by James Oakes
DEMOCRATS COUNTERATTACK
On February 18, 1864, New York Democratic Congressmen James Brooks declared “the abolition of slavery as a fact accomplished.” Brooks may have been sincere, but it’s hard to tell because his fellow Democrats expunged his speech from the congressional record. He was not towing the party line. In the presidential election year of 1864, Democratic orthodoxy held that all Republican attempts to destroy slavery had failed. The confiscation acts were legally unenforceable, and both the Preliminary Proclamation and the final Emancipation Proclamation were mere brutum fulmen—they hadn’t freed a single slave. The Republican war against slavery was not simply a failure; it was much worse than that. The wartime attack on slavery had actually strengthened the resolve of the rebels. Far from hastening the suppression of the rebellion, all those antislavery laws and proclamations had prolonged the “misery, bloodshed, and desolation” of the war. The South would never return to the Union so long as the Republicans maintained their determined opposition to slavery. Why would the seceded states ever negotiate the complete destruction of a social system that had already survived every Republican effort to overthrow it? It’s easy to see why the Democrats suppressed James Brooks’s speech. In the great congressional debate over the Thirteenth Amendment he was the outlier. Everybody else, Republicans and Democrats alike, were agreed on one crucial premise: the abolition of slavery was not “as a fact accomplished.”20
It has always been too easy to fall into the habit of thinking that the abolition of slavery was inevitable, especially after the Emancipation Proclamation was issued. So it comes as something of a surprise to find Democrats launching a full-scale defense of slavery as late as June in 1864. It’s less the substance of their argument that raises eyebrows than the mere fact that the debate over slavery was still raging so late in the game. Why now? Not since the war began had Democrats been able to stop Republicans from passing antislavery legislation. Republican majorities were too solid for that. But to stop a constitutional amendment, all the Democrats needed was one-third of the votes in either the House or the Senate. With crucial unionist Democrats in the Senate endorsing the amendment, it could be stopped only in the House. If Democrats kept their congressmen in line they could prevent slavery from being abolished. That’s why they silenced Brooks; that’s why Congress was still debating slavery.
The terms of the debate were familiar. Democrats objected to the amendment on the principle of “limited government,” at least limited central government, for the decision to protect or abolish slavery had always been a state right. Republicans answered that the principle was perfectly sound but that slavery was hardly a worthy example of limited government. Wasn’t it more like tyranny, they asked? Democrats claimed that slave property was indistinguishable from all other constitutionally protected forms of property; Republicans insisted that “property in man” was different, that it was both immoral and inconsistent with the Constitution. Democrats claimed that blacks were racially inferior and uniquely suited to slavery; Republicans insisted that as human beings blacks were equally entitled to their natural rights, to the fruits of their labor, and even to the privileges and immunities of citizenship. Republicans blamed the war on slavery; Democrats, on antislavery.
And yet, as familiar as it was, the debate was also extraordinary in part because it focused so exclusively on slavery itself. In the 1850s, slavery debates were indirect—they were provoked by the repeal of the Missouri Compromise, the protection of fugitive slaves in the North, or the legal propriety of the Dred Scott decision. Those debates had raised fundamental questions by means of distracting questions: Was the Lecompton Constitution valid? Were the personal liberty laws constitutional? Did Taney and Buchanan enter into a proslavery conspiracy? But 1864 was different. There were relatively few distracting side issues and the terms of the debate were fully understood. All sides agreed that slavery was still very much alive. To kill it, Republicans endorsed the Thirteenth Amendment, thereby repudiating the federal consensus that had always left the decision for or against slavery to the states. Democrats, content to let slavery survive, opposed the amendment and reiterated their support for the right of states to control their own “domestic institutions.” And so in the spring of 1864 the U.S. Congress played host to the last full-scale national debate over the right versus the wrong of “property in man.”
The defense of slavery had always rested on two distinct claims. The first was the abstract right of property in human beings, and in mid-1864 northern Democrats were still making the claim on behalf of southern slaveholders. “This proposition strikes at property,” declared Fernando Wood, the New York Democrat, in his spirited denunciation of the Thirteenth Amendment. The Republican proposal “is unjust,” Wood said, “because it involves a tyrannical destruction of individual property.” All Democrats and Border State congressmen agreed. “[P]roperty is not regulated and was not intended to be regulated by the Constitution of the United States,” Senator Willard Saulsbury of Delaware explained. Only states were constitutionally entitled to say “what shall be property and what shall not be property.” He invoked the inevitable slippery slope: once you declare that one species of property—slaves—shall not be property, “you have a right to say that any other subject of property heretofore shall not be property.” The proposed amendment, Saulsbury warned, would “sweep away and blot out hundreds of millions of dollars’ worth of property in the States.” So fundamental was the right of property to the structure of government and society created by the Constitution, Democrats argued, that the proposed constitutional amendment was itself unconstitutional. “I do not deny the right of Congress to amend the Constitution of the United States for the benefit of the people,” Pennsylvania’s Democratic Congressman Alexander H. Coffroth explained, “but I do deny the right of Congress to amend the Constitution to the destruction of the right of the people to hold property.”21
Republicans responded with their familiar repudiation of “property in man.” It was intrinsically immoral, and although some states had legalized it, the Constitution did not; it recognized slaves only as “persons held in service,” never as property. Slaves “are property,” one Republican explained, “only when we acknowledge the institution as a legal and right one between man and man. But I deny that, in right and justice, such an institution can exist.” Democrats complain that the Thirteenth Amendment “strikes at property,” Republican Congressman John F. Farnsworth noted, “that it interferes with the vested rights of the people of the States in property.” But can a statute make property of men? “I deny it,” Farnsworth answered. “What vested right has any man or State in property in man?” God gave man dominion over chattels, things. “But nowhere did He give dominion to man over another man.” As legal “persons,” blacks were entitled to the fruits of their labor. It was possible for one person to make a “property” claim, based in contract, on the “services” of another person, but it was not legitimate to claim a right of property in the entire person, and certainly not in the “services” of that person’s children.22
The second enduring element in the proslavery defense—complementing the abstract justification of slavery as an inalienable right of property—was the claim that blacks were racially inferior and as such uniquely suited to slavery. The horrors of emancipation, especially the prospect of a war of racial extermination, loomed as another major theme in the Democratic attacks on the Thirteenth Amendment. Abolition, one Democrat warned, would “set free four million ignorant and debased negroes to swarm the country with pestilential effect.” Another predicted that Republicans would sweep through the South “with a sword in one hand and a fire-brand in the other, burning and destroying as they went, in order to do—what? To wipe out the white people of the country and supplant them by black free men, whom they are going to make American citizens.”23
Democrats put the matter in the bluntest terms: blacks weren’t worth a war. “If negro emancipation is found to stand in the way of the
reestablishment of our free and united Government,” Democrats argued, the Republicans were obliged by “high and patriotic duty to let the negro slide.” Where Democrats wanted to negotiate a swift peace that would let slavery survive, Republicans “would peril the nation with its thirty million Anglo-Saxons for the supposed benefit of three or four million African slaves; they would extirpate slavery at whatever cost of sacrifice of blood and treasure.” Republicans, Democrats charged, would foment servile insurrection, starve white women and children, desolate the southern landscape, confiscate property—and for what purpose? To “place the negro as to civil and political rights on an equality with whites.”24
Here were the twin pillars of proslavery thought, the abstract and the particular: on the one hand, the general right of property in man—a natural right, predating law and society, yet spanning all of human history and sanctioned by the unimpeachable authority of the Bible; and on the other hand, the racial specification of who should be enslaved, a limitation decreed by the biological destiny of blacks whose innate inferiority rendered them uniquely suited to be slaves. For decades these had been the core precepts of proslavery thought, the organizing themes of proslavery politics, and they were reiterated freely and without apology by Democrats in both houses of Congress in the spring of 1864.
Republicans countered both arguments, denouncing the morality and the constitutionality of “property in man” and ignoring, sometimes even mocking, the claims for black racial inferiority. They insisted that slavery was immoral because all men were equal in the sight of God, or because it violated the natural-law principle of fundamental human equality. They presupposed the basic humanity of blacks and declared that the promise of universal freedom in the Declaration of Independence applied to whites and blacks alike. They said that all men and women, regardless of their race, were equally entitled to the fruits of their labor. And they claimed that blacks were citizens of the United States and as such were entitled to the privileges and immunities of citizenship. It was their citizenship that ensured that emancipated blacks were “forever free.” It was their citizenship that enabled black men to enlist in the Union army. When Senator Garrett Davis of Kentucky proposed a law declaring that “no negro, or person whose mother or grandmother is or was a negro, shall be a citizen of the United States,” the overwhelmingly Republican Senate rejected his proposal by a resounding vote of 32 to 5. Sometimes Republicans even denounced racism itself. Senator Timothy O. Howe of Wisconsin heaped contempt on the claim that blacks were suited to slavery because “they as a race are inferior to the whites.” In the “whole catalogue” of excuses for the “crime” of slavery, Howe declared, this “one single excuse” was actually “more odious than the crime itself.” Even if the racist argument were true, which Howe doubted, it would make the crime only worse, for it would imply the sinful enslavement of the weak by the strong. Howe likewise dismissed the repeated warnings of Democrats and Border State congressmen that abolition would lead to a war of extermination between the races. “This is not to be insisted upon; it is not to be believed,” Howe replied, “it is a libel upon humanity, black or white.”25 The Republican commitment to racial equality did not extend into the social spheres of life that were traditionally regulated in states and localities, but their antislavery policies presupposed a basic racial equality and they defended that position more and more openly as the war went on.26
Thus did the debate over the Thirteenth Amendment raise the most fundamental questions at stake in the Civil War: What kind of nation was the United States supposed to be? The supporters of abolition had always believed that freedom should be presupposed everywhere, unless local laws interposed against that premise. In the end the commitment to freedom national led Republicans to support a constitutional amendment imposing freedom even on states that would have preferred to maintain slavery. Democrats presupposed that freedom was intrinsically local, and that it extended even to the paradoxical “freedom” of states and localities to enslave black people. Indeed, precisely because the right of “property in man” was a natural right, it did not require “positive” law to exist. Thus Fernando Wood rejected the Somerset principle when he insisted that slavery “is not the creature of law. It existed without law before this Government was established. It is incorporated into the organization of society as part of the existing domestic relations. It cannot be brought within constitutional jurisdiction any more than any or either of the other private and personal interests.” For Wood, positive local law was necessary to abolish slavery, not to create it.27
This implied a fundamentally different view of the nature of the federal Union. For Democrats freedom depended on state rights, and slavery was one of the things states were by right free to have. “Give up our right to have slavery,” Congressman Robert Mallory of Kentucky warned, “and in what right are we secure? One after another will be usurped . . . until all State rights will be gone, and perhaps State limits obliterated.” In Fernando Wood’s words, by “obliterating” the right of states to have slavery, the Thirteenth Amendment would “alter the whole structure and theory of government by changing the basis upon which it rests.” The federal consensus had long decreed that only a state could abolish slavery. “The right of Kentucky to continue slavery,” Senator Garrett Davis insisted, “was as perfect as was the right of Massachusetts to abolish it.” By this reasoning the Thirteenth Amendment would actually violate the fundamental premises of the Constitution.28
The debate raged on. Democrats charged that the Republican Party’s fanatical commitment to abolition had united white southerners in support of the rebellion. Republicans pointed to the flood of southern whites deserting the Confederacy, abandoning their armies and pouring into Washington. Is that what you call uniting the southern people? Kelley asked. Do so many confederate defectors suggest that we are making the people of the South “a unit”? Democrats claimed that by making the abolition of slavery a precondition for peace, the Republicans had destroyed all possibility of a negotiated settlement. The amendment “means nothing else than eternal disunion and a continuous war.” Republicans insisted that “[w]e can have no permanent peace while slavery lives.” Democrats claimed that Republican animosity toward slavery had crushed southern unionism. Republicans answered that slaves were the only reliable unionists in the South and that emancipation properly rewarded and protected blacks for their loyalty. Democrats charged that the proposed constitutional amendment proved that for Republicans the “purpose” of the war had never been the restoration of the Union but the overthrow of slavery. They “had this design from the commencement” of the war, Fernando Wood claimed. Republicans, on the other hand, insisted that the “purpose” of the war was no different in 1864 than it had been in 1861. They would suppress the rebellion and restore the Union, and they would do so by undermining slavery, the cause of the rebellion. The means, not the ends, of the war had changed. Among Republicans and Democrats alike “the common end is the maintenance of the Union,” Lincoln observed in December of 1864, and “among the means to secure that end” is the constitutional amendment “abolishing slavery throughout the United States.” Republicans equated liberty with Union and slavery with disunion. “On the one side is disunion for the sake of slavery,” Maryland Congressman John A. J. Creswell declared, “on the other side is freedom for the sake of Union.”29
THE DEMOCRATS SUCCEEDED; the amendment failed. Not in the Senate, which had approved it by a lopsided vote of 38 to 6,30 but in the House. On June 15, 1864, the House Democrats maintained their party’s discipline and prevented the resolution from garnering the two-thirds vote necessary to send the Thirteenth Amendment to the states for ratification.31 The votes fell out in what was by then a thoroughly familiar pattern. Seventy-eight Republicans voted yes and one voted no. Four Democrats supported the amendment; fifty-eight opposed it. With ordinary legislation this would have resulted in yet another Republican antislavery victory, but because it was a constitutional amendment, the Democrats won
with only one-third of the votes in the House.
Infuriated by the Democratic sabotage of the amendment, Republicans revived the idea of legislative emancipation and passed “[a] bill to guarantee to certain states whose governments have been usurped or overthrown a republican form of government.” The Wade-Davis Bill, as it was later called, is best known as an early indication of the disagreement between Lincoln and the radicals over Reconstruction policy, and that was certainly part of it. The timing of the bill, however, suggests that it was at least as much a repudiation of the House Democrats. The title refers to a precept long familiar to a small but ingenious group of radical abolitionists who interpreted the Constitution as an antislavery document. The Constitution guaranteed every state a “republican form of government,” which, they argued, was incompatible with slavery. Most abolitionists and nearly all Republicans had resisted that logic, for that would mean that the federal government could legislatively abolish slavery in the states. But by June of 1864, especially in the immediate aftermath of the House vote, a majority of Republicans were prepared to abandon the federal consensus, with or without a constitutional amendment. Lincoln was not prepared to go that far.
The difference between Lincoln and the Republicans in Congress had become substantial. Both would require state abolition as a condition for readmission to the Union. However, because Lincoln continued to believe that only “military emancipation” was strictly constitutional, he believed that only the commander in chief could require a state to endorse the Emancipation Proclamation as a means of suppressing the rebellion. By contrast, Section 12 of the Wade-Davis Bill simply abolished slavery outright, declaring that “all persons held to involuntary servitude” in the rebel states “are hereby emancipated and discharged therefrom, and they and their posterity shall be forever free.” Re-enslavement was declared illegal. If any emancipated slaves “shall be restrained of liberty, under pretense of any claim to such service or labor, the courts of the United States shall, on habeas corpus, discharge them.” Persons convicted of the crime of re-enslavement were liable to a steep fine and a prison sentence of at least five years and as much as twenty years.32