by James Oakes
It is not clear whether Johnson ever formally required the reconstructed states to ratify the Thirteenth Amendment as a condition for readmission, but as those states were becoming organized in late 1865 Secretary of State Seward made clear that ratification was what the president preferred. The first state to get this message was South Carolina. Its newly organized legislature, meeting on September 19, declared that “the slaves in South Carolina have been emancipated by the action of the United States authorities.” This would not do. Speaking on behalf of Johnson, Seward let it be known that there was “a deep interest felt as to what course the Legislature will take in regard to the adoption of the amendment to the Constitution of the United States abolishing slavery.” Growing bolder with each new communication, Seward finally told South Carolina’s provisional governor that the president “considers the acceptance of the amendment indispensable” to the state’s restoration. “Let writers say what they will,” a Tennessee correspondent wrote for the Chicago Tribune. “The South never gave up the hope of re-establishing slavery, until President Johnson informed South Carolina that she must adopt the constitutional amendment before she could retake her position in the Union.”74
On November 13 the South Carolina legislature complied by ratifying the Thirteenth Amendment. Johnson’s message got through to other states. North Carolina ratified it on December 1, Alabama on December 2, and Georgia two days later, on December 4. Some states refused to ratify the amendment and instead did nothing more than concede that the federal government had, as a matter of inescapable fact, destroyed slavery in their states. The “institution of slavery having been destroyed in the State of Mississippi,” its constitutional convention declared, it was thereby abolished. Florida’s constitutional convention ignored Johnson’s wishes and declared only that slavery had been “destroyed in the State by the Government of the United States.” Under intense pressure from Washington, the new state legislature relented, and in late December, Florida finally ratified the Thirteenth Amendment. For all their reluctance, most of the former Confederate states complied, and as a result, more slaves may have been emancipated in a single month—December in 1865—than had been freed in the four preceding years of war.75
The extraordinary resistance to abolition in two of the four Border States brought the antislavery movement to an ironic conclusion. On October 7, 1865, Florida’s Provisional Governor William Marvin informed Secretary of State Seward that there was “some reluctance” among Florida legislators to ratify the amendment because it would “impose abolition on Kentucky and Delaware, which have not yet abolished slavery.”76 For decades abolitionists had assumed that slavery would eventually disappear first in the states where, as things turned out, it disappeared last. They thought slavery was intrinsically weak, especially in the Border States. Dislodge the Slave Power, surround the South with a “cordon of freedom,” and the deterioration of slavery would commence first in the slave states bordering on the free states. By early 1862, barely a year after the Civil War began, that fantasy was dead.
Delaware was a particular object lesson in this regard. Lincoln assumed that Delaware, with fewer than two thousand slaves and no secessionist movement to speak of, was the ripest fruit ready to fall from slavery’s decrepit tree. The mere offer of federal compensation would do the trick. Instead, Delaware clung tenaciously to slavery and through four years of war its representatives in Congress were among the institution’s most unswerving defenders. When Charles Sumner worried that the admission of West Virginia would bring another slave state into the Union, Benjamin Wade argued that the new state was formally committed to gradual abolition and would therefore vote as a free state. Contrast this with Delaware, Wade said: with far fewer slaves than West Virginia but with no comparable commitment to abolition, Delaware consistently voted like a slave state.
The graveyard of antislavery hopes for the Border States was not Delaware, however, but Kentucky. In Kentucky every escalation of federal pressure to abolish slavery produced an equal and opposite proslavery backlash. Kentucky’s civil and military leaders did everything they could to thwart the Union antislavery policy. In no other state was the civil war over slavery within the Union army so visceral. Soldiers and officers from northern states simply refused to obey orders from a handful of proslavery commanders from Kentucky. Troops from Kentucky nearly went into battle against troops from the Midwest. A proslavery justice of the Kentucky supreme court, George Robertson, brought fifteen lawsuits—including one of his own—against Union soldiers who refused to return escaped slaves to their owners. In his annual message to the legislature in January of 1863, Governor James Robinson denounced Lincoln for issuing the Emancipation Proclamation, “a manifesto from which nothing but evil” could flow. As politics in Maryland and Missouri were resolving into a dispute between immediate and gradual abolitionists, politics in Kentucky hardened into a contest between two proslavery factions, the Peace Democrats, who all but endorsed secession, and the Union Democrats, who merely denounced Lincoln and vowed eternal vigilance in defense of slavery.
The Lincoln administration did what it could to clamp down on proslavery elements in Kentucky, especially those within the Union army. In late 1862, Secretary of War Stanton dismissed a proslavery colonel in the Kentucky infantry, John McHenry, for ordering his troops to return escaped slaves to their owners in deliberate violation of Lincoln’s Preliminary Proclamation. The final Emancipation Proclamation prompted “an epidemic of resignations” among Kentucky officers, resignations that the War Department refused to accept. In 1863, Kentucky officials began arresting and re-enslaving fugitives from seceded states, only to be thwarted by Lincoln’s judge advocate general, who ruled the re-enslavements were illegal, and Stanton, who ordered them stopped. In late 1864, Kentucky General Speed Smith Fry was nearly removed from his command after he ordered the brutal expulsion of the wives and children of black soldiers from his camp.77
Union officers responded to Kentucky’s recalcitrance by stepping up the pressure on slavery. After the Republican victory in the 1864 national election, General John Palmer began issuing “passes” by the thousands to Kentucky slaves so that they could cross the Ohio River without obstruction. Instead of succumbing to the pressure, white Kentuckians only stiffened their resistance. In August of 1865, months after Congress passed the Thirteenth Amendment and sent it to the states for ratification, Kentucky voters elected a proslavery legislature that not only refused to ratify the amendment but also vowed to nullify it. In November a Kentucky grand jury indicted General Palmer on a charge of “enticing” slaves away from their owners, in violation of Kentucky law. By December of 1865, Kentucky had become a national spectacle. The Chicago Tribune observed that Kentucky’s behavior was driven by the “insane hope” of reestablishing slavery. “Kentucky alone remains a slave state,” commented the bemused correspondent for the Manchester Guardian.78
On December 18, 1865, Secretary of State Seward officially certified that the requisite twenty-seven states had ratified the Thirteenth Amendment. On that same day slavery was finally abolished in Kentucky and Delaware. There were loose ends still to be tied up. The treaties between the Confederate States of America and various Indian nations—treaties recognizing the perpetual existence of slavery—would have to be renegotiated with the triumphant Union government. Texas had yet to reorganize its government in the wake of the Confederacy’s collapse. On February 10, 1866, a constitutional convention meeting in Austin finally acknowledged the facts. Slavery had been abolished “by force of arms,” the new state constitution read, and “its re-establishment . . . prohibited, by the Amendment to the Constitution.
IN EARLY DECEMBER OF 1865, two weeks before Seward announced the ratification of the Thirteenth Amendment, Kentucky’s Governor Thomas Bramlette pleaded with his state’s intransigent legislature to accept what had at long last become inevitable. Speaking to those who objected that the amendment was an “inroad upon State rights,” the governor conceded that �
�the regulation and government of slave property is the right of the State; but freedom is national,” Bramlette insisted, “and is, therefore, more appropriately declared so to be through the Federal Constitution than by local or State action.”79
EPILOGUE: WAS FREEDOM ENOUGH?
IN DECEMBER OF 1865, just as the defeated Confederate states were ratifying the Thirteenth Amendment, a “Christmas Insurrection Scare” swept across much of the South. Having just been emancipated, the former slaves made their first attempts to test the meaning and limits of their hard-won freedom. Hoping for land of their own—believing themselves entitled to it after years of unrequited toil—freed people across the rural South resisted the terms of the labor contracts offered to them by their former masters. Emancipated men and women defied new vagrancy statutes by moving about—sometimes in search of relatives from whom they had been separated, sometimes bargaining for better terms of employment, or sometimes just to get away from the man who had long claimed them as his personal property. Infuriated in defeat, the former masters responded with an extraordinary spasm of anti-black violence that shocked northerners and provoked a backlash against the Johnson governments among Republicans in Congress.1 Already a new kind of struggle was beginning to take shape.
Southern leaders feared nothing so much as federal intervention on behalf of the freed people. The enforcement clause of the Thirteenth Amendment was particularly troubling. Alabama had ratified it only “with the understanding that it does not confer upon Congress the power to legislate upon the political status of freedmen in this State.” South Carolina’s provisional governor, B. F. Perry, noted that the delegates to that state’s constitutional convention had no objection to Section 1 of the amendment, abolishing slavery, “but they fear that the second section may be construed to give Congress power of local legislation over negroes, and white men, too, after the abolishment of slavery.”2
The kind of “local legislation” southern lawmakers had in mind was already clear by late 1865, as they busily enacted a series of notoriously repressive “Black Codes” designed to sharply restrict the freedom of the former slaves. In Mississippi, the same convention that reluctantly acknowledged that the federal government had destroyed slavery enacted apprenticeship, vagrancy, and “civil rights” statutes that, among other things, allowed the state to take children from parents said to be unable to care for them, defined as a “vagrant” any black person who had not signed a labor contract, prohibited blacks from renting or leasing land in rural areas, and outlawed gun ownership by black civilians. Georgia prohibited interracial marriage and denied blacks the right to testify against whites. Alabama banned blacks from the state militia, replaced “whipping” with “hard labor” as a legal punishment, and made it a crime for employers to “entice” black workers away from their present employers by offering better wages. Florida retained whipping—“thirty-nine stripes”—as punishment for any black man found guilty of “fornication” with a white woman; the white woman could be imprisoned for up to three months for the same offense. These Black Codes were passed by the same state legislatures that abolished slavery, often at the same time, sometimes in the abolition statute itself. In Florida, the “same ordinance” that grudgingly conceded the destruction of slavery “denies them the right to testify where the interest of the white class are involved.”3
African Americans had very different expectations of what freedom should mean for them. On September 29, the eve of the convention that would reorganize the state’s government for the benefit of whites, North Carolina blacks called their own convention, where they “petitioned for legislation to secure compensation for labor, and enable them to educate their children, and asking for protection for the family relation, and for repeal of oppressive laws making unjust discriminations on account of race or color.” In January of 1866, “[a] convention of colored persons in Augusta advocated a proposition to give those who would write and read well, and possessed a certain property qualification, the right of suffrage.” A petition signed by the “educated colored persons” of Louisville, Kentucky, asked the legislature to grant blacks equal access to the courts, to legitimize marriages, and to “aid in the education of colored children” by the establishment of a public school system “to be controlled by the colored people” and funded by “a fair proportion of the public school fund.”4
DECENT WAGES, SCHOOLS FOR CHILDREN, legally secure marriages, equal justice under law, land for the freed people. These were demands that did not—could not—arise under slavery. Such things were incompatible with a system in which slave laborers were forbidden to own land and their labor was uncompensated, in which it was a crime to teach a slave to read, where slave marriages had no legal standing, and where the privileges and immunities of citizenship did not apply. No one ever debated whether slaves should vote, because slaves were understood to be outside of the “political” community. There was no discussion of slave citizenship because, in a tradition dating back to antiquity, slaves were “non-citizens” by definition. Before any of these issues could arise, slavery had to be destroyed. Only then could the fight for abolition give way to the struggle over the meaning of freedom. “Reconstruction is impossible,” the New York Times observed, “so long as Slavery exists in the land.”5 It made sense that in late 1865, African Americans were asking for farms of their own and demanding decent wages, school for their children, civil rights, and the vote. The long and difficult struggle to abolish slavery had been fought and won. Four million African Americans had been freed. A new question, and with it a new struggle, suddenly loomed: Was freedom enough?
ACKNOWLEDGMENTS
This was a hard book for me to write. I called on an unusual number of friends and colleagues for advice, and I’m anxious to acknowledge their help.
Two generous grants were indispensable: the first from the Dorothy and Lewis B. Cullman Center for Scholars & Writers at the New York Public Library at the outset of my research; the second from the American Council of Learned Societies, at the outset of my writing. My home base, the Graduate Center of the City University of New York, could not have been more supportive; its president, Bill Kelly, and its provost, Chase Robinson, gave me all the time and encouragement I needed.
To my great benefit, I was able to try out some of my ideas by presenting them, twice, to colleagues at the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at Yale University, as well as the history departments at the University of Texas at Austin, Rice University, and the University of Delaware. I gave an earlier version of chapter 2 at a historical society meeting; my thanks to Chandra Manning and Alex Lichtenstein for their criticisms and suggestions. Josh Brown, besides helping me locate some of the images, gave me the opportunity to shock several listeners with some of my heresies at a conference he organized on new approaches to the Civil War. Individually and collectively, Tom Hafner, Anthony Zacchino, Joe Murphy, and Lawrence Cappello have been outstanding research assistants.
I have by now subjected a couple of generations of graduate students to the latest iterations of my book, forcing me to clarify points that were not getting through or to modify those that were not convincing. But three students—Paul Polgar, John Blanton, and Joe Murphy—each of them writing dissertations on aspects of the antislavery movement, have continuously wrestled me through some of the thorniest issues, checking my excesses and clarifying difficult points. Along the way they made writing this book the single most exciting intellectual experience of my life.
Then there are my fellow scholars, to whom I have never been more indebted. Two law professors—Don Herzog, at the University of Michigan Law School, and John Fabian Witt, at Yale Law School—read the manuscript and both offered invaluable criticism. Don’s conceptual brilliance continues to astonish me, even after more than twenty years of friendship. John not only educated me on specific points of the law but allowed me to read his own manuscript on Francis Lieber. Jim Livingston, Jim Goodman, Steve Hahn, and Sean Wil
entz read parts of the manuscript, raised their eyebrows at certain points, but were consistently encouraging. George Forgie and Jim McPherson read the final manuscript; Jim caught several embarrassing errors, and George demanded more evidence and greater clarity for some of the arguments I make. Matt Pinsker gave me free reign to try out my ideas during two consecutive summer seminars we co-taught; his probing questions forced me to clarify my analysis at several critical points. Three friends stand out. In numerous conversations over several years, as well as in his careful reading of most of the text, Eric Foner has been a source of invaluable criticism, good advice, and generous support. I talked the ears off Greg Downs, but he listened patiently and carefully as I shared my discoveries and tried out my ideas. Finally, I could not ask for a better editor than Steve Forman. Enthusiastic from the start, he read each chapter as it came in, raised questions, offered helpful advice, and pressed me to meet my deadlines. I might have finished without Steve, but not for several more years.
