Ohio History Journal

THE ORIGIN OF THE GIDDINGS RESOLUTIONS

 

 

By W. SHERMAN SAVAGE

 

 

The British Government abolished slavery in its West Indies

possessions as early as 1833. The nearness of the slave states

of the American Union to those islands made this a question of

great concern and caused much confusion in the diplomatic re-

lations of the two countries. When ships from the Southern

States with slaves on board were driven by stress of weather into

these ports the slaves claimed their freedom on the theory that

slavery could not exist in England. Out of the effort of the

National Government to regulate slavery on the high seas grew

the Giddings Resolutions. It developed over the brig, Creole,

a ship which sailed from Hampton Roads for the city of New

Orleans on October 27, 1841. On board were many slaves, the

exact number of which is not clear. There were probably as

many as one hundred and thirty.1

On November 7, a part of the slaves revolted and as a

result a slave-dealer named Hewell, Captain Ensor, the mate, and

several of the crew    were wounded.      The slaves took over the

vessel and sailed into the harbor of Nassau, thinking they would

be protected by the English who did not permit slavery. The

British authorities arrested the mutinous slaves and charged them

with murder and other crimes. A demand for them by the Amer-

ican Consul was refused by the British authorities.²

 

1 "Letters from Webster to Edward Everett, Ambassador to England, January

29, 1842," in Niles' National Register (Philadelphia, 1811-1849), LXI (1811-42), 403.

Daniel Webster in a letter to Edward Everett, and John Bassett Moore in his History

and Digest of the International Arbitration to Which the United States Has Been a

Party (Washington, D. C., 1898), IV, 4375, stated that there were one hundred thirty-

five, while Hermann Eduard von Hoist gives about one hundred. In the official cor-

respondence from Webster to the Earl of Aberdeen (George Hamilton Gordon) and

Lord Ashburton (Alexander Baring) the number is not given. Therefore it may be

assumed that one hundred or more slaves were on the ship.

2 Moore, Digest of International Arbitration, IV, 4375.

(20)

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ORIGIN OF GIDDINGS RESOLUTIONS             21

 

This action was in accordance with English practice. To

Daniel Webster, however, it seemed a violation of the law of

nations. In his correspondence with Lord Aberdeen, the foreign

secretary, on August 1, 1842, he argued that vessels driven into

foreign ports by necessity and seeking only temporary refuge

should be placed in a different class from those which entered

voluntarily and for the purpose of trading.3  A ship driven in by

stress or weather or other circumstances should be exempted

from the laws of the port unless while there the persons on board

committed some act against the laws of the place. When Lord

Ashburton, a special minister, came to the United States to take

up some questions of difference between the two countries, Web-

ster called his attention to the question of the Creole. Lord Ash-

burton suggested that the matter be referred to London, since

the difficulty was known there before he left that city and was

not included among the questions which were to be treated by him.

The English law, as he saw it, would permit only the freedom

of the slaves.4

Lord Aberdeen did not agree with Webster and based his

case on the ground, that in the absence of treaty stipulation no

power had a right to demand of another the restitution of crim-

inal fugitives from justice.⁵ It can be seen that these representa-

tives of the two countries rested their case upon divergent prin-

ciples of international law.

In his eagerness to obtain these slaves Webster appealed to

the Calhoun Resolutions which he had so bitterly condemned and

refuted when the resolutions were before the Senate. John

Quincy Adams thought him inconsistent in this action. The

purpose of the Calhoun Resolutions was to define the authority

of the National Government over slavery.⁶ Webster used these

resolutions in the presentation of his case to England. He claimed

that the Creole was an American vessel carrying the United States

flag from one port to another in the jurisdiction of the United

States and that the ship was in the service of a lawful voyage,

 

3 British and Foreign State Papers, XXX, 187.

4 Letter of August 7, 1842, ibid., 189.

5 Cleveland Daily Herald, March 22, 1842.

6 Congressional Globe, 25 Cong., 2 Sess., 55.

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22     OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

since slavery was recognized in the constitutions of the states

where it existed.⁷ The idea was advanced that slavery was pro-

tected by the National Government and that the Government must

protect an institution recognized by it.

This doctrine which had been set forth by Webster to Ed-

ward Everett as the basis of his claim was denied emphatically

by Joshua Reed Giddings from the Western Reserve of Ohio in

the House of Representatives on March 21, 1842.8 The resolu-

tions claimed that prior to the adoption of the Federal Constitu-

tion, the states comprising the Union, exercised exclusive juris-

diction over slavery within their own territory and possessed full

power to continue or abolish it at pleasure and that none of this

power was delegated to the National Government with the adop-

tion of the Constitution. Slavery was an abridgement of the natu-

ral rights of man and could exist only by force of positive

municipal law; therefore it was confined to the territorial juris-

diction of the power creating it. When a ship belonging to the

citizens of any state of the American Union left the waters and

territory of that state and entered the high seas, the persons on

board ceased to be subject to the slave laws and became amenable

to the laws of the United States. Giddings applied this principle

to the Creole case. He said that the persons on board the vessel,

in resuming their natural rights, violated no law of the United

States, incurred no legal penalty, and were not liable to any

punishment. All attempts to exert the influence of the National

Government in favor of the coastwise slave trade or to place

it in the position of maintaining commerce in human beings was

injurious to the interest of the free states and prejudicial to the

national character.⁹ Giddings had taken the doctrine which John

C. Calhoun had set forth in his resolutions and turned it against

the South.

The southern representatives wished to punish Giddings in

accordance with a previous warning which had been given to

him on February 28, just a few weeks after the Adams Haverhill

 

7 Niles' Register, LXI (1841-42), 403.

8 Cong. Globe, 27 Cong., 2 Sess., 342.

9 Ibid., 343.

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ORIGIN OF GIDDINGS RESOLUTIONS             23

 

Resolutions had been introduced. These were a set of resolu-

tions from Benjamin Emerson and forty-five other citizens from

Haverhill, Massachusetts, asking for the peaceful dissolution of

the Union. Adams introduced these resolutions and caused much

confusion in the House. Giddings introduced a resolution from

the citizens of Austinburg, Ohio, asking for a division of the

Union by a line drawn between the free and the slave states. The

petition asked that it might be done peacefully.¹⁰ The petition

was rejected by a vote of one hundred sixteen to twenty-four and

Giddings, who had the audacity to follow Adams in offering an-

other resolution on this subject, was rebuked. One member of

the House expressed the sentiment of a large part of the mem-

bership when he said the resolutions were disrespectful to the

House. When Giddings saw that the House was thrown into

confusion by his resolutions over the Creole, he withdrew them.

John Minor Botts of Virginia, who had fought side by side with

Adams a few weeks before for the right of petition, felt that

he could not go as far as Giddings had gone on the slave

question, for he held the view that slaves were property. He

offered a resolution censuring Giddings. The resolution stated

that Joshua R. Giddings, from the Sixteenth Congressional Dis-

trict of the State of Ohio, had offered in the House a series of

resolutions which dealt with a subject that was of great impor-

tance to a portion of the Union, a subject for negotiation be-

tween Great Britain and the United States, and one which prob-

ably involved war.11 A penalty of severe censure was prescribed

against him. Botts moved that the rules of the House be sus-

pended so that his resolution might come up at once. However,

the House refused by a vote of one hundred twenty-eight to

sixty-six a count short of a two-thirds vote.¹² The states were

called in alphabetical order for other resolutions. When the state

of Ohio was called, John B. Weller, a Giddings colleague, re-

worded the Botts Resolution censuring Giddings so as to make it

appear his own. The previous question was immediately moved

 

10 Ibid., 268. Austinburg, Ashtabula County, is spelled Ostanberg in the Con-

gressional Globe.

11 Niles' Register, LXII (1842), 62.

12 Allan Nevins, ed., Diary of John Quincy Adams (New York, 1928), 538.

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24      OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

so that Giddings could not be heard in his own defense.              It

was agreed that he might be heard as an act of mercy, which of

course Giddings refused, insisting that he had a constitutional

right to be heard. On March 22, 1842, he sent in his letter of

resignation and took his leave of the House.¹³ This resignation

was presented to the House by the speaker on March 23. Adams

moved that the presiding officer inform the governor of Ohio of

the vacancy which had been created.¹⁴ The same day he resigned

he wrote a letter to his wife informing her that he had taken

this action because of his resolutions and was returning home

at once.¹⁵

The Western Reserve Anti-slavery Convention passed a

resolution approving the address of the Liberty Convention at its

meeting on March 27. It also adopted a resolution commending

the action of Giddings. The resolution stated that the Honorable

J. R. Giddings, a Representative of the United States from the

State of Ohio, was entitled to the esteem and commendation of

the society for his fearlessness in attacking slavery and defending

the right of the free states in the face of a slaveholding Congress,

before which many had quailed.16         This resolution was to be

signed by the president and the secretary of the society and a

copy was to be sent to Giddings.

Representative Seth Merrill Gates wrote to Giddings March

25 and informed him of a meeting which had been called in

Washington for the purpose of supporting Giddings but which

had fallen through. He said there could be little help other

than from Sherlock James Andrews of Ohio. The Ohio delega-

tion he thought would do all in its power to prevent his election,

and Giddings must depend upon God and his own effort.17            He

wrote another letter on April 4 and warned Giddings that he

13 Letter of resignation, dated at Washington, March 22, 1842, in Niles' Register,

LXII, 63. It reads: "Sir: I hereby resign my office of representative in the Congress

of the United States from the sixteenth Congressional district of Ohio with great

respect. Your obedient servant (signed).

14 Cleveland Daily Herald, March 29, 1842.

15 Joshua R. Giddings to his wife, March 22, 1842, Joshua R. Giddings MSS.

(in Ohio State Archaeological and Historical Society Library).

16 Philanthropist (Cincinnati, Ohio), March 30, 1842. The convention, made up

of representatives from Trumbull, Portage, Summit, Medina, Lorain, Cuyahoga, Geauga

and Stark counties, met at Hudson, February 16, 1842.

17 Seth Merrill Gates to Joshua R. Giddings, March 25, 1842, Giddings MSS.

(in Ohio State Archaeological and Historical Society Library).

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ORIGIN OF GIDDINGS RESOLUTIONS             25

 

must depend upon himself, for he could get no help from Wash-

ington save through Andrews and Calvary Morris. He thought

Samson Mason and Nathanael Greene Pendleton especially hoped

for his defeat.¹⁸

Those in Congress who opposed the views of Giddings could

not let him go unpunished since so recently Adams had gone

unpunished. There was no telling to what extent such views

would go unless a check was placed upon this kind of thing. They

hoped to make it plain that any Representative who tampered with

the slave system must suffer the displeasure of the House. These

resolutions were especially objectionable because at that very

time a diplomatic discussion of the Creole case was going on be-

tween the United States and England.

When Giddings returned to the Western Reserve, the sec-

tion which he represented in Congress, he was both commended

and condemned by his own people. The Western Reserve Chron-

icle said the constituents of Giddings without reference to party

passed resolutions commending his action.¹⁹ This meeting oc-

curred on March 31, 1842; eight days after he had left Washing-

ton. The editor of the Cleveland Daily Herald, J. A. Harris, did

not hold the same view. He thought Giddings had thrown a fire-

brand into the House by offering the resolutions. Harris claimed

he favored freedom of speech, but hoped Giddings would not

be sent back. He also doubted Giddings' common sense for in-

troducing such resolutions when the question was so prominently

before the country.²⁰ There were persons even in Ohio opposed

to Giddings, although some favored him and his action at the

National Capitol.

The sentiment of other sections, as expressed by the papers,

gave some degree of importance to the case. The Lebanon Star

said that the action of the House was extraordinarily arbitrary

and high handed, and that while the resolutions were drastic,

Giddings did not deserve such censure. The House had a spe-

cific duty when the resolutions were offered to vote them down.

 

18 Ibid., April 4. There is another letter from Gates, dated April 2, but not

giving place of writing. See the Giddings MSS. (in Library of Congress), unarranged.

19 Xenia Ohio Free Press, April 9, 1842.

20 Ibid., March 28, 1842.

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26     OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

By such high-handed procedure in the House of Representatives,

members could be intimidated.²¹  Such action was a denial of the

freedom of speech. This same view was expressed by Giddings

when he demanded a hearing not in the name of mercy but in

the name of an insulted constituency and in behalf of one of the

states of the Union.²²

The editor of the Pittsburgh Visitor thought that these reso-

lutions had not added anything new to the slavery controversy,

were uncalled for, and should not have been introduced at all.²3

This paper thought it was obvious that the resolution of censure

was passed because everyone in the House was swept off his

feet over the ill-timed resolutions.²⁴ A correspondent of the New

York Tribune felt that the censure of Giddings was a blow to

every member of the House so far as rights and privileges were

concerned.²5 There were divergent points of view on the action

of Giddings.

This fearless Representative from the State of Ohio, was

no doubt within his rights as a member of the National Congress

to act as he did, yet it would seem that the resolutions should

never have been offered at a time when they were calculated to

embarrass the administration in the handling of a very delicate

diplomatic question. The Creole case had become a diplomatic

question and was out of the hands of Congress. The resolutions

were not sent up as a petition from his constituency but were

formulated by himself or some close friend. The resolutions,

though they added nothing to the anti-slavery contest that had

not been said before, did help in the future to clarify the position

of the sections. It was the first application, of the principle of

slavery under the control of the local law applied to the high seas.

Giddings was reelected to fill the vacancy caused by his own

resignation on April 26 by a majority of about thirty-five hun-

dred over his opponent.²⁶ This was a large margin and was not

 

21 Ibid., April 9, 1842.

22 George Washington Julian, Life of Joshua R. Giddings (Chicago, 1892), 125.

23 Xenia Ohio Free Press, April 9, 1842.

24 Ibid.

25 New York Tribune, March 23, 1842.

26 Niles' Register, LXI (1841-42), 160.

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ORIGIN OF GIDDINGS RESOLUTIONS              27

confined to any party. On May 5 he returned to his seat and

his friends in the House gave him a very cordial greeting.27

Various reasons have been given for the uprising on the

brig Creole. Some have attributed the disturbance to one Madi-

son Washington who fled from Virginia to Canada. This slave

had returned to secure his wife as so many others had done. The

poor fellow had the misfortune of being captured, sold, and

shipped back to the South.²⁸  Washington it is said cultivated

the friendship of eighteen other slaves and planned an uprising.

The truth cannot be ascertained, for the fact as expressed by the

Negroes themselves is not known. This shows however, if true,

that the Negro once free would do almost anything to keep his

freedom.

This affair was also blamed on a certain Brown, a white man,

who formerly had been a Baptist minister but was now dismissed.

He was accused of arranging the whole affair.²⁹  The fear of the

whole South was that a white man might incite the Negroes to

insurrection. This accounts for the hostility of that section to-

ward the Northern States. The reason for the revolt is only of

importance because it lays the basis for the resolutions.

The Giddings Resolutions have struck some as being some-

thing new in that they set forth the doctrine that slavery fell un-

der the municipal law. If the doctrine was not new, where did

Giddings get his idea and who if anyone influenced the resolu-

tions he presented?

The question of slavery came before Congress at the very

beginning of its operation. There were those who felt, at this

early period, that Congress should abolish slavery throughout the

country. Such a petition was presented to the Senate and to the

House on February 11, 1790, by Quakers of Pennsylvania asking

for the abolition of slavery in the United States.30 The next day

another petition was presented by Benjamin Franklin and others

 

27 Cleveland Daily Herald, May 13, 1842.

28 William Henry Smith, A Political History of Slavery (New York; London,

1903), I, 61.

29 Columbus Ohio State Journal, December 29, 1841.

³⁰ Joseph Gales, Sr., comp., Debates and Proceedings in Congress (Washington,

D. C., 1834) I, 1224-5.

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28     OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

for the purpose of impressing upon Congress the importance of

the subject.³¹ The members of Congress realized that the subject

had to be treated and that the House must declare itself. James

Madison, who had taken a prominent part in the making of the

Constitution and who was at that time a member of the House,

spoke upon the extent of congressional authority on slavery. He

maintained that Congress on the one hand was restricted from

passing measures to abolish slavery in the original states, but on

the other hand might prohibit slavery in the new states.³² This

would indicate that slavery was a state matter and could not be

interfered with in the original states so far as Madison saw at

that time.

The matter was of so much importance that it was referred to

a special committee of the House. The committee took up not

only the abolition of slavery but also the slave trade. In its re-

port it contended that until 1808 Congress had no authority to

interfere with such persons as the state might see fit to admit.

Congress was prohibited by its own action from tampering with

domestic slavery; however, the control of the foreign slave trade

reverted to this body after that date. On the question of the

abolition of slavery, the committee stated that Congress should

have no power to regulate slavery in any of the states. The

states were only required to see that the owners followed a good

policy in handling the slaves.³³ The committee thought the power

of Congress should end when a state came into the Union if the

slaves were humanely treated.

The view that slavery was an exclusive state matter had been

held and expressed by several states before the Giddings Resolu-

tions had been introduced. When the country was in a turmoil

over the distribution of abolition literature in the federal mail in

1835, Kentucky expressed the idea which stood out so promi-

nently in the Giddings Resolutions, namely, that slavery was a

state matter. The Kentucky Resolutions went still further and

said slavery, in so far as Kentucky was concerned, was a matter

 

31 Ibid., 1239-40.

32 Ibid., 1246-7.

33 William Jay, Miscellaneous Writings on Slavery (1853), 403.

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ORIGIN OF GIDDINGS RESOLUTIONS                 29

 

for that commonwealth alone to settle, and if the National Gov-

ernment should in any way interfere with slavery in the states it

would be violating a sacred contract.³⁴ Copies of these resolu-

tions were to be sent to the sister Commonwealth.

The Virginia Legislature was of the same opinion. It claimed

that slavery was a domestic institution and neither the state nor

the Nation had anything to do with slavery in Virginia. It fur-

ther declared that the commonwealth would go to any length to

prevent interference by either state or Nation. The Legislature

might make any regulation it pleased to control slavery within the

boundary of the commonwealth.³5

The doctrine of slavery as an exclusive state matter was also

set forth by the governor of South Carolina, George McDuffie, in

1830. He asked the Legislature to pass a set of resolutions call-

ing upon the non-slaveholding Commonwealth to enact laws de-

claring that neither Congress nor the states had a right to

interfere with slavery in the slaveholding states.³⁶ The Legislature

responded to the demand of its governor.

It was held in all sections of the country at that time that

slavery was a state matter, just as much as education is so con-

sidered at the present time. Some prominent individuals held the

same view as the House committee and the states mentioned.

Webster, as early as 1833 in a letter to John Bolton of Georgia,

said that in his opinion slavery was a local matter and belonged

exclusively to the Southern States.37 He not only gave this as

his own opinion, but indicated that it was the opinion of the

North. Webster had arrived at this conclusion because a com-

mittee of the House made up of northern men had expressed

this idea in a report made to that body in 1790.38 This, he

thought, was an indication of the attitude of the northern section

of the country.

The attitude of the southern section of the country was ex-

 

34 Senate Executive Documents, 24 Cong., 1 Sess., 249.

35 Ibid., 233.

36 George McDuffie, Message on the Slavery Question (New York, 1835), 10-12.

37 Daniel Webster, Writings and Speeches (New York, 1903), IV, 536.

38 William Jay, Inquiry into the Character and Tendency of the American Colon-

ization, and American Anti-slavery Societies (1835), 143.

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30     OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

pressed by John White of Kentucky, who in 1836 said in the

course of debate that all had to admit Congress had no power to

interfere with slavery in the states, a principle so well established

that no one denied it.³⁹

Speaking before the Senate in March, 1836, Samuel Prentiss,

of Vermont drew his conclusion by following, as he said, the

Constitution.  Since that instrument looked upon slavery as a

state institution existing under state laws, it would not interfere

with slavery in the states.⁴⁰ The action of Prentiss was consistent

with the view of many of the representatives of both North and

South.

Most of the political leaders at that time, believed that slavery

was a state matter. It is rather strange, that this idea, which

was so universal, should have given any concern when it was

announced by the Giddings Resolutions. Some students of his-

tory have looked upon the fact that Giddings placed the institu-

tion of slavery under municipal law, which after all is the same

as local or state law, as something absolutely new.

This idea had been held generally in the country since 1790

and was probably held by some previous to that date. Was

Giddings the first to realize its importance and formulate a gen-

eral principle placing slavery under the municipal law? Had

anyone before Giddings said this, or had he simply formulated

something which was clear and evident to everyone before him?

Attention must be given to the courts, for after all they play and

have played a large part in the making of laws and principles.

The question is, Did the courts take any cognizance of this prin-

ciple before Giddings, in 1842, announced it to Congress?

There seems to have been several instances when the courts

of the states and the Nation took this principle into consideration.

The idea was brought forth in some of the court cases which

dealt with Negroes who were born in slave states but had been

carried into free territory and brought back to slave territory.

One case in point is the case of Harry et al. v. Decker and Hop-

 

39 Congressional Debates, 24 Cong., 1 Sess., 699.

40 Ibid., 665.

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ORIGIN OF GIDDINGS RESOLUTIONS                 31

kins.41 This case was one in which three Negroes were slaves

in Virginia in 1784 and were carried to or near Vincennes, a

section of the present state of Indiana, where they remained

until July, 1816. The slaves were then removed to the state of

Mississippi. They sued in the courts of Mississippi on the

ground that they were being held illegally since they were free by

the Constitution of Indiana and the Northwest Ordinance. The

case was tried in the local courts and went up to the Supreme

Court of Mississippi on a writ of error. The court said, among

other things, in speaking of the provisions of the Constitution,

"But it is contended that the provisions of the Constitution admit

of a different construction, that is, it is prospective, and to give

it the meaning its language imparts, would violate rights. What

are these vested rights? Are they derived from nature or from

municipal law?" The idea which Giddings made prominent in

1842 was brought to the front as early in United States history

as the year 1816. The court also stated that, "Slavery is con-

demned by reason and the laws of nature. It exists and can only

exist through municipal regulations. In matters of doubt, is it not

an unquestioned rule that courts must lean in Favorem Vitalis

et Libertatis?"42 There is found here almost the same language

which was used later by Giddings in this court decision of 1818.

Another case of similar nature came from the state of Ken-

tucky. A slave named Lydia, born in the state of Kentucky, was

moved to Indiana by one Rankin, who, realizing that slavery could

not exist in Indiana, made a contract with her mother (Lydia,

being under fifteen, could not make a contract in the state of

Indiana) that she must serve him twenty years.⁴³ After living

in Indiana for some time, Lydia returned to Kentucky, and Rankin

claimed her as his slave. The case came before the Supreme

Court of Kentucky. Justice Benjamin Mills, delivering the opin-

ion of the court, said that slavery was sanctioned by the law of the

 

41 Walker, Mississippi Report, 36.

42 The judge who rendered the decision in the case of Harry et al. v. Decker

and Hopkins is not known. Walker, the reporter, says in his preface that in many

cases he does not know the judge who rendered the decision.

43 Marshall, Kentucky Report, 813. Another case of this sort is found in Vir-

ginia. See Gilmer, Virginia Report, 142, cited under Griffith v. Fanney, 1820.

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32     OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

state, and the right to hold slaves under municipal regulation is

unquestioned. The court viewed this as a right, existing by

positive law of a municipal character without foundation in the

law of nature or the unwritten common law.⁴⁴ These decisions

were rendered in the neighboring states of Indiana and Ken-

tucky.

The question came before the Supreme Court of the United

States in 1825, in the Antelope case on an appeal from the Cir-

cuit Court of Georgia. A ship under the commission of Vene-

zuela sailed in 1819 under the name of Columbia and entered the

port of Baltimore where it took on a crew of thirty or forty

men. When she put out to sea, she threw off the mask, assumed

the name of Arranganta, and began a crusade of stealing slaves

from other ships.⁴⁵ The pirate crew captured the Antelope, a

Spanish vessel, and took her over when their good ship Ar-

ranganta was wrecked. This case was brought into the courts

by the vice-consuls of Spain and Portugal, and a decision was

handed down in 1825.

The opinion of the court was delivered by Chief Justice

John Marshall, who said in speaking of the slave trade that it

was contrary to the law of nature and could scarcely be denied.46

Marshall maintained that one nation could not make a law for

another, and therefore the slave traffic remained lawful for those

governments which had not forbidden it. He admitted that it was

contrary to the laws of nature, but that it was legal unless pro-

hibited by municipal law. He also said that this question had

been before various courts and had been decided in different

ways.⁴⁷ The Supreme Court ruled upon a case involving the

principle of Giddings' ideas for the first time in this Antelope

case.

Another case came before the Supreme Court embracing

this new principle in 1841, in the case of Groves et al. v.

Slaughter. This was a controversy over two notes, one dated

 

44 Ibid., 813.

45 23 U. S. 66.

46 Marshall remarked that this was the first time the question had come before

the Supreme Court.

47 23 U. S. 67.

• 13
 

ORIGIN OF GIDDINGS RESOLUTIONS                 33

December 20, 1836, drawn by J. W. Brown to the order of and

endorsed by R. M. Roberts, Moses Groves, and James Graham,

payable to the Commerce Bank of Natchez; the other note was

drawn April 5, 1836, by Brown to the order of Roberts and en-

dorsed by him. The basic contention was that slavery was a

violation of the state law, for it was a contract for a commodity

that was forbidden by the state constitution.⁴⁸ These slave deal-

ers lived in the state of Louisiana. The Constitution of Missis-

sippi had been revised so that it was a crime for anyone to bring

slaves as merchandise into the state after May 1, 1833. Inasmuch

as a contract could not exist the note therefore could not be col-

lected. The legality of such a contract was at stake.

This case involved the citizens of one state against those of

another state and was thus brought to the federal court and later

in 1841 to the Supreme Court of the United States on a writ

of error from the Eastern District of Louisiana.⁴⁹ Associate Jus-

tice John McLean after tracing the history of slavery said, "Slav-

ery belongs directly to the state. It is a local matter and operates

locally. The transfer of slaves cannot be separated from the

state regulations of slavery within its own domain."50 The state

had a right to pass laws and regulations such as would protect

it from the evils of the slave-dealer and dangers of the slave

uprising, the justice thought. The Supreme Court had definitely

expressed itself, that slavery was a local or state matter, that it

arose under the state laws and was not prohibited by the Constitu-

tion which gave the United States exclusive control over com-

merce.51

Several years later the Supreme Court felt that it was neces-

sary to give an expression to this same idea which had been so

troublesome during the period of the Giddings Resolutions. Chief

Justice Roger Brooke Taney said in discussing this matter that

he had hoped to remain silent on the nature of slavery, but since

 

48 Alden and Van Husen, Digest of the Laws of Mississippi, 1830. art. VII. The

legislature gave special authority under this act in 1837. See Laws of Mississippi, 1824-

1838, 756. The law was made more drastic in 1839. See Digest of Laws, 1839, 930.

49 40 U. S. 449.

50 Ibid., 451.

51 The Supreme Court had embraced the doctrine which the state court had

used before.

• 14
 

34     OHIO ARCHEOLOGICAL AND HISTORICAL QUARTERLY

his distinguished associate had taken it upon himself to explain

its relation to the state, he too felt it necessary to venture an

opinion. The chief justice added nothing new to what McLean

had said already in 1841. Taney thought more of the political

than of the judicial aspect of the case, for though he held that

slavery was a local question, he did not believe it depended upon

the sanction of municipal law.⁵² He paraphrased the opinion of

the opposition to say that slavery being contrary to the natural

law was created and protected by municipal law.⁵³ This was

further than the chief justice would go, as such a view would

prevent citizens from going into the territories and taking their

slaves.

These evidences from the archives of the state and of the

Nation show that the idea of slavery as contrary to the laws of

nature and existing by local law was evident before Giddings'

provocative statement was made. Besides the sources mentioned,

there were others from which Giddings might have secured this

view regarding municipal law. Giddings might not have been

familiar with any of the cases mentioned above since they were

in other states and were isolated, but it is evident that the idea

was known in Ohio. The case of Birney v. The State is one in

point. Birney was accused of unlawfully harboring a fugitive

slave named Matilda, who had worked for him more than six

months.54 He was tried in the court of Hamilton County, convicted

and fined fifty dollars. This case was carried to the Supreme Court

of Ohio on a writ of error. The case was argued before that

body by Salmon Portland Chase, who was just beginning to

make his mark as a lawyer in Cincinnati. Chase spent much

time in describing the nature of the government; he reverted to

language which had been used in the case of Lunsford v. Con-

quilon, that slavery was a creature of positive law having abso-

lutely no support in natural rights. Before slavery can exist

 

52 Samuel Tyler, Memoir of Roger Brooke Taney (1872), 863.

53 Ibid., 368.

54 William Birney, James G. Birney and His Times (New York, 1890), 263.

Matilda was a slave so fair she could hardly be distinguished from white. William

Birney said all the Birneys thought she was white. She was a native of Missouri.

• 15
 

ORIGIN OF GIDDINGS RESOLUTIONS            35

 

the principle of natural rights must be overborne by force.55

Chase supported his argument by the cases already tried and

added nothing that had not been given before. It is obvious that

this idea was common knowledge in Ohio.

William Birney suggested that Chase got those ideas which

he set forth so clearly in the Matilda case from his father. He

said James G. Birney occasionally gathered a group of young men

around him and argued many questions relating to slavery and

abolition, among them the very points which he heard Chase

argue with so much force in the Matilda case. William Birney

argued that Chase was converted to the cause of abolition as early

as 1836. This of course is controversial and is beyond considera-

tion in this paper.⁵⁶ It is evident that Chase had thoroughly

studied the case and had brought out the contemporary legal opin-

ion, which had been arrived at up to that time, to defend his

client.

There was every chance for Giddings to have become ac-

quainted with the view of Chase and of Birney, since he came

from the Western Reserve section of the State. They were the

common property of Ohio and were supported by the abolition-

ist group. It would seem that this doctrine had become a recog-

nized one since the year 1790, the year of the House Committee,

and that Giddings simply took this universal doctrine and applied

it to a specific case. This opinion was not new to Congress for it

had been expressed there many times. It is possible that the

Giddings Resolutions caused confusion in that body because

heretofore the discussion had been upon slavery in the abstract,

and now for once it was discussed concretely. It was brought

home to that section which favored slavery.

The idea that slavery was maintained by municipal law was

very common in Ohio through other sources. The Liberty Con-

vention, called by some the abolitionist group of Ohio, met in

Columbus, Ohio, on December 29, 1841. The members of the

convention, though divided on the political question, were suc-

 

55 Hammond, 8 Ohio Report, 235.

56 Birney, James G. Birney, 260. He differs with Judge George Hoadley who

puts it in 1829 or 1830.

• 16
 

36       OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

cessful in selecting their candidate for governor, Judge Leicester

King of Warren, Trumbull County.57

The convention set forth the regular address which was

customary for political organizations to send out. Chase was the

moving spirit in calling this convention together. He directed

its actions and movements and wrote the platform of the party.⁵⁸

He was not concerned primarily with the wrongs of slavery as

such, but made much ado about its dangers to the freedom of white

men.⁵⁹    Whatever was his fundamental position Chase did be-

come interested in the slavery problem.

The platform written by Chase for the Convention of 1841

was set in the form of an address to the people of Ohio.⁶⁰ It

maintained that the Constitution nowhere recognized the idea

that men can be the subjects of property. It did not give to

Congress the right to abolish slavery in the states where it was

sanctioned by local constitutions, for slavery did not have a

national sanction. Since the Constitution found slavery in the

states, slavery must be a creature of the state, recognized and

sanctioned by the local constitution. The National Constitution

did not attempt to interfere with this matter, but left slavery

dependent upon state law, wholly local in its existence and in

its character.⁶¹    It also denied the right of slavery to extend

beyond the limits of the state in which it existed. Of course

this grew out of the rule that slavery was a state institution.⁶²

The origin of this doctrine in the convention was very evident,

for the address said that the principle was recognized by the

Supreme Court of the United States in its decision in the cele-

 

57 Columbus Ohio State Journal, December 30, 1841.

58 Ibid., December 31, 1841.

59 J. W. Schuckers, The Life and Public Services of Salmon P. Chase (New

York, 1874) 47. There were about two hundred members present mostly farmers and

artisans.

60 Xenia Ohio Free Press, January 8, 1842.

61 Schuckers, Chase, 49.

62 Xenia Ohio Free Press, January 8, 1842. Extracts from Liberty Party Con-

vention address: "The Constitution found slavery, and left it, a State institution--

the creature and the dependent of State law--local wholly, in its existence and char-

acter. It did not make it a national institution. It gave it no national character--

no national existence. This principle, we are happy to find, was recognized by the

Supreme Court of the United States, in its decision of the celebrated Mississippi

case, last winter." "We would enforce the just and Constitutional rule that slavery

is the creature of local law and cannot be extended beyond the limits of the states

in which it exists."

• 17
 

ORIGIN OF GIDDINGS RESOLUTIONS

brated Mississippi case the winter before.⁶³ Since Chase wrote

the address this doctrine was formulated before the convention

met. It was simply a case of formulating the principle which

was offered by Chase in the Matilda case and maintained by Mc-

Lean in the Mississippi case. Both Albert Bushnell Hart and J. W.

Schuckers have said that the address was written by Chase but

was not signed by him. He probably wrote it for others to sign.64

It was admitted that Chase was the guiding spirit in the convention,

yet he did not act as its chairman. The same arguments were used

in the address that were used in the Birney case, and there is

every reason to believe Chase played a large part in framing the

address of this convention.

Some persons accused those who were members of the

Liberty Party of being abolitionists. This was denied emphatically

by a correspondent of the Cincinnati Daily Gazette.⁶⁵ It was held

that the party was not made up wholly of abolitionists but of

anti-slavery men and others interested in the control of slavery

in the territories by the National Government. Everyone believed

that slavery was a state matter, but the party would do all it

could to have it abolished not only in the states but in the Nation.

As stated above the idea contained in the Giddings Resolu-

tions was well known in the country at large. There were few

who looked upon slavery in any sense other than as a state

matter. If any doctrine was evident it was that slavery belonged

exclusively to the state where it existed. Giddings and Chase

were good friends and wrote each other on important matters.

Chase wrote Giddings on December 30, 1841, about the Liberty

Convention, informing him that King had been nominated and

relating to him the work of the convention. He told Giddings

that the convention had passed a set of resolutions which would

be found in the Columbus Freeman and that several copies had

 

63 See the Groves case on p. 32.

64 Xenia Ohio Free Press, January 8, 1842. It was signed by Samuel Lewis,

Hamilton County; J. H. Payne, Lake County; Robert Hanna, Cass County, Mich.;

R. M. Mundy, Franklin County; H. C. Taylor, Lorain County.

65 February 4, 1842.

• 18
 

38     OHIO ARCHEOLOGICAL AND HISTORICAL QUARTERLY

been forwarded to him.⁶⁶ Chase was hopeful that Giddings would

lend his name to the project. Giddings hesitated to join the new

party but would not oppose it. Chase said he could understand

the reason for the hesitation, as such a small party might ruin a

man's political career, however, he was glad that Giddings would

not throw the weight of his influence against the party.⁶⁷ The

reason for this letter was that he wanted to ascertain whether

or not Adams or William Henry Seward would run for the Presi-

dency on the Liberty Party ticket. He feared that the people

could not be brought to support a man so little known as James

G. Birney. On February 15, he wrote Giddings again saying

the principle must be established that this was a non-slaveholding

Government, that slavery fell under the local law and was con-

fined within the states which admitted and sanctioned it. He said

that he would send Giddings the Liberty address.68

On May 19 Chase wrote Giddings again and congratulated

him on triumphing over his enemies. He said that Giddings no

doubt had seen some resolution forwarded by him which expressed

his view.⁶⁹ Chase thought the rights of the slaveholder were

just as Giddings laid them down.

The convention, which came in 1841, felt called upon to ex-

press the doctrine that it did. The Giddings Resolutions came

just a few months later. It is hard to believe that Giddings was

not influenced by the remarks in this convention and the address,

since he had it before him.    It would have seemed strange

for Giddings to arrive at any other conclusion or offer resolutions

that expressed an opposite view.

This, then, is the origin of this doctrine of municipal law

relative to slavery which dates back at least to 1790 and comes

down in one unbroken line to the Giddings Resolutions. It is

obvious that Giddings had offered nothing new; he simply took

 

66 Letter to Giddings, Giddings MSS. (in Ohio State Archaeological and His-

torical Society, Library).

67 Salmon P. Chase to id., Giddings MSS. (in Library of Congress); Julian, Gid-

dings, 130.

68 Letter to Giddings, Giddings MSS. (in Library of Congress); Julian, Gid-

dings, 131.

69 Chase to Giddings, Giddings MSS. (in Ohio State Archaeological and His-

torical Society, Library).

• 19
 

ORIGIN OF GIDDINGS RESOLUTIONS             39

the ideas which were evident and were held by everyone in the

North and South and formulated them into a series of resolu-

tions. The author himself made no claim to originality. He was

the first to apply this principle to the high seas.

Giddings came back to the House armed with the support

of his constituency in the State of Ohio as expressed by their

vote. He continued the same method which he had used before

he was censured in the House. On June 3, 1842, while arguing

on the military bill, he discussed the Creole case.70 This shows

how fearless this son of Ohio was in bringing up and discussing

the very subject for which he had been forced to resign from

Congress.

His controversy throughout hinged on the broad basis that

Congress had no power to deal with slavery. He looked upon

the slavery controversy and the treatment he received as essen-

tially a destruction of the freedom of speech. His effort was just

another attempt to keep open the channel of the freedom of

speech. The doctrine which he set forth was a universal one

long before he formulated his resolutions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

70 Cong. Globe, 27 Cong., 2 Sess., 576.

• 20