by James Oakes
NOTES
ABBREVIATIONS
ALP-LC Papers of Abraham Lincoln, Library of Congress
CW Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953–1955).
FSSP Ira Berlin et al., eds., Freedom: A Documentary History of Emancipation, 1861–1867 (Cambridge: Cambridge University Press, 1983–1995). Published under the auspices of the Freedmen and Southern Society Project.
NES Howard Cecil Perkins, ed., Northern Editorials on Secession (American Historical Association, 1942).
OR The War of the Rebellion: A Compilation of the Official Records of the War of the Union and Confederate Armies (Washington, DC: Government Printing Office, 1880–1901).
SES Dwight Lowell Dumond, ed., Southern Editorials on Secession (American Historical Association, 1931).
PREFACE
1 Cong. Globe, 37th Cong., 2d Sess., p. 1340.
2 Charles Sumner, Recent Speeches and Addresses (Boston: Ticknor & Fields, 1856), pp. 69–171.
3 Seymour Drescher, Abolition: A History of Slavery and Antislavery (New York: Cambridge University Press, 2009).
4 Stanley Engerman, Slavery, Emancipation, and Freedom: Comparative Perspectives (Baton Rouge: Louisiana State University Press, 2007); Robin Blackburn, The American Crucible: Slavery, Emancipation and Human Rights (New York: Verso, 2011); Robin Blackburn, The Overthrow of Colonial Slavery (New York: Verso, 1998). On the theme of slavery and progress, see David Brion Davis, Slavery and Human Progress (New York: Oxford University Press, 1984).
5 Cong. Globe, 37th Cong., 2d Sess., p. 1641.
6 Ari Helo and Peter Onuf, “Jefferson, Morality, and the Problem of Slavery,” William and Mary Quarterly, 3d ser., 60, no. 3 (July 2003), pp. 583–614.
7 For evidence of popular antislavery, see Blackburn, Overthrow of Colonial Slavery, and Christopher Leslie Brown, Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North Carolina Press, 2006).
8 J. David Hacker, “A Census-Based Count of the Civil War Dead,” Civil War History 57, no. 4 (Dec. 2011), pp. 307–348. An accurate count of Civil War dead is probably impossible. Hacker’s “preferred estimate” of 752,000 deaths is the best one available.
9 Gilbert Hobbes Barnes, The Antislavery Impulse, 1830–1844 (1933; New York: Harcourt, Brace & World, 1964); Kenneth M. Stampp, And the War Came: The North and the Secession Crisis (Westport, CT: Greenwood Press, 1980); Dwight Lowell Dumond, Antislavery Origins of the Civil War in the United States (1939; Ann Arbor: University of Michigan Press, 1959); Eric Foner, Free Soil, Free Labor, Free Men (New York: Oxford University Press, 1970); William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977); Richard H. Sewell, Ballots for Freedom: Antislavery Politics in the United States, 1837–1860 (New York: W. W. Norton, 1980).
10 “Four years of warfare inadvertently enabled Republicans to accomplish something about which radicals such as Frederick Douglass and William Lloyd Garrison had only dreamed in early 1860: the end of slavery in their lifetimes.” Shearer Davis Bowman, At the Precipice: Americans North and South during the Secession Crisis (Chapel Hill: University of North Carolina Press, 2010), pp. 34–35 (emphasis added). “No one is arguing—no one beyond what would have been considered the abolitionist fringe—is arguing for emancipation in 1860. What the Civil War is a pluperfect example of is how wars rage out of control and bring consequences no one could have anticipated. The end of slavery in four years? No one could have anticipated that. Absolutely no one.” Transcription of Gary Gallagher speaking at Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition Yale University, New Haven, CT, March 29, 2012.
11 John W. Blassingame and John R. McKivigan, eds., The Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews, vol. 4: 1854–1880 (New Haven: Yale University Press, 1991), p. 434.
12 New York Times, Oct. 26, 1880.
13 CW, vol. 2, p. 126.
14 Charles M. Segal, ed., Conversations with Lincoln, introduction by David Donald (New Brunswick, NJ: Transaction, 2002), quotation on pp. 62–63, but see also pp. 41, 43.
15 Michael Burlingame, ed., Lincoln Observed: Civil War Dispatches of Noah Brooks (Baltimore: Johns Hopkins University Press, 1998), p. 22.
16 CW, vol. 8, p. 332.
17 During the secession crisis the question What is to be done with the Negro? was pro forma in Democratic newspapers across the North. It was a form of race-baiting designed to put Republicans on the spot. Only a handful of the most conservative Republican editors, like Henry J. Raymond of the New York Times, raised the question at that point. A few radical papers picked up the question, mostly to belittle it.
CHAPTER 1: “ULTIMATE EXTINCTION”
1 CW, vol. 4, pp. 263, 270.
2 Pinckney quoted in Richard R. Beeman, Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009), p. 269.
The scholarship on slavery and the Constitution is vast. See especially Staughton Lynd, “The Compromise of 1787,” Political Science Quarterly 81 (1966), pp. 225–250; William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), pp. 62–83; Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), pp. 19–27; Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981), pp. 20–45; Finkelman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in Richard Beeman et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), pp. 188–225; Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery, completed and edited by Ward M. McAfee (New York: Oxford University Press, 2001), pp. 15–47; George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic (Chicago: University of Chicago Press, 2010), pp. 101–183. On slavery in the ratification debates, see James Oakes, “The Compromising Expedient: Justifying a Proslavery Constitution,” Cardozo Law Review 17, no. 6 (May 1996), pp. 2023–2056; David Waldstericher, Slavery’s Constitution: From Revolution to Ratification (New York: Hill & Wang, 2009); Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), passim.
3 John P. Kaminski et al., eds., The Documentary History of the Ratification of the Constitution, vol. 6: Ratification of the Constitution by the States: Massachusetts, No. 3 (Madison: Wisconsin Historical Society Press, 2000), p. 1371; Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), vol. 2, pp. 364, 372; William J. Cooper Jr., Liberty and Slavery: Southern Politics to 1860 (New York: Knopf, 1983), pp. 67, 97–98.
4 On the federal consensus, see Wiecek, Sources of Antislavery Constitutionalism, pp. 15–19; Herman Belz, “The Constitution, the Amendment Process, and the Abolition of Slavery,” in Harold Holzer and Sara Vaughn Gabbard, eds., Lincoln and Freedom: Slavery, Emancipation, and the Thirteenth Amendment (Carbondale: Southern Illinois University Press, 2007), pp. 161–162; Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War (Cambridge: Harvard University Press, 2010), pp. 128–130.
5 The Declaration of Sentiments and Constitution of the American Anti-Slavery Society (New York: American Anti-Slavery Society, 1835), p. 8; Benjamin Franklin Morris, The Life of Thomas Morris: Pioneer and Long a Legislator of Ohio, and U.S. Senator from 1833 to 1839 (Cincinnati: Printed by Moore, Wilstach, Keys, & Overend, 1856), p. 147; Joshua Giddings, Pacificus, The Rights and Privileges of the Several States in Regard to Slavery. . . . [Warren, OH?] [1842?], p. 6; Reinhard O. Johnson, The Liberty Party, 1840–1848: Antislavery Third Party Politics in the United States (Baton Rouge: Louisiana State University Press, 2009), p. 317;
Arthur Schlesinger Jr., ed., History of American Presidential Elections, 1789–1968 (New York: Chelsea House, 1971), vol. 2, p. 903.
6 Groves v. Slaughter, 15 Peters (U.S.) 449 (1841) (emphasis added); John P. Niven, Salmon P. Chase: A Biography (New York: Oxford University Press, 1995), p. 53; Charles Sumner, Freedom National; Slavery Sectional: Speech of Hon. Charles Sumner, of Massachusetts, on His Motion to Repeal the Fugitive Slave Bill, in the Senate of the United States, August 26, 1852 (Washington, DC: Buell & Buckner, 1853), p. 21.
The “main body” of the antislavery movement “never deviated from the position that Congress could not, by direct legislation, constitutionally abolish slavery in the southern states.” Jacobus tenBroek, Equal under Law (New York: Collier Books, 1965), p. 91.
7 Cong. Globe, 37th Cong., 1st Sess., p. 260; tenBroek, Equal under Law, pp. 42–110; Wiecek, Sources of Antislavery Constitutionalism, pp. 16–18, 249–275; James Oakes, The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics (New York: W. W. Norton, 2007), p. 27. But see chapter 12 in this text for the number of Republicans—including Sumner—who between 1862 and 1864 adopted the view that the Constitution was an antislavery document.
8 Many historians argue that the key difference between abolitionists and Republicans was that abolitionists advocated “immediate” abolition. But most abolitionists understood that slavery could not be abolished immediately under the Constitution. They generally advocated immediate implementation of policies that would eventually lead to the gradual extinction of slavery. Republicans advocated the same thing. On the antislavery origins of Republican Party policies, see Gilbert Hobbs Barnes, The Antislavery Impulse, 1830–1844 (1933; New York: Harcourt, Brace & World, 1964), pp. 48–50; Dwight Lowell Dumond, Antislavery Origins of the Civil War in the United States (1939; Ann Arbor: University of Michigan Press, 1959), p. 27. On the ambiguities of “immediatism,” see David Brion Davis, “The Emergence of Immediatism in British and American Antislavery Thought,” Mississippi Valley Historical Review 49 (Sept. 1962), pp. 209–230; Bertram Wyatt-Brown, Lewis Tappan and the Evangelical War against Slavery (New York: Atheneum, 1971), pp. 81–82; James Brewer Stewart, Holy Warriors: The Abolitionists and American Slavery, rev. ed. (New York: Hill & Wang, 1996), pp. 35–50. As William Lloyd Garrison explained it, “Urge immediate abolition as earnestly as we may, it will, alas! be gradual abolition in the end. We have never said that slavery would be overthrown by a single blow; that it ought to be, we shall always contend.” Quoted in Louis Filler, Crusade against Slavery: Friends, Foes, and Reforms, 1820–1860 (Algonac, MI: Reference Publications, 1986), pp. 81–82.
9 David Armitage, The Declaration of Independence: A Global History (Cambridge: Harvard University Press, 2008); Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (Madison: Madison House, 1994); David M. Golove and Daniel J. Hulsebosch, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” New York University Law Review 932 (Oct. 2010).
10 M. I. Finley, in Ancient Slavery and Modern Ideology (New York: Viking Press, 1980), highlighted the “chattel” principle as central to the definition of slavery. Orlando Patterson, in Slavery and Social Death (Cambridge: Harvard University Press, 1982), pp. 17–21, disputes the property element; but David Brion Davis, in Inhuman Bondage: The Rise and Fall of Slavery in the New World (New York: Oxford University Press, 2006), pp. 32 and 337 n. 13, reaffirms it.
Property as the most important defining feature of a slave’s status is most thoroughly documented in Thomas Morris, Slavery and American Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1997). Gavin Wright, in Slavery and American Economic Development (Baton Rouge: Louisiana State University Press, 2006), puts the slave’s legal status as property at the center of his analysis of the slave economy. See also James Oakes, The Ruling Race: A History of American Slaveholders (New York: Knopf, 1982); James L. Hutson, Calculating the Value of the Union: Slavery, Property Rights, and the Economic Origins of the Civil War (Chapel Hill: University of North Carolina Press, 2003); Walter Johnson, ed., The Chattel Principle: Internal Slave Trades in the Americas (New Haven: Yale University Press, 2005).
11 On the “freedom principle” in Western Europe, see Seymour Drescher, Abolition: A History of Slavery and Antislavery (New York: Cambridge University Press, 2009), pp. 23–24, 66–67, 93–96. The standard account of the complicated history of the Somerset case is Wiecek, Sources of Antislavery Constitutionalism. See also “Forum: Somerset’s Case Revisited,” Law and History Review 24 (Fall 2006), pp. 601–671; Van Cleve, Slaveholders’ Union, esp. pp. 31–40. The popular origins of the freedom principle are examined in Robin Blackburn, The Overthrow of Colonial Slavery, 1776–1848 (New York: Verso, 1988), pp. 36–47.
12 Quoted in Paul Polgar, “Standard Bearers of Liberty and Equality: Reinterpreting the Origins of American Abolitionism,” PhD dissertation, CUNY Graduate Center, New York (forthcoming), chap. 2.
13 In Massachusetts and New Hampshire, emancipation was accomplished by a series of freedom suits initiated by slaves who cited the declarations of universal rights contained in both states’ revolutionary constitutions. More and more judges ruled in favor of freedom, and as the cases and precedents piled up, slavery in Massachusetts and New Hampshire gradually died away.
14 David Gellman, Emancipating New York: The Politics of Slavery and Freedom, 1777–1827 (Baton Rouge: Louisiana State University Press, 2006), p. 167: John P. Kaminski, ed., A Necessary Evil? Slavery and the Debate over the Constitution (Madison: Madison House, 1995), p. 237.
15 Gellman, Emancipating New York. On the “First Emancipation” more generally, there are several older but still valuable studies: Benjamin Quarles, The Negro in the American Revolution (Chapel Hill: University of North Carolina Press, 1961); Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago: University of Chicago Press, 1967); Donald Robinson, Slavery in the Structure of American Politics (New York: W. W. Norton, 1971, 1979); Duncan McLeod, Slavery, Race and the American Revolution (Cambridge: Cambridge University Press, 1974); David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca: Cornell University Press, 1975). On the important debate Davis inspired, see Thomas Bender, ed., The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation (Berkeley: University of California Press, 1992). Subsequent studies have tended to view abolition in the northern states as a question of race rather than slavery. See, for example, Joanne Pope Melish, Disowning Slavery: Gradual Emancipation and “Race” in New England, 1780–1860 (Ithaca: Cornell University Press, 1998); Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge: Harvard University Press, 1998), pp. 228–255.
16 On the Northwest Ordinance, see Peter Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington: Indiana University Press, 1987); Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, NY: M. E. Sharpe, 2001), pp. 37–80; Fehrenbacher, Slaveholding Republic, pp. 135–172. The British anti–slave trade movement had strong ties to the movement in America and was strongly influenced by the American Revolution. See Christopher Leslie Brown, Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North Carolina Press, 2006).
17 Rufus King’s precedent was not forgotten. On March 6, 1862, President Lincoln sent a message to Congress urging it to compensate any state that chose to abolish slavery. Two days later, retired General Winfield Scott sent Lincoln’s Secretary of State, William H. Seward, a note reminding him of King’s antislavery record. “My dear Mr. Secretary: If, perchance, this historical reminescence has escaped the notice of the President & yourself, I may do you a service by recalling it, viz;—Mr. Rufus King ceased to be a U. States’ Senator, March 3, 1825. In the act of leaving that body, he laid
upon the table a resolution pledging the public domain, after the discharge of the national debt, to aid such states as might adopt a system of slave emancipation —— entertaining the pardonable belief that his resolution might, in generations more or less, be dug up for consideration, when his name would add weight to the measure. Living in the same Hotel with him (now Willard’s) I called to thank him, as a Southern man, the same night, & added that altho’ the Southern prejudice against him, on account of the Missouri question, could not be overcome in his time, yet after generations would venerate him as a great benefactor, &c. My gratitude to the President, for his late message, on the same subject, is equally great.” Winfield Scott to William Seward, Mar. 8, 1862, ALP-LC.
18 Annals of Cong., House of Representatives, 16th Cong., 1st Sess., pp. 956–957. For a similar argument in the Senate, see Annals of Cong., Senate, 16th Cong., 1st Sess., p. 183.
On the Missouri Crisis generally, see Glover Moore, The Missouri Controversy, 1819–1821 (Lexington: University of Kentucky Press, 1953); Richard H. Brown, “The Missouri Crisis, Slavery, and the Politics of Jacksonianism,” South Atlantic Quarterly 65 (1966), pp. 55–72; William W. Freehling, The Road to Disunion, vol. 1: Secessionists at Bay, 1776–1854 (New York: Oxford University Press, 1990), pp. 144–161; Sean Wilentz, The Rise of American Democracy (New York: W. W. Norton, 2005), pp. 218–240; Wilentz, “Jeffersonian Democracy and the Origins of Political Antislavery in the United States: The Missouri Crisis Revisited,” Journal of the Historical Society 4 (Fall 2004), pp. 375–401; Wiecek, Sources of Antislavery Constitutionalism, pp. 106–125; Robert Pierce Forbes, The Missouri Crisis and Its Aftermath: Slavery and the Meaning of America (Chapel Hill: University of North Carolina Press, 2007); Van Cleve, Slaveholders’ Union, pp. 225–266.
19 Commonwealth v. Aves 18 Pick. 193 (Mass., 1836). See also Finkelman, Imperfect Union, pp. 103–114.