The Secession Crisis Amending the Constitution to Protect Slavery

The surge of proposed amendments during the secession crisis was staggering. Whereas only a handful of amendments concerning slavery was proposed in Congress between 1789 and December i860, roughly 150 slavery amendments were proposed between December i860 and March 1861, when Lincoln took office. Not only national leaders but ordinary citizens offered revisions. A Rochester man wrote to his local paper that the key doctrines of the Dred Scott decision should be added to the Constitution, while a Baltimore resident suggested an amendment prohibiting the succession of two northern presidents.32 Not since the creation of

30 Bernstein, Amending America, 80-81; Ames, Proposed Amendments, 103-4.

31 See, for example, the speech of Henry L. Benning, November 19, 1860, in William W. Freehling and Craig M. Simpson, eds., Secession Debated: Georgia's Showdown in i860 (New York: Oxford University Press, 1992), 119.

32 Rochester Democrat and American, December 29, i860, p. 2; Neilson Poe to Thurlow Weed, December i9, i860, Thurlow Weed MSS, UR.

the Constitution had the nation witnessed such a torrent of proposed revisions.

Almost all of the proposed slavery amendments during the secession crisis sought to protect rather than abolish slavery. The proposals thus resurrected older proslavery efforts to use amendments to preserve slavery forever. This time, however, the amendments attracted much northern support, mainly because of fears of disunion. Senator Stephen Douglas of Illinois, Abraham Lincoln's longtime Democratic foe, promised a friend that a compromise amendment took "the slavery question out of Congress forever . . . and gives assurance of permanent peace."33

None of the amendments proposed early on in the secession crisis, however, did very well. In his last annual address to Congress in December i860, President James Buchanan proposed one amendment that recognized the right of property in slaves, another that protected slavery in the territories, and a third that acknowledged the right of masters to recover escaped slaves.34 No one in Congress pushed hard for the president's proposals. Senator John J. Crittenden of Kentucky offered a similar package of compromise measures, although his included an amendment creating a permanent boundary between slavery and freedom that ran along the old Missouri Compromise line, which extended west from Missouri's southern border. Southern moderates and northern Democrats welcomed Crittenden's solution, but the Republicans, who held a majority in both houses of Congress, refused to consent, for the measure directly violated their commitment to freedom in the territories. "Let there be no compromise on the question of extending slavery," Lincoln told Lyman Trumbull, a former Democrat but now a Republican senator from Illinois.35 Only the most conservative Republicans supported Crittenden's solution, and the remaining members of the party easily blocked the measure's passage.36

The president-elect, who had counseled fellow Republicans to reject compromises such as Crittenden's, could see that such a strategy might make things worse. If Lincoln and his party refused to endorse a compromise, southern unionists might assume that the new administration meant to abolish slavery and trample on states' rights, just as the secessionists had predicted. As long as they seemed intractable, Republicans

33 Douglas to Charles H. Lanphier, December 25, i860, Charles H. Lanphier MSS, ISHL.

34 R. Alton Lee, "The Corwin Amendment in the Secession Crisis," Ohio Historical Quarterly, 70 (January 1961), 7.

36 Kenneth M. Stampp, And the War Came: The North and the Secession Crisis (Baton Rouge: Louisiana State University Press, 1950), 166-70; David M. Potter, Lincoln and His Party in the Secession Crisis (New Haven: Yale University Press, 1942), 108-10, 181-200.

risked the secession of the slave states of the upper South. Long before he took office, therefore, Lincoln began thinking of his own compromise measures to keep these so-called border states in tow. He shared his ideas with Thurlow Weed, the editor of the Albany (New York) Evening Journal, during a conversation in Springfield, Illinois, on December 20, i860. Weed was the best-known and most influential wire-puller in the party. He was also the eyes and ears of New York senator William Henry Seward, Lincoln's choice for secretary of state. The president-elect gave the New York editor some written compromise measures that Seward might introduce to Congress. Although historians disagree about what Lincoln wrote on this occasion, his proposals most likely did not take the form of constitutional amendments and probably included only the modest concession of a guarantee to uphold the Fugitive Slave Law of 1850. Lincoln must have assumed that Weed would pass the proposals to Seward, and perhaps he hoped that Seward would introduce the measures to Congress. But the New York senator, who still stung from being denied the Republican presidential nomination, believed himself a much better judge than Lincoln of the political situation. So Seward took the liberty of rewriting Lincoln's proposals. The new plan called for a constitutional amendment that prohibited the adoption of any future amendment interfering with slavery in the southern states.37 Such a proposal, Seward thought, would put an end to secessionist propaganda that Republicans planned to abolish slavery by constitutional amendment. Upper South unionism would then flourish, and secessionism would wither and die.

Seward's steering of his amendment through Congress was the first legislative success of the embryonic Lincoln administration. In the House, Seward's ally Charles Francis Adams of Massachusetts proposed a version of the amendment that was taken up by the "Committee of Thirty-Three," a body formed to consider and propose compromise measures. The head of the committee, Congressman Thomas Corwin of Ohio, reported out the amendment in January 1861, and from then on the measure was known as the Corwin amendment.

At first, it seemed that Republicans would oppose the Corwin amendment as they had blocked the previous compromise measures. A petition of Massachusetts Republicans proclaimed that the Constitution "needs to be obeyed rather than amended."38 Other Republicans opposed the amendment because they, like most Americans, assumed that the constitutional text should remain static. Congressman Schuyler Colfax of Indiana

37 Lee, "The Corwin Amendment," 12-17; and Potter, Lincoln and His Party in the Secession Crisis, i66-70.

38 John M. Forbes to Charles Francis Adams, February 2, i86i, Adams family MSS, MHS.

announced that "our battle cry ought to be 'the Constitution as our fathers made it,' " while Senator Trumbull admitted an uneasiness with "tinkering with the Constitution unnecessarily."39 Early Republican opposition to the amendment convinced Corwin himself that the measure was doomed.40

Slowly, moderate and radical Republicans began to change their minds. They grew to see the wisdom of using the amendment to hold onto the border states and thwart secession. Also, they rightly interpreted Seward's lobbying for the measure as a sign that Lincoln supported it even though he publicly backed no compromise. Finally, they were satisfied by the claims of other Republicans that the amendment, rather than making a genuine change to the Constitution, merely prevented "misconstruction of existing provisions."41 On February 28, 1861, enough Republicans swung to the amendment to carry it through the House of Representatives. Three days later, under the leadership of Stephen Douglas, the Senate approved the measure.42 President Buchanan then signed it and Congress submitted it to the state legislatures, two of which voted for ratification.43

The actions of the president and Congress showed a cavalier if not defiant attitude toward the written rules of amendment. The Constitution did not require the president to sign an amendment - indeed, most of the framers probably expected the president to be absent from the amending process - and it specified that Congress submit amendments to state legislatures or conventions. Buchanan's signature, though technically improper, was not a significant challenge to constitutional doctrine: the president simply wanted to demonstrate his support for the Corwin amendment. The congressional resolution limiting ratification to state legislatures was a more serious infraction, for it curtailed the express right of the states to determine the mode of ratification. Most likely, the resolution was a deliberate attempt by congressmen to keep the amendment out of southern state conventions that had met to decide on secession. Those

39 Schuyler Colfax to Orville Hickman Browning, January 13, 1861, Orville Hickman Browning MSS, ISHL; Lyman Trumbull to William Jayne, February 17, 1861, cited in Mark M. Krug, Lyman Trumbull: Conservative Radical (New York: A. S. Barnes, I965^ 179.

40 Anna Ella Carroll to T. H. Hicks, January 24, 1861, Anna Ella Carroll MSS, HSMd.

41 Congressman Albert Porter, cited in Lee, "The Corwin Amendment," 21.

42 Stephen Douglas to August Belmont, December 25, i860, Stephen Douglas MSS, CHS; Roy Franklin Nichols, The Disruption of the American Democracy (1948; repr., New York: Free Press, 1967), 479-82.

43 The two states were Maryland and Ohio. Illinois also voted for ratification, but the vote was technically invalid because it was done by state convention, whereas Congress specified ratification by state legislatures. See Lee, "The Corwin Amendment," 25.

conventions so far had been dominated by prosecessionists, who denounced all compromise measures. The Corwin amendment would not do well there. Also, congressmen may have wished to avoid the thorny question of whether a state convention called to consider secession had the authority to vote on the separate matter of a compromise amendment. Regardless of the motives behind Buchanan's signature and the congressional ratification resolution, few people questioned the two actions. But both were significant because they served as precedents: four years later, Congress imported the same ratification resolution to the amendment abolishing slavery, and Lincoln followed Buchanan's lead by signing this final Thirteenth Amendment.

On March 4, 1861, the day after Congress adopted the Corwin amendment, the new president took office. In his inaugural, Lincoln once again invoked the Constitution as the icon of stability. "Continue to execute all the express provisions of our national Constitution," the president advised, "and the Union will endure forever." To this he added a lukewarm endorsement of the Corwin amendment, the only specific compromise measure that he mentioned. Because the amendment did not alter the Constitution but simply made explicit what was already "implied constitutional law," he had "no objection to its being made express, and irrevocable."44

The secession crisis had so unnerved Lincoln and other Republicans that they were willing to take seriously an unamendable amendment. Harold Hyman has accurately assessed the amendment as a "measure of how low secession had brought the constitutional ethics of many Ameri-cans."45 Then again, the amendment had little to do with constitutional ethics. Lincoln and his party thought of the amendment not as a genuine constitutional change, but rather as an expedient tool to preserve the loyalty of the upper South and to breed unionism in the deep South.

On April 12 the fantasy of constitutional compromise was shattered by Confederate guns aimed at Fort Sumter. When, three days later, Lincoln called for seventy-five thousand militia to put down the insurrection, the states of the upper South - Virginia, North Carolina, Arkansas, and Tennessee - joined the Confederacy. The Constitution as it was had failed to prevent the Civil War.

45 Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Alfred A. Knopf, 1973), 41. See Mark E. Brandon, "The 'Original' Thirteenth Amendment and the Limits to Formal Constitutional Change," in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995), 2I5-36.

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