Fateful Lightning: A New History of the Civil War & Reconstruction by Allen Guelzo (self help books to read TXT) 📕

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