"The right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union.
"My opinion is that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Const.i.tution, and cannot be repealed by Congress."
This view was heroically combatted by a minority of the court, especially by Justices McLean and Curtis. The latter, in his opinion, said
"That a treaty with a foreign nation cannot deprive Congress of any part of its legislative power conferred by the people, so that it no longer can legislate as it is empowered by the Const.i.tution."
Also, that if the treaty expressly prohibited (as it did not) the exclusion of slavery from the ceded territory the "court could not declare that an act of Congress excluding it was void by force of the treaty... . A refusal to execute such a stipulation would not be a judicial, but a political and legislative question... .
It would belong to diplomacy and legislation, and not to the administration of existing laws."(36)
Plainly no part of the treaty of cession fastened slavery, or any other inst.i.tution of France, on the territory ceded to the United States. If its provisions were violated by the United States, France, internationally, or the inhabitants at the date of the treaty, might have complained and had redress. Obviously the treaty had no bearing on the question of slavery in the United States, but its provisions were seized upon, as was every possible pretext, by the votaries of slavery to maintain and extend it.
It was also, by a majority of the court, held in this memorable case (hereafter to be mentioned) that under the third article of the cession slaves could be taken from any State into any part of the Louisiana Purchase during its territorial state, and there held, and hence that the Missouri Compromise, of 1820, forbidding slavery in the territory north of 36 30", was in violation of the treaty and was unconst.i.tutional, as were all other acts of Congress excluding slavery from United States territory. This was in the heyday (1857) of the slave power, and when it aspired, practically, to make slavery national.
This aggressive policy, as we shall see when we come to consider the Nebraska Act of 1854 relating to a princ.i.p.al part of the Louisiana Purchase, led to a great uprising of the friends of freedom, the political overthrow of the advocates of slavery in most branches of the Union; then to secession; then to war, whence came, with peace, universal freedom, and slavery in the Republic forever dead.
(35) For map showing territory acquired by the U. S., by each treaty, etc., see _History Ready Ref._, vol. v., p. 3286, and _Louisiana Purchase_ (Hermann, Com. Gen. Land Office). The original thirteen States and Territories comprised 8,927,844 sq. mi. The Louisiana Purchase, 1,171,931, sq. mi.
(36) Dred Scott Case, 19 Howard, 393, etc.
XI FLORIDA
Florida did not become a slave colony even on being taken possession of by the English in 1763, nor on its re-conquest by Spain in 1781.
By the treaty of peace at the end of the war of the Revolution (1783) Great Britain recognized as part of the southern boundary of the United States a line due east from the Mississippi at 31 of lat.i.tude; and at the same time, by a separate treaty, she ceded to Spain the then two Floridas. Florida became a refuge for fugitive slaves from Georgia and South Carolina.
"Georgians could never forget that the _fugitive_ slaves were roaming about the Everglades of Florida."(37)
The Seminole Indians welcomed to their wild freedom the escaped negro from the lash of the overseer, and consequently the long and b.l.o.o.d.y Florida Indian wars were literally a slave hunt. The wild tribes of Indians knew no fugitive-slave law.
In the War of 1812, Spain permitted the English to occupy, for their purposes, some points in Florida. When the war ended they abandoned a fort on the Appalachicola, about fifteen miles above its mouth, with a large amount of arms and ammunition. This fort the fugitive negroes seized and held for about _three years_ as a refuge for escaped slaves, and, consequently, as a menace to slavery.
It was during this time called "Negro Fort." At the instigation of slave owners, it was attacked by General Gaines of the United States Army.
"A hot shot penetrated one of the magazines, and the whole fort was blown to pieces, July 27, 1816. There were 300 negro men, women, and children, and 20 Choctaws in the fort; 270 were killed.
Only three came out unhurt, and these were killed by the allied Indians."
Thus slavery established and maintained itself, through individual and national crime and blood, until the day when G.o.d"s retributive justice should come. And we shall see how thoroughly His justice was meted out; how "an eye for an eye, and a tooth for a tooth,"
measure of blood for measure of blood, anguish for anguish, came to the dominating white race!
It was not until February, 1821, that notice of the ratification of a treaty, made two years before, was received, by which Spain ceded Florida to the United States in consideration of their paying $5,000,000 in satisfaction of American claims against Spain.
This was not all the Republic paid for Florida. A second Seminole war (1835-43) ensued, the bloodiest and most costly of all our Indian wars, in which the Indians were a.s.sisted by fugitive slaves and their descendants, in whom the negro blood was admixed, often with the white blood of former masters, and again with the Indian.(38)
At the end of eight years, after many valuable lives had been lost, and $30,000,000 had been expended, but not until after the great Seminole leader (Osceola (39)) had been, by deliberate treachery and bad faith, captured, and the Indians had been worn out rather than conquered, Florida became an American province, and two years thereafter (1845) a slave State in the Union.
The extinction of the brave Seminole Indians left no _race_-friend of the poor enslaved negro. Untutored as they were, they knew what freedom was, and, until 1861, they were the only people on the American continent to furnish an asylum and to shed their blood for the wronged African.
Florida, as a slave State, was a factor in establishing a balance of power, politically, between the North and South.
As the war between the United States and Great Britain (1812-15) did not grow out of slavery, nor was it waged to acquire more slave territory, nor did it directly tend to perpetuate slavery where established, we pa.s.s it over.
(37) W. G. Summer"s _Andrew Jackson_, ch. iii.
(38) In 1821 at Indian Springs, Florida, a forced treaty was negotiated with the Creek Indians for part of their lands by which the United States agreed to apply $109,000 of the purchase price as compensation to Georgia claimants for escaped slaves, and $141,000 for "_the offsprings which the females would have borne to their masters had they remained in bondage_."--_Rise and Fall of Slavery_ (Wilson), vol. i, 132,454.
(39) _Osceola_, or _As-Se-He-Ho-Lar_ (black drink), was the son of Wm. Powell, an English Indian-trader, born in Georgia, 1804, of a daughter of a Seminole chief. His mother took him early to Florida. He rose rapidly to be head war-chief, and married a daughter of a fugitive slave who was treacherously stolen from him, as a slave, while he was on a visit to Fort King. When he demanded of General Thompson, the Indian agent, her release, he was put in irons, but released after six days. A little later, December, 1835, he avenged himself by killing Thompson and four others outside of the fort, thus inaugurating the second Seminole war. He hated the white race, and his ambition was to furnish a safe asylum for fugitive slaves.
Surprises and ma.s.sacres ensued for two years, Osceola showing great bravery and skill, and _not_ excelling his white adversaries in treachery. He fought Generals Clinch, Gaines, Taylor and Jesup, of the U. S. A. Jesup induced him (Oct. 21, 1837) under a flag of truce to hold a parley near St. Augustine, where Jesup treacherously caused him to be seized, and the U. S. authorities (treating him as England treated Napoleon) immured him in captivity for life, hopelessly, at Fort Moultrie. His free spirit could not endure this, and he died of a broken heart three months later (January 30, 1838), at thirty-four years of age. His body lies buried on Sullivan"s Island, afterwards the scene of a larger struggle for human freedom.
The remains of the _civilized_ statesman-champion of perpetual _human_ slavery, Calhoun, and the remains of the savage, untutored Seminole _Chief_, Oscoeola, the champion of _human liberty_, lie buried near Charleston, S. C. Let the ages judge each--kindly!
XII MISSOURI COMPROMISE--1820
In pursuance of the policy of trying to balance, politically, freedom and slavery, and to deal tenderly with the latter, and not offend its champions, new States were admitted into the Union in pairs, one free and one slave.
Thus Vermont and Kentucky, Tennessee and Ohio, Louisiana and Indiana, Mississippi and Illinois were coupled, preserving in the Senate an exact balance of power.(40)
When Missouri had framed a Const.i.tution (1819) and applied for admission into the Union, Alabama was on the point of admission as a slave State, and was admitted the same year, and thus the usage required the admission of Missouri as a free State. In 1790 the two sections were nearly equal in population, but in 1820 the North had nearly 700,000 more inhabitants than the South.
Missouri was a part of the Louisiana Purchase, and she had in 1820 above 10,000 slaves.
The usual form of a bill was prepared admitting her, with slavery, on an equal footing with other States. It came up for consideration in the House during the session of 1818-1819, and Mr. Tallmadge, of New York, precipitated a controversy, which was partic.i.p.ated in by all the great statesmen, North and South, who were then on the political stage.
He offered to amend the bill so as to prohibit the further introduction of slaves into Missouri, and providing that all children born in the State after its admission should be free at twenty-five years of age.
This amendment was a signal for the fiercest opposition. Clay and Webster, Wm. Pinckney of Maryland, and Rufus King of New York, John Randolph of Roanoke, Fisher Ames, and others, who were in the early prime of their manhood, were heard in the fray. In it the first real threats of disunion, if slavery were interfered with, were heard. It is more than possible those threats pierced the ears of John Adams and Thomas Jefferson, who still survived,(41) and caused them to despair of the Republic.
It is worthy of note that none of the great statesmen engaged in this first memorable combat in which the Union was threatened in slavery"s cause, lived to confront disunion in fact, face to face.
Clay, then Speaker of the House, and possessed of great influence, spoke first in opposition to the amendment. Though his speech, like others of that time, was not reported, we know he denied the power of Congress to impose conditions upon a new State after its admission to the Union. He maintained the sovereign right of each State to be slave or free. He did not profess to be an advocate of slavery. He, however, vehemently a.s.serted that a restriction of slavery was cruel to the slaves already held. While their numbers would be the same, it would so crowd them in narrow limits as to expose them "in the old, exhausted States to dest.i.tution, and even to lean and haggard starvation, instead of allowing them to share the fat plenty of the new West."(42) (What an argument in favor of perpetuating an immoral thing! So spread it over the world as to make it thin, yet fatten it!)
Clay"s arguments were the most specious and weighty of those made against the amendment. And they did not fail to claim the amendment was in violation of the third article of the cession of Louisiana, already, in another connection, referred to.
The Missouri delegate denounced the amendment as a shameful discrimination against Missouri and slavery, which would endanger the Union; in this latter cry a member from Georgia joined.
The friends of the amendment fearlessly answered Clay"s speech and the speeches of others. The House was reminded that the great Ordinance of 1787, pa.s.sed contemporaneous with the adoption of the Const.i.tution, and approved and enforced by its framers (some of whom were also then members of the Continental Congress) imposed an absolute inhibition on slavery forever, precedent to the admission of Ohio, Indiana, Illinois, and the other States to be formed from the Northwest Territory; they showed the treaty with France did not profess to perpetuate slavery in the ceded Territory; they denounced slavery as an evil, unnatural, cruel, opposed to the principles of the Declaration of Independence, and that it had only been tolerated, not approved, by the Const.i.tution; and Mr. Talmadge closed the debate by characterizing slavery as a "scourge of the human race," certain to bring on "dire calamities to the human race"; ending by boldly defying those who threatened, if slavery were restricted, to dissolve the Union of the States. This amendment pa.s.sed the House, 87 to 76, but was beaten, the same session, in the Senate, 22 to 16; one Senator from Ma.s.sachusetts, one from Pennsylvania, and two from Illinois voted with the South. Again the too often easily frightened Northern statesmen struck their colors just when the battle was won.
In January (1820) of the succeeding Congress the measure was again under consideration in the Senate, then composed of only forty-four members. It was then that Rufus King and Wm. Pinckney, the former for, the latter against, the slavery restriction amendment, displayed their eloquence. Pinckney, a lawyer of much general learning, paraphrased a pa.s.sage of Burke to the effect that "the spirit of liberty was more high and haughty in the slaveholding colonies than in those to the northward." He also planted himself, with others from the South, on state-sovereignty, afterwards more commonly called "state-rights," and in time tortured into a doctrine which led to nullification--Secession--_War_.
All these speeches were answered in both Houses by able opponents of slavery extension, but meantime a matter arose which did much to favor the admission of Missouri as a slave State.
Maine, but recently separated from Ma.s.sachusetts, applied for statehood, and could not be refused.
A Senator from Illinois (Mr. Thomas) introduced a proviso which prohibited slavery north of 36 30" in the Louisiana acquisition, except in Missouri.
Here, again, at the expense of freedom, was an opportunity for _compromise_. It was promptly seized upon. It was agreed that Maine, where by no possibility slavery would or could go, should come into the Union as a free State; Missouri as a slave State, and the proviso limiting slavery in the remaining territory south of 36 30" should be adopted. This compromise was adopted in the Senate, and later, after close votes on amendments, the House also agreed to it. John Randolph and thirty-seven Southern members voted against it, and, but for weak-kneed Northern members, it would have failed. This compromise Randolph said was a "_dirty bargain_," and the Northern members who supported it he denounced as "doughfaces,"--a coined phrase still known to our political vocabulary.