Consolidation and Schism 1821-1861
excerpted from the book
The Tree of Liberty
A Documentary History of Rebellion
and Political Crime in America
edited by Nicholas N. Kittrie and Eldon D. Wedlock,
The Johns Hopkins University Press, 1998
The regulation of blacks and Native Americans... The period
produced stringent state regulations of slaves as apprehension
grew over the danger this population posed to the security of
life, property, and the economic system of the South. The documents
demonstrate the use of the criminal law to suppress abolitionist
and insurrectionist sentiments. Close regulations also were imposed
on free blacks and whites who might associate with and assist
slaves in their search for revenge or freedom.
... While the tensions between blacks and whites found expression
in the law through tight regulation of the interactions between
these populations, the conflict between whites and Native Americans
gave rise to the isolation, betrayal, and exile of the Native
Americans from their homelands. This chapter documents the resettlement
of the Five Civilized Tribes of the southeast in the Indian Territory
of what is now Oklahoma. Even in this haven the Native Americans
could not maintain long-term refuge, since the government withdrew
its promised protection and left them without recourse to the
law to safeguard their recognized interests. Martial force finally
was utilized to compel their further withdrawal.
... Although the law treated blacks and Native Americans quite
differently, it regulated them for the same reason. These groups
constituted identifiable populations whose allegiance to the ruling
authority could not be assumed. Blacks were necessary to the economic
survival of the South, and their continued presence was essential.
The effort was directed instead toward criminalizing the education
and organization of blacks, and prohibiting any kind of social
intercourse which might kindle a spark of opposition or rebellion.
Native Americans, in contrast, were organized into coherent
societies that concededly owed no allegiance to the federal government
or to any state. Oppression of individual Native Americans by
state law clearly could not operate within the tribal lands. As
long as the federal government protected Native American sovereignty
over the territory that they inhabited, these societies were immune
from disintegration or control by the white society. The direction
America's Native American policy took, therefore, was to banish
the entire expendable suspect population whose social and political
order could not be tolerated within the American Manifest Destiny.
... Despite the earlier American articulation of the right
of revolution, the prevailing American view no longer justified
recourse to political crime or rebellion, since government was
considered subject to the will of the people and the ballot box
was to be the tool for curbing oppression. This note strikes flat,
however, when one observes that vast numbers of people were not
only disenfranchised but also held in isolation and bondage. Blacks
and Native Americans (not to mention women) were totally excluded
from the electoral process, and the working class, likewise, largely
was denied political and economic power.
It is difficult to see how, for those on the outside, major
reforms could be expected through the conventional political process.
Perceived injustice, therefore, was countered through various
acts of criminality and violence. Correspondingly, government
and its allies utilized the criminal and martial law to suppress
and punish those who resisted their assigned roles and conditions.
... For the most part the federal law supported the political
interests of the Southern states, thereby facilitating the survival
of slavery... Federal failure to prevent the incursions of white
settlers into Native American territories placed the Native Americans
under continuing duress, which culminated in the Trail of Tears.
The Motives of the "late insurrection" (1831) (Nat Turner
Violence by masters against slaves was a common occurrence
in America. Slave revolts and reprisals were relatively infrequent
and were usually harshly suppressed. In 1712 when some blacks
and Native Americans planned to revolt in New York City and attacked
their masters, the governor sent out troops to end the uprising.
After trial, eighteen slaves were put to death, some by hanging
and others by torture and fire.
A century later more than 150 whites and blacks were killed during
a Virginia slave rebellion and subsequent manhunt. Twenty rebels,
including leader Nat Turner, a black preacher, were executed after
Thomas Gray claimed to have taken Nat Turner's confession prior
to his trial and conviction. Turner, according to Gray, made no
attempt to exculpate himself but frankly acknowledged his full
participation in the uprising. This observation was consistent
with Turner's views on the rightness, or perhaps righteousness,
of his course. In answer to the question, "Do you find yourself
mistaken now?" he responded without hesitation, "Was
not Christ crucified?" Despite the bloodshed of innocents
during the insurrection, he remained steadfast in his belief that
his cause and actions were morally justified.
"Slavery is contrary to the principles of natural justice"
William Lloyd Garrison sought to channel abolitionist sentiments
by organizing the Anti-Slavery Society in 1833. A handful of delegates
met in Philadelphia for the event. Garrison not only fought in
the United States for abolition but also traveled throughout the
world to foster support for his campaign. Taunted by his fellow
citizens who once raised a gallows for him in front of his Boston
home, Garrison observed in 1851, "The truth is, he who commences
any reform which at last becomes one of transcendent importance
and is crowned with victory is always ill-judged and unfairly
estimated. At the outset he is looked upon with contempt and treated
in the most opprobrious manner as a wild fanatic or a dangerous
organizer. In the clear light of Reason, it will be seen that
he simply stood up to discharge a duty which he owed to his God,
to his fellow-men, to the land of his nativity."
While these documents call for immediate action, they eschew
physical force as a legitimate means of accomplishing their ends.
Despite the claim they did only that which was lawful in service
of their cause, many of their actions were illegal under the laws
of the slave states. But of course those laws were declared utterly
null and void. The document also relates the nature in which the
federal government supported the institution, if not the spread,
Documents of the American Anti-Slavery Society (December 4,1833)
Reprinted in W. Garrison and F. Garrison, William Lloyd Garrison,
1805-1879: The Story of His Life Told by His Children (New York:
Arno Press, 1969),1:3-4, 408.
Whereas the Most High God "hath made of one blood all
nations of men to dwell on all the face of the earth," and
hath commanded them to love their neighbors as themselves; and
whereas, our National Existence is based upon this principle,
as recognized in the Declaration of Independence, "that all
mankind are created equal, and that they are endowed by their
Creator with certain inalienable rights, among which are life,
liberty, and the pursuit of happiness"; and whereas, after
the lapse of nearly sixty years, since the faith and honor of
the American people were pledged to this avowal, before Almighty
God and the World, nearly one-sixth part of the nation are held
in bondage by their fellow-citizens; and whereas, Slavery is contrary
to the principles of natural justice, of our republican form of
government, and of the Christian religion, and is destructive
of the prosperity of the country, while it is endangering the
peace, union, and liberties of the States; and whereas, we believe
it the duty and interest of the masters immediately to emancipate
their slaves, and that no scheme of expatriation, either voluntary
or by compulsion, can remove this great and increasing evil; and
whereas, we believe that it is practicable, by appeals to the
consciences, hearts, and interests of the people, to awaken a
public sentiment throughout the nation that will be opposed to
the continuance of Slavery in any part of the Republic, and by
effecting the speedy abolition of Slavery, prevent a general convulsion;
and whereas, we believe we owe it to the oppressed, to our fellow-citizens
who hold slaves, to our whole country, to posterity, and to God,
to do all that is lawfully in our power to bring about the extinction
of Slavery, we do hereby agree, with a prayerful reliance on the
Divine aid, to form ourselves into a society, to be governed by
the following Constitution:-
ART. I.-This Society shall be called the AMERICAN ANTI-SLAVERY
ART. II.-The object of this Society is the entire abolition
of Slavery in the United States....
[I]t shall aim to convince all our fellow-citizens . . . that
Slave-holding is a heinous crime in the sight of God, and that
the duty, safety, and best interests of all concerned, require
its immediate abandonment without expatriation....
ART. III.-This Society shall aim to elevate the character
and condition of the people of color, . . . but this Society will
never, in any way, countenance the oppressed in vindicating their
rights by resorting to physical force...
93b Declaration of Sentiments
... We have met together for the achievement of an enterprise
without which that of our fathers is incomplete....
Their grievances, great as they were, were trifling in comparison
with the wrongs and sufferings of those for whom we plead. Our
fathers were never slaves-never bought and sold like cattle-never
shut out from the light of knowledge and religion- never subjected
to the lash of brutal taskmasters.
But those, for whose emancipation we are striving-constituting
at the present time at least one-sixth part of our countrymen-are
recognized by law, and treated by their fellow-beings, as brute
beasts; are plundered daily of the fruits of their toil without
redress; really enjoy no constitutional nor legal protection from
licentious and murderous outrages upon their persons; and are
ruthlessly torn asunder-the tender babe from the arms of its frantic
mother-the heartbroken wife from her weeping husband-at the caprice
or pleasure of irresponsible tyrants. For the crime of having
a dark complexion, they suffer the pangs of hunger, the infliction
of stripes, the ignominy of brutal servitude. They are kept in
heathenish darkness by laws expressly enacted to make their instruction
a criminal offence.
[W]e maintain-that, in view of the civil and religious privileges
of this nation, the guilt of its oppression is unequalled by any
other on the face of the earth; and, therefore, that it is bound
to repent instantly, to undo the heavy burdens, and to let the
oppressed go free....
It is piracy to buy or steal an native African, and subject
him to servitude. Surely, the sin is as great to enslave an American
as an African.
[W]e believe and affirm-that there is no difference, in principle,
between the African slave trade and American slavery:
That every American citizen, who detains a human being in
involuntary bondage as his property, is, according to Scripture
(Ex. xxi, 16), a man-stealer.
That the slaves ought instantly to be set free, and brought
under the protection of law:
... That if they had lived from the time of Pharaoh down to
the present period, and had been entailed through successive generations,
their right to be free could never have been alienated, but their
claims would have constantly risen in solemnity:
That all those laws which are now in force, admitting the
right of slavery, are therefore, before God, utterly null and
void; being an audacious usurpation of the Divine prerogative,
a daring infringement on the law of nature, a base overthrow of
the very foundations of the social compact, a complete extinction
of all the relations, endearments and obligations of mankind,
and a presumptuous transgression of all the holy commandments;
and that therefore they ought instantly to be abrogated.
... We maintain that no compensation should be given to the
planters emancipating their slaves:
Because it would be a surrender of the great fundamental principle,
that man cannot hold property in man:
Because slavery is a crime, and therefore is not an article
to be sold:
Because the holders of slaves are not the just proprietors
of what they claim; freeing the slave is not depriving them of
property, but restoring it to its rightful owner; it is not wronging
the master, but righting the slave-restoring him to himself:
... Because, if compensation is to be given at all, it should
be given to the outraged and guiltless slaves, and not to those
who have plundered and abused them.
We regard as delusive, cruel and dangerous, any scheme of
expatriation which pretends to aid, either directly or indirectly,
in the emancipation of the slaves, or to be a substitute for the
immediate and total abolition of slavery.
We fully and unanimously recognise the sovereignty of each
State, to legislate exclusively on the subject of the slavery
which is tolerated within its limits; we concede that Congress,
under the present national compact, has no right to interfere
with any of the slave States, in relation to this momentous subject:
But we maintain that Congress has a right, and is solemnly
bound, to suppress the domestic slave trade between the several
States, and to abolish slavery in those portions of our territory
which the Constitution has placed under its exclusive jurisdiction.
We also maintain that there are, at the present time, the
highest obligations resting upon the people of the free States
to remove slavery by moral and political action, as prescribed
in the Constitution of the United States. They are now living
under a pledge of their tremendous physical force, to fasten the
galling fetters of tyranny upon the limbs of millions in the Southern
States; they are liable to be called at any moment to suppress
a general insurrection of the slaves; they authorize the slave
owner to vote for three-fifths of his slaves as property, and
thus enable him to perpetuate his oppression; they support a standing
army at the South for its protection; and they seize the slave,
who has escaped into their territories, and send him back to be
tortured by an enraged master or a brutal driver. This relation
to slavery is criminal, and full of danger: IT MUST BE BROKEN
These are our views and principles-these our designs and measures.
With entire confidence in the overruling justice of God, we plant
ourselves upon the Declaration of our Independence and the truths
of Divine Revelation, as upon the Everlasting Rock....
Maintaining That "owners have not right of property in their
As a result of Nat Turner's insurrection and similar incidents,
fear of a widespread black rebellion spread among Southern authorities.
Each Southern state embarked on a course of harsh repression of
slaves, free blacks, and white sympathizers seeking to ameliorate
the black condition. The laws were designed specifically to deter
whites and free blacks who felt they had a moral obligation to
speak against the status quo. The Slave Codes were perhaps the
most extreme example of political and racial suppression in American
history and relied on a reward and bounty system for enforcement.
*105 Virginia Slavery Law
1848 Va. Aets 113-21.
... 24. Any free person who, by speaking or writing, shall
maintain that owners have not right of property in their slaves,
shall be punished by confinement in the jail not more than twelve
months, and by fine not exceeding five hundred dollars; and such
person may be arrested by any white person and carried before
a judge or justice to be dealt with according to law.
25. Any free person who shall write, print, or cause to be
written or printed, any book, pamphlet, or other writing, with
intent to advise or incite persons of colour within this commonwealth
to rebel or make insurrection, or denying the rights of masters
to property in their slaves, and inculcating the duty of resistance
to such right, or shall, with intent to aid the purposes aforesaid
of such book, pamphlet or other writing, knowingly circulate the
same, shall be punished by confinement in the penitentiary for
a term not less than one nor more than five years.
26. If any postmaster or deputy postmaster shall know that
any such book, pamphlet or other writing mentioned in the preceding
section has been received at his office, through the medium of
the mail, it shall be his duty to give notice thereof to some
justice of the peace, whose duty it shall be to enquire into the
circumstances, and to have such book, pamphlet or other writing
burned in his presence; and if it shall appear to him by satisfactory
evidence that the person to whom the same is directed, subscribed
therefor, knowing its character and tendency, or agreed to receive
with intention to circulate it, thereby to aid the purposes of
the abolitionists, the said justice shall commit him to the jail
to be dealt with according to law. Any postmaster or deputy postmaster
who shall knowingly violate the provisions of this section shall
be punished by fine not exceeding two hundred dollars.
27. It shall be the duty of any judge, justice of the peace,
or mayor, before whom any person may be brought for the offence
mentioned in the preceding section, to cause such person to enter
into a recognizance, with sufficient security, to appear before
the circuit superior court of law and chancery having jurisdiction
of the offence, at the next term thereof, to answer for the same;
and in default of such recognizance, to commit such offender to
jail, there to remain until discharged by order of the said court.
39. Every assemblage of slaves, free negroes or mulattoes,
at any meeting house or other place for the purpose of public
religious worship, where such worship shall be conducted by a
slave, free negro or mulatto, and every such assemblage for the
purpose of instruction in reading or writing, by whomsoever conducted,
and every such assemblage in the night time under whatsoever pretext,
shall be unlawful assembly, and it shall be the duty of all magistrates
to suppress all such assemblies which occur within their respective
jurisdictions; and as often as any slaves, free negroes or mulattoes
shall be unlawfully assembled, it shall be the duty of each magistrate
within whose jurisdiction the assemblage may be, forthwith to
disperse the same, and to that end he may issue his warrant directed
to any sheriff, constable, sergeant, or other person specially
designated, commanding him to enter the house or place where such
assemblage may be, and seize any slave, free negro or mulatto
there found, and it shall be lawful for the magistrate giving
such warrant, or any other magistrate before whom the same may
be returned, to order any slave, free negro or mulatto so seized
to be punished by stripes not exceeding thirty-nine.
40. Any white person who shall assemble with slaves, free
negroes or mulattoes for the purpose of instructing them to read
or write, or shall associate with slaves, free negroes and mulattoes
in an unlawful assembly thereof, shall be punished by confinement
in the jail not exceeding six months, and by fine not exceeding
one hundred dollars; and it shall be lawful for any magistrate
in whose jurisdiction
such assemblage may be, to cause any white person found so
associated with slaves, free negroes or mulattoes, to enter into
a recognizance with sufficient security to appear before the circuit
superior court of law and chancery, or county or corporation court
having jurisdiction of the offence, at the next term thereof,
to answer for the same, and in the meantime to keep the peace
and be of good behaviour; and in default of such recognizance,
to commit such person to jail, there to remain until discharged
by order of said court.
The Treason of Giving Shelter (1861)
The federal grand jury indicated one Castner Hanway for treason
for not aiding an officer of the United States in executing a
fugitive slave warrant. Hanway told the federal officer trying
to enforce the law that "he would not assist-that he did
not care for that act of Congress or any other act." The
case reflects on the particular character of treason as a manifestation
of moral or political protest. In the face of the traditional
insistence on strict construction of the elements of the offense
of treason, the charge of treason against Hanway, who at most
violated the Fugitive Slave Law, was trumped-up.
*109 United States v. Hanway [Pennsylvania]
26 F. Cas. 105 (C.CE.D. Pa. 1851) (No. 15,299).
Hanway was indicted for treason against the United States,
the punishment for which is death. A number of other persons also
stood indicted at this term for the same offence in which he was
said to be engaged. The bill charged Hanway with intending to
resist, in a treasonable way, the execution of an act of congress
passed September 16, 1850, and commonly called the "Fugitive
Teaching Colored Children to Read (1853)
Although Mrs. Margaret Douglas knew that it was against the
law to teach slaves, she was unaware that the law forbade the
education of free blacks. She and her daughter held school for
free black children in a back room in her house in Norfolk, Virginia.
City constables searched the house, and she was indicted by the
grand jury. Refusing the services of a lawyer, Mrs. Douglas defended
herself. She was convicted, but the jury set the penalty at a
one-dollar fine. The judge nevertheless disagreed with this leniency,
and Mrs. Douglas served a one-month prison sentence.
Cutting the Iron Chain or Collar of Any Runaway Slave (1856)
The slavery controversy inspired both words and action from
many Americans. Harriet Beecher Stowe's Uncle Tom's Cabin, published
in 1851, went through 120 United States printings that year alone.
In 1854, the Wisconsin Supreme Court released a Wisconsin man
convicted of rescuing a runaway slave in violation of the 1850
Fugitive Slave Act and ruled that law unconstitutional. That same
year, a mob in Boston attacked the federal courthouse in an attempt
to rescue a fugitive slave from return to his Southern owner.
In 1856, "Free-Soil" leaders in the territory of Kansas
were indicted for treason by their legislature, and raids and
Iynchings occurred on the Missouri-Kansas border. Slave insurrection
and escape to the North became more common.
Louisiana passed its Black Code covering offenses by and against
blacks. It established a totally distinct system of criminal justice
for slaves and blacks, thereby instituting the first comprehensive
system of legal racial apartheid in modern history. The code provided
the death penalty for those who wrote, printed, published, or
distributed anything "having the tendency to produce discontent
among the free colored population or insubordination among the
"a subordinate and inferior class of beings" (1857)
(Dred Scott, 1857)
Efforts to resolve, through legislation or resort to the courts,
some of the public conflicts derived from the institution of slavery
usually were not successful. The proslavery forces controlled
the Southern state legislatures. In the federal Congress, the
Southern delegations likewise exerted great power. The Supreme
Court of the United States was unwilling to undertake radical
reforms of the original institutions of the country, including
the property right in slaves. In the Dred Scott decision the court
reiterated that slaves or their descendants, in bondage or liberated,
were not United States citizens and therefore were not entitled
to access to the federal judicial system.
John Brown's Constitution (1858)
In 1857, the Supreme Court decided Dred Scott v. Sandford,
crushing hopes of moderate abolitionists for the gradual emancipation
of slaves through national legislation. The radical wing of the
abolitionists had been proven right. A native of Torrington, Connecticut,
John Brown attended many antislavery meetings, read William Lloyd
Garrison's Liberator and other abolitionist literature, and knew
several of the antislavery leaders of his day. To him, the failure
of peaceful means to liberate slaves was evident. "Brown
had learned that slavery was an institution based upon force and
terror . . ." wrote historian Louis Ruchames, "[a]nd
that against men who never hesitated to use force and violence
to keep their slaves . . . the only recourse left to anyone with
a sense of justice and compassion for the slave was forceful liberation."
John Brown fought as a guerrilla leader seeking to retain
Kansas as a free state. But preparing for a revolution that was
designed, ultimately, to overcome slavery in the South, Brown
also pressed his adherents to adopt a Provisional Constitution
to govern the territories liberated by his forces. The forty-eight
article constitution was adopted at a convention held in Chatham,
Canada, on May 8-10,1858, with participation by forty-six Brown
followers of both races. Contrary to the prevailing law of the
land, Brown's constitution branded slavery as "perpetual
imprisonment" and condemned it to "absolute extermination."
"guilty of a great wrong against God and humanity" (1859)
On Sunday night, October 16,1859, John Brown and twenty-one
others set out to attack the United States arsenal at Harper's
Ferry, Virginia. Their goal was to seize the armory and to arm
the multitudes of slaves expected to flock to his standard. The
raid was a military success, but the slave uprising failed to
materialize. Brown and his men found themselves surrounded by
the Virginia militia. On Tuesday, October 18, the United States
Marines, under the command of Colonel Robert E. Lee, stormed the
engine house in which the surviving members of Brown's "Army
of Liberation" had taken refuge. Ten of Brown's army were
killed in the Harper's Ferry raid, five escaped, and seven, including
Brown, were captured and later convicted of three crimes: conspiring
with slaves to rebel, murder, and treason.
"remember them that are in bonds" (1859) (John Brown)
On November 2,1859, after deliberating for three-quarters
of an hour, the jury convicted John Brown of murder, treason,
and conspiring with slaves to rebel. Responding to the question
of whether he had anything to say or why the sentence of death
should not be imposed on him, Brown made his last address.
On December 2,1859, prior to his execution, John Brown handed
a final written statement to the guards:
Charlestown, Va., 2d December, 1859
I, John Brown am now quite certain that the crimes of this
guilty land: will never be purged away; but with Blood. I had
as I now think: vainly flattered myself that without very much
bloodshed; it might be done.
* John Brown's Last Speech to the Court (November 2, 1859)
Reprinted in L. Ruchames, John Brown: The Making of a Revolutionary
(New York: Grosset & Dunlap, 1969),125-26.
I have, may it please the Court, a few words to say. In the
first place, I deny everything but what I have all along admitted,-the
design on my part to free the slaves.... That was all I intended.
I never did intend murder, or treason, or the destruction of property,
or to excite or incite slaves to rebellion, or to make insurrection.
I have another objection; and that is, it is unjust that I
should suffer such a penalty. Had I interfered in the manner which
I admit, . . . in behalf of the rich, the powerful, the intelligent,
the so called great, or in behalf of any of their friends,-either
father, mother, brother, sister, wife, or children, or any of
that class,-and suffered and sacrificed what I have in this interference,
it would have been all right; and every man in this court would
have deemed it an act worthy of reward rather than punishment.
This court acknowledges, as I suppose, the validity of the
law of God. I see a book kissed here which I suppose to be the
Bible, or at least the New Testament. That teaches me that all
things whatsoever I would that men should do to me, I should do
even so to them. It teaches me, further, to "remember them
that are in bonds, as bound with them." I endeavored to act
up to that instruction. I say, I am yet too young to understand
that God is any respecter of persons. I believe that to have interfered
as I have done-as I have always freely admitted I have done-in
behalf of His despised poor, was not wrong, but right. Now, if
it is deemed necessary that I should forfeit my life for the furtherance
of the ends of justice, and mingle my blood further with the blood
of my children and with the blood of millions in this slave country
whose rights are disregarded by wicked, cruel, and unjust enactments,-I
submit; so let it be done!
Let me say one word further.
I feel entirely satisfied with the treatment I have received
on my trial. Considering all the circumstances, it has been more
generous than I expected. But I feel no consciousness of guilt.
I have stated from the first what was my intention, and what was
not. I never have had any design against the life of any person,
nor any disposition to commit treason, or excite slaves to rebel,
or make any general insurrection. I never encouraged any man to
do so, but always discouraged any idea of that kind.
Let me say, also, a word in regard to the statements made
by some of those connected with me. I hear it has been stated
by some of them that I have induced them to join me. But the contrary
is true. I do not say this to injure them, but as regretting their
weakness. There is not one of them but joined me of his own accord,
and the greater part of them at their own expense. A number of
them I never saw, and never had a word of conversation with, till
the day they came to me; and that was for the purpose I have stated.
Now I have done.
Tree of Liberty