The Fiery Trial (42 page)

The Constitution allows for the division of a state if authorized by its legislature. But the idea that the Restored Government truly represented Virginia, as Thaddeus Stevens remarked, was a “mockery.” Asked by Lincoln for its opinion about the creation of this new state, the cabinet divided. Seward thought it essential to “plant a free state south of the Ohio.” Bates declared the entire proceeding unconstitutional. Welles agreed, and pointed out that were West Virginia not admitted, all its slaves “would probably be free by Tuesday when the Proclamation emancipating slaves would be published.” To Lincoln, the key issue was not constitutionality, but whether admission would assist the war effort. Deciding that it would, on December 31 he signed the resolution admitting West Virginia to the Union. In February 1863, the state amended its constitution to incorporate the required plan for gradual emancipation.
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Also on the final day of 1862, Lincoln took his most concrete step to implement the idea of colonization. With James R. Doolittle, one of the idea’s most avid proponents, present, Lincoln signed a contract with Bernard Kock, a businessman originally from Charleston, to transport blacks to Île à Vache (Cow Island), located just off the coast of Haiti. Kock had persuaded the Haitian government to grant him the right to cut timber there. In the fall he had issued a public letter to Lincoln waxing poetic about the resources of his “beautiful, healthy, and fertile island.” Lincoln’s commissioner of emigration, James Mitchell, lobbied on Kock’s behalf. Less enthusiastic was Attorney General Bates, who told the president, “This
Governor
Kock is an errant humbug…a charlatan adventurer.” But Lincoln arranged for Kock to be paid $250,000 for transporting 5,000 blacks to Cow Island. Doolittle and the Blairs were overjoyed. They believed, wrote Elizabeth Blair Lee, the sister of Frank and Montgomery Blair, “it is the beginning of the 2nd great Exodus.”
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IV

T
HE NEXT DAY,
January 1, 1863, Lincoln presided at the annual White House New Year’s reception. Beginning in late morning, he greeted “an immense line” of visitors that included the diplomatic corps, justices of the Supreme Court (led by Chief Justice Taney), military officers, and members of the general public who managed to enter before the doors were closed at two o’clock. Later that afternoon, Lincoln retired to his study to sign the Emancipation Proclamation. The first time he attempted to affix his signature, he stopped and laid down his pen. His hand was shaking, not from nervousness, but because of exhaustion. “I do not want it to appear as if I hesitated,” he said. After a moment of repose, he signed the proclamation. Ever concerned with his place in history, Lincoln knew he would be remembered for this act. In 1863 and 1864 he would make himself available to artists, photographers, and sculptors who portrayed him as the Emancipator. He allowed the artist Francis B. Carpenter to live in the White House for four months while painting
The First Reading of the Emancipation Proclamation
.
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The proclamation declared that all the slaves in the areas to which it applied—over three million men, women, and children—” are and henceforth shall be free.” (Why Lincoln chose not to use the more direct phrase “forever free” from the preliminary proclamation remains unknown.) It ordered the army and navy to “recognize and maintain” that freedom. It enjoined emancipated slaves to refrain from violence, except in “necessary self-defence,” and urged them to “labor faithfully for reasonable wages.” For the first time, it authorized the enrollment of black soldiers into the “armed service” of the United States.

So many layers of myth have enveloped the Emancipation Proclamation that its actual content is often misunderstood. Couched in dull, legalistic language, much of it consists of a long quotation from the preliminary proclamation of September 22. Unlike the Declaration of Independence, it contains no preamble enunciating the rights of man. Only at the suggestion of Secretary of the Treasury Chase did Lincoln at the last minute add a conclusion invoking the “considerate judgment of mankind and the gracious favor of Almighty God” on this “act of justice.”
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Lincoln did not, as is sometimes thought, free all the slaves with a stroke of his pen. The proclamation had no bearing on the nearly half-million slaves in the four border states and West Virginia. It applied only to the Confederacy and almost exclusively to areas outside Union control. Despite objections from a majority of the cabinet, it exempted a number of areas occupied by the Union army: seven counties in Tidewater Virginia (where Benjamin Butler had inaugurated the contraband policy and with it wartime emancipation), thirteen parishes in southern Louisiana, and the entire state of Tennessee. These places contained another 300,000 slaves, bringing to nearly 800,000 the number to whom the proclamation did not apply, of a total of 3.9 million.
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T
HE
E
MANCIPATION
P
ROCLAMATION

The Proclamation rested not on the rights of mankind but “upon military necessity.” The previous May, in his order rescinding General David Hunter’s emancipation edict, Lincoln had claimed the right, as commander in chief, to take such action himself if it became necessary to save the government. But in the fall of 1862, former Supreme Court justice Benjamin R. Curtis, a dissenter in
Dred Scott
, had issued a pamphlet,
Executive Power
, flatly declaring the Preliminary Emancipation Proclamation unconstitutional. Lincoln paid close attention to the ensuing legal debate. Around the same time that Curtis’s pamphlet appeared, the Boston attorney William Whiting published a detailed examination of presidential war powers. Slavery, Whiting insisted, was a legitimate military target since it enabled the Confederacy to carry on “war against the Union” and forced “three millions of loyal subjects” owned by rebel masters to act as if they were traitors. Under the Constitution, he argued, Congress and the president possessed independent war powers, and either could legitimately abolish slavery “as an act of war.”
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Whiting’s treatise, which went through numerous printings, may well have influenced Lincoln’s outlook. In November 1862, Lincoln appointed Whiting solicitor of the War Department, a post he occupied for the remainder of the conflict. Both the draft emancipation order Lincoln presented to the cabinet in July and the preliminary proclamation of September had contained references to the Second Confiscation Act, giving the impression that Lincoln was acting under the authority of Congress. The Emancipation Proclamation made no mention of any congressional legislation. It began with the words, “I, Abraham Lincoln.” Lincoln now claimed full authority as commander in chief to decree emancipation, and accepted full responsibility. Nonetheless, he continued to worry that local courts might refuse to recognize the freedom of those covered by the proclamation. Moreover, although he had appointed three members, the Supreme Court still had a Democratic majority and was still headed by a chief justice who had declared in no uncertain terms that the Constitution protects slavery. Lincoln was convinced, as one Washington reporter wrote the day before the document was issued, that the proclamation could only survive judicial scrutiny “as a war measure,” not “one issuing from the bosom of philanthropy.” To ground emancipation, he later remarked to Chase, on anything other than military necessity, including the notion that it was “politically expedient and morally right,” would “give up all footing upon constitution or law.”
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In fact, however, the Emancipation Proclamation was as much a political as a military document. Attorney General Bates had cautioned Lincoln that its provisions about which areas were or were not in rebellion “must be truly declared.” Yet Lincoln’s decision to exempt parts of the Confederacy reflected not only the actual military situation but also his judgment about the prospects for winning over white support. Even the Unionists who pleaded with Lincoln to exempt all of Tennessee acknowledged that large portions of the state remained “in possession of the rebel army.” But in order to bolster Andrew Johnson’s regime and attract cooperation from slaveholders, Lincoln acceded to their wish. In the process, he sacrificed, for the time being, the interests of Tennessee’s slaves.
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Critics at home and abroad charged that the proclamation actually freed no slaves at all, since it applied only to areas under Confederate control. In fact, Lincoln did not exempt occupied areas where the number of white Unionists was small or nonexistent and political reconstruction had made little or no progress—parts of Arkansas, Florida, Mississippi, North Carolina, and the Sea Islands of South Carolina. Here, emancipation was immediate. The failure to exempt eastern North Carolina surprised many observers. Military Governor Stanly resigned as a result. Overall, tens of thousands of slaves—50,000 according to one estimate—gained their freedom with the stroke of Lincoln’s pen. To be sure, on the day it was issued, there was no way to enforce the proclamation in most of the South; its implementation would await Union victories. But as the Boston entrepreneur and Republican activist John Murray Forbes wrote, “In such a Proclamation words become
things
and powerful things too.”
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The Emancipation Proclamation differed dramatically from Lincoln’s previous policies regarding slavery and emancipation, some of which dated back to his days in the Illinois legislature and Congress. It abandoned the idea of seeking the cooperation of slaveholders in emancipation, and of distinguishing between loyal and disloyal owners. It was immediate, not gradual; contained no mention of monetary compensation for slaveowners; did not depend on action by the states; and made no reference to colonization (in part, perhaps, because gradualism, compensation, and colonization had no bearing on the “military necessity” that justified the document). Lincoln had long resisted the enlistment of black soldiers; now he welcomed them into the Union army. The proclamation addressed slaves directly, not as the property of the country’s enemies but as persons with wills of their own whose actions might help win the Civil War.

Lincoln had not entirely abandoned his previous thinking, elements of which would reappear in the next two years. From time to time he would speak again of gradualism and compensation, but these no longer formed parts of a comprehensive plan of emancipation. Embarking on a different path to ending slavery rendered that plan irrelevant. As his contract with Bernard Kock demonstrated, Lincoln still retained an interest in colonization. But he would never again publicly advocate this policy. The language of the proclamation repudiated fears that freed slaves would become a threat to public order or succumb to “idle vagabondage,” as the
New York Times
warned they might.
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Putting some black men into the military and asking others to labor for wages implied a very different vision of their future place in American society than plans for settling them overseas. Lincoln made no effort to define the future status of the emancipated slaves, but the proclamation unavoidably placed that question on the national agenda.

Even apart from the 800,000 persons to whom it did not apply, the Emancipation Proclamation by itself hardly guaranteed the irrevocable end of slavery; for that, Union military victory would have to follow. Slavery is a remarkably resilient institution. It had survived the dislocations of the War of Independence (including the flight of tens of thousands of slaves to British lines) only to enter a period of unprecedented growth. France decreed abolition in its West Indian colonies in 1794, Napoleon restored it in 1802, and except for independent Haiti, the institution survived until 1848.
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Were the Confederacy to gain its independence, slavery would undoubtedly continue to exist.

The proclamation’s “great characteristic,” declared Wendell Phillips, was that it did not make emancipation a punishment for individual rebels but treated slavery as “a system” that must be abolished. Legally speaking, this was not quite accurate, since, as William Whiting pointed out in his treatise on the war power, freeing slaves, even millions of them, did not abrogate the local laws that established and protected slavery. Further action beyond presidential emancipation, he noted, would be necessary to “render slavery unlawful.”
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Nonetheless, the Emancipation Proclamation, as the
New York Herald
commented, marked a watershed in American life, “a new epoch, which will decisively shape the future destinies of this and of every nation on the face of the globe.” Never before had so large a number of slaves been declared free. The proclamation altered the nature of the Civil War, the relationship of the federal government to slavery, and the course of American history. It liquidated without compensation the largest concentration of property in the United States. It made a negotiated settlement impossible unless the Union were willing to retract the promise of freedom. It crystallized a new identification between the ideal of liberty and a nation-state whose powers increased enormously as the war progressed. Indeed, emancipation presupposed the existence of a nation capable of enforcing such a measure, something that had not existed before 1860. Henceforth, freedom would follow the American flag. As Frederick Douglass proclaimed, “The cause of the slaves and the cause of the country” had become one. Whatever the proclamation’s limitations, by making the army an agent of emancipation and wedding the goals of Union and abolition, it ensured that northern victory would produce a social transformation in the South and a redefinition of the place of blacks in American life. In his message to Congress of December 1861, Lincoln had said that he did not wish to conduct the war as a “violent and remorseless revolutionary struggle.” The proclamation announced that this was precisely what it must become.
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