The Journal of Negro History, Volume 7, 1922

In 1857 came the Dred Scott decision, in which Chief Justice Taney of the Supreme Court dragged that tribunal into politics, aiming to settle the question of slavery in the territories, but it stimulated rather than suppressed the discussion of slavery, as was evident by its outburst in the debates between Mr. Lincoln and Mr. Stephen A. Douglas.325 The main question was whether, according to the Constitution, Congress could prohibit slavery in the territories. Lincoln contended that it could but Douglas was evasive, as he hoped to reconcile his popular sovereignty with the Dred Scott decision. Lincoln, on the other hand, showed that the public estimate of the Negro had become decidedly lower than it was prior to the industrial revolution, when masters could emancipate their bondmen of their own volition. Since then it had become common for the State Legislature, which in the exercise of the sovereignty of the State had the power to abolish slavery within its limits, to withhold that power and to make legal restraints tantamount to prohibition.

Lincoln opposed Mr. Douglas in 1858 when he contested the latter's reelection to the United States Senate. Toward this end he launched a more determined antislavery program than ever before, advancing the doctrine that "a house divided against itself cannot stand" and likewise that "the Union could not endure permanently, half slave and half free."326 He further declared that either the advocates of slavery would push the institution forward until it became alike lawful in both North and South, or the opponents thereof would arrest its extension. Douglas had charged the Republicans with the intent to abolish slavery in the States and had asserted that their opposition to the Dred Scott decision marked their desire for Negro equality and amalgamation.327 To this charge Lincoln replied that the Republicans were not directing their efforts toward abolition in the slave States, but toward the exclusion of slavery from the territories. He forcibly denied the accusation that the Republicans solicited social equality and amalgamation with the Negro, declaring that there was a physical difference between the two races, which probably would forever forbid their living together on equal footing; and that, inasmuch as it became a necessity that there must be a difference, he, like Douglas, favored his race for the superior position. Lincoln admitted that in some respects the Negro, according to the Declaration of Independence, was not the white man's equal; that in color, size, intellect, moral development, or social capacity the Negro was not on a par with the white man; but that that instrument did, with tolerable distinctness, consider "all men created equal" with certain inalienable rights, such as "life, liberty, and the pursuit of happiness."328 Lincoln held that, notwithstanding all these facts, there was no reason why the Negro was not entitled to all the natural rights embraced by the Declaration of Independence, which are enjoyed by the white man.329 He interpreted the standard maxim that "all men are created equal" as being of no practical use in effecting the separation of the thirteen Colonies from Great Britain, and, on the contrary, contended that it was placed in the Declaration of Independence for future use in the attainment of democracy.

Lincoln failed to defeat Douglas for the United States Senate but he continued to discuss the constitutionality of the restriction of slavery. On more than one instance he limited his remarks to this question, irrespective of the type of his audience or character of the occasion. He persistently reiterated the doctrine that there was no provision in the Constitution that precluded the right of the Federal Government to control slavery in the territories.330

The crisis between 1850 and 1860 brought Lincoln's ideas before larger groups. Until that year the Democrats had apparently remained united. At the Democratic National Convention in Charleston, South Carolina, in April, 1860, there was a division.331 The Northern Democrats, unable to comply with the demands of the slave power that the convention should adopt a platform requiring Congress to protect slavery in the territories and the Northerners to acknowledge and advocate the moral right of slavery, forced the South to the radical position of withdrawing from the Convention. Since no candidate could then be nominated, the Convention adjourned to Baltimore, in the hope that time would bring about a reconciliation; but in the end the Northern Democrats nominated Douglas, and the Southerners nominated Breckenridge.332

The Republican Convention was held in Chicago in May 1860, and there was adopted a moderate platform, with a denial of the right of Congress to interfere with slavery in the States. The Republicans reaffirmed the Declaration of Independence and declared that Congress should prohibit slavery in the territories. They repudiated the Dred Scott decision and advocated a protective system. Their most difficult problem was the selection of a candidate for the presidency. Inasmuch as Seward and Chase had alienated certain elements by their bold advocacy of advanced principles and Lincoln was comparatively unknown, the managers of the party finally accepted him because of his availability. This choice was received with much indignation among the antislavery leaders, for even Wendell Phillips and William Lloyd Garrison railed against the nominee and portrayed him as an obscurity.333

Lincoln's election forced slavery into the foreground. Without waiting for his inauguration, several Southern States, acting in accordance with their previous threats that they would secede if a Republican President were elected, withdrew from the Union. Others soon followed their example. Congress hastened to offer various concessions to the seceding States,334 but these efforts for compromise were in vain. The die was cast. When Lincoln asserted that his oath of office bound him to preserve the Union at any cost, civil war became inevitable. The proslavery element opened fire on the American flag at Fort Sumter and forced its surrender April 14.335 On the next day Lincoln issued a proclamation calling for 75,000 volunteers. 500,000 others were later called to defend the honor of the nation.

The emancipation of Negroes during the Civil War could not be kept down. It appeared first in the acceptance of Negroes in the Union army camps as contraband, on the ground that they were being used by the Confederates to build fortifications and the like and, if returned to the seceding territory, would be of further use in opposing the Federal troops. General Butler set this precedent when he was in charge of the forces at Fortress Monroe. At first there was some hesitation as to whether the administration should adopt such a policy. Butler's course, however, was approved by Cameron, the Secretary of War, May 30, 1861, although Lincoln was not pleased with it; for he did not desire to alienate the border slave States by radical steps toward emancipation. He was hoping that the nation would trust him, "as having the more commanding view, gradually to fix the attitude of the Government toward the subject,"336 as the conquest of the Confederacy proceeded. The Federal troops, however, did not at first make much headway in the East, but events west of the Alleghenies progressed favorably for the Union cause, especially in Missouri. Taking advantage of this state of affairs, General John C. Fremont, in charge of this district, proclaimed military emancipation in that State on August 30, 1861. All persons with arms were to be tried by court martial and shot. Their property would be confiscated, and their slaves would thereby be declared free. He appointed a military commission, whose business it was to hear evidence and to issue personal deeds of the manumission of slaves.

When Lincoln was apprised of this proclamation, he forthwith took action. He feared that the provisions of General Fremont's drastic order, providing for the confiscation of property and the emancipation of slaves of traitorous owners, would alarm the Southern friends of the Union, would drive them over to the seceding faction, and perhaps would be instrumental in the loss of the border slave States. Fremont's action was diametrically opposed to Lincoln's policy, in that such emancipation was purely administrative and political, one of civil administration that could not be justified by military necessity. Consequently Lincoln issued an order instructing Fremont to modify his proclamation by striking out the disturbing provisions of the proclamation and substituting therefor the act to confiscate property used for insurrectionary purposes, passed by Congress on August 6, 1861, which authorized the President to cause property used or employed in aid of insurrection to be seized, confiscated, or condemned, providing, however, that such condemnation be made by judicial procedure.337

Lincoln, nevertheless, hoped to increase the number of free States through compensated emancipation, which he expected to come through voluntary action on the part of the slave States at the suggestion of the Federal Government. In his next annual message to Congress, however, he made no direct reference to any specific plan of emancipation, but discussed its practical necessities in general terms so as to leave himself in a position to decide later on a definite policy.338 He endeavored to keep before Congress new and possible contingencies and emphasized the fact that, by virtue of the Confiscation Act, many of the slaves thus liberated were already dependent upon the United States for maintenance, and that they must be provided for. He recommended, therefore, that Congress provide for accepting such persons from States so affected in lieu of direct taxes, and that such persons accepted by the General Government be declared free immediately.

With his plan for compensated emancipation in mind, it was quite natural that Lincoln should look for a field of experimentation in a small State, such as Delaware, especially since there was in Congress from that State, Representative George E. Fisher, who was a staunch Unionist and a friend of the President. Fisher gladly cooperated with Lincoln in carrying out this plan. The Congressman tried to have the Legislature of Delaware pass an act for the gradual compensated emancipation of the 1,798 slaves which that State claimed according to the census of 1861, on the condition that the United States would pay the Delaware slaveholders $400 for each slave. During November of 1861, Lincoln wrote drafts of two separate bills to effect such an agreement.339 The first bill provided that, on the passage of the act, all Negroes over thirty-five years of age should become free; that all born after the passage of the measure should remain free; and that the rest, after suitable apprenticeship for children, should become free in 1893, while the State in the meanwhile should prohibit the selling of Delaware slaves elsewhere. By the provisions of the second bill the United States Government should pay the State of Delaware $23,200 a year for thirty-one years and all Negroes born after the passage of the act should be declared free, while all others should automatically become free at thirty-five years of age until January, 1893, when all remaining slaves of all ages should become free, subject to apprenticeship for minors born of slave mothers up to the respective ages of eighteen and twenty-one.

One of the drafts was rewritten by the friends of the measure that it might embrace the details and alterations to conform with local opinion and law. It was printed and circulated among the members of the Legislature of Delaware and a special session of that body was called to consider the proposal. The bill, however, was never introduced, because it was feared that it would be voted down by the hostile proslavery majority. The proslavery element, moreover, prepared resolutions to the effect that the bill would encourage the abolition element in Congress, that it bore evidence of an effort to abolish slavery in the States, that Congress had no right to appropriate money for the purchase of slaves, that it was not desirable to make Delaware guarantee the public faith of the United States, that the suggestion of saving expenses to the people by compensated emancipation was a bribe, and that Delaware would abolish slavery of its own volition at a time when its lawmakers would deem it advisable. But these resolutions did not fare much better than Lincoln's bill, for in spite of the fact that they passed the House they were lost in the Senate.340

Although disappointed over the failure of his plans for compensated emancipation in Delaware, Lincoln, encouraged by the victories of Thomas and Grant in the West took his next step through Congress to the States.341 Accordingly, on March 6, 1862, he sent to that body a special message, recommending the adoption of the joint resolution that the United States would cooperate with any State which might adopt gradual emancipation, giving such State compensation for all inconveniences produced by the change of any system within its confines.342 Lincoln had figured out that less than the cost of the war for a half day would pay for all the slaves in Delaware at $400 each, and that less than eighty-seven days' cost of the war would compensate the slaveowners of Delaware, Maryland, the District of Columbia, Kentucky, and Missouri for all the slaves at the same rate.

The next step took the form of Roscoe Conkling's joint resolution to this effect recommended by Lincoln in his special message of March 6. At the same time Lincoln assembled the Congressmen from the border slave States of Delaware, Maryland, West Virginia, Kentucky, and Missouri at the Executive Mansion, where a prolonged discussion of the subject ensued.343 Lincoln tried to convince these Congressmen of the good faith of the administration, and suggested to them that they take this question of gradual abolition into serious consideration, for the Government of the United States had no right to coerce them. He asserted that emancipation was exclusively a State affair; and that his purpose was simply to present the proposition. Yet probably one reason for the failure of these Congressmen of the border slave States to make a favorable reply or to commit themselves in any way was that they were well aware of Lincoln's determination, according to his special message of March 6, to use all means to save the Union; and they, furthermore, understood the hint that necessity might force him to resort to extreme measures. While this proposition gained no headway with the border slave States, the joint resolution was approved by Congress and received the signature of the President on April 10.

Congress then passed an important measure, the expediency of which Lincoln urged in 1849. This was emancipation in the District of Columbia. Lincoln made no specific recommendations relative to this in his annual message, but later sent a special message to Congress March 6, 1862, taking up the subject in its more extensive aspects. This bill provided for the immediate emancipation of slaves in the District of Columbia, and empowered a commission to distribute to slave-holders for their manumitted slaves a compensation not to exceed an aggregate of three hundred dollars a head, with an additional appropriation for $100,000 for expenses of voluntary emigration of freedmen to Haiti and Liberia.344 Lincoln did not heartily approve this measure, however, for he did not want this to interfere with his policy of compensated emancipation in the border slave States. Even after the bill had been amended, according to his suggestions, he still hesitated and some of his friends thought that he might never sign it, but he did.

The question of emancipation appeared in another form when, upon the capture of Port Royal the previous November, many slaves, abandoned by the fleeing slave-holders, sought protection in the Union army. These slaves, thus dislodged by the misfortunes of war, outnumbered the whites five to one and had to be organized in groups for government protection. Relief societies in Boston, New York, and Philadelphia sent funds and teachers for the slaves. This educational enterprise received the official sanction of Secretary Chase at President Lincoln's request. Wishing further to improve their condition, General David Hunter, commander of the Department of the South, issued on May 9, 1862, an order of military emancipation, proclaiming the Department of the South under martial law and declaring persons in Georgia, Florida, and South Carolina, heretofore held as slaves, forever free.345 Hunter regarded this an act of military necessity, not an instrument of political import as General Fremont's proclamation in Missouri, for Hunter's forces were insufficient for offensive movements, and he was doing this as the first step toward training and arming Negroes within his lines. Assuming that the instructions of the War Department conferred the necessary authority he proclaimed the order without delay.

The news of this proclamation did not travel rapidly. It was published in the newspapers one week later, owing to the slow mail by sea from the South. By this means even Lincoln first learned of this decree, on account of which he was being assailed in many parts. When the news reached Lincoln he took decisive and prompt action. On May 19, he published a proclamation in which he revoked the order of emancipation and recited that the Government had no knowledge of such a decree nor had it authorized General Hunter to give such an order.346

Lincoln, however, used this occasion for an admonition to the border slave States, although he carefully distinguished between the limited powers of the commanders in the field and his full executive authority. He reminded the border States of the joint resolution passed by Congress, to authorize compensated emancipation, and he warned them not to neglect this opportunity to obtain financial indemnity, for the "signs of the times" were multiplying to a degree that should have convinced the border States that slavery was doomed.

In the very beginning of the Thirty-seventh Congress there came a series of antislavery measures which constituted a complete and decisive reversal of the policy of the Federal Government.347 On March 13, 1862, Congress approved an act, which prohibited all military and naval officers and enlisted personnel from returning fugitive slaves. Section 10 of the Confiscation Act, virtually an amendment of the Fugitive Slave Law, which withheld from the claimant the right to use his authority until he had taken an oath of allegiance, and made it tantamount to a crime for any person in the army or navy to surrender a fugitive slave or attempt to validate the owner's claim, was rigidly enforced. Wishing to see Liberia and Haiti welcomed into the family of nations, moreover, Lincoln in his annual message in the previous December recommended the recognition of their independence and the establishment of diplomatic relations with the new nations. This resolution was passed by a Congress and approved June 5, 1862. Lincoln then effected the passage of a measure to carry into execution the treaty between Great Britain and the United States for the suppression of the African slave trade. Soon thereafter followed an act to secure freedom to all persons within the territories of the United States. The Republican party had thus carried out its platform by its restoration of the Missouri Compromise, its extension and application to all Territories, and as a logical result the rejection and condemnation of the Dred Scott decision and the subversive property theory of the secessionists.348

Then followed the Confiscation Act, the discussion of which was closely followed by Lincoln, who had his views incorporated therein by pointing out its defects and suggesting amendments. Whereas the act of August 6, 1861, freed slaves actually employed in military service, the new Confiscation Act of 1862 proved to be a law to destroy slavery under the powers of war. In conjunction with provisions for punishing treason or rebellion it declared free all slaves of persons guilty and convicted of these crimes, and provided that slaves deserted by rebels escaping from them or coming under control of the United States and slaves of rebels found on Union soil should be deemed captives and set free. Then again, there were enacted other provisions, which by implication permitted the employment of slaves in the United States army that they might work their own enfranchisement. Under this law the President was empowered to enroll and employ contrabands in such service as they were fitted for. Their mothers, wives, and children, if owned by rebels, should be declared free by virtue of such service. The eleventh section of the Confiscation Act authorized the President to employ as many Negroes as he might deem necessary for the suppression of the rebellion. The organization of the earliest Negro regiments resulted from this legislation.

Lincoln had some hesitation about signing this bill, however, for it had to be changed to conform to his views. But he signed it and also an anticipatory resolution of Congress to remedy its defects, placing himself on record by transmitting with his approval a copy of his intended veto, had certain defects remained. Mr. Lincoln objected to the expression that Congress could free a slave within a State, whereupon he suggested that it be changed to read that the ownership of the slave would be transferred to the nation, and that Congress would then liberate him.349 The Democrats opposed this act, but antislavery opinion gained momentum by increasing accessions to the ranks of freedom and by that unusual ability of the highly talented patriotic membership of Congress. Yet to the proslavery element and the conservative Unionists, Lincoln's proposal of gradual compensated emancipation was a daring innovation upon practical politics. "In point of fact," say Nicolay and Hay, "the President stood sagaciously midway between headlong reform and blind reaction. His steady, cautious direction and control of the average public sentiment of the country alike held back rash experiment and spurred lagging opinion."350

Four months after Lincoln's proposal of compensated emancipation to the border slave States and its sanction by Congress, the situation seeming more complicated by the vicissitudes of war, Lincoln saw the necessity for uniting the sentiment of the North for a practical solution of the slavery problem. Looking forward into the future, therefore, Lincoln readily realized that the North must present a united front contending for a plain, practical policy, relative to things both political and military.

Consequently he again met the border State delegations on July 12, and made a second appeal to them to accept compensation for the emancipation of the slaves in their respective States while the opportunity was yet at hand.351 He pointed out to them that the war would have been ended, had they considered the acceptance of the provisions of his first appeal for gradual emancipation, and that this plan would not be a slow and weak means of ending the war. Dissuading them from secession, he failed not to apprise them of the fact that, if the rebellion continued, their institution would be destroyed without any sort of indemnity or reparation. Again he referred to his revoking General Hunter's proclamation of military abolition, with the hope that he might possibly win them over to his plan, but his effort was futile. Most of them replied with a qualified refusal; twenty of them later presented a written reply, pledging themselves to continue loyal, but at the same time giving the reasons why they could not accept the plan of compensated emancipation.

In the meantime the capture of strategic points like Vicksburg and New Orleans had given the control of the lower Mississippi to the Union,352 General Grant had crippled and driven back the Confederates in the West,353 and prospects for military success in the East seemed to require some such a measure as military emancipation. After the refusal of compensated emancipation by the border slave States the President decided to emancipate the slaves of rebellious commonwealths by military order.354 While riding with Mr. Seward and Mr. Welles one day, Mr. Lincoln made mention of emancipating the slaves by proclamation, if the rebels did not lay down their arms. He believed that such action could be guaranteed only as a military necessity. He thought that the slaves must be liberated, or the Union would be exterminated. Lincoln reached a final conclusion and called the cabinet together on July 21, the day preceding the close of that session of Congress.355 Since he was at the end of his tether, he determined to take a more definite and decisive step. Accordingly, he prepared several orders which, gave authority to commanders in the field to subsist their troops in hostile territory and to employ Negroes as paid laborers, and further provided for the colonization of Negroes in some tropical country.356