President Abraham Lincoln Sets the Stage For the Emancipation Proclamation

In a remarkable and extraordinarily rare Lincoln letter to the head of the U.S. Senate, he requests that the Senate remain in session to finalize the historic measure; From Section 9 of the Act: “And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States…shall be forever free of their servitude, and not again held as slaves.”

As an individual, Lincoln hated slavery. Before the Civil War, as a Republican, he wished to exclude it from the territories as the first step to putting the institution, as he said in his House Divided speech, “in the course of ultimate extinction.” But as he took office as president of the United States, Lincoln was bound by a Constitution that protected slavery in the states where it existed. With the war’s outbreak, as commander in chief of the armed forces pursuant to the Constitution, Lincoln had to worry about the support of the four border slave states and the Northern Democrats. These groups probably would have turned against the war for the Union if the Republicans had made a move against slavery in 1861.

With Union armed forces moving South and establishing positions in Confederate territory, the issue of what to do with slaves arose very quickly. Slaves were the most conspicuous and valuable property in the region. They raised food and fiber for the Southern war effort, worked in munitions factories, and served as teamsters and laborers in the Confederate Army. General Benjamin Butler, commander of Union forces occupying a foothold in Virginia at Fortress Monroe on the mouth of the James River, provided a legal rationale for the seizure of slave property. When three slaves who had worked on rebel fortifications escaped to Butler’s lines in May 1861, he declared them contraband of war and refused to return them to their Confederate owner. Here was an opening wedge for emancipation, and hundreds of such “contrabands” voted with their feet for freedom by escaping to Union lines in subsequent months. Some Union commanders gave them shelter and protection; others returned them to masters who could prove their loyalty to the United States.

To reduce the ambiguity of this situation, on August 6, 1861, Congress passed the First Confiscation Act, which authorized Union seizure of rebel property. It stated that all slaves who fought with or worked for the Confederate military services were freed of further obligations to their masters. It placed the slaves in Union custody, but did not settle their status. Lincoln was reluctant to sign the act; he felt that, in light of the Confederacy’s recent battlefield victories, the bill would have no practical effect and might be seen as a desperate move. He was also worried that it could be struck down as unconstitutional, which would set a precedent that might derail future attempts at emancipation. Lincoln was hoping to convince the border states to initiate a system of gradual emancipation with compensation for slave owners. Only personal lobbying by several powerful Senators persuaded Lincoln to sign the legislation. Lincoln gave Attorney General Edward Bates no instructions on enforcing the bill, and few confiscations occurred. The measure did little to satisfy the Radicals in Congress, who wished to abolish slavery entirely, and in December 1861, Senator Lyman Trumbull introduced a stronger bill that, among other things, provided for the liberation of slaves confiscated from the rebels – a controversial move that Lincoln could not then support. But it did get him thinking about what form of emancipation he would accept.

But 24 days after the First Confiscation Act was passed, Union General John C. Fremont, seeing it as a license to take action, issued a proclamation freeing all slaves in Missouri (which was under his command) that belonged to secessionists. In a letter dated September 11, 1861, Lincoln ordered Fremont to change his proclamation to conform to the First Confiscation Act. The letter was widely published in the newspapers, and appearing to signal Lincoln’s opposition to freeing slaves, resulted in Lincoln receiving many letters condemning his decision and expressing support for Fremont.

By May of 1862, the trickle of contrabands who found themselves living within the Union lines, or escaping into them, became a flood. Union General David Hunter issued a proclamation similar to Fremont’s freeing slaves in Florida, Georgia and South Carolina. Again, Lincoln was forced to issue a statement revoking the proclamation. He concluded his statement, however, by again urging the slave-holding border states of Delaware, Maryland, Kentucky, and Missouri to “‘adopt a gradual abolishment of slavery,'” as encouraged by Congress’s Joint Resolution of March 1862:  He warned slaveholders, ”You can not if you would, be blind to the signs of the times…” The border states did not bite, did not take advantage of this opportunity.

But the need to take action regarding the contrabands was pressing, and Congress returned to consideration of Trumbull’s bill. It passed a revised version on July 12, 1862, which offered some concessions to those worried about the border states. But the bill was anything but conservative, as it declared that slaves who crossed over Union lines were “forever free”: “That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States…shall be forever free of their servitude, and not again held as slaves.” Conservative Republicans urged Lincoln to veto the measure. A veto would, in Senator Orville Browning’s view, secure the support of “every loyal Democrat in the free states.” As Browning offered his advice, Radicals lobbied Lincoln to approve the bill, arguing that a veto would destroy the Republican Party and dampen Northern morale. At this point in his developing stand on this issue, what troubled Lincoln (who was, after all, a noted attorney) most about the bill was not its freeing of slaves, but the constitutionality of its forfeiture provision that extended beyond the lifetime of a convicted traitor – violating, Lincoln feared – the Constitution’s provision that “no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

Also on July 12 Lincoln unsuccessfully lobbied the border states on a plan of gradual emancipation, which in his mind closed a door. On July 13, during a carriage ride with Secretaries William H. Seward and Gideon Welles, Lincoln discussed issuing an emancipation proclamation. It was the first time he had discussed the plan with anyone, and it shows how far he had come since Trumbull’s bill was introduced half a year earlier.

So on July 15th Lincoln was ready for the Second Confiscation Act, with its partial emancipation; but he wanted his bill. And with Congress set to adjourn on July 16, he knew it was crucial to buy time to work out a compromise. To that end, he sent the present letter to the President Pro Tempore of the Senate, Solomon Foot of Vermont, and a similarly-worded message to the Speaker of the House, requesting that adjournment be postponed. Autograph letter signed, Executive Mansion, Washington, July 15, 1862, to Foote. “Sir, Please inform the Senate that I shall be obliged if they will postpone the adjournment, at least one day beyond the time which I understand to [be] now fixed upon for it.” This is Lincoln’s personal copy, the sent letter in the hand of a secretary being in the Senate archives.

The same day, Foote replied that `I am advised that it will be exceedingly difficult, if not impossible, to postpone the adjournment, unless some Senator can say it is necessary. To this end several Senators desire me to ask that you will state the ground or reason of such necessity.” To this Lincoln responded, “I am sorry Senators could not so far trust me as to believe I had some real cause for wishing them to remain. I am considering a bill which came to me only late in the day yesterday, and the subject of which has perplexed Congress for more than half a year. I may return it with objections; and if I should, I wish Congress to have the opportunity of obviating the objections, or of passing it into a law notwithstanding them.” In the end both the House and Senate agreed, postponing adjournment for one day as Lincoln requested.

Meanwhile, Lincoln was secretly working with several members to work out a compromise. That night Lincoln met Senator Daniel Clark of New Hampshire and William P. Fessenden of Maine and warned them that he would veto the bill unless he could be satisfied that the bill was constitutional. He even drafted a veto message. The next morning, July 16, Clark offered an amendment that no property would be confiscated beyond the lifetime of a convicted traitor. This measure passed, enabling Lincoln to sign the bill. On July 17, with Congress set to adjourn in the afternoon, Lincoln traveled to the Capitol to sign the bill into law, and it thus became the first measure with his signature designed to free slaves. Curiously, he also sent Congress the text of his undelivered veto message. Why exactly Lincoln did this is unclear, though he probably wanted to demonstrate that when it came to matters of slavery and reconstruction, he and not Congress was master. He may also have wanted to go on the record with his concerns about the measure in order to placate the conservatives.

Just five days later, on July 22, 1862, Lincoln surprised members of his Cabinet with a draft of an emancipation proclamation that he would issue by executive action. On September 22, 1862, after much discussion with his cabinet and deep consideration, he made his plans public. What impact did the Second Confiscation Act have on Lincoln and the Emancipation Proclamation promulgated on January 1, 1863? It likely had a strong one. Lincoln’s self-awareness that partial emancipation was timely would have easily led to his advocacy of full emancipation. Moreover, his experience with the Second Confiscation Act revealed that the political risks of his own emancipation proclamation might not be as great as he initially feared and gave him the confidence to pursue the effort with energy. The Emancipation Proclamation would profoundly change the nature of the Civil War, as it caused sentiment in Europe to turn against the Confederacy, ending all threat of Britain and France entering the conflict on the Southern side. It made foreign goods and cooperation harder to obtain for the Confederacy, and invigorated people in the North and everywhere who now saw the war as a crusade for freedom.