Liberty Equality Power: A History of the American People

Even though the Union forces outnumbered the Confederates by almost 2 to 1, Lee boldly went over to the offensive in the riskiest operation of his career. It paid off. On May 2, Stonewall Jackson led 28,000 men on a stealthy march through the woods to attack the Union right flank late in the afternoon. Owing to the negligence of the Union commanders, the surprise was complete. Jackson's assault crumpled the Union flank as the sun dipped below the horizon. Jackson then rode out to scout the terrain for a moonlight attack but was wounded on his return by jittery Confederates who mistook him and his staff for Union cavalry. Nevertheless, Lee resumed the attack next day. In three more days of fighting that brought 12,800 Confederate and 16,800 Union casualties (the largest number for a single battle in the war so far), Lee drove the Union troops back across the Rappahannock. It was a brilliant victory.

Continued rescues and escapes kept matters at a fever pitch for the rest of the decade. In the fall of 1851 a Maryland slave owner and his son accompanied federal marshals to Christiana, Pennsylvania, a Quaker village, where two of the man's slaves had taken refuge. The hunters ran into a fusillade of gunfire from a house where a dozen black men were protecting the fugitives. When the shooting stopped, the slave owner was dead and his son was seriously wounded. Three of the blacks fled to Canada. This time Fillmore sent the marines. They helped marshals arrest 30 black men and a half dozen whites, who were indicted for treason. But the government's case fell apart, and the U.S. attorney dropped charges after a jury acquitted the first defendant, a Quaker.

The South took the offensive at the very outset of the Buchanan administration. Its instrument was the Supreme Court, which had a majority of five justices from slave states led by Chief Justice Roger B. Taney of Maryland. Those justices saw the Dred Scott case as an opportunity to settle once and for all the question of slavery in the territory.

After the owner’s death, Scott sued for freedom on the grounds of his prolonged stay in Wisconsin Territory, where slavery had been outlawed by the Missouri Compromise. The case worked its way up from Missouri courts through a federal circuit court to the U.S. Supreme Court. There it began to attract attention as a test case of Congress’s power to prohibit slavery in the territories.

The southern Supreme Court justices decided to declare that the Missouri Compromise ban on slavery in the territories was unconstitutional. But to avoid the appearance of a purely sectional decision they sought the concurrence of at least one northern Democratic justice. They found their man in Robert Grier of Pennsylvania, and President-elect Buchanan played an improper role by pressing his fellow Pennsylvanian to go along with the southern majority. Having obtained Justice Grier’s concurrence, Chief Justice Taney issued the Court’s ruling stating that Congress did not have the power to keep slavery out of a territory, because slaves were property and the Constitution protects the right of property. For good measure, Taney also wrote that the circuit court should not have accepted the Scott case in the first place, since black men were not citizens of the United States and therefore had no standing in its courts. Five other justices wrote concurring opinions. The two non-Democratic justices (both former Whigs, one of them now a Republican) dissented vigorously from both parts of the Court’s decision. They stated that blacks were legal citizens in several northern states and were therefore citizens of the United States. And to buttress their opinion that Congress could prohibit slavery in the territories, they cited the provision of the Constitution giving Congress power to make “all needful rules and regulations” for the territories.

Modern scholars agree with the dissenters. But in 1857 Taney had a majority and his ruling became law.

The argument reached its fullest development in the writings of George Fitzhugh, a Virginia farmer-lawyer whose newspaper articles were gathered into two books published in 1854 and 1857, Sociology for the South and Cannibals All. Free-labor capitalism, said Fitzhugh, was a war of each against all, a competition in which the strong exploited and starved the weak. Slavery, by contrast, was a paternal institution that guaranteed protection of the workers.

[Lincoln] finally hit upon a solution that evidenced that mastery would mark his presidency. He decided to send in unarmed ships with supplies but to hold troops and warships outside the harbor with authorization to go into action only if the Confederates used force to stop the supply ships. And he would notify South Carolina officials in advance of his intention. This was a stroke of genius. It shifted the decision for war or peace to Jefferson Davis. In effect, Lincoln flipped a coin and said to Davis: "Heads I win; tails you lose." If Confederate troops fired on the supply ships, the South would stand convicted of starting a war by attacking "a mission of humanity" bringing "food for hungry men." If Davis allowed the supplies to go in peacefully, the U.S. flag would continue to fly over Fort Sumter....Davis did not hesitate. He ordered General Beauregard to compel Sumter's surrender before the supply ships got there....After a 33-hour bombardment in which the rebels fired 4,000 rounds and the skeleton gun crews in the garrison replied with 1,000 - with no one killed on either side - the burning fort lowered the U.S. flag in surrender.

Abolitionist both black and white, denounced the law as draconian, immoral and unconstitutional. They vowed to resist it. Opportunities soon came, as slaveowners sent  agents north to recapture fugitives, some who had escaped years earlier (the act set no statute of limitations). In February 1851 slave-catchers arrested a black man living with his family in Indiana and returned him to an owner who said he had run away 19 years before.  A Maryland man tried to claim ownership of a Philadelphia woman who he said had escaped 22 years earlier; he also wanted her six children, all born in Philadelphia.  In this case, the commissioner disallowed his claim to both mother and children.  But statistics show that the law was rigged in favor of the claimants.  In the first 15 months of its operation, 84 fugitives were returned to slavery and only 5 were released.  (For the entire decade of the 1850s the ration was 332 to 11.)

Alarmed by the growing number of northern settlers, bands of Missourians, labeled "border ruffians" by the Republican press, rode into Kansas prepared to vote as many times as necessary to install a proslavery government. In the fall of 1854 they cast at least 1,700 illegal ballots and sent a proslavery territorial delegate to Congress. When the time came for the election of a territorial legislature the following spring, even greater efforts were needed, for numerous Free Soil settlers had taken up claims during the winter. But Atchison was equal to the task. He led a contingent of border ruffians to Kansas for the election. "There are eleven hundred coming over from Platte County to vote," he told his followers, "and if that aint enough, we can send five thousand - enough to kill every God-damned abolitionist in the Territory."

His count was accurate. Five thousand was about the number who came - 4,986 to be precise, as determined by a congressional investigation - and voted illegally to elect a proslavery territorial legislature. The territorial governor appointed by President Pierce pleaded with Pierce to nullify the election. But Pierce listened to Atchison and fired the governor. Meanwhile, the new territorial legislature legalized slavery and adopted a slave code that even authorized the death penalty for helping a slave to escape. The legislature also declared valid all the ballots that has been cast in the lection that had created it.

The "free state" party, outraged by these proceedings, had no intention of obeying laws enacted by this "bogus legislature." By the fall of 1855 they constituted a majority of bona fide settlers in Kansas. So they called a convention, adopted a free-state constitution, and elected their own legislature and governor. By January 1856, on the even of a presidential election, two territorial governments in Kansas stood with their hands at each other's throats.

Instead of settling the slavery controversy, the Dred Scott decision intensified it. Meanwhile, the proslavery forces, having won legalization of slavery in the territories, moved to ensure that it would remain legal when Kansas became a state. The required deft maneuvering, because legitimate antislavery settlers outnumbered proslavery settlers by more than two to one. In 1857 the proslavery legislature (elected by the fraudulent votes of border ruffians two years earlier) called for a constitutional convention at Lecompton to prepare Kansas for statehood. But because the election for delegates was rigged, Free Soil voters refused to participate in it. One-fifth of the registered voters thereupon elected convention delegates, who met a Lecompton and wrote a state constitution that made slavery legal.

The modest labor-union activities of the 1850s revived after the depression, as workers in some industries went on strike to bring wages back to pre-panic levels.  In February 1860 the shoemakers of Lynn, Massachusetts, began a strike that became the largest in U.S. history up to that time, eventually involving 20,000 workers in the New England shoe industry.  Nevertheless, in spite of the organization of several national unions of skilled workers during the 1850s, less than 1 percent of the labor force was unionized in 1860.

Many Americans in 1850 took this prodigious growth for granted. They considered it evidence of God’s beneficence to this virtuous republic, this haven for the oppressed seeking refuge from Old World tyranny, this land where all (white) men stood equal before the law. During the 1840s a group of expansionists affiliated with the Democratic Party began to call themselves the “Young America” movement. They proclaimed that it was the “Manifest Destiny” of the United States to grow from sea to sea, from the Arctic Circle to the tropics. It is “our manifest destiny to overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty,” wrote John L. O’Sullivan, editor of the Democratic Review, in 1845. “Yes, more, more, more!...till our national destiny is fulfilled and…the whole boundless continent is ours.” Not all Americans thought this unbridled expansion was a good thing. For the earliest Americans, whose ancestors had arrived on the continent thousands of years before the Europeans, it was a story of defeat and contraction rather than of conquest and growth. By 1850 the white man’s diseases and guns had reduced the Indian population north of the Rio Grande to fewer than half a million, a fraction of the number who had lived there two or three centuries earlier. The relentless westward march of white settlement had pushed all but a few thousand Indians beyond the Mississippi.

A financial panic in the fall of 1857 brought on what turned out to be a short-lived but intense depression. Causes of the panic stemmed partly from the international economy and partly from domestic overexpansion…This speculative house of cards came crashing down in September 1857. The failure of one banking house sent a wave of panic through the financial community. Banks suspended specie payments, businesses failed, railroads went bankrupt, construction halted, factories shut down. Hundreds of thousands of workers were laid off, and others went on part-time schedules or took wage cutes, just as the cold winter months were arriving.

The Fugitive Slave Act of 1850 gave the federal government more power than any other law passed by Congress. The constitution required that a slave who escaped into a free state must be returned to his or her owner. But it did not specify how that should be done. Under the 1793 Law, Slaveowners could take recaptured property before any state or federal court to prove ownership. This procedure worked well enough so long as states were willing to cooperate. But as the antislavery movement gained momentum in the 1830s, some officials proved uncooperative. And professional slave-catchers went to far kidnapping free blacks, forgoing false affidavits to 'prove' they were slaves, selling them south into bondage. Several northern states responded by passing antikidnapping laws giving alleged fugitives the right to testify on their own behalf and the right to trail by jury. The laws also prescribed criminal penalties for kidnapping. In Prigg v. Pennsylvania's antikidnapping law unconstitutional. But the Court also ruled that enforcement of the Constitution's fugitive slave clause was entirely a federal responsibility, thereby absolving the states of any need to cooperate in enforcing it. Nine northern states thereupon passed personal liberty laws which prohibited the use of state facilities (courts, jails, police or sheriffs and so on) in the recapture of fugitives.

Unable to protect their freedom through legal means, many blacks, with the support of white allies, resorted to flight and resistance. Thousands of northern blacks fled to Canada - 3,000 in the last three months of 1850s alone - sometimes under the very nose of slave-catchers. In 1852 slave-catchers arrested a fugitive who had taken the name Shadrach when he escaped from Virginia a year earlier. They rushed him to the federal courthouse, where a few deputy marshals held him, pending a hearing.  But group of black men broke into the courtroom, overpowered the deputies, and spirited Shadrach out of the country to Canada. This was too much for the Fillmore administration. In April 1851 another fugitive, Thomas Sims, was arrested in Boston, and the president sent 250 soldiers to help 300 armed deputies enforce the law and return Sims to slavery.

Continued rescues and escapes kept matters at a fever pitch for the rest of the decade.  In the fall of 1851 a Maryland slaveowner and his son accompanied federal marshals to Christiana, Pennsylvania, a Quaker village, where two of the man's slaves had taken refuge. The hunters ran into a fusillade of gunfire from a house where a dozen black men were protecting the fugitives. When the shooting stopped, the slave owner was dead and his son was seriously wounded. Three of the blacks fled to Canada. This time Fillmore sent the marines. They helped marshals arrest 30 black men and a half dozen whites, who were indicted for treason. But the government's case fell apart, and the U.S. attorney dropped charges after a jury acquitted the first defendant, a Quaker.

Lincoln's victory provided the shock that Southern fire-eaters had craved. The tension that had been building for years suddenly exploded like a string of firecrackers, as seven states seceded one after another. According to the theory of secession, when each state ratified the Constitution and joined the Union, it authorized the national government to act as its agent in the exercise of certain functions of sovereignty - but the states had never given away their fundamental underlying sovereignty itself. Any state, then, by the act of its own convention, could withdraw from its "compact" with the other states and reassert its individual sovereignty. Therefore, the South Carolina legislature called for such a convention and ordered an election of delegates to consider withdrawing form the United States. And, on December 20, 1860, that is what the South Carolina convention did, by a vote of 169 to 0.