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Abraham Lincoln and the Thirteenth Amendment that Wasn’t

In the throes of the secession winter of 1860-61, a congressman from Ohio put forward a Constitutional amendment that would not only preserve the national legality of slavery, but would also prohibit the adoption of any future anti-slavery amendments. Inspired by the hope that this might yet slake the South’s thirst for secession, the amendment gained broad support from the border states, as well as many Republicans whose own positions had not long before argued for abolition. How did this attempt at appeasing the slave states at the seeming expense of the slaves themselves nearly become part of the Constitution? Why would emancipationists like William Seward lend their strength to such a measure? And most importantly, what might have happened if this amendment had been adopted?

James Buchanan photographed by Brady in 1844.
James Buchanan photographed by Brady in 1844.

Before (But Because of) Lincoln

Even before the election of Lincoln in November of 1860, there were calls from the South – mostly South Carolina – to plan for secession and war. Secessionists and slaveholders believed that “the issue before the country is the extinction of slavery,” and that with Lincoln’s assured win the Southern states would now be “in the crisis of their fate.” 1“What Shall the South Carolina Legislature Do?” Charleston Mercury, November 3, 1860. Though South Carolina would make immediate moves for a secession convention, it would take over a month and a half for it to vote upon their withdrawal from the United States. In the midst of these proceedings, outgoing President James Buchanan gave his last speech before Congress.

He suggested that an “explanatory amendment” be adopted to the “final settlement of the true construction of the Constitution” in regard to slavery.” His proposed amendment actually covered three areas of contention. First, unlike the Constitution itself, the amendment would recognize that the slaves were indeed property (rather than people held in service). Second, it would allow slavery to extend into all territories, regardless of location. Lastly, it would take a strikingly anti-states rights bent as would have barred the rights of individual states to pass laws “impairing or defeating” the enslaver from tracking down his fugitive slave. 2James Buchanan, “Fourth Annual Message to Congress on the State of the Union,” December 3, 1860.

This proposal was nothing but appeasement and practically nobody believed it would ever pass. But unlike the myriad other proposals of compromise, Buchanan’s would have the power of both the President and the Constitution behind it. Still, it went nowhere, and other proposals, such as the Crittenden Compromise, were attempted.

With so many ideas flying quick and free, President-Elect Lincoln, still in Springfield, Illinois, knew he had to come up with one of his own. His compromises did not take the form of an amendment, but probably had more to do with a vow to tow the line on the Fugitive Slave Law. When New York Senator William Seward read them, however, they immediately became lost to history. Seward scrapped Lincoln’s proposals and wrote up a few of his own. 3Michael Vorenber Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge University Press, 2001) 20.

While Lincoln had always been clear about opposing any extension of slavery into the territories, Seward proposed the New Mexico Plan, which would allow a huge swath of western land to be admitted as a slave state with anything north of the New Mexico line being free. This idea met with resounding approval in the Senate, and, when combined in the House with additions by Ohio’s Thomas Corwin, did very well. Along with the New Mexico Plan, it proposed a Constitutional amendment that assured perpetual slavery in the slave states. 4Lawrence M. Denton William Henry Seward and the Secession Crisis: The Effort to Prevent Civil War (McFarland & Company, 2009) 73-74.

But like other compromises, this too sputtered to a halt. From late December to early February, seven states seceded. In early December, when Buchanan made his speech and Seward proposed his ideas, most believed the South to be bluffing. After all, they had threatened disunion a multitude of times before, why, they wondered, might this time be any different?

Thomas Corwin, 1850.
Thomas Corwin, 1850.

Corwin’s Amendment

Across these weeks, committees in both the House and Senate met to debate various compromises. By March 2nd, with seven slave states seceded, they had settled upon one. With Congress now devoid any Deep South representation, they decided upon a proposal that had morphed and grown from that constructed by Seward based upon the refused suggestions of Lincoln. With help from Charles Frances Adams and ultimately proposed in the House by Thomas Corwin, this amendment would seem to be the most drastic of all measures: 5Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment 218-219.

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” 6U.S. Statues at Large, Vol. 12, (1863) 251.

This odd bit of legislation seemed, at first, confusing. If the Constitution was changed to prohibit Congress from passing anti-slavery laws, couldn’t Congress simply amend the Constitution to once again allow it? On the other hand, wasn’t the ultimate conclusion of the Corwin Amendment that the entire Constitution could be amended except when it came to slavery? Many, such as Stephen Douglas of Illinois, understood the latter to be true – “it thus makes it unalterable.” 7David P. Currie The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (University of Chicago Press, 2005) 252.

Those problems, unlike the problems happening all around them, would simply have to be left for future generations. The House passed the amendment on March 1, 1861. The Senate did the same two days later. Though it was not required, President Buchanan signed the bill. Now all that was left was for the individual states to pass it and Coriwin’s would become the Thirteenth Amendment to the Constitution.

Lincoln by Brady, 1861.
Lincoln by Brady, 1861.

Lincoln Approves the Measure

In his inaugural address, given on March 4, 1861, Lincoln brought up the amendment, explaining that he had “no objection to its being made express and irrevocable.” He figured that it was “now implied constitutional law,” it being approved by Congress, and would make no fuss. 8Abraham Lincoln “First Inaugural Address of Abraham Lincoln”, March 4, 1861.

This is quite a shocking admission, especially from a figure who would go on to be known as the Great Emancipator. Hadn’t he proposed, when he was a member of the House in Washington, that slavery be outlawed in the nation’s capital? 9Abraham Lincoln Collected Works, Vol. 2 (Rutgers University Press, 1953) 20-22. Had he not called slavery “a gross outrage on the law of nature”? 10Ibid. 245. Both quotes used are cherry-picked to show that an argument might have been made that Lincoln was fully anti-slavery. Such arguments were certainly made by the Democratic press in the lead up to the election of 1860. So then how could Lincoln support a Constitutional amendment that could very well lead to slavery as a national unalterable institution?

Though Lincoln hoped that slavery would ultimately be defeated, he saw that the Constitutional route was not the way for it to happen. Many abolitionists, Lincoln not among their number, came to believe that the United States Constitution had no authority over slavery. It was the states, they held, and not the Federal government, that determined whether slavery was legal or illegal.

Lincoln, on the other hand, believed that the Constitution absolutely sanctioned slavery. He, along with many Republicans, saw that they could do nothing, as he said during the debates with Douglas, “directly or indirectly, to interfere with the institution of slavery in the States where it exists.” 11Abraham Lincoln Collected Works, Vol. 3 (Rutgers University Press, 1953) 402. Lincoln quoted this line in his First Inaugural, as well. Not a single slave could be emancipated by any words that had been penned by the framers of the nation. This waas why Lincoln had no opposition to Corwin’s Amendment. That Corwin wished to do little more than restate this conclusion, in Lincoln’s mind, changed nothing at all.

William Seward
William Seward

The Plan – Arrest the Extension of Slavery

Lincoln, as stated, believed that slavery simply could not legally be abolished by any interpretation of the Constitution. And yet, few Republicans were bashful in their anti-slavery ideals. This also went back to the Constitution. Just as the document could not be used to abolish slavery, it could not be used to stop slavery from dying. Corwin’s Amendment did not change this.

It was on these foundations the plan was constructed. Corwin’s Amendment, unlike Seward’s New Mexico Plan, did not touch the territories. Though the Federal government could not abolish slavery in the states, it would be well within the Constitution to abolish it in Federal territories, which did not yet have the rights of states. 12The Dred Scott decision forbade Congress from restricting slavery in the territories, but Lincoln was fairly certain that the decision could be overturned. He believed, unlike Chief Justice Taney, that the Federal government did indeed have the final say over such laws in the territories. See Lincoln’s Collected Works, Vol. 2, p401: June 26, 1857. “But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this.” Here.

Since the 1840s, anti-slavery politicians believed they could, as put by Columbus Delano of Ohio, “establish a cordon of free States that shall surround you [the Slave States]; and then we will light up the fires of liberty on every side, until they melt your present chains, and render all your people free.” 13Congressional Globe, 29th Congress, 2nd Session, 281. A decade later, this theory was supported by Pennsylvania’s Thaddeus Stevens. “Confine this malady within its present limits,” he implored. “Surround it by a cordon of freedom so that it cannot spread, and in less than twenty-five years every slaveholding State in the Union will have on it statue books a law for the gradual and final extinction of slavery.” 14Thaddeus Stevens Speech, February 20, 1850. As quoted in The Life of Staddeus Stevens by James Albert Woodburn (The Bobbs-Merril Company, 1913) 96. This was once more given voice in early 1860 when Henry Wilson, a Senator from Massachusetts, threatened to “surround the slave States with a cordon of free States.” This would, “arrest the extension of slavery, and rescue the Government from the grasp of Slave Power.” 15Henry Wilson Territorial Slave Code: Speech of Hon. Henry Wilson, of Massachusetts Delivered in the Senate, January 25, 1860. Can be read here. Corwin’s Amendment did not address this plan.

The reason for slavery’s strength, both institutionally and politically, was due to its expansion. Since the founding of the nation, though slavery had mostly died out in the Northern states, it had expanded west into Alabama, Mississippi, Tennessee, Kentucky, Missouri, Arkansas, and Texas. Without this expansion, it would have died, as Lincoln termed it far back in 1845, “a natural death.” 16Abraham Lincoln Collected Works, Vol. 1 (Rutgers University Press, 1953) 348. The full quote is: “I hold it to be a paramount duty of us in the free states, due to the Union of the states, and perhaps to liberty itself (paradox though it may seem) to let the slavery of the other states alone; while, on the other hand, I hold it to be equally clear, that we should never knowingly lend ourselves directly or indirectly, to prevent that slavery from dying a natural death—to find new places for it to live in, when it can no longer exist in the old.”

Twenty years before Lincoln took office, this natural death seemed impossible. Over those two decades, slavery grew and expanded. 17According to Census records, there were 2,487,355 slaves in 1840, and 3,953,760 by 1860. There was almost no possibility of creating this “cordon of free states” with the political power of the slave states still within the Federal government.

As the secessionist rhetoric heated up, the slave states were warned by southern Unionists such as Robert Jefferson Breckinridge of Kentucky, that “the profitable continuance of negro slavery anywhere on this continent… depends absolutely upon the existence of a common national government embracing both the Free States and the Slave states.” 18Robert Jefferson Breckinridge The Civil War: Its Nature and End Printed as a pamphlet in 1861. As appearing in Southern Unionist Pamphlets and the Civil War ed. by John L. Wakelyn (University of Missouri Press, 1999) 33.

But by the time Lincoln took the podium in March of 1861, seven of the most pro-slavery slave states were gone. When he reiterated that he had no “lawful right” or “inclination” to “interfere with the institution of slavery in the States where it exists,” he was simply being frank. 19Abraham Lincoln Collected Works, Vol. 4 (Rutgers University Press, 1953) 263. He had no Constitutional right to end slavery, and thus had no inclination to go that route whether or not Corwin’s Amendment was ultimately made part of the Constitution.

In March 24th, 1862, a bill was introduced “to render freedom national, and slavery sectional.” This was altered in committee, making it a bill to “prohibit slavery in the territories.” It was debated for a few months, when finally in June, it was passed by a 28 to 10 vote in the Senate and a 72 to 38 vote in the House. Lincoln signed it into law on June 19th, and finally slavery was outlawed in the territories and the “cordon of freedom” was in place. 20Statutes at Large from December 5, 1859 to March 3, 1863. Edited by George P. Sanger (Boston: Little Brown and Company, 1863) 432. The vote count comes from Cyclopædia of Political Science, Vol. III, edited by John Joseph Lalor (New York: Maynard, Merrill, & Co., 1899) 1117. Corwin’s Amendment, even if ratified by the states and adopted into the Constitution, would have no effect on the stranglehold around the neck of slavery.

Lincoln's First Inauguration
Lincoln’s First Inauguration

The Amendment’s Fate

By the time that slavery was outlawed in the territories, Corwin’s Amendment had been ratified by three states. Ohio ratified it in May of 1861 by only a majority of four votes, hoping that this might offer some compromise to the South. In January of 1864, Ohio would rescind their support as the war removed the necessity for such a measure. It was, held their resolution, “an impediment to the free action of Congress in the present exigencies of the country as well as a misrepresentation of the public sentiment of the people of Ohio.” 21George Henry Porter Ohio Politics During the Civil War Period (New York, 1911) 68, 122. Maryland followed suit, ratifying it on January 10, 1862. The Illinois legislature approved it on February 14, that same year, but at that time, they were in a state Constitutional Convention, and it probably was not valid. 22Proposed Amendments to the Constitution ed. by Herman Vandenberg Ames (Washington: Government Printing Office, 1897) 196.

Curiously, Maryland’s passage of the Corwin Amendment was rescinded as well, but much later than Ohio’s. In January of 2014, the “Rescission of Maryland’s Ratification of the Corwin Amendment” was proposed in the state Senate, passing 47 to 0. In the state House, it passed 136 to 0. Finally, on May 5, 2014, Maryland’s support for Corwin’s Amendment was officially rescinded. 23Rescission of Maryland’s Ratification of the Corwin Amendment to the United States Constitution Sponsored by Senator Frosh. Here.

The Corwin Amendment, as Lincoln knew, and as the slave states quickly figured out, would have changed little. Slavery needed to expand into the territories to survive, and this amendment concerned itself only with states where slavery already existed. As far as compromises went, the South had refused others that were much more appeasing to slavery’s existence. In light of what actually became the Thirteenth Amendment, Corwin’s stands as a glaring curiosity of that speculative “what-if” scenario. When sussed out, however, its ratification would have effected the state-run institution of slavery not at all.

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Has always had a love for history and the Civil War. During the 150th anniversary of the war, writing the Civil War Daily Gazette blog, which published daily for nearly five years. Wishing to continue the exploration, following the Charleston murders in 2015, and the activism around removing the Confederate Battle Flag, decided to dig a little deeper into the causes and repercussions of the War.