Constitutional Freedom and Racial Equality

"This Government was made by white men and for white men," Democratic Senator Lazarus Powell announced during his speech on the amendment, "and if it is ever preserved it must be preserved by white men."33 Every Democrat in Congress who spoke on the amendment echoed Powell's contention that the measure threatened the racial order of the country. And as the opposition worked assiduously to keep visions of "negro equality" and "amalgamation" hanging over the congressional proceedings, the debate on the amendment became a discussion not simply about the future of slavery but about the fate of African Americans.

Democrats had always played on race prejudice to combat Republican antislavery policies. Their antiblack position was in part a political technique and in part a by-product of a popular culture that embraced images of black inferiority. Racism fused with Democrats' wish for public order and civic purity to generate a party doctrine claiming that newly freed African Americans represented the greatest threat to the nation's political and social integrity. In every new policy of their opponents, from a proposed national railroad to a national currency to, of course, emancipation, Democrats saw the specter of disorderly free blacks.34 Not surprisingly, when Democrats came to the issue of the antislavery amendment, most of them wheeled out the old bugbear of racial upheaval.

32 CG, 38th Cong., 1st sess. (April 7, 1864), 1462.

34 See Baker, Affairs of Party, 212-58.

All too familiar was the Democratic argument that because blacks were naturally suited for slavery, any measure freeing them would lead to the suffering and extinction of the race. Slavery, said Willard Saulsbury, was the will of God: "His providence is inequality and diversity."35 Abolish slavery, added Thomas Hendricks of Indiana, and you remove the inferior blacks from the wardship of the superior whites. Once free, they would succumb to their natural "downward" tendency, becoming victims of white racism rather than beneficiaries of white protection.36 They would go the way of the Indians, James McDougall of California argued, "destroyed by our own people, by our vices, our luxuries, and our violence."37

Everyone had heard this reasoning before. The antebellum proslavery argument had affected the same sort of sentimental concern for the welfare of blacks, and by the time of the Civil War, many Democrats still accepted some of the principles of proslavery. It is important to note, however, that the party had never been uniformly in support of slavery. A number of northern Democrats had deserted the party prior to the war because of their opposition to slavery or to slavery extension, and many of those who remained in the party found slavery morally repugnant but nonetheless constitutional.38 Some of those antislavery Democrats who had stayed with the party, including John B. Henderson in the Senate and Henry G. Stebbins in the House, would give crucial support to the anti-slavery amendment. Yet a core of northern Democrats still took the line that nature protected blacks by making them slaves. That such a belief could still be maintained was understandable: it allowed northern Democrats to preserve their bond with southern members of the party, and it comported well with the party's vision of a society structured by the dictates of nature rather than the fiat of government.

For all that Democrats spoke of the amendment's evil effect on blacks, what they truly feared was its impact on whites. Universal emancipation, suggested Senator McDougall, would lead to racial cross-breeding and the eventual sterilization of both races. McDougall declared: "It may not be within the reading of some learned Senators, and yet belongs to demonstrated science, that the African race and the Europeans are different, and . . . the eighth generation of the mixed race formed by the union of the African and European cannot continue their species."39 McDougall's reference to future sterilization among mulattoes carried an obvious insinua-

35 CG, 38th Cong., 1st sess. (April 6, 1864), 1442.

38 See Sean Wilentz, "Slavery, Antislavery, and Jacksonian Democracy," in Melvyn Stokes and Stephen Conway, eds., The Market Revolution in America: Social, Political, and Religious Expressions (Charlottesville: University Press of Virginia, 1996), 202-23.

39 CG, 38th Cong., 1st sess. (April 8, 1864), 1490.

tion about the immediate effect of the amendment: the measure would authorize, if not promote, sexual relations between whites and blacks. The charge that Republicans were amalgamationists was an old weapon in the Democrats' arsenal. Throughout the 1850s and into the early years of the war, Democrats exploited racial fears with accusations that Republicans meant to free all the slaves, declare them equal, distribute them to the northern states, and promote intermarriage.

Such charges were flying freely in the spring of 1864, just as Congress was considering the amendment. The furor was mostly the result of a pamphlet published in early 1864 titled Miscegenation - the first recorded use of that term. Written anonymously by two newsmen at the Democratic New York World, but purporting to be a legitimate Republican tract, the pamphlet pretended to extol the benefits of interbreeding between blacks and whites.40 Notice of the booklet appeared in various papers, but it received its greatest boost when Congressman Samuel Sullivan "Sunset" Cox cited it in a speech in February 1864 that denounced the proposed Freedmen's Bureau bill.41 By March, when the debate on the antislavery amendment began in the Senate, "miscegenation" had entered the political vocabulary. In newspapers and stump speeches, Democrats made the term synonymous with equal rights and labeled all Republicans mis-cegenationists.42 Republicans in the meantime, using a tactic developed by abolitionists before the war, accused Democrats of being the real mis-cegenationists. It was the Democrats, Republicans charged, who lent tacit approval to male slave owners' ravishment of innocent slave women.43 At times the word took on farcical dimensions. James Gordon Bennett, upon

40 [David Croly and George Wakeman], Miscegenation: The Theory of the Blending of the Races, Applied to the American Man and Negro (New York: H. Dexter, Hamilton, 1864). See David E. Long, The Jewel of Liberty: Abraham Lincoln's Re-Election and the End of Slavery (Mechanicsburg, Penn.: Stackpole Books, 1994), 153-78; Forrest G. Wood, Black Scare: The Racist Response to Emancipation and Reconstruction (Berkeley: University of California Press, 1968), 53-79; J. M. Bloch, Miscegenation, Melaleukation, and Mr. Lincoln's Dog (New York: Schaum Publishing, 1958); and Sidney Kaplan, "The Miscegenation Issue in the Election of 1864," Journal of Negro History, 34 (1949), 274-343.

41 CG, 38th Cong., 1st sess. (February 17, 1864), 708-13; Samuel S. Cox, Eight Years in Congress, From 1857 to 1865 (New York: D. Appleton, 1865), 354.

42 See, for example, J. W. Sheahan to Elihu B. Washburne, March 17, 1864, Elihu B. Washburne MSS, LC; Springfield Illinois State Register, February 23, 1864, p. 2, March 6, 1864, p. 2; Cincinnati Enquirer, March 15, 1864, p. 2, March 25, 1864, p. 2.

43 See, for example, Cleveland Leader, March 19, 1864, p. 2; Cincinnati Gazette, April 15, 1864, p. 4; Indianapolis Daily Journal, April 5, 1864, p. 2, April 7, 1864, p. 2, April 25, 1864, p. 2; New York Times, March 30, 1864, p. 4, April 3, 1864, p. 4; New York Tribune, March 17, 1864, p. 4; Chicago Tribune, April 3, 1864, p. 2. On antebellum uses of antiamalgamation rhetoric by the antislavery movement, see Ronald G. Walters, The Antislavery Appeal: American Abolitionism after 1830 (Baltimore: Johns Hopkins University Press, 1976), 70-87.

hearing that black suffrage might become legal in Montana, wondered if the new territory should not be called "Miscegenia."44 An Illinois paper called the marriage between a fully grown woman and a male dwarf "almost miscegenation."45 Even Abraham Lincoln, joking with some War Democrats, called miscegenation "a democratic mode of producing good Union men."46

Yet, for all that, miscegenation would become commonplace in conversation by late 1864, the term rarely entered the Senate amendment debate in the early part of that year. Senator McDougall's reference to race mixing - and he did not use the term miscegenation - proved to be exceptional. It seems that congressional Democrats during this period were not yet sure how much weight to give the issue, especially because most everyone knew that the purported Republican Miscegenation pamphlet was in fact a hoax. To press the issue was to risk charges such as the one published by the Chicago Tribune, which rightly identified the miscegenation controversy as but another effort "to stir up the old bias against the blacks, under the newly found term of 'miscegenation.' Years ago it was 'amalgamation'; but new words create a new interest in old things."47 Democratic speeches against the amendment in the Senate did reveal the old racist notion that, as Lazarus Powell put it, "the white man is [the Negro's] superior, and will be so whether you call him a slave or an equal."48 But, for the moment, congressional Democrats chose to make miscegenation only a minor theme of their speeches against the amendment. Two months later, when the amendment reached the House of Representatives, the Democrats would make miscegenation their main line of attack.

Although the race-baiting in the Senate by opponents of the amendment was subdued, supporters of the measure already had constructed several lines of defense. First, Republicans revived their old argument that hostility to slavery was not by itself an endorsement of racial equality. One could admit of blacks, said Senator Timothy Howe of Wisconsin, that "as a race they are inferior to the race of whites," but "is [that] a fact which authorizes you or me to enslave them?"49 The argument was common to Republican rhetoric and had been made famous six years before by Lin

44 James Gordon Bennett, undated memo in "articles" file, James Gordon Bennett MSS, LC.

45 Springfield Illinois State Register, March 6, 1864, p. 2.

47 Chicago Tribune, April 1, 1864, p. 2. For examples of similar race-baiting strategies in the election of i860, see Leon Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961), 269-71.

48 CG, 38th Cong., 1st sess. (April 8, 1864), 1484.

coln, who repeatedly denied in his debates with Senator Stephen A. Douglas that his hatred for slavery reflected a wish to have a black man as his equal or a black woman as his wife.50

African American initiative during the war provided the amendment's defenders with a second defense against charges that the measure established "negro equality." Because blacks were making their way toward equality on their own, the proamendment side argued, the government would have to do nothing more for them beyond ending slavery. Supporters of the amendment cited blacks' achievement in battle and their success on the home front to give the lie to the Democrats' position that the race depended entirely on the beneficence of Republicans. Senator James Harlan of Iowa pointed to the thousands of newly freed blacks in the District of Columbia and Maryland who already were providing food, shelter, schools, and churches for themselves. Only a few of these people, Harlan claimed, were "in any way dependent on the support of the white race."51 Ironically, blacks' efforts on behalf of their own freedom, their instinct for "self-emancipation," may have diminished antislavery congressmen's sense that government had to mandate egalitarian measures proactively. When Democrats foretold of insidious designs to bring equality to blacks, their adversaries simply shot back: what could we do for blacks that they are not already doing for themselves?

In refuting the prediction that the amendment established black equality, the measure's defenders occasionally offered an explicit denial. "I will not be intimidated by the fears of negro equality," said John Henderson; "in passing this amendment we do not confer upon the negro the right to vote. We give him no right except his freedom, and leave the rest to the states."52 Henderson, a War Democrat from a slave state, was a newcomer to the antislavery movement but a predictable opponent of federal legislation granting political or civil rights. Yet, even senators with a stronger commitment to black equality denied that the federal government would have to legislate for the freed people. Harlan, for example, who often voted with the more radical members of his party, declared that enslaved African Americans would need no further attention from the federal government once they were free. The senator believed that state laws should protect both races equally, but he never suggested that the federal government would take action in instances where state laws discriminated against blacks.53

51 CG, 38th Cong., 1st sess. (April 6, 1864), 1438.

Among the amendment's supporters, War Democrats like Henderson and Republicans like Harlan agreed that states would oversee the rights of the freed people, but these two groups clearly had different assumptions about the rights that states should uphold. Like most Democrats, Henderson believed that the legal order of a society should reflect its natural order. He had broken from his party by denying that slavery was a natural condition - "This thing of slavery is a heresy" - even though he himself was a slaveholder.54 But Henderson still thought that laws should not tamper with people's natural status, and he assumed that once slavery was abolished, nature would keep whites in a superior position to blacks. Government should then follow nature's law by lending its "zeal in behalf of the liberty of the white man."55 Henderson seemed to believe that, under the amendment, the states could pass discriminatory laws against free blacks, for such measures merely extended nature's law of white superiority.

In contrast, Harlan, Henry Wilson, and other Republican senators assumed that blacks and whites would generally receive equal treatment before the laws. This notion of equal treatment, however, rested on a more narrow vision of equality than we are used to today. The Republican notion of "equal before the law" during this period flowed from freelabor ideology and thus was usually restricted to laws regulating labor. If ex-slaves failed to become industrious free laborers, then they would be subject to the same vagrancy and pauper laws that had long applied to all free people. Like white vagrants and paupers, unemployed free blacks might well be forced to work.56 By the same token, if they did find employment, they would be entitled to the same working conditions and contracts as white laborers.57 Republican senators said nothing about other types of rights, such as the right to sue and testify in court or the right to own land. Their belief in the equal rights of labor would suggest that they expected free blacks to be able to sue if an employer violated a labor contract, but they did not mention such use of the courts during the debate. Similarly, their adherence to free labor would suggest that they expected free blacks to be able to use their wages to buy land, just as white

56 Ibid. (April 6, 1864), 1438 (Harlan). James D. Schmidt, Free to Work: Labor Law, Emancipation, and Reconstruction, 1815-1880 (Athens: University of Georgia Press, 1998), 118-20; Schmidt, "'Nor Involuntary Servitude': Antebellum Labor Law and the Meaning of the Thirteenth Amendment," paper presented at the meeting of the American Society for Legal History, 1994; Amy Dru Stanley, " 'Beggars Can't Be Choosers': Compulsion and Contract in Postbellum America," Journal of American History, 78 (March 1992), 1265-93.

57 Lea S. VanderVelde, "The Labor Vision of the Thirteenth Amendment," University of Pennsylvania Law Review, 138 (December 1989), 437-504.

laborers could, but they said nothing about landowning rights during the debate. Moreover, all of the debate seemed to be about free blacks in the South. Republicans failed to address the effect of the amendment on discriminatory legislation in the North. A few states in the Midwest, for example, still restricted black immigration. Republican legislators had only begun to wrestle with the many questions concerning African American rights in post emancipation society. By debating abolition in the midst of a war that might end in a Confederate, proslavery victory, they could look into the future only so far. They saw only a rough outline of the contours of freedom in a nation without slavery.

In the same way that Republicans could not yet fathom and articulate all the rights that inhered in freedom, they were unable to express with clarity the related issue of citizenship. In private, Republicans like Francis Lieber and Horace Binney already had begun to puzzle out the amendment's potential impact on citizenship, but many party members had deemed the citizenship issue too divisive to discuss in the midst of a war and a national election. A number of Republicans therefore willfully postponed consideration of some of the amendment's potential effects on state and national citizenship. Not all Republicans put off the citizenship question on purpose. Some simply did not yet see that an amendment granting equal labor rights necessitated further legislation clarifying citizenship. Or, to put it differently, some Republicans saw labor and citizenship as synonymous. That was a view simultaneously expansive and limited: it envisioned all free laborers as citizens, but it saw citizenship exclusively in terms of labor rights.58 Whether willfully or not, Republicans during the early debates on the amendment postponed a thorough exploration of citizenship and instead focused narrowly on the amendment's elimination of a regressive form of labor. Only as emancipation became more of a reality would Republicans openly confront the changing dimensions of citizenship.

Because Republicans' understanding of the meaning of freedom was still embryonic, their vision of postemancipation society did not yet seem radically different from that of the War Democrats who supported the antislavery amendment. The difference between the visions would grow more pronounced over time, but in early 1864 the difference still seemed slight enough that both groups could take common ground on the issue of equality. For the moment, both groups could agree that the fate of the freed people would be left to the states and that no revolution in race relations would follow emancipation.

58 David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century (Cambridge: Cambridge University Press, 1993), 13-51.

Significantly, none of the advocates of the amendment responded to the charge of "negro equality" by promising to colonize the freed people. Once a popular proposal among more conservative opponents of slavery, colonization had only a few disciples in Congress by the spring of 1864. Congressmen could not with good conscience ask African Americans to leave the country that they had so bravely defended. Nor did it make sense strategically to send abroad potential Union soldiers. Just weeks after the Senate debated the antislavery amendment, Congress passed and Lincoln signed an act revoking all funds appropriated for colonization.59 Yet even with colonization defunct, some proponents of the amendment still entertained dreams of racial separation. During the debate on the amendment, Republican Senator James Lane of Kansas delivered a speech in New York predicting that universal emancipation would lead naturally to racial segregation. Once the threat of enslavement was removed, northern blacks would join others of their race in the more favorable climate of the South. The amendment, said Lane, would not "invalidate the future peace of the nation or the dominancy of our race; it means a gradual and voluntary drifting of the black man into the semi-tropical belt of our country."60 For most of the amendment's backers, deflection rather than direct refutation was the preferred method of response to the fearful cry of "negro equality." To keep the amendment from becoming known as an equal rights measure and thus losing the much-needed support of the Democrats, Republican senators stifled the question of equal rights at every turn. Twice when Garrett Davis tried to add to the amendment a clause proscribing blacks from citizenship and officeholding, Republicans voted against the addition and then suppressed further discussion on civil rights by adjourning the Senate for the day.61 A similar fate awaited Davis's proposal to distribute African Americans among all the states of the Union in proportion to each state's white population.62 These were not serious proposals by Davis but rather attempts to link the amendment to racial integration. Republicans could see what Davis was up to, and they easily fended off his jabs.

Republicans dodged not only the proposed revisions of the Democrats but the renewed effort by the Republican Charles Sumner to replace the

59 CG, 38th Cong., 1st sess. (March 15, 1864), 1108; Statutes at Large, 13 (1863-65), 352 (chap. 210, sec. 7). See Michael Vorenberg, "Abraham Lincoln and the Politics of Black Colonization," Journal of the Abraham Lincoln Association, 14 (Summer 1993),

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