Prologue: Funny how things happen.
Last week I was in Montana to see my daughter married. The site of the wedding was close to the Gallatin River, one of the headwaters of the Missouri and a place where my daughter and her now-husband “white-water raft.”
Even as a student of history, I only knew of the name Gallatin from a town named after him in Tennessee. So, I looked and researched and thus starts another missive.
Albert Gallatin, Swiss born, Harvard Professor; Senator (till deceitfully removed for not having lived in US for ten years); Congressman; Majority Leader; nemesis to Alexander Hamilton; appointed as Treasury Secretary by Jefferson; reappointed by Madison; began Ways and Means Committee; Ambassador to France and later Great Britain; Founder of New York University. Not too bad a resume for someone about whom I would voice the average American knows little or nothing, until recently myself included.
Important to this discussion, however, is that he, along with Henry Clay and John Quincy Adams formed the American team sent to negotiate the end of the correspondingly little known War of 1812, a conflict ending by signature shortly before Christmas 1814 with the treaty of Ghent and as well before the much more notable battle of New Orleans.
Besides this unfortunate lack of punctuality, two elements are important from the treaty. First: though America had now defeated Britain twice in armed conflict, the trio of Adams, Clay and Gallatin were unable to negotiate solutions to the principal causes of the war in question: neutrality and impressments of sailors.
Of greater potential consequence was the inclusion in the treaty, annotated as Article X, of a specific call for the end of slavery. No historian would say that slavery was even a remote cause of this conflict and never before had such language been included in any official American document. Nevertheless, it was and the treaty was unanimously approved by the Senate and signed by the President with these remarkable words enduring:
“Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice, and whereas both His Majesty and the United States are desirous of continuing their efforts to promote its entire abolition, it is hereby agreed that both the contracting parties shall use their best endeavours to accomplish so desirable an object”
This was a mere twenty five years after the Constitution had for most purposes excluded even recognizing slaves as anything more than property and yet here, in a treaty to end a war having nothing to do with slavery, we, the American we, agreed to use our “best endeavours” to “promote its entire abolition”. Pretty strong language and pre-dating the 13th Amendment by some fifty years.
So: what happened to stop the implementation of Article X of the Treaty of Ghent?
Well, for twenty odd years very little except constant fighting over states rights, free and slave states and Henry Clay’s Missouri Compromise. Finally, it appears Congress, both houses had enough and from that came a unique piece of congressional gamesmanship called the Gag Rule.
Since the Constitution came into effect, pro-slavery forces had barred any discussion of slavery in Congress. Using their First Amendment rights, anti slavery groups, believing that since there was a clear right to petition the government, de-jure such petitions and consequently slavery itself, would have to be discussed. Numerous petitions for the abolition of slavery were submitted year after year. Congressional leaders had no interest in bringing these matters to the floor so devised Gag Rules.
Utterly ignoring the First Amendment right to petition the government, the initial Gag Resolution was enacted in 1835. The United States House of Representatives and Senate ruled that all petitions to Congress about slavery would not be read or discussed but would be tabled without consideration. In so many words they were filed in the trash bin or whatever the equivalent was then. The gagging of anti-slavery petitions by Congress continued until 1844.
In effect, Gag Resolutions / Rules permitted Congress to abridge its own First Amendment right to petition the Government. Furthermore, by doing this, Congress countermanded the specifications contained within Article X of the Treaty of Ghent requiring that both nations attempt to end slavery. All this was ignored.
Two House resolutions passed in the spring of 1836. The first stated that Congress had no constitutional authority to interfere with slavery in the states and the second that it "ought not do so” in the District of Columbia. Amendments to the contrary were tabled.
Former President John Quincy Adams, himself a signer of the Treaty of Ghent and after his presidency a congressman from Massachusetts, fought these Gag Resolutions every year as they were being re-introduced. To stop his use of parliamentary procedures to virtually hold up Congress from its scheduled efforts, the House passed the Twenty-first Rule (1840), which banned even the acceptance of anti-slavery petitions. As a House Rule it took precedence over any petition or resolution and thus stopped Quincy Adams.
Today we question signing statements and the sixty vote rule in the Senate or the right of a single senator from Kentucky or Alabama or Florida to literally stop critical government functions but that is what our Constitution allows. Article I, Section 4 says:
“Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member.”
We look today at the inability of Congress to enact meaningful legislation whether it be on healthcare or jobs or financial reform. In each generation our forebears have expressed their equivalent frustrations with Congress. Where are we now on Social Security Reforms? This is the “third rail” today; in the 1840’s it was slavery. In time the matters are solved and they are solved by patience and not by “going to the mattresses”. These ae not new issues; the pandering by members of both houses to TV cameras is in fact a vast improvement to the 1800’s unabridged use of the print media. At least today members are aware that cameras are on.
Oh, and if you think that Gag Rules are old history consider this: The Mexico City Policy, comes close to a reincarnation of a Gag Rule, though this time from the Executive branch. It is a discontinuous executive policy enacted in 1984 by President Reagan that required all non-governmental organizations in other countries receiving US funding to cease performing or promoting abortion services as a method of family planning. This non- law policy was continued by President GHW Bush in 1989; ended by President Clinton(1993); reinstituted by President GW Bush (2001) and retracted (2009) by President Barack Obama. I expect that Quincy Adams would rile against this use of executive power as well.
More to the point: how would we react today knowing that a momentous clause in a treaty approved by not only the required two-thirds of the Senate but unanimously was completely ignored for 50 years? Hopefully as we always have with editorials and speeches and finally with our ballots and not our bullets. Sadly of course it was left to bullets to end slavery.
Someone said “History is the same garden entered into from different gates”; I suppose that is correct and as evidence: that is how while driving to a wedding, seeing a river in Montana, named after a politician I did not know and reading a treaty ending a fairly inconsequential war, this missive was written.
By the way, the wedding was wonderful.
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