Founders' Son: A Life of Abraham Lincoln (38 page)

But another general suggested a policy that Lincoln permitted. Benjamin Butler was a Democratic politician from Massachusetts; at the endless Democratic convention of 1860, he had voted consistently for Jefferson Davis for president. But after secession he stayed loyal to the Union. In the spring of 1861, as the commander of a Massachusetts regiment occupying Fort Monroe at the mouth of the James River, on the coast of Virginia, he found himself dealing with slaves who were fleeing from rebel lines. Their owners applied, under a flag of truce, to reclaim them as fugitives. Butler refused, calling them “contraband”—goods that could be seized in time of war—and asked for further directions from Washington. Lincoln, amused, nicknamed the policy “
Butler’s fugitive slave law.” It was an inversion of the fugitive slave law that would have turned the Union Army into one vast underground railroad if universally applied. Lincoln let Butler’s action stand, but let other Union commanders decide the fate of runaways as they wished.

Lincoln’s reaction to Frémont had been correct: the law had to be settled by lawmakers, in Congress, in the states, and by himself as president. In the first fifteen months of the war, Congress passed two laws aimed at slavery in the Confederacy. In the summer of 1861, the Confiscation Act declared any property used for Confederate military purposes—including slaves—forfeit; any slaves who had been laboring for the rebel army who were captured by Union troops, or who fled to Union lines, would automatically be freed. In the summer of 1862, a second Confiscation Act freed any rebel-owned slaves who fell into Union hands, whether they had been employed for military purposes or not—in effect, legalizing Butler’s contraband policy.

Lincoln meanwhile tried to induce the loyal border states to abolish slavery within their own borders. Almost half a million slaves lived in Missouri, Kentucky, Maryland, and Delaware (3.5 million lived in the Confederacy). Lincoln wanted the border states to free their own slaves—for a price.

Some of the founders had wondered how much it might cost to free all of America’s slaves. In 1819, when there were 1.5 million slaves in the country, James Madison
calculated that it would cost $600 million to free and deport them; five years later, Thomas Jefferson estimated that it would cost $900 million. But these had been the speculations of old men (Jefferson had already told Edward Coles that emancipation was the task of the young). Now the pressure of war made the question of compensated emancipation urgent.

Lincoln believed it was wrong to hold men as property, yet under the existing evil of slavery they were indeed held that way. Their owners, he felt, should be recompensed for lost assets. Offering money would also, obviously, make slaveholders more willing to act. In March 1862 Lincoln asked Congress to offer compensation for any border states that would undertake emancipation. In July he appealed to a delegation of border-state politicians to endorse such a process. Slavery, he told them, was doomed “by mere friction and
abrasion” if the war continued. How
much better to end it now, and get paid in the bargain. Ending slavery in the border states would also deprive the Confederacy of all hope of ever peeling them off from the Union. Lincoln made a separate appeal to
Delaware, as a small and easy test case, offering to pay $719,200 over thirty-one years to liberate its 1,800 slaves by 1893.

Lincoln found no takers. As a Kentuckian, he sympathized with the border states, but he also projected too much of himself onto them. He had come to hate slavery; surely, he thought, they would, too. But the time was not yet.

But Lincoln had
another plan in mind. On July 22, 1862, he broached it with his cabinet, reading the draft of a proclamation. It endorsed both the second Confiscation Act and Lincoln’s plans for compensation, but added a new idea: as of the coming New Year, all slaves in the Confederacy would be declared free. When the cabinet recovered from its surprise, most of the secretaries approved the plan. But Seward argued that it would look desperate unless it were issued after a victory. The Peninsula Campaign had just ground to a halt. Perhaps John Pope could give the Union better news.

While waiting for better news, Lincoln was attacked by Horace Greeley in an August 20 editorial in the
New York Tribune
, entitled “The Prayer of Twenty Millions” (approximately the population of the loyal Union, minus the border states). “The Union cause has suffered,” wrote Greeley, “from mistaken deference to Rebel Slavery.” Slavery was the root of the conflict, Lincoln should dig it up. Greeley urged him to enforce the second Confiscation Act zealously.

Lincoln answered with a letter, printed by Greeley, which appeared to dismiss his concerns. “My paramount object,” Lincoln wrote, was “to save the Union, and . . .
not
either to save or to 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.” A hasty reader might have focused on Lincoln’s first hypothetical—saving the Union without freeing any slaves. But the third hypothetical—saving it by freeing some—was what he actually intended with his yet-unissued proclamation. He used his reply to Greeley to slip the thought into the public’s mind.

The news from John Pope at the end of August was the Second Battle of Bull Run. Not until Antietam on September 17 did the Union win something like a victory. Five days later Lincoln met with his cabinet.

He began with a reading from a humorist, not Petroleum V. Nasby this time, but Artemus Ward (the penname and persona of another Ohio journalist, formerly with the
Cleveland Plain Dealer
, Charles Farrar Browne). Ward, a P. T. Barnum–like showman, was exhibiting a wax model of the Last Supper in Utica, New York, when an “egrejus ass” in the audience attacked the figure of Judas. “‘Judas Isscarrot can’t show hisself in Utiky with impunerty by a darn site!’ with which observashun he kaved in
Judassis hed.” Why did Lincoln read that particular story at that particular time? Judas was the icon of betrayal for all of Christendom. Who was Judas in September 1862? Democrats (and of course Confederates) would accuse Lincoln of betraying the order of nature with the drastic step he was about to take. But Lincoln believed that rebels and faint-hearts before them had already betrayed the founders by embracing or shrugging at slavery (“Our republican robe,” he had said at Peoria, “is soiled, and trailed in the dust”). Assuming that Lincoln was not Judas, was he fighting treachery effectively—or only behaving like an “egrejus ass”? Like many a comic, Lincoln expressed his anxieties in disguise.

Lincoln then turned to his proclamation. Now was the time to issue it. “I made the promise to myself ” before Antietam, he said. (Chase, who recorded the scene in his diary, noted that Lincoln hesitated at this point, then added: and “
to my Maker.”)

Lincoln read his draft. As of January 1, 1863, all slaves “within any state, or designated part of a state, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and
forever free.” On the New Year Lincoln would indicate what states or parts of states qualified. The remainder of the proclamation endorsed compensation, colonization, and the second Confiscation Act. The entire cabinet approved, except for Montgomery Blair, who was worried that the proclamation would hurt Republicans in the November elections.

In his slow and sidling way, Lincoln had nevertheless jumped ahead of the ongoing conversation on slavery. The Union would, he hoped, still use monetary inducements to end slavery in the loyal states: as late as December 1862, he asked Congress to ratify a constitutional amendment that would provide for buying out the slaves of all the states by 1900 (Congress would not act on this suggestion). But after the New Year the Union would consider slavery ended in the Confederacy.

Southern newspapers accused him of trying to stir up a race war. Lincoln had never feared such a thing, and he did not fear it now. John Brown had not stirred up a race war, because, as Lincoln put it at Cooper Union, the slaves thought
he was crazy. The second Confiscation Act already gave Confederate-owned slaves an incentive to flee if they could. Lincoln’s proclamation told them that if they sat tight, then whenever the Union armies arrived, their freedom would arrive also.

The language of his September message, called the Preliminary Emancipation Proclamation, and of the Final Emancipation Proclamation on January 1, was dry and muted; the final version contained only one small flourish about “the gracious favor of Almighty God,” and the roll—like “found” poetry in legalese—of “then, thenceforward, and forever.” Lincoln kept to legalisms because of the nature and scope of what he was doing. The Emancipation Proclamation was a war measure: “a fit and necessary war measure for suppressing . . . rebellion,” as the final proclamation put it. But his only power to issue it derived from his powers as “Commander-in-Chief . . . in time of
actual armed rebellion.”

The possibility that the federal government might use its war powers to free the slaves had been raised as early as the founding. In 1788,
Patrick Henry, in a last-ditch effort to prevent Virginia from ratifying the Constitution, warned the Virginia ratifying convention that
the language of the Preamble would allow Congress to free slaves in wartime to fight as soldiers. “Have they [i.e., Congress] not power to provide for the general defense and welfare? May they not think that these call for the abolition of slavery?” James Madison, champion of the Constitution against Henry’s attacks, scoffed: “Such an idea never entered into any American breast, nor do I believe it ever will.” Yet in the 1830s and 1840s such an idea entered into the breast of
John Quincy Adams, who argued, during his postpresidential career as a congressman, that in the case of an invasion or a slave uprising, either of them large enough to require federal action, Congress could free slaves under its war powers.

Patrick Henry’s prophecy was recorded in
Elliott’s Debates
, which Lincoln owned. John Quincy Adams’s speculations were common knowledge among Republicans: Charles
Sumner had asked Charles Francis Adams to reprint his father’s speeches during the run-up to the election of 1860. Lincoln’s only innovation was to do the deed as president. But he could only do it as commander in chief, fighting a rebellion. Hence his legalistic language.

Hence also the geographical limits of the Emancipation Proclamation. Lincoln freed slaves who were as yet out of the control of the Union. A map of the territory the Emancipation Proclamation did not cover was almost a map of the progress of Union armies as of January 1863. New Orleans and the parishes of southeastern Louisiana, occupied in May 1862, were exempt, as was southeastern Virginia (the Union’s base for the Peninsula Campaign). Andrew Johnson, who had been appointed the Union’s military governor of Tennessee in March 1862, had procured an exemption for his entire state. The proclamation, of course, did not apply to the loyal states of Missouri, Kentucky, Maryland, or Delaware—or to the northwestern counties of Virginia, which were forming themselves into a new, unionist state, West Virginia. They were not in rebellion. Lincoln’s powers as commander in chief extended to the entire Union (in suspending habeas corpus, for example). But not his powers as commander in chief to free the slaves of rebels.

Even so, the Emancipation Proclamation represented a dramatic extension of the Republican Party’s program. In 1861 Lincoln and his party thought slavery was wrong and ought to be restricted. By 1863 they thought it was wrong and ought to be ended by fiat wherever rebels still held sway. The change had come under the pressure of war. Events, as Lincoln would say in 1864, had controlled him. But he had taken advantage of events.

To his cabinet, Lincoln attributed the timing of the Emancipation Proclamation to a promise he had made to his Maker. But the proclamation also allowed him to reverse a despairing judgment he had once made of himself. In 1841, in the depths of his depression over his then-broken-down courtship of Mary Todd, he had told Joshua Speed that “he had done nothing to make any human being remember that he had lived.” Over two decades later, when Speed was visiting Washington, Lincoln reminded him of that conversation and said, “with
earnest emphasis,” that thanks to the Emancipation Proclamation, he would at last be remembered.