The Japanese Journal of American Studies, No. 34 (2023)

Copyright © 2023 The Japanese Association for American Studies. All rights reserved.

Counting Diversity in an Attempt to Achieve Unity:
How the Three-Fifths Clause United andDivided Americans
Junko ISONO KATO*
The three-ﬁfths clause of the United States Constitution was an attempt
to unite a Constitutional Convention divided over the issue of slavery. It
was one of the many compromises American political elites made to unite
diverse states together. The idea of the three-ﬁfths clause originated fromthe eﬀort to calculate the wealth of the free and slave states based upon the
productivity of persons who worked for themselves compared to that ofslaves who were forced to labor for their slaveholders.
Although the clause did not mean that the framers considered slaves tobe three-ﬁfths of a whole human, it called attention to slaves’ dual characteras both persons and property. While slaves were generally deemed property
for purposes of business and inheritance, it was impossible not to recognize
them as persons in the event of slave insurrections. Slaveholders also could
not deny slaves’ humanity as they drew upon their skills and services daily,
and interacted with them.
During the Civil War, slaves’ status continued to be divided. Whether aslave’s owner was loyal or not to the Union redeﬁned the nature of theirdual status; not as persons versus property but as free versus slave. The
Fourteenth Amendment, by counting “the whole number of persons,”
superseded the three-ﬁfths clause. It, however, fell short of eradicating thedivision that the three-ﬁfths clause symbolized, a problem later solved by
the acts of the Civil Rights Movement.

INTRODUCTION
In weighing division, diversity, and unity in American history, there is
no better case in point than the United States Constitution itself, especially* Waseda University

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Article 1, Section 2, better known as the “three-fifths clause.” The threefifths clause embodies two tensions that have been fundamental in U.S.
history: the first, between slave states and states that would eventually
become free states; and the second, between the slave’s dual statuses assimultaneously person and property. The three-fifths clause reads:“Representatives and direct Taxes shall be apportioned among theseveral States which may be included within the Union, according totheir respective Numbers, which shall be determined by adding to thewhole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all other
Persons.”1
With the three-fifths compromise, the framers attempted to reconcile
diametrically opposing views among the framers of the Constitution, pitting
states dependent on slavery against those whose delegates looked forward
to its eventual disappearance. A startling fact about the provision underlines
the difficulty that the framers faced in reconciling these opposing positions:although the clause concerns the method of counting slaves, the authors
deliberately avoided using the word “slave.”2
The effort to paper over this division between the framers ultimately
failed. In fact, the clause still divides the House of Representatives of
the twenty-first century. At a ceremonial reading of the Constitution in
2011, the Republican readers chose to skip the three-fifths clause, which
the Fourteenth Amendment superseded. The omission angered some
Democratic House members, particularly members of the Congressional
Black Caucus, who decried the omission as a deliberate attempt tominimize the historical importance of slavery.3
The three-fifths clause did not mean that the framers of the Constitution
simplistically considered slaves to be only three-fifths of a whole human,as some commentators today mistakenly contend. Nor did the clause define
the status of slaves as either persons or property. It was a compromise
between pro-and anti-slavery delegates to the Constitutional Convention, at
which slaveholders sought to treat slaves as property, rather than persons,when it came to apportioning responsibility for government expenses, but
as persons rather than property, when it came to claiming representation in
Congress. Instead of the zero-fifths the slaveholders would have preferred
for the former and the five-fifths they would have preferred for the latter,they had to accept three-fifths for both. Because the delegates could not find

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a philosophical solution to the problem of the slaveholders’ attempt to accept
advantages but not disadvantages, they solved it arithmetically. The threefifths clause was an agreement to count three-fifths of a state’s total numberof slaves in apportioning representatives, presidential electors, and taxes.
Although each state sent two senators to the Senate, the extra seatsthat the three-fifths clause provided to slave states in the House and theElectoral College strengthened their political power. Moreover, while theclause theoretically authorized an extra three-fifths tax on slave states,
Congress resorted to direct taxes only four times between the presidenciesof George Washington and Abraham Lincoln, supporting itself primarily byland sales and tariffs instead.4 And as the clause affected the entire citizenryof the slave states, it gave non-slaveholding Southerners a stake in slavery.5
The first tangible result of the three-fifths clause was the election ofThomas Jefferson to the presidency in 1800.6 But for the three-fifths clause,John Adams could have interrupted the Virginia Dynasty for four more
years, a dynasty that reigned for thirty-two of the first thirty-six years of therepublic.7 The North’s population growth through immigration eventuallydiminished the effect of the three-fifths clause on slave states’ percentage ofrepresentation in House of Representatives from approximately 30 percent
in 1792 to 12 percent by the 1842.8 However, many of the important proslavery acts had been already passed by then: the Missouri Compromise of1820 without the antislavery Tallmadge amendment, the Indian Removal
Act of 1830 making Native Americans’ land available for slavery to expand,the gag rule of 1836 prohibiting consideration of anti-slavery petitions, andthe annexation of Texas in 1845 adding one more slave state to the Union.9
As the political power the South derived from the three-fifths clausedeclined and other forces reduced the South’s political power, it became
important for the South to increase the number of slave states in order togain additional slave-state senators to protect slavery.10
The so-called Great Compromise at the Constitutional Convention of
1787, which included the three-fifths clause, was the first of the many
compromises free and slave states made, followed by the Northwest
Ordinance of 1787, Missouri Compromise of 1820, and the Compromise of1850 to name a few.11 Slavery economically benefited the nation as a whole
and was legal in all thirteen original states at the time of independence,
though it was not economically as central in the Northern states as it wasin the South because of the gradual abolition of slavery in the North after
independence.12
Each of these compromises was designed and intended to preserve peace

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between contending states in pursuit of a higher goal: to unite diverse states
together.13 These compromises used federal laws to continually balanceinterests of slave and free states, thereby “demonstrat[ing] Americans’remarkable ability to make pragmatic adjustments in the interest of national
stability,” according to historian David Brion Davis.14 Compromises are
not, however, always the same as solving the problems. When compromise
seemed no longer possible, Americans fought the Civil War.
The three-fifths clause has its roots in the period when the fledgling
America was still uncertain about its future. Although basing taxation
on population rather than on land seemed a sign of democratization, thefact that the three-fifths clause benefited slave states makes the claim
doubtful. It represented an advance for slaveholders, though, from theEnglish constitutional structure, in which slaves in West Indies wererepresented only as capital, an unstable index subject to change dependingon the market.15 Taxation and representation had been inseparable since thecolonial era. Colonists insisted that “a colony or district is not to be taxedwhich is not represented.”16 After independence, however, the argument
came to imply that the number of representatives for each state “shall be
ascertained by its quota of taxes,” as a correspondent of Niles’ Weekly
Register insisted.17 While the slogan “no taxation without representation”
united colonists against England, the issue of tax on and representation of
a diverse populace—slaveholders, yeoman farmers, urban artisans, nonlandowning farmers, and slaves of the North and South—divided the newly
independent Americans.
The debate began at the birth of the nation in 1776. The idea of fractional
representation, although not three-fifths but one-half, first emerged in 1776
during the Second Continental Congress (1775–81). The occasion was aneed to determine the wealth of each state based upon the population, sothat the war expenses could be allocated among the states in proportion totheir wealth. The ratio rose to three-fifths in 1783 during the Congress of
the Confederation (1781–88) but was never used. The value of land, notthe population, remained the basis for taxation from independence until
the Constitutional Convention of 1787 decided on population as the basis
for both taxation and representation.18 Although the Compromise of 1787
appeared to have brought unity to delegates, it never did.19 The clause not
only remained provocative among white people while also affecting the livesof slaves and indeed controversy surrounding the clause continues to this day.

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HOW TO COUNT SLAVES: THE DUAL CHARACTER OF SLAVES

Only a few weeks after the Declaration of Independence, wrangling
over the process of forming a national government proved the validity ofJames Madison’s quip that “If men were angels, no government would benecessary.”20 The committee to prepare the Articles of Confederation wason the verge of disintegration over the issue of expenses that should be paid“in proportion to the number of inhabitants.”21 Samuel Chase of Maryland
argued that “negroes are property, and as such cannot be distinguished fromthe lands or personalties…that negroes in fact should not be considered
as members of the state, more than cattle.”22 Thomas Lynch of South
Carolina threatened to abandon the union altogether, “If it is debated,
whether their [slaveholders’] slaves are their property, there is an end of theconfederation.” John Adams remarked that “the number of people” meant“an index of the wealth of the state,” not the subjects of taxation, and thatwhether free or slave, the number of people was “the fair index of wealth”
because people were producers.23
Exchanges of impassioned opinions continued until Benjamin Harrisonof Virginia proposed a compromise to count two slaves as one freeman on
the ground that “slaves did not do so much work as freemen” and that the“price of labor” in the South was twelve pounds, while that of the North
twenty-four.24 Perhaps because slaveholders were reluctant to bear theheavy burden of expenses, they tended to understate the productivity ofslave labor, prompting some Northerners to suggest that slaves should befreed if they were so unproductive.25
Although the one-half ratio was not adopted in the final Articles, thedebate marks the beginning of the “fractional” compromise.26 In the end,
with the war for independence still underway, the Articles of Confederation,
ratified on March 1, 1781, avoided settling the question of the slaves’ statusin American society. Article 8 based taxation on the value of all land, “thebuildings and improvements” in each state, and Article 5 stipulated thateach state should have one vote “in determining questions” of governance.27
The Congress of the Confederation, however, neither implemented Article 8
nor took a land census, leaving Congress without revenues.28
Once the Treaty of Paris in 1783 secured American independence, the
new nation was unable to impose a tax to pay for its soldiers, because,
as James Madison said, “the value of land could never be justly orsatisfactorily obtained.”29 James Wilson of Pennsylvania recalled that they
had no choice but to rely on the value of land because, during the Second

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Continental Congress, the states could not agree on how to determine thevalue of slaves “compared with the Whites.”30 Just as determining the valueof land proved difficult, so did “fix[ing] the proper difference between thelabour and industry of free inhabitants, and of all other inhabitants.”31
In the meantime, soldiers stationed in New York were about to mutiny inMarch 1783 over the lack of pay, forcing Congress to do something about
raising revenues.32 Attempting to tackle the financial problem by using
population rather than the value of land, Congress resumed the discussion
on how to measure slaves’ productivity, taking the previous formula of “twoblacks be rated as equal to one freeman” as a starting point.33 Some agreed
with two-to-one, others came up with four-to-three, four-to-one, three-toone, and three-to-two. Madison intervened with five-to-three “in order togive a proof of the sincerity of his professions of liberality.”34 Consideringthat the issue in question at this point was only taxation, Madison
probably meant that as the owner of one hundred slaves, he was willing tocompromise by not insisting on one-half or one-third.
The three-fifths ratio passed on April 18, 1783, but did not take effectbecause there was insufficient support for a change from the value of land
to population. Nevertheless, the three-fifths ratio stuck in politicians’ minds
as a way of counting slaves’ share in the population.35 The debate over thethree-fifths ratio was not an attempt by whites to somehow calculate theinherent human worth of slaves compared to themselves in some abstract
sense. Instead, as the foregoing elucidates, the particular debate was a
dispute over assessing wealth based on the productivity of persons who
worked for themselves compared to that of slaves who were forced to laborfor their slaveholders.36
Five years after the ratification of the Articles of Confederation in 1781,“not a single State in the Union” had paid what it owed, either because they
were reluctant to pay taxes at all or because it was difficult to ascertain
the value of land.37 A committee charged with considering a number ofmatters admitted that determining the value of land was difficult for two
reasons. First, the value was “uncertain and fluctuating” as well as “tediousand expensive” to ascertain. Second, the designated value they set was
likely to be influenced by “the judgement of men,” who would be “biased
continually by interest and local connexions.” By contrast, they argued,
counting people was easy and inexpensive to do. To those who opposed thethree-fifths ratio, the committee replied that although it was impossible tocompare “the acquisitions and abilities” of freemen with those of slaves,the committee assumed that all would agree on the superiority of free labor

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over that of slave because slaves were forced to work for the interest ofslaveholders.38
Whether superior or not, free labor was not trouble-free. Shays’s
Rebellion of 1786–87, a debt and tax protest in western Massachusetts,
was one of those troubles that forced the delegates from various statesto grapple with the defects of the Confederation government in May
1787.39 To remedy the absence of revenues, a number of delegatessuggested that representation be proportionate to the contribution of taxes,“thus connecting the interest of the States with their duty,” argued John
Dickinson of Delaware.40 In the end, the population, rather than the valueof land, became the basis, with the three-fifths ratio applied to the slave
population.41
As predicted, however, some delegates from the North questioned therationale for counting slaves as part of the population, even at the threefifths ratio. Wilson asked, “Are they admitted as Citizens? Then why are
they not admitted on an equality with White Citizens? Are they admitted as
property? Then why is not other property admitted into the computation?”
Gouverneur Morris of New York asked the same question: “Upon what
principle is it that the slaves shall be computed in the representation? Arethey men? Then make them Citizens & let them vote?” Roger Shermanof Connecticut explained the philosophy behind the counting of the threefifths of the slave population: free people of the Southern states wererepresented “according to the taxes paid by them, and the Negroes are only
included in the Estimate of the taxes.”42
Madison perhaps offered the clearest explanation of whether a slave
was considered a person or property in American society during the late
18th century. He said that a slave was in fact both. Madison opined thaton one hand, being forced to work for his master and deprived of liberty,
a slave “may appear to be degraded from the human rank.” On the other
hand, Madison asserted that a slave’s “life and limbs were protected against
violence,” “and in being punishable himself for all violence committed
against others,” he is a member of society.43
The federal constitution thus determined the slaves’ “true character” tobe a mixture of persons and property. Madison justified the inclusion ofproperty (in the form of slaves) in representation on the ground that the
government was formed to protect both people and property. He added that“the laws have transformed the Negroes into subjects of property” and evensuggested that if “the laws were to restore the rights which have been taken
away,” a slave should have the same “share of representation with the other74

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inhabitants.”44 That, however, would have meant the disintegration of the
Articles of Confederation.
On July 12, 1787, a resolution that “direct Taxation ought to be
proportioned according to representation” passed unanimously. The final
constitution describes slaves as “persons” in its dealing with tax andrepresentation (Article 1, Section 2), slave trade (Article 1, Section 9), andfugitive slaves (Article 4, Section 2).45 But it is interesting to note that thethree-fifths clause remained controversial not only in the North but also
in the slave South. The Massachusetts state legislature unsuccessfully
attempted in 1843 to amend the U. S. Constitution in order to repeal thethree-fifths clause, while only Georgia, Florida, Maryland for “a few
years” and North Carolina after 1834 used the federal ratio in their state
constitutions. By contrast, one week after Abraham Lincoln becamepresident in 1861, the Confederate States of America completed its
constitution with the federal ratio retained.46 From the time of the Articles
of Confederation to the emergence of the Confederacy, the three-fifths
compromise attempted to serve the purpose of reconciling the competinginterests of slaveowners and non-slaveowners, even if only temporarily.
2. HOW SLAVES’ DUAL CHARACTER AFFECTED THEM: BEFORE THE CIVIL WAR
At the seventy-sixth anniversary of the nation’s independence in 1852,
Frederick Douglass was asked to speak to an audience of white abolitionists
in Rochester, New York. Feigning confusion as to why he had been chosen
for the occasion, Douglass began with a mild reminder to the audience,“This Fourth of July is yours, not mine. You may rejoice, I must mourn.”
It was a day that reminded the slaves of “the gross injustice and cruelty”
they constantly suffered. It was so easy to understand that American slavery
was wrong, he insisted, that he had nothing to prove. “Must I undertaketo prove that the slave is a man?” He did not need to, he said, because thelaws slaveholders made “acknowledged it.” The laws prohibited teachingof slaves and penalized them for the crimes they committed, but nothingcomparable existed for dogs, fish, and reptiles. After seeing the slaves doing
all sorts of tasks, such as farming, building ships, and even worshippingGod, was it still necessary to prove their humanity? Douglass ended his
address in bitter denunciation of the U.S. as the world’s worst nation in its
level of “revolting barbarity and shameless hypocrisy.”47
If “shameless hypocrisy” referred to slavery in the land of the free,“revolting barbarity” might have meant reducing a human being to the level

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of a beast. Slaves were, no doubt, persons, Douglass reminded his audience.
Yet, a slave had a price as a commodity to be determined by age, sex,
health, skills, geographic locations, and seasons.48 Contrary to the notionthat slave labor should be valued as three-fifths that of free labor, historianDavid Brion Davis has argued that slaves’ market value came to exceed“the cash value of all the farms in the South,” thanks to the importance ofcotton, and indeed the gross national product in 1860 was “only about 20
percent above the value of slaves.”49 Within the Southern states, the average
wealth of slaveholders in 1860 was $24,748, or 13.9 times the average
wealth of non-slaveholders.50
The legal categorization of slaves as commodities allowed the separationof slave families, in such a way as to assign individual slaves into, forinstance, “Lot 1” and “Lot 2,” with little regard to familial relations.51
For example, upon the death of President James Polk in 1849, fourteen of
the twenty-six married slaves he owned experienced disruption of theirmarriages, while nine of twenty-four slaves who were too young to be
married had already been forever separated from both their parents by sale.
Polk, who clearly benefited from the rise of the price of slaves after theannexation of Texas—the spoils of “Mr. Polk’s Little War” —frequently
shuffled slaves he owned between his plantations in Tennessee andMississippi.52
Although the practice was rare, some slaveholders bequeathed evenunborn children, described as “the increase” of female slaves, whichoccasionally courts allowed, depending upon judges and states.53 At thesame time, according to the autobiography of James Thomas, who was aslave of President Polk’s cousin Andrew Jackson Polk, being “a piece ofproperty” could perversely benefit a slave, given pervasive racism in the
North as well as South. Thomas stated he felt more protected as property
than when he was exposed to abuse and discrimination in the ostensibly
free North.54 But slaveholders might also choose not to protect their slavesfrom abuse. When Douglass was almost killed by Edward Covey, a “Negro
breaker,” his master refused to protect him either as property or as a man,for fear of losing the wages Douglass would have brought to his master bystaying out his year with Covey.55
Judging by their testimony, however, slaves seemed to consider the
separation of their families to be the worst part of slavery.56 Douglass, who
never knew who his father was and had been separated from his motherin his early childhood, remarked that “[g]enealogical trees do not flourish
among slaves” and regarded the obscuring of slaves’ parentage as part76

JUNKO ISONO KATOof the system’s “grand aim” to “reduce man to a level with the brute.”57
The forced separation of slave families provided abolitionists with themost effective weapon to attack the institution. It was so offensive evenin the eyes of non-slaveholding white people and even many slaveholders
themselves that the slaveholders had to take slaves’ humanity into at least
minimal consideration when shaping the legal system. This was especiallythe case because American-born slaves had already outnumbered Africanborn slaves even before the nation’s independence.58
As esteemed historian Eugene Genovese argued, the law needed to bemade ethically acceptable to both slaveholders and other classes for thesystem to prevail.59 The categorization of slaves as real property during
the colonial period, with slaves entailed to the eldest son along with land,
may have somewhat limited the separation of slave families. Although theframers of the Constitution saw the repeal of primogeniture as a step toward
democracy, it increased the risk of separating slave families. Statutory
reform began around 1830 when the anti-slavery movement was picking up
steam, but slaves’ dual status as persons and property, resulting in a conflict
between humanity and economic interest, made it difficult to legalize slave
marriages. Some states at least managed to forbid the separate sale of young
children from their mothers.60
Although the law might have deemed slaves property for purposesof business and inheritance, it was impossible not to recognize them aspersons in the event of slave insurrections. After Nat Turner’s Rebellion
in Southampton County, Virginia in 1831, Henry Berry, a slaveholder
in Virginia, was desperate to find a way to “extinguish that spark ofintellect which God has given” slaves. He thought that white Virginians
closed “every avenue by which light might enter their minds” but found it“impossible” to reduce slaves to “the level of the beasts of the field,” whichalone would make white people feel safe.61
In neighboring North Carolina, Nat Turner’s Rebellion not only resulted
in strengthened control over slaves but also in disenfranchisement of free
black people, because their right to vote “contributes to excite & cherish aspirit of discontent and disorder among the slaves,” according to a petition
to the state legislature in December 1831.62 In 1831 white Tennesseans wereso threatened by the increase in the number of free black people that thestate legislature forbade the emancipation of slaves, except on the condition
that freed slaves be immediately removed from the state. However, doing
so proved difficult because family members of freed slaves remained inbondage.63 Slaveholders in Maryland, where free black people were nearlyCOUNTING DIVERSITY IN AN ATTEMPT TO ACHIEVE UNITY

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as numerous as slaves, failed repeatedly to force the expulsion from thestate of free black people, because non-slaveholding white people needed
their labor.64
It was not only when slaves committed crimes or engaged in insurrectionthat the white public recognized them as persons rather than property. White
people often valued the skills and services slaves could offer. For example,
more than 120 white people filed a petition in 1832 for an exemption
from a law that provided for whipping a slave twenty-five times if he or
she visited several counties of Tennessee for the purpose of “healing the
Sick.” The petitioners asked the legislature to let “Jack, the property of Mr.
William H. Macon” continue his practice of medicine, “with a firm belief
that the public good will be advanced.” The legislature rejected the petition,
however, presumably because the memory of Nat Turner’s Rebellion was
still fresh.65
By contrast, in the famous case Ford vs. Ford, in which Loyd Ford, Sr.’swhite children and his slaves, which he called his “black children,” upon
Ford’s death contested in court his will that emancipated his slaves. The
Tennessee Supreme Court accepted the slaves’ petition that the will behonored, emphasizing that “slaves are not mere chattels but are regarded in
the two-fold character of persons and property.”66 Such cases illustrate thepractical challenges, not to mention the incalculable human cost, of viewing
slaves as merely objects and reveal that conflicts between legislatures andcourts, and among white people themselves, often determined the status ofslaves in particular cases.
3. HOW SLAVES’ DUAL CHARACTER AFFECTED THEM: DURING THE CIVIL WAR
Once war broke out, whether a slave’s owner was loyal or not to theUnion redefined the nature of their dual status: not as persons versus
property but as free versus slave. Lincoln’s approach to the abolition ofslavery was cautious and gradual because he did not want to antagonize
Unionist Southerners; “events have controlled me,” he wrote.67 The Union’s
complicated effort to balance freedom for slaves with preserving theirowners’ loyalty to the Union reflected Lincoln’s attempt, often at the cost ofslaves’ freedom, to bring unity out of irreconcilable division between slaveand free states.
The evolving nature of how wartime federal laws referred to slaves revealthat Congress performed a similar balancing act. The first Confiscation
Act of August 1861 did not mention “slaves” but declared it the president’s

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duty to seize, confiscate, and condemn—but not “free” — “any propertyof whatsoever kind or description” used to aid, abet, or promote
insurrection against the Union. Seven months later, the additional Articleof War of March 1862 forbade officers to return “fugitives,” and the second
Confiscation Act of July 1862 referred to such fugitives as “slaves” indeclaring those who fell within its purview “forever free of their servitude.”
The Militia Act of July 1862, for the first time, recognized slaves’ families.
It offered freedom to slave men, if employed by the Union, and to theirfamilies, if owned by disloyal masters. It also decreed the employment of“persons of African descent” for the benefit of Union forces.68
The Emancipation Proclamation of January 1863 freed slaves in some
but not all slave states. It exempted not only the four border slave statesthat remained in the Union (Delaware, Maryland, Missouri, and Kentucky),
but also Union-occupied parts of Louisiana and Virginia, as well as theentire state of Tennessee. Lincoln exempted Tennessee at the urging ofAndrew Johnson and other Unionist politicians in Tennessee, who hoped toconvince fellow Tennesseans that slavery would be safer under the Union.69
One Union officer described the disappointment of Tennessee slaves at their
exclusion from the Proclamation as “[t]he shadow on the hearts of thosecreatures…darker than the skin which God gave them.”70
Enlistment in the Union army afforded slave men in states whereslavery remained legal their only path to freedom, as well as a goodchance, by fighting for the country, to make the case for their right tocitizenship. As a result, black men in Missouri, Tennessee, Maryland,and especially Kentucky enlisted in notably large numbers compared toblack men of military age elsewhere. An astonishing 57 percent of black
men of military age in Kentucky enlisted in the Union army.71 The factthat their slave families remained under the control of loyal slaveholders
makes their enlistment all the more impressive.72 At the same time, Major
General George L. Stearns received in Nashville, Tennessee, “numerous
applications” by owners for the enlistment of their slaves, whom they had
come to see as “a nuisance.”73
In July 1863, Hannah Johnson, the mother of a Northern black soldier,
wrote to President Abraham Lincoln, demanding that he ensure that blacksoldiers were “fairly treated.” She was adamant in telling Lincoln that
it was “wicked, and a horrible [o]utrage” for “one man to own another”
because it was robbery. Robbing black people of their labor was, however,“but a small part of the robbery.” Making them brutes by taking “theirsouls” was worse.74 That she dared to address the president directly

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illustrates how the Civil War undid certain expectations about hierarchy anddeference to authority.75
Even slaves began writing directly to President Lincoln for help. Slavescame to expect that the federal government and the national army, entities
more powerful than individual slaveholders, would protect them, because
they believed that the United States was their country as much as it was
Lincoln’s—and more so than that of slaveholders who had seceded from theUnion.76
But as Hannah Johnson had feared, black soldiers were not “fairly
treated.” First, they were not paid the same as white soldiers until March
1865, in part because of the Union’s reluctance to resolve the question of
the legal condition—free or slave—of confiscated slaves.77 In spite of awritten promise of equal pay at the time of enlistment, black soldiers did
not receive “a cent” for more than a year, as Colonel Thomas Higginson,commander of the First South Carolina Colored Volunteers, complained.78
Unequal pay stipulated in Section 15 of the Militia Act of 1862 was basedon the assumption that the function of black troops would be to relieve
white soldiers as labor battalions. Unequal pay was also an attempt toappease white soldiers by not placing them on the same level with former
slaves.79
In spite of numerous complaints by Higginson and John A. Andrew, thegovernor of Massachusetts, Lincoln did nothing. With a view to his reelection in 1864, he did not want to offend dissident Republicans or give
Democrats a new weapon of attack. Senator James Henry Lane of Indiana
rejected the idea of equal pay because he regarded black soldiers’ service as
not “worth as much as that of white men.”80 A series of protests by officersof black regiments and their men (protests that occasionally resulted in theprotestors’ execution) finally led the War Department in June 1864 to grant
equal pay retroactive to January 1, 1864, provided the soldiers in question
had been free on April 19, 1861. Higginson expressed outrage at theproviso.81 Only toward the end of the war did black soldiers who had notbeen free on April 19, 1861 receive equal pay.82
Even worse than the Union army’s paying black soldiers less than whitesoldiers was the Confederate government’s policy of treating black soldiers
as property. In anticipation of such treatment, Lincoln issued in April
1863 the General Orders No.100, commonly known as the Lieber Code,to set rules for both the Union and Confederate armies to observe. Article
42 declared that “as far as the law of nature is concerned, all men are
equal,” notwithstanding the existence in the Southern states of “[s]lavery,

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complicating and confounding the ideas of property, (that is of a thing) andof personality, (that is of humanity).” The code provided that, in the caseof a slave fighting for the Union Army being captured by the Confederatearmy, he should be “immediately entitled to the rights and privileges of afreeman.”83
But the Confederate government ignored the Lieber Code. In April 1864
at Fort Pillow, Tennessee, Confederate soldiers killed 195 black as well as
102 white soldiers of the Union Army after they had surrendered in whatbecame known as the Fort Pillow massacre. While denying responsibility
for the massacre, Major-General Nathaniel B. Forrest declared, “I regard
captured negroes as I do other captured property and not as captured
soldiers.” In response, Major-General C. C. Washburn of the Union Armysent him a copy of the Congressional report on the massacre, which held
Forrest accountable for the atrocity, with a copy of General Orders No.100
enclosed, reminding him that Confederate soldiers would meet retaliation if
they failed to follow the rule.84
On May 19, 1864, Mary Elizabeth Wayt Booth, the widow of Maj. Lionel
F. Booth, commanding officer at Fort Pillow, visited the White House to
ask President Lincoln to regard widows and children of colored soldierskilled in the massacre “as if their marriages were legal” so that they, too,
could receive pensions. Lincoln referred her to Senator Charles Sumnerwith his note saying, “She makes a point, which I think very worthy of
consideration.”85
The Fort Pillow massacre, in which most of the black victims wereformer slaves and the white victims were Tennessee Unionists, prompted
Congress on July 4, 1864, for the first time to pay pensions to the widows
and children of colored soldiers if “the parties had habitually recognizedeach other as man and wife” for at least two years prior to enlistment
and also if “such widow and children are free persons.” The requirement
for free status was, according to Congressman Sidney Perham of Maine,
intended to eliminate “impositions,” such as a female from a loyal slavestate (thus, legally in bondage) leaving the state to marry a black soldier.86
Disruption of slaves’ marriages, often followed by remarriages, occurred
frequently in Upper South states such as Tennessee. This prevalent pattern
could make it difficult to distinguish legitimate marriages from pretextual
ones, sometimes casting doubt on the former and thereby making it hardto determine who was qualified to receive a pension and who was not.87
Legislature in 1866 removed the language of “free persons” and the twoyear requirement, and permitted marriages if they were deemed satisfactory

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81

by the Commissioner of Pensions as those who “habitually recognized eachother as man and wife, and lived together as such.” An act passed in 1873
included the widows of “colored or Indian soldiers and sailors” with thesame requirement as that of 1866.88
Within the Confederacy, the idea of enlisting black men had been
discussed as early as 1861, but the Union’s recruitment of soldiers who
were “the property of those against whom they are sent to fight,” as one
rebel put it, combined with Confederate losses at Gettysburg and Vicksburg,
revived interest in the prospect.89 A slaveholder in Mississippi lamented
in a letter to Jefferson Davis, the president of the Confederacy: “Visburg
is gone and as a consequence Mississippi is gone and in the opinion of
allmost every one here the Confederacy is gone,” making it expedient “tocall out every able bodied Negro man.” He considered the matter so urgent
he offered to “send off every negro man” he had “tomorrow morning.”90
Another slaveholder wrote to Davis from Georgia that slaveholders there
were “willing, yea anxious to put their negroes into the war.”91
In explaining the aptitude of slaves to serve as soldiers, one slaveholder
confessed that they were less troublesome than white men.92 Proponents ofenlisting slaves in the military were even willing to accept emancipation asa consequence, resulting in an obvious contradiction that they advocatedthe Confederacy emancipate slaves in order to maintain a society basedon slavery. The Confederacy authorized the enlistment of black men in
March 1865, just a month before the end of the war. General Robert E. Lee
had endorsed the enlistment of black men with a promise of “immediate
freedom” for black soldiers and freedom for their families at the war’s end
with what he characterized as “the privilege of residing in the South.” Noneof his proposals had come to fruition at the time he surrendered.93
CONCLUSION: “LIVING AMONG MEN AND NOT AMONG ANGELS”
The Fourteenth Amendment to the United States Constitution isbest known today for Section 1, which defines national citizenship andguarantees equality under the law, and not Section 2, which supersedes thethree-fifths clause. In counting “the whole number of persons,” without afractional subtraction, the Fourteenth Amendment “connect[ed] the interestof the States with their duty,” not by linking representation to taxation but
by linking representation to African American men’s right to vote.
Although voting requirements remained at the discretion of the states, theprovision notionally penalized states for denying African American men the

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right to vote. “Notionally” because the penalty was never invoked during
the many decades following enactment of the Fourteenth Amendment,
during which black people were effectively disfranchised.
The need for the Fourteenth Amendment had become urgent by 1868,the year it was ratified because the Civil Rights Act of 1866 was in dangerof been invalidated by the Supreme Court. The Fifteenth Amendment thatguaranteed black men’s right to vote and was ratified in 1870 was needed
to bridge the gap between reconstructed Southern states whose new state
constitutions extended suffrage to black men and the Northern states that
had yet to enfranchise them.
But the Fourteenth and Fifteenth amendments failed to prevent thedisfranchisement of African Americans in Southern states, which had firstbeen carried out by extra-legal violence and subsequently by revisions
to state constitutions and enactment of state laws depriving blacks of theability to vote.94 Nearly a century after enactment of these amendments,
Congress finally addressed the issue comprehensively through passage of
the Civil Rights Act of 1964 and Voting Rights Act of 1965.
When Congress debated the Fourteenth Amendment in 1866, Thaddeus
Stevens, a chief architect of Congressional Reconstruction, admitted thatthe amendment fell short of his hopes of finally eradicating the divisionthat the three-fifths clause symbolized and perpetuated. He had hoped forincluding the enfranchisement of African Americans in the amendment,
dreaming that once “purified,” the United States would tolerate “nodistinction.” When his dream proved unattainable, he accepted “mutual
concession,” as “our only resort”— just as the framers of the Constitution
had done when they agreed to the three-fifths compromise in the first place.
Stevens echoed Madison in explaining his acceptance of “so imperfect a
proposition,” recognizing “I live among men and not among angels.” Hewould, he declared “take all I can get in the cause of humanity and leaveit to be perfected by better men in better times.”95 The 2011 disagreementin the House of Representatives over acknowledgement of the three-fifths
clause suggests that the United States is still awaiting “better men—and
women—in better times.”
NOTES
1
In both the original Constitution ratiﬁed in 1788 and the Fourteenth Amendment of1868, Native Americans were excluded from the calculation for apportionment, with thesame wording of “excluding Indians not taxed.” They were regarded as belonging to theirown tribal groups until they became American citizens in 1924. Claudio Saunt, Unworthy

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83

Republic: The Dispossession of Native Americans and the Road to Indian Territory (NewYork: W. W. Norton & Company, 2020), ch.1.
2
The other provisions that deal with slavery—the fugitive slave clause and the slave-tradeclause—similarly avoided using the words “slave” and “slavery.” Indeed, the word “slavery”
appears for the ﬁrst time in the Constitution in the Thirteenth Amendment, the amendmentthat abolished it.
3
See “After wrangling, Constitution is read on House ﬂoor, minus passages on slavery”
The Washington Post, February 25, 2011. https://www.washingtonpost.com/national-politics/
after-wrangling-constitution-is-read-on-house-ﬂoor-minus-passages-on-slavery/2011/01/06/
ABLmphD_story.html; and “House to read Constitution out loud again on Thursday,”National Constitution Center Blog, January 5, 2017. https://constitutioncenter.org/blog/
house-to-read-constitution-out-loud-again-on-thursday.
4
Leonard L. Richards, The Slave Power: The Free North and Southern Domination
1780–1860 (Baton Rouge: Louisiana State University Press, 2000), 55. Direct tax was
imposed in 1798, 1812, 1814, and 1815.
5David Brion Davis, The Problem of Slavery in the Age of Revolution 1770–1823 (Ithaca:
Cornell University Press, 1975), 104.
6
Davis argues that “neither Jeﬀerson nor Jackson would have been elected.” David Brion
Davis, Inhuman Bondage: The Rise and Fall of Slavery (New York: Oxford University
Press, 2006), 17.
7Freehling contends that instead of the Age of Jeﬀerson, we could have had the Age ofAdams. William W. Freehling, The Road to Disunion: Secessionists at Bay 1776–1854 (NewYork: Oxford University Press, 1990), vol. 1, 147.
8
Richards, The Slave Power, 57. However, historians diﬀer as to the proportion.
Freehling asserts “only slightly.” Freehling, The Road to Disunion, 147. Robinson argues theSouthern share of congressional representation declined from 46.5% in 1790 to 42.3% after
1820. Donald L. Robinson, Slavery in the Structure of American Politics 1765–1820 (NewYork: Harcourt Brace Jovanovich, Inc., 1971), 180.
9
Freehling, The Road to Disunion, 559; Richards, The Slave Power, 45, 49–51, 56–59;
Davis, Inhuman Bondage, 276–78; in the crucial 1830 s the three-ﬁfths clause provided an
additional 21 votes in Congress to the South. Saunt, Unworthy Republic, 77.
10Richards, The Slave Power, chs.6–7; Robinson, Slavery in the Structure of American
Politics, ch.11.
11
Both Fehrenbacher and Ohline disagree with Lynd’s theory of conspiracy that theNortherners accepted the three-ﬁfths in exchange for the Northwest Ordinance. Staughton
Lynd, “The Compromise of 1787,” Political Science Quarterly (The Academy of Political
Science), vol. 81, no.2, 1966; Fehrenbacher, The Dred Scott Case: Its Signiﬁcance inAmerican Law & Politics (New York: Oxford University Press, 1978), 79–81; Howard A.
Ohline, “Republicanism ad Slavery: Origins of the Three-Fifths Clause in the United States
Constitution,” The William and Mary Quarterly, vol. 28, no. 4 (Oct. 1971), 566–67.
12
Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North(Chicago: The University of Chicago Press, 1967); Ira Berlin, The Long Emancipation: The
Demise of Slavery in the United States (Cambridge: Harvard University Press, 2015).
13
The three clauses of the constitution dealing with slavery “embody no ruling principle
except compromise for the sake of union.” Fehrenbacher, The Dred Scott Case, 26.
14
Davis, Inhuman Bondage, 274; Davis, The Problem of Slavery in the Age of Revolution,
103–104.
15
Davis, The Problem of Slavery in the Age of Revolution, 103–104.
16
Niles’ Weekly Register, December 4, 1819, 218.
17
Ibid.

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18
While many historians identify the origin of the clause with the Constitutional
Convention, the ratio had emerged during the Congress of Confederation, as indicated by
Fehrenbacher and Robinson. Fehrenbacher, The Dred Scott Case, 19–20, 601; Robinson,
Slavery in the Structure of American Politics, 156.
19
Native Americans were not members of the United States but “residing within its
legislative jurisdiction.” James Madison, Alexander Hamilton and John Jay, The Federalist
Papers (New York: J. and Mclean, 1788) Reprint. New York: Penguin Books, 1987, XLII.
20The Federalist Papers., LI.
21Charles Francis Adams, Works of John Adams, vol. 2 (Boston: Little, Brown andCompany, 1850), 496.
22
Ibid., 496fn3. It appears that Chase, unlike others, used “negroes” to mean slaves.
23
Journal of the Continental Congress (hereafter “JCC”), vol. 6, 1098–110.
24
Although Jan Lewis identiﬁes it as 1775 based on the papers of James Madison,
it is more likely to be 1776. Jan Lewis, “The Three-Fifths Clause and the Origins ofSectionalism,” in Congress and the Emergence of Sectionalism: From the Missouri
Compromise to the Age of Jackson, eds. Paul Finkelman and Donald R. Kennon (Athens:
Ohio University Press, 2008), 25.
25
Robinson, Slavery in the Structure of American Politics, 148.
26
JCC, vol. 6, 1100; Fehrenbacher, The Dred Scott Case, 601.
27
Howard A. Ohline, “Republicanism and Slavery: Origins of the Three-Fifths Clause in
the United States Constitution,” The William and Mary Quarterly, vol. 28, no. 4 (Oct. 1971),
564.
28
Margo J. Anderson, The American Census: A Social History, 2nd ed. (New Haven: Yale
University Press, 2015), 11.
29
JCC, vol. 25, 948.
30
Ibid. Whites is capitalized here because of the eighteenth-century convention ofcapitalizing nouns.
31
Ibid., vol. 24, 281.
32
Ibid., vol. 24, 295–311.
33
It appears that a “black” meant a slave. In fact, during the era under discussion, blackand slave were often used interchangeably.
34
JCC, vol. 25, 949.
35
Ibid.; Robinson, Slavery in the structure of American Politics, 157.
36
Diana Schaub calls it “condition-based.” Diana Schaub, “Three Fifths of All Other
Persons,” Law& Liberty, February 5, 2018. https://lawliberty.org/three-ﬁfths-of-all-otherpersons/.
37
JCC, vol. 30, 102.
38
Ibid., 105–108.
39
Article 1, Section 8, Chapter 15 of the U.S. Constitution providing that Congress shallhave power “to provide for calling forth the Militia” is the direct result of Shays’s Rebellion.
Earl M. Maltz, “The Idea of the Proslavery Constitution,” Journal of the Early Republic(Philadelphia: University of Pennsylvania Press), Spring, 1997, 40.
40
Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale
University Press, 1911), vol. 1, 196
41
Ibid., 208, 589–91.
42
Ibid., vol. 2, 223.
43
The Federalist Papers, LIV.
44
Ibid.
45
Orlando Patterson contends that “there has never existed a slaveholding society, ancientor modern, that did not recognize the slave as a person in law.” Orlando Patterson, Slavery

COUNTING DIVERSITY IN AN ATTEMPT TO ACHIEVE UNITY

85

and Social Death: A Comparative Study (Cambridge: Harvard University Press, 1982), 22.
46
Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South(Athens: University of Georgia Press, 1989), 11–13, 88–89; Freehling, The Road to
Disunion, 410–11.
47
David W. Blight, Introduction to My Bondage and My Freedom, by Frederick Douglass(New Haven: Yale University Press, 2014), 368–73. Italics in original.
48
Robert William Fogel, Without Consent or Contract: The Rise and Fall of American
Slavery (New York: W. W. Norton & Company, 1989), 68–72; Robert Fogel and Stanley
Engerman, Time on the Cross: The Economics of American Negro Slavery (New York: W. W.
Norton & Company, 1974), 233.
49
Davis, Inhuman Bondage, 298.
50
Peter Kolchin, American Slavery 1619–1877 (New York: Hill and Wang, 2003), 180.
51
Thomas D. Morris, Southern Slavery and the Law 1619–1860 (Chapel Hill:The
University of North Carolina Press, 1996), 76–77.
52
William Dusinberre, Slavemaster President: The Double Career of James Polk (NewYork: Oxford University Press, 2003), 5, 103–104.
53
Morris, Southern Slavery and the Law, 89–93.
54
Loren Schweninger, ed., From Tennessee Slave to St. Louis Entrepreneur:The
Autobiography of James Thomas (Columbia: University of Missouri Press, 1983), 214.
55
Douglass, My Bondage and My Freedom, 185–87.
56
Michael Tadman, Speculators and Slaves: Masters, Traders, and Slaves in the Old South(Madison: The University of Wisconsin Press, 1989), ch.6; Steven Deyle, Carry Me Back:
The Domestic Slave Trade in American Life (New York: Oxford University Press, 2005),
269–75.
57
Douglass, My Bondage and My Freedom., 30 & 32.
58
Kolchin, American Slavery, 23; “Slave Marriages,” DeBow’s Review, August 1855, 130.
59
Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York:
Vintage Books, 1972), 27.
60
Morris, Southern Slavery and the Law 1619–1860, 66–68, 83; Genovese, Roll, Jordan,Roll, 53.
61
The Speech of Henry Berry in the House of Delegates of Virginia, on the Abolition of
Slavery, January 16, 1832, 3–4.
62
Petition of Inhabitants of New Bern to the General Assembly, 15 December 1831, in
Loren Schweninger, ed., The Southern Debate over Slavery (Urbana: University of Illinois
Press, 2001), vol. 1: Petitions to Southern Legislature, 1778–1864, 131–34. Free black
people of North Carolina were disfranchised in 1835. Ibid., 134.
63
Oliver P. Temple, East Tennessee and the Civil War (Nashville: Fisk University Library
Negro Collection, 1899) Reprint. New York: Books for Libraries Press, 1971, 108–10.
64
Barbara Jeanne Fields, Slavery and Freedom on the Middle Ground: Maryland during
the Nineteenth Century (New Haven: Yale University Press, 1985), 71.
65
Petition of Residents of Maury, Bedford, Giles, Hickman, Williamson, Lincoln Counties
to the Tennessee General Assembly, 1832, in Schweninger, The Southern Debate over
Slavery, 137–39.
66
Arthur F. Howington, “ ‘Not in the Condition of a Horse or an Ox’: Ford v. Fordthe Law of Testamentary Manumission, and the Tennessee Court’s Recognition of Slave
Humanity,” Tennessee Historical Quarterly, vol. 34, no. 3 (Nashville: Tennessee Historical
Society, 1975).
67
Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (New York: W. W.
Norton & Company, 2010), 244–45.
68
Statues at Large, 37th Congress, 1st sess., 319 (First conﬁscation act of 1861): 37th

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Congress, 2nd sess. 355 (additional Article of War of 1862): Ibid., 591 (Second conﬁscation
act of 1862): Ibid., 599 (Militia Act of 1862).
69
Address of Hon T. A. R. Nelson to the People of East Tennessee, 3 Oct. 1862, The Warof the Rebellion: A Compilation of the Oﬃcial Records of the Union and the Confederate
Armies, ser. I, vol. xvi, pt.2, 909–11. Readers wishing to learn more about Lincoln’s
composition of the Emancipation Proclamation and his decision to exempt Tennessee andother areas may consult John Hope Franklin’s classic, The Emancipation Proclamation(New York Harlan Division, Inc. 1994; org. ed. 1963), as well as Foner, Fiery Trial, 241–42,
and Joseph P. Reidy, Illusions of Emancipation: The Pursuit of Freedom & Equality in the
Twilight of Slavery (Chapel Hill: The University of North Carolina Press, 2019), 35–37.
70
William D. Bickham, Rosecrans’ Campaign with the Fourteenth Army Corps or
the Army of the Cumberland: A Narrative of personal Observation, with An Appendix,
consisting of oﬃcial reports of the Battle of Sone River (Cincinnati: Moore, Wilstach, Kerp
& Co., 1863), 115–16.
71
Ira Berlin et al., Slaves No More: Three Essays on Emancipation and the Civil War(Cambridge: Cambridge University Press, 1992), 203.
72
Belin et al., Freedom, ser.2, 657–60.
73“Testimony by the Commissioner for the Organization of Black Troops in Middle
and East Tennessee before the American Freedmen’s Inquiry Commission,” in Ira Berlin
et al., Freedom: The Wartime Genesis of Free Labor (Cambridge: Cambridge University
Press, 1993), vol.1, ser. 2 The Upper South, 420.
74
Ira Berlin et al., Freedom: A Documentary History of Emancipation 1861–1867(Cambridge: Cambridge University Press, 1982) ser. 2: Black Military Experience, 582–83.
75
Reidy, Illusions of Emancipation, ch.3.
76
Berlin et al., Freedom, ser. 2, 1–34.
77
An Act making Appropriation for the Support of the Army for the Year ending thirtiethJune, eighteen hundred and sixty-ﬁve, and for other Purposes. U.S. Statues at Large,
Treaties and Proclamations of the United States, vol. 13 (Boston, 1866), 126–30; Berlin
et al., Freedom, ser. 2, 362–68; Black soldiers received ten dollars, minus three dollars for
clothing, whereas white soldiers received thirteen dollars plus clothing. Berlin, Freedom,
ser.2, 363.
78
Thomas Wentworth Higginson, Army Life in A Black Regiment (Boston: Fields, Osgood& Co., 1869), Appendix D.
79
Dudley Taylor Cornish, The Sable Arm: Black Troops in the Union Army, 1861–1865(Kansas: The University Press of Kansas), 185–86.
80
Henry Greenleaf Pearson, The Life of John A. Andrew, Governor of Massachusetts,
1861–1865 (Boston: Houghton, Miﬄin and Company,1904), 2 vols, II, 105.
81
Higginson, Army Life in a Black Regiment, Appendix D.
82
Section 5 of the Enrollment Act of 3 March 1865. Cornish, The Sable Arm, 194–95.
83
John Fabian Witt, Lincoln’s Code (New York: Free Press, 2012), 381.
84
Oﬃcial Records, ser.1, vol.32, pt.1, 590–602; John Cimprich and Robert C. Mainfort,
Jr., “The Fort Pillow Massacre: A Statistical Note,” The Journal of American History, vol.
76, issue 3 (December 1989), 830–37.
85
Roy P. Basler, “And for His Widow and His Orphans,” Quarterly Journal of the Libraryof Congress, 27 (Oct. 1970), 290–94. There has been confusion about the ancestry of Lionel
and Elizabeth Booth. Although John R. Sellers of the Manuscript Division of the Library ofCongress identiﬁed Lionel as African American, Basler, Chief of the Manuscript Division,
revealed that Booth was born in Philadelphia, “ﬁve feet inches high, Fair complexion,
Blue eyes, Brown hair.” Basler mentions an episode in which Elizabeth, who had “a lovely
white skin,” was surprised at ﬁnding “a Negro man” in a coﬃn when she visited the grave

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87

containing hastily buried corpses at Fort Pillow. Exchanges of letters between Booth andForrest and his rank, major, indicate that Booth was white. Elizabeth’s being white would notpreclude her appeal to Lincoln on behalf of African American widows. Berlin, Freedom, ser.
2. 303, 542–45.
86
38th Congress, Senate Journal, 1st sess., 3534.
87
McClintock, “Civil War Pensions and the Reconstruction of Families,” The Journal of
American History, vol. 83, issue 2 (September 1996), 474; Gutman reveals that “youthful
unions lasting between two and seven years,” and soldiers were between 18 and 45 of age.
Herbert G. Gutman, The Black Family in Slavery and Freedom, 1750–1925 (New York:
Vintage Books, 1976), 147–54; Tadman, Speculators and Slaves, ch.6.
88
39th Congress, 1st. sess., 56 (Act of June 6, 1866), 42nd Congress, 3rd. sess., 570 (Act ofMarch 3,1873); see also McClintock, “Civil War Pensions and the Reconstruction of Union
Families,” 476; Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins ofSocial Policy in the United States (New York: Belknap Press, 1992), ch.2.
89
Berlin et al., Freedom, ser. 2, 279–81. Italics in original.
90
Ibid., 284–85 (doc. 116). Italics in original.
91
Ibid., 285–86 (doc. 117).
92
Ibid., 283 (doc. 115).
93
Oﬃcial Records, ser. 4, vol. 3, 1012–13.
94
For explication of disfranchisement and violence, see J. Morgan Kousser, The Shapingof Southern Politics: Suﬀrage Restriction and the Establishment of the One-Party South
1880–1910 (New Haven: Yale University Press, 1974); Stephen Kantrowitz, Ben Tillman& the Reconstruction of White Supremacy (Chapel Hill: The University of North Carolina
Press, 2000); Stephen A. West, From Yeoman to Redneck in the South Carolina Upcountry,
1850–1915 (Charlottesville: University of Virginia Press, 2008); C. Vann Woodward,
Origins of the New South 1877–1913 (Baton Rouge: Louisiana State University Press, 1971).
95
Congressional Globe, 39th Cong. 1st sess., 2459 & 3148; Eric Foner, The Second
Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.
W. Norton & Company, 2019), ch.2.