FROM SLAVE TO SEPARATE BUT EQUAL ‑ LESSONS OF THE CIVIL WAR

I

At the Constitutional Conven­tion in 1787, Colonel Mason, a dis­tinguished mem­ber from Virginia issued a warning with regard to slavery in the Constitu­tion: “As nations cannot be rewarded or pun­ished in the next world, they must be in this.  By an inevi­table chain of causes and effects, Provi­dence punishes national sins by na­tional calamities.”

The national sin Colo­nel Mason referred to was slavery or to be pre­cise American Protestant Slav­ery.  Slavery had existed in one form or another since Bib­lical times.  Yet black slavery was al­ready being considered a na­tional sin.  What had made American Protestant Slavery unique in world history?  How did it evolve in the American setting and why was it included in the Constitution of the United States inspite of Colonel Mason’s reserva­tions?

Almost 73 years after the Con­stitu­tional Convention the Civil War started in 1861 on this very issue.  Without doubt it qualified as a national calamity because more than half a million Whites would per­ish in the conflict and many more would be wounded.  More Americans died in the Civil War than all the other wars in which the United States was later involved including the Vietnam War.

After the Civil war ended Jef­ferson Davis the President of the Confederate States, would claim that slavery “was in no wise the cause of the conflict”.  Histo­rians also claim that slavery as the causal factor for the Civil War has not been demonstrated.  Yet without American Protestant Slavery there would have been no Civil War.

That slavery adversely affected the black population is generally acknowl­edged.  What American Protes­tant slavery did to the Whites is rarely discussed.  Robert E. Lee, the Commander‑in‑Chief of the Con­federate Army of Northern Virginia noted that slav­ery was, “a moral and po­litical evil in any country.  I think it, however, a greater evil to the white than to the black race.”

About the immorality of slavery and its consequences for the nation Thomas Jefferson said, “I tremble for my country when I reflect that God is just: that this justice cannot sleep for ever: that con­sidering numbers, nature and natural means only, a revolution of the wheel of for­tune, an exchange of situation is among possible events: that it may become proba­ble by supernatu­ral interference !”

II

Why American Protestant slavery was unique and immoral can be ascertained by comparing it with the Catholic slavery code as practiced by the French in Loui­siana before it became a part of the Unit­ed States by Jefferson’s Louisiana pur­chase of 1803.  The basic difference be­tween the two forms of slavery was that Prot­estant slav­ery denied the humanity of the blacks while Catholic slavery conced­ed their humanity even though they contin­ued to be slaves for life.  These two forms of slavery involved different as­sumptions about the relation­ships between the slave­holder, the slave, the nonslave­holder, the king and the church.

What the Protestant slaveholders thought about blacks was recited in the preamble to the general statute of 1688.  The plantation industry was dependent upon great numbers of Negro slaves whose “bar­barous, wild and savage nature… renders them wholly unqualified to be governed by the laws, customs and prac­tices of our nation,” and the need for separate laws and orders to “restrain the disorders, rapines and inhumanities to which they are natural­ly prone and in­clined.”  Because Protestant slav­ery codes denied the human­ity of blacks, laws appli­cable to the white slave­holder, yeoman farmers, and indentured servants were not applicable to blacks.  The slaveholder did not want any inter­ference in the manage­ment of his slave property from other citi­zens, black or white.  Therefore, the Protestant slav­ery codes prevented blacks from entering con­tracts, including mar­riage and provid­ed freedom to the slave­holder to buy, sell, mortgage, rape, or murder his slave ac­cording to his conve­nience.

The slaveholders still needed the help of white nonslave­holders, however, to capture runaway slaves and control their  activities outside the plantation.  As a result Protestant slavery codes defined all blacks as slaves and color of the skin became evidence of slavery.  As there was no law to define the status of a black who was not a slave the Protestant slavery code assumed that blacks were to be slaves not only from one generation to another but forever.

In contrast to the Protestant slavery code the Catholic slavery code the Code Noir was decreed by Louis XV for the colo­ny of Louisiana in 1724.  After Louisiana became a part of the United States in 1803, the Catholic slavery code was gradu­ally replaced by the Protestant slavery code, so that by the time of the Civil War, Louisi­ana was almost indistin­guish­able from the other Southern states in its treatment of blacks.

According to the Catholic slavery code as defined by the Code Noir, blacks were human beings subject to the same law as whites.  This meant slavery was not a condition defined by color and a black man could be a slave or he could be free.  In the absence of proof to the contrary a black man was assumed to be free just like a white man.  Because the Code Noir was decreed by the king in France, it treated slaveholders, slaves, and nonslaveholders as the subjects of the king each having his rights and responsibil­ities.  As blacks were human beings, they had a legal right to marry, whether slave or free, and they had a right to life and to safeguards against abuse while fulfilling their con­tracts as slaves.  Also, they could be baptized, become Chris­tians, and stand on an equal footing with whites in the sight of God and the Church.  By making provi­sion for Free blacks, Catholic slavery provided an infrastructure for the gradual abolition of slavery if the slaveholders or the surrounding circumstances favored it.

By not acknowledging the human­ity of blacks, Protestant Slavery was creating a dilemma for itself because, consequently, the humanity of the mulattos would have to be denied if they had a trace of black parent­age.  Therefore, Protestant Slavery created a situation in which a white man would have to deny the humanity of his own children born of union with a black woman.             Another difference between these two forms of slavery was that Protestant Slav­ery ignored the nonslavehol­ders who were a majori­ty of the population, while the Catholic slavery code addressed itself to the role of the nonslaveholders.  Ther­efore, Catholic slavery was democratic in its outlook compared to Protestant slav­ery.  For this reason Protestant slavery was inherently an unstable institution because eventually the nonslaveholders who had the numerical advantage might topple it.

III

Law and Order for blacks under the Protestant Slavery Code was administered by the rule: “Presumed guilty unless prov­en innocent”.  A black man’s color was proof of his guilt.  There were two sets of laws.  The white man’s law did not apply to blacks.  For blacks, the slaveho­lder was the law including the accuser, judge and executioner.  Blacks were total­ly at their owners’ mercy.  This was in sharp contrast with the Catho­lic slavery code which had a common body of law for whites and blacks whether they were slaves or free.

Lack of a law and order infrastruc­ture including courts and prisons for blacks was a basic weakness of the Protes­tant Slavery code.  As free blacks could not be tolerated the slaves could not be freed.  This meant the food and shelter of the blacks was  guaranteed for ever.  However, if the black slaves lost their  utility then the slave­holders would be pushed into a corner because the black slaves could not be freed and feeding and  sheltering them would be an impractical proposition.  This would be a dilemma for Protestant slavery which would ultimately force the North and South into a conflict leading to the Civil War.

The destruction of the family unit was a natural consequence of the Protes­tant slavery code.  In addition to its refusal to recognize black marriages, the law allowed separating slaves from the land by sale, thus separating mothers from children and husbands from wives with no restric­tions.  The Protestant Slavery Code denied the blacks the right to marry and have families to ensure a mobile supply of labor total­ly under the beck and call of the slavehold­ers.  There was no law against fornicating with black females and the universal under­standing of Southern ju­rists was that, “the father of a slave is unknown to our law.”

As a result of the Protestant Slavery code almost half‑a‑ million mulattos were born before the Civil War.  Almost all the  miscegenation and mulattos resulted from white males’ forcing themselves on black females.  Black males were harmless and culturally impotent because they could not protect black females or black children.  The whites knew that they were engaging in activities which were clearly immoral and against the teachings of Christianity.  They also knew that given the opportunity the black man would one day seek revenge for their past criminal behavior.  Slave­ holders took care to secure the coopera­tion of the nonslaveholders in the Civil War by emotional appeals to them by empha­sizing the insecurities of the whites.  To prepare for Civil War the slaveholders spread the word that black males lusted after white females and free blacks would take revenge by raping the wives, mothers and sisters of non­ slaveholders and so destroy their Southern way of living.

IV

After winning the War of Independence, slaveho­lders struc­tured the Constitution so that blacks were the responsibili­ty of individ­ual states, out of the reach of the fed­eral government.  The founding fathers agreed that though slavery was recog­nized, it should not be sanctioned by the Con­stitu­tion.  But they did ultimately write slavery into the Consti­tution, after a long debate, and only nonslaveholders were de­ceived.  This inclusion took the form of three clauses: counting blacks for Con­gressional represen­tation; the protection of the slave trade; and the fugitive slave clause, which pro­vided that slaves who fled from one state to another would be returned to their masters if apprehend­ed.

During the Constitutional Convention debates, Georgia and South Carolina want­ed to count slaves in determining Congres­sion­al representation due to the large slave popula­tion in their states.  North­ern delegates wanted black slaves to be treated as property and therefore not counted for representation, since there were few blacks in the North and most Northern whites wanted to get rid of those few.  So the Constitutional Con­vention compromised by splitting the dif­ference and counting black slaves equiva­lent to three‑ fifths of a white man for the purpose of Congressio­nal represen­ta­tion.

As blacks were not citizens and could not vote, providing federal representa­tion for them was an absurd proposition.  Under  the federal ratio, a slaveholder who owned five slaves was al­lowed four Congressional representa­tion units, while his fellow  countryman who owned five horses or five ships would have only one unit.  It estab­lished a new principle for American democ­racy: a slaveholder had more votes than a nonslaveholder.  Ultimately it would place the South­ern slaveholders in a commanding position to control sout­hern politics.

The debate over the role of blacks in the Revolutionary War made it clear to delegates of the Northern and Southern states that the proportion of blacks in the population had to be re­stricted.  Northern delegates wanted to ban import­ing blacks because they would only increase the Sou­th’s leverage in Congress under the federal ratio clause.  However, South Carolina and Georgia, aware of the profit potential in growing short staple cotton in the back country, refused to confeder­ate on “such unequal terms.” The fear of a rupture at this critical moment led to a compro­mise to permit the slave trade to continue for twenty years.

During the next twenty years fear of blacks was reinforced by the takeover of the Island of Santo Domingo, where blacks massacred Whites and formed the Republic of Haiti.  Subsequently, Con­gress was able to pass a law in 1808 pro­hibiting further slave importa­tion.  At this time a crucial challenge against federal authority to enforce this law was mounted by con­gressmen from the deep South making practi­cal enforcement of the law impossible.  As a result slaves continued to be smuggled into the country by Yankee traders and sold to the South exacerbating the existing problems.

When the South won clear recognition at the Constitu­tional convention for states to continue slavery, they demanded that Northern States give up fugitive slaves to their owners.  While Southern slave owners wanted to enforce their property rights over blacks in all states, most North­erners did not want blacks among them and were willing to oblige.  As general Charles Pinkney noted in a 1788 speech urging ratification of the Constitution, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before”.

Speedier return of runaway slaves was achieved with the Fugi­tive Slave Act of 1850.  Any claimant who could estab­lish proof of ownership by affidavit before a special commissioner could take posses­sion of a black.  For the Southern slaveholders a new opening for the spread of slavery to the territo­ries had been provided.  They could tran­sport their slave property to any terri­tory of the nation and if challenged bring them back without judicial proceed­ings.

Ultimately the inclusion of black Protestant slavery in the Consti­tution would prove to be disastrous for the Na­tion.  Amend­ing the Constitution to re­flect changing realities would prove to be an impossible task.  A Civil War would become necessary so that the winner could force an amendment to the Constitution.

V

An English visitor observed, “The Federal Constitution is  silent about race and color, but in interpreting it American law givers arrive at the conclusion, that the United States are the property of whites, that persons with a tinge of dark color in their countenance, though born free, are not citizens.”  It appears Con­gress had no intention of treating blacks, whether slave or free, as citi­zens of the United States from the begin­ning.  The Naturalization Act of 1790 extended citi­zenship to all free white persons who resided in the United States and who had shown good behavior for one year, and who ex­pressed the intention to remain and took an oath of allegiance.  During dis­cussion the pros and cons of including Roman Cath­olics and Jews as citizens was debated, but there was not even a sugges­tion to include blacks.

In 1857, the Supreme Court of the United States dispelled all doubts regard­ing the status of the country’s black residents.  According to Chief Justice, Roger B. Taney, no black could quali­fy as a citizen of the United States.  So far as the Constitution was concerned, he added, blacks had no rights that whites were bound to respect.

Since free blacks were not welcomed in the South, all possibilities for manu­mis­sion or emancipation had to be dis­cour­aged.  In every slaveholding state re­strictions were placed on manumitting Negro slaves, and in several states domes­tic manumission, that is, manumission to take effect within the state, was prohib­ited.  Some states voided manumission by will while other states required the con­sent of the state legislature.

As blacks were unwanted in the North, new states such as  Ohio, Indiana and Illinois were reserved for whites only.  All  Northern states passed restrictive legislation to discourage black immigra­tion.  The thinking regarding free Ne­groes in the North was stated by the Indi­ana Supreme Court: “The policy of the state is clear.  It is to exclude any further ingress of Negroes and to remove those among us as speedily as possible.”  The law specifical­ly voided all contracts made by blacks enter­ing the State, and this applied to marriage agree­ments.

Just before the Civil War blacks, who were slaves or free, were not considered U.S. Citizens and had few rights which they could protect.  Both the Northern and Southern states had black anti‑immigrati­on laws on the books and were trying to get rid of those already present within their borders.  Four million blacks in the Unit­ed States were unwanted and had no place to go, a direct result of the Prot­estant Slavery Code.

VI

What Protestant slavery did to the whites becomes clear by examining the economic class system of the North and South.  Once the importation of black slaves was banned in 1808 future growth depend­ed on attracting white immigrants from Eu­rope.  White immigrants would not come to America because of ruinous competition with black slaves.  As a result the North­ern states abolished black slavery by judicial or legislative means.  From 1820 to 1860 the population of the North increased fourfold from 5 million to 20 million.  The Northern economic class system consist­ed of employer‑ controllers, yeoman farmers and small property owners, white wage slaves who had no savings and black underclass who were segregated and denied rights to life, liberty and proper­ty.

Employer‑controllers were the leaders and most powerful members of the Northern Class System.  They were the owners of  textile mills, iron works and other indus­try and could be distin­guished by their status as employers.  During the Civil War there were 400,000 families in this class who were rich enough to pay taxes on income.

Small property owners and yeoman farmers made up the second tier of the economic class system.  With an average farm size of 200 acres the yeoman farmers of the Northwest were prosperous growing edible food crops for the Northeast indus­trial belt and the South.  They were the middle class backbone of the Northern  economic system.

Irishmen and other immigrants escap­ing the famines of Europe formed the wage slave segment of the Class System.  They were called wage slaves because they were unable to accumulate savings and had to work under the threat of starvation.  The employer‑ controllers made sure that there was an excess of immigrants on hand looking for jobs so that the wage slaves would have to be paid only subsis­tence wages.  As a result the white wage slaves of the North whose food and shelter was not guaranteed had to live in condi­tions sometimes worse than those of South­ern black slaves.

At the bottom of the Northern Class structure were the black underclass.  To control Irish wage slaves, the employer control­lers used blacks as the unemployed reserve to break strikes in Pennsylvania mines and New York docks.  Confronted with the eco­nomic reality, the Irish wage slaves channeled their frustration and anger into hatred of the blacks and began to find what com­fort they could in white supremacy doctrines.

In the North the white wage slaves could vote.  Therefore, the stability of the Northern Class System depended on an excess of Yeoman farmers to outvote the wage slaves.  This required an ever ex­panding western frontier free from black slaves to provide land for the white yeo­man farmers of the North.  Conflict with the Southern Class System would re­sult from this requirement of an expanding frontier free from slaves.

There were 385,000 slaveholding fami­lies in the South before the Civil War holding about four million slaves.  The planter aristocracy consisted of about 10,000 families who owned about two mil­lion slaves amongst them.  If membership in the planter class required owning at least twenty slaves, the typical slave­ holder did not belong to this class, since 88 percent of slave­holders owned fewer than twenty blacks.  The planter aristoc­racy were the society’s apex and deter­mined the South’s political, economic and social life.

As there were almost one and a half million free families in the south the majority of whites were nonslaveh­olders.  These white yeoman farmers were the most adversely affected economical­ly by the slavery system.  Not only were they de­prived of their share of wealth and polit­ical power, but they also had to bring their living standards down to the slave’s level.  This was true because the yeoman farmers and the planters were competing in the cash crop market.  The cash crop’s cost was minimized through economies of scale when thirty slaves and an overseer were used to work the land.  To compete in the same market as slaveholding planters, yeoman farmers had to reduce their costs to a minimum by limiting their consumption to slave level.

Black slaves occu­pied the third tier of the southern class system.  Due to the precedents of Protes­tant Slavery they could not be freed and therefore their food and shelter was guar­anteed.  Once the slaves were losing their utility due to soil exhaustion new terri­tories had to be con­stantly found to keep the slaves work­ing and earning their upkeep.  Protestant slavery, of course, facilitated the move­ment of slaves across state lines by not tying them to the land they worked.

At the bottom of the southern econ­omy were the half million poor whites also called “crackers” and “sandhill­ers”.  No matter how hungry they were they did not want to work side by side with blacks or do any work which was done by blacks.  As Freder­ick Olms­ted, who visited the South noted, “From childhood the one thing in their condition which had made life in­valuable to the mass of Whites has been that the niggers are yet their inferiors.”

The inherent weakness of the southern class system was that the white yeomen farmers, who were in a majori­ty, had to live at the same level as black slaves.  Ther­efore, European immigrants avoided the South and in fact the white nonslav­ehold­ers were leaving the South to avoid black slave competition.  Also the life of a black slave was more valuable than that of a white nonslavehol­der.  When Olmsted asked a planter in Virginia why he emp­loyed Irish­men to drain swamps by con­tract he replied: “It’s dan­gerous work, and a Negro’s life is too valuable to be risked at it.  If a Negro dies, it is a consid­erable loss you know.”  Thus the contra­dictions in the economic class sys­tem of the South would make the Civil War inevi­table.

VII

Historian Kenneth M. Stampp has sug­gested that any realistic attempt to ex­plain the causes of the Civil War must answer the following questions, which are interdepen­dent but slightly dif­ferent.  First, what caused the North and South to engage in a ceaseless controversy for more than a generation over the ques­tion of slavery in the territories while sup­port­ing the institu­tion of slavery in the states of the deep south?  Second what caused the states of the deep south to secede after Lincoln’s election in 1860?  Third, what caused the great majority of north­erners to prefer to use force rather than recognize Southern independence?  Any valid explana­tion of the Civil War must con­sistently answer all these questions and agree with the facts of history that have been well established.

Rather than the existence of slavery in the South the ques­tion of slavery in the territories was a source of controver­sy because it was a zero sum game.  The new territories could either allow slavery, thus sanctioning competition between slav­ehold­ers and white yeoman farmers, or re­serve new territories for free white work­ers and yeomen farmers.

From the Southern slaveholders’ point of view black slaves were losing their utility because of soil exhaustion and the black slaves could not be freed because of the precedents of the Protestant slavery code.  As Judge Warner of Georgia declared in the House of Representatives in 1856, “There is not a slaveholder in this House or out of it, but who knows perfectly well that when ever slavery is confined within certain specified limits, its fu­ture exis­tence is doomed.”

Continued growth for the North re­quired on the other hand a flow of immi­grants from Europe.  To balance the number of wage slaves employed in industries opportunities had to be provided for white yeoman farmers in new territo­ries with homesteads.  In such circumstances it was impera­tive that the new territories be free from slave competi­tion.  Lincoln wanted to exclude slavery from the terri­tories and place them legally, “In such a condition that white men may find a home…I am in favor of this not merely for our own people who are born amongst us, but as an outlet for free white people every where, the world over.”  As both the North and the South wanted the new terri­tories for them­selves and only one camp could have them, the new territories would become another source of conflict leading to the Civil War.

A Lincoln victory in 1860 would mean the end of slavery’s expansion forever.  Not only would slaves be prohibited in the new territories, but Lincoln would at­tract Southern yeoman farmers and poor whites to the territories with homestead laws and free­dom from competition with slaves.  This would endanger the very survival of South­ern slaveholders.  If the South stayed in the Union, the Constitu­tion would protect blacks from Lincoln’s clutc­hes.  But the Constitution could not pre­vent Lincoln from drawing nonslavehold­ers out of the South.  If the South were to secede from the Union, the white nonslaveholders would be trapped within the boundaries of the South.  Secession at least would leave the slaveholders with the nonslave­holding whites to protect owners from their slaves.  Therefore, a Lincoln victory in 1860 was enough provocation for the slave­holders to opt for secession from the Union.

Why didn’t the North just allow the South to secede?  During the war that followed, more Northerners died than Sout­herners.  What reasons did the North have to engage in such a bloody war?  The nort­hern employer ‑ controllers benefited as much from black slavery as the slavehold­ers because they were middlemen in most of the transactions of the South.  Cotton grown by the South was purchased by the North and exported to Europe in northern ships.   Also, textile mills in the North manufac­tured cloth from the cotton and sold it to Southerners.  Most of the food and manufac­tured goods, including text­books, were supplied by the North.  Even the financing of southern slaveholders was controlled by bankers in the North.  The Southern slave­hold­ers owed the North be­tween 200 and 400 million dollars at the time of the Civil War.  What the South got for its cotton was determined by the world market price in Europe.  What the South had to pay for manufac­tured goods from the North was determined by high tariffs against imported goods from Europe.  In fact the South was an economic colony of the North.

The Boston Herald pre­dicted the evils that would follow for the North if it allowed the South to se­cede:

“Should the south succeed in carry­ing out her de­signs, she will immedi­ately form commer­cial alli­ances with European countries who will readily acquiesce in any arrangement which will help English manufactur­ing at the expense of New Eng­land.  The first move the South would make would be to impose a heavy tax upon the manufacturers of the North, and an export tax upon the cotton used by north­ern manufacturers.  In this way she would seek to cripple the North.  The carrying trade, which is now done by Ameri­can ves­sels, would be transferred to Brit­ish ships, which would be a heavy blow aimed at our commerce.  It will also seri­ously affect our shoe trade and the manu­facture of ready‑made clothing, while it would derange the monetary affairs of the coun­try.”

As a result Lincoln would let the northern position be known in an open letter to the editor of a newspaper, “My paramount object in the struggle in to save the Union, and is not either to save or destroy slavery.  If I could save the Union without free­ing any slave I would do it, and if I could save it by freeing all the slaves I would do it, and if I could save it by freeing some and leaving others alone, I would also do that.”  It was clear that the Civil War was inevitable in such circumstances.

VIII

In tallying the cost of the Civil War it was estimated that more than 620,000 soldiers lost their lives in four years of  conflict ‑ 360,000 Yankees and at least 260,000 rebels.  The number of Southern civilians who died as a direct or indirect  result of the war has been conservative­ly estimated at 50,000.  Every six slaves freed cost the life of one soldier ‑ a stagger­ing price.  Many wondered whether the liberation of four million slaves was worth the cost.  Their freedom was only a side effect of a war that had to be fought to pay for two hundred years of crimes against blacks and whites so that the nation could start all over again with a clean slate.

Frederick Douglass summarized the black point of view that the Civil War was begun “in the interests of slavery on both  sides.  The South was fighting to take slavery out of the Union and the North was fighting to keep it in the Un­ion; the South fighting to get it beyond the lim­its of the U.S. Constitution and the North fighting for the old guarantees ‑ both despising the Negro, both insult­ing the Negro.”

After the Civil War ended the Thir­teenth amendment to the Constitution was sent to the states for ratification.  It called for the abolition of slavery, but made no provi­sion for the livelihood of blacks.  The amendments primary objective was to remove slavery from the Constitu­tion of the United States.  By providing citi­zenship rights to blacks and freeing them the Northerners hoped the ex‑slaves would stay put in the South in­stead of migrating North.

With Catholic slavery, where the slaves were tied to the land, abolishing slavery left them freeholders or tenants on the land they tilled.  In the South, on the other hand, where Protes­tant slav­ery ruled supreme and the slaves were chattels bound to their masters, their emancipa­tion, in Lincoln’s phrase, sent them flying into the economic class sys­tem as “a laboring, landless and homeless class.”

As white immigration increased, the proportion of blacks in the total popula­tion would decrease.  Slowly the depen­dence on black labor would decrease and the blacks would assume the role of separate but unequal in the economic and social class system of the country.  They would be segregat­ed as in all aspects  of living.  Blacks would live in separate areas, work at menial jobs, eat in sepa­rate areas, have separate bathrooms, and be buried in black cemeteries.