond reach of anything but the knife. But, during its existence, slavery never hesitated upon occasion to drop state sovereignty for the time, and use the nation and the national idea as political forces for its advancement; and yet it never did so, except in the case of the acquisition of Florida, without injuring itself. In its infancy it acquired the territory west of the Mississippi (see ANNEXATIONS, I.) by a process which was only defensible on the ground that the powers of the government were given by a nation, and not by sovereign states; and out of this territory grew its subsequent difficulties. (See COMPROMISES, IV.; KANSAS NEBRASKA BILL.) It flung the nation upon Mexico, and the disputes over the territory thus acquired first put the antislavery sentiment into political shape. It forced the passage of a fugitive slave act fatally adverse to state sovereignty and state rights in compensation for the admission of California as a state (see COMPROMISES, V.; FUGITIVE SLAVE LAWS), an act whose operation made its moving power the object not only of dread but of abhorrence in the free states. Finally, by transferring theoretical state sovereignty into practical secession, it compelled such an extensive showing of national power that the effects will be felt for generations to come.


—V. SLAVERY IN TERRITORIES AND NEW STATES. It is certain that slavery in the original states was founded on custom only, and the same foundation, if any, must be found for slavery in territories and new states. The modern states of Kentucky and Tennessee, for example, were never colonies or territories of their parent states: they were integral parts of Virginia and North Carolina, and the custom of slavery was established at Nashville or Harrodsburgh on just the same basis as at Beaufort or Richmond. When their separation from the parent states took place, the custom of slavery remained, and they entered the Union as slave states. Granting that no opposition to slavery was felt by the nation at large, the same process might have been repeated anywhere, and custom, unopposed, might have made any territory slave soil, and brought it into the Union as a slave state. It is, therefore, impossible to admit fully the dogma, so popular and useful in the anti-slavery conflict, that the national territory was free soil without any statutory enactment. It might be free, and it might be slave, according to custom. In the cases of Kentucky, Tennessee, Mississippi and Alabama, the cessions of their territory were accepted by the United States from Virginia, North Carolina, South Carolina and Georgia, under a pledge not to interfere with the existing custom of slavery. The rights of all these states to the territory which they professed to cede, like the rights of New York, Connecticut and Massachusetts to the northwestern territory, were exceedingly doubtful (see TERRITORIES, I.); nevertheless, the pledge was honorably fulfilled.


—The slaveholding states always denied that any act of congress could prohibit the custom of slavery in a territory. But this is as impossible of acceptance as the free soil dogma above stated. The territories were certainly not without law. Their inhabitants were not the law-making power, for then there would have been no distinction between territories and states. On any other subject than slavery, no one, in court or congress, denied that congress was the law-maker for the territories. But slavery was only a custom; and, while no one denies that a custom is valid until abrogated by statute, this has been the only case in which it has been seriously asserted that any custom is above and beyond abrogation by statute. So evident was this in 1787 that the ordinance of that year (see ORDINANCE of 1787) abolished slavery in the territory northwest of the Ohio, in whose case no restraining pledge had been given. The articles of confederation, which were then in force, gave congress no power to so prohibit slavery, or, indeed, to hold or govern territory at all. The whole act was so obviously a consequence of the national power to hold and govern its own territory, and was so plain a parallel to the proposal to similarly prohibit slavery in the Mexican annexations (see WILMOT PROVISO), that southern writers have endeavored to avoid it in two ways: 1. They assert that the ordinance was merely an expression of the will of the several states, a new article of confederation, so to speak. This is impossible. The state vote on the ordinance of 1787 was indeed unanimous, but this fact has no bearing on the matter, for the ordinance of 1784, which covered much the same ground (excepting the prohibition of slavery), was not adopted by unanimous vote, South Carolina voting in the negative, and yet its validity was never impeached on that account. Further, the articles of confederation were to be amended by state legislatures only: however we may admit the power of a national convention to override them, we can hardly acknowledge the power of congress itself to amend them. 2. Judge Taney, in the Dred Scott decision, holds that the ordinance of 1787 "had become inoperative and a nullity upon the adoption of the constitution." If this was so, and if it was true, as the same decision holds, that the power of congress to "make all needful rules and regulations" for the territory of the United States was intended to be confined to the territory then owned by the United States, and not to be extended to territory subsequently acquired, the fugitive slave law of 1850 was in a large degree unconstitutional. It was based on the fugitive slave clause of the constitution: but this only allowed the reclamation of slaves from one state to another state. (See FUGITIVE SLAVE LAWS.) During the territorial existence of the northwest the ground was covered by this proviso to the prohibition of slavery by the ordinance of 1787: "provided always that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." If the power to make "rules and regulations" for the territories only applied to the territory owned in 1789, and was intended to supply the place of the fugitive slave clause in the superseded ordinance of 1787, it follows that the fugitive slave law of 1793 exhausted the constitutional powers of congress to provide for the reclamation of fugitive slaves to a territory. All the trans-Mississippi territory was subsequently acquired; and, if the Dred Scott decision was correct, the fugitive slave law of 1850 was unconstitutional in providing for the reclamation of fugitive slaves from it. The consequence must have been that the trans-Mississippi territories, whether slavery were allowed or prohibited in them, would have been a sort of Alsatia, a safe refuge for fugitive slaves; and slavery would have been at a greater disadvantage than under the ordinance of 1787.


—The custom of slavery was already in existence in Louisiana and Florida at the time of their annexation, but the responsibility for its enlargement is directly upon congress. The act of March 26, 1804, provided that no slaves should be introduced into the territory, except "by a citizen of the United States, removing into said territory for actual settlement, and being at the time of such removal bona fide owner of such slave or slaves"; and the act of March 30, 1822, while forbidding the importation of slaves from without the United States, by implication allowed the domestic slave trade. Both acts confirmed the laws then in force in the territories, and not inconsistent with the acts; and as the territorial laws recognized slavery, it continued in force, and Louisiana and Florida entered the Union as slave states. Upon the admission of Louisiana as a state, the continuance of the custom of slavery in the rest of the purchase was practically provided for by the sixteenth section of the act of June 4, 1812, continuing the territorial laws of Louisiana in the new territory of Missouri. Again, when the new territory of "Arkansaw" was created by the act of March 2, 1819, a similar provision continued in the new territory the laws of Missouri, which recognized slavery. The consequences of this long laches, this omission of congress to prohibit the custom of slavery, which had been recognized by French, Spanish and territorial law, had now become apparent in the application of Missouri for admission as a slave state, and the tardy attempt in congress to attack the evil raised a political storm. On the one hand, since the new state had not the ability to compel a recognition of its existence, its recognition was clearly a matter of favor, on which congress could impose such conditions as it should consider needful. On the other, it was hardly just that congress should permit the existence of even an evil custom during its own responsibility for government, and only undertake to abolish it at the instant of giving the state professed self-government. The settlement of the case is elsewhere given (see COMPROMISES, IV.); it resulted in the abolition of slavery in the rest of the Louisiana purchase, above 36° 30' north latitude, and the admission of Missouri as a slave state. As there was no abolition of the custom of slavery in the territory of Arkansas, we must consider the custom left still in existence there. On the application of Arkansas for admission as a slave state in 1836, there were some symptoms of a renewal of the Missouri struggle; but John Quincy Adams and other anti-slavery men agreed that the admission of Arkansas was fairly nominated in the Missouri bond, and the state was admitted. At the same session an increase in the area of Missouri (see that state) made a considerable addition to the slave soil of the United States. Here the extension of slavery stopped, with the exception of the admission of Florida and Texas as slave states in 1845. (See ANNEXATIONS, III.) The area of Texas had been free soil under the decree of Guerrero, the Mexican dictator, in 1829, afterward ratified by the Mexican congress; and slavery is not recognized in the constitution of the Mexican state of Coahuila and Texas, or in the provisional Texas constitutions of 1833 and 1835. But American settlers had brought their slaves with them, and fairly introduced the custom of slavery; and the constitution of 1836 formally declared all persons of color slaves for life, if they had been in that condition before their emigration to Texas, and were then held in bondage. This, though the state was not in the Union as yet, was the only instance of the professed establishment of slavery by the organic law of an American state, unless we are to take the Massachusetts code of 1641 as the first. The basis of the system is clearly expressed in a section of the Kentucky constitution of 1850, as follows: "The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever." It was no more necessary, then, to declare a constitutional right of property in the case of slaves than in the case of horses. in both cases the legislature was to accept and defend the right without question. A slave state was regularly declared such, at its admission, only by the provision forbidding the legislature to emancipate slaves without consent of owners, or to forbid the domestic slave trade.


—As slavery reached the limits of its state extension in 1845, it only remains necessary to recur to its attacks upon the territories. Here the customary basis of slavery makes manifest the weakness of the claims for its extension after 1845. It is one thing to acknowledge the validity of a recognized and unopposed territorial custom in Louisiana, Missouri and Arkansas: it is a very different thing to admit, as pro-slavery advocates required, that the custom could not be abolished by statute, or prohibited where it did not exist. Nevertheless, in this respect, the compromise of 1850 (see COMPROMISES, V.) gave the slave states all they then asked. It refrained from prohibiting the custom, and gave the territorial legislature a general right of legislation, subject, of course, to the veto power of congress. But this last was now a meaningless form: it was impossible to obtain the passage of an act by congress and the president, annulling a territorial law recognizing slavery. Congress practically gave loose reins to the territorial legislatures, and they took advantage of it. New Mexico (then including Arizona) passed an act in 1851 recognizing peonage, or white slavery, and another in 1859 recognizing negro slavery; and Utah (then including Nevada) passed an act in 1852 maintaining the right of slaveholding immigrants to the services of their slaves. None of these acts was annulled until 1862. (See WILMOT PROVISO.) The Kansas-Nebraska bill (see that title) in 1854 went a stép further. It took off the Missouri prohibition of 1820, and allowed the introduction of the custom into all the territories. It is at least doubtful, leaving out the good faith of the repeal, whether a custom could properly be introduced in that way; but the climax of doubtfulness was reached when the Kansas struggle showed that the custom had no chance of practical introduction in that territory. The pro-slavery claim (see DRED SCOTT CASE; DEMOCRATIC PARTY, V.; COMPROMISES, VI.) was then advanced that both congress and the territorial legislatures were bound to defend slavery in the territories. If negro slavery was based on custom, and not on organic law, this claim was certainly a novelty in jurisprudence. We can easily understand the recognition or the prohibition of a custom by statute, but the establishment of a custom by statute is beyond conception. Yet this is the sum of the southern demand, when divested of verbiage and reduced to its real essence; and secession was based on the refusal of the demand.


—For the political influence of slavery, see DEMOCRATIC PARTY, WHIG PARTY, AMERICAN PARTY, REPUBLICAN PARTY. For the extinction of the system, see ABOLITION, EMANCIPATION PROCLAMATION.


—See, in general, Williams' History of the Negro Race; Wilson's Slave Power in America; Hildreth's United States; von Holst's United States; Kapp's Geschichte der Sklaverei; 1 Draper's History of the Civil War; Jay's Miscellaneous Writings on Slavery; Cobb's Historical Sketch of Slavery; Goodell's Slavery and Anti-Slavery; Nott's Slavery and the Remedy; Weston's Progress of Slavery; and, on behalf of slavery, The Pro-Slavery Argument, including Hammond's Letters on Slavery, and Dew's Review of the Virginia Debate of 1832; Adams' South Side View of Slavery; Fitzhugh's Sociology for the South; and Sawyer's Southern Institutions.—(I.) 3 Bancroft's United States, 415; Hildreth's Despotism in America; Hurd's Law of Freedom and Bondage; H. Sherman's Slavery in the United States; Stroud's Laws of Slavery; Goodell's American Slave Code; Poore's Federal and State Constitutions; authorities under the states named, particularly Moore's Slavery in Massachusetts; Ambler's (Chancery) Reports, 76; 11 State Trials, 340, and Lofft's (K. B.) Reports, 1 (Sommersett case); Livermore's Historical Research on Negroes; 5 Elliot's Debates, 392; Jefferson's Notes on Virginia (edit. 1800), 164; 1 Bishop's History of American Manufactures, 355, 397; Pitkin's Statistical View of American Commerce, 110; Cotton is King (1855); Kettell's Southern Wealth and Northern Profits; Turner's History of Cotton and the Cotton Gin (1837); Donnell's History of Cotton (1872); 3 von Holst's United States, 563; 5 Sumner's Works, 1, or Lester's Life of Sumner, 311; Helper's Impending Crisis; Olmstead's Cotton Kingdom; Census Reports, 1850-70; King's The Great South (1875); Haygood's The New South (1880).—(II.) The general authorities; the first seven authorities under preceding section; Horsmanden's New York Negro Plot of 1741; Atlantic Monthly, June, 1861 (Vesey), August, 1861 (Turner); Giddings' Exiles of Florida.—(III.) Clarkson's History of the Slave Trade, 52; Copley's History of Slavery, 113; Andrews' Slavery and the Domestic Slave Trade; Carey's The Slave Trade, Domestic and Foreign; 1 Draper's History of the Civil War, 418; Foote's Africa and the American Flag; Continental Monthly, January, 1862 (Slave Trade in New York); 2 Tucker's Blackstone, Appendix, 49: 1 Journals of Congress, 24; 1 Stat. at Large, 847 (act of March 22, 1794); 2 Stat. at Large, 70, 205, 426 (acts of May 10, 1800, Feb. 28, 1803, and March 2, 1807); Quincy's Life of Quincy, 102; 3 Stat. at Large, 450, 533, 600 (acts of April 20, 1818, March 3, 1819, and May 15, 1820); W. B. Lawrence's Visitation and Search; Cleveland's A. H. Stephens in Public and Private, 647; Sprott's Foreign Slave Trade.—(IV.) The general authorities; Cairnes' The Slave Power; 2 Olmstead's Cotton Kingdom, 192; Census Report, 1850.—(V.) 1 Stat. at Large, 106, and 2 ib., 70, 235 (cessions by North Carolina and Georgia); 4 Journals of Congress, 380 (ordinance of 1784); authorities under ORDINANCE OF 1787; Fisher's Law of the Territories; 2 Benton's Debates of Congress, 221, and 16 ib. (index under Slavery); for the acts in regard to the states and territories, see authorities under their names.


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