Freedom National: The Destruction of Slavery in the United States, 1861-1865
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By 1860 antislavery politicians had developed two very different scenarios for a federal assault on slavery. In peacetime the federal government would “cordon” off the states where slavery already existed, gradually compelling them to abolish slavery on their own. War and rebellion would unleash the second scenario, allowing the federal government to emancipate slaves immediately and unconditionally. Gradual abolition and military emancipation were two different policies, and during the Civil War the Union government would pursue both of them simultaneously. Each had distinctive limitations. Containment would free no slaves immediately, but it would, if successful, lead ultimately to slavery’s complete abolition, whereas military emancipation would free slaves immediately, as individuals, without actually abolishing slavery anywhere. If containment was a painfully slow road to state abolition, the long history of slave societies at war made it clear that military emancipation was not designed to abolish slavery and rarely did so.
FREEDOM NATIONAL VS. SLAVERY NATIONAL
In the late 1850s the two major political parties vying for control of the federal government swore their allegiance to the federal consensus. The Democratic Party declared that “Congress has no power under the Constitution, to interfere with or control the domestic institutions of the several States.” Republicans agreed that “the right of each state to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of powers on which the perfection and endurance of our political fabric depends.” Yet from this shared premise Democrats and Republicans drew profoundly different conclusions about the relationship between slavery and the federal government.57
Democrats argued—in their 1856 platform at least—that the Constitution left the subject of slavery so completely to states and localities that the federal government was quite literally paralyzed. The “slavery question” was not even a fit subject for discussion in the national political arena. Democrats reduced their policy to an italicized proposition: “Non-Interference by Congress with Slavery in State and Territory, or in the District of Columbia.” The contrast with Republicans was stark. Having absorbed the fundamental precepts of antislavery politics, they insisted that the Constitution restricted slavery to the states while committing the federal government to policies that would expand freedom everywhere it could. The guiding principle of federal policy, Republicans declared, was the “self-evident truth, that all men are endowed with the inalienable right to life, liberty, and the pursuit of happiness.” Hence the “primary object” of the national government was to secure those rights “to all persons under its exclusive jurisdiction.” Democrats denounced Republicans for promoting a purely “sectional” politics, but Republicans assumed that slavery itself was an exclusively “sectional” interest, that the Constitution made freedom national, and that antislavery was therefore the only truly national politics.58
Watching the emergence of the Republicans with increasing horror, more and more southerners concluded that the Democratic Party policy of “Non-Interference” was no longer adequate for the defense of slavery. Slaveholders started from the premise that their slaves were property, that owning slaves was a fundamental property right protected by the Constitution, and that the federal government had an obligation to protect that right wherever the Constitution applied. It was no longer enough to allow voters in the territories to decide for themselves whether to protect slave property, without the “intervention” of the federal government. That was the position long taken by the Democratic Party, and it remained the position of most northern Democrats. But as the prominent Mississippi Democrat Jefferson Davis explained, once Republicans began questioning the existence of a right of property in slaves, the Democratic Party would have to move beyond its policy of “non-intervention by the Federal Government in relation to slave property.” This, Davis said, was “an evasion of the obligation to give equal protection to all kinds of property.” We of the South “will never have obtained all our rights,” Davis told a crowd at Jackson, Mississippi, in 1857, “until the legislation of congress shall amply protect slaves as it does all other property.” The federal government had a positive “duty” to afford the same protection to slave property “as for other species of property.”59
Davis, like most southern politicians, effectively reversed the Republican Party position by making slavery national and freedom merely local. Slaves were a constitutionally protected species of property, and wherever the Constitution was sovereign the federal government had an obligation to protect the property rights of slaveholders. That meant strict federal enforcement of the fugitive slave clause in the northern states, federal protection of slavery in the territories, federal support for slavery on the high seas, and federal maintenance of slavery in Washington, D.C. As they had done since the 1780s, southern slaveholders flatly denied the right of belligerents to emancipate slaves as a military necessity in wartime. Slavery national was soon written into the Constitution by the chief justice of the U.S. Supreme Court, Roger B. Taney. Reacting against the impressive showing of the Republicans in the 1856 presidential election, Taney engaged the debate over slave property in his controversial decision in Dred Scott v. Sandford in early 1857. The “right of property in a slave,” Taney ruled, “is distinctly and expressly affirmed in the Constitution.” The Constitution “makes no distinction between that description of property [slaves] and other property owned by a citizen.” Taney had declared unconstitutional the most important premises of antislavery politics—that slave “property” was different from other forms of property, that under the Constitution slaves were persons rather than property, that there was no such thing as a constitutional right of property in slaves.60
But rather than abandon those premises, Republicans grew bolder in their rejection of a constitutional right of “property in man.” Abraham Lincoln came relatively late to the conclusion, but when he reached it his assault on the right of property in slaves was unflinching. Because he had always hated slavery, Lincoln had no trouble questioning the morality of holding humans as property. Those who argue “that slave property and horse and hog property are alike to be allowed to go into the Territories, upon principles of equality,” Lincoln argued, are “reasoning truly as if there is no difference between them as property.” But if there is a difference, “if the one is property, held rightfully, and the other is wrong, then there is no equality between right and wrong.” Like most abolitionists Lincoln thought the very idea of human property was immoral, but was it unconstitutional? Lincoln never denied that slaves were classified as “property” under the laws of the states in which slavery existed, but he did deny that state laws endowed slavery with the constitutional protection of fundamental property rights. The “right of property in negroes,” he insisted, is “confined to those states where it is established by local law.” Dred Scott was therefore wrongly decided. There is no constitutional right to slave property beyond the limits of the states where slavery was legal.61
Lincoln warmed to this conclusion over the course of his famous 1858 debates with Illinois Senator Stephen A. Douglas. At the first debate Lincoln scoffed at the idea of “property, so-called” in slaves. In the third debate he speculated that “if” he were to withhold legislative support for the Dred Scott decision, it “would be because I deny that this decision properly construes the Constitution.” By the time he reached Galesburg for the fifth debate, Lincoln dropped the conditional tense and declared that “the right of property in a slave is not distinctly and expressly affirmed in the Constitution.” But it was not until the final debate, at Alton, that Lincoln flatly denied that such a right existed. “I do not believe it is a constitutional right to hold slaves in a territory of the United States,” he said. In the spring of 1859 Lincoln praised Thomas Jefferson for having elevated the “rights of persons” over the “rights of property.” The same phrasing began to seep into his speeches. He supported the rights of property, he sai
d, but whenever they came into conflict with the rights of persons, he would not hesitate to favor persons over property.62
In late 1859, following the tradition of a long line of antislavery constitutionalists, Lincoln went to the library to study the history of slavery and the Founders. He had been invited to New York to give a political lecture, and there, in February of 1860, he would present the results of his research in a speech that came to be known as the Cooper Union address. The burden of the speech was simple: Lincoln would prove that there was no such thing as a constitutional right of property in slaves. He pointed out that the Founders had deliberately excised from the Constitution any wording that might have suggested that human beings could be property. He reeled off a concise historical narrative showing that many of the same men who wrote the Constitution went on to support various laws aimed at restricting slavery’s expansion. To those who had struggled for decades to formulate a politically viable antislavery constitutionalism, the logic and the evidence of Lincoln’s Cooper Union address would have seemed both familiar and gratifying. What distinguished the speech was not its content but the man who wrote it and the circumstances surrounding its delivery.63
Lincoln was in New York presenting himself to leading Republicans as a candidate for the party’s 1860 presidential nomination. That the Cooper Union address was much more than a history lesson was made clear in the way Lincoln shifted from his research into the past to its immediate significance, from history to politics. The setup was embedded in a series of lengthy footnotes in which Lincoln quoted a host of contemporary southerners claiming that any attempt to restrict slavery’s expansion amounted to an unconstitutional assault on their fundamental right to property in slaves. When you southerners “make these declarations,” Lincoln said, “you have a specific and well-understood allusion to an assumed Constitutional right of yours.” By that presumed right, he went on, you would carry your slaves into the western territories and keep them there as your property. “But no such right is specifically written into the Constitution,” Lincoln declared. “The instrument is literally silent about any such right.” Lincoln then unveiled his own variation of the argument that Weld and Chase and Giddings had done so much to develop. The words slave and slavery appear nowhere in the Constitution, he pointed out. The word property appears nowhere in connection to slavery. And “wherever in that instrument the slave is alluded to, he is called a ‘person.’ ” No matter how loudly or how often the southerners asserted their constitutional right to property in slaves, Lincoln told his New York audience, do not believe it. “We deny,” Lincoln said, that a right of property in slaves “has any existence in the Constitution, even by implication.”64
Lincoln’s conclusion was the conclusion of his party in 1860. “We deny” the right of property in slaves. Even in its short history, though, the Republican Party had not always denied it. The 1856 Republican platform contained no reference to the subject. But a lot had happened since then. The Supreme Court had ruled that a right of property in slaves was “expressly” affirmed in the Constitution. Southern Democrats demanded that their party do the same thing that Taney did—expressly affirm a constitutional right of property in slaves. When northern Democrats refused, southern Democrats walked out of the 1860 convention and formed their own party, dedicated to the proposition that “all citizens of the United States have an equal right to settle with their property in the Territory, without their rights, either of person or property, being destroyed or impaired by Congressional or Territorial legislation.” On the principle that slavery was national, not even a territorial legislature could ban slavery because territories were creatures of the federal government and were therefore obliged to respect the constitutional right of property in slaves. The Republicans would have none of it. The Democrats had demonstrated their “measureless subserviency” to the southern slaveholders by making slavery national instead of freedom, by enforcing slavery “everywhere, on land and sea,” and by “construing the personal relations between master and servant to involve an unqualified property in persons.”65
“My doctrine was that of the Republican Party,” New York Congressman Alexander Diven recalled two years later. Its “corner-stone,” he said, was “that the Constitution recognized slavery nowhere.” Slavery existed “simply and purely as a State institution.” Beyond the borders of a state, where the Constitution was sovereign, a different rule applied. When “Congress acquired supremacy over any territory whatever, by virtue of the acquisition slavery did not go there under the Constitution.” This was the difference between northern Republicans and southern secessionists. The latter believed that slave ownership was a fundamental right of property, and that the right of property followed the owner wherever the Constitution reached, except in those states that expressly abolished slavery within their borders. Proslavery constitutionalism deemed slavery national and freedom merely local. Republicans believed, on the contrary, “that the Constitution did not carry slavery anywhere.” This was antislavery constitutionalism, the platform on which Abraham Lincoln ran for president, and on which he won. The issues at hand were varied yet familiar: the status of slaves brought to or escaping into the northern states, the status of slaves who rebelled on the high seas, and above all the status of slaves carried into the territories. But the principle at stake in each case was the status of slave property under the Constitution. “The grievance is not about the Territories. That is not it,” Senator Louis Wigfall of Texas admitted. “It is the denial that slaves are property, and the Declaration that the Federal Government has a right to settle that question.”66
2 “DISUNION IS ABOLITION”
IT WAS LATE DECEMBER of 1860, just before Christmas and only a few days after South Carolina seceded. The Union was beginning to fall apart, and a Republican newspaper in Massachusetts took a few moments to consider what it all meant. The crisis would be “decisive as to the supremacy of slavery,” the editors predicted. If the South stays within the Union, slavery “will live longer and die more gradually and quietly.” But if the southern states persist in their effort to leave the Union, slavery’s “life will be one of constant peril and strife, and, like all great criminals, it will be pretty certain to come to a violent and bloody end.”1 Here in brief were the two options Republicans offered the slave states during the secession winter of 1860–61: peace, and with it a program of gradual abolition; or war, accompanied by an immediate but brutal military emancipation. Whichever way events turned, whether the South chose war or peace, slavery was finished. That, at least, is what Republicans were saying.
Even those who disagreed with Republicans understood that the fate of slavery hung in the balance during the winter of 1860–61. If that much was not already clear after the 1860 elections, it became undeniable over the ensuing months. Between Abraham Lincoln’s victory in November and his inauguration in March of 1861, northerners and southerners of every political stripe registered their opinions in a nationwide discussion of emancipation and abolition. Their exchanges were embedded within the much larger series of debates over the legality of secession, the perpetuity of the Union, and the sovereignty of states—not to mention the relentless flow of contentious verbiage prompted by immediate events such as President James Buchanan’s December message to Congress, the secession of South Carolina, and the various proposals for sectional compromise. Nevertheless, embedded within this mass of conflicting opinions was a blunt and revealing debate over the fate of slavery in the United States.
Throughout that debate Republicans spoke with such confidence of slavery’s impending demise—in language that predicted, threatened, or merely warned of the inevitable cataclysm to come—as to make the outcome of the crisis seem a foregone conclusion. In the immediate aftermath of electoral victory in November, the Republicans assumed that they would be able to squeeze slavery to death—gradually but inexorably. Once the Deep South states seceded from the Union, however, Republicans argued that slavery would be destroyed in the rebe
llious states quickly but violently. Republicans were not very clear about how military emancipation would happen. They had not planned for war. So while they issued broad threats and painted vast scenarios, they had drafted no legislation, and of course issued no presidential orders. All of that would come, and come quickly, once the war began. It is enough to note that by the time Lincoln was inaugurated, virtually all Republicans believed that secession meant war and war meant immediate emancipation.
To be sure, the Republican Party in 1860 was a jerry-built contraption pasted together from discordant elements. Former Whigs and former Democrats still distrusted one another and still disagreed over such issues as the protective tariff, banking, and immigration. Nor did Republicans agree on issues of racial equality and discrimination. During his presidency Lincoln would often lock horns with his fellow Republicans in Congress over the relative powers of the executive and legislative branches of government. Yet throughout the war the differences dividing Democrats from Republicans were always more pronounced than the issues separating different factions within the Republican Party itself. And on the matters of emancipation and abolition—arguably the most significant of all—Republicans spoke with near unanimity from the beginning to the end of the Civil War. It is possible to speak with some precision of a “Republican” position in the secession-winter debates over slavery.2