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Henry Sherman.

Slavery in the United States of America; its national recognition and relations, from the establishment of the confederacy, to the present time. A word to the North and the South online

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SLAVEKY



IN THE



UNITED STATES OF AMERICA;

ITS NATIONAL RECOGNITION AND RELATIONS,



FROM THE



ESTABLISHMENT OF THE CONFEDERAC%

TO THE

PRESENT TIME.



A WORD TO THE NORTH AND THE SOUTH.



BY HENRY SHERMAN,
it

COUNSELLOE AT LAW.



" Then I thought that Conciliators were but ignorant men, that were will-
ing to please all, and would pretend to reconcDe the world by principles which
they did not understand themselves ; I have since perceived, that if the amiable-
ness of peace and concord had no hand ia the business, yet greater light, and
stronger judgment, usually are with the Reconcilers, than with either of the
contending parties." — Richard Baxter's revieiv of his early opinions.



SECOND EDITION.

HARTFORD:
HURLBURT & POND, PUBLISHERS.

1860.






*>

<* - '



Entered according to the Act of Congress, in the year 1858, by
HENRY SHERMAN,

In the Office of the Clerk of the District Court of the United States,
for the District of Connecticut.



CASE, LOCKWOOD AND COMPANY. PRINTERS.






TO



THE FRIENDS OF
THE SUPREMACY OP OUR NATIONAL SOVEREIGNTY,



AND

OUR NATIONAL SOVEREIGNTY IN ITS SUPREMACY,

THE

TRUE FRIENDS OF
THE UNION, OF FREEDOM, AND HUMANITY,
THIS VOLUME
IS FRATERNALLY INSCRIBED BY

THE AUTHOR.



PREFACE



I HAVE long thought that the more modern controversies
on the subject of Slavery, which have obtained in this
country, have originated mostly in the absence of a just
and proper understanding and appreciation of the The-
ory of our Government in its National, State, and Ter-
ritorial relations, under the Constitution, and the changes
which these have undergone by the extension of our Na-
tional domain and jurisdiction beyond tlie anticipations and
calculations of its framers. In preparing this work for the
press, I have endeavored to develope these relations and
changes in their complicity with this agitating topic, with
a view to a more general understanding of it, and a more
harmonious acquiesence in the privileges, as well as the
restraints, of which it has been made the subject.

The Earl of Chatham, standing in his place in the Brit-
ish House of Lords to oppose the aggressions of Ministry
upon the rights of the American Colonies, in 1775, made
the memorable and truthful declaration — " In every free
State it is the Constitution, and the Constitution only, which
limits both Sovereignty and Allegiance. This doctrine is



A*



VI PREFACE.



no temporary doctrine taken up on particular occasions, to
answer particular purposes. It is involved in no meta-
physical doubts and intricacies, but is clear, precise, and
determinate. It is recorded in all our Law books. It is
written in the great Volume of Nature."

In this country, there are those who say with General
Walker, in his letter of resignation, addressed to Secretary
Cass, — " The Constitution is not Sovereign because it is
created by Sovereignty. With us Sovereignty rests exclu-
sively with the people of each State. — The National Gov-
ernment is not Sovereign, much less any department of
that Government, for the same reason."

And again, there are those whose views are expressed
by General Lane, in a letter from the Territory of Kansas,
January, 1858, wherein he says — "I suppose you know
that the feeling here is strong against any Congressional
Enablino; Act. We want no interference with our affairs
by Congress ; feeling that we are fully competent to settle
these matters ourselves. We want to be let alone."

And again, there are others still, who cherish the senti-
ment of Lord Chatham. Now, exclusively of all partizan
feeling on the subject, it is evident that the doctrine enun-
ciated by the latter, is directly at variance with that
maintained by either of the other class of thinkers. Yet
it contains that great principle of freedom, the violation of
which caused the Revolution of 1688, in England, whose
results were the overthrow of the doctrine of the Divine
Right of Kings, the recognition of the people as a source
of Sovereignty in the State, and the establishment of the
Crown on the heads, and the succession in the line, of



PREFACE. VH



William and Mary, Prince and Princess of Orange, by
act of Parliament, by Law, in 1690. In other words, it
gave birth to the Free Constitution of Great Britain,
to which the Earl of Chatham refers.

Just one century after this, the American Revolution
inaugurated the greater triumph of the same principle of
Freedom, in the establishment of a freer Government and
Sovereignty, called the United States of America, under a
freer Constitution, which was finally ratified by all of the
States in 1790.

Both of these Constitutions were founded upon the
principle that there can be 'no allegiance where there is no
Sovereignty. And that where there is Sovereignty, there
must of necessity be allegiance. If then " with us. Sover-
eignty rests exclusively with the people of each State,"
where rests allegiance ? Does the State owe allegiance to
the people, or do the people owe allegiance to the State ?
Do the people owe allegiance to the Constitution, or the
Constitution to the people ? Or do the people, in their
exclusive Sovereignty, owe allegiance only to themselves ?

With us, there is a National Sovereignty, and there is
also a State Sovereignty. There are State Constitutions
which limit both Sovereignty and Allegiance in the State ;
And there is a National Constitution which limits both
Sovereignty and Allegiance in the United States. Each
has its particular, appropriate, and necessary sphere of
action. Either may claim and enforce the particular,
appropriate, and necessary Allegiance which is its due.
With us there are no Territorial Constitutions.

Allegiance in a State, is submission to the Supreme



Vlll PREFACE.



power of the State within the limits of its jurisdiction.
Allegiance in a Nation composed of Confederated States,
and dependent Territories, is submission to the Supreme
power of the National Sovereignty within the sphere of its
jurisdiction. In either case, both Sovereignty and Alle-
giance are limited by the Constitution, and by the Consti-
tution only. In either case, it is not for the people to dis-
claim or withold their allegiance because,, perchance, they
were parties to the Compact which limits and defines the
Sovereignty. With us, even the States in their Sovereign
capacity owe a certain allegiance to the National Suprem-
acy, which allegiance is also limited by the Constitution.
It is not in the power, therefore, of the people of a single
State to throw off the allegiance due from the State to the
National Sovereignty, without destroying the Sovereignty
of the State itself. Nor is it in the power of the people
of any one of the States to throw off their allegiance to
its Sovereignty without abrogating the State Constitution.
With us, so far is Sovereignty from resting " exclusively
with the people of each State," so restrained are they by
the National Sovereignty, that they cannot change their
own State Government from a Republican to a Monarchical,
or to any other form. Hence it is absurd, nay more it is
revolutionary, to say that because the people united in
creating the National Sovereignty, therefore it is not Sover-
eign.

Much less are the people Sovereign in the Territory, or
Territories, belonging to the National Sovereignty, called
the United States. The very idea of ownership involves
the idea of Sovereign jurisdiction, which also includes the



PREFACE. IX



idea of allegiance. This Sovereignty and allegiance may
indeed be qualified, or limited, by an enactment of the
General Sovereignty establishing a local Territorial Gov-
ernment, but neither is thereby extinguished, nor is the
authority thereby delegated to the people, or to the Terri-
torial Government, made exclusive : Nor does it give the
people inhabiting therein a right to a higher state of polit-
ical existence. The transfer from a Territorial to a State
Organization involves a declaration of independence on the
part of the Territory, or a relinquishment of its Suprem-
acy over it on the part of the National Sovereignty. It
proposes a condition of political existence which cannot be
created without depriving the National Sovereignty of a
part at least of its Supremacy. Not only so, but, with us,
it also places the New Organization in the relations and
position of a co-partner in the Sovereignty existing in the
National Confederacy.

And has the National Sovereignty no interest in this
political transformation ? May it not say whether at all,
or upon what terms, or subject to what conditions, it will
consent to this new creation? Consent to relinquish its
own Supremacy over its own Territory ? And admit the
New State, thus created, into the great Federal Copart-
nership ?

The People of the United States, the source of Sover-
eignty with us, have said, Constitution, Article VI.,
Sec. 2, — This Constitution, and the laws of the United
States which shall he made in pursuance thereof, and all
Treaties made, or which shall be made under the authority
of the United States, shall be the Supreme Law of the



PREFACE.



land : and the Judges of every State, shall be bound thereby,
anything in the Constitution and laws of any State, to the
contrary notwithstanding."

We may look in vain for a better exposition of Sover-
eignty in the Government of the United States than is
here found. Supremacy to govern is Sovereignty. The
Constitution is not Sovereignty, it is the Charter of Sover-
eignty. It is not law except in the sense of its Supremacy.
Nor yet is it Supreme by itself alone, but also in the laws
made in pursuance of its provisions, and in the Treaties
made under the authority which it establishes. Law is not
the act, but the voice of Sovereignty. The Constitution
does not act ; the Law does not act ; Treaties do not act ;
but it is the Officers of the Government in their various
departments who perform its behests. They act, and act
with all the power and might of the Sovereignty whose
laws they enforce, whose mandates they execute, whose
voice directs their duties. It is immaterial how this Su-
preme power originates, or how it exists, so long as it is
legitimate. While it exists, its powers are Sovereign with-
in the sphere of its jurisdiction. This is limited hy the
Constitution only, and cannot be infringed or repudiated,
either by the States, or by the people of the States, or
Territories, so long as the Constitution is maintained in its
integrity.

The Sovereignty of the Crown of Great Britain, estab-
lished under the English Constitution by the Revolution
of 1688, was called a Popular Sovereignty, not because it
recognized the Supremacy of the popular will, but because
it conceded that the people were one of the sources of its



PREFACE. XI



Sovereignty. The Constitution of the United States
established a freer and still more Popular Sovereignty, in
that it recognized the People as the only source of its
Sivpremacy. Popular Sovereignty does not mean the " ex-
clusive Sovereignty of the People;" or a Sovereignty
exclusive of Constitutions and Laws; but a Sovereignty,
whether State or National, established under a Constitu-
tion formed by the people, acting freely, and without any
extraneous or arbitrary compulsion or restraint. The
Constitution thus established by the people is the Charter
of Supremacy to the government, in every Popular Sover-
eignty. A State Sovereignty is called a Popular Sover-
eignty because in it both Sovereignty and Allegiance are
limited by a Constitution created by the free voice of the
people. So also is the National Sovereignty of the United
States called a Popular Sovereignty, for the same reason.
A Popular Territorial Sovereignty is an absurdity. The
very terms are contradictory and antagonistic. Territorial
is colonial; it implies dependence, and sovereign depend-
ence is a political absurdity.

The people inhabiting in a dependent Territory, there-
fore, must necessarily be subject to the Sovereignty upon
which they depend. The Sovereignty acquired under the
Constitution is supreme. The Sovereignty acquired by
the cession of Territory is supreme. The Sovereignty
acquired by the purchase of Territory is also supreme;
and if there be any greater supremacy in Sovereignty, it
certainly must be that title to supremacy which is acquired
by conquest. In all these modes of acquisition the exclu-
sive supremacy of the National Government in its Terri-



Xll PREFACE.



torial domain, thus expanded, cannot be questioned. It
is above and beyond all doubt and peradventure. And
although, with us, by general consent as well as by special
compact, the Constitution has been adopted and referred
to as limiting the exercise of this Supremacy in our Federal
and State relations, still the Supremacy of the National
Sovereignty in its own Territorial domain is not thereby
depreciated or destroyed. It may indeed delegate a por-
tion of its authority to the people, by the establishment of
a local Territorial government, but it does not thereby
relinquish its own Supremacy, or release the people inhab-
iting therein from their allegiance to it, or render them
independent of its superior Sovereignty. It may, at will,
repeal the Act conferring those powers, and resume its
exclusive jurisdiction over them. Hence there is, there
can be, no inherent right in the people inhabiting in such
Territory to form a government for themselves, independ-
ently of the National Sovereignty. This right, with us, is
exclusive only in the people of a State, provided it be
Republican and in conformity with their allegiance to the
National Sovereignty. The great error of our day is, in
claiming that State rights belong to the people inhabiting
in the Territories before they become a State. With us,
they cannot become a State Organization without the con-
sent of the Sovereignty on which they depend. They
cannot adopt a Constitution for their own government, in
anticipation of their transfer from a Territorial to a State
Organization, which would be of any validity, or worth,
without the assent of the National Sovereignty, or its
recognition of it after it is made. Still if the Supreme



PREFACE. Xlll



Sovereignty does consent to their transition from a Terri-
torial to a State Organization, it must necessarily consent,
nay more it guarantees, that the New Government shall
be a Popular one; that is, a Government, or Sovereignty,
established under a Constitution framed and adopted by
the people who are to be ruled under it, acting freely, and
without any hostile compulsion, hindrance, or restraint
whatsoever. Any other theory than this would be fatal to
the preservation of this Union, without any reference to
the question of Slavery.

Thus much I have ventured by way of Preface or intro-
duction to this work, although I may make some repetition
of what I have here said in treating of these principles in
their bearing upon Slavery in the United States. The
whole subject is one which ought to be more carefully
pondered over, and clearly understood, by our statesmen
and politicians of the present day, as well as by the people
in all parts of the country: And if I may hereby contribute
towards its elucidation in any degree I shall not regret
having attempted it.

HENRY SHERMAN.

Hartford, Ct., Nov. 1st, 1858.



CONTENTS.



CHAPTER I.

SLAYERY UNDER THE CONSTITUTION.

Introductiox — Slavery in the Original States — The Declaration
of Independence — The Confederation — The Ordinance of 1787 —
The Constitution — The Compact of the Confederation and Slave-
ry — The Ordinance of 1787 and Slavery — The Ordinance of
1787 and the Constitution — The Constitution and Slavery —
The Constitution, the Ordinance of 1787, and Slavery — The
Protective Law of 1793 — The Constitution and the Protective
Law of 1793 — The Constitution, the Protective Law of 1793,
and Slavery — The Constitution and the admission of New States —
The Constitutional theory of the recognition of Slavery — Restrict-
ive Acts of Congress from 1794 to 1820 — The purchase of the
Louisiana Territory — Its relations to Slavery — Act distributing
the Territory — Its restrictions upon Slavery — The Convention
with France and Slavery in said Territory — Character of the
Compact — Act of 1805 in relation to said Territory — The Admis-
sion of the State of Louisiana — Organization of the Missouri
Territory — Admission of Mississippi — Alabama — Ohio — Indiana —
Illinois, and Slavery — The Admission of Louisiana and Slavery —
Extent of the Constitutional recognition of Slavery : page 9.

CHAPTER 11.

SLA VERT OUTSIDE OF THE CONSTITUTION.

Sovereignty under the Confederation — Sovereignty under the Consti-
tution—The Constitutional National Sovereignty — Recognition of
Slavery under the Constitution — The National Sovereignty outside



XVI CONTENTS.



of the Constitution — Source of its Supremacy over the New Ter-
ritory — Admission of New States by it — Its power over Slavery —
Application of Missouri for admission into the Union — Nature of
the application — Its history — The Compact for her admission —
Its unconstitutionality — Its nature and relations to Slavery —
The resolution of admission — The Annexation and admission of
Texas — Nature of the Compact — Its unconstitutionality — Its rela-
tions to Slavery — The acquisition of foreign Territory from Mexi-
co — Its relations to Slavery- — The Compromise Measures of 1850 —
Their nature and relations to Slavery — The Protective Law of
1850: page 61.

CHAPTER III.

THE REPEAL OF THE BIISSOURI COMPACT.

Character of the National Sovereignty of the United States on the
admission of Missouri — The Compact with Missouri — Its repeal —
The effect upon Slavery — Opinion of the Supreme Court in the
Dred Scott Case — Its relations to Slavery — Rule laid down for the
construction of the Constitution — Its general applicability — Its
relation to the powers of Congress in the New Territory — In the
admission of New States formed out of it — Over Slavery in said
Territory and New States — Effect of the Repeal of the Mis-
souri Compact in 1854 — The enforcement of the Protective Law of
1850 — Effect of the Repeal and the Opinion of the Supreme
Court upon Slavery — Nature of the Compromise Compacts — Their
importance to Slavery — Reasons for the Repeal of the Missouri
Compact applicable to the Compact with Texas — To the Compro-
mise Measures of 1850 — So also of the ruling of the Supreme
Court — Source of the Supremacy of the Government over the
New Territory defined by it — This Supremacy the basis of the
Compromises in relation to Slavery — The Compromises the only
reliance of Slavery — Importance of good faith in their observance —
The further extension and recognition of Slavery — The necessity
of concession and conciliation — The Common National stand-
point — Paramount importance of the Union to the cause of freedom
and humanity — Conclusion : page 140.



SLAVERY IN THE UNITED STATES,



ITS



NATIOiSUL RECOGiXITIOI AND RELATIONS,

FROM THE ESTABLISHMENT OF THE CONFEDERACY TO
THE PRESENT TIME,



CHAPTER I.

SLAVERY UNDER THE CONSTITUTION.
I.

There is, perhaps, no subject which presents itself
to the consideration of every citizen of our RepubHc,
at the present day, with more especial interest than
the subject of African or Negro Slavery. And tliere
is none which, in its national aspects and relations,
is, generally, so little understood. If, as in the origi-
nal States, its recognition and extension were re-
stricted to the natural increase of an existing slave
population as the only source of supply, it could not
create any material apprehension . But the extension
of our national domain and sovereignty beyond its
original constitutional limit, by the acquisition of
foreign territory, and its liability to be in like man-
ner still farther extended, thus introducing continu-
ally within our national jurisdiction an additional
2



10 SLAVERY IN THE UNITED STATES,

slave population, with its additional source of in-
crease, make it a matter of great and increasing
national interest and importance to us all. It is,
therefore, essential and necessary that the common,
and more especially the educated mind should be
rightly informed in relation to it, and that the true
theory and extent of its national recognition and
relations should be clearly understood. I propose
to consider the subject, in these aspects of it, under
two general propositions embraced in the following
interrogatories, viz. : —

First. How far is Slavery and the ownership

OF SLAVE PROPERTY RECOGNIZED AND PROTECTED UNDER
THE PROVISIONS OF THE CONSTITUTION ?

Second. What is the origin and the basis of
ITS recognition and protection beyond the consti-
tutional LIMIT?

These are questions which address themselves with
peculiar force to every man who loves our national
Union, who is proud of our national character, and
who would preserve both in perpetual and happy har-
mony with the supremacy of the Federal sovereignty
and the rights of the individual States ; with the para-
mount law of the Constitution and the great interests
and claims of freedom and humanity every where.
I shall endeavor to answer them fairly, without fear
or favor, without prejudice or partiality toward any
portion of our country, and without any sectarian,



ITS NATIONAL RECOGNITION AND RELATIONS. 11

sectional, or pai'tisan aim or bias. I shall treat them
as political questions merely, without any reference
to Slavery as a question of morals, or of religion,
and without expressing or meaning to intimate any
opinion as to the right or the wrong of holding
human beings in bondage.

I premise, then, that The Declaration of Inde-
pendence was a political manifesto enunciating cer-
tain political rights, claimed to be inherent in the
American Colonies of Great Britain under the British
Constitution, of which they were wrongfully deprived
by the government of the parent State, the depriva-
tion of which justified them in breaking away from
their allegiance to it and proclaiming themselves
independent of its sovereignty. It was a compact
under and by virtue of which the Colonies mutually
pledged themselves, each to every other, to assume
a position of independence before the world, to
maintain it at all hazards, and to abide by it forever.

This compact was revolutionary in its origin, its
nature, and its aims, and had no specific reference to
any other than the revolutionary circumstances
which originated and followed it. It was made more
specific and permanent by the Compact of the Confed-
eration under which the Colonies leagued together
in a perpetual union, achieved their independence,
and became as United States a sovereign power on
earth.



12 SLAVERY IN THE UNITED STATES,

Whatever may have been the political guarantees,
pledges, or stipulations, embraced in the Declaration
of Independence, these were superseded by, except
so far as they were merged or comprehended in, the
Compact of the Confederation. The latter was again
qualified by the political compact contained in the
Ordinance of 1787, and wholly superseded by the
final compact of the Constitution.

The Ordinance of 1787 was a compact in relation
to the proprietorship and government of certain
territory, originally claimed to belong to individual
States, and which, for the purpose of securing a
more permanent national union, was by them ceded
to the United States, for the common benefit of such
States as should become members of the Federal Alli-
ance proposed by the revolutionary Congress in the
Articles of Confederation.

The Constitution was a compact between the
people of the original States for the establishment of
their national unity under a General Sovereignty^ with
specified powers, securing to the people in general
and to the States in severalty, all the rights, privi-
leges, and immunities, which they had acquired in
achieving their independence of the parent power.
Among these was the conceded right of property in
human flesh and bones. Slavery. Their situation
in relation to it was peculiar, and although it was
felt to be a strange inheritance yet it was the



ITS NATIONAL KECOGNITION AND RELATIONS. 13



heritage of all of them, and was the only oppression
which could not be renounced or removed with the
renunciation of the sovereignty of Great Britain.


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Online LibraryHenry ShermanSlavery in the United States of America; its national recognition and relations, from the establishment of the confederacy, to the present time. A word to the North and the South → online text (page 1 of 12)