By Ronald Richenburg
About 25 years ago, the library of the Foreign and Commonwealth Office 1 was largely disbanded, with the contents being given to suitable U.K. research libraries, including the Bodleian Law Library which received many items of a legal nature. Many of these works date from the 19th century and relate to foreign countries, with some having been acquired by British officials in those countries. One such item is The Law of the Territories by Sidney George Fisher, published in Philadelphia in 1859. 2
The book was reasonably important in its day, and is included in the “Legal Classics” section of Hein Online. There is some evidence that Abraham Lincoln read at least part of it. 3 What is notable about our copy is that the provenance is clearly indicated. The book was acquired by Charles E.K. Kortright, Her Majesty’s Counsel for Pennsylvania, and was sent to Lord John Russell, the Foreign Secretary. Kortright wrote a letter to the Foreign Secretary, to accompany the book, and this letter is affixed inside the front cover. The fact that Kortright saw fit to do this further attests to the importance both of the subject and of this particular book in discussing it.
The letter (in perhaps the worst 19th-century handwriting that I’ve ever seen), together with a transcription, is shown below.
[Text continues below.]
The possible extension of slavery into the territories (i.e. those parts of the United States that had not yet become states) became increasingly controversial as the 19th century progressed, and by the 1850s had become the burning issue in American politics. During the course of the century slavery became much more entrenched in the South as the plantation economy developed, but gradually died out in the North where it had never existed on a large scale.
The 19th century was a time when the United States, by a combination of purchase and conquest, quadrupled its size. As some territories became states, new ones were acquired and the question of their governance was ever present. A territory in which slavery was prohibited was more likely to become a state in which slavery was prohibited, with the probable result that the senators and representatives sent to Congress from that state would be much less sympathetic to slavery. In the southern states this prospect raised great fear that their economy and way of life would be under increasing threat from an increasingly dominant North.
During the first half of the 19th century an approximate balance was maintained, with new states being established as free states or slave states in roughly equal numbers. Nonetheless, tensions rose as anti-slavery activism increased in the North. Anti-slavery societies, newspapers, books, pamphlets, and speakers at public meetings received great publicity. Although they were never fully representative of northern public opinion, they aroused great resentment in the South where slavery was increasingly regarded not merely as a necessary evil (a widely-held view earlier in the century) but as a positive good sanctioned by the Bible.
Greater tension increasingly led to violence. There were, for example, many instances in the North of forcible resistance to the Fugitive Slave Act of 1850 4 (part of a major legislative compromise of that year) which required local officials and even ordinary citizens to assist in capturing escaped slaves and returning them to slavery. But the most sustained violence occurred in the newly created Kansas Territory where, over several years beginning in 1854, a series of violent confrontations between pro-slavery and anti-slavery settlers rapidly gave rise to the term “Bleeding Kansas”. In 1859, in Virginia, a group of about 20 individuals, both black and white, led by the white abolitionist John Brown (a veteran of the fighting in Kansas), captured a federal arsenal in the hope of using the weapons that they seized to start a general slave revolt that would eventually spread throughout the South. Brown’s plan had never been likely to succeed, and he was quickly captured and executed. But in the South, the ever-present fear of slave rebellions was greatly magnified by the possibility that future insurrections of this nature might succeed, particularly where many people in the North had come to regard Brown as a martyr.
The controversy also found its way to the courts where in 1857 the U.S. Supreme Court gave its judgment in the case of Dred Scott v. Sandford. 5 The Court ruled that Dred Scott, a slave, did not become a free person simply by having been taken into a free territory. But the Court then went on to hold that the word “citizens”, as used in the Constitution, was never intended to include black people and that Scott was therefore not entitled to bring suit in federal court at all. The Court further held that the prohibition by Congress of slavery in some of the territories (unchallenged for 70 years) was unconstitutional on the ground that slaves were property and that Congress had no authority to prevent a citizen from bringing his personal property into a territory. The decision was immediately acclaimed in the slave-holding states, condemned almost everywhere else, and has long been regarded as one of the worst decisions in the history of American law.
Against this background, The Law of the Territories was published in 1859. Its focus is on preserving the Union (i.e. the United States, seen as a union of states), with slavery treated as a subordinate consideration. The abolitionist movement in the North and the pro-slavery machinations of politicians in the South are discussed chiefly in relation to their tendency to foster disunion.
Fisher begins by condemning John Brown’s raid and northern support for it, as well as abolitionist activism more generally, 6 which, he thought, could lead the slaves to believe that future revolts might succeed, creating a climate of fear and distrust that would threaten the prosperity not only of the South but of the North as well, given the commercial and other ties between the two parts of the country. 7 He described slavery, as it existed in the South, as generally beneficial to the slaves who in his view were of limited intellectual ability and were incapable of looking after themselves. He goes on to say that it is essential that the slaves must never come to believe that they were wrongfully enslaved and that emancipation was even a possibility. 8
Greater condemnation, however, is directed at southern politicians who, it is alleged, had abandoned constitutional principles and were simply putting forward whatever arguments might support the pro-slavery cause even though the arguments being advanced were completely inconsistent with arguments that had previously been advanced. 9 Fisher discusses these inconsistencies in great detail and describes some of the southern arguments as so extreme that they “[seem] to have been purposely intended . . . to make the South and Slavery as odious as possible to the Northern people.” 10
But Fisher did not believe that either the abolitionists or the southern politicians were representative of the majority of people in their respective regions. Believing that “[t]he fanatics of Slavery and the fanatics of Anti-slavery are beyond the pale of argument”, he hoped for the formation of a “Northern and Southern conservative party” that would find a “solid ground of principle on which both [North and South] can stand”. 11
In his letter to the Foreign Secretary, Kortright described the book as “logically and — for a Northern writer — fairly and impartially written”. The matter-of-fact tone of this comment is very revealing. Clearly, Kortright did not regard as particularly unusual or controversial the book’s appalling assumptions of racial inferiority and the supposedly benign nature of slavery. Equally, he did not regard these assumptions as incompatible with the book’s harsh criticism of the inconsistent and perhaps unprincipled arguments being put forward by many southern politicians.
But Kortright’s letter, like the book itself, was simply a reflection of views that were widely held at the time. The spectrum of public opinion in the United States in the middle of the 19th century was much wider than many people today realize.
In the South slavery was embraced with varying degrees of enthusiasm, though even those people (and there were many) who did not own slaves were often linked to the slave economy and in any event resented what was perceived as northern interference in southern affairs.
In the North, as the 1850s drew to a close, the greatest concern was preserving the Union. There was increasing resentment of southern efforts to entrench and extend slavery, and there was increasing awareness of its cruelty, but the strands of public opinion were so numerous and so overlapping that it would be difficult to describe them all. There were certainly some people in the North who simply wanted to avoid any disruption of commerce and were not concerned about slavery at all. There were many others who, whether for moral reasons, economic reasons, or political reasons, wanted to prevent the spread of slavery into the territories without interfering with it in the states where it already existed. Abolitionists, i.e. those favouring the abolition of slavery everywhere, were a distinct minority, though the publicity that they received may have made their numbers seem greater than they actually were. The status of former slaves and other people of colour was a somewhat separate issue, and even among abolitionists complete equality was advocated by only a few.
Postscript. Less than two years after the book was published the American Civil War began. Under the overarching umbrella of preserving the Union, people with vastly different opinions about slavery came together to fight in what has often been described as the bloodiest war in American history,* and public opinion then evolved to the point where slavery itself could be abolished** and a legal framework for equal rights established*** (though, sadly, there were significant setbacks in subsequent years and, even now, the quest for equality remains a work in progress). What is clear, though, is that major changes in society can best be effected when there is a base of support that is as broad as possible. From a 21st-century perspective, the willingness of so many people to justify or even simply tolerate slavery for such a long period of time perhaps illustrates how difficult it is to rise above the basic assumptions of the age, even when those assumptions involve what is arguably the greatest evil in a nation’s history,**** with the further thought that we might want to consider whether any of our own assumptions, even on matters of far less consequence than slavery, will draw the condemnation of future generations.
* Calculating the number of dead in a war is often difficult and open to disagreement and controversy. The Civil War is frequently described as the war with the greatest number of American deaths. But, using the figures that were generally accepted throughout the 20th century, this is true only because the dead on both sides are counted as American. If the Confederate dead are excluded (and the Confederates were, after all, fighting with the specific aim of not being American) then the number is less than the number of dead in World War II (Civil War (approx.): 360,000 Union; 260,000 Confederate; 620,000 total. World War II (approx.): 405,000). However, as a proportion of the U.S. population (31 million in 1860; 132 million in 1940), the Civil War death toll is much higher. And it is higher still (about 750,000 total) if one accepts a recent estimate based on census records in addition to official death records, though this estimate is still controversial.
** The Emancipation Proclamation (Proclamation no. 17, 12 Stat. 1268, Jan. 1, 1863), justified as an exercise of the President’s power as commander-in-chief of the armed forces, freed the slaves in those states and parts of states that were in rebellion against the United States (though, of course, it was only after federal control was restored that their freedom could actually be effected). The 13th Amendment to the U.S. Constitution (1865) abolished slavery throughout the United States.
*** The 14th Amendment to the Constitution (1868) guaranteed “due process of law” and “equal protection of the laws”. The 15th Amendment (1870) specifically guaranteed the right to vote. Additionally, Congress passed major civil rights legislation in the ten years following the Civil War. The Civil Rights Act of 1866 (14 Stat. 27, passed by a two-thirds vote, overriding the veto of President Andrew Johnson) was something of a precursor of the 14th Amendment, and sought to protect the freed slaves from repressive laws that had been passed by some of the southern states after they were re-admitted to the Union. In 1870 and 1871, three further acts were passed after an upsurge in violence and intimidation directed at freed slaves (and others) in the exercise of their voting rights and other civil rights. These acts, known as the Enforcement Acts (16 Stat. 140 (1870), 16 Stat. 433 (1871), 17 Stat. 13 (1871)), provided federal protection for the targeted groups. One result was that the Ku Klux Klan, as it then existed, was effectively destroyed (though it was revived in a later generation). A few years later, the Civil Rights Act of 1875 (18 Stat. 335) was passed, prohibiting discrimination based on race or previous status as a slave in places of public accommodation or entertainment or on public transport. This was the first federal anti-discrimination law, though in 1883 the Supreme Court declared most of its provisions unconstitutional on the ground that the 14th Amendment operated as a restraint only on state and local governments and that Congress therefore had no authority to prohibit discrimination by private parties (Civil Rights Cases, 109 U.S. 3). Eighty-one years later, many of the key provisions of the 1875 act were included in the Civil Rights Act of 1964 (Pub. L. No. 88-352, codified as amended at 42 U.S.C. s. 2000a et seq.) which became and remains the cornerstone of American anti-discrimination law. Its constitutionality was unanimously upheld by the Supreme Court as an exercise of the federal power to regulate interstate commerce, though at least two of the justices would have considered it to fall under the auspices of the 14th Amendment as well (Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)).
**** The author of this post, though long resident in the U.K., is an American and writes from that perspective.