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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, August 09, 2005
 

The Fugitive Slave Bill of 1850 - one or two puzzles


It's like starting watching a new TV soap - a combination of the strange and the familiar, with a whole new cast of characters to master.

Skimming through Nevins (July 31), I've rested my caravan at the fascinating period of the Compromise of 1850.

The first odd thing arises from the make-up of the rosters in House and Senate: the North controls the House by a substantial margin; but North and South are in perfect equilibrium, numerically, in the Senate. Fifteen slave states, fifteen free states.

All the struggles of the South in the Senate that I've looked at here - the earliest of which being the Force Bill of 1890 (June 26) - were essentially defensive, in which the aim of the South was to maintain the status quo. On antilynching bills, poll tax, FEPC, etc.

Its purpose of obstruction was adequately served by the unanimity requirement in the Senate, and its position only theoretically weakened by the introduction of cloture in 1917.

In 1850, the South had positive demands, and, with the support only of a single Northerner (or of a vice-presidential casting vote) could obtain a Senate majority in its favour [1].

Indeed, part of the significance of 1850 was the fact that the South realised that this happy state of affairs was about to come to an end:

Previously both slave and free states had been admitted so that any period of inequality in voting power was kept short, and kept within two votes [3].

In itself, the (essential) admission of California would not break the pattern; but the opening up of the West that it foretold was clearly going to lead to a succession of free state admissions wholly or largely uncompensated by slave state admissions.

(Hence the trail that lead to Kansas-Nebraska and the short-lived triumph of Illinois Golden Boy Stephen Douglas.)

Historically, the territorial element is, I infer, the most important in the ragbag of Southern gripes that inform the Compromise. But it's the road most travelled and pretty damned tedious.

The element that has me intrigued is the fugitive slave question. (Thankfully, the ground has already been broken by material available online [3].)

The question was essentially symbolic, for both North and South: the number of runaway slaves was relatively small; and runaways who made it to free territory were predominantly from border states - for obvious reasons.

The greatest heat, however, was generated by the sections least touched by the problem: New England and the Deep South (Nevins Vol 1 p382ff [4]).

In 1850, abolitionism had little appeal in the North; the view of most of those (adherents of the Free Soil Party) opposed to the machinations of the Slave Power (aka Slavepower) was, so far as I can see, that the South's slaves were its business, so long as it kept that business down south.

In the short session of the 30th Congress, the House defeated 100-79 a move to get a fugitive slave bill reported out of the Judiciary Committee [5]. Northern Democrats were, like Northern Whigs, overwhelmingly against the motion.

In the same session (Nevins p222), the House discussed a bill (drafted by Rep Abraham Lincoln) for the abolition of slavery in the District (of Columbia) [6].

Already, though, a pattern of large abstentions seems to be emerging [7].

Contemporary practice meant that the 31st Congress (barring a special session in March 1849) did not start its first session until December 1849. And, in the following January, the bill that became the Fugitive Slave Act of 1850, S 23, was introduced by James Mason (VA) [8].

I've yet to read the debates in the Congressional Globe - working from the LOC site is like wading through treacle. (And that's before you get to the members' orotund stylings!)

But, bypassing the Senatorial cut and thrust, I'm driven to wonder why cutting the deal should have been so difficult; or so easy.

Theriault/Weingast (link in earlier piece) on p66a summarise the voting on the Clay and Douglas versions of the Compromise; with a 30:30 sectional split, you only needed one Southern senator in favour of compromise to vote for a measure favouring the North (and vice versa) for the whole thing to pass.

On the other hand, any handful of extremist senators - adopting a politique du pire with the aim of easing the process of secession - could have blocked the legislation entirely by means of a filibuster.

The fact that there was no filibuster - there's no reference to one in the commentary I've read, at least - suggests that even the extremists on both side were unwilling to derail a compromise if a majority could be found for it [9].

The voting summary, by the way, shows that the abstention rate on the Douglas bills was distinctly variable. But none of the bills secured less that 27 votes, and the idea that all abstainers were not only closet opponents but could all have been persuaded out of the closet at the same time is ridiculous [10]. Analysing the reasons why each senator chose to abstain would be a job of work, though potentially rewarding.

Passage of the Compromise in the House should have been more difficult with a clear Northern majority. The big movement seems to be in Northern Democrats [11], who flipped on the fugitive slave law between the 30th Congress vote against such a law and the vote on S 23. How did that happen?

The upshot of all this is that I'm still casting around for a nugget of interest in the 1850 Compromise; I'm thinking that the fugitive slave legislation is the most promising area.

We'll see...

  1. Subject, of course, to a Northern filibuster. The state of the parties in the 31st Congress Senate on April 18 1850 was

    Northern Whigs 13
    Southern Whigs 12

    Northern Dems 16
    Southern Dems 17

    Free Soil 2

  2. From the beginning of the Republic up till 1850, the only time when the margin between North and South was more than one state was between the admission of Texas (December 19 1845) and that of Iowa (December 28 1846).

  3. In Regulating Slavery: Deck-Stacking and Credible Commitment in the Fugitive Slave Act of 1850 by Scott Basinger (PDF). There is also an 1850 pamphlet by abolitionist Lewis Tappan The Fugitive Slave Bill: Its History and Unconstitutionality with useful nuggets.

  4. The 1860 Census estimates for 1850 alone (how?) a number of around 1,000 runaways, mostly border, not all gaining free territory - the 1850 Census places the total slave population in 1850 at around 3.2 million (from here).

  5. RC 362 on January 8 1849.

  6. There are a host - well twenty-odd - House RCVs in that session on matters relating to slavery and the slave trade in the District. There seem to be consistent majorities against motions to table anti-slavery measures - but no votes on the measures themselves.

  7. The obvious conclusion is that Northern abstainers represent mixed districts of freesoil and slavery sympathisers and prefer to alienate both groups moderately rather than one group intensely.

    I'm not sure whether that's right, though. One needs to consider whether the abstention rates are any worse than on other, non-slavery-related issues. And to determine that the abstainers' constituents were significantly more heterogeneous than than those comparable colleagues.

  8. There does not seem to be a copy of the original bill available from the LOC page of 31st Congress bills: search on S. 23 and you get various amendments.

  9. Neither Theriault/Weingast nor Basinger deal with the possibility of filibuster. Theriault/Weingast mentions the filibuster as a possible method of killing the Douglas compromise (p7a), but goes on
    Because a majority could have prevented compromise but did not do so, voting theory implies that a majority preferred compromise to no compromise.
    Which, apart from being virtually tautologous, fails to address the fact that it is minorities that use the filibuster!

  10. Theriault/Weingast nevertheless dismantle it with math (p39a).


  11. Basinger p21a.


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