Arthur E. Bestor. State Sovereignty 
 and Slavery: A Re interpretation of 
 Proslavery Do^ctrine, 1846-1860. (196: 
 
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 State Sovereignty and Slavery 
 
 A Reinterpretation of Proslavery 
 Constitutional Doctrine, 1846- 1860 
 
 by 
 ARTHUR BESTOR 
 
 Complete text of a paper to be presented before the Mississippi Valley 
 Historical Association at its meeting in Detroit on April 21, 1961. 
 
 To permit full discussion, an abstract only will be read at the 
 actual session. 
 
 Published April, 1961, at Springfield, Illinois, from type set for the Sum- 
 mer, 1 96 1, issue of the Journal of the Illinois State Historical Society. 
 
 Copyright, 1961, by Arthur Bestor 
 
©Arthur Bestor, 1961 
 
o^73 ~ >Tv 
 
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 5 
 
 ARTHUR BESTOR 
 
 State Sovereignty and Slavery 
 
 A Reinterpretation of Proslavery 
 Constitutional Doctrine, 1846-1860 
 
 Arthur Bestor, professor of history at the University of Illinois 
 and a past president of the Illinois State Historical Society, 
 began working on this subject in 1957 while Harmsworth 
 Professor of American History at Oxford. The book which has 
 resulted from his studies is tentatively titled Slavery and the 
 American Constitution, 1846- 1860: A Historical Analysis of 
 the Crisis That Led to Civil War and will be published by 
 the Clarendon Press of Oxford University. The author presented 
 this paper to the Mississippi Valley Historical Association at 
 its Detroit meeting on April 21, 1961. Earlier versions 
 had been delivered as lectures at Wayne State University, 
 the University of Illinois and the State University of Iowa. 
 A paper on a closely related theme — "The Constitutional 
 Issues of i860" — was read before the Illinois State Historical 
 Society meeting at Rockford on October 9, i960. 
 
 in 1 860- 1 86 1 eleven slaveholding states proclaimed their 
 secession from the American Union. They were pushing to its 
 logical extreme a constitutional doctrine variously known as "state 
 rights" or "state sovereignty." The doctrine had figured in Ameri- 
 can constitutional discussion for upwards of sixty years. Moreover, 
 during the controversy over slavery in the territories, which raged 
 for fifteen years, from the time of the Wilmot Proviso of 1846 
 until the election of i860, the arguments and slogans of state sov- 
 ereignty had been reiterated so often that they became almost 
 as familiar (and often seemed almost as ageless) as the Ten Com- 
 mandments. 
 
 Historians take an impish delight in pointing out that the doctrine 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 of state rights has been espoused on one occasion or another by vir- 
 tually every section or party or interest that has ever found its 
 opponents ensconced in power in the national capital. As Alex- 
 ander Johnston put it seventy-odd years ago, "Almost every state 
 in the Union [has] in turn declared its own 'sovereignty," and de- 
 nounced as almost treasonable similar declarations in other cases 
 by other states/" 1 Most historians stop with this paradox, satisfied 
 that they have reached the end of it. They observe that state 
 sovereignty has made strange bedfellows, but they assume that the 
 doctrine itself, considered simply as a doctrine, has remained essen- 
 tially unaltered throughout all its changing cohabitations. 
 
 In this view of the matter, the theory of state rights, whenever 
 invoked, has had a constant and unvarying tendency. State sov- 
 ereignty, it is supposed, can always be equated with local self- 
 determination and local autonomy. The doctrine seeks consistently 
 to minimize the exercise of national powers. It is perennially 
 sympathetic to the idea that a state may rightfully '"interpose"" its 
 authority to prevent the central government's jeopardizing, or even 
 interfering with, the rights or interests or customs of the state's 
 own citizens. According to the conventional view, these three 
 political principles are invariably associated with the idea of state 
 sovereignty. Consequently the doctrine itself must always be looked 
 upon as a purely defensive one, capable of weakening the central 
 authority but by its very nature incapable of being used aggressively 
 or imperialisticallv. 
 
 These assumptions are plausible enough. And the secession 
 crisis of 1 860-1861 appears to validate them completely. In de- 
 fending their course, the seceding states appealed to a political 
 philosophy that exalted local autonomy. "The slaveholding States 
 will no longer have the power of self-government, or self-protection,"" 
 complained South Carolina in a formal declaration of her reasons 
 for seceding. 2 In an accompanying address she went on to say that 
 "the Government of the United States has become consolidated, 
 
 1. "State Sovereignty," in John J. Lalor, ed.. Cyclopaedia of Political 
 Science Chicago, 1884 s . 1H : 794- See also Arthur M. Schlesinger, 
 Viewpoints in American History New York. [922 . 220-44, "The State 
 Rights Fetish." 
 
 2. "Declaration of the Immediate Causes . . . of Secession," Dec. 24. 
 i860. Journal of the Convention of the People of South Carolina. Held in 
 i860, 1861 and 1862 (Columbia, S.C., 1862), 465-66. The ordinance of 
 secession was adopted on Dec. 20, i860. Ibid., 43. 
 
ARTHUR BESTOR 
 
 with a claim of limitless powers in its operations."' By seceding 
 from the Union, moreover, South Carolina was obviously interpos- 
 ing the sovereignty of the state in the most conclusive fashion pos- 
 sible. The language throughout was purely defensive. The onus 
 for aggression was placed upon those who would uphold the Union 
 b\ "coercing" the states. 
 
 Secession was obviously the culminating expression of the idea 
 of >tate sovereignty, and secession can be interpreted as a defensive 
 measure designed to vindicate the philosophy of local self-govern- 
 ment. If, then, the doctrine of state sovereignty signified the 
 defensive principles of local autonomy, decentralization, and inter- 
 position when invoked to justify secession, must it not have signified 
 substantially the same three principles when earlier invoked, by 
 the very same group, to support their policy regarding slavery in 
 the territories? The answer, contrary to expectation, is no. Dur- 
 ing the crisis of 1846- 1860, the doctrine of state sovereignty pos- 
 sessed implications for political philosophy that were almost pre- 
 cisely the opposite of those that had belonged to it in earlier days 
 and that were later hastily reasserted at the time of secession. 
 
 One simple fact is often forgotten. Secession was the alternative 
 to, not the purposed outcome of, the constitutional program that 
 proslavery forces advocated, in the name of state sovereignty, during 
 the controversy over slavery in the territories. This alternative - 
 dissolution of the Union — doubtless lay in the back of the minds 
 of increasing numbers of proslavery leaders as the year i860 ap- 
 proached. Nevertheless, the actual proposals they were offering 
 from 1846 to i860 presupposed the continued existence of the 
 federal system. The defenders of slavery wished the constitutional 
 machinery to function in such a way as to give maximum protec- 
 tion to slavery. This meant, of necessity, that they were still com- 
 mitted to the view that the Constitution was a machine that could 
 and should be made to work. Only after they opted for secession 
 did they look upon the old Constitution as a wreck to be dismantled. 
 
 In the nature of the case, the reasoning employed to support a 
 positive program for protecting slavery in the territories and for 
 enforcing the fugitive-slave act could not be identical with the 
 reasoning employed to dissolve the Union. Though state sover- 
 
 3. "Address ... to the People of the Slaveholding States," Dec. 24, 
 i860. Ibid., 470. 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 eigntv might be the premise in both instances, the two arguments 
 were different in purpose and in logic. They were not only differ- 
 ent, they were almost antithetical. To attempt to understand the 
 proslavery constitutional argument of 1846- 1860 by assuming it 
 to be identical with the secessionist argument of 1 860-1 861 is to 
 read history backwards and hence to misread it. 
 
 On every major point — on local autonomy, on diminution of 
 federal power, and on interposition — the state-sovereignty position 
 regarding slavery was almost exactly the reverse of the state-sover- 
 eignty position regarding secession. 
 
 Secession represented the principle of local autonomy pushed to 
 its logical extreme. In discussing the question of slavery in the 
 territories, by contrast, proponents of state sovereignty repudiated 
 m theory and practice the idea of local autonomy. It was Stephen 
 A. Douglas who stood consistently for self-determination in the 
 matter of slavery. And the proslavery faction (after an initial 
 period of hesitation) turned against Douglas's principle of terri- 
 torial sovereignty so decisively that in i860 they split the Demo- 
 cratic Party rather than accept it. 
 
 In the second place, secessionist documents of 1 860-1 861 de- 
 nounced the "consolidation** of power in federal hands. By con- 
 trast, the proslavery program of 1846- 1860 called for rigorous 
 enforcement of the fugitive-slave law by federal commissioners 
 dispersed throughout the Union. By i860, moreover, proslavery 
 leaders were contemplating the idea of a federally enacted slave 
 code to be imposed in all the territories. 4 
 
 Finally, secession represented an extreme application of the idea 
 that a state might interpose its sovereign authority to render null 
 and void within its borders any controverted exercise of federal 
 power. During the dispute over slavery, however, those who 
 preached state sovereignty had no use whatever for the traditional 
 doctrines of interposition and nullification. Instead, proslavery 
 leaders denounced in the bitterest terms both the nullification of 
 the fugitive-slave act by the personal-liberty laws of various north- 
 ern states, and also the kind of interposition that Wisconsin at- 
 tempted in the case of Sherman M. Booth." Though South Caro- 
 lina had, in 1832- 1833, adopted the only formal ordinances of 
 
 4. See the resolutions of Jefferson Davis, nn. 116 and 127 below. 
 
 5. See nn. 46, 48, and 50 below. 
 
ARTHUR BESTOR 
 
 nullification in American history, she did not hesitate to proclaim 
 in i860 that she considered herself released from all obligations 
 under the Constitution because thirteen northern states had "en- 
 acted laws which either nullify the Acts of Congress or render 
 useless any attempt to execute them." 6 
 
 These are not random and accidental inconsistencies. They 
 are evidence that the doctrine of state sovereignty, as applied to the 
 the issue of slavery during the fifteen years before i860, was by 
 no means the kind of political philosophy it is popularly supposed 
 to have been. 
 
 What we are up against is the profound yet subtle difference 
 between a legal concept and a political philosophy. State sov- 
 ereignty is, at bottom, a legal postulate. The idea that government 
 should be decentralized and local autonomy cherished is an ex- 
 pression of political philosophy. One naturally assumes a close 
 affinity between the legal concept of state sovereignty and the 
 political philosophy that emphasizes local self-government, just 
 as one naturally assumes a corresponding affinity between the legal 
 concept of national supremacy and the policy of centralization or 
 (in the language of the early republic) "consolidation." In most 
 periods of American history this one-to-one relationship does, in 
 fact, hold. But it does not hold for the constitutional controversy 
 of 1 846- 1 860 over slavery. During that period, conclusions of 
 a markedly consolidationist tendency were regularly being deduced 
 from state-sovereignty premises. How this logical feat was accom- 
 plished is the subject of the present paper. 
 
 Our concern, let me make clear at the outset, will be with 
 doctrines of constitutional law, not with the purely rhetorical use 
 of the phrases "state sovereignty" and "state rights." Few terms 
 in the political vocabulary are endowed with such deep emotional 
 connotations as these, and few are so variable in meaning. Few, 
 therefore, serve so well the purposes of political rhetoric. A cher- 
 ished principle can easily be labeled a "right," without imputing 
 to it the status of a claim enforceable at law. Similarly, "sover- 
 eignty" can bestow a majestic tone to a political argument, without 
 implying any precisely definable constitutional theory. Arguments 
 about state sovereignty in the full-dress debates preceding the Civil 
 
 6. South Carolina, "Declaration." Dec. 24, i860. Journal of the Con- 
 vention, 464. 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 War cannot be dismissed, however, as simply rhetorical. Politicians 
 who used the term insisted that it denoted a clear and definite legal 
 conception, that it had precise constitutional consequences, and that 
 the principles deduced from it were legally and constitutionally 
 binding on everyone concerned with the making and enforcing of 
 public policy. Without forgetting the emotional elements in the 
 situation, we must here concentrate our attention upon the legal 
 reasoning that made the controversy a constitutional one. 
 
 To understand the constitutional arguments of 1846- 1860, it is 
 obviously necessary to know precisely what the constitutional issues 
 were. Moreover, as an essential preliminary, it is necessary to know 
 what they were not. 
 
 Abolition of Slavery Not the Issue 
 
 The constitutional controversy over slavery that held the 
 nation in its grip from 1846 to i860 did not result from any pro- 
 posal before Congress that would have interfered in any way with 
 the complete and final authority of each slaveholding state to deal 
 in any way it chose with any and every question relating to slavery 
 within its own boundaries. No federal measure regulating slavery 
 within the slaveholding states was proposed in Congress or in the 
 platform of any organized political party. 7 No responsible figure 
 in public office questioned the plenary constitutional authority of 
 the slaveholding states to regulate the institution within their bor- 
 ders, and none denied that federal interference would be palpably 
 unconstitutional. 
 
 The simple fact that the constitutional powers of the slaveholding 
 states within their own boundaries were never seriously contested 
 is so often blurred in historical discussions, and the opposite has 
 been so often insinuated, that it will be well to place the historical 
 record clearly, though briefly, on view. 
 
 Early in the second session of the First Congress, in February and 
 March, 1790, the issue of slavery was brought before the House of 
 
 7. Even the Liberty Party of 1844, which presented the most extreme 
 platform of the entire period, stopped short of advocating a federal law- 
 abolishing slavery, even though it openly repudiated any obligation to obey 
 the fugitive-slave clause of the Constitution. The party summed up its 
 demands as "the absolute and unqualified divorce of the General Govern- 
 ment from Slavery." Kirk H. Porter and Donald B. Johnson, eds., National 
 Party Platforms, 1 840-1 g^6 (Urbana, 111., 1956), 4-8. 
 
 6 
 
ARTHUR BESTOR 
 
 Representatives by a number of petitions urging Congress to "step 
 to the very verge of the power vested in [it]," for the purpose of 
 bringing slavery to an end.* In response the House carefully con- 
 sidered the extent of the powers that it believed the newly established 
 government to possess in the matter. After a rancorous debate, two 
 reports, somewhat different in tone though hardly in substance, 
 were ordered spread upon the journal. On the point in question, 
 the decision was clear: 
 
 That Congress have no authority to interfere in the emancipation 
 of slaves, or in the treatment of them within any of the States; it 
 remaining with the several States alone to provide any regulations 
 therein, which humanity and true policy may require. 9 
 
 The principle thus formulated in 1790 remained the unchallenged 
 constitutional understanding until past the year 1861. 
 
 Only by amending the Constitution, therefore, could federal 
 power be used to abolish slavery. Amendments to accomplish this 
 end were offered in 18 18 and 1839, 10 but the House immediately 
 blocked their consideration. Between 1839 and 1863 — that is 
 to say, throughout the entire period of bitterest constitutional con- 
 
 8. Memorial of the Pennsylvania Society for Promoting the Abolition 
 of Slavery, signed by Benjamin Franklin as president, presented Feb. 12, 
 1790. Annals of Congress, 1 Cong., 2 Sess., 1197-98. The previous day 
 two Quaker petitions had inaugurated the discussion. Ibid., 1182-84. (Here- 
 after, H.R. will stand, in footnotes, for the House of Representatives.) 
 
 9. H.R., 1 Cong., 2 Sess., Journal (1826 ed.), 181 (March 23, 1790), 
 Report of the Committee of the Whole House. A parallel report by a 
 special committee had ended its discussion of this particular point with 
 an expression of "the fullest confidence in ihe wisdom and humanity of 
 the Legislatures of the several States, that they will . . . promote . . . 
 every . . . measure that may tend to the happiness of slaves." Ibid., 180. 
 The special committee was appointed on Feb. 12 and reported on March 
 5; the report was debated for five days (March 16-19 an d 22 ) i n a com- 
 mittee of the whole house, which reported on March 22. In the end 
 the House itself adopted neither report but instead voted, 29 to 25, that 
 both reports "be inserted in the Journal" and then allowed to lie on the 
 table. Ibid., 157, 168, 176-81. The various debates on slavery during 
 this session are in Annals, 1 Cong., 2 Sess., 1 182-91, 1 197-1205, 1414-17, 
 1450-74. See also William Maclay, Journal . . . iy8g-iygi (New York, 
 1890), 196, 221-22. 
 
 10. By Arthur Livermore (N.H.), H.R., April 4, 18 18, and by John 
 Quincy Adams (Mass.), H.R., Feb. 25, 1839. Herman V. Ames, The 
 Proposed Amendments to the Constitution . . . during the First Century 
 of Its History (American Historical Association, Annual Report for i8g6, 
 II, Washington, 1897), 334, 349 (items 474, 697-99). 
 
 7 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 flict over slavery — no proposal to amend the Constitution in this 
 direction was so much as offered, let alone debated. On the other 
 hand, certain amendments to prevent the possible abolition of 
 slavery were proposed. 11 Indeed, the only amendment passed by 
 Congress at the culminating moment of the crisis was of the latter 
 character. On March 3, 1861, despite the fact that seven slave- 
 holding states had already seceded, Congress voted to submit to the 
 states an irrepealable amendment to the Constitution, couched in the 
 following unambiguous (if somewhat ungrammatical) language: 
 
 Xo amendment shall be made to the Constitution which will author- 
 ize or give to Congress the power to abolish or interfere, within any 
 State, with the domestic institutions thereof, including that of persons 
 held to labor or service by the laws of said State. 12 
 
 This measure, be it noted, was not designed to inflame anti- 
 slavery opinion and stir up controversy. On the contrary, it was 
 an attempt at conciliation. As such, it was supported by Republi- 
 cans who, at the very same time, were adamant against any com- 
 promise that might permit slavery to enter the territories. In its 
 final form, the amendment was actually introduced by a Republi- 
 can. 13 Republican votes contributed substantially to the two-thirds 
 majority required for passage by the two houses. 14 The incoming 
 Republican President, Abraham Lincoln, gave the amendment 
 guarded approval in his Inaugural Address, delivered the day after 
 Congress submitted the measure to the states. Pointing out that 
 he considered "such a provision to now be implied constitutional 
 law," Lincoln announced that he had "no objection to its being 
 
 11. For example, by John R. J. Daniel (N.C.), H.R., July 6, 1850. 
 Ibid., 354 (item 764). Others are noted, ibid., 193, 195-97- 
 
 12. Joint resolution to amend the Constitution, March 2, 1861. U.S. 
 Statutes at Large, XII: 251. The inept syntax almost prevented passage. Con- 
 gressional Globe, 36 Cong., 2 Sess., 1364-67 (hereafter cited as Globe). 
 
 13. Thomas Corwin (Ohio), H.R., Feb. 27, 1861. Globe, 36 Cong., 2 
 Sess., 1263. In debate, authorship was attributed to no less a figure than 
 William H. Seward, about to become Lincoln's Secretary of State. Ibid., 
 1284. 
 
 14. The proposed amendment passed the House, 133 to 65, on Feb. 
 28, 1 86 1. Ibid., 1285. In the Senate the resolution was debated through 
 most of the night of Sunday, March 3, 1861, the eve of Lincoln's inaugura- 
 tion. It finally passed 24 to 12 — eight Republicans, eight Democrats 
 from free states, and eight members from slave states joining in the af- 
 firmative vote. Ibid., 1403 (legislative day, March 2). Party affiliations 
 are in Tribune Almanac and Political Register for 1861, p. 17. 
 
 8 
 
ARTHUR BESTOR 
 
 made express, and irrevocable." 15 The amendment was actually 
 ratified by three of the states — two of them free — before events 
 crowded it into oblivion. 16 
 
 In supporting this iron-clad guarantee of slavery within the 
 slaveholding states, the Republicans were not abandoning, but were 
 reaffirming, their previously announced position. The fourth plank 
 of their i860 platform had said: 
 
 That the maintenance inviolate of the rights of the states, and 
 especially the right of each state to order and control its own domestic 
 institutions according to its own judgment exclusively, is essential to 
 that balance of powers on which the perfection and endurance of our 
 political fabric depends. . . , 17 
 
 Lincoln quoted this paragraph in his Inaugural Address, and quoted 
 also a passage from an earlier speech of his own: "I have no 
 purpose, directly or indirectly, to interfere with the institution of 
 slavery in the States where it exists. I believe I have no lawful 
 right to do so, and I have no inclination to do so." 18 
 
 In view of this record of consistent acceptance by antislavery 
 groups of the constitutional principle that the slaveholding states 
 possessed plenary authority over slavery within their borders, what 
 is one to make of the charge, endlessly repeated, that the opponents 
 of slavery, and the Republicans in particular, believed "that a war 
 must be waged against slavery until it shall cease throughout the 
 United States"? 19 
 
 Part of the answer, obviously, is that such assertions represented 
 sheer distrust and hatred of abolitionists and "Black Republicans," 
 the kind of hatred summed up in De Bow's definition of "Yankees" 
 as "that species of the human race who foster in their hearts lying, 
 hypocrisy, deceit, and treason." 20 Undoubtedly multitudes of men 
 
 15. Roy P. Basler, ed., Marion Dolores Pratt and Lloyd A. Dunlap, asst. 
 eds., The Collected Works of Abraham Lincoln (New Brunswick, N.J., 
 
 1953). IV: 2 70. 
 
 16. By Ohio (free state), May 13, 1861; Maryland (slaveholding), Jan. 
 10, 1862; Illinois (free), Feb. 14, 1862. Ames, Proposed Amendments, 
 363 (item 931). 
 
 17. Porter and Johnson, National Party Platforms, 32. 
 
 18. Collected Works, IV: 263; quoting from his first debate with 
 Douglas, Ottawa, 111., Aug. 21, 1858, ibid., Ill: 16. 
 
 19. South Carolina, "Declaration," Dec. 24, i860. Journal of the Con- 
 vention, 465. 
 
 20. De Bow's Review, XXIII (1857) : 209, quoted in J. G. de Roulhac 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 and women in the seceding states believed that the Republicans, 
 once installed in power, would simply repudiate their constitutional 
 professions and proceed to launch a direct federal attack upon the 
 system of slavery inside the boundaries of the slaveholding states. 21 
 Distrust, however, was not the whole of the matter. When 
 
 Hamilton, ''Lincoln's Election an Immediate Menace to Slavery in the 
 States?"' American Historical Review, XXXVII (July, 1932): 710. 
 
 21. The fact that slavery was, in fact, abolished before the end of the 
 Civil War is sometimes taken as proof of Republican duplicity in 1860- 
 186 1. Such a view overlooks the enormous changes wrought in the situa- 
 tion by the coming of war and also disregards the constitutional grounds 
 on which successive actions, from 1862 to 1865, were based. For present 
 purposes, it is the latter point only that calls for discussion. In 1862, the 
 second year of the war, Congress abolished slavery in the District of 
 Columbia and in the territories. Acts of April 16, 1862, chap. 54, and 
 June 19, 1862, chap, in, U.S. Stat, at L., XII: 376, 432. Both measures 
 were in accord with the avowed constitutional theory of the Republicans. 
 
 The most significant step was, of course, the Emancipation Proclama- 
 tion (preliminary-, Sept. 22, 1862; final, Jan. 1, 1863). This did not apply 
 to slavery within the states that were loyal to the Union, but only to 
 specified areas actually in arms against the United States. It did not repre- 
 sent the assertion of a federal power over slavery as such, but was justified 
 solely by military necessity and was made to rest upon the so-called "war 
 powers'' of the executive. Lincoln's words were carefully chosen: "by 
 virtue of the power in me vested as Commander-in-Chief, of the Army 
 and Navy of the United States in time of actual armed rebellion against 
 [the] authority and government of the United States, and as a fit and neces- 
 sary war measure for suppressing said rebellion." Collected Works, VI: 29 
 (for preliminary proclamation, see ibid., V: 433-36). Likewise based upon 
 military necessity was the second confiscation act of July 17, 1862, chap. 
 195, the ninth section of which gave freedom to slaves belonging to Con- 
 federate owners if the slaves escaped to the Union lines or were captured. 
 Stat, at L., XII: 589, at 591. 
 
 Throughout the whole period, Union leaders recognized that only a con- 
 stitutional amendment could permit interference with slavery within the 
 loyal slaveholding states. Lincoln proposed such a constitutional amend- 
 ment, providing for gradual emancipation with federal financial aid, in 
 his annual message to Congress on Dec. 1, 1862. Collected Works, V: 529- 
 30. He had outlined the plan in a special message of March 6, 1862. Ibid., 
 144-46. In the end, of course, slavery was definitively abolished by con- 
 stitutional amendment — the Thirteenth — introduced on Jan. 11, 1864, 
 reported in amended form by the judiciary committee of the Senate on 
 Feb. 10, 1864, passed by the Senate on April 8, 1864 and by the House 
 on Jan. 31, 1865, and proclaimed a part of the Constitution (after ratifica- 
 tion by three fourths of the states) on Dec. 18, 1865. Ames, Proposed 
 Amendments, 366-67 (items 983, 985). The earliest amendments to this 
 effect were proposed on Dec. 14, 1863 — the first of the sort since 1839. 
 Ibid., 366 (items 981-82). 
 10 
 
ARTHUR BESTOR 
 
 we look carefully at the phrases used by the opposing sides, we 
 discover that their statements were not, as they first appear to be, 
 mutually contradictory. Lincoln's pledge not to "interfere with 
 the institution of slavery in the States where it exists" was simply 
 a pledge not to take federal action against slavery within the con- 
 fines of the slaveholding states. It did not deny the intention of 
 the Republicans to employ against slavery every power falling 
 within the normal domain of federal action, and did not deny the 
 aim of constricting and hampering the institution "until it shall 
 cease throughout the United States." On the other hand, the 
 charge directed by South Carolina against the Republicans was 
 not necessarilv a charge that thev intended to abolish slaverv bv 
 direct federal action within the states. From the proslavery point 
 of view, there was no difference between direct and indirect action. 
 The very fact that a measure was deliberately designed to under- 
 mine slavery made it automatically unconstitutional, no matt^ 
 how indirect the means employed. 22 This difference of viewpoint 
 was the crux of the constitutional controversy of 1846- 1860. 
 
 Extraterritorial Implications of Slavery 
 
 The question at issue — and this is a point of fundamental 
 importance — was not the institution of slavery itself as it existed 
 within the boundaries of a slaveholding state. These formed an 
 impregnable barrier against federal interference, as even the most 
 ardent opponents of slavery were bound to concede. That they 
 did concede the point is proved by the very form the dispute over 
 slavery assumed. The fact that the controversy of 1846- 1860 
 turned on the extension of slavery to the territories (and, to a 
 lesser extent, on the fugitive-slave law) showed that antislavery 
 leaders, far from flouting the Constitution, were showing it a 
 punctilious respect. Had they been disposed, as their opponents 
 alleged, to ride roughshod over constitutional limitations, they 
 would hardly have bothered with the question of the territories or 
 the question of fugitive slaves. If direct federal action against 
 slavery in the states had been constitutionally thinkable, there would 
 have been no reason to fritter effort away on tangential matters 
 involving, not the great mass of bondsmen, but only a scattered few. 
 
 22. See n. 99 below. 
 
 1 1 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 There was an opposite face to this coin. Had the defenders 
 of slavery, for their part, been confident that the institution was 
 safe behind its state-erected bastions, they too would have had little 
 reason to stake so much on peripheral issues like the territories and 
 the handful of escaping slaves. Their conduct revealed their fears. 
 Slavery, they believed, could easily be imperiled by forces that 
 existed and events that occurred in areas beyond the limits within 
 which the institution was established and protected. On one propo- 
 sition both sides agreed: that slavery could be dealt a fatal blow 
 by federal policies that were operative only outside the boundaries 
 of the slaveholding states. 
 
 The struggle that took place between 1846 and i860 was a 
 struggle for control over these external policies. It was, in short, a 
 controversy over the extraterritorial protection that the institution 
 of slavery was entitled to enjoy. The extraterritorial implications 
 of slavery — seldom described in these terms and seldom analyzed 
 to determine their true nature — provide the indispensable key to 
 an understanding of the constitutional controversy of 1846- 1860. 
 To explore the ramifications of this concept is the task before us. 
 
 Extraterritoriality is, first of all, a concept of international law. 
 Significant, therefore, is the fact that the extraterritorial claims of 
 the slaveholding states — that is to say, their assertion of a power 
 to take action beyond their own boundaries to repress influences 
 deemed inimical to slavery — were baldly asserted, at the very 
 beginning of the period of controversy, in several diplomatic com- 
 munications. In 1843 Great Britain was supposedly encouraging 
 the independent Republic of Texas to undertake compensated 
 emancipation. Alarmed by this, the American Secretary of State, 
 Abel P. Upshur of Virginia, sent confidential instructions to the 
 minister of the United States at the Court of St. James's, Edward 
 Everett. Upshur wrote as follows: 
 
 It is quite obvious that slavery could not easily be maintained in a 
 country surrounded by other countries whose Governments did not 
 recognise that institution. The difficulty in the present case would 
 be increased by the fact that those countries would be inhabited by 
 people of the same race with the slave owners, speaking the same 
 language, having the same manners, and in many respects the same 
 institutions. Our slaveholding States are separated from the Canadas 
 by many intervening non-slaveholding States of our Union. Although 
 
 12 
 
ARTHUR BESTOR 
 
 those non-slaveholding States are as much opposed to the institution 
 as England herself, yet the Constitution of the United States lays them 
 under obligations in regard to it, which, if duly respected, would secure 
 the rights of the slaveholder. . . . 
 
 Texas, however, lies immediately on the border of Louisiana and 
 Arkansas. The slave would have nothing more to do than simply to 
 cross the Sabine or the Red river, and he would find himself a freeman. 
 He would be very sure to profit by the opportunity. All the vigilance 
 which the master could use, enforced even by a harsher discipline 
 than he would be willing to exert, would avail nothing. Within a 
 few years a large proportion of the slaves within reach of the border 
 would seek refuge in Texas; and the remainder would be rendered 
 valueless, by discontent and dangerous insubordination. The slave- 
 holder ought not to submit, and would not submit, to this. 23 
 
 Several weeks earlier Upshur had spelled out what he meant by 
 saying that slaveholders "ought not to submit, and would not 
 submit." In a communication to General W. S. Murphy, Ameri- 
 can charge d'affaires in Texas, Upshur described the probable 
 consequences of emancipation in that republic: 
 
 Even if this Government should interpose for the protection of the 
 slaveholder, it would be very difficult so to arrange the subject as to 
 avoid disputes and collisions. The States immediately interested 
 would be most likely to take the subject into their own hands. . . . 
 They would assume the right to reclaim their slaves by force, and for 
 that purpose would invade the territory of Texas. 24 
 
 This was an extreme statement of the view that the slaveholding 
 states were justified in attempting to control the internal policies of 
 other states whenever those policies threatened, even indirectly, 
 to affect the institution of slavers' adversely. Upshur wished to 
 incorporate this extraterritorial principle into our relations with 
 foreign states, and he appeared even to condone irregular armed 
 incursions to enforce the demand. As applied to states within the 
 American Union, the extraterritorial claim was translated into con- 
 
 23. A. P. Upshur to Edward Everett, Sept. 28, 1843 (confidential), in 
 Senate Document 341, 28 Cong., 1 Sess., 34-35. 
 
 24. Upshur to Murphy, Aug. 8, 1843. Ibid., 21. Further discussion 
 of the international implications of slavery is beyond the scope of the 
 present paper. On the abolition of the foreign slave trade and on such 
 cases as those of the Amistad and the Creole, see any of the standard 
 histories. 
 
 13 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 stitutional language and the hint of violent self-help disappeared. 
 Nevertheless the doctrine still involved the extraterritorial protection 
 of slavery. 
 
 The Question of Fugitive Slaves 
 
 One extraterritorial right connected with slavery was clearly 
 and explicitly recognized by the written Constitution of the United 
 States. Upshur alluded to it. This was the right of a slayeowner 
 to reclaim a slave who might escape into a free state. The con- 
 stitutional provision on the subject had so important a bearing on 
 all the extraterritorial claims advanced in behalf of slavery that 
 it should be quoted in full : 
 
 No Person held to Service or Labour in one State, under the Laws 
 thereof, escaping into another, shall, in Consequence of any Law or 
 Regulation therein, be discharged from such Service or Labour, but 
 shall be delivered up on Claim of the Party to whom such Service or 
 Labour may be due. 25 
 
 The most significant fact about the fugitive-slave clause was 
 that it provided for the extraterritorial operation of the laws of 
 the slaveholding states. If a slave escaped from his master, the 
 laws of the state where he had been held in bondage clung to him, 
 no matter to what part of the Union he might flee. With respect 
 to him, the federal Constitution itself automatically annulled any 
 law of a free state that might tend to emancipate him. The fugi- 
 tive-slave clause was of unique importance to the proslavery argu- 
 ment. Not only was it the only provision of the Constitution that 
 explicitly recognized the slaveowners right of property in his slave, 
 it was also — and more importantly — the only one that gave any 
 extraterritorial effect to state laws establishing slavery. As such, 
 it provided the indispensable foundation for every other type of 
 extraterritorial claim in behalf of slavery. Whether the number 
 of escaping slaves was large or small made little difference. 26 The 
 fugitive-slave clause must be sustained because its collapse would 
 
 25. Constitution of the United States, Art. IV, sec. 2, clause 3. Curiously 
 enough, escape into a free territory was covered only by implication. Even 
 the bitterest opponents of slavery, however, declined to split this particular 
 hair. 
 
 26. On the controversial question of the numbers involved, see Allan 
 Nevins, The Emergence of Lincoln (New York, 1950), II: 489. 
 
 14 
 
ARTHUR BESTOR 
 
 mean the collapse of the entire contention that the federal govern- 
 ment was bound to safeguard slavery outside the institution's estab- 
 lished borders. 
 
 The principle at stake was so vital to the proslavery argument 
 that extravagant assertions were constantly made to the effect that 
 the fugitive-slave clause represented a fundamental bargain struck 
 at the time the Constitution was drafted. Thus Lawrence M. Keitt 
 of South Carolina told the House of Representatives that "the fugi- 
 tive slave clause was put into the Constitution as the price of the 
 splendid cession of the Northwest by Virginia, and as the price of 
 the Government, too." 27 John J. Jones of Georgia insisted that 
 "without such a constitutional guarantee it is evident that the 
 slaveholding States never would have ratified the Constitution." 28 
 Robert Toombs of Georgia asserted that the obligation to return 
 fugitive slaves, far from originating in the Constitution, "has been 
 a fundamental principle of society for thirty centuries." 29 The 
 facts were rather different. A fugitive-slave clause had been in- 
 serted in the Northwest Ordinance of July 13, 1787, coupled with 
 a provision prohibiting slavery throughout the entire region. 30 Near 
 
 27. Jan. 25, i860. Globe, 36 Cong., 1 Sess., App., 96. Certain princi- 
 ples of the law of contracts explain this insistence that the fugitive-slave 
 clause was an absolutely fundamental constitutional bargain. "Before 
 partial failure of performance of one party will give the other the right 
 of rescission, the act failed to be performed must go to the root of the 
 contract, or the failure to perform the contract must be in respect to 
 matters which would render the performance of the rest a thing different 
 in substance from that which was contracted for." On the other hand, 
 if "a breach . . . deprives the injured party of a benefit of but one of [the] 
 subsidiary provisions or promises," then "he is left to redress his injury 
 by an action for compensation in damages." William M. McKinney and 
 Burdett A. Rich, eds., Ruling Case Law, VI (Northport, N.Y., 1915): 926. 
 With the possibility of secession in their minds, proslavery leaders were 
 insisting that failure to enforce the fugitive-slave clause abrogated the 
 whole Constitution. They were outraged by a proposal that compensa- 
 tion for escaped slaves be substituted for enforcement of the fugitive-slave 
 law. See Alexander H. Stephens, A Constitutional View of the Late War 
 between the States (Philadelphia, 1868-1870), II: 48-49, 58, 77-79. 
 
 28. H.R., April 23, i860. Globe, 36 Cong., 1 Sess., App., 246. The 
 seventh of Jefferson Davis's resolutions in the Senate in i860 (see n. 116 
 below) dealt with the fugitive-slave clause "without the adoption of which 
 the Union could not have been formed." Globe, 36 Cong., 1 Sess., 2350 
 (resolution adopted May 25, i860). 
 
 29. Senate, Jan. 24, i860. Globe, 36 Cong., 1 Sess., App., 89. 
 
 30. Clarence E. Carter, ed., Territorial Papers of the United States, II 
 (Washington, 1934): 49. 
 
 15 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 the end of the Constitutional Convention, on August 28, 1787, a 
 similar provision for the return of fugitive slaves was proposed and 
 briefly discussed. The next day the clause, slightly altered in form, 
 was adopted nemine contradicente. 31 The following year, in the 
 Virginia ratifying convention, James Madison put the clause in 
 a perspective totally different from Toombs's. "At present," he 
 said, "if any slave elopes to any of those states where slaves are 
 free, he becomes emancipated by their laws. For the laws of the 
 states are uncharitable to one another in this respect.'' The fugi- 
 tive-slave clause of the proposed Constitution, Madison continued, 
 "was expressly inserted to enable owners of slaves to reclaim them. 
 This is a better security than any that now exists." 32 
 
 The fugitive-slave clause was hardly a fundamental compact, 
 but it was a provision of the Constitution, and a failure to enforce 
 it was a quite legitimate grievance. The more conservative leaders 
 of the Republican Party recognized the obligation. "It is scarcely 
 questioned," said Lincoln in his first Inaugural Address, "that this 
 provision was intended by those who made it, for the reclaiming of 
 what we call fugitive slaves; and the intention of the law-giver is 
 the law. All members of Congress swear their support to the 
 whole Constitution — to this provision as much as to any other." 
 Ought anyone, he asked, to "be content that his oath shall go 
 unkept, on a merely unsubstantial controversy as to how it shall 
 be kept?" 33 
 
 Lincoln was undoubtedly sincere, but he did not speak in this 
 matter for important segments of his own party. Ardent abolition- 
 ists had long gloried in defying and violating the fugitive-slave act. 
 Even before the law was made harsher in 1850, the Liberty Party 
 had declared in its platform of 1844 that the fugitive-slave clause 
 of the Constitution was contrary both to the laws of God and to 
 natural right, hence "utterly null and void," and that it was to 
 be regarded "as forming no part of the Constitution of the United 
 States." 34 After the new fugitive-slave law of 1850 was enacted, 
 open and organized violation of its provisions — through the so- 
 
 31. Max Farrand, ed., Records of the Federal Convention of 1787 (New 
 Haven, 1911-1937), II: 443, 453-54. A slight verbal revision was made on 
 Sept. 15, 1787. Ibid., 628. 
 
 32. Ibid., Ill: 325 (June 17, 1788). 
 
 33. Collected Works, IV: 263-64. 
 
 34. Porter and Johnson, National Party Platforms, 8. 
 
 16 
 
ARTHUR BESTOR 
 
 called "Underground Railway" and through deliberately publicized 
 slave rescues — became commonplace. 
 
 Objections to the Fugitive -Slave Act 
 
 It was not defiance of the law, however, but attempted 
 nullification of it, that made the question of fugitive slaves a con- 
 stitutional issue. And nullification did not mean a total repudiation 
 of the constitutional obligation. It represented, instead, a denial 
 of the constitutionality of the statute of 1850 by which the ob- 
 ligation was enforced. There were substantial grounds for 
 such constitutional objection. The fugitive-slave law of 1850 
 authorized summary procedures lacking virtually all the normal 
 legal safeguards that are summed up in the phrase of the Bill of 
 Rights, "due process of law." Decisions were not to be made by 
 regularly constituted courts but by court-appointed commissioners 
 who exercised simply the powers of a justice of the peace. No jury 
 trial was provided. The only evidence required was the deposition 
 or affidavit of the claimant. The statute ordered that "in no trial 
 or hearing under this act shall the testimony of such alleged fugitive 
 be admitted in evidence." The commissioner who decided the 
 claim would receive, for sending a Negro back into bondage, twice 
 the fee he could collect were he to find the man free. And the 
 commissioner's decision, once made, constituted a complete answer 
 to a writ of habeas corpus issued by any court, state or federal. 3 ' 3 
 Provisions like the^e appeared to antislavery men to subvert con- 
 stitutional rights of a far more fundamental character than any 
 the fugitive-slave clause was designed to protect. Representative 
 James Wilson of Indiana stated the issue clearly: 
 
 But why is this act offensive? It is not in the unwillingness on the 
 part of the people of the free States to permit the rendition of a 
 fugitive slave. . . . Sir, it lies deeper, and far beyond. It is in the 
 conviction that this fugitive slave law comes in conflict with and up- 
 roots great fundamental principles, and assumes unwarrantable and 
 dangerous powers. Is this so? Is this true? Examine the law. Does 
 it not recognize an officer unknown to the Constitution? Does it not 
 deny the trial by jury in the issue of liberty? Does it not set at defiance 
 
 35. Fugitive-slave act, Sept. 18, 1850, chap. 60. U.S. Stat, at L., IX: 
 462. The quoted sentence is from the sixth section, which included most 
 of the other provisions mentioned; fees were prescribed in the eighth section. 
 
 17 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 the sovereignty of the State? .... Does it not withhold the great 
 writ of habeas corpus? I repeat again, examine the law. For this 
 cause it is that the law has been arraigned and condemned by the 
 people of the free States. 313 
 
 Defenders of the fugitive-slave act of 1850 argued "that the law 
 was not intended to try the right of property, whether the fugitive 
 was the property of the claimant, or whether he was free; that the 
 Constitution did not design that, but that, if there was to be any 
 question about the right of property, it was to be determined in the 
 State whence the fugitive escaped.*' 37 This answer might be tech- 
 nically correct, but from the antislavery point of view it was quite 
 unsatisfactory. Slave property, James Wilson insisted, should 
 "be reclaimed and surrendered under the same rules of evidence, 
 and with the same restrictions, as other property.'* 3 Moreover, 
 the right to property was only part of the question; the right to 
 liberty was involved as well. There always existed a possible doubt 
 whether a particular Negro who might be pointed out as a fugitive 
 slave was so in fact. This particular fact, insisted the opponents 
 of the fugitive-slave law, should be judicially determined before 
 the individual was removed from the jurisdiction of a free state 
 and placed on the soil of a slaveholding one, the laws of which made 
 different presumptions. Because the liberty of a man who might 
 be a freeman was at stake, the issue should be tried by jury; and 
 the state of which he might in fact be a bona fide resident ought to 
 be able to protect him against kidnapping by issuing the writ of 
 habeas corpus. John P. Hale of New Hampshire summed up the 
 antislavery objection in a speech to the Senate in i860: 
 
 The great mistake of the gentlemen who passed this law ... is this: 
 they assume at the outset that the man whom they claim is a slave, and 
 they give him no sort of rights as a freeman, but only the rights of 
 a slave after that. That is what I complain of: that you may go into 
 one of the free States under this law, and lay your hand on a man who 
 was born there, has lived there all his life, and if he comes within the 
 description of your ex parte affidavits taken a thousand miles off, and 
 [if] you can get a ten dollar commissioner to give a certificate, the 
 
 36. H.R., May 1, i860. Globe, 36 Cong., 1 Scss., App., 323. 
 
 37. James M. Mason (Va.), Senate, May 25, i860. Globe, 36 Cong., 
 1 Sess., 2351. 
 
 38. Globe, 36 Cong., 1 Sess., App., 323. 
 
 18 
 
ARTHUR BESTOR 
 
 habeas corpus of the State judiciary lies paralyzed at his feet, and the 
 man who is claimed has to go. 39 
 
 Though the dispute over fugitive slaves was in form a dispute 
 over statutory enactments and their effective enforcement, it was 
 in reality a dispute over the spirit in which the Constitution should 
 be interpreted when rights of different sorts came into conflict. 
 Partisans of slavery could find in the Constitution no provisions 
 that applied in any way to Negroes, save the one provision uphold- 
 ing the right of a slaveholder to his slave. No other constitutional 
 guarantees had any relevance, and to invoke them was deliberate 
 obstructionism. Representative Eli S. Shorter of Alabama put 
 the matter bluntly: 
 
 If fugitive slaves are to have the benefit of the writ of habeas corpus 
 and jury trial in the North, the South might as well consent at once 
 to strike out from our Constitution the right of recapture. We want 
 the substance, not the mere shadow of our rights. 40 
 
 From the antislavery point of view, on the other hand, the rights 
 of persons, especially the right to impartial legal procedures, were 
 guaranteed by the Constitution just as explicitly, and even more 
 comprehensively and absolutely, than the property rights arising 
 from slaveownership. This was, at bottom, what was meant by 
 a "higher law/' The idea foreshadowed the more generalized 
 
 39. May 25, i860. Globe, 36 Cong., 1 Sess., 2351. 
 
 40. H.R., April 9, 1856. Globe, 34 Cong., 1 Sess., App., 396. Shorter 
 destroyed whatever foundation his argument might have had, by going on 
 to assert that the federal "fugitive slave law of 1850 denies to the slave 
 the right of trial by jury and habeas corpus," and by arguing from this that 
 a state personal-liberty law is invalid because it "confers that right upon 
 him, and thereby conflicts with the act of Congress" (italics added). Ibid. 
 These contentions cannot be reconciled with any possible theory of the 
 American Constitution, which never treats rights as having been conferred 
 by government of any sort. To say that an act of Congress denied the writ 
 of habeas corpus in peacetime to any persons who might conceivably be 
 entitled to it was to admit the unconstitutionality of the act, in view of 
 the provision of the federal Constitution that the writ "shall not be sus- 
 pended, unless when in Cases of Rebellion or Invasion the public Safety 
 may require it." Art. I, sec. 9, clause 2. The only argument that could 
 possibly be made to hold water was Taney's, namely that the Constitution 
 regarded "the negro race as a separate class of persons," not "a portion of 
 the people or citizens of the Government," and that it did not intend "to 
 confer on them or their posterity the blessings of liberty, or any of the 
 personal rights so carefully provided for the citizen." Dred Scott v. Sand- 
 ford, 19 Howard 393, at 411 (March 6, 1857). 
 
 19 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 mid-twentieth-century doctrine that certain guarantees of the Bill 
 of Rights occupy a "preferred position" in the hierarchy of con- 
 stitutional values. 41 
 
 This deep-lying constitutional conflict — between the right to 
 property and the right to liberty — was never seriously considered 
 by the Supreme Court while slavery existed. The fugitive-slave 
 act of 1850 was, it is true, upheld by a unanimous court, but in an 
 exceedingly offhand way : 
 
 But although we think it unnecessary to discuss these questions, yet, 
 as they have been decided by the state court, and are before us on 
 the record, and we are not willing to be misunderstood, it is proper to 
 say that, in the judgment of this court, the act of Congress commonly 
 called the fugitive slave act is, in all of its provisions, fully authorized 
 by the Constitution of the United States. 42 
 
 It was not the question of personal liberty but a much more tech- 
 nical question — albeit one of great constitutional importance — 
 that brought the fugitive-slave act before the Supreme Court and 
 occasioned the decision containing the perfunctory sentence just 
 quoted. 
 
 Personal Liberty Laws and the Booth Case 
 The written Constitution was quite clear in upholding the 
 right of a slaveowner to recapture his escaped slave, but it was 
 highly ambiguous in assigning responsibility for making this right 
 effective. The fugitive-slave clause was closely associated with a 
 clause for the extradition of criminals, and this association suggested 
 
 41. For a concise discussion of Supreme Court opinions, pro and con, 
 on the idea of "preferred position," see Edward S. Corwin, ed., The Con- 
 stitution of the United States of America: Analysis and Interpretation 
 (Washington, 1953), 789-91. 
 
 42. Ableman v. Booth, and U.S. v. Booth, 21 Howard 506, at 526 
 (March 7, 1859). The Supreme Judicial Court of Massachusetts had up- 
 held the constitutionality of the fugitive-slave law of 1850 shortly after 
 its enactment. Thomas Sims's case, 7 Cushing 285 (April 7, 1 85 1 ) . Two 
 months after the decision in Ableman v. Booth, the Supreme Court of 
 Ohio likewise upheld the act, citing the opinion of the United States Su- 
 preme Court, of course, but also independently examining the precedents 
 and arguments. The Ohio court divided three to two, and in the four 
 opinions filed the various constitutional issues involved were given the most 
 thorough consideration they were ever to receive at the hands of any judicial 
 body. Ex parte Bushnell, and Ex parte Langston, 9 Ohio State Reports 
 77 (May, 1859). With the outbreak of the Civil War, the fugitive-slave 
 
 20 
 
ARTHUR BESTOR 
 
 that individual states might be expected to deal with fugitive slaves 
 as a matter of interstate comity. On the other hand, the right to 
 reclaim slaves was a right guaranteed by the federal Constitution, 
 and from this could be inferred both a federal power and a federal 
 duty. In 1842 a majority of the Supreme Court took the latter 
 view, not only upholding the federal fugitive-slave act of 1793 (and 
 paving the way for the subsequent act of 1850) but also asserting 
 that the individual states had no concurrent power (and hence no 
 concurrent responsibility) in the matter. 43 This ruling (by a divided 
 court) was an open invitation to states with antislavery leanings not 
 only to refuse co-operation but also to experiment with statutes — 
 the so-called "personal liberty laws" — that placed every legal 
 obstacle that ingenuity could devise athwart the path of the would- 
 be recoverer of an escaped slave. 
 
 These actions bv the free states constituted "interposition" and 
 "nullification," in a pure and classic sense. Indeed, the personal- 
 liberty laws stood in a much more direct line of descent from the 
 Kentucky and Virginia Resolutions of 1798 than did any of the 
 ingenious theories elaborated by John C. Calhoun in the late 1820's 
 and 1830's. 44 The personal-liberty laws applied the doctrine of 
 interposition to exactly the kind of situation that, in 1798, prompted 
 
 act became almost a dead letter, though it was not finally repealed until 
 June 28, 1864, chap. 16G. U.S. Stat, at L., XIII: 200. In the meantime, 
 on March 13, 1862, chap. 40, Congress had expressly forbidden the use 
 of military personnel "for the purpose of returning fugitives from service 
 or labor, who may have escaped from any persons*' — including persons 
 in the loyal slaveholding states. Stat, at L., XII: 354. Nominally the 
 latter might still employ civil procedures under the act. Reviewing the 
 issues from the perspective of 1921 (which is not necessarily the perspective 
 of 1961), Allen Johnson reached the conclusion that the fugitive-slave acts 
 were "constitutional in every particular." Johnson, "The Constitutionality 
 of the Fugitive-Slave Acts," Yale Law Journal, XXXI (Nov., 1921) : 161-82. 
 
 43. Prigg v. Pennsylvania, 16 Peters 539 (1842). 
 
 44. Calhoun's argument in 1828-1832 for nullifying the tariff diverged, 
 in highly significant ways, from the argument used to justify interposition 
 both in the late 1790's against the sedition act and in the 1850's against the 
 fugitive-slave act. Calhoun was seeking to defend the economic interests 
 of a state, not the freedom of any of its citizens. He and his followers 
 were not arguing that the tariff infringed upon rights guaranteed to in- 
 dividuals by the Constitution; they merely argued that the tariff represented 
 the misuse of a power — the "Power to lay and collect Taxes, Duties, Im- 
 posts and Excises" — delegated in set terms to the federal government. 
 And South Carolina, following his lead, asserted, on the part of the state, 
 not a mere power to protect its own citizens against the penalties they 
 
 21 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Jefferson and Madison to promulgate the original theory. 45 In 
 1798 and in the 1850's the federal law being challenged was one 
 that, in the opinion of its opponents, not only deprived individuals 
 of personal freedom but also, by its very manner of doing so, vio- 
 lated both the letter and the spirit of specific constitutional guar- 
 antees of individual rights. On both occasions the opponents of 
 the measure were thoroughly convinced that the federal courts, 
 in view of their existing attitude, would never rule against the 
 validity of the statute in question. On both occasions, accordingly, 
 opponents of the law argued that it was within the competence of 
 a state to interpose its authority as a shield to protect persons within 
 its own jurisdiction from deprivation of their constitutionally guar- 
 anteed personal rights. 
 
 The conflict between the constitutional philosophy embodied in 
 the personal-liberty laws of the various northern states and the 
 constitutional philosophy embodied in the fugitive-slave act of 
 1850 came to a head in the welter of cases that arose, in state and 
 federal courts, out of the rescue of a fugitive slave who had been 
 apprehended by his master in Wisconsin in 1854. The principal 
 figure in the mob that snatched the slave from jail and spirited 
 him off to Canada and freedom was an abolitionist editor named 
 Sherman M. Booth. Prosecuted by federal authorities as a violator 
 of the fugitive-slave act, Booth was twice freed, in 1854 and 1855, 
 from federal custody by writs of habeas corpus issued by the Wis- 
 consin Supreme Court, one writ preceding and one following his 
 conviction in a district court of the United States. The Wisconsin 
 judiciary declared the federal fugitive-slave act unconstitutional 
 and argued that unless the state could liberate its own citizens 
 from imprisonment under an invalid statute, then it "would present 
 the spectacle of a state claiming the allegiance of its citizens, with- 
 out the power to protect them in the enjoyment of their personal 
 
 might incur for violation of an allegedly unconstitutional statute, but a 
 power to suspend the law in its entirety and to use the full power of the 
 state "to prevent the enforcement and arrest the operation" of the federal 
 statute. Massachusetts, General Court, State Papers on Nullification (Boston, 
 1834); see p. 29 for the quoted phrase from the nullification ordinance of 
 South Carolina, Nov. 24, 1832. 
 
 45. See Adrienne Koch and Harry Amnion, "The Virginia and Ken- 
 tucky Resolutions: An Episode in Jefferson's and Madison's Defense of 
 Civil Liberties," William and Mary Quarterly. Third Series, V (April, 1948) : 
 145-76. 
 
 22 
 
ARTHUR BESTOR 
 
 liberty upon its own soil." 46 Here, succinctly stated, is the original 
 state-rights doctrine of the Kentucky and Virginia Resolutions of 
 
 i 79 8. ' 
 
 The various cases, considered together on appeal, were finally 
 decided by the United States Supreme Court on March 7, 1859, 
 with Chief Justice Roger B. Taney speaking for a unanimous court. 
 Taney overruled the Wisconsin judiciary on all points and upheld 
 the supremacy of the federal Constitution and the federal courts 
 so forcefully as "to enhance the federal judicial power to a degree 
 beyond that envisaged even by Marshall and Story." 47 The ques- 
 tion of sovereignty was discussed, and the court rejected completely 
 the contention that sovereignty could not be divided, that it inhered 
 in the states alone, and that the federal government lacked its 
 attributes. 
 
 On the contrary, Taney argued as follows: 
 
 There can be no such thing as judicial authority, unless it is conferred 
 by a Government or sovereignty; and if the judges and courts of Wis- 
 consin possess the jurisdiction they claim, they must derive it either 
 from the United States or the State. It certainly has not been conferred 
 on them by the United States; and it is equally clear it was not in the 
 power of the State to confer it, even if it had attempted to do so; for 
 no State can authorize one of its judges or courts to exercise judicial 
 power, by habeas corpus or otherwise, within the jurisdiction of another 
 and independent Government. And although the State of Wisconsin 
 is sovereign within its territorial limits to a certain extent, yet that 
 sovereignty is limited and restricted by the Constitution of the United 
 States. 
 
 46. In re Booth and Rycraft, 3 Wisconsin 157, at 176, opinion of Chief 
 Justice Edward W. Whiton (Feb. 3, 1855). See also (for the first writ 
 issued) In re Sherman Booth, 3 Wisconsin 1 (June 7, 1854); and (for a 
 writ that was denied) Ex parte Sherman M. Booth, 3 Wisconsin 145 (July 
 21, 1854). 
 
 47. Corwin, ed., Constitution . . . Analysis, 555. The allusions are to 
 Justice Joseph Story's decision in Martin v. Hunter's Lessee, 1 Wheaton 
 304 (March 20, 1816), and Chief Justice John Marshall's decision in 
 Cohens v. Virginia, 6 Wheaton 264 (March 3, 1821). One might add that 
 Taney's statement of national supremacy was as sweeping as President 
 Andrew Jackson's in his proclamation to the people of South Carolina, 
 Dec. 10, 1832. State Papers on Nullification, 75-97. The precedent is 
 apposite because Taney was Jackson's Attorney General at the time, though 
 he did not, it is true, participate actively in the drafting of the proclama- 
 tion, which was largely the work of Edward Livingston. Carl B. Swisher, 
 Roger B. Taney (New York, 1935), 2 °7- 
 
 23 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 The statesmen who framed the Constitution and the people who 
 adopted it were convinced, said Taney, 
 
 that it was necessary that many of the rights of sovereignty which the 
 States then possessed should be ceded to the General Government; and 
 that, in the sphere of action assigned to it, it should be supreme, and 
 strong enough to execute its own laws by its own tribunals, without 
 interruption from a State or from State authorities. 48 
 
 Taney's argument for the judicial supremacy of the federal gov- 
 ernment was so sweeping, and his commitment to the idea of 
 divided sovereignty so complete, that at first glance he would 
 appear to have struck a fatal blow at the entire doctrine of state 
 sovereignty. In the long run, so far as constitutional law was con- 
 cerned, the decision in Ableman v. Booth did have precisely this 
 effect. In any discussion of national supremacy the case is almost 
 certain to figure among the important precedents. And, by the 
 irony of history, it is cited in many recent decisions striking down 
 measures adopted by various southern states (in the name of state 
 sovereignty), as part of their campaign of resistance to racial de- 
 segregation by court order in the public schools. 49 
 
 National Supremacy and State Sovereignty 
 
 In its immediate historical context — in 1859 an< ^ i860 — 
 the decision in Ableman v. Booth did not, however, convey to the 
 public mind the implication of unqualified national supremacy 
 that it conveys today. The decision was welcomed, naturally 
 enough, by the partisans of slavery. Furthermore, they were con- 
 scious of no inconsistency in hailing it as a triumph for their own 
 position. They considered it not a repudiation of the doctrine of 
 state sovereignty but a vindication of one of the most important 
 corollaries of that doctrine — namely, its extraterritorial implications. 
 The paradox disappears if one pays close attention to the limits 
 
 48. Ableman v. Booth, 21 Howard 506, at 515, 517 (March 7, 1859). 
 
 49. Notably in Cooper v. Aaron, 358 U.S. 1, at 18 (Sept. 29, 1958). See 
 also the decision of the three-judge federal district court in New Orleans, 
 Nov. 30, i960, which examined at length the historic doctrine of interposi- 
 tion and rejected it with brusque finality as ''an amorphous concept," which 
 was clearly "not a constitutional doctrine," but was, "if taken seriously," 
 simply an "illegal defiance of constitutional authority." Bush v. Orleans 
 Parish School Board, 188 Federal Supplement 916, at 922, 926 (Nov. 30, 
 i960); citing Ableman v. Booth at 225. 
 
 24 
 
ARTHUR BESTOR 
 
 within which Taney was careful to confine his argument. It is an 
 error to say, as is often loosely said, that the decision in Ableman v. 
 Booth upheld federal supremacy in a comprehensive or inclusive 
 sense. It upheld federal judicial supremacy only, the argument 
 being closely confined to the power of that one branch of govern- 
 ment. The limits to federal legislative power might have been 
 examined had the constitutionality of the fugitive-slave act been 
 discussed in detail. But Taney dismissed the latter question in a 
 single sentence, devoid of argument or citation. Nothing whatever 
 in the opinion could be taken to imply that the supremacy so 
 sweepingly asserted on behalf of the federal judiciary vis-a-vis the 
 judiciaries of the several states had any sort of counterpart in the 
 legislative or executive realm. Quite the reverse. Taney included 
 in his decision an explicit reminder that ''it is the duty of the 
 courts of the United States to declare . . . unconstitutional and 
 void" any federal statute that transgressed the Constitution, and 
 he pointed out that the courts, by doing so, would "guard the States 
 from any encroachment upon their reserved rights by the General 
 Government." 50 
 
 Two years before, in the Dred Scott case, Taney had denied 
 to Congress any legislative power whatever in a matter that had 
 become of crucial importance — slavery in the territories. He was 
 by no means reversing his earlier decision. On the contrary, he 
 was buttressing it against attack. In the Dred Scott opinion, Taney 
 had pitted the judicial power against the legislative; in Ableman v. 
 Booth he was exalting the judicial power to new heights. 
 
 In legal form, the decision in Ableman v. Booth was a vindication 
 of federal judicial supremacy. In the actual historical context, 
 however, federal judicial supremacy did not mean the supremacy 
 of national policy over local or sectional policy. It meant precisely 
 the reverse. It meant the denial to the federal government of any 
 discretionary, policy-making function whatever in the matter of 
 slavery. Questions regarding slavery were to be settled by the 
 states that recognized the institution. And the federal judiciary — 
 acting under the Constitution (which likewise recognized slavery) 
 — was bound to give effect, extraterritorially, to the legal principles 
 developed by the slaveholding states in connection with the peculiar 
 kind of property that they alone possessed and that they alone, ac- 
 
 50. Ableman v. Booth, 21 Howard 506, at 520. 
 
 25 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 cordingly, were competent to legislate about. Even within the 
 boundaries of the free states, legal procedure was to follow strictly 
 the pattern set by and within the slaveholding states, regardless of 
 any concepts of due process of law that the free community might 
 deem fundamental. The principle of extraterritoriality could hardly 
 take a form more extreme. 
 
 The controversy that reached its climax in the Booth case is 
 conventionally interpreted as a conflict between federal supremacy 
 on the one hand and state rights or state sovereignty on the other. 
 Much is naturally made of the irony of the situation, the two fac- 
 tions to the slavery dispute having apparently switched their con- 
 stitutional positions abruptly, in flagrant pursuit of immediate ad- 
 vantage/' 1 A much more subtle analysis is necessary. It was not 
 federal supremacy in general that the court upheld, but federal 
 judicial supremacy. And federal judicial supremacy simply pro- 
 vided the means of enforcing the extraterritorial principles deduced 
 from state sovereignty. In this particular conflict — to assert a 
 paradox — the doctrine of state sovereignty was pitted against the 
 doctrine of state rights, and the doctrine of state sovereignty won. 
 
 To make this distinction intelligible, I must digress briefly and 
 ask the reader to examine with care the exact terminology of the 
 American Constitution. 
 
 "Powers" and "Rights" 
 
 The written Constitution — with which, in the following 
 discussion, the Bill of Rights is included — nowhere uses the words 
 "sovereign"' or "sovereignty.*' 52 Moreover, it knows nothing of 
 
 51. Thus Carl Schurz, an actual participant, later described the contest 
 as one "in which the Republican party, the natural opponent of the States' 
 rights doctrine . . . , planted itself upon extreme States' rights ground 
 and went to the very verge of actual nullification, while the Democratic 
 party, the traditional champion of the States' rights doctrine, became an 
 ardent defender of the Federal power as against any pretensions of States' 
 rights." But, he continued, "only two years later, when the bulk of the 
 Slave States . . . had carried the States' rights doctrine to the logical 
 length of secession," their opponents "rushed to arms to maintain the su- 
 preme authority of the Federal Government and to put down the pre- 
 tensions of States' rights which were made in favor of slavery." "It was 
 one of those struggles," he observed (quoting a remark of Lincoln's), 
 "which . . . become so mixed that, in the heat of the wrestle, the combatants 
 worked themselves into one another's coats." Schurz, Reminiscences (New 
 York, 1907), II: 1 14-15. 
 
 52. The Articles of Confederation, agreed to bv the Continental Con- 
 26 
 
ARTHUR BESTOR 
 
 "rights" belonging either to the states or to the federal government. 
 The foundation stone of the state-rights argument is the Tenth 
 Amendment, but this amendment speaks not of the rights of the 
 states but of their powers: ""The powers not delegated to the 
 United States, by the Constitution, nor prohibited by it to the States, 
 are reserved to the States respectively, or to the people." 53 The 
 Constitution does, of course, speak frequently of "rights" — and 
 occasionally of "privileges" or "immunities" — but in every instance 
 the term refers to something possessed by an individual person, 
 never something possessed, or capable of being possessed, by a 
 government. 54 Frequently such an individual right is protected, 
 
 gress on Nov. 15, 1777, and finally ratified on March 1, 1781, did include 
 the following provision: "Each state retains its sovereignty, freedom, and 
 independence, and every Power, Jurisdiction and right, which is not by 
 this confederation expressly delegated to the United States, in Congress 
 assembled." Art. II. Advocates of state sovereignty frequently argued 
 that the Constitution of 1787 continued to embody the principle, though 
 it conspicuously failed to include the clause. 
 
 53. The amendment is often flagrantly misquoted. At the Democratic 
 Convention in Los Angeles in i960, the southern minority submitted a 
 dissenting report on the platform, insisting on "strict adherence to the 
 constitutional guarantee that all powers not delegated by the states to the 
 Union are reserved to the states or to the people." New York Times, July 
 13. i960. Though the majority was said to "ignore the Tenth Amend- 
 ment," the accusatorial minority deliberately ignored its provision referring 
 to "powers . . . prohibited by it [the Constitution] to the States" — which 
 is, of course, the crux of the matter. The constitutional situation, often 
 misrepresented, is simply as follows: By the Fourteenth Amendment, the 
 Constitution prohibits to every state the power to "deny to any person 
 within its jurisdiction the equal protection of the laws." The Supreme 
 Court has ruled that "separate educational facilities are inherently un- 
 equal." Brown v. Board of Education of Topeka, 347 U.S. 483 (May 17, 
 1954). Accordingly, any state action to enforce segregation in the public 
 schools constitutes the use by the state of a prohibited power to "deny to 
 any person . . . the equal protection of the laws." Thus the Tenth Amend- 
 ment, by specifically recognizing that there are "powers . . . prohibited 
 ... to the States," raises no barrier to, but in fact gives support to, de- 
 segregation. In simplest terms, the question is not about powers delegated 
 to the federal government but about powers prohibited to the states. 
 
 54. The body of the Constitution refers only once to a "right": it em- 
 powers Congress to secure "to Authors and Inventors the exclusive Right 
 to their respective Writings and Discoveries." Art. I, sec. 8, clause 8. On 
 the other hand, the word appears in six of the first ten amendments, there- 
 by justifying the popular appellation, "Bill of Rights." The body of the 
 Constitution speaks of "Privileges and Immunities of Citizens"; and it uses 
 the term "privilege" in two other connections: members of Congress are 
 "privileged from Arrest." and "the Privilege of the Writ of Habeas Corpus" 
 
 27 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 not positively by specifying the right, but negatively by denying 
 to government some corresponding power. 5 '' 
 
 A clear-cut distinction pervades the entire written document. 
 On the one hand, there are powers, which are exercised by govern- 
 ment, which can be apportioned among the various branches and 
 levels of government, and which can be denied to the federal 
 government or to the states or to both. On the other hand are 
 rights, which are enjoyed by citizens or persons, which can be set 
 forth in positive terms, and which can also be defined negatively, 
 by denying to one or another government a corresponding power. 
 No usage inconsistent with this distinction is to be found anywhere 
 in the written Constitution. 56 The distinction is recognized with 
 absolute clarity in the companion clause to the Tenth Amendment, 
 namely the Ninth, which reads: "The enumeration in the Consti- 
 tution, of certain rights, shall not be construed to deny or disparage 
 others retained by the people/' In summary, certain powers, but 
 no rights, are delegated to the federal government. Certain other 
 powers, but again no rights, are reserved to the states. 57 Other 
 powers, ungranted to either type of government, remain in the 
 
 is safeguarded. See, respectively, Art. IV, sec. 2, and Art. I, sees. 6 and 9. 
 The Bill of Rights does not use the word "privilege," but the phrase 
 "privileges or immunities of citizens" reappears in the Fourteenth Amend- 
 ment (1868). The word "power" is used throughout the Constitution — 
 so frequently as to require no illustration. 
 
 55. One example will suffice to show the different modes by which 
 a right is protected. The Seventh Amendment expressly acknowledges "the 
 right of trial by jury," and the Sixth Amendment uses similar language. 
 In the body of the Constitution, however, the same right is safeguarded 
 by a positive instruction: "The Trial of all Crimes, except in Cases of 
 Impeachment, shall be by Jury." Art. Ill, sec. 2. The Fifth Amendment 
 uses a prohibition to protect a related right: "No person shall be held to 
 answer for a capital, or otherwise infamous crime, unless on a present- 
 ment or indictment of a Grand Jury." 
 
 56. The Declaration of Independence is equally consistent, notably in 
 its most memorable passage. All men, it says, "are endowed by their 
 Creator with certain unalienable Rights." Governments, on the other hand, 
 derive "their just powers from the consent of the governed." (Italics added.) 
 There is much less consistency in the terminology of the Articles of Con- 
 federation, which often couples "right and power," as in granting to the 
 United States in Congress assembled "the sole and exclusive right and 
 power of determining on peace and war. . . ." Art. IX. 
 
 57. As owners of property, of course, the states and the federal gov- 
 ernment do possess the ordinary rights associated with proprietorship. More- 
 over, they enjoy various immunities, both against one another (e.g., im- 
 munity from taxation) and against individual citizens (e.g., immunity 
 28 
 
ARTHUR BESTOR 
 
 hands of the people, thus creating for them a body of unalienated 
 rights. Among these are certain rights that are considered not 
 merely unalienated but (in the language of the Declaration of 
 Independence) unalienable. The latter are guaranteed in specific, 
 positive terms by various clauses of the Constitution. Moreover, 
 the enumeration of these particular rights may "not be construed 
 to deny or disparage others retained by the people." 
 
 Given this consistent terminology, the phrase "state rights" is, 
 strictly speaking, a constitutional solecism. As a term denoting 
 a specific constitutional principle, indeed, it does not appear to 
 have been used until 1798, in the debates over the alien and sedition 
 acts. 58 On this, its first appearance, however, the phrase was not 
 so much a solecism as a bit of convenient shorthand. The question 
 at issue — freedom of the press — involved a "right" in the strictest 
 constitutional sense. The power of the state was thus being invoked 
 to protect a right. Accordingly it is not a serious misuse of language 
 to telescope the terms and describe the Kentucky and Virginia 
 Resolutions of 1798 as a defense of "state rights." Nor is the latter 
 phrase inappropriate to describe state interposition against the 
 fugitive-slave act in the 1850's. 
 
 State Sovereignty a Doctrine of Power 
 
 The doctrine of state rights, defined in this way, is a purely 
 defensive doctrine. Arguments about sovereignty may be used to 
 support it, but its spirit is essentially hostile to all the leading ideas 
 associated with the concept of sovereignty — particularly with the 
 concept of sovereignty as an indivisible and illimitable power, 
 wielded by a definitive body, which must be the sole and final judge 
 of its own authority. The latter conception, however, was central to 
 the doctrine of state sovereignty. And its roots lay in a political 
 tradition that the makers of the American Constitution had con- 
 sciously rejected. In every form of government, Sir William Black- 
 
 from suit). These, however, are not the "rights" for which the state- 
 rights argument contends. 
 
 58. "The powers of our general Government are checked by State 
 rights." Samuel Smith (Md.), H.R., June 21, 1798. Annals, 5 Cong., 2 
 Sess., 2022. Mitford M. Mathews, ed., A Dictionary of Americanisms on 
 Historical Principles (Chicago, 1951 ) , 1642, records no earlier use of the 
 phrase in a technical constitutional sense. As a rhetorical expression, of 
 course, it crops up earlier. 
 
 29 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 stone had written on the eve of the American Revolution, "there is 
 and must be ... a supreme, irresistible, absolute, uncontrolled 
 authority, in which the jura summi imperii, or the rights of sover- 
 eignty, reside.*' 59 From such a postulate the British declaratory act 
 of 1766 logically followed: that the King in Parliament ''had, 
 hath, and of right ought to have, full power and authority to make 
 laws and statutes of sufficient force and validity to bind the colonies 
 and people of America, subjects of the crown of Great Britain, in 
 all cases whatsoever." 60 
 
 The American Revolution involved a rejection not only of 
 British sovereignty but also, in a profound and pervasive way, of 
 the very concept of indivisible and uncontrollable sovereignty. 
 The theory of divided sovereignty superseded it. G1 And the doctrine 
 of state rights (as here defined) was perfectly compatible with 
 the idea of divided sovereignty. By contrast, the doctrine of state 
 sovereignty represented a return to the theory that sovereignty is, 
 by its very nature, indivisible. Jefferson Davis, for example, dis- 
 missed the notion of divided sovereignty as "paradoxical." He 
 insisted that "the only political community — the only independent 
 corporate unit — through which the people can exercise their 
 sovereignty, is the State." And he quoted with approval Burla- 
 maqui's definition of sovereignty as *'a right of commanding in the 
 last resort in civil society." 62 
 
 The doctrine of state sovereignty was not a doctrine of rights, 
 but a doctrine of command and of power, imperious in its language, 
 bristling with words like "supreme," "irresistible," "absolute," 
 "uncontrolled," "paramount." Extraterritoriality, too, is an im- 
 perious principle, overriding local law and local custom and negating 
 the idea of local self-government. These characteristics appeared 
 in the conflict over fugitive slaves. The extraterritorial claims of 
 the slaveholding states were to be enforced regardless of the views 
 
 59. Blackstone, Commentaries on the Laws of England (1765- 1769), 
 Introduction, sec. 2, p. 49. 
 
 60. 6 George III, chap. 12 (March 18, 1766). Accepted without ques- 
 tion by Blackstone, Introduction, sec. 4, p. 109. 
 
 61. The acceptance by the Constitutional Convention of 1787 of the 
 principle of divided sovereignty will be discussed in the book from which 
 the present paper is drawn. Space does not permit a recapitulation here. 
 For the concept itself, however, see the quotations from Taney, n. 48 above. 
 
 62. Jefferson Davis, The Rise and Fall of the Confederate Government 
 (New York, 1881), I: 141-42. 
 
 30 
 
ARTHUR BESTOR 
 
 of the community within which the law was to be executed. Because 
 this particular extraterritorial claim was recognized by the federal 
 Constitution, state sovereignty could be made effective through the 
 use of federal power. On the surface, therefore, the legal vindication 
 of the proslavery position appeared to be simply a victory for federal 
 supremacy. The legal form of the fugitive-slave decision, however, 
 should not be allowed to obscure the fundamental role played by 
 the doctrine of state sovereignty and its extraterritorial corollaries. 
 
 The Question of Slavery in the Territories 
 
 The doctrine of state sovereignty played its most important 
 role, however, in the conflict over slavery in the territories. In this 
 conflict, moreover, it revealed itself even more clearly as a naked 
 doctrine of power. Finally, the extraterritorial corollaries of state 
 sovereignty constituted the indispensable foundation of the pro- 
 slavery argument concerning the territories. 
 
 At this point a change of terminology becomes imperative, as 
 the awkwardness of the last sentence indicates. The asserted right 
 of a slaveowner to take his slaves into the territories and to hold and 
 exploit them there is properly described as an extraterritorial right, 
 for it was a right that was to be exercised and protected outside the 
 territory of the state that created the right in the first place. Never- 
 theless, intolerable confusion results if one describes by the term 
 extraterritorial a right that was to be exercised within what was 
 officially known as a "territory." To avoid this difficulty I propose, 
 in the pages that follow, to employ as a synonym for "extraterritorial" 
 a rather awkward neologism — namely, "extra-jurisdictional," mean- 
 ing a right (or a power) exercised beyond the jurisdiction of the 
 state in which it originated. 63 
 
 Now the right to reclaim a fugitive slave was an extra-jurisdic- 
 tional right explicitly recognized by the Constitution. But a right 
 to carry slaves into the territories was nowhere mentioned in the 
 written document. On the other hand, no power to prohibit the 
 introduction of slaves was mentioned either. Every constitutional 
 theory concerning the extension of slavery was thus a structure of 
 pure inference — inference either from certain phrases of the written 
 
 63. Not to be confused, of course, with "extrajudicial," defined as 
 "forming no part of the case before the court." New English Dictionary 
 on Historical Principles. 
 
 31 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Constitution, or inference from past precedents, or inference from 
 some abstract theory about the Constitution. The latter sort of 
 inference predominated in the discussions — as, for example, when 
 the antislavery forces invoked a "higher law," moral in content, 
 or when the proponents of "squatter" sovereignty invoked the prin- 
 ciple of local self-determination, or when (to return to our im- 
 mediate subject) the defenders of slavery invoked the doctrine of 
 state sovereignty. 
 
 It is a curious fact that though the American Constitution was 
 designed for an expanding nation, the western territories have always 
 been anomalies in the scheme. It is conventional to say that the 
 Constitution created a dual system, composed of the federal gov- 
 ernment and the states. In reality the Union has always comprised 
 three elements, the federal government, the states, and the terri- 
 tories. Only in recent years have the latter declined to a place of 
 relative insignificance in the constitutional structure. All but nine- 
 teen of the existing fifty states have passed through a formal terri- 
 torial stage. Almost three quarters of the continental area of the 
 United States has been, at one time or another, under a territorial 
 government established by federal statute. <u 
 
 The anomalous position of the territories in the constitutional 
 scheme is simply this : Within the parts of the Union fully organized 
 into states, the Constitution recognizes the existence of two govern- 
 ments, state and federal, operating simultaneously but independently 
 and acting directly upon individuals. To each government a sphere 
 of authority is constitutionally assigned. International and inter- 
 state relations are the supposed province of federal action. Ques- 
 
 64. The exceptions were: the thirteen original states; two states that 
 were almost immediately admitted (Vermont in 1791 and Kentucky in 
 1792); and four others for which the circumstances were exceptional: 
 Maine (admitted in 1820 by consent of Massachusetts, of which it had 
 been a part), Texas (annexed as a full-fledged state in 1845), California 
 (admitted in 1850 under a state constitution that had been adopted be- 
 fore territorial government was extended over the Mexican cession), and 
 West Virginia (which seceded from Virginia and was admitted in 1863). 
 The present boundaries of these nineteen states include a gross area of 
 856,122 square miles, compared with 3,022,387 for continental United 
 States as a whole (excluding Alaska). U.S. Bureau of the Census, Statis- 
 tical Abstract: 7955 (76th ed., Washington, 1955), 9 (Table 4). Maps 
 showing the boundaries of the territories at all periods are in Charles O. 
 Paullin and John K. Wright, Atlas of the Historical Geography of the 
 United States (Washington, 1932), Plates 61-67. 
 
 32 
 
ARTHUR BESTOR 
 
 tions of domestic social policy — involving the exercise of "police 
 powers," so-called — belong clearly to the sphere of action reserved 
 to the states. In the territories, however, no state government, in a 
 constitutional sense, exists. By whose authority, then, are local 
 police powers to be exercised? 
 
 Before examining the possible answers, it will be well to take 
 careful note of the practical importance of the question — one that 
 seems, at first glance, to belong to the realm of metaphysical specu- 
 lation. Under ordinary circumstances, a precise answer was clearly 
 unnecessary. A territory was simply an area in transition from 
 unsettled wilderness to complete statehood. Whatever government 
 existed de facto within a territory was bound to wield a police power 
 for the time being, simply because it was charged with maintaining 
 order. A rough and ready practicality, untroubled by elaborate 
 theories about political structure, sufficed for carrying on the every- 
 day affairs of a territory and handling (or postponing) its relatively 
 simple problems. Territorial status was a temporary one. In the 
 end, statehood would operate as an act of oblivion, curing or 
 obliterating any theoretical irregularities that might have belonged 
 to the territorial period. 
 
 This was true in most circumstances, but not in all. Slavery 
 created problems of precisely the kind to convert these abstract and 
 apparently trivial questions of constitutional theory into practical 
 and momentous issues of constitutional law. The police power was, 
 among other things, the power to deal with slavery. It was through 
 their police powers that the slaveholding states enacted slave codes, 
 it was through theirs that the free states abolished slavery. Whether 
 or not slavery expanded into the territories thus depended upon 
 how (and by whom) the police power was exercised there. 
 
 In the nature of the case, moreover, a decision on slavery during 
 the territorial period would have permanent, not temporary, effects. 
 If the police power were employed at the outset to protect the 
 property rights of slaveholders, then slavery was likely to become 
 so entwined with the institutions of the locality as to be in practice 
 ineradicable. On the other hand, if the police power were used in 
 such a way as to discourage the bringing in of slaves, then the terri- 
 tory would almost certainly produce a free-state majority when the 
 time came to write a permanent constitution and seek admission 
 to the Union. 
 
 33 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Both parties to the controversy understood perfectly these im- 
 plications. Lincoln, in a speech at Peoria on October 16, 1854, 
 presented the antislavery argument against vesting the power of 
 decision in the first settlers: 
 
 Another important objection to this application of the right of self- 
 government, is that it enables the first few, to deprive the succeeding 
 many, of a free exercise of the right of self-government. The first few 
 may get slavery ix, and the subsequent many cannot easily get it out. 
 How common is the remark now in the slave States — "If we were 
 only clear of our slaves, how much better it would be for us/' They 
 are actually deprived of the privilege of governing themselves as they 
 would, by the action of a very few, in the beginning. 65 
 
 Proslavery spokesmen were equally opposed to allowing the set- 
 tlers to decide. James S. Green of Missouri stated the reasons in a 
 speech to the Senate in i860. Unless slave property is protected in 
 the territories from the beginning, he argued, 
 
 nobody will go there except those who do not own slaves: and when 
 they come to the determination of the question, there will not be an 
 interest sufficient to justify the adoption of the law of holding slaves. 
 The consequence, the inevitable consequence, will be — not another 
 slave State, no expansion of the South, no outlet to the South; but 
 cramped and confined within her present limits, she may prosper 
 for a while, but she will ultimately languish for the want of the power 
 of expansion. 66 
 
 To opponents and defenders of slavery alike, it seemed clear 
 that the first decisions made in the territories would be the de- 
 termining ones. However significant in theory might be the sov- 
 ereignty of the state when eventually admitted to the Union, in 
 practice this power — plenary but deferred — might well prove 
 meaningless so far as slavery was concerned. Long before a state 
 attained full standing, its social system could have been irrevocably 
 fixed by decisions already made. Control of the police power during 
 the territorial stage was thus the crux of the entire issue. 
 
 The Wilmot Proviso 
 
 It was the Wilmot Proviso of 1846 that brought this issue 
 to the forefront of American politics and thus began the fifteen-year 
 
 65. Collected Works, II: 268. 
 
 66. Jan. 11, i860. Globe, 36 Cong., 1 Sess., App., 77. In a speech 
 
 34 
 
ARTHUR BESTOR 
 
 crisis that finally swept the nation into civil war. Under debate was 
 an amendment to a two-million-dollar appropriation bill requested 
 by President James K. Polk, for the purpose, as he said, of paying 
 "for any concessions which may be made by Mexico'' in a future 
 peace treaty. The principal object, the President hardly needed to 
 explain, was "the adjustment of a boundary between the two 
 republics" — in plain language, territorial cessions by Mexico to 
 the United States. 67 During debate in the House of Representatives, 
 in the evening of August 8, 1846, David Wilmot of Pennsylvania 
 moved the following amendment: 
 
 Provided, That, as an express and fundamental condition to the 
 acquisition of any territory from the Republic of Mexico by the United 
 States, by virtue of any treaty which may be negotiated between them, 
 and to the use by the Executive of the moneys herein appropriated, 
 neither slavery nor involuntary servitude shall ever exist in any part of 
 said territory, except for crime, whereof the party shall first be duly 
 convicted. 68 
 
 The House adopted the proviso almost immediately, by a vote of 
 83 to 64. 60 The Senate refused to accept it, then or later. 70 But the 
 fat was in the fire. 
 
 to the Mississippi legislature on Nov. 16, 1858, Jefferson Davis likewise 
 emphatically denied the right "of the first in the race of migration who 
 reach a territory ... to enact laws for the exclusion of other joint owners 
 of the territory, who may . . . choose to take with them property recog- 
 nized by the Constitution, but not acceptable to the first emigrants." 
 Dunbar Rowland, ed., Jefferson Davis, Constitutionalist: His Letters, Papers 
 and Speeches (Jackson, Miss., 1923), III: 345. Writing long after the 
 Civil War, Davis reiterated his objection to the doctrine of popular 
 sovereignty, as involving "a power in the Territorial Legislatures permanent- 
 ly to determine the fundamental, social, and political institutions of the 
 Territory, and thereby virtually to prescribe those of the future State." 
 Rise and Fall of the Confederate Government, I: 40. 
 
 67. Message of the President, Aug. 8, 1846. Globe, 29 Cong., 1 Sess., 
 121 1. 
 
 68. Globe, 29 Cong., 1 Sess., 12 17. 
 
 69. This vote was in committee of the whole. Ibid. In the House it- 
 self, the bill (with the Wilmot Proviso included) passed by a vote of 87 
 to 64, Ibid., 1218 (Aug. 8, 1846). 
 
 70. Congress adjourned two days later (Aug. 10, 1846) with the Senate 
 bogged down in debate on the measure. Ibid., 1220-21. At the next 
 session a new bill (increasing the appropriation to three million dollars) 
 was introduced. The House of Representatives, in committee of the whole, 
 amended the measure on Feb. 15, 1847, to include an even more sweeping 
 version of the proviso: "Provided, further, That there shall be neither 
 
 35 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 What made the Wilmot Proviso controversial? The answer re- 
 quires a careful discrimination among constitutional principles. The 
 proviso was in complete accord with the law of the Constitution, 
 as understood up to that time. In banning slavery, the proviso 
 used language almost identical with that of the Northwest Ordinance 
 of July 13, 1787, adopted by the Continental Congress while the 
 Constitutional Convention of 1787 was still sitting. 71 After the 
 adoption of the Constitution, Congress immediately re-enacted the 
 ordinance 72 and thereafter included the same prohibition, in 
 virtually the same language, in a series of five territorial acts, from 
 1800 to 1838, 73 and in the Missouri Compromise of 1820. 74 The 
 
 slavery nor involuntary servitude in any territory on the continent of 
 America which shall hereafter be acquired by or annexed to the United 
 States by virtue of this appropriation, or in any other manner whatever, 
 except for crimes whereof the party shall have been duly convicted. . . ." 
 The proviso was moved by Hannibal Hamlin of Maine later Vice-President 
 under Lincoln' and adopted, in committee of the whole, by a vote of 
 1 10 to 89. When the committee rose, the House of Representatives itself 
 adopted the Wilmot Proviso as it continued to be called, regardless of its 
 actual mover) by a vote of 115 to 106, and then passed the bill, 115 to 
 105. Globe, 29 Cong., 2 Sess., 424-25 Feb. 15, 1847). The Senate re- 
 jected the Wilmot Proviso on March 1, 1847, by a vote of 21 to 31. Ibid., 
 
 555- 
 
 The Senate bill, without the proviso, came before the House of Rep- 
 resentatives on the last day of the session, March 3. 1847. An attempt 
 to reinsert the Wilmot Proviso was finally defeated, 97 to 102, and the 
 bill without it then passed the House, 115 to 81. Ibid., 573. 
 
 71. "There shall be neither Slavery nor involuntary Servitude in the 
 said territory otherwise than in the punishment of crimes, whereof the 
 Party shall have been duly convicted. . . ."' In "An Ordinance for the 
 government of the territory of the United States North west of the river 
 Ohio,'' July 13, 1787. Articles of Compact, Art. 6. Territorial Papers, II: 49. 
 
 72. Act of Aug. 7, 1789, chap. 8. Stat, at L., I: 50. Also printed, from 
 the original MS. in Territorial Papers, II: 203-4. 
 
 73. Acts creating governments for the territories of Indiana (1800), 
 Michigan (1805), Illinois (1809), Wisconsin (1836), and Iowa (1838). 
 These are listed, with citations, in the dissenting opinion of Justice Ben- 
 jamin R. Curtis in the Dred Scott case, 19 Howard 393, at 618 (March 6. 
 1857). .An analysis of the entire series of territorial acts is provided in 
 Max Farrand, The Legislation of Congress for the Government of the Or- 
 ganized Territories . . . , i/8g-i8gj Newark, N.J., 1896). Texts of the 
 basic acts are reprinted in Francis N. Thorpe, ed., The Federal and State 
 Constitutions . . . of the States, Territories, and Colonies Now or Heretofore 
 Forming the United States of America [Washington, 1909), 7 vols.; here- 
 after cited as Thorpe, ed., Constitutions. 
 
 74. Act of March 6, 1820, chap. 22, sec. 8. Stat, at L., Ill: 545, at 548. 
 Reprinted in Thorpe, ed., Constitutions. IV: 2148. 
 
 36 
 
ARTHUR BESTOR 
 
 power to act on the matter had not, prior to 1846, been seriously 
 challenged. 7. 
 
 The principle that the Wilmot Proviso thrust aside was not a law 
 of the Constitution, but a custom of the Constitution, which dated 
 back to the First Congress. On December 22, 1 789, North Carolina 
 ceded its western lands to the Union, to be governed according to 
 the principles of the already re-enacted Northwest Ordinance, 
 "Provided always that no regulations made or to be made by Con- 
 gress shall tend to emancipate Slaves."' 7 Congress accepted the 
 condition and set up a Southwest Territory (later the state of Ten- 
 nessee), explicitly providing that the antislavery section of the earlier 
 ordinance should not apply. 77 Thereafter, from 1798 to 1822, 
 Congress organized various southern territories in like manner, such 
 acts roughly balancing in number those in which it prohibited 
 slavery. 78 Moreover, the Missouri Compromise of 1820 established 
 the parallel of 36 ° 30' north latitude as a dividing line through 
 the territories that had been acquired by the Louisiana Purchase 
 and that remained in territorial status after the admission of 
 Missouri to statehood. North of this line slavery was prohibited; 
 
 75. An exhaustive and invaluable treatise on the legal aspects of the 
 territorial system is provided by Francis S. Philbrick in the 477-page in- 
 troduction to his edition of The Laws of Illinois Territory, i8og-i8i8 (Col- 
 lections of the Illinois State Historical Library, XXV, Springfield, 1950), 
 hereafter cited simply as Philbrick. On the question of power to legislate 
 for the territories, see especially pp. xcviii-clvii. 
 
 76. North Carolina, act of cession, Dec. 22, 1789, sec. 4. Territorial 
 Papers, IV (Washington, 1936) : 7. Repeated verbatim in the deed of ces- 
 sion, Feb. 25, 1790, and in the act of Congress accepting it, April 2, 1790. 
 Ibid., 12, 16. 
 
 77. "An Act for the government of the territory . . . south of the 
 river Ohio," May 26, 1790, chap. 14. Stat, at L., I: 123. Territorial 
 Papers, IV: 18-19. 
 
 78. In the list that Justice Curtis included in his dissent to the Dred 
 Scott decision, 19 Howard 393, at 618, five territorial acts of this character 
 from 1798 to 1822 were cited. These neatly balance the five territorial 
 acts from 1800 to 1838 in which slavery was prohibited. Such a balance, 
 however, is somewhat artificial, for many acts permitted slavery simply 
 by remaining silent. More significant is the fact that seven states had 
 emerged from the territorial stage before the end of 1846 with slavery as 
 an established institution, namely: Tennessee (admitted 1796), Louisiana 
 (1812), Mississippi (1817), Alabama (18 19), Missouri (1821), Arkansas 
 (1836), and Florida (1845); whereas five had emerged as free states, 
 namely: Ohio (1803), Indiana (181 6), Illinois (1818), Michigan (1837), 
 and Iowa (1846); and another was in close prospect: Wisconsin (admitted 
 1848). 
 
 37 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 south of it there was no restriction. 79 The established custom of 
 the Constitution, before 1846, was thus to apportion the territories 
 in an equitable fashion, so as to permit slaveholding in the southerly 
 portions and prohibit it in the northerly. 
 
 The conservative position on the Constitution, throughout the 
 entire crisis, was that the law and the custom of the Constitution 
 (as here defined) were equally binding — in other words, that 
 Congress had an indubitable power to prohibit or permit slavery 
 in the territories, but that it had a corresponding obligation to con- 
 sider the interests of the slaveholding states in legislating for the 
 southern territories and the wishes of the free states in legislating for 
 the northern. 8 " In immediate reaction to the Wilmot Proviso, this 
 position was asserted in several substitute amendments that would 
 have extended the Missouri Compromise line across all territories 
 subsequently acquired. Each of these proposals was promptly voted 
 down in the House of Representatives/ 1 It was this rejection of the 
 
 79. See n. 74 above. 
 
 80. One of the ablest statements of the conservative position is a little- 
 known book by Sidney George Fisher, published anonymously in November, 
 1859. The Law of the Territories (Philadelphia, 1859); see especially pp. 
 78-83. The conservative position (as here defined) was the one taken 
 by Justice Curtis in his dissent in the Dred Scott case, wherein he re- 
 jected three alternative constitutional views that had been presented at 
 the bar of the court. These he succinctly summarized as follows: "One 
 is. that though Congress can make a regulation prohibiting slavery in a 
 Territory, they cannot make a regulation allowing it; another is, that it 
 can neither be established nor prohibited by Congress, but that the people 
 of a Territory, when organized by Congress, can establish or prohibit 
 slavery; while the third is, that the Constitution itself secures to every 
 citizen who holds slaves, under the laws of any State, the indefeasible right 
 to carry them into any Territory, and there hold them as property." 19 
 Howard 393, at 620. Obviously these were the positions, respectively, of 
 the Republicans, of the "territorial sovereignty" Democrats under Douglas, 
 and of the extreme southern Democrats (whose senatorial spokesman was 
 Jefferson Davis). The fourth position (that is, the conservative one, which 
 Curtis by implication accepted) was presumably the position of the Con- 
 stitutional Union Party in i860, though its platform and the speeches 
 of its candidates were frustratingly vague. It was clearly the position of 
 Senator John J. Crittenden of Kentucky, whose famous compromise resolu- 
 tions, proposed in the Senate on Dec. 18, i860, represented essentially a 
 return to the constitutional understandings of the period prior to 1846, 
 which he sought to put beyond question by embodying them in formal 
 constitutional amendments. The crucial first article would have restored 
 the Missouri Compromise line for all territory "now held, or hereafter 
 acquired." Globe, 36 Cong., 2 Sess., 114. 
 
 81. Immediately after the introduction of the Wilmot Proviso, on Aug. 
 
 38 
 
ARTHUR BESTOR 
 
 traditional approach to the problem that led to an intensive re- 
 examination of constitutional precedents and postulates by all con- 
 cerned, and hence produced the great constitutional crisis of 
 1846-1860. 
 
 The Constitutional Status of Territories 
 
 The precedents went back to a period before there was a 
 formal constitution. Indeed, a conflict over the western territories 
 blocked, for almost four years, the ratification of the first written 
 instrument of federal government, the Articles of Confederation, 
 drafted in 1777. Certain states claimed sovereignty over extensive 
 areas in the West; certain others possessed no such claims. The latter 
 insisted that these great unsettled areas become the property of 
 the Union, rather than of particular states, and be developed for 
 the common benefit. The log jam was broken in 1 780, when various 
 states (commencing with New York) began to cede their western 
 claims, and Congress adopted a resolution promising that these 
 lands would "be settled and formed into distinct republican states, 
 which shall become members of the federal union, and have the 
 same rights of sovereignty, freedom and independence, as the other 
 states." 82 The smaller states were satisfied. On March 1, 1781, 
 the last state gave its assent to the Articles of Confederation, and 
 the United States began to live under its first written federal 
 constitution. 
 
 The obvious — indeed, the necessary — assumption was that Con- 
 gress would provide governments for the new territories. In doing 
 so, it was morally bound to accord to actual settlers some degree of 
 participation in territorial government and to advance them as 
 rapidly as possible toward the fully self-governing stage that state- 
 hood would represent. Throughout the 1780's there were sharp 
 
 8, 1846, an amendment to substitute the Missouri Compromise line was 
 voted down by the House of Representatives, sitting as committee of the 
 whole, 54 to 89. Globe, 29 Cong., 1 Sess., 1217. When the proviso came 
 up again, on Feb. 15, 1847, three distinct amendments to like effect (one 
 of them offered by Stephen A. Douglas) were similarly voted down by the 
 House, again in committee of the whole. The votes were 82 to 109 and 
 81 to 104; the third amendment was rejected without a division. Globe, 
 29 Cong., 2 Sess., 424-25. 
 
 82. Resolution of Oct. 10, 1780. Journals of the Continental Congress, 
 ijJ4-ij8g (Washington, 1904-1937), XVIII: 915. 
 
 39 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 conflicts of opinion about the proper balance to be struck between 
 federal authority and local autonomy in the territories. But there 
 was not the slightest hint that the individual states should play a 
 separate and independent role — apart from the constituted organs 
 of the Union — in governing the territories they had already ceded, 
 thereby surrendering (in the words of the Virginia deed of cession) 
 "all right, title and claim as well of soil as of jurisdiction." 8 ' ' 
 
 The real territorial question of the early republic was the degree 
 of local self-government to be granted the inhabitants of a territory. 
 On one side was Thomas JefTerson, who drafted the first land 
 ordinance in 1784, and who proposed to give the settlers, from the 
 very beginning, almost complete control over their own affairs. On 
 the other side were the more conservative groups who shaped the 
 Northwest Ordinance of 1787. This enactment specified a virtually 
 colonial type of government, by federally appointed authorities, 
 during the first stage of territorial existence ; during the second stage 
 it permitted the inhabitants some direct participation in territorial 
 government; but it withheld full powers of self-government until 
 the time for statehood arrived. The latter pattern prevailed, for 
 the Ordinance of 1787 superseded the Ordinance of 1784 and 
 became the prototype of all later territorial acts. 84 
 
 Divergent as were these two philosophies of territorial government, 
 they reached an identical conclusion so far as slavery was concerned. 
 Jefferson's original draft of 1784 included a prohibition of slavery 
 in all the western territories. s5 The Ordinance of 1787 applied 
 a similar prohibition to the particular area with which it dealt, 
 
 83. March 1, 1784. Territorial Papers, II: 9. The New York cession, 
 March 1, 1 781 , used the words: "All the Right, Title, Interest, Jurisdiction 
 and Claim." Ibid., 5. 
 
 84. See the elaborate comparison of the two plans of territorial govern- 
 ment by Philbrick, ccl-ccclxxxvi. 
 
 85. "That after the year 1800 of the Christian aera, there shall be 
 neither slavery nor involuntary servitude in any of the said states, other- 
 wise than in punishment of crimes, whereof the party shall have been duly 
 convicted to have been personally guilty." Report to Congress of the 
 committee to prepare a plan for the temporary government of the western 
 territory, March 1, 1784 (original in Jefferson's handwriting). Julian P. 
 Boyd, ed., The Papers of Thomas Jefferson, VI (Princeton, N.J., 1952): 
 604. The clause appeared in the revised report, March 22, 1784 (also in 
 Jefferson's hand). Ibid., 608. As discussed in n. 87 below, it was re- 
 jected by Congress and does not appear in the ordinance as enacted on 
 April 23, 1784. Ibid., 613-15. 
 
 40 
 
ARTHUR BESTOR 
 
 "the territory of the United States North west of the river Ohio." 8(i 
 Jefferson's prohibitory clause was eliminated from the Ordinance 
 of 1784 before enactment by Congress, 87 but its subsequent inclusion 
 in the Ordinance of 1787 showed that the dropping of the provision 
 did not imply a lack of power to adopt it. 
 
 There was, it is true, a subtly different philosophical basis for 
 the two abolitionary clauses. In the Northwest Ordinance, Congress 
 was simply legislating for the territories. This legislative power 
 might, without question, be exercised in an opposite way, to permit 
 slavery, and it was so exercised in 1790 when Congress created the 
 Southwest Territory. s * In the Jeffersonian scheme, on the other 
 hand, the prohibition of slavery did not represent an exercise of 
 federal legislative power, for Jefferson assigned virtually all legisla- 
 tive power to the inhabitants of the territories themselves. Instead, 
 the prohibition of slavery in the territories was, in Jefferson's mind, 
 simply a vindication of the principle of natural and unalienable 
 rights. 89 Slavery denied the fundamental right to liberty. To elimi- 
 nate this violation of natural rights in the older states would require 
 time, but there was no reason why slavery should not be banned 
 
 86. See n. 71 above. 
 
 87. The matter came to a vote on April 19, 1784. The motion was 
 put in such a way than an affirmative majority was needed to retain 
 Jefferson's prohibition of slavery. The motion was to strike out the sec- 
 tion, but the question was put as follows: "Shall the words moved to 
 be struck out stand?" Six states voted in the affirmative, against only 
 three in the negative, but the rules of Congress required an affirmative 
 vote of seven states, and the provision was lost. Actually the seven states 
 from Pennsylvania northward were unanimously in favor, fourteen of their 
 delegates in all voting aye. One of these states (New Jersey), however, 
 was represented by only a single delegate, insufficient for a quorum; hence the 
 state could not be counted. Among the southern states, only two (Mary- 
 land and South Carolina) were unanimously against the provision. In 
 North Carolina the delegation was evenly divided; hence the vote of the 
 state could not affect the decision. Within the Virginia delegation, too, 
 there was division, and, by a bitter irony, Jefferson's affirmative vote was 
 overridden by the negative votes of his two colleagues. Delaware and 
 Georgia were absent. Altogether, only seven individual delegates were 
 opposed to the provision, against sixteen in favor, two of the latter from 
 southern states. Journals of the Continental Congress, XXVI: 247. Few 
 issues so momentous have ever been decided by so unsatisfactory a ballot. 
 
 88. See n. 77 above. 
 
 89. Cf. the exclamations in his Notes on Virginia, written at this very 
 time: "With what execrations should the statesman be loaded, who [per- 
 mits] one half the citizens thus to trample on the rights of the other. . . . 
 And can the liberties of a nation be thought secure when we have removed 
 
 41 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 from the beginning in new territories that were to grow up "in 
 republican forms." <J The prohibition of slavery was to be part of 
 what Jefferson labeled a "Charter of Compact" — in effect a pri- 
 mordial bill of rights, and, as such, "fundamental" and "un- 
 alterable." 1 ' 1 Whether the abolition of slavery be regarded as a legis- 
 lative measure or as a constitutional protection of fundamental 
 rights, the fact was that by 1787 it had entered clearly into the 
 system of law being evolved for the territories. 
 
 In terms of the American concept of constitutional law — which 
 grants priority to the language of the written Constitution over any 
 mere tradition of constitutional action — the basic question was 
 whether the Constitution of 1787 validated the measures that had 
 already been taken respecting the territories. If not — and especially 
 if the Constitution could be construed as forbidding these measures 
 — then the policy (no matter of how long standing) could be 
 reversed on constitutional grounds. This was precisely the result at 
 which the defenders of slavery aimed in the constitutional doctrine 
 they developed after 1846. They built up, from state-sovereignty 
 premises, a theory of the Constitution that denied the legality of 
 every measure prohibiting slavery in the territories that had ever 
 been enacted from the time the Union was perfected in 1 787-1 788. 
 
 They were aided in doing so by the undeniable vagueness and 
 
 their only firm basis, a conviction in the minds of the people that these 
 liberties are of the gift of God?" The way, he hoped, was "preparing, 
 under the auspices of heaven, for a total emancipation." Jefferson, Notes 
 on the State of Virginia (William Peden, ed., Chapel Hill, N.C., 1955), 
 162-63. He still hoped that Virginia would pass legislation he had earlier 
 favored, which would "emancipate all slaves born after passing the act." 
 Ibid., 137; see also Boyd, ed., Jefferson Papers, II: 472m 
 
 go. Phrases promising "a Republican Form of Government" echoed 
 through all the documents of the founding period. See, for example, the 
 resolution of Congress of Oct. 10, 1780, on the cession of western lands 
 (cited in n. 82 above); Jefferson's draft ordinance of 1784 (from which 
 the phrase in the text is quoted); and the Constitution itself, Art. IV, sec. 
 4. Such guarantees furnished one basis for the view that the federal gov- 
 ernment should exercise a general superintendence over the institutions 
 that might develop in the territories — including the institution of slavery. 
 Thus Timothy Fuller of Massachusetts declared in the House of Repre- 
 sentatives on Feb. 15, 18 19, that "the existence of slaver)' in any State is 
 so far a departure from republican principles." Annals, 15 Cong., 2 Sess., 
 1 180. 
 
 91. Boyd, ed., Jefferson Papers, VI: 605. On the essential unreality of 
 the supposed "compact," see Philbrick, clxxix, et seq. 
 
 42 
 
ARTHUR BESTOR 
 
 ambiguity of the single clause of the written Constitution that dealt 
 with territorial matters: 
 
 The Congress shall have Power to dispose of and make all needful 
 Rules and Regulations respecting the Territory or other Property 
 belonging to the United States. . . .'•'- 
 
 Though legislative power can be described as the power to make 
 rules and regulations,' 11 nevertheless the language of this clause 
 was obviously weaker than that employed in giving Congress the 
 power "to exercise exclusive Legislation in all Cases whatsoever' 1 
 over the District of Columbia and over such federal sites as forts 
 and dockyards. 1 ' * Moreover, by referring to "Territory or other 
 Property/' and by emphasizing the power "to dispose of" both, 
 the clause might be interpreted as referring to real-estate transactions 
 rather than to territorial government. 
 
 By making the most of these ambiguities, proslavery theorists 
 could argue either that this particular clause did not apply to the 
 situation at all or that it delegated to Congress such limited au- 
 thority over the territories that no legislative interference with 
 slavery was permissible there. A different kind of power — a non- 
 legislative power, deriving from a different constitutional source — 
 could then be assigned to Congress. And this power, being a creation 
 of pure constitutional theorizing, could be so defined that it would 
 be capable of protecting slavery in the territories without, at the 
 same time, subjecting it to the hazard of hostile legislation. 
 
 If full legislative power over the territories had not been vested 
 in Congress by the Constitution, then surely the power must belong 
 to the inhabitants themselves. This had been the Jeffersonian 
 alternative. And it was the alternative that Stephen A. Douglas 
 supported with vigor and consistency under the name of territorial 
 or popular sovereignty. To most supporters of slavery it seemed, for 
 a decade after 1846, the best defense against the hated Wilmot 
 Proviso. But as events in Kansas gradually pointed, in the later 
 1850's, toward an ultimate free-state victory there, proslavery forces 
 
 92. Constitution, Art. IV, sec. 3, clause 2. 
 
 93. Certain of the most important powers of Congress were delegated 
 to it in this language, including the power "to regulate Commerce." Con- 
 stitution, Art. I, ^cc. 8, clause 3; see also clauses 4, 5, 11, 14. Philbrick 
 discusses the question at length, cv-exxx. 
 
 94. Art. I, sec. 8. clause 17. 
 
 43 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 turned venomously upon the author of the Kansas-Nebraska Bill 
 and repudiated his doctrine and all his works. The theory of state 
 sovereignty came to full fruition in the brief period that followed. 
 And it showed its imperious quality by the peremptory way in which 
 its supporters rejected every vestige of the idea that the people of 
 a territory were sovereign or self-governing. Typical was a speech 
 in the House of Representatives in 1859 D > 7 Otho R. Singleton of 
 Mississippi : 
 
 Sovereignty, as I understand it, and as it is defined by lexicographers, 
 is the highest power — the supreme power in a State; and, if this 
 definition be correct, (and I apprehend nobody will controvert it,) 
 when Mr. Douglas and his followers undertake to put the Territorial 
 Legislature upon the same footing with a State Legislature, in my 
 judgment they are guilty of a most egregious blunder. Now, let me 
 ask what sovereignty is there — call it squatter sovereignty, popular 
 sovereignty, or whatever else you please — belonging to the people of 
 a Territory? Can they organize a territorial government for them- 
 selves? .... Can they elect their own officers without the special 
 permission of the Congress of the United States? Every act that is 
 passed by the Territorial Legislature is subject to the revision of Con- 
 gress, and liable to be annulled by that body, and there is not a single 
 act a Territorial Legislature can perform showing it to be sovereign. 
 
 But the gentlemen claim that the Legislature of a Territory has the 
 same powers as the Legislature of a State. Why, sir, never was a 
 more erroneous proposition asserted. A State Legislature may perform 
 a thousand acts of sovereignty, its power being controlled by no 
 superior. . . . The people of a State select their own officers, establish 
 their own judicial tribunals, alter or abolish their State government at 
 will. And when gentlemen undertake to put a State and Territory 
 upon the same footing in respect to sovereignty, they involve them- 
 selves in difficulties which they cannot meet successfully. 95 
 
 The doctrine of state sovereignty was as hostile to local self- 
 determination in the territories as to the exercise of federal legislative 
 power there. But what other alternative could there be? It was in 
 answering this question that the theorists of state sovereignty re- 
 vealed their extraordinary ingenuity. And the foundation of their 
 argument was the extra-jurisdictional (or extraterritorial) principle 
 that has already shown itself to be the most significant corollary 
 of state sovereignty. 
 
 95. Dec. 19, 1859. Globe, 36 Cong., 1 Sess., App., 52. 
 
 44 
 
ARTHUR BESTOR 
 
 In legal terms, as we have seen, the question at issue was the 
 source of the police power in the territories — the power that might 
 determine, among other things, the existence or nonexistence of 
 slavery. The state-sovereignty argument began by pointing out 
 that the exercise of a police power is the prerogative of a sovereign. 
 The people of a territory had not attained sovereignty, and the 
 federal government had not received, by delegation, those attributes 
 of sovereignty that would enable it to wield a power of local police. 
 The idea that the federal government might exercise such powers 
 in the territories — by default as it were — was rejected as untenable. 
 The federal government is a government of delegated powers, and 
 local police powers are precisely the ones not delegated to it, but 
 "reserved" by the Tenth Amendment. And they are reserved to the 
 full-fledged sovereign states of the Union, and to them alone. 
 
 One finds it hard to imagine how the several states could exercise 
 any power of police in territories beyond their boundaries and out- 
 side their jurisdictions. And if they attempted to do so, each pro- 
 jecting its sovereignty into the same area, what possible result could 
 there be but conflict, commotion, and chaos? The answer of state- 
 sovereignty theorists was to assign to the federal government a 
 peculiar, extraconstitutional role in the territories. It was to act 
 there not as the government of the United States, but as the agent 
 of the united States. 
 
 This ingenious dualism solved, with the elegance of Euclid, the 
 constitutional problem that confronted the defenders of slavery. In 
 traditional federal matters, the government of the United States 
 was a government, with a legislature capable of determining federal 
 policy, an executive capable of enforcing it, and a judiciary sworn 
 to uphold federal statutes as part of the supreme law of the land. 
 In territorial matters, on the other hand, the federal government 
 was not to be deemed a government at all, but a trustee. It was 
 a trustee for the sovereign states, responsible to them severally, 
 charged with giving extraterritorial effect to their laws, and denied 
 any deliberative or discretionary power of its own. It had duties to 
 perform and it possessed the power to perform them. But the 
 power to act did not imply the power to decide. The proslavery 
 constitutional theory succeeded in preserving a centralized authority 
 powerful enough to enforce the rights of slaveowners outside the 
 jurisdictions of the slaveholding states. At the same time, it denied 
 
 45 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 to this central authority any power to make policy with respect to 
 slavery in any place or in any manner. 
 
 The Real Significance of State Sovereignty 
 
 It is time to examine the various — and extraordinary — 
 features of this fully developed doctrine of state sovereignty. The 
 first point to be noted is that the theory did not propose a lessening 
 of federal authority in the territories. Federal powers were to be 
 kept in being — even enhanced — in order to protect the exposed 
 flank of slavery. But these powers were so defined as to be capable 
 of employment in only one way. President Franklin Pierce stated 
 the ultimate and desired conclusion in a message to Congress in 
 1855. "The General Government," he said, "was forbidden to 
 touch this matter [slavery] in the sense of attack or offense" but was 
 obliged to act upon it "in the sense of defense against either invasion 
 or domestic violence." 96 Senator John M. Berrien of Georgia was 
 even more explicit. "Congress," he asserted, "may legislate upon 
 this subject in the Territories, affirmatively" that is to say, "to 
 facilitate the exercise of a constitutional right" to own slaves, but it 
 had no power to legislate in such a way as "to create obstructions 
 to the enjoyment" of this right. 97 Speaking for the Supreme Court, 
 Chief Justice Roger B. Taney reiterated the view: "The 
 Government of the United States had no right to interfere for any 
 other purpose but that of protecting the rights of the owner." 98 
 
 These conclusions — which found expression in all three branches 
 of the federal government — were the product of several subtle but 
 exceedingly important transformations in the realm of constitutional 
 theory. 
 
 In the first place, the traditional criterion of constitutionality had 
 
 96. Third annual message, Dec. 31, 1855. James D. Richardson, ed., 
 A Compilation of the Messages and Papers of the Presidents (Washington, 
 1897), V: 343. 
 
 97. Quoted by Thomas Hardeman, Jr. (Ga.), H.R., April 12, i860. 
 Globe, 36 Cong., 1 Sess., App., 223. Hardeman himself went on to offer 
 a new and revealing distinction, quite different from the orthodox distinc- 
 tion between powers granted to the federal government and powers re- 
 served to the states. Instead, Hardeman spoke of "the distinction between 
 their [i.e., Congress's] powers of protection — for it was for that our Gov- 
 ernment was created — and those negative powers which belong not to 
 Congress.'' Ibid. 
 
 98. Dred Scott v. Sandford, 19 Howard 393, at 426 (March 6, 1857). 
 
 46 
 
ARTHUR BESTOR 
 
 been replaced by another. The federal government being a govern- 
 ment of delegated powers, the accepted test applied to any federal 
 measure had always been whether or not the power employed was 
 delegated by the Constitution to the federal government. In place 
 of this, a new criterion of constitutionality was insisted upon — a 
 criterion of purpose. If a power were used in such a way as to 
 weaken slavery, then it was without constitutional justification, re- 
 gardless of whether the power, considered as such, lay within the 
 scope of delegated powers. In a speech to the Senate in 1856, 
 Clement C. Clay, Jr., of Alabama, brusquely swept aside as ir- 
 relevant, so far as slavery was concerned, the distinction between 
 action that intruded upon the reserved powers of the states and 
 action that fell within the recognized sphere of federal competence. 
 Outright abolitionism, he said, was "less odious and dangerous" 
 than the policy of "those who concede that slavery in the States is 
 beyond the reach of Congress under the Constitution . . . but yet 
 avow their intention and their power to assail it in the Territories, 
 this District [of Columbia], and wherever the national flag floats." 
 Their ultimate goal, he argued, was to "overthrow slavery in the 
 States." The goal itself was unconstitutional, regardless of the 
 means employed. The fact that opponents of slavery approached 
 this goal by a "circuitous" path rendered their conduct not scrup- 
 ulously constitutional but "insidious and dastardly." "An army 
 with banners," Clement Clay exclaimed, "is preferable to a Trojan 
 horse." 99 
 
 This theory rendered unconstitutional any use of federal power 
 anywhere or at any time in a fashion inimical to slavery. Neverthe- 
 less, the theory was still a negative one. Something more was needed : 
 a mandate from the Constitution itself requiring the positive use 
 of federal power to safeguard slavery in the territories. The second 
 great transformation of constitutional theory looked to this par- 
 ticular end. Proslavery theorists undertook to discover in the Con- 
 stitution itself such a clear guarantee of the rights of slaveowners 
 that Congress and the President would be obliged, whatever their 
 inclinations, to protect the institution of slavery in the territories, 
 without acquiring thereby any concomitant power to debate or 
 decide questions of policy relating to it. 
 
 The starting point of this theory was the fact that the Constitu- 
 
 99. April 21, 1856. Globe, 34 Cong., 1 Sess., App., 487-88. 
 
 47 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 tion did recognize the existence of slavery. Furthermore, it gave 
 extraterritorial effect to the laws of the slaveholding states in the 
 matter of fugitive slaves. Antislavery leaders, of course, conceded 
 all this, but they considered slavery a tolerated evil, and they re- 
 garded the specific provisions of the Constitution as setting the 
 uttermost limits of such toleration. Beyond these limits, they insisted, 
 every constitutional power of the federal government might legiti- 
 mately be directed against slavery, to limit, weaken, and eventually 
 destroy it. The question of whether federal power should be used 
 in this way was a question of policy, not of constitutional law — a 
 question to be decided by the recognized deliberative organs of the 
 federal government. 
 
 Proslavery constitutionalists took a diametrically opposite view. 
 The clauses of the Constitution that recognized slavery were to be 
 construed not narrowly but broadly — not as limits on the protection 
 that slavery might enjoy but as tokens of the full protection that the 
 Constitution implicitly promised. By recognizing slavery, more- 
 over, the Constitution necessarily recognized the laws of the slave- 
 holding states and made their principles the controlling ones in 
 every question that affected slavery. No power to legislate about 
 slavery had, after all, been delegated to Congress. But slavery was 
 an institution that must be defined and provided for by law. There 
 was only one place where such law could be found or could be 
 made — in the sovereign states that upheld and protected slavery. 
 Whenever an issue involving slavery arose in the domain of federal 
 responsibility, therefore, the laws of the slaveholding states must 
 take on extra-jurisdictional force, filling the void created by the 
 constitutional incapacity of Congress to legislate on the subject. On 
 all matters affecting slavery, in other words, the slaveholding states, 
 as sovereigns, were to make policy not for themselves alone, but 
 for the country as a whole, except within the boundaries of such 
 sovereign states as had chosen to abolish the institution. 100 
 
 too. Even there, of course, the laws of the slaveholding states were to 
 operate extraterritorially upon fugitive slaves. Extraterritoriality, one should 
 observe, was to work in one direction only. The freedom that a slave 
 might have gained by being taken into a free state vanished if he was taken 
 back into a slave state. In his concurring opinion in the Dred Scott case, 
 Justice Nelson emphatically rejected the argument "that as Dred Scott was 
 free while residing in the State of Illinois, by the laws of that State, on 
 his return to the State of Missouri he carried with him the personal quali- 
 ties of freedom, and that the same effect must be given to his status there 
 
 4 8 
 
ARTHUR BESTOR 
 
 Senator Berrien of Georgia stated the matter succinctly: "Slavery 
 exists in the State where the owner dwells; it exists out of the State 
 where the owner dwells. Once existing, it exists everywhere, until 
 it comes within limits of a sovereignty which inhibits it." 101 The 
 theory of state sovereignty, in other words, made slavery a national 
 institution. Senator James S. Green of Missouri used this very term 
 when he asserted "that the prohibition of slavery in the United 
 States is local, and that the right to hold slave property wherever 
 there is no prohibition is national." 102 
 
 The doctrine of state sovereignty, in the last analysis, was a na- 
 tionalistic doctrine, not a localistic one. Despite appearances, its 
 real tendency was toward consolidation not decentralization. By 
 exalting sovereignty, it destroyed the philosophical foundation for a 
 genuinely pluralistic society, in which diversity would be cherished. 
 There was one peculiarity: indivisible sovereignty was ascribed to 
 the several states rather than to the nation. As a consequence, the 
 doctrine exhibited to the world two seemingly contradictory faces. 
 Within their borders, the slaveholding states were invoking a sov- 
 
 as in the former State." On the contrary, he said, "No State . . . can 
 enact laws to operate beyond its own dominions. . . . Such laws can 
 have no inherent authority extra-territorially, . . . Now, it follows from 
 these principles, that whatever force or effect the laws of one State or 
 nation may have in the territories of another, must depend solely upon 
 the laws and municipal regulations of the latter." Dred Scott v. Sand- 
 ford. 19 Howard 393, at 462, 460 (March 6, 1857); cited hereafter simply 
 as Dred Scott case (with page reference). Furthermore, Nelson went on 
 to treat federal statutes on the same basis, despite the fact that they are, 
 by constitutional definition, part of "the supreme Law of the Land," bind- 
 ing "the Judges in every State . . . , any Thing in the Constitution or 
 Laws of any State to the Contrary notwithstanding." Art. VI, clause 2. 
 Oblivious to the difference between a federal law operating within the 
 jurisdiction of a member state and a state law operating within the jurisdic- 
 tion of a fellow state, he rejected the idea that the federally enacted Mis- 
 souri Compromise (assuming it to be valid) "possessed some superior 
 virtue and effect, extra-territorially, and within the State of Missouri, be- 
 yond that of the laws of Illinois, or those of Ohio." Dred Scott case, 463. 
 Nelson did not rule on the constitutionality of the Missouri Compromise; 
 hence he did not involve himself in the flagrant one-sidedness of a majority 
 of his brethren, who accepted his reasoning and then combined it with their 
 own, which concluded that the laws of a slaveholding state followed the 
 slaveowner and protected his property whenever he went out from his 
 own state into the territories that were under federal jurisdiction. 
 
 10 1. Quoted by Thomas Hardeman, Jr. (Ga.), H.R., April 12, i860. 
 Globe, 36 Cong., 1 Sess., App., 223. 
 
 102. Senate, Jan. 11, i860. Globe, 36 Cong., 1 Sess., App., 78. 
 
 49 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 ereign's immunity from all external control. Beyond their borders, 
 however, they were demanding — as sovereigns — the strictest respect 
 for whatever rights they chose to place beneath the protective mantle 
 of their sovereignty. 
 
 Such a view of the Constitution wiped out every policy-making 
 function of the federal government. Its powers were converted from 
 legislative to ministerial ones. Congress was to provide ways and 
 means, it was not to deliberate upon ends. The President was not 
 to shape policy but simply to execute the laws. Federal coercive 
 authority, nevertheless, would be kept in being, for the extra- 
 territorial claims of the slaveholding states would collapse without 
 it. But the only branch of the federal government whose powers 
 were to be exalted was the judiciary. The courts were obliged to 
 take their cue directly from the Constitution. They were free to 
 disregard the directives of possible antislavery majorities in the other 
 branches. They could thus be expected to enforce the sweeping 
 mandate that proslavery leaders found in the Constitution — a 
 mandate to safeguard, under all circumstances, the constitutionally 
 recognized institution of slavery. 
 
 This reliance upon the judiciary — indeed, this almost ex- 
 clusive reliance — was inevitable, and gave to proslavery con- 
 stitutional theory its highly legalistic tone. Of the three branches of 
 the federal government, the legislative was least to be trusted. Anti- 
 slavery majorities could already be mustered in the House of 
 Representatives, and sooner or later would be in the Senate. There- 
 fore no discretionary power over slavery could safely be left in the 
 hands of Congress; its every act must be predetermined, so far as 
 aim or purpose was concerned, by the Constitution and by judicial 
 decision. For the moment, the situation in the executive branch 
 was more favorable. Throughout the period of controversy — especi- 
 ally during the administrations of Polk, Pierce, and Buchanan ( 1845- 
 1849 an d 1 85 3- 1 861) — the proslavery faction were generally suc- 
 cessful in committing the President to the policies they demanded. 
 Nevertheless, this control was jeopardized at every election — in- 
 deed, the loss of the executive branch to the Republicans in i860 
 was obviously a major reason for secession. Executive discretion 
 ultimately was no more to be tolerated than legislative. Only the 
 federal judiciary could be trusted to defend slavery in an active 
 way. The idea that the Supreme Court could not make — and was 
 
 50 
 
ARTHUR BESTOR 
 
 not, in fact, making — national policy about slavery was a trans- 
 parent fiction. But it was a useful fiction, from the southern point 
 of view, for it meant that the court was under no obligation to 
 reflect the views of popular majorities. Policy would be made for 
 the nation, but not by the nation. Power would be neatly divorced 
 from accountability, action from deliberation. 
 
 The Dred Scott Decision 
 
 This reliance upon the judiciary paid off in the most im- 
 portant of all the decisions on slavery — that in the case of Dred 
 Scott, decided on March 6, 1857. The ultimate doctrine of state 
 sovereignty, with all its extra-jurisdictional corollaries fully developed 
 and applied, received its most authoritative formulation at the 
 hands of Chief Justice Roger B. Taney, who wrote the opinion of 
 the court in the case. Space does not permit an examination of 
 the many points of this complex and fateful decision. But the heart 
 of Taney's opinion, from the constitutional point of view, was his 
 delineation of the nature of the Union and the conclusions he drew 
 therefrom respecting the power of Congress in the territories and 
 particularly its power over slavery. 
 
 The case involved a slave, Dred Scott, who had been taken by 
 his master for an extended sojourn or residence in areas where slavery 
 was forbidden by statute — for two years in the free state of Illinois 
 and for two in that portion of the old Louisiana Purchase which 
 lay north of 36 ° 30', and in which slavery had been prohibited by 
 the federally enacted Missouri Compromise of 1820. Having been 
 brought back to the slaveholding state of Missouri, Dred Scott was 
 suing for his freedom in the federal courts. His suit was denied on 
 several grounds. What concerns us here is the pronouncement that 
 Congress lacked constitutional authority to prohibit slavery in the 
 territories, as it had attempted to do in the Missouri Compromise. 
 Each of the nine justices filed a separate opinion. Seven concurred 
 in the final result: that Dred Scott was still a slave. Only six held 
 that the Missouri Compromise was invalid. And only five ac- 
 cepted Taney's reasoning that the measure was actually unconstitu- 
 tional. The five, nevertheless, constituted a majority of the entire 
 court; hence the constitutional theory about to be discussed became 
 authoritative. 103 
 
 103. Dred Scott case, 393. In the opinion of the court, Chief Justice 
 
 5 1 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Turning to the written Constitution, Taney could find in it no 
 delegation to the federal government of powers of local government, 
 even over areas that formed no part of any existing state. He denied 
 that such powers were conferred by the clause authorizing Congress 
 to "make all needful Rules and Regulations respecting the Territory 
 or other Property belonging to the United States." Instead of 
 arguing (as most defenders of state sovereignty had done) that 
 the words were inadequate to convey the powers in question, Taney 
 took the curious position that the clause applied only to territory 
 already in the possession of the United States at the time the Con- 
 stitution was adopted. 104 The effect (and obviously the intent) of 
 this interpretation was to deny the applicability to the territories 
 
 Taney (Md.) denied the constitutionality of federal legislation prohibiting 
 slavery in the territories (our present concern) in a lengthy discussion, 
 431-52. The two dissenting justices, John McLean (Ohio) and Benjamin 
 R. Curtis (Mass.) controverted his views on this point, 538-50 and 604-33, 
 respectively. Of the six justices who agreed with Taney that Dred Scott 
 was still a slave, one, James M. Wayne (Ga.) gave his "unqualified 
 assent"' to all Taney's arguments, 454-56. Another, Robert C. Grier (Pa.) 
 concurred specifically with Taney's reasoning on the unconstitutionality of 
 the Missouri Compromise, 469. Two others, Peter V. Daniel (Va.) and 
 John A. Campbell (Ala.) argued this particular point afresh, without, 
 however, departing significantly from Taney's line of argument, 487-92 
 and 500-517, respectively. Accordingly, five of the nine justices subscribed 
 to the doctrines discussed in the text above. One other justice, John Catron 
 (Tenn.), believed the Missouri Compromise invalid rather than unconstitu- 
 tional, because incompatible with the treaty that ceded Louisiana, and he 
 took emphatic exception to certain of Taney's assertions denying congres- 
 sional power over the territories, 519-29. The remaining justice, Samuel 
 Nelson (N.Y.), held Dred Scott to be a slave for reasons that did not call 
 the Missouri Compromise in question, 457-69. 
 
 Aside from certain technical questions, two other major points were 
 ruled on by the court, (i) Nelson, in an opinion originally prepared to 
 serve as that of the court, rested the case on the principle that it was 
 foi the courts of Missouri to decide Dred Scott's status after his return 
 to that state, and hence to determine the effect to be given to his resi- 
 dence on free soil. The precedent for this was the decision in Strader v. 
 Graham, 10 Howard 82 (1850). Seven of the nine members of the court 
 were in agreement on this point, (ii) Taney held that a Negro could not, 
 under any circumstances, be a citizen of the United States and hence that 
 Dred Scott could not sue in the federal courts even if he were free. 
 Only Wayne and Campbell agreed. McLean and Curtis dissented. 
 
 The literature on the Dred Scott case is too enormous for discussion here. 
 Mention should be made, however, of Vincent C. Hopkins, Dred Scott's 
 Case (New York, 1951 ) . 
 
 104. Dred Scott case, 432. 
 
 52 
 
ARTHUR BESTOR 
 
 generally of the antislavery precedent set in the Northwest Ordinance 
 of 1787. 
 
 Having rejected as a basis for his argument the one clause in 
 the Constitution that made any reference to territory, Taney fur- 
 nished himself with the kind of provision he needed by a whole- 
 sale discovery of implied powers, reminiscent of the most spacious 
 opinions of John Marshall. The United States had, of course, ac- 
 quired vast territories without benefit of an explicit grant of power 
 to do so. Since Jefferson himself had swallowed his constitutional 
 scruples in the matter when he consummated the Louisiana Pur- 
 chase in 1803, no one thereafter was bothered by such scruples. 105 
 Nevertheless, the possessions so acquired had presumably been sold, 
 as well as governed, by virtue of the clause that spoke of "Rules 
 and Regulations respecting the Territory." Not so, said Taney. 
 The clause in question could not be stretched to include possessions 
 acquired after 1787. Accordingly, Congress had been selling the 
 public land without any written authority from the Constitution. 
 Its power to sell, as well as its power to govern, was inferred from 
 its power to acquire, and this in turn was inferred from the fact 
 that the United States was an independent nation, and, like other 
 nations, an acquisitive one. 106 The Dred Scott decision was a 
 masterpiece of broad construction before Taney changed his course 
 and made it also a masterpiece of strict construction. 
 
 The power to govern the territories being an implied power, and 
 not a power derived from the written clause respecting territory, 
 Taney was free to define the power in any way he saw fit. And he 
 saw fit to define it in terms of the dualism we have already exam- 
 ined. Until a territory is ready for statehood, Taney asserted, "it 
 is undoubtedly necessary that some Government should be estab- 
 
 105. See Andrew C. McLaughlin, A Constitutional History of the United 
 States (New York, 1935), 294-98. 
 
 106. In the Insular Cases following the Spanish-American War, the 
 power to govern, implied from the implied power to acquire, became the 
 basis for a ruling that (in the popular phrase of the time) the Constitution 
 does not follow the flag. "We are also of opinion that the power to ac- 
 quire territory by treaty implies, not only the power to govern such terri- 
 tory, but to prescribe upon what terms the United States will receive its 
 inhabitants, and what their status shall be in what Chief Justice Marshall 
 termed the 'American empire.' " In other words, "the Constitution is 
 applicable to territories acquired by purchase or conquest only when and 
 so far as Congress shall so direct." Downes v. Bidwell, 182 U.S. 244, at 
 279 (May 27, 1901 ). 
 
 53 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 lished, in order to organize society, and to protect the inhabitants 
 in their persons and property." This statement was implicitly re- 
 strictive, describing as it did a government with the barest minimum 
 of functions. In establishing this minimal government, moreover, 
 Congress was not acting in its normal capacity as the federal legis- 
 lature. It was acting simply as agent of the several states, charged 
 with preserving their interests. Taney expressed the idea thus : 
 
 As the people of the United States could act in this matter only through 
 the Government which represented them, ... it was not only within 
 the scope of its powers, but it was its duty to pass such laws and estab- 
 lish such a Government as would enable those by whose authority they 
 acted to reap the advantages anticipated from its acquisition. 107 
 
 This was the concept of trusteeship. The term itself had already 
 appeared in another crucial passage: 
 
 Whatever it [the general government] acquires, it acquires for the 
 benefit of the people of the several States who created it. It is their 
 trustee acting for them, and charged with the duty of promoting the 
 interests of the whole people of the Union. 
 
 The territory, he reiterated, "was acquired by the General Govern- 
 ment, as the representative and trustee of the people of the United 
 States, and it must therefore be held in that character for their com- 
 mon and equal benefit." 108 
 
 This distinction between legislative power and trusteeship was 
 vital to Taney's argument. If Congress were authorized to legislate 
 (in the full sense) for a territory, then it would stand in the same 
 relation to the people of the territory as a state legislature stands 
 in relation to the people of the state. 1 " 9 It could make policy with 
 respect to the domestic and local institutions of the area. It would 
 
 107. Dred Scott case, 448. 
 
 108. Ibid. See also Daniel's concurring opinion: "Congress was made 
 simply the agent or trustee for the United States, and could not, without 
 a breach of trust and a fraud, appropriate the subject of the trust to any 
 other beneficiary . . . than . . . the people of the United States, upon 
 equal grounds, legal or equitable." Ibid., 489. 
 
 109. Marshall, indeed, had already held that in legislating for the 
 territories, "Congress exercises the combined powers of the general, and 
 of a state government." American Insurance Co. v. Canter, 1 Peters 511, 
 at 546 (1828). Taney distinguished the case. Dred Scott, 444. Marshall's 
 position is unquestionably that of present-day constitutional law. "In the 
 territories, Congress has the entire dominion and sovereignty, national and 
 local, and has full legislative power over all subjects upon which a State 
 legislature might act." Corwin, ed., Constitution . . . Analysis, 703. 
 
 54 
 
ARTHUR BESTOR 
 
 be empowered, as a state legislature was empowered, to decide upon 
 the existence or nonexistence of slavery in the territory. On the 
 other hand, if Congress were acting simply as trustee for the people 
 of the several states, then it would enjoy no such freedom of de- 
 cision on matters of policy. It could, of course, perform within the 
 territories the ordinary federal functions that it performed within 
 the states. Beyond this, however, its powers and duties in the 
 territories were those of a temporary caretaker only. The normal 
 legislative power bestowed upon Congress extended only to purely 
 federal matters. No powers of local government — no police 
 powers — were included. Such powers as might be indispensably 
 necessary for the maintenance of order would have to be implied. 
 But these had neither the character nor the scope of the constitu- 
 tionally delegated powers of Congress. The implied power to pro- 
 vide government for a territory was drastically and peremptorily 
 restricted by the concept of trusteeship. 
 
 From this premise, Taney's specific conclusions easily followed. 
 In devising the mere machinery of government, Congress was rela- 
 tively free to use its judgment. In legislating on substantive mat- 
 ters, however, it was permitted no discretion and no power of 
 decision of its own. "The power of Congress over the person or 
 property of a citizen can never be a mere discretionary power under 
 our Constitution and form of Government." 110 Therefore "citizens 
 of the United States who migrate to a Territory belonging to the 
 people of the United States, cannot be ruled as mere colonists, 
 dependent upon the will of the General Government, and to be 
 governed by any laws it may think proper to impose." 111 
 
 The federal government, admittedly, was duty-bound to preserve 
 order and protect property. But it was obliged to do so, Taney 
 insisted, in such a way as not to infringe upon any property right 
 enjoyed by an American citizen by virtue of the laws of his own 
 state. Ordinary civil and criminal laws, if common to all the 
 states of the Union, might presumably be enacted by Congress for 
 the territories. But laws that infringed upon a property right 
 recognized by any state would be ultra vires. The holding of slaves 
 was obviously such a state-protected property right. No distinction 
 between slave property and other property was authorized by the 
 
 no. Dred Scott case, 449. 
 in. Dred Scott case, 447. 
 
 55 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Constitution, Taney continued, and none could be made by Con- 
 gress. 112 Accordingly, a federal statute abolishing slavery in a ter- 
 ritory was, under any and every circumstance, unconstitutional. The 
 Chief Justice drove the point home by citing — for almost the first 
 time in constitutional adjudication, though not for the first time 
 in the debates over slavery 113 — the Fifth Amendment (and especially 
 its "due process" clause) in defense of vested property rights. "x\n 
 act of Congress," he asserted, "which deprives a citizen of the 
 United States of his liberty or property, merely because he came 
 himself or brought his property into a particular Territory of the 
 United States, and who had committed no offence against the laws, 
 could hardly be dignified with the name of due process of law." 114 
 
 Proslavery Demands in i860 
 
 Upheld in their constitutional views by the Dred Scott de- 
 cision of 1857, defenders of slavery worked out with logical com- 
 
 112. "If the Constitution recognises the right of property of the master 
 in a slave, and makes no distinction between that description of property 
 and other property owned by a citizen, no tribunal, acting under the au- 
 thority of the United States, whether it be legislative, executive, or judicial, 
 has a right to draw such a distinction." Dred Scott case, 451. In his 
 concurring opinion, however, Daniel insisted that the Constitution did make 
 a distinction, placing property in slaves above other property. "The only 
 private property which the Constitution has specifically recognised, and has 
 imposed it as a direct obligation both on the States and the Federal Gov- 
 ernment to protect and enforce, is the property of the master in his slave; 
 no other right of property is placed by the Constitution upon the same 
 high ground, nor shielded by a similar guaranty." Ibid., 490. 
 
 113. It was only a year earlier that the modern concept of "substantive 
 due process" received clear formulation in a New York case, Wynehamer 
 v. People, 13 N.Y. 378 (1856), involving a liquor law. The decision is 
 characterized as "epoch-making" by Rodney L. Mott, Due Process of Law 
 (Indianapolis, 1926), 317-18. Taney, who cited no precedents, is often 
 assumed to have had the Wynehamer case in mind, and his application of 
 the Fifth Amendment to vested property rights in slaves is usually regarded 
 as a striking innovation. As early as 1832, however, in the debates that 
 occurred in the Virginia General Assembly over a proposal for gradual 
 emancipation, James H. Gholson argued that any measure taking slaves from 
 their masters would violate property rights protected both by the Virginia 
 Constitution and by the Fifth Amendment of the federal Constitution. He 
 seems, it is true, to have emphasized the clause reading "nor shall private 
 property be taken for public use, without just compensation," rather than 
 the due process clause. See Theodore M. Whitfield, Slavery Agitation in 
 Virginia, 7829-/832 (Baltimore, 1930), 77. 
 
 114. Dred Scott case, 450. 
 
 56 
 
ARTHUR BESTOR 
 
 pleteness the program which they insisted the federal government 
 must carry out. The final formulation was in a set of resolutions 
 that Jefferson Davis introduced in the Senate on February 2, i860, 
 and that he pushed through to adoption on May 24 and 25. The 
 resolutions began by reciting the orthodox postulate of state sov- 
 ereignty: "that in the adoption of the Federal Constitution, the 
 States adopting the same acted severally as free and independent 
 sovereignties." 115 But the document mounted quickly to a climax 
 in the fourth resolution, which demanded that the powers of the 
 central government be exerted to any extent necessary to safeguard 
 slavery throughout all the territories. In Davis's original draft, the 
 section read as follows: 
 
 Resolved, That neither Congress nor a territorial legislature, whether 
 by direct legislation or legislation of an indirect and unfriendly nature, 
 possess the power to annul or impair the constitutional right of any 
 citizen of the United States to take his slave property into the common 
 territories, but it is the duty of the federal government there to afford, 
 for that as for other species of property, the needful protection; and if 
 experience should at any time prove that the judiciary does not possess 
 power to insure adequate protection, it will then become the duty 
 of Congress to supply such deficiency. 116 
 
 Davis's resolutions, an election-year manifesto, were adopted in 
 May, i860. Six months later the election returns were in. The 
 victory of Lincoln and the Republican Party destroyed every hope 
 of achieving the proslavery program for the territories that Jefferson 
 Davis had laid down in the spring. Even without control of Con- 
 gress, the incoming Republican President would wield powers 
 capable of blocking any measure for protecting slavery in the terri- 
 tories. His veto could strike down a federal slave code, should 
 
 115. Senate, 36 Cong., 1 Sess., Journal, 113 (Feb. 2. i860). 
 
 116. Ibid. On March 1, i860, Davis substituted a revised, but by no 
 means weakened, text, which divided this resolution into two. Ibid., 203. 
 The revised resolutions were adopted by the Senate on May 24-25, i860. 
 Ibid., 507-10, 513-18. Horace Greeley labeled them the "Democratic Plat- 
 form, Adopted by the United States Senate." Horace Greeley and John 
 F. Cleveland, eds., A Political Text-Book for i860 (New York, 1860), 
 194-97. The views, of course, were not those of the Democratic Party as 
 a whole, but of its southern faction. When the latter nominated John C. 
 Breckinridge for the presidency on June 28, i860, the first two planks of 
 its platform simply paraphrased Davis's crucial resolution, avoiding the con- 
 tentious word "slave." Porter and Johnson, National Party Platforms, 31. 
 
 57 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 Congress seek to enact one, and his power to appoint and remove 
 territorial governors each armed with a veto power) could fore- 
 stall similar action by territorial legislatures. If Stephen A. Douglas 
 was right when he said that slavery could not exist in a territory 
 without positive legislation in its favor, 117 then slavery in the terri- 
 tories could hardly survive even the calculated maction of a 
 Republican administration. Lincoln's election was hardly "an im- 
 mediate menace to slavery in the states" (as some writers have 
 argued 1 1S with scanty supporting evidence), but it was indubitably 
 an immediate menace to slavery in the territories. And the throttling 
 of slavery in the territories would mean — according to the professed 
 beliefs of opponents and defenders of slavery alike — the ultimate 
 extinction of the institution everywhere. W "hen the election of i860 
 ended the possibility of federal protection for slavery in the terri- 
 tories, the principal leaders of the proslavery party chose, or ac- 
 cepted, the long-discussed alternative of secession. 
 
 Secession, however, was not in itself a program for the positive 
 protection of slavery. Secession could not be an end in itself. It 
 made sense only as the means to an end. And the end, unconcealed, 
 was to create a new constitutional system, with built-in protection 
 for slavery. To see the character of that system we have only to 
 look at the permanent Constitution of the Confederate States of 
 America, adopted on March 11, 1861. 
 
 The Confederate Constitution and Slavery 
 
 It has been conventional to say, with Nathaniel Wright 
 Stephenson, that the framers of the Confederate Constitution "left 
 unstated their most distinctive views."" 119 The new document, it 
 is true, was largely a scissors-and-paste redaction of the original 
 Constitution of the United States and its amendments. 120 The 
 
 117. This was the essence of his "Freeport Doctrine": "It matters not 
 what way the Supreme Court may hereafter decide as to the abstract ques- 
 tion whether slavery may or may not go into a territory under the consti- 
 tution, the people have the lawful means to introduce it or exclude it as 
 they please, for the reason that slavery cannot exist a day or an hour any- 
 where, unless it is supported by local police regulations." Douglas, speech 
 in debate at Freeport, Aug. 27, 1858, in Lincoln, Collected Works, III: 51. 
 
 118. Notably J. G. de Roulhac Hamilton, cited in n. 20 above. 
 
 119. Stephenson, The Day of the Confederacy (New Haven, 1919), 10 n. 
 
 120. The texts of the Constitution of the United States and of the 
 permanent Constitution of the Confederate States of America are convenient- 
 
 58 
 
ARTHUR BESTOR 
 
 seceding states, ironically enough, said nothing whatever in their 
 Constitution about the right of secession. Though the preamble 
 included the phrase "each State acting in its sovereign and inde- 
 pendent character," the actual restrictions placed upon the powers 
 of the states were almost precisely what they had been in the old 
 Constitution. The general government had slightly less power in 
 certain respects and slightly more in others; on balance, the relative 
 influence of the central government and the states was about the 
 same as before. 121 
 
 On one matter, however, the "distinctive views" of the framers 
 were completely worked out. With respect to the extrajurisdictional 
 claims of slavery — particularly, its claim to protection throughout 
 the territories — the Confederate Constitution left nothing to sur- 
 mise or to chance. It spelled out every one of the crucial demands 
 that proslavery leaders had made. But — and this is the most 
 striking fact of all — once these demands were incorporated in the 
 written Constitution, the state-sovereignty theory of the territories 
 was quietly jettisoned. With respect to slavery, the Confederate 
 Constitution created a much more "consolidated" union than any 
 which antislavery leaders had been accused of desiring. 
 
 Partisans of slavery had denied that the old Constitution gave to 
 Congress the power to legislate for the territories. Instead of clear- 
 ing up the doubtful point by specifically denying Congress the dis- 
 puted power and reserving it to the states, the framers of the Con- 
 
 ly printed in parallel columns, with differences indicated by italics, in App. 
 K of Jefferson Davis, Rise and Fall of the Confederate Government, I: 
 648-75. 
 
 I2i. For example, protective tariffs, bounties, and federal appropria- 
 tions for internal improvements were prohibited (Art. I, sec. 8, clauses 1 
 and 3 ) , but export duties were permitted by two-thirds vote of both houses 
 (Art. I, sec. 9, clause 6) and amendments to the Constitution required 
 ratification by two thirds instead of three fourths of the states (Art. V, sec. 
 1 ) . The phrase about "general welfare" was omitted from the grant of 
 financial powers, but the "necessary and proper" clause was retained intact 
 (Art. I, sec. 8, clauses 1 and 18). On the one hand, a state legislature 
 might impeach a federal officer "resident and acting solely within [its] 
 limits" (Art. I, sec. 2, clause 5); on the other, the power of the federal 
 executive was enhanced by giving the President the power to veto in- 
 dividual items in an appropriation bill (Art. I, sec. 7, clause 2), by re- 
 quiring a two-thirds vote of both houses to appropriate money not asked 
 by him (Art. I, sec. 9, clause 9), by giving him an explicit removal power 
 (Art. II, sec. 2, clause 3), and by authorizing Congress to grant Cabinet 
 members a seat on the floor (Art. I, sec. 6, clause 2). 
 
 59 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 federate Constitution did precisely the opposite. They granted 
 their Congress the power in set terms. After revising the old clause 
 about "all needful Rules and Regulations respecting the Territory 
 or other Property belonging to the United States," so that it would 
 refer clearly to real estate, 122 they went on to add a new paragraph, 
 the first sentence of which reads as follows: 
 
 The Confederate States may acquire new territory; and Congress 
 shall have power to legislate and provide governments for the inhabi- 
 tants of all territory belonging to the Confederate States, lying without 
 the limits of the several States; and may permit them, at such times 
 and in such manner as it may by law provide, to form States to be 
 admitted into the Confederacy. 12 '' 
 
 This was a grant of precisely the power which Republicans had 
 insisted, all along, that the federal government did and must pos- 
 sess. Abandoned completely was the state-sovereignty argument 
 that the federal government was, with respect to the territories, 
 merely the trustee of the several states. The Confederate Consti- 
 tution wiped out, at a stroke, the theory of the Union on which 
 the Dred Scott decision had rested. 
 
 The reason for abandoning the state-sovereignty theory of the 
 Union becomes obvious when one reads the rest of the clause just 
 quoted. The following sentence completes the paragraph : 
 
 In all such territory, the institution of negro slavery, as it now exists 
 in the Confederate States, shall be recognized and protected by Con- 
 gress and by the territorial government; and the inhabitants of the 
 several Confederate States and Territories shall have the right to take 
 to such Territory any slaves lawfully held by them in any of the States 
 or Territories of the Confederate States. 1 - 4 
 
 The institution of slavery was now placed, firmly and unequivocally, 
 under national protection. The state-sovereignty theory of the 
 territories, so long the basis of proslavery demands, had served its 
 purpose. It was now not only useless but potentially harmful. It 
 might conceivably weaken the centralized safeguards for slavery 
 newly provided. 
 
 122. ". . . all needful rules and regulations concerning the property 
 of the Confederate States, including the lands thereof." Art. IV, sec. 3, 
 clause 2. 
 
 123. Art. IV, sec. 3, clause 3, sentence 1. 
 
 124. Ibid., sentence 2. 
 
 60 
 
ARTHUR BESTOR 
 
 Any danger to slavery from the policy of nationalization was 
 effectually prevented by one new constitutional restriction on fed- 
 eral power. The Confederate Congress was forbidden to pass 
 any "law denying or impairing the right of property in negro 
 slaves." 125 Moreover, the new Constitution guaranteed to slave- 
 owners extra-jurisdictional rights throughout the Confederacy — 
 not only in the territories but within the member states as well. 
 Citizens of each state were entitled to "the right of transit and 
 sojourn in any State of this Confederacy, with their slaves and other 
 property ; and the right of property in said slaves shall not be thereby 
 impaired." 126 Finally, the fugitive-slave clause was enlarged to 
 cover slaves "lawfully carried into" another state, as well as those 
 escaping to it. 127 No law of any state, according to the new pro- 
 vision, could work the emancipation of a foreign-owned slave 
 found upon its soil, no matter how the slave had come there. 
 
 One element of state sovereignty theoretically remained. A 
 state was not forbidden to abolish slavery. It is difficult to say, 
 however, exactly what the abolition of slavery by a single state 
 could have actually meant, in the context of the Confederate Con- 
 stitution. No time limit was specified in connection with the right 
 of transit and sojourn. Any Confederate statute that prescribed 
 the duration of a slaveowner's sojourn with his slaves in a state 
 that had "abolished" slavery would undoubted} run afoul of the 
 provision forbidding any law "impairing the right of property in 
 negro slaves." At the same time, a state statute that gave freedom 
 to slaves who had been kept within its limits longer than a specified 
 
 125. Art. I, sec. 9, clause 4. 
 
 126. Art. IV, sec. 2, clause 1. 
 
 127. Art. IV, sec. 2, clause 3. Jefferson Davis embodied all these pro- 
 visions in a proposal to amend the Constitution of the United States, which 
 he presented to the Senate on Dec. 24, i860: "Resolved, That it shall be 
 declared, by amendment of the Constitution, that property in slaves, recog- 
 nized as such by the local law of any of the States of the Union, shall 
 stand on the same footing in all constitutional and Federal relations as 
 any other species of property so recognized; and, like other property, shall 
 not be subject to be divested or impaired by the local law of any other 
 Slate, either in escape thereto, or of transit or sojourn of the owner therein; 
 and in no case whatever shall such property be subject to be divested or 
 impaired by any legislative act of the United States, or of any of the Terri- 
 tories thereof." Globe. 36 Cong., 2 Sess., 190. Less than a month later 
 Davis vacated his seat after announcing the secession of his state, Missis- 
 sippi. Ibid., 487 (Jan. 21, 1861). 
 
 6l 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 time would certainly violate the Constitution, which forbade a 
 state to discharge from service or labor a slave "lawfully carried 
 into" it. Presumably a state might forbid its own citizens to pos- 
 sess slaves, but it could do little else. The state could not consti- 
 tutionally exclude slaves or compel foreign slaveowners to remove 
 or emancipate them. And it could hardly regulate the use to which 
 such imported slaves might be put without transgressing one or 
 another of the injunctions of the Confederate Constitution. 
 
 Slaven- was no longer a local institution, the Confederate 
 Constitution made it a national one. With respect to slavery the 
 Confederacy was a unitary, consolidated, national state, denying 
 to each of its allegedly sovereign members any sort of local autonomy 
 with respect to this particular one among its domestic institutions. 
 
 Concluding Reflections 
 
 In the long aftermath of the Civil War, leaders of the former 
 Confederacy built up an elaborate apologia explaining what they 
 had been about. Central to their thesis was the assertion that the 
 South had contended, single-mindedly and consistently, for one 
 basic constitutional philosophy — the philosophy that opposed 
 centralization and exalted local self-government. Writing in 1868, 
 Alexander H. Stephens of Georgia, Vice-President of the Confeder- 
 ate States, declared that "this whole subject of Slavery, so-called, 
 in any and every view of it, was, to the Seceding States, but a drop 
 in the ocean compared with . . . other considerations." 128 These 
 were, in the highest and purest sense, constitutional considerations. 
 The war, he maintained, resulted from the prolonged resistance of 
 the South to "the assumption on the part of the Federal authorities, 
 that the people of the several States were . . . citizens of the 
 United States, and owed allegiance to the Federal Government, as 
 the absolute Sovereign power over the whole country, consolidated 
 into one Nation." 129 
 
 A Lost Cause must have its myths. But before myths became 
 necessary — before the cause became a lost one — Alexander H. 
 Stephens saw just as clearly, and stated just as openly, as any other 
 southern leader, the question at issue. On March 21, 1861, six 
 
 128. Stephens, Constitutional View of the Late War between the States, 
 I: 542. 
 
 129. Ibid., 29. 
 
 62 
 
ARTHUR BESTOR 
 
 weeks after his election to the second highest post in the new Con- 
 federate government, Stephens delivered at Savannah what was 
 thereafter known as his "corner-stone speech." Eulogizing the 
 frame of government just erected, he said: 
 
 The new constitution has put at rest, forever, all the agitating questions 
 relating to our peculiar institution — African slavery as it exists amongst 
 us — the proper status of the negro in our form of civilization. This 
 was the immediate cause of the late rupture and present revolution. 
 
 Explicitly repudiating the antislavery sentiments of Thomas Jeffer- 
 son, Stephens continued: 
 
 The prevailing ideas entertained by him and most of the leading states- 
 men at the time of the formation of the old constitution, were that 
 the enslavement of the African was . . . wrong in principle, socially, 
 morally, and politically. . . . This was an error. . . . 
 
 Our new government is founded upon exactly the opposite idea; its 
 foundations are laid, its corner-stone rests upon the great truth, that 
 the negro is not equal to the white man; that slavery — subordination 
 to the superior race — is his natural and normal condition. 
 
 This, our new government, is the first, in the history of the world, 
 based upon this great physical, philosophical, and moral truth. 130 
 
 Alexander H. Stephens was speaking, in 1861, with complete 
 understanding and complete accuracy. The drafters of the Con- 
 federate Constitution had added to the document they inherited 
 only such provisions as they deemed essential for securing to them- 
 selves and their posterity the blessings they had given up hope of 
 securing within the old Union. What these blessings were sup- 
 posed to be, the Confederate Constitution made crystal clear. Its 
 people were to enjoy the privilege of living — to use Stephens's 
 carefully chosen words — under a government, the first in the history 
 of the world, whose foundations were laid, whose cornerstone rested, 
 upon the great philosophical and moral truth that the enslavement 
 of one part of the human race is not a wrong but the opposite of 
 a wrong — that slavery is the natural and normal condition of the 
 colored races of the world. To build this principle into the very 
 
 130. Corner-Stone Speech, March 21, 1861, reprinted in Henry Cleve- 
 land, Alexander H. Stephens, in Public and Private: With Letters and 
 Speeches (Philadelphia, 1866), 721. Stephens gave excerpts from this speech 
 in his Constitutional View, II: 85-86, 521-24, but did not include the 
 passages quoted here. 
 
 63 
 
STATE SOVEREIGNTY AND SLAVERY 
 
 fabric of a new government was the purpose of the Confederate 
 Constitution. To build it into the fabric of the old government 
 had been the purpose of the constitutional theorists who elaborated 
 the doctrine of state sovereignty before i860. 
 
 State sovereignty, as I have already said, was a doctrine of power, 
 not a doctrine of rights. Any contention that it operated to safe- 
 guard the rights of minorities is utterly specious. 131 What the theory 
 did attempt to safeguard was the power of a regional elite, which 
 happened to find itself a minority in the nation as a whole. And 
 the power that was to be sustained included the power to domineer 
 over all minorities within the ambit of authority and influence of 
 this privileged group or class. By employing the high language 
 of sovereignty, moreover, they were demanding a power that would 
 be absolute, unquestioned, and uncontrolled. 
 
 State sovereignty was a theory designed not to protect but to over- 
 ride individual rights. This was the character of the doctrine during 
 the crisis of 1846- 1860, when its obvious purpose was to perpetuate a 
 system that kept human beings in bondage, thus denying them the 
 elementary right of freedom. This is the character of the refur- 
 bished doctrine today, when its obvious purpose is to perpetuate a 
 system of racial segregation that denies to men and women of color 
 the right to that "equal protection of the laws" which the Consti- 
 tution of the United States explicitly guarantees. 
 
 131. The most respectable statement of this curious, but widely ac- 
 cepted, interpretation is by Jesse T. Carpenter. Writing in 1930, he said: 
 "No problem is more pressing in governments of the people and by the 
 people than the problem of minorities. If in a democracy political power 
 resides in numbers, what rights, if any, has a minority to impose restraints 
 upon the will of a numerical majority?" No one can deny the profound 
 importance of the question, but one can well doubt Carpenter's assumption 
 that a relevant answer can be found by conceiving "of the Old South as 
 a sectional minority consciously striving for seventy odd years to evolve 
 an adequate philosophy of protection to its interests in the American 
 Union.'' His conclusion can only be described as fantastic: "Here in the 
 first great experiment in democracy is found the first thorough treatment 
 of democracy's greatest problem: the relation of numerical majority rule 
 to effective minority protection." Carpenter. The South As a Conscious 
 Minority, i?8g-i86i (New York, 1930), 3. 
 
 64