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

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,