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4 Ala­ bama Emancipation in the Courts I There could not have been much suspense about the action that Ala­ bama’s Constitutional Convention of 1865 would take on emancipation. Everyone who registered to vote in the August 31 election of the convention’s delegates had been required to swear to “abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves.” And when the convention met on Sep­ tem­ ber 12,provisional governor Lewis E.Parsons came into the chamber, all the delegates rose and Parsons administered the same oath to all of them again.1 Moreover, the delegates overwhelmingly had been enemies of secession. In the election of the members of the Secession Convention in De­ cem­ ber 1860, only eighteen of the ninety-­ nine delegates had voted for the secessionist candidates. And in the presidential election the preceding month, just twenty-­ four of the ninety-­ nine had voted for John C. Breckinridge, though Breckinridge had received 54 percent of the state’s vote; forty-­ five of the delegates had voted for John Bell and thirty for Stephen A.Douglas.2 On the other hand, the convention’s members had been deeply involved with the institution of slavery. Just sixteen of the ninety-­ nine delegates had been nonslaveholders. Forty had been planters (owners of twenty or more slaves) and nineteen were large planters (owners of fifty or more slaves).Indeed , six of the delegates had owned more than one hundred slaves, in­ clud­ ing the convention’s president,former governor and senator Benjamin Fitzpatrick of Autauga, who had held 118 slaves in 1860, and his almost equally prominent colleagues, former governor John A. Winston of Sumter, who had owned 112, and future governor Robert M. Patton of Lauderdale, who had owned 117. The majority of the delegates, however, had been smaller slaveholders. Fifty-­ nine of the ninety-­ nine were outside the planter class; twenty-­ nine had owned fewer than five slaves (in­ clud­ ing the sixteen nonslaveholders ) and thirty had owned between five and nineteen.The median Alabama Emancipation in the Courts / 93 slaveholding among all the delegates was thirteen.3 Given the delegates’extensive personal experience with slavery, it is hardly surprising that despite their oath, they approached emancipation with some ambivalence. Convention President Fitzpatrick immediately appointed a committee on the restoration of Ala­ bama to the Union, chaired by Circuit Judge William S.Mudd of Jefferson County,who was one of the twenty-­ one delegates who would become Republicans.The committee debated the question of emancipation for several days and issued majority and minority reports, revealing that the committee had been deeply divided over the legitimacy of the Emancipation Proclamation that the delegates had just sworn to “abide by and faithfully support.” Judge Mudd for the majority proposed a resolution that attempted to finesse the question by acknowledging that “the institution of slavery had been destroyed in the state of Ala­ bama,” but without specifying how that destruction had happened. The resolution then went on, in a version of the words of the Thirteenth Amendment then pending for ratification before the states, to declare that “here­ after there shall be neither slavery nor involuntary servitude in the state, otherwise than for the punishment of crime whereof the party shall be duly convicted.” The minority report was offered by Alexander White of Talladega, a law partner and close friend of Provisional Governor Parsons. White, like Mudd, would become a leader of the state’s Republican Party, and the Republicans would elect him to Congress in 1872. But now, in common with a great many attorneys, he remained convinced that the Emancipation Proclamation was in violation of the Fifth Amendment. For the committee’s minority, he proposed a resolution that specifically attributed emancipation to the Proclamation and the acts of Congress flowing from it and pledged the state to obey them “unless and until the same shall have been declared invalid by the Supreme Court of the United States.” White expected that the Supreme Court would eventually declare the Proclamation unconstitutional , and he did not want to write into the state constitution any provision that would then prevent Ala­ bama from reestablishing slavery if it wished to do so.4 The question divided the convention just as it had the committee. The committee reported on Sep­ tem­ ber 16, and the convention voted to make its reports the special order for Sep­ tem­ ber 18...


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