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)
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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).
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.
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.
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