Lacking any means for dealing directly with slavery, Lincoln had assumed from the start that anything he did on the slavery issue must necessarily be on a political track, separate from the military track on which he proposed to win the war and restore the Union. Events had created a new set of circumstances, however. As he told Congress a month later in his annual message, “The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew.” It was not only the slaves who must be freed, but Lincoln and Congress who must free themselves of thinking about slavery purely as a political problem. “We must disenthrall ourselves, and then we shall save our country.”64
LINCOLN AND EMANCIPATION
No other single document, except perhaps the Gettysburg Address, has done so much to fix Lincoln permanently in the constellation of American history as the Emancipation Proclamation. Lincoln himself believed that “as affairs have turned, it is the central act of my administration, and the great event of the nineteenth century.”65 Yet debate has not ceased to rage since the day of the Proclamation’s preliminary publication over what its meaning was to be, or what Lincoln’s real intentions in issuing it were.
Much of that debate was, and still is, fueled by Lincoln himself. This was, after all, the man who criticized abolitionists for rocking the anti-slavery boat, who in 1858 had affirmed that he had “no purpose to introduce political and social equality between the white and the black races” because of the “natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races.”66 And it was he who had asserted that his paramount intention in the war was always to save the Union, and not to do anything one way or the other about slavery unless the doing of it would assist the federal government in restoring the Union:
I would save the Union. I would do it the shortest way under the Constitution. … My paramount object in this struggle is 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. What I do about slavery and the colored race, I do because I believe that it helps save the Union.67
How are we to understand the Emancipation Proclamation when the president who wrote it held beliefs on race that fly straight in the face of equality? And especially when the words of the Emancipation Proclamation seem suspiciously lacking in the eloquence that produced Lincoln’s other great state papers? “Had the political strategy of the moment called for a momentous human document of the stature of the Declaration of Independence, Lincoln could have risen to the occasion,” snarled Columbia University historian Richard Hofstadter in 1948; instead, “the Emancipation Proclamation of January 1, 1863, had all the moral grandeur of a bill of lading.”68
There are actually two questions involved in the debate over the Emancipation Proclamation, one of them about ends and the other about means. There is no reason to doubt the sincerity of Lincoln’s oft-repeated statement that “I have always thought that all men should be free.” Slavery was “founded in the selfishness of man’s nature,” in his desire to shift the burden of work onto the shoulders of others and appropriating the full value of another’s labor to oneself. “Its ownership betokened not only the possession of wealth but indicated the gentleman of leisure who was above and scorned labour.” The right to freely enjoy the fruits of one’s own labor was as much a matter of liberty as any other natural right, and denying it made slavery “a great & crying injustice, an enormous national crime, and that we could not expect to escape punishment for it.” Lincoln might regard a discussion of the civil rights of the freed slaves after slavery as being in a totally different universe of rights (and in this, nineteenth-century writing on law and rights tended to support him), but there was never any real question about the slave’s natural right to liberty and to whatever happiness his labor could bring him.69
Lincoln’s election to the presidency—and as an anti-slavery candidate who needed no electoral votes from the South to get elected—convinced him that the opportunity to put slavery on the path to extinction was now at hand. Emancipation, wrote his Illinois political ally Isaac Arnold in 1866, was Lincoln’s “deepest, strongest desire of the soul,” and from the time of his election Lincoln “hoped and expected to be the Liberator of the slaves.” Another longtime Illinois political friend, Joseph Gillespie, was convinced that Lincoln “had it in his mind for a long time to war upon slavery until its destruction was effected.”70
If the end was clear in Lincoln’s mind, the means were very much another matter. So long as slavery was a matter of individual state enactments and individual state legalization, there was nothing he could do as a citizen to touch it, and not much more he could do as president. “Some of our northerners seem bewildered and dazzled by the excitement of the hour,” Lincoln remarked, even to the point of thinking “that this war is to result in the entire abolition of slavery.” But presidents are only presidents; they do not have plenary powers to do anything they wish. Announcing an end to slavery purely on his own authority would accomplish about as much as if he were “to open that window and shout down Pennsylvania Avenue.”71
Even some of the most ardent abolitionists recognized how difficult state legalization made it for any federal agency or officer to touch slavery. Thaddeus Stevens, the Pennsylvania congressman and radical abolitionist, admitted in 1860 that there was no “desire or intention, on the part of the Republican party… to interfere with the institutions of our sister States”; Owen Lovejoy, the Illinois congressman whose brother had been abolitionism’s first martyr back in 1837, likewise conceded that “I have no power to enter the State of North Carolina”—or any other state, for that matter—“and abolish slavery there by an act of Congress.”72
If no direct path to emancipating slaves beckoned, that did not mean that Lincoln was ignoring indirect paths. He had long believed that any workable notion of emancipation would have to involve “three main features—gradual—compensation—and the vote of the people.” Gradual, so that “some practical system by which the two races could gradually live themselves out of their old relation to each other, and both come out better prepared for the new” and thus “spares both races from the evils of sudden derangement.” Compensated, so that the disappearance of some $6 billion invested in slave ownership did not wipe out the capital necessary to begin paying wages to now-free workers or capsize the entire economy. And with the vote of the people, so that individual state legislatures undid what their own statutes had created, and insulated emancipation from any appeals by disgruntled slave owners to the federal courts.73
This might be a tedious process, Lincoln conceded. But “emancipation will be unsatisfactory to the advocates of perpetual slavery,” no matter how it was packaged, and allowing for it to take effect gradually “should greatly mitigate their dissatisfaction.” During the Lincoln-Douglas debates in 1858, he estimated that gradual emancipation might take “a hundred years, if it should live so long, in the States where it exists”; by 1862, he had shrunk that estimate to thirty-eight years. The example of previous emancipation plans in the West Indies, and even in the early days of the new American republic, was that such plans invariably took on their own speed and finished far ahead of the estimates. So, even while Lincoln professed to have no direct designs on slavery, by November 1861 he was already pressing a gradual, compensated emancipation scheme on the border slave state of Delaware, funded by U.S. bonds. If Delaware took the buyout bait, then the other three border slave states—Maryland, Kentucky, and Missouri—would do likewise; and once the Union was restored, the same process could be set in motion in all the rest of the slave states. By these means, Lincoln explained, “it seemed to him that gradual emancipation and governmental compensation” would
bring slavery “to an end.”74
To make this work, however, Lincoln would have to hold back some of the more zealous of his anti-slavery colleagues. Charles Sumner, the abolitionist senator who had survived his beating at the hands of Preston Brooks in 1856 and was now chair of the Senate Foreign Relations Committee, argued that “under the war power the right had come to [Lincoln] to emancipate the slaves” unilaterally. In time of peace, Lincoln might have no authority to touch slavery, but in time of war, all restraints dropped away in the name of emergency action. “The civil power, in mass and in detail, is superseded, and all rights are held subordinate to this military magistracy.”75
The problem was that no such “war power” might actually exist. The Constitution designated Lincoln as “Commander-in-Chief of the Army and Navy of the United States… when called into the actual Service of the United States” (Article II, Section 2), but no one knew precisely what that meant, much less what war powers it might entail. There was, in fact, no constitutional clarity even on what martial law might mean if commanders in the field had to impose it. On August 31, 1861, one of Lincoln’s most recently minted major generals, the onetime Republican presidential candidate John Charles Frémont, not only declared martial law across the state of Missouri but confiscated the property of anyone “who shall take up arms against the United States” and declared their slaves “free men.” Eight months later, Major General David Hunter issued a similar martial law declaration, declaring any slaves in his district “forever free.”76 Lincoln revoked their proclamations, rebuked both generals, and eventually removed them. Without a firm constitutional plank to rest upon, Lincoln was wary of invoking war powers or martial law as means for freeing slaves, if only because any actions he or his generals might take would then be appealed to the federal courts. Sitting atop those courts was still the grim-visaged Roger B. Taney, who would seize on any opportunity to strike down any form of emancipation in the same way he had struck down attempts to exclude slavery from the territories in Dred Scott.
Other generals tried to evade the legal armor around slavery in more creative ways. In May 1861 a group of three runaway slaves showed up at the gate of Fortress Monroe, where they were interrogated by the fort’s commandant, Major General Benjamin F. Butler. Swiftly a representative from their owner, Confederate colonel Charles King Mallory, appeared with a request that Butler return the slaves, as provided for by the Fugitive Slave Law. Like Frémont, Butler was a political appointee, but he was also a lawyer with a sardonic sense of humor, and the prospect of a Confederate officer demanding the return of his “property” under a law of the same government the Confederate was fighting against amused Butler in the worst way. Butler declared that he would detain the slaves at Fortress Monroe—not only had the officer repudiated the authority of the government whose law he was now expecting Butler to enforce, but since Mallory regarded the slaves as “property,” Butler would also regard them as war-related “property” to be seized in time of war, and so declared the slaves “contraband.” By July, Butler had 900 “contrabands” on his hands.77
This created almost as much legal danger for Lincoln as Frémont and Hunter would with martial law. Lincoln had insisted from the beginning that secession was a legal impossibility; ergo, what was called the “Confederate States of America” was in fact not a nation at all but merely a domestic insurrection. Every textbook on international law and the laws of war taught that seizure of enemy property as “contraband of war” could only take place between sovereign and equal nations. Even then, there was nothing in the rules governing contraband of war that actually made the human “contraband” free. “The possession of real property by a belligerent,” warned Henry Halleck, Frémont’s replacement in Missouri and himself a former lawyer, “gives him a right to its use and to its products, but not a completely valid and indefeasible title, with full power of alienation.” Once the war was over, slave owners would have full right to claim the return of their slaves, and emancipation would be a dead letter.78
Congress also tried to put a legislative oar into the emancipation waters. On July 15, 1861, Lyman Trumbull, the chair of the Senate Judiciary Committee, introduced a bill to authorize the confiscation of the property of anyone “aiding, abetting or promoting insurrection” open to seizure as “prize and capture.” Trumbull’s confiscation bill was immediately denounced as a de facto “act of emancipation, however limited and qualified.” After furious debate and an unseemly amount of to-ing and fro-ing between the Senate and the House of Representatives, the bill was finally passed. Lincoln signed it on August 6, but reluctantly. “The President had some difficulty in consenting to approve the act of Congress,” wrote Treasury Secretary Chase, and according to the New York Times, Lincoln “finally consented only upon the most urgent entreaties of prominent members of the Senate.”79
Lincoln was as unconvinced of the constitutionality of the Confiscation Act as he was of the notion of war powers, especially since the Constitution expressly forbade permanent confiscations of property “except during the life of the person attainted” (Article III, Section 3). If the Confiscation Act confiscated slaves, the federal government would be constitutionally obligated to hold them in trust for the heirs of those punished under its terms, not to free them. Trumbull admitted that the bill was more for political effect than a practical instrument of emancipation, and Maine senator William Pitt Fessenden conceded that it was a “humbug” that Congress adopted only because “something must pass.”80 In July 1862 Congress passed another, more stringent Confiscation Act, which Lincoln also signed, with the same misgivings.
Lincoln did not have any illusions about the usefulness of the Confiscation Acts, and he put little legal muscle behind them. Instead, Lincoln preferred to await the outcome of his legislative solution in Delaware. “Should the experiment inaugurated by this measure of deliverance be crowned by wholesome consequences,” editorialized the Washington Sunday Morning Chronicle, “all the Border States will gradually accept the proposition of the President, and prepare for emancipation.” Lincoln himself assured Charles Sumner that compensated, gradual emancipation would obtain the same ends as martial law, only with greater legal permanence. “The only difference between you and me,” Lincoln told Sumner when he briefed Sumner of the Delaware plan on November 30, “is a difference of a month or six weeks in time.” He assured another impatient abolitionist that the Delaware plan was not unlike the Irishman in the prohibitionist state of Maine, who asked for a glass of soda water but “with a drop of the creature put into it unbeknownst to myself.”81
Lincoln was due for a cruel disappointment. The “Act for the Gradual Emancipation of slaves in the State of Delaware” passed the Delaware state senate, but only by a 5–4 vote, but in the Delaware statehouse a straw poll showed that the bill would fail, and its backers withdrew it. Undeterred, on March 6, 1862, Lincoln proposed to Congress a general compensated emancipation scheme:
RESOLVED that the United States ought to co-operate with any state which may adopt gradual abolishment of slavery, giving to such state pecuniary aid, to be used by such state in its discretion, to compensate for the inconveniences public and private, produced by such change of system.82
But the Border State representatives in Congress were no more enthusiastic for Lincoln’s scheme than the Delaware legislature had been. Charles Wickliffe of Kentucky, a Unionist but also a slave owner, demanded to know in “what clause of the Constitution” Lincoln “finds the power in Congress to appropriate the treasure of the United States to buy negroes, or to set them free.”83
Then came the debacle on the Peninsula, and the rising mutterings from Harrison’s Landing that McClellan was contemplating some form of military intervention, which would surely kick emancipation over into who-knows-when land. On July 12, 1862, with renewed urgency, Lincoln called in the border states’ congressional delegations and warned them that he could not wait forever for them to act. “Our country is in great peril,” Lincoln argued
, “demanding the loftiest views and boldest actions to bring it speedy relief.” If they did not take action on their own “to emancipate gradually,” then the “friction and abrasion” of war would do it for them. Referring to a biblical metaphor of cataclysm, he told them they must read “the signs of the times.”84
Lincoln himself was long past caution on this point. On July 13, Lincoln confided to the secretary of the navy, Gideon Welles, that if the Southern states persisted in their rebellion, it would be “a necessity and a duty on our part to liberate their slaves,” and if that meant resorting to some sort of war powers for justification, he would do it. “We had about played our last card,” Lincoln decided, “and must change our tactics or lose the game.” A week later, on July 22, Lincoln read to an astounded cabinet a preliminary draft of an Emancipation Proclamation, which would free all the slaves in the rebel states.85
As with the compensated emancipation proposal, Lincoln’s Proclamation sounded like a good deal less than what the old-line abolitionists wanted. It provided only for the emancipation of slaves still inside Confederate-held territory, leaving untouched slaves in the border states and in areas of the South already occupied by Federal forces. If Lincoln really had the war powers Charles Sumner thought he had, then constitutionally they could apply only to the places where there was a war in progress; since the border states had never been at war with the federal government, no war powers could be asserted there, unless Lincoln wanted to see his Proclamation end up in Roger Taney’s lap. Since it had been Lincoln’s argument all along that secession from the Union was a legal impossibility, the reclaimed occupied districts were not at war, either. If Lincoln wanted his Proclamation to stick, he would have to zone off the border states and the occupied districts—and their slaves.
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