President Lincoln- The Duty of a Statesman

by William Lee Miller

  The economic power of slavery was one immense barrier to its ending; the constraint of the Constitution as almost universally understood was another. In the inaugural Lincoln had said—what the Republican Party said, what almost everybody said, even including originally the abolitionists—that the federal government had no power over slavery in the states.

  It had been thought at America’s beginning that under the contagion of liberty slavery would gradually end, but by Lincoln’s time, historian Peter Kolchin writes, “expectations that the peculiar institution would wither away had themselves largely withered away.”

  Eight of Lincoln’s fifteen predecessors, five of the first seven presidents, had themselves been slaveholders. For fifty of the seventy-two years since the first president was inaugurated, the American head of state had been a slaveholder.

  The oath of office had been administered to Lincoln by the onetime slaveholder Roger Taney, who had been appointed by the slaveholder Andrew Jackson to succeed the slaveholding John Marshall.

  And slavery had the power not only of economic interest and of formal and political advantage but also of a deep racial consciousness and racial fear.

  Because the “property” in this case consisted of millions of grossly mistreated human beings, there were unique elements of fear, not only in the South but in the North, about what liberation would mean. And the original universal ideals ironically had a double effect: they placed slavery potentially under moral condemnation but perversely they could make the racism it rested on worse. In order to affirm Liberty and Equality, much of the white population under conditions of slavery made a categorical exclusion of black persons.

  In the House of Representatives on February 1, 1836, a notorious South Carolina congressman named James Henry Hammond had concluded: “I feel firmly convinced that, under any circumstances, and by any means, emancipation, gradual or immediate, is impossible…slavery can never be abolished.”

  CHAPTER TWELVE

  I Felt It My Duty to Refuse

  PRESIDENT LINCOLN would find in the same paragraph of the Constitution that made him commander in chief this rather surprisingly unqualified, unchecked, quite explicit grant: “he shall have the Power to grant Reprieves and Pardons for Offenses against the United States.”

  As we will see in Chapters 16 and 17, Lincoln in his use of the pardon power was usually merciful to individuals caught up in something beyond their control in which they ran afoul of legal judgments—to farm boys who fell asleep on sentry duty, to Union soldiers who left camp to make sure their girlfriends had not taken up with rivals, to ordinary citizens on the Confederate side because of where they lived, to German speakers who did not understand what they had been told. His generosity in the use of that power would come to be much praised and would eventually be part of his legend.

  But not everyone praised it. Critics would insist that tender mercy was not what a statesman ought to exercise, and not what justice and the national interest required.

  One charge was that Lincoln was too easily swayed by the entreaties of large numbers of citizens, of eminent figures, of friends of the accused and friends of his own. General Sherman, one of the persistent critics, complained that Lincoln found it hard to hang spies “when a troop of friends follow the sentences…with earnest appeals.”

  Another charge was that he was a politician too responsive to appeals by politicians. It is true that when you read through the cases of Union soldiers found guilty by courts-martial, you discover that when a congressman asked for a pardon for some “boy,” he almost invariably got it.

  But the most common complaint by Lincoln’s critics was that he was too easily moved by a personal, emotional appeal, particularly from women. His own attorney general, Edward Bates, according to Francis Carpenter, said that Lincoln was almost an ideal man, lacking only one thing:

  I have sometimes told him…that he was unfit to be entrusted with the pardoning power. Why, if a man comes to him with a touching story his judgment is almost certain to be affected by it. Should the applicant be a woman, a wife, a mother, or a sister,—in nine cases out of ten, her tears, if nothing else, are sure to prevail.

  The pardon clerk working in the Justice Department under the attorney general made the same point:

  My chief, Attorney Bates, soon discovered that my most important duty was to keep all but the most deserving cases from coming before the kind Mr. Lincoln at all, since there was nothing harder for him to do than to put aside a prisoner’s application and he could not resist it when it was urged by a pleading wife and a weeping child.

  In the first winter of Lincoln’s presidency, 1861–62, there would come to his desk an appeal for mitigation of punishment that would seem to be just the sort of case that the tenderhearted Lincoln would find impossible to resist. The accused was still a relatively young man, a “respectable Presbyterian” we are told, from a “respectable sea-going family” in Portland, Maine. In the Docket of Pardon Cases in the National Archives we read: “Clemency invoked by Rev. J. W. Chickering, Portland Maine, who says the accused was once a boy in his Secondary School and his parents are members of his [the Reverend Mr. Chickering’s] church.” The accused also had a young and pretty wife, and we may surely infer that there was weeping. The Elmira Daily Advertiser reported that when the accused had been sentenced to death and was then recommitted to the notorious New York City prison, the Tombs, “he was met by his wife. An affecting interview took place.” If a presumably hard-bitten reporter found a meeting between the condemned husband and his wife affecting, surely this unusually compassionate president would be deeply moved.

  They had a young son: so a mother and a child were appealing for the life of the father. At the climax of the case a powerful advocate from New York, a woman named Rhoda White, the wife of a Republican judge, a friend of Horace Greeley, an active advocate who had written Lincoln before, would join in the appeal. There would be a veritable phalanx of quite possibly weeping women.

  The accused’s neighbors in Portland would submit two petitions for clemency. One of these petitions said that the undersigned were “deeply moved by a painful sympathy for the aged and venerated mother of the convict, for his wife and only child.”

  Indeed, “a troop of friends” would make “earnest appeals.” Lincoln would write that he had received petitions for clemency from “a large number of respectable citizens.” And afterward he wrote that there would be more, including a petition from eleven thousand New Yorkers.

  As to politicians, the governor of New York would make an appeal, and a protest meeting would be held in New York City the day before the execution. And all that the earnest and presumably touching appeals sought was not a complete pardon but only a commutation of the death sentence to “imprisonment for life.” Rhoda White would write: “His wife, an interesting woman of twenty two and his aged Mother are here, and through me implore you to commute the punishment.”

  So what did the tenderhearted president do? He turned them all down.

  It is instructive to notice how Lincoln phrased his decision: “I have felt it to be my duty to refuse.” This was a duty, a moral imperative, not the outcome of a calculation of contending considerations.

  And what was the moral necessity that derailed Lincoln’s mercy? The records of the Circuit Court of the United States for the Southern District of New York in the Second Circuit, with flowering verbosity and magnificent redundancy, summarize the case in these words:

  On the Eighth day of August in the year of our Lord one thousand eight hundred and sixty with force and arms in the River Congo on the Coast of Africa, out of the jurisdiction of any particular state of the United States of America, in waters within the admiralty and maritime jurisdiction of this court, the said Nathaniel Gordon, then and there being master of a certain vessel being a ship called the Erie…did piratically and feloniously forcibly confine and detain eight hundred negroes…in and on board of said vessel, being a ship called the Erie, with the intent o
f him the said Nathaniel Gordon to make slaves of the aforsaid eight hundred negroes.

  Nathaniel Gordon, in other words, was a slave trader. He was the captain of the full-rigged five-hundred-ton ship Erie, which had been sighted in August 1860 at the mouth of the Congo River by the USS Mohican and signaled to show its colors. The Erie raised an American flag and shortened sail.

  The Mohican, part of the African Squadron, had the assignment of apprehending violators of the American laws against the slave trade. The boarding party from the Mohican discovered 897 Africans tightly packed together below deck of the Erie, and it arrested Captain Gordon and other officers. The Africans were released to an American agent in Monrovia, Liberia, after 37 had died en route; Gordon and the others were sent to New York for trial.

  A reader today might assume that no president would extend clemency to a slave trader. But in the context of the time, that was by no means clear. American history up to that point had a deep ambivalence not only about slavery but even about the slave trade.

  It is true that most of the Founders condemned slavery. It is also true that the Philadelphia framers tied their prose in knots to avoid using the actual words “slave” and “slavery” in the Constitution. They made this gesture, said Madison, to avoid admitting in this fundamental document that there could be “property in man.” Lincoln had put it this way, in his first great speech in Peoria in the autumn of 1854:

  Thus, the thing is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time…They hedged and hemmed it in to the narrowest limits of necessity.

  It is true that fervor of the Revolution led to the abolishing of slavery in the Northern states—all the original thirteen colonies had had at least some slaves—which was no small accomplishment.

  It was true that, as Lincoln had said in his summary of events in his 1854 speech, “[i]n 1794, they prohibited an out-going slave-trade—that is, the taking of slaves FROM the United States to sell.” And that was, indeed, “the first action against the trade by any nation.”

  It was further true, as Lincoln said that “[i]n 1807, in apparent hot haste, they passed the law, nearly a year in advance to take effect the first day of 1808—the very first day the constitution would permit—prohibiting the African slave trade by heavy pecuniary and corporal penalties.”

  It is yet again true, as Lincoln the antislavery politician would say in his last item: “In 1820, finding these provisions ineffectual, they declared the trade piracy, and annexed to it, the extreme penalty of death.” In another place in his 1854 speech, twisting the ironies in the South’s position, he said: “In 1820 [the South] joined the north, almost unanimously, in declaring the African slave trade piracy, and in annexing to it the punishment of death.” And that almost unanimous act was said by scholars to be the most severe slave-trade act of any nation.

  But this sequence of actions against slavery and the slave trade was only the more benign thread in the early American story on slavery. Lincoln in Peoria (and for the next six years) had been doing what we all do—selecting the parts of our country’s past that vindicate our current position: he was arguing against Senator Douglas’s willingness to allow slavery to enlarge into new territory, and against Douglas’s don’t-care shoulder-shrugging about the moral chasm between slavery and freedom. He was maintaining that the attitude of the Founders and shapers of the nation toward slavery had been “hostility to the principle, and toleration, only by necessity.”

  But that was one part of the story. There was another, darker part. If slavery had been to the framers, as Lincoln had said, a “wen or a cancer” to be hidden away, then it was a cancer that had grown. As scholar Peter Kolchin writes: “Indeed, for all the talk of natural rights, manumission, and abolishing imports from Africa, the slave population of the new nation in 1810 was more than twice what it had been in 1770.” And by 1860 that number had tripled. Lincoln’s America had four million slaves. The cancer was not hidden and had not been cut away.

  Looked at from this darker side, the framers of the American Constitution, those demigods in Philadelphia, had not really distinguished themselves on the subject of slavery. They did not fight as hard on issues of slavery as Madison and Jefferson had done in Virginia on religious liberty, or as Madison and James Wilson would do in that convention on small state–large state matters, or indeed as the whole people of the British colonies in America would do on the touchy issue of taxation without representation—which makes us “slaves.”

  On the substantive issues in Philadelphia the antislavery majority would push, but not too hard, and when (as Madison reported to Jefferson) “S. Carolina and Georgia were inflexible on the point of slaves,” they made compromises with the existing reality of slavery, cloaked in euphemism. Don Fehrenbacher describes the result: “It is as though the Framers were half-consciously trying to frame two constitutions, one for their own time and the other for the ages, with slavery viewed bifocally—that is plainly visible at their feet, but disappearing as they lifted their eyes.”

  One of the stark realities at their feet was the transatlantic slave trade, the terrible traffic that showed the monstrous institution at its worst. In Philadelphia in 1787 the framers wanted to allow Congress to prohibit the slave trade starting in 1800, but General Charles Pinckney of South Carolina proposed to move that date back to 1808. This would mean twenty more years (1788–1808) of legal slave trading. James Madison protested: “Twenty years will produce all the mischief…So long a term will be more dishonorable than to say nothing.” But an offstage bargain had been made, and the revised provision passed. This meant that for the first twenty years of its history the new nation born in freedom would have not only a large, growing institution of human slavery but a flourishing and altogether legal transatlantic slave trade. (As Lincoln had noted, up until 1808 the Constitution of this land of the free had forbidden the ending of the slave trade.) During the years 1800 through 1808—the period of time added that August afternoon in Philadelphia—South Carolina imported some forty thousand new African slaves into the United States.

  The American outlawing of the slave trade, when it finally occurred, did not mean that American participation promptly stopped. On the contrary, in the long years of its illegal but real continuation many successful and profitable voyages were made without interference. Those few slavers who were caught were often acquitted or given pardons. And none at all were hanged. There would be dismissals of charges, ineffectual prosecutions, deadlocked juries, acquittals, forfeitings of bail, escapes, nominal fines, short jail sentences, and full pardons.

  Why did the new United States have the deep ambivalence that this record reflects? Again, a quotation from Don Fehrenbacher neatly summarizes the situation: “At the Constitutional Convention and for the first half century of the nation’s life slavery was an interest (concentrated, persistent, practical, and testily defensive) while anti-slavery was only a sentiment (diffuse, sporadic, moralistic, and tentative).”

  That “interest” was by no means concentrated in the South alone. New York City’s business with the slave South was so brisk that when secession came there was a considerable movement to have New York City secede also. And when one turns to the slave trade, one discovers that the role of the North was not peripheral but central. Thomas Jefferson, in explaining why the tortured passage condemning slavery (blaming American slavery on the king of England) had been dropped from the Declaration of Independence, wrote not only that South Carolina and Georgia objected but also that “our northern brethren…felt a little tender”—a wonderful phrase—for “though their people had very few slaves themselves, yet they had been pretty considerable carriers of slaves to others.”

  They kept on being carriers of slaves to others. During the century in which the United States had participated in the entirely legal transatlantic slave trade
, the center for building slave-trading ships had been not Charleston, South Carolina, or Norfolk, Virginia, but New York City. And the ports from which the trade was carried on were not as much Savannah and New Orleans as Boston and Newport, Rhode Island, and the old Puritan settlement of Salem. And Portland, Maine.

  And now we come to the key truth: slave trading, although full of risk, was obscenely profitable. Ron Soodalter writes:

  It has been estimated that during the mid-1800’s, when Nathaniel Gordon was pursuing his career, a slave purchased in Africa for approximately $40 worth of trade goods would bring a price ranging from $400 to $1,200…Even after factoring in the cost of outfitting the ship, paying—and paying off—all the people involved in the voyage, and the inevitable loss of “inventory” a successful slaving expedition realized a profit many times…the initial investment…A single successful trip could more than compensate for three or four previous failures, and make the fortunes of investors and captain.

  Heinrich Heine in his poem “The Slave Ship” has the slaver say:

  I got them by barter, and gave in exchange

  Glass beads, steel goods, and some brandy

  I shall make at least eight hundred per cent,