Making the 13th: A Review of the Amendments That Could Have Become the 13th Reveal a Chilling Reality
The debate over the abolition of enslavement could have been ripped out of today’s headlines.
If you do come back, we leave in your midst in many localities of the South a majority of the population black; we make it impossible for you to reside there. Therefore this proposition says to the people of the South, “Fight on; give up never; never heard a proposition of adjustment; but resist until you can resist no longer,” said Hendricks.
A Country Divided
In 1864, the Civil War was in its final year. The United States had drawn dividing lines through geography, culture and ethnicity. The northern state’s economies were no longer reliant upon the labor of enslaved people as were the economies of the southern states. The debate about whether the war was fought to end enslavement or whether it was fought to defend the Union against secession by the southern states waged heavily in the halls of the US Congress. It is an argument that continues to this day. Most can agree that a state’s right to own human beings as free labor was central to the division of the near century old nation.
With each passing year, the narrative about the significance of enslavement in our nation’s history becomes more redacted. In response to the New York Times “1619 Project”, New Gingrich tweeted, “Insisting that slavery is the defining reality of America is simply factually wrong.” In a television interview after the project was published during the 400th anniversary week of the first enslaved African people being brought to English colonial Virginia, he went on to expound, “There were several hundred thousand white Americans who died in the Civil War in order to free the slaves.” His startling contradiction that several hundred thousand European people would willingly lose their lives about African people over a “non-defining” reality, attempts to walk the same twisted path that those who try to defend America’s honor against the indefensible American policy have tried to walk before.
Today’s version of the 245 years of enslavement is that it was “a different time” when people generally accepted enslavement and somehow their consciences were oblivious to the fact that it was wrong to capture, breed and work humans as chattel. It is similar to the way that people are able to reconcile the current criminal justice system or the housing of immigrant children in cages. America has seen movies like this before and it will continue to produce sequels because it is in the DNA of the nation. A read through the 1864 and 1865 debates tell a different story than the one that Newt Gingrich and the “different time” revisionists present. Then, like now there was an awareness of right and wrong. Americans simply made the conscious choice to do what was in their own best interest – some to preserve the benefit that they received from enslavement, others to preserve the benefit that they received from the Union.
The End of a Dreadful Era
One need not look much beyond the Library of Congress to determine how deeply the legacy of enslavement courses through the veins of America. The revised edition of the ancient historical book, “How to Convert a Human to Slave” was largely written in colonial Virginia from 1619 to the early 1700’s and was replicated throughout the subsequent colonies. After the founding of the United States, there were few single issues that captured the Congressional agenda longer and more intensely than forcing, keeping or returning Indigenous and African people to enslavement.
On April 8, 1864, the US Senate voted to approve the 13th amendment. The same vote in the House took another nine months on January 31, 1865. The 13th Amendment was sent to the states in December 1865 for ratification and the “peculiar” institution that had framed the history of a nation came to its end.
Three Days on the Road to Freedom
The morning of April 5, 1864 appeared to start as any other morning in the Civil War era Congress. Nestled quietly in the record of legislative talk after vacating the land and removal of Indigenous people and taking possession of churches and places of worship by the War Department, the Senate continued its discussion on the recommended amendments from the Senate Judiciary Committee for the 13th amendment. Kentucky Senator, Garrett Davis proposed several motions, some made it to a vote, others did not. One that did make it to vote was, “No negro, or person whose mother or grandmother is or was a negro, shall be a citizen of the United States, or be eligible to any civil or military office, or to any place of trust or profit under the United States”. It was voted down 32 to 5, whereupon his fellow Kentucky Senator, Lazarus W. Powell forwarded the motion to make an amendment that, “No slave shall be emancipated by this article, unless the owner thereof shall be first paid the value of the slave or slaves so emancipated.” It was also voted down, 34 to 2 and the Senate adjourned for the day.
History Speaks Volumes
Chairman of the Senate Judiciary Committee, Lyman Trumbull of Illinois attempted to set the tone for the day by urging the Senate not to further delay the deliberation on the matter. “It is the most important measure that the American Congress has ever had under consideration. It is a proposition forever to abolish slavery throughout the United States, and to prevent its reestablishment. It is a question believed, as I suppose, by most of us to lie at the foundation of this rebellion…It is the great question”.
What ensued was an impassioned oratory that went on for pages in the record by the Senator from Maryland, Reverdy Johnson. “I am fully conscious of the great importance of the measure to which I am about to speak. Indeed, in that respect it can not be exaggerated. To manumit at once nearly four million slaves, who have been in bondage, by hereditary descent during their whole lives, and who, because they were in bondage, and as one of the consequences of the condition in which they were placed, have been kept in a state of almost absolute ignorance, is an event of which the world’s history furnishes no parallel.”
Despite the fact that many had held enslaved people, he vehemently defended the founding fathers of America and its Constitution but decried that the American leadership of the Civil War era had parted with their forebearers. “If there were any humble in the great body which formed the Convention that recommended the Constitution of the United States to the adoption of the American people – who would not have been shocked if he had been told that there was a right to make a slave of any human being. The advocates of slavery now in our midst – I do not mean here, but in the South and some of the pulpits in the North – say that slavery of the black race is of divine origin.”
Inability to Convey Wealth Has A Perpetual Effect
The next day, April 6th the Senate “resumed the consideration of the joint resolution (S.No.16) proposing amendments to the Constitution of the United States, the pending question being on the amendment reported by the Committee on the Judiciary”. The question of whether or not to continue to enslave 4 million people who had been in bondage for more than 240 years was the topic at hand.
That day, it was the Senator from Iowa, James Harlan’s turn to have the floor. “And yet, according to the matured judgement of these slave States, this guardianship of the parent over his own children must be abrogated to secure the perpetuity of slavery. But again, it abolishes necessarily the relation of person to property. It declares the slave to be incapable of acquiring and holding property, and that this disability shall extend to his offspring from generation to generation throughout the coming ages. We sometimes shed tears over the misfortunes of men, and when by floor or storm or fire they are robbed of their earthly possessions contributions are made to enable them to start again in their accustomed business pursuits; but the Senator who votes to perpetuate slavery votes not only to sweep away every shred of property that four million people can possibly hold, but he votes to destroy their capacity to acquire it and hold it and to impose this disability on their posterity forever. If successful, in perpetuating it, he becomes more disastrous to this multitude of people than storm and flood and fire; more disastrous than the sirocco or monsoon of the desert or the unclaimed pestilence.” The 13th amendment as we know it today was born that afternoon, but it would take another two days for the final vote to take place.
The Value of European Life is Greater than the Value of African Life
On the next day April 7th, Thomas A. Hendricks, the Senator from Indiana weighed in on the debate over whether or not to hold people in bondage for their natural lives. “I suppose the gratification of the Senator arises not from the effects of this calamitous war upon the people of his own race. He knows there is no happiness, no prosperity to come to them from that. He knows that there is but misery, death, destruction, embarrassment, debt, bankruptcy to the men, women and children of his own race. But I suppose he is gratified when he contemplates the effect upon four million negros in the South. Is he sure that the four millions who, at the commencement of this war, had masters to take care of them, if turned loose and made dependent upon their own efforts for their subsistence and their prosperity, will be happier after that state of things than they were when they were taken care of by their masters in the South? I, am not sure that it is going to be so.” He goes on to compare weigh the value of the misfortune between the groups. “But sir, with all the calamities and misfortunes that have befallen twenty-six million white people, the Senator is gratified when he contemplates the happiness that may possibly by chance come upon four million negroes.”
He drew to a close with a declaration of a permanent inferiority of people of African descent. “It may be preached; it may be legislated for; but there is that difference between the two races that renders it impossible. If they are among us as a free people, they are among us as an inferior people. The Senator from Delaware (Mr. Saulsbury) most happily expressed, that this difference between the races is not chargeable upon us; it is not chargeable upon our institutions; it is not chargeable upon the conditions upon which these people have been kept for many generations in the past; it was the pleasure of God to mark that difference upon the races; a different intellect, in tastes, in all the qualities that enable a race to go upward and onward, which God himself has made and impressed upon them.”
Above All Maintain Political Majority and Control
Much of the concern was about statistical voting majorities in local and state elections. “And the Senate propose to say to the people of the South, “You cannot come back upon the basis of the Constitution as it was; you cannot come back and enjoy your institutions as they were. If you do come back, we leave in your midst in many localities of the South a majority of the population black; we make it impossible for you to reside there. Therefore this proposition says to the people of the South, “Fight on; give up never; never heard a proposition of adjustment; but resist until you can resist no longer,” said Hendricks.
A New Birth for A New America
The attention on the final day of deliberations Friday, April 8, 1864 was turned in large part to history and constitutional law beyond the borders of the United States. The Senator from Massachusetts, Charles Sumner invoked the teachings of Italian diplomat, Machiavelli. “He (Machiavelli) affirms that the destruction of Rome by the Gauls was necessary that the republic might have new birth, and thus acquire new life and new virtue, all of which ensued when the barbarians had been driven back. The illustration, perhaps, is fanciful, but there is wisdom in the counsel, and now the time has come for its application. The Gauls are upon us, not however, from a distance but domestic Gauls, and we, too, may profit by the occasion to secure for the Republic a new birth, that it may acquire a new life and new virtue.” He reminded his colleagues of the founding documents, “Happily, in our case the way is easy, for it is only necessary to carry the Republic back to its baptismal vows, and the declared sentiments of its origin. There is a Declaration of Independence; let its solemn promises be redeemed. There is the Constitution; let it speak, according to the promises of the Declaration.” The amendment was proposed in the previously proposed form from April 6th with two sections by the Senator from Missouri, John B. Henderson. Charles Sumner proposed a revised “simpler” amendment which he believed stated the sections more concisely.
A Last Minute Substitute Amendment
In the 11th hour, Willard Saulsbury, the Senator from Delaware offered previously proposed amendments as a substitute to the proposed amendments to Constitution for Article 13 that included some twenty sections including sections that would ensure a perpetual imbalance of power and leave the threat of involuntary servitude hanging over the heads of Indigenous and African people forever:
SECTION 5 — Persons held to Service or Labor for life, in any State under the Laws thereof, may be taken into any Territory of the United States south of north latitude 36 degrees 30′, and the right to such Service or Labor shall not be impaired thereby, and the Territorial Legislature thereof shall have the exclusive right to make and shall make all needful rules and regulations for the protection of such right and also for the protection of such Persons; but Congress or any Territorial Legislature shall not have power to impair or abolish such right of Service in the Said Territory while in a Territorial condition without the consent of all the States, south of Said Latitude, which maintain such Service.
SECTION 6 — Involuntary Servitude, except for crime, shall not be permanently established within the district set apart from the Seat of government of the United States; but the right of sojourn in such District with persons held to Service or Labor for Life, shall not be denied.
SECTION 7 – When any territory of the United States south of north latitude 36 degrees 30′ shall have a population equal to the Ratio of Representation for one Member of Congress, and the people thereof shall have formed a Constitution for a Republican Form of Government, it shall be admitted as a State into the Union, on an equal footing with the other States; and the people mayo in such Con-
SECTION 8 – The present right of representation in Section 2, Article l, of this Constitution, shall not be altered without the consent of all the States maintaining the right to Involuntary Service or Labor south of Latitude 36 degrees 30′, but nothing in this Constitution or its Amendments shall be construed to deprive any State south of Said Latitude 36 degrees 30′ of the right of Abolishing Involuntary Servitude at its will.
SECTION 9 – The regulation and control of the right to Labor or Service in any of the States south of Latitude 36 degrees 30′ is hereby recognized to be exclusively the right of each State within its own limits; and this Constitution shall not be altered or amended to impair this right of each State without its consent; Provided, This Article shall not be construed to absolve the United States from rendering assistance to suppress Insurrections or Domestic Violence, when called upon by any State, as provided in section 4, Article 4, of this Constitution.
SECTION 10 — No State shall pass any law in any way interfering with or obstructing the recover of Fugitives from Justice, or from Labor or Service, or any Law of Congress made under Article 4, Section 2, of this Constitution; and all laws in violation of this Section may, on complaint made by any person or State, be declared void by the Supreme Court of the United States.
SECTION 11 — As a right of comity between the several States south of latitude 36 degrees 30’the right of transit with Persons held to Involuntary Labor or Service from one State to another shall not be obstructed, but such Persons shall not be brought into the States north of said Latitude.
SECTION 12 – The traffic in Slaves with Africa is hereby forever prohibited on pain of death and the forfeiture of all the rights and property of persons engaged therein; and the descendants of Africans shall not be citizens.
SECTION 13 – Alleged Fugitives from Labor or Service, on request, shall have a Trial by Jury before being returned.
SECTION 14 — Alt alleged Fugitives charged with crime committed in violation of the law of a State shall have the right of Trial by Jury, and if such Person claims to be a citizen of another State, shall have a right of appeal or of a writ of error to the Supreme Court of the United States.
SECTION 15 – All acts of any inhabitant of the United States tending to incite Persons held to Service or Labor to Insurrection or acts of Domestic Violence, or to abscond are here try prohibited and declared to be a penal offense and all the Courts of the United States shall be open to suppress and punish such offenses at the suit of any citizen of the United States or the suit of any “State”.
SECTION 16 — All conspiracies in any State to interfere with lawful righ6 in any other State, or against the United States, shall be suppressed; and no State, or the people thereof, shall withdraw from this Union without the consent of three-fourths of all the States, expressed by an Amendment proposed and ratified in the manner provided in Article 5 of the Constitution.
SECTION 17 — Whenever any State wherein Involuntary Servitude is recognized or allowed shall propose to abolish such Servitude, and shall apply for Pecuniary assistance therein, the Congress may, in its discretion, grant such relief not exceeding one hundred dollars for each person liberated But, Congress shall not propose such Abolishment or relief to any State.
Congress may assist Free Persons of African decent to emigrate and colonize Africa.
SECTION 18 — Duties on Imports may the imposed for Revenue; but shall not the excessive or prohibitory in amount.
SECTION 19 – When all of the several States shall have Abolished Slavery, then and thereafter
Slavery or Involuntary Servitude, except as a punishment for crime, shall never be established or tolerated in any of the States or Territories of the United States, and they shall be forever Free.
SECTION 20 – The provisions of this Article relating to Involuntary Labor or Servitude shall not be altered without the consent of all the States maintaining such Servitude
It found no agreement.
By a vote of 38 “yays” and 6 “nays”, the vote to abolish enslavement was passed. “I rise simply to say that I now bid farewell to any hope of the reconstruction of the American Union,” said Senator Saulsbury.