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Antislavery and the Legal Order

Slavery was an extension of local law with national implications. The vast majority of residents in the free states were as racist as their southern cousins. Even most antislavery political leaders in the North harbored racist sentiments. Representative David Wilmot of Pennsylvania, whose famous proviso in 1846 sought to block the expansion of slavery into territories gained through the Mexican War, explained that he urged the measure because "the negro race already occupy enough of this fair continent; let us keep what remains for ourselves, and our children . . . for the free white laborer." 27 Public facilities, including schools, were segregated. The idea of free soil and free labor animated most northern antislavery politicians, who believed that free whites should not have to compete against slave labor in the vast new territories acquired by the United States. As a matter of practical politics, the Republican party of Abraham Lincoln had no plan to destroy slavery where it existed, although with Lincoln's election in 1860 many southerners were ready to secede for fear that Republican control would mean precisely that result.

Southern concerns were well founded. Beginning in the 1830s, slaveholders confronted a vital antislavery movement that resourcefully appealed to legal and constitutional arguments. The antislavery critique of the legal order's support for slavery involved more than just an attack on the peculiar institution. It included, as well, "moralistic arguments about the law of God and the rights of man" coupled with a resolve that in the United States the law "should [be] decid[ed] . . . consistently with standards of what, in some ultimate sense, was right and wrong." 28 In short, antislavery advocates expected through the law to persuade Americans to adopt a new commitment to morality. If the formal legal process should prove unavailing, then some antislavery leaders urged civil disobedience based on higher law principles.

By the time of the Civil War, three different approaches to the legal and constitutional problems of slavery emerged in the antislavery movement. For shortened purposes they can be referred to as radical, moderate, and Garrisonian.

The radicals' most important legal figures were Alvan Stewart of New York and Lysander Spooner of Boston. Both of these lawyers rejected the essential principle of Somerset, that slavery could exist by local positive law, and insisted that the institution was everywhere illegitimate. They demanded abolition of slavery based on the Fifth Amendment's due-process clause and the guarantee in Article IV that the federal government would ensure a republican form of government to every state. These were genuinely radical constitutional and legal positions, and only a small portion of the organized antislavery movement embraced them. 29

Moderates occupied the legal and constitutional mainstream of antislavery. Their most important spokesman was Salmon P. Chase, a Cincinnati lawyer. Where the radicals had argued that the federal government had the power to destroy slavery everywhere, the moderates insisted that the federal government lacked any power over slavery. They subscribed to Somerset, insisting that it prevented the federal government from extending slavery into the new territories and returning escaped slaves to their masters. If slavery were divorced from the national government, the moderates believed, then it would eventually wither. The moderate position, in essence, became the position of the Republican party on the eve of the Civil War.



The Garrisonian abolitionists developed yet a third position. Their most important

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legal spokesman was Wendell Phillips, a Boston patrician animated by a belief in religious perfectionism. The Garrisonians believed that slavery was above all else a sin, and that any institution that supported it was immoral. Not only did they reject Somerset as meaningless, but they also insisted that the Constitution was, in the words of their leader William Lloyd Garrison, "a covenant with death and an agreement with Hell . . . and should be immediately annulled." 30 In 1854, Garrison dramatized his opposition by publicly burning a copy of the nation's ruling document, setting off a riot that forced him to flee for his life. Phillips argued that a "higher law," based on overriding moral principles, should be substituted for the fatally compromised Constitution, and that each person had a duty to exercise civil disobedience aimed at toppling the established rule of law.

Such arguments stirred a level of suspicion of political dissenters not seen since the end of the eighteenth century, and Democrats leveled charges of treason against abolitionists just as Federalists had at their Jeffersonian opponents. The few treason prosecutions undertaken by the federal government against abolitionists during the late 1840s and 1850s failed.

 


Date: 2015-01-29; view: 733


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