by James Oakes
Slavery, Republicans believed, was too feeble to survive on its own. Stripped of federal protection, slavery would collapse beneath its intrinsic weaknesses. It had always been propped up by the Slave Power, whose strength depended on its control of the presidency, Congress, and the courts. Slavery needed the steadying hand, the stabilizing force, of the national government. Without that protection the slave states would become international pariahs, subject to the unrestrained attacks of abolitionists foreign and domestic. “How long,” one midwestern editor asked, “would the abnormal institution of slavery, already effete and staggering to its grave, live when brought under the crushing effects of these great influences? The logic of events is a stern and terrible thing.”31 Among the most “terrible” of the events that secession and war promised was slave rebellion.
“SLAVERY WILL GO OUT IN BLOOD”
Slaves so hated their bondage, Republicans argued, that a police state was required to maintain order in the South. An invading Union army would destroy that state apparatus, giving free rein to the pent-up insurrectionary instincts of four million slaves. As soon as the secession crisis erupted, Republicans began forecasting slave rebellion in the South as the inescapable consequence of war. The slave states, even joined together in a confederacy, “have not the means within themselves of keeping their negroes in subjection in such a contest.” Secessionists must consider “the negro element,” the Worcester Palladium warned. “God only knows what that element would accomplish, should it sweep over the land in the form of an ungovernable insurrection.” It may be true that the slaves were “loyal and obsequious” to their masters under “ordinary circumstances,” a pro-Lincoln paper in Kansas argued, but “we cannot escape the great facts which the history of this race reveals—that the black race perceive and deeply feel their wrongs, and when a fitting opportunity affords, will revenge them in the most implacable manner.” It would be a sanguine business. Republicans warned that if southerners did not abandon their “treasonable operations,” slavery would “go out in blood.” If the South refuses to accept the results of a proper presidential election, “then indeed any one may foresee that American slavery is destined to die a bloody death.” The Union invasion of the South would become the catalyst for slavery’s internal collapse, opening the door to the possibility of slave rebellion.32
Republican conservatives shuddered at the prospect of brutal slave uprisings, even as they predicted them. Ohio Senator John Sherman, as conciliatory a Republican as there was during the secession crisis, insisted that southerners would “find no injury” coming from the Republicans “unless by their misrepresentation of us they stir up their slaves to insurrection.” A few months later Edward Bates, Lincoln’s conservative attorney general, was “convinced that flagrant Civil war in the Southern states would soon become a social war, and that could hardly fail to bring on a servile war.” This was not something Bates wanted to happen, but the mere fact that he worried about it indicates how widely slave insurrection was being discussed among Republicans. Nor was Bates the only conservative to contemplate an insurrectionary emancipation. Days after the attack on Fort Sumter, George Templeton Strong, the conservative New Yorker, mused over the revolutionary potential of the slave population. “Very well,” he wrote in his diary as he fumed over Jefferson Davis’s declaration that privateers would be licensed to attack northern ships. “Then we shall have no scruples about retaliating on Southern property, which is peculiar for possessing a capacity for being invited to go away, and legs to take itself off, and arms wherewith to use such implements as may aid it in so doing.”33
As the war commenced, a remarkable number of Republicans spoke—sometimes in horror, often with equanimity—of slave rebellion as the fate the slave states were bringing on themselves. No Republican argued that the North should invade the South with the intention of provoking slaves into rebellion. But that secession meant war, and that war meant slave rebellion, few Republicans disputed. The slaveholders were now faced with an impossible choice. If they remained within the Union, Republicans promised to abolish slavery gradually, but if they seceded from the Union, Republicans predicted a swift and brutal military emancipation. By the middle of January, Republican editors and politicians were falling into line declaring that, far from protecting slavery, secession in fact meant its swift and violent demise.
Cooperationists were quick to point out that if the southern states remained within the Union, the Republicans would not have the votes in Congress to implement their antislavery agenda. The Republicans had scored large victories in the northern states in the 1860 elections, enough to win the presidency, but not enough to control Congress—unless the slave states seceded. The southern states “have it in their power to stop the machinery of government” and thereby thwart the Republicans. Cooperationists had good reason to believe this. Ever since the 1790s a virtually unanimous southern congressional bloc, in coalition with a minority of northerners, had consistently beat back every antislavery proposal put forward by an effectively powerless majority of northern congressmen. The same would have been true had not so many slave states seceded. Lacking a Republican majority in Congress, one Kentucky editor explained in November of 1860, Lincoln “will be powerless . . . if the opposition to him is concentrated and well directed.”34 By January cooperationists were arguing that secession, far from preventing emancipation, would all but ensure it.
Echoing the Republicans, cooperationists warned that any state leaving the Union would forfeit all the protection the Constitution guaranteed to slavery. “The Constitution of the United States recognizes and protects slavery,” a Louisville editor explained; it was the Constitution that had always kept the abolitionists at bay. “Take slavery out of the Constitution of the United States,” and the entire South would find itself surrounded by “abolitionized” state and federal governments. On the other hand, if the Border States remain within the Union, “slavery will still be part of the Constitution” and thus “under its protection.” The Republican Banner in Nashville agreed. Slavery “has depended mainly for its existence on the protection afforded by the Constitution. . . . But how will it be after the present government is dissolved, and the Northern States are absolved from their Constitutional obligations, and instead of being parties to the maintenance of slavery, as they are under the Constitution, become its open and avowed enemies . . . ? It is clear to be seen that the South will be greatly and fatally weakened” by secession, the editors concluded, “and the doom of slavery is irrevocably fixed.”35
THE INAUGURAL ADDRESS AND THE END OF COMPROMISE
Through the secession winter Lincoln stood firmly with his fellow Republicans in refusing to compromise on the fundamental issues—in particular the constitutional right of property in slaves on which every specific sectional dispute rested. Southern leaders uniformly dismissed the Republican alternative to war, gradual abolition along with a promise that the federal government would never directly abolish slavery in any state. Republicans just as uniformly rejected the proslavery alternative to war, the series of constitutional amendments and congressional resolutions offered by Kentucky Congressman John J. Crittenden in late 1860. The Crittenden compromise, as it has come to be known, would have recognized a constitutional right to slave property in the territories south of the old Missouri Compromise line, guaranteed the admission of new slave states organized south of the line, prevented Congress from abolishing slavery in Washington, and banned federal regulation of the domestic slave trade. Additional resolutions called for vigorous federal enforcement of the Fugitive Slave Act and the repeal of northern personal liberty laws. Taken together, these proposals would very nearly make slavery national. Each element presupposed the very thing Republicans most forcefully denied—that there was a constitutionally protected right of property in slaves. In effect, the Crittenden compromise called for the repudiation of every policy Republicans planned to implement in order to undermine slavery.
Most of the remaining co
mpromise proposals were no more promising, and many were essentially meaningless. This was certainly true of the amendment to the Constitution, proposed by Ohio Republican Congressman Thomas Corwin in March of 1861, that would have preserved the existing ban on federal interference with slavery in the states where it currently existed. Everyone already agreed that the Constitution contained such a ban. The amendment did nothing more than reassert the familiar federal consensus. Indeed, the 1860 Republican Party platform explicitly affirmed the “inviolate” right of every state “to order and control its own domestic institutions according to its own judgment exclusively.” An amendment saying what everyone already believed would have been superfluous. A number of congressional Republicans, recoiling against what felt like blackmail, voted against the Corwin amendment even though their own party platform endorsed it. Indeed, there is some evidence suggesting that Republicans endorsed the amendment knowing it was pointless but hoping to deflect charges that they were unwilling to compromise. Yet even in the unlikely event that the Corwin amendment had been ratified, it would have done nothing to thwart Republican antislavery policies. For that very reason neither the secessionists nor the cooperationists saw the Corwin amendment as a viable compromise proposal. It would not have forestalled the Civil War, and a war would render it meaningless. Any states that seceded from the Union would still forfeit whatever protection the Constitution might otherwise have afforded them, leaving them as vulnerable as ever to military emancipation. In short, the Corwin amendment changed nothing. Lincoln’s lukewarm endorsement of it in his inaugural address was an empty gesture in a speech that stoutly reaffirmed the basic Republican positions.
What Lincoln’s inaugural address actually revealed was how deeply the precepts of antislavery constitutionalism had penetrated into the political mainstream. He repeated the promise made by generations of antislavery activists—that he would not “interfere” with slavery in the states where it already existed—but he did not repudiate Republican plans to undermine slavery by means of containment. He would respect whatever “rights” the Constitution guaranteed to every state, knowing full well that a major source of conflict was the Republican claim that there was no such thing as a constitutional right of property in slaves. But the clearest indication of where Lincoln stood came in his extended remarks on the issue of fugitive slaves.36
Lincoln’s first reference to the fugitive slave issue struck an eminently conservative tone. He quoted the entire fugitive slave clause of the Constitution and then noted that he, along with every member of Congress, was sworn to uphold the Constitution—“this provision as much as any other.” Had he stopped there he might have eased the concerns of many a slaveholder. Instead, Lincoln went on to point out that there was “some difference of opinion whether this clause should be enforced by national or state authority.” To say the least: southern leaders insisted that the federal government had to enforce the fugitive slave clause within the northern states. But most Republicans, starting from the premise that freedom was national, argued that the federal government had no business enforcing the fugitive slave clause, that slaveholders seeking to recapture fugitives should be obliged to press their case in state courts. By this reasoning the federal enforcement provisions of the Fugitive Slave Act of 1850 were illegitimate.37
Though Lincoln hated the 1850 law, he offered the South a substantive compromise proposal on fugitive slaves during the secession crisis. Unlike most antislavery politicians, Lincoln was willing to concede that the fugitive slave clause might be enforced by the federal government, but in return for that concession he demanded a federal personal liberty law guaranteeing accused blacks “the usual safeguards of liberty, securing free men against being surrendered as slaves.” In addition, Lincoln wanted northern civilians exempted from any obligation to participate in the enforcement of the fugitive slave clause. These proposals would require a substantial revision of the Fugitive Slave Act of 1850, but they went against the views of Lincoln’s own party. Seward warned Lincoln that most Republicans were “unwilling to give up their old opinion that the duty of executing the constitutional provisions concerning fugitives belongs to the States.” Lincoln nevertheless revived the offer of federal enforcement in return for black citizenship in his inaugural address. In “any law upon this subject,” Lincoln said, “ought not all the safeguards of liberty known in civilized and humane jurisprudence be introduced,” in particular the “privileges and immunities of citizens” to which free blacks were entitled. Lincoln’s proposal flatly contradicted the Supreme Court’s ruling in Dred Scott, which denied that blacks were citizens. It could hardly have mollified the slaveholders that Lincoln urged everyone to obey the fugitive slave law, like all the other laws “which stand unrepealed,” until such time as Congress acted to repeal it.38
In an obvious play on the wording of the Dred Scott decision—made all the more extraordinary by the fact that its author, Chief Justice Roger Taney, was sitting there listening—Lincoln distinguished between the rights everyone agreed to respect because they were “plainly written in the Constitution” and those over which there was serious disagreement because they were not plainly specified. Taney had ruled against Dred Scott’s suit for freedom partly on the ground that the Constitution “expressly” recognized a right of property in slaves, something Lincoln had repeatedly disputed. Now, in his inaugural address, Lincoln argued that much of the political disagreement about slavery arose precisely from those questions on which the Constitution was silent. “Shall fugitives from labor be surrendered by national or by State authority?” Lincoln asked. “The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution,” Lincoln answered, “does not expressly say.” All of “our constitutional controversies,” Lincoln explained, arise from disagreements over what the Constitution “does not expressly say” regarding the enforcement of the fugitive slave clause and slavery in the territories. Whenever such disagreements arise, “we divide upon them into majorities and minorities,” and disputes over what the Constitution says are settled by means of democratic elections. Thereafter the minority must “acquiesce,” or else “the government must cease.” Secession thus amounted to a minority’s refusal to acquiesce in the democratic legitimacy of majority rule. In this case the specific issues prompting the minority’s rejection of democratic decision-making were the majority’s views on the proper enforcement of the fugitive slave clause and the exclusion of slavery from the territories. These were the “real” ills that Lincoln freely admitted southerners faced by remaining within the Union.39
But there were even “greater” ills that Lincoln was “certain” would arise if the slave states left the Union. Continuing his attack on the Dred Scott decision, Lincoln doubled back yet again to the matter of fugitive slaves. In ordinary cases the people could rely on the Supreme Court to settle constitutional questions, Lincoln explained. But the Supreme Court cannot resolve “vital questions, affecting the whole people,” otherwise “the people will have ceased, to be their own rulers.” In the current crisis the vital question was clear: “One section of our country believes slavery is right, and ought to be extended, while the other believes it wrong, and ought not to be extended.” Under the circumstances the laws regulating slavery could never be “perfectly” enforced because the supporters and opponents of slavery would never be able to agree on which laws should or should not be strictly applied. Lincoln cited two particular laws: the “fugitive slave clause of the Constitution, and the law for the suppression of the foreign slave trade.” Both were about “as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself.” So long as large numbers of southerners were willing to violate the ban on slave trading, the ban could only be imperfectly enforced. And so long as northerners were offended by the spectacle of slave-catchers in their midst, the fugitive slave clause would likewise be enforced “imperfectly.” But what would happen
if the South tried to secede from the Union? Lincoln asked. Then the circumstances of law enforcement would be changed. The South, he predicted, would reopen the Atlantic slave trade, and the commerce, “now imperfectly suppressed, would be ultimately revived without restriction.” Meanwhile in the North, Lincoln added, “fugitive slaves, now only partially surrendered, would not be surrendered at all.” Having opened his discussion of fugitive slaves with a respectably conservative promise to abide by his oath of office and uphold the law, Lincoln steadily gravitated toward the more radical conclusion that if the South “separated” from the Union, neither the federal government nor the northern states would enforce the fugitive slave clause of the Constitution.40
In a speech often condemned for avoiding the issue of slavery, Lincoln actually referred to slavery repeatedly—citing it as the only cause of the sectional crisis, questioning the federal government’s obligation to enforce the fugitive slave clause, reasserting the government’s constitutional right to exclude slavery from the federal territories, and affirming the conviction that slavery was a moral wrong. If the inaugural address was Lincoln’s attempt to avoid the subject of slavery, it was a miserable failure.
“AN ACTIVE WAR OF EMANCIPATION”
Perhaps because it reflected the familiar constitutional premises of the Republican Party, Lincoln’s first inaugural address changed nothing. It brought none of the seceded states back into the Union, and it provoked no new wave of secessions in the Upper South. As an affirmation of Republican dogma, the speech provoked cries of outrage among northern Democrats. “There can no longer be any doubt that anti-slavery is the corpus, the strength, the visible life of the party which has now assumed the reins of government,” the Philadelphia Evening Journal declared the next day.41 If the new president carries out the “provisions and recommendations” of his speech, a Wisconsin Democrat declared, “blood will stain soil and color the waters of the entire continent.” Nevertheless, the national argument over slavery’s fate remained where it had stood for several months.