A Government of Men Episode 10: Wolf by the ears

EDITOR’S NOTE: This article may include historical materials that could contain offensive language or negative stereotypes. Such materials must be viewed in the context of the relevant time period. The Georgetown Times does not endorse the views expressed in such materials.



By Tom Rubillo

People make mistakes all the time. That includes potentates, popes, prelates, priests, pastors, preachers, pundits and political hoi polloi. That characteristic of the human condition explains why pencils come with erasers on one end. It also explains why societies and their governments keep changing and evolving over time and why mankind’s laws are always being revised, reinterpreted or repealed. In fact, this process of evolutionary change is built into our system of justice. To explain:

America’s legal system has its origins in the English “common law.” That began with William the Conqueror. His Saxon hordes swept over the British Isles in 1066 A.D.. When they did, they brought no particular order of things with them. They were warriors, not lawyers. Rape, pillage, plunder and chaos reigned, as it usually does as a part of aggressive conquest. With great resentment, the Anglos ultimately submitted to Saxon military superiority and the excesses accompanying it. The same scenario has played itself out many times during the history of mankind.

Once the dust settled, Saxon military occupation began. Having exhausted many of his resources in the fight, William needed a rest and time to rearm, resupply, rebuild and rule. To get control, he had to stifle dissent and end disputes, all while avoiding otherwise unnecessary risk to his troops. He needed his army to maintain control and stay in charge.

Part of getting a handle on things involved resolving run-of-the-mill disputes between individuals. At first, in order to do that, William declared the existence of one, all-inclusive crime. It was called “breach of the king’s peace.” If one person killed another, stole his neighbor’s property or seduced another’s spouse (to name just a few of the numerous examples of problems that could crop up), resulting disputes or feuding would eventually come to the king’s attention. That would “breach” the monarch’s “peace.” William would get annoyed and punish those he thought responsible. Possible penalties included things like beheading, hanging, being tortured, having land or property taken away and the like. It was all up to William’s whim.

Breach of peace

People being what they are, the king’s peace got breached a lot in one way or another. To avoid being overworked, William and his successors began appointing underlings to settle these disputes. After a while, the king ordered his magistrates to write down what they were doing so he could keep an eye on what his appointees were doing in his name. Inconsistent judgments, he found, stirred up more dissent. (“Why me? You didn’t torture Joe when he stole a cow!”) What is today called “case law” or “precedent” or the “common law” was the result. It evolved, case by case over the centuries. It continues to do so.

Today, “common law” decisions can be found in thousands of volumes in law libraries. They detail the facts in dispute in each case, similar past disputes and how those earlier matters were resolved. Decisions are handed down based on legal principles developed over time in this way. The cases are printed in chronological order. Numerous indexes sort them by types of disputes and help lawyers find ones helpful to their clients. All the murders, for example, are indexed together, as are all of the trespasses on another’s land, breaches of contracts, and so forth. There are hundreds of categories. Much of the law of today is the result of this evolutionary process.

One of William the Conqueror’s line of successors was a king named John. His whimsical judgments became unpopular. Political intrigue being what it was, on June 15, 1215, English barons forced John to sign the Magna Carta or “great charter” at Runnymede. It secured basic rights and liberties of the people of England who mattered at the time. (Serfs or slaves did not.) This was the first chink in regal armor of absolute rule. “Discretion,” as the saying goes, was not supposed to be “just for my friends” any longer. Evenhandedness was supposed to take its place.

Many centuries later, in 1689, the Westminster Convention was signed by William of Orange and his wife Mary. They signed the preprinted contract they were handed so they could wear the crowns of England, much like people buying a new car or house today. The Convention further limited the powers of the monarchy by requiring the consent of Parliament to spend money or suspend any laws Parliament enacted. This document came to be called the “Bill of Rights” in the British Isles. It gave legitimacy to the system of statutory law created by a deliberative legislative process that has since coexisted with the “common law.”



This history of England is relevant to that of Georgetown because British legal traditions were imported here during colonial times. They have since served as a foundation for many of the laws and legal procedures that guide and govern our modem society. The “common law” is a central part of the legal heritage of this nation. So is the legislative process. The two have coexisted in our United States ever since.

Establishing the Constitution

The new Founding Fathers States added a third (actually top) tier to this legal structure. It is the Constitution of the United States. They did that as a way of delegating or apportioning the powers still retained by monarchs in England and elsewhere at the time. Drafted by lawyer/politicians schooled in English legal traditions, the new Constitution:

(1) designated the people of the United States as the sovereign ruler, replacing the monarchy with representative democracy — the “republican” form of government;

(2) used very broad language to identify the categories of responsibility it was allocating, granting major ones to the federal government and leaving what are broadly otherwise called “police powers” to the Several States;

(3) to avoid conflicts between the States or between the States and U.S. government, the Founders made federal law superior to state law by way of a “Supremacy Clause” and granted exclusive authority to the U.S. Supreme Court to resolve controversies arising between the States and/or between state and federal governments to avoid wars between them;

(4) the charter also set out a procedure for amendments of the Constitution over time, based on the judgment of a super majority of the people as represented by the state governments; and

(5) preserved all human, civil, social, economic and political rights not specifically granted to the government in the people, including a whole range of rights not mentioned in the document (like, for example, rights to migrate, tour, marry, to have and raise children, to choose one’s occupation, to enter into contracts and the like). It protects these and other rights in the 9th Amendment, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In short, the Constitution’s Bill of Rights is a list of examples of rights retained by Americans, not an all-inclusive list of them.

Pencils still have erasers

This new social contract was almost as good as possible under all the circumstances existing at the time. It had one serious flaw, however. It tried to compromise its way out of what everyone — plantation owners included — understood was a serious national problem. It equivocated on the unquestionably moral issue of human slavery. (The numerous efforts to rationalize and harmonize slavery with the Golden Rule by the clergy and others during those times would not have been necessary if there was no moral problem.)

With this sweeping language, the Framers let everyone know that they had written a decidedly evolutionary (as well as revolutionary) document. In that regard, the Constitution is not Holy Scripture subject to literal interpretation or strict construction. Its provisions were intended to be — and have been — subject to vigorous discussion and interpretation over time. Whether that is a good thing or a bad thing can be debated endlessly too. The fact is, however, that it was the best any human being could do at the time (or could do at a future Constitutional Convention) in trying to maintain peace and good order in a free and open society. Pencils still have erasers.

Brother against brother

While all of this may seem beside the point of a local history, it is not. This brief survey of legal history is necessary to understand the development of the legal and economic arguments that led to a war pitting brothers against each another, neighbors against neighbors, and one section of the nation against another in the 1861 and thereafter. That horrible conflict had its origins here in Georgetown County.

The alleged requirement of “strict construction” said to have been intended by the Founders first appeared in American politics in the extremely convoluted arguments over “nullification” — over the alleged right of each State (as opposed to the U.S. Supreme Court) to nullify federal laws believed by some to be contrary to the Constitution of the United States. This notion began in the political musings of Georgetown plantation owners and, in particular, James Hamilton of Hopsewee Plantation.

Hamilton was the principal organizer and leader of South Carolina’s State’s Rights and Free Trade Association [SRFTA]. The Association got its start opposing protective tariffs Congress had imposed on imported manufactured goods. The initial concern among Hamilton and his friends was that foreign governments would retaliate and place import tariffs on South Carolina’s agricultural exports, making rice, cotton, tobacco and other crops less competitive in foreign markets, thereby cutting their profits.

Under the express terms of the U.S.. Constitution, the federal government had (and still has) exclusive authority to regulate interstate and foreign commerce. It also has the right to levy taxes and tariffs. The Supremacy Clause of the Constitution has the effect of voiding any contrary state laws. Disputes about them are supposed to be ended in the U.S. Supreme Court after everybody has their say.

Hamilton and his associates were looking for some way to void (or avoid) the import tariffs or, alternatively, to persuade foreign governments not to retaliate against South Carolina agricultural products. Rather than take the matter to court where they were certain to lose, the weapons chosen were; (1) artful dodging of legal issues by selective use of definitions of words and phrases of their own creation (a place where the devil is always to be found), (2) fierce, extreme, hateful rhetoric aimed at those who disagreed and (3) when if bullying did not work, challenging those with opposing views to shoot things out in duels.

Nullification

The thrust of Hamilton’s argument was that neither the Supremacy Clause nor the delegation of authority over foreign trade and to impose taxes and tariffs vested in Congress in the Constitution were enough. State and federal governments were coequal sovereigns, he said. Any money the federal government collected had to be spent for purposes otherwise expressly enumerated as “federal” in the Constitution. If they were not, federal levies were void, leaving each State to “nullify” them should any of the latter choose to do so. Since construction of all or part of a system of interstate roads and canals was not an enumerated power (which was how much of the tariff was earmarked to be used at the time), the import tariff was, in Hamilton’s view, objectionable. The so-called requirement to adhere to the “original intent of the Founders” and “strict construction” of the Constitution was born. It has had a very long life, all despite the otherwise evolutionary history of American legal and social history and the generalized language of the Constitution.

There was never an attempt or threat by any foreign government to impose retaliatory tariffs against rice, cotton, tobacco or any other American goods. That fact cut the legs out from under SRFTA’s founding fear. But that did not stop SRFTA. Hamilton and cohorts also complained that the tariff protected newly emerging northern industries. By doing that, the tariff helped increase northern profits and, by the natural course of economic and political events (lobbying with money being what it was and still is), northern influence in Congress. Doing that would, Hamilton and friends feared, threaten continuation of the institution of slavery.

Slaves produced profits. To avoid losing that money, Hamilton would belittle, threaten, challenge and shoot those who disagreed with him. After a while, political opponents stopped arguing with him. But they resented the bullying. That resentment helped fuel growing opposition to slavery.

But coercion and condescension were only part of SRFTA’s strategy. As explained by Wliham W. Freehling in Prelude to Civil War: The Nullification Controversy in South Carolina. 1816,1836,

“Hamilton’s great contribution … was to make the association an effective political club … Under [his] supervision, almost every district in the state formed an association, and almost every local club held monthly meetings. With membership open to anyone upon payment of one dollar, the association meetings became popular social events where the poorest farmer and the richest planter met together to curse the northerners,” the latter being a tradition that continues to this day. There was barbeque and liquor too.

“For many Carolinians, the association meetings were most important as social events. The monthly rallies were a welcome relief from the loneliness, boredom, and tedium of life in rural Carolina. For certain dispossessed groups, membership in the association also eased acute social frustrations. The slaveless farmer, the small slaveholder, the Charleston mechanic … found joining the association a welcome relief from social tensions [otherwise caused by sharp differences in income and lifestyle and otherwise the principal source of snobbishness] …

“[T]he association meetings for a moment obliterated the class differences … [and] many persons … joined the rank of the nullifiers in order to get into a company a little above their accustomed circle …”

This process caused many “Unionists” to switch political affiliations and become “Nullifiers,” much like similar gaiety causes political switch hitting among otherwise odd political bedfellows these days.

Racism in its cruelest form had come to permeate planter society. (Only a sadist can mistreat another without convincing himself that the victim is inferior and deserves mistreatment.) With fiery rhetoric, Hamilton and SRFTA associates encouraged feelings of racial superiority among working class whites. They did so because the 1820 census told them that whites were outnumbered by slaves in South Carolina. Hamilton and his wealthy friends did so because they needed help holding the wolf of slavery by the ears.

All the hatefulness stirred the pot further. Resentment of bullying motivated gathering packs of abolitionists to begin howling in the North. Meanwhile,

“For Charleston’s white mechanics, [the working class, economic] depression brought an increasingly desperate competition with the detested Negro laborers. But by joining the association, the mechanics became respectable white Carolinians, differentiated from the Negroes and somewhat respected by the planters.”

Under these economic circumstances, it did not take a lot of effort to convince hungry working class whites that they deserved a place at the table ahead of those competing for the same work, especially when persuasion was accompanied by lots of food and drink.

It was not the first time that racism has fed multitudes hungry for respect and economic opportunity in history of the world in general or Georgetown County specifically. As future episodes will discuss, it would not be the last time either.



Tom Rubillo used to practice law, but is now retired. He has held public office, taught government, ethics and law at area colleges and has published several books. The episodes written in connection with this project will be, at its conclusion, available in one volume, or at least that is his best laid plan.