THE THIRTEENTH AMENDMENT TO THE CONSTITUTION

Donn Piatt, meeting William H. Seward on the street on the morning immediately after the issuing of the preliminary proclamation of emancipation, complimented him for his share in the act, whereupon the following colloquy ensued:

"Yes," said Seward, "we have let off a puff of wind over an accomplished fact."

"What do you mean, Mr. Seward?"

"I mean that the emancipation proclamation was uttered in the first gun fired at Sumter and we have been the last to hear it. As it is, we show our sympathy with slavery by emancipating slaves where we cannot reach them and holding them in bondage where we can set them free."[70]

Seward did not say this in a censorious spirit, but what he did say was true. The proclamation applied only to states and parts of states under rebel control. It did not emancipate any slaves within the emancipator's reach. Whether it freed anybody anywhere was a matter of dispute. What its legal effect would be after the war should cease, no one could say. Moreover, if the President had legal authority to issue the proclamation, then he, or a successor in office, could revoke it.

The Constitution had not given to the Federal Government power to emancipate slaves. The proclamation did not purport to rest upon any constitutional power, but upon war powers solely. But war powers last only while war lasts, and when it comes to an end, all sorts of people have all sorts of opinions as to the validity of acts done under them.

Public opinion at the time was keenly alive to doubts regarding the President's powers in this particular. Congress was flooded with petitions calling for action to confirm and validate the proclamation, but the way was beset with difficulties. Should the Constitution be amended, or would an act of Congress suffice? If the Constitution should be amended, should it abolish slavery everywhere or only in the places designated by the President? Should loyal slave-owners be compensated, as Lincoln desired? What were the chances of getting such an amendment ratified by three fourths of the states? And for this purpose should the rebel states be counted as still in the Union? If so, the requisite number might not be obtained.

The first resolution offered in Congress for such an amendment of the Constitution was proposed in the House on the 14th of December, 1863, by Representative James F. Wilson of Iowa, in these words:

Section 1. Slavery being incompatible with a free government is forever prohibited in the United States; and involuntary servitude shall be permitted only as a punishment for crime.

Section 2. Congress shall have power to enforce the foregoing section by appropriate legislation.

On the 13th of January, 1864, Senator Henderson, of Missouri, offered a resolution to amend the Constitution by adding thereto the following article:

Slavery or involuntary servitude, except as a punishment for crime, shall not exist in the United States.

These resolutions were referred to the Judiciary Committees of the respective houses.

On the 10th of February, Trumbull reported the Henderson Resolution from the Committee on the Judiciary, with an amendment in the nature of a substitute in the following terms:

Article XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

The phraseology followed pretty closely that of the Ordinance of 1787. Trumbull adopted it because it was among the household words of the nation. To become effective as a part of the Constitution, this article required the votes of two thirds of each branch of Congress and ratification by the legislatures of three fourths of the States.

Presenting the resolution to the Senate, Trumbull said that nobody could doubt that the conflict then raging, and all the desolation and death consequent thereon, had their origin in the institution of slavery; that even those who contended that the trouble was due to the agitators and abolitionists of the North must admit that if there were no slavery there would be no abolitionists. So also it must be admitted that if there had been no slavery there would have been no secession and no civil war. All the strife that had ever afflicted the nation, or all that could be considered menacing to the country's peace, had had its source in that institution. Various laws had been passed by Congress to give freedom to slaves of rebel owners and even these laws had not been executed properly. The President of the United States had issued a preliminary proclamation in September, 1862, and a final one in January, 1863, declaring all slaves under rebel control free, but not those under our control. The legal effect of such a proclamation had been a matter of dispute. Some persons held that the President had the constitutional power to issue it and that all the slaves designated were free, or would become so whenever the rebellion should be crushed; while others contended that it had no effect either de jure or de facto. It was the duty of the lawmaking power to put an end to this uncertainty by some act more comprehensive than any that had yet been adopted. Would a mere act of Congress suffice? It had been an axiom of all parties from the beginning of the Government that Congress had no authority to interfere with slavery in the states where it existed. We had authority, of course, to put down the enemies of the country and the right to slay them in battle; we had authority to confiscate their property; but did that give us authority to slay the friends of the Union, to confiscate their property, or to free their slaves? In his opinion the only conclusive and irrepealable way to make an end of slavery was by an amendment of the Constitution, and the only practical question remaining was whether the resolution recommended by the committee could secure a two-thirds vote in Congress and the concurrence of three fourths of the states. There were thirty-five states, including those in rebellion, and two territories about to become states. Presumably the affirmative votes of twenty-eight states would be required for ratification.

In this speech Trumbull gave public expression to his feelings regarding the feeble prosecution of the war to which he had given private expression in the letters to friends referred to in the preceding chapter. He said:

I trust that within a year, in less time than it will take to make this constitutional amendment effective, our armies will have put to flight the rebel armies. I think it ought to have been done long ago. Hundreds of millions of treasure and a hundred thousand lives would have been saved had the power of this republic been concentrated under one mind and hurled in masses upon the main rebel armies. This is what our patriotic soldiers have wanted and what I trust is now soon to be done. But instead of looking back and mourning over the errors of the past, let us remember them only for the lessons they teach for the future. Forgetting the things which are past, let us press forward to the accomplishment of what is before. We have at last placed at the head of our armies a man in whom the country has confidence, a man who has won victories wherever he has been, and I trust that his mind is to be permitted, uninterfered with, to unite our forces, never before so formidable as to-day, in one or two grand armies, and hurl them upon the rebel force.[71]

The feeling here expressed by Trumbull was the prevailing sentiment at Washington at that time, even in President Lincoln's Cabinet. Both Gideon Welles and Edward Bates shared it. Welles wrote:

In this whole summer's campaign I have been unable to see or hear or obtain evidence of power or will or talent or originality on the part of General Halleck. He has suggested nothing, decided nothing, done nothing but scold and smoke and scratch his elbows. Is it possible that the energies of a nation should be wasted by the incapacity of such a man?

When Welles said to the President that he had observed the "inertness if not incapacity of the General-in-Chief, and had hoped that he [the President] who had better and more correct views would issue peremptory orders," Lincoln replied that it was better that he, who was not a military man, should defer to Halleck, rather than Halleck to him.

Additional light is thrown by an entry in Hay's "Diaries"[72] under date April 28, 1864, where Lincoln says:

When it was proposed to station Halleck in general command, he insisted, to use his own language, on the appointment of a General-in-Chief who should be held responsible for results. We appointed him, and all went well enough until after Pope's defeat, when he broke down,—nerve and pluck all gone,—and has ever since evaded all possible responsibility, little more, since that, than a first-rate clerk.

General Francis V. Greene, reviewing the war as a whole, says that

If Lincoln had placed Grant in command of the Western armies in July, 1862, when Halleck was made General-in-Chief, instead of in October, 1863, it would have probably shortened the war by a year.[73]

This opinion is concurred in by General Grenville M. Dodge, one of the surviving major-generals of the Civil War,[74] and I imagine that it will not be disputed by any military man at the present day. These citations show that the opinions held by Trumbull, as to the inefficiency of the directing force of the Union armies, up to the time when Grant was called to take command at Washington, were not those of a mere fault-finder and backbiter.

A notable speech in favor of the anti-slavery amendment was made by Henderson, of Missouri, who was himself a slave-owner. The most impressive speech made in either branch of Congress, however, was that of Senator Reverdy Johnson, of Maryland. The fact that he represented a slaveholding State could not fail to add force to any argument he might make in support of the measure, but the argument itself, both in its moral and its legal aspects, was of surpassing merit. It deserves a high place in the annals of senatorial eloquence.

The constitutional amendment was under debate in the Senate until the 8th of April, 1864, when it was passed by a vote of 38 to 6. The negative votes were the two from Delaware, two from Kentucky, and those of Hendricks, of Indiana, and McDougall, of California. It then went to the House, where it was under consideration till the 15th of June, when it failed of passage by a vote of 93 to 65, not two thirds. The Democrats generally voted in the negative. A second attempt to pass it was made in the House on February 1, 1865, this time successfully, the yeas being 119 and the nays, 56. There was an extraordinary scene in the House when the final vote was taken. It is described by George W. Julian, in his "Recollections" (page 250), thus:

The time for the momentous vote had now come, and no language could describe the solemnity and impressiveness of the spectacle pending the roll-call. The success of the measure had been considered very doubtful, and depended upon certain negotiations, the result of which was not fully assured, and the particulars of which never reached the public.[75] The anxiety and suspense during the balloting produced a deathly stillness, but when it became certainly known that the measure had prevailed, the cheering in the densely packed hall and galleries surpassed all precedent and beggared all description. Members joined in the general shouting, which was kept up for several minutes, many embracing each other, and others completely surrendering themselves to their tears of joy....

The ratification of the amendment was announced by the Secretary of State on the 18th of December, 1865. Three states, South Carolina, Alabama, and Florida, when they ratified it, passed resolutions expressing their understanding that the second section did not authorize Congress to legislate on the political status or civil relations of the negroes, but merely to confirm and protect their freedom. On November 1, 1865, Governor Perry, of South Carolina, wrote to President Johnson, saying that his state had abolished slavery in all good faith and never would wish to restore it again, but that his people feared that the second section might be construed to give Congress local power over legislation respecting negroes and white men in the state of freedom. To this letter Secretary Seward replied that the second section was "really restraining in its effect instead of enlarging the powers of Congress." By this he meant that it restrained Congress to the single subject of slavery. It did not give citizenship or civil rights to the freedmen. The legislature of South Carolina accordingly ratified the amendment on the 13th of November, and put on record the letter of Seward as the official interpretation of this clause by the Federal Executive. Alabama did substantially the same on the 2d of December and Florida on the 28th of December. Seward's interpretation of the second section of the amendment turned out to be correct, but many years of doubt and gloom were to pass before a decision upon it was reached in the Supreme Court.

From what has gone before it appears doubtful whether President Lincoln's proclamation of emancipation freed any slaves legally. Its immediate value was not so much in its effect upon the blacks as upon the whites. It liberated millions of the latter from bondage to a false philosophy and a monstrous social creed and made possible and necessary the adoption of the Thirteenth Amendment. To Senator Trumbull belongs the distinction of having traced its lines and this is his title to immortality.

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