Freedom National: The Destruction of Slavery in the United States, 1861-1865

by James Oakes

  The slave-trade treaty was not the only indication that decades of proslavery diplomacy had come to a sudden halt. Under the Republicans there would be no more moves to annex Cuba for slavery, no more demands for compensation of slaves freed in British ports, and no more official endorsements of the property rights of masters whose slaves rebelled on the high seas. Some changes were symbolic, though telling. In the wake of the Dred Scott decision in 1857, the State Department had stopped issuing passports to African Americans on the grounds that they were not citizens. Under the Lincoln administration the policy was reversed and blacks were once again issued passports.

  Abolitionists had long decried the refusal of successive administrations to recognize the independent black republics of Haiti and Liberia. Though black and white abolitionists alike generally shied away from celebrations of the Haitian Revolution, once France recognized Haiti’s independence in 1825, antislavery activists pressed for the United States to follow suit. In the late 1830s, abolitionists sent hundreds of petitions to Congress demanding diplomatic recognition of Haiti. But nothing came of this effort until December of 1861, when Lincoln urged Congress to reverse the long-standing U.S. policy. He wondered if there was “any good reason” for the United States to “persevere longer in withholding our recognition of the independence and sovereignty of Hayti and Liberia.” That was all Lincoln said about it, but several months later in Congress, Massachusetts Republican Thomas Eliot declared that diplomatic recognition of Haiti was—like emancipation—a matter of both “justice” and sound “policy.” As in the abolitionist petitions decades earlier, the “policy” Eliot endorsed promised the reciprocal benefits of free trade between Haiti and the United States. Congress endorsed Lincoln’s proposal, and within a few months the first black ambassador from Haiti arrived in Washington.12

  By then U.S. foreign policy had been dramatically altered. The federal government was allied with Great Britain in the suppression of the Atlantic slave trade, it was aggressively prosecuting slave traders, it was issuing passports to African Americans, and it was inviting black diplomats from Haiti and Liberia to Washington. Southern slave ships were no longer safe in the coastal waters of the United States. Slavery in the seceded states no longer reached beyond the water’s edge, and the slave South was effectively surrounded by free oceans.

  FREE TERRITORIES

  As the Lincoln administration was finalizing the details of the slave-trade treaty, Congress was moving to plant free territories all along the Confederacy’s western border. This was the terrifying scenario that had long alarmed so many southern defenders of slavery. “Will you suffer yourselves to be surrounded by a cordon of free States?” asked one southern pamphleteer in 1848.13 That same year a Florida senator denounced the Wilmot Proviso for striking “at the security of property in the southern States, by aiming to surround them with a cordon of States having antagonist institutions.” Two years later Jefferson Davis objected to northern claims that because “the South held the African race in bondage . . . [it] should be restricted from future growth—that around her should be drawn, as it were, a sanitary cordon to prevent the extension of a moral leprosy.” Legitimate southern suspicions that the incoming Republicans would construct their “cordon of fire” drove the secession movement ten years later. “A cordon of Free States must never be permitted to surround the God-given institution of Slavery,” Senator Clement C. Clay of Alabama declared in 1860. “[T]he beautiful tree must not be thus girdled that it may wither and die.”14

  Forcing slavery to “wither and die” was precisely the point. When Republican Congressman Isaac Arnold introduced his bill “to render freedom national, and slavery sectional” on March 16, 1862, he made it clear that excluding slavery from the territories was but one part of a much larger project. As Arnold originally drafted it, the law would have banned slavery from all federal installations—forts, arsenals, dockyards, and the like—and freed American slaves on the high seas. It would, in short, establish the presumption of freedom “in all places whatsoever where the National Government is supreme.”15 As it made its way through the legislative process, Arnold’s bill was simplified and ended up as the law prohibiting slavery in all the territories of the United States, but the principle it embodied—establishing a cordon of freedom around the South—remained.

  The problem of slavery in the territories had beleaguered American politics since the founding days of the republic. Even before the Constitution was drafted, the Congress, meeting under the Articles of Confederation, had passed the “Ordinance of 1787,” known as the Northwest Ordinance, indicating its desire to keep slavery out of the northwestern territories. Antislavery congressmen later tried to implement similar restrictions on slavery’s expansion into the southwestern territories, but they were defeated by the united opposition of the southern states. The first great sectional crisis in 1820 was provoked by the admission of Missouri as a slave state. The next came in the 1840s, when antislavery northerners tried to prevent the annexation of Texas, opposed the war with Mexico, and having failed in both quests, nevertheless came close to banning slavery from all the territories acquired during the war. Out of the struggle to ban slavery from the territories came the Free Soil Party in 1848 and the Republican Party a few years later. By the late 1850s the same struggle over slavery in the territories split the Democratic Party in two, leading in 1860 to the stunning electoral victory of a Republican president whose party promised to ban slavery in all the western territories. Once secession gave the Republicans control of Congress, it was only a matter of time before they set about fulfilling their promise.16

  On May 8, 1862, Owen Lovejoy reported Arnold’s “freedom national” bill out of the House Committee on Territories. It would abolish slavery not only in the federal territories but also in all “forts, magazines, arsenals, dock-yards, and other needful buildings” under the jurisdiction of the United States. It would abolish slavery “on the high seas, beyond the territory and jurisdiction of each of the several States.” In short, the bill abolished slavery “in all places whatsoever where the national Government has exclusive jurisdiction.” This was freedom national carried to one of its logical conclusions.17

  “I denounce this bill,” one Maryland congressman declared, “as a palpable violation of the rights of States, and an unwarrantable interference with the rights of private property.” Another Democrat declared that the bill banning slavery in the territories was utterly superfluous because “nothing but positive law can carry slavery there; and we might as well here undertake to re-enact the Decalogue as to enact this law.” As they had for nearly forty years, Democrats insisted that slavery was none of the federal government’s business. Having struggled to keep slavery out of national politics from the 1820s through the 1850s, Democrats continued struggling to keep slavery out of the war. “The conservative men of the House,” Democratic Congressman Samuel Cox of Ohio insisted, “ought to ‘squelch’ out the whole negro business.” Instead, he complained, Republicans kept dragging the issue of slavery up. “They are responsible for this continuous agitation. From the very commencement of the session, we have had these bills before us in one shape or another.”18

  No less consistently Republicans insisted that slavery could never be separated from the war. “The Rebellion is the result of slavery,” Republican Congressman William D. Kelley of Pennsylvania shouted. Yet even as he denounced slavery for having drenched American soil in blood, Kelley denied that the territorial bill violated the federal consensus. The Constitution neither creates nor even recognizes slavery, he explained, “it only tolerates it” in the states that have created it. The “freedom national” bill “does not interfere with that toleration. It does not propose to abolish slavery anywhere. It only proposes to say to the slave-owner: ‘Keep your slaves out of these places.’ ” But if Republicans freely acknowledged that the federal government could not directly abolish slavery in any state, they nonetheless pressed for Congress “to exhaust the last power it
has over this institution, whenever and wherever it can be done.” Roscoe Conkling would have Congress “march up to the line of constitutional power wherever we possess that power, and to that extent prohibit this institution.” But where was “the line of constitutional power”? Exactly how much authority to regulate slavery did Congress possess?19

  For a minority of Republicans the presence of slavery on federal installations within a slave state created a legal ambiguity that they would just as soon avoid. All Republicans agreed that Congress had the power to abolish slavery in federal territories and Washington, and all were committed to maintaining freedom on the high seas. But not all Republicans agreed that Congress had the power to abolish slavery on federal installations inside a state where slavery was legal, largely because the federal government occupied such spaces only with the consent of the state. Fearing that some of his fellow Republicans might hesitate to support the bill, Lovejoy amended his own committee’s report by stripping it down to its most important component—the abolition of slavery in the territories. As was often the case, the flexibility of the radicals sustained the Republican consensus in favor of emancipation. The final House vote of 85 to 50 broke down along familiar lines. Nearly all Republicans voted for it; almost every non-Republican voted against it. To emphasize the partisan nature of the bill, Congressman Cox proposed a tongue-in-cheek amendment declaring that the purpose of the law was “to carry out the Chicago platform, and to dissolve the Union.”20 There was a half truth in Cox’s gesture: abolition in the territories was the one item on their agenda over which the Republicans had always refused to compromise.

  The Senate took up the bill on June 9, rearranged some of the wording, and with very little debate, endorsed it by an overwhelming vote of 28 to 10. The House accepted the rewording and sent it off to the president on June 17. Two days later Abraham Lincoln signed “An Act to secure Freedom to all Persons within the Territories of the United States.” Unlike the Second Confiscation Act, which was long and complicated, the territorial bill was simplicity itself. A mere seventy-six words, it recalled the phrasing of the Northwest Ordinance and foreshadowed that of the Thirteenth Amendment. “[N]either slavery nor involuntary servitude” would thereafter exist in any U.S. territories, “otherwise than in punishment of crimes whereof the party shall have been duly convicted.”21

  With that single sentence, Congress excised a source of tension that had torn at the nation since its founding. And notwithstanding the fate of the broader legislation originally proposed by Isaac Arnold and Owen Lovejoy, it was nonetheless true that banning slavery in the western territories, and the suppression of slavery on the high seas, were parts of a larger project whose ultimate purpose was the abolition of slavery in the states. One indication of that project was Congress’s determination to establish an oasis of free labor in between two slave states by abolishing slavery in Washington.

  FREEDOM IN WASHINGTON

  Sliced from a chunk of land alongside the Potomac River at the border of Maryland and Virginia, the District of Columbia had slavery inscribed in its very origins. In 1801 Congress was formally charged with governing the cities of Washington and Georgetown, and it chose to exercise its authority by importing wholesale the laws of the state of Maryland, including its slave codes and its statutes discriminating against free blacks. From the moment of its creation, slaves were conspicuous in Washington. They helped construct the Capitol, laid out the city’s impossibly complicated street grid, and worked as servants in the homes of senators, congressmen, cabinet members, and a succession of slaveholding presidents. The number of slaves declined steadily over the decades, yet for half a century slave traders plied their human property through the streets, within sight of the White House and earshot of the Capitol, until slave trading was finally banned as part of the Compromise of 1850. Ending the slave trade, however, did not end slavery. In 1860 the U.S. census still counted 3,185 slaves in the District.

  For abolitionists the political significance of slaves working in the nation’s capital far outweighed their numbers, and for generations opponents of slavery made abolition in the District of Columbia a priority. In their first attempt to force slavery back into national politics in the 1830s abolitionists bombarded Congress with mass petitions demanding the abolition of slavery in the nation’s capital. In the 1840s, during his one term as a Whig congressman and long before he had committed himself to antislavery politics, Abraham Lincoln had drafted a bill for the gradual abolition of slavery in Washington, provided district voters gave it their approval in a referendum. Lincoln’s was only one of a number of such bills introduced by antislavery congressmen over the years. Their authors believed that slavery in the nation’s capital was an ongoing scandal in the land that called itself the freest on earth. Critics denounced it as an affront to the nation’s founding values, a disgrace to America’s reputation in the world. “Nobody can hear that slaves are now sold in the markets of Washington,” Charles Sumner declared, “without confessing the scandal to liberal institutions. For the sake of our good name, if not for the sake of justice, let the scandal disappear.”22

  Beginning in the 1830s the abolition of slavery in Washington took on a broader constitutional significance: it became a test of competing views of congressional power over slavery in areas where federal rather than state government was sovereign. The great abolitionist Theodore Dwight Weld is most often remembered for his antislavery pamphlet, American Slavery as It Is, but he may have been more important for another pamphlet he published at the same time, The Power of Congress over the District of Columbia, which argued for the federal government’s right to abolish slavery in Washington. Much depended on the outcome of this legal debate. If proslavery constitutionalism prevailed in Washington, it would prevail on the high seas. It meant that slavery was a national—and international—rather than a merely local institution. But if Weld’s antislavery constitutionalism succeeded, the freedom of the seas could be presumed, slavery could be excluded from the territories, it could be abolished in Washington, and the federal government could build a cordon of freedom around the slave states. By the late 1850s virtually all Republicans had embraced Weld’s principle, but not until the Civil War did they have the power to act on it.

  Surrounded on all sides by slave states, but with tens of thousands of Union troops protecting the city from a possible Confederate invasion, Washington quickly became a magnet for slaves escaping to freedom, whether from loyal Maryland or from disloyal Virginia. One measure of the radicalizing effect of the war was the fact that some opponents of emancipation in the District tried to thwart Republican plans by introducing a bill nearly identical to the one Lincoln had drafted in the late 1840s, calling for gradual abolition only after a referendum. By the time the District emancipation bill was debated in early 1862, war had made Republicans far more aggressive. Repeatedly and by overwhelming margins they rejected every amendment that would have made abolition in the capital gradual, and they barely considered a referendum. Gradual emancipation was something Republicans offered as an incentive for abolition in the loyal states, where Congress was not allowed to “interfere” with slavery. Because no such restriction applied to Washington, Congress was free to abolish slavery immediately.

  Republicans began introducing bills for the emancipation of all slaves in the District of Columbia within a few weeks after the Thirty-Seventh Congress convened for its second session, in early December of 1861. The Senate Committee on the District of Columbia reported an abolition bill to the floor in February, and on March 12 the Senate began its formal deliberations. Various senators introduced amendments to ensure that slaves could not be secreted out of the District to be sold rather than emancipated. Another amendment repealed the original statutes that had adopted Maryland slave law within the District. To many advocates of freedom national, those original statutes were illegitimate because the Constitution was sovereign in the District, and where the Constitution was sovereign freedom, not slavery, was sup
posed to prevail. Repealing the original slave statutes would effectively end slavery while at the same time reaffirming that freedom was national. Ohio Republican Congressman Harrison Blake went further. Reiterating the position staked out by Weld decades earlier, Blake declared that the power to abolish slavery implied a moral obligation to do so. “It is our duty to abolish slavery here,” he argued, “because Congress, by the Constitution, has the power to do it; and, slavery being a great wrong and outrage upon humanity, we should at once do right, and pass this bill.”

  Not surprisingly, much of the debate over abolition in the capital centered on constitutional questions. Opponents insisted that Congress had no power to abolish slavery in Washington or anywhere else. Senator Garrett Davis of Kentucky denounced the “unconstitutional legislation” by which Congress would “liberate” slaves “without the intervention of the courts.”23 By Davis’s reasoning, the federal government could never abolish slavery and could only authorize the emancipation of individual slaves as punishment if an owner was found guilty in a trial for treason. Republicans believed that Congress had all the authority it needed to abolish slavery in the District. “The fundamental law of the land is broad and clear,” Maine’s Republican Senator William Pitt Fessenden explained. “Congress, under the Constitution, is gifted with all power of legislation over this District, and may do any thing in it that any legislature can do in any State of the Union.”24

  Radicals took the lead in the debate on District abolition, just as they took the lead in nearly every emancipation debate during the war. They were instrumental in drafting legislation and guiding it through committee; they set the terms of debate on the floor. Yet in pursuit of party unity, radicals sometimes sent their own bills back to committee, accepted friendly amendments, and even amended their own bills, thus ensuring Republican unanimity when the votes were cast. The District emancipation bill, for example, was not as radical as Congressman James Ashley of Ohio would have liked, but “I am a practical man,” he explained, “and shall support this bill as the best we can get at this time.”25 Conservative Republicans responded in kind. During the debate it became clear that Senator Orville Browning was prepared to endorse forced colonization, and that Senator John Ten Eyck of New Jersey preferred gradual to immediate abolition, but both supported the final bill because their primary goal was neither colonization nor gradualism but abolition of slavery in the nation’s capital. In the House, Republican Congressman John T. Nixon, also from New Jersey, admitted that gradual emancipation was “more in accordance” with his own views. “But if immediate emancipation with just compensation, shall prove to be the sentiment of the House, I am prepared to exercise an express constitutional power, and vote to remove for ever the blot of slavery from the national capital.”26 Agreeing on the ends, Republicans readily negotiated among themselves over the means. This in turn allowed Republicans to remain steadfast in their resistance to the opposition of Democrats and Border State congressmen.