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, Jr.

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 Rebellion)

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 trial.
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" (1833)

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, of slavery.

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.

93a Constitution

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 SOCIETY.

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 UP.

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 slaves" (1848)

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 Slave Law."...

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 slaves."

"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) (John Brown)

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.

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