As soon as he learned of the trouble, Browning wrote to Lincoln on September 17, expressing his hope that the rumors he was hearing that the Cabinet had disapproved the proclamation were unfounded. He went further, in brash terms, to say that all truly loyal citizens favored the Frémont proclamation and that rescinding it would be demoralizing to many pro-Union Americans. He pointed out that there was no statute providing for the court-martial of enemies caught behind one’s own lines, but everyone, he argued, agreed that such treatment of spies and traitors was perfectly legal. Why should those who rejected the Constitution expect to enjoy its protection? He said Frémont should receive unqualified backing from the administration, and he hoped the rumors that Lincoln planned to replace him were untrue. He went further to say, “I do think measures are sometimes shaped too much with a view to satisfy men of doubtful loyalty, instead of true friends of the Country. There has been too much tenderness towards traitors and rebels. We must strike them terrible blows, and strike them hard and quick, or the government will go hopelessly to pieces.”59
Browning’s tone stunned Lincoln. In a strongly worded letter on September 22, Lincoln outlined his national strategy. It was one of the longest letters he ever wrote in defense of his policies. Lincoln responded that Frémont’s proclamation was “purely political and not within the range of military law or necessity.”60 He said that a general might, on grounds of military necessity, seize property from the enemy, including slaves, but “when the need is past, it is not for him to fix their permanent future condition.”61 He added, “You speak of it as being the only means of saving the government. . . . Can it be pretended that it is any longer the government of the U.S.—any government of Constitution and laws,—wherein a General, or a President, may make permanent rules of property by proclamation?”62 It was Congress’s job to make such rules, Lincoln reminded his fellow former Whig. He recalled that Congress had actually passed the Confiscation Law in the previous session before Frémont issued his proclamation and that Browning had voted for the law. To be consistent, Browning should give up his “restlessness for new positions, and back me manfully on the grounds upon which you and other kind friends gave me the election, and have approved in my public documents.”63 In other words, sometimes Lincoln just needed Browning to be a friend, not a mentor—or worse, a nag.
Another reason for the order countermanding Frémont’s proclamations, Lincoln wrote, was the need to keep the border states in the Union. He told Browning there was a great deal of credible evidence that Kentucky would have gone over to the Confederacy if Frémont’s proclamation had stood. “I think to lose Kentucky is nearly the same as to lose the whole game. Kentucky gone, we can not hold Missouri, nor, as I think, Maryland. These all against us, and the job on our hands is too large for us. We would as well consent to separation at once, including the surrender of this capitol [sic].”64 Yet Lincoln emphasized that he did not issue his order to Frémont simply because of his concerns about Kentucky, for Kentucky had not yet taken a position. Lincoln assured Browning that he had no thought of removing Frémont because of what he had done and that he hoped it would not be necessary to remove him for any other reason.
Self-awareness was not one of Browning’s strengths. He did not relent. On September 30, he responded with a long statement about the nature of war and its relationship to Frémont’s proclamations. He believed that the law of nations furnished sufficient authority to use every advantage to weaken the enemy. He cited authority showing that a government waging war against a public enemy had a preexisting right to use the enemy’s property to secure the ends of war. The people of Kentucky, Browning said, would not have opposed confiscation of horses to aid the federal troops; therefore, they should not oppose the confiscation of slaves when the exigencies of war and the preservation of the Union required it. He disagreed with Lincoln that the matter fell within the sphere of Congress’s authority and therefore he felt no need to reconcile his arguments now with those he had had when Congress enacted the Confiscation Act. He did not take this situation as a pretext for breaking with the administration, and he assured Lincoln that he would continue to support him without wavering from his zeal for the welfare of the Union. He told Lincoln that he tried to share his suggestions in a friendly and helpful spirit.
Lincoln did not respond, instead leaving the matter where he thought it then belonged: Congress. Later, in October, when a congressional committee investigated Frémont’s activities, Browning was invited to attend, but he declined. When he learned the committee had uncovered substantial corruption in Frémont’s headquarters, he made clear his belief that it was not Frémont’s fault but the fault of scoundrels whom Frémont naïvely allowed to be a part of his operations.
The next moves toward emancipation came largely from Congress. Each were critical steps in reshaping the objective of the war. In December 1861, as more escaped slaves joined Union forces as they pushed more deeply into the South, a solid Republican vote in the House passed a new resolution overriding the Crittenden-Johnson one that had disavowed any antislavery purpose for the war. In his end-of-the-year message to Congress, Lincoln felt the need to address a question that kept coming back to him—and indeed had been a theme in Browning’s letters. This was the question of what initiative, if any, the president should take in helping to abolish slavery. The Whig in Lincoln called for deferring entirely to Congress, but as president, he appreciated that doing so was not a well-thought-out constitutional strategy.
Instead, Lincoln said, “In considering the policy to be adopted for suppressing the insurrection, I have been anxious that the inevitable conflict for this purpose shall not degenerate into a violent and remorseless revolutionary struggle.”65 This statement might have simply reflected Lincoln’s judgment on the awfulness of war. It could also have been a subtle reference to a hope that the conflict would entail only a minimal transformation of the South and no serious damage to the Southern economy or quality of life. He also rejected the idea that “the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling”66 that slavery was immoral. However, as Civil War historian James McPherson notes, “Another passage in the same message—little noticed at the time—pushed that minimum beyond what it had been when he signed the Confiscation Act the previous August. He referred to the contrabands affected by that law as ‘thus liberated’—that is, free people who could not be returned to slavery.”67 Lincoln had effectively adapted Clay’s and Jackson’s long-standing project of gradual emancipation to the circumstances at hand.
In March 1862, Lincoln and Congress took two further steps closer to demanding an end to slavery altogether. Though no one had any idea how much longer the war might last, Lincoln had begun to see that Clay’s dream of gradual emancipation was within the federal government’s grasp. On March 6, Lincoln sent a special message to Congress recommending passage of a joint resolution offering financial assistance to any state “which may adopt gradual abolishment of slavery.”68 Congress passed the resolution, with Republicans unanimously in favor and almost all Democrats opposed. Then, a week later and a mere two days after Lincoln sacked McClellan, on March 13, 1862, Congress gave the Union Army the right to take any and all personal property from rebellious persons, including slaves. It declared that captured slaves would not be returned to their owners, and it prohibited army officers, under pain of court-martial, from returning escaped slaves to their masters. Lincoln signed the bill.
On April 16, 1862, Lincoln signed yet another law, this time a bill that abolished slavery in the District of Columbia. He undoubtedly recalled, as did many of those who had supported him, that an identical law had been part of Clay’s Compromise of 1850. The act was also a repudiation of the Supreme Court’s decision in Dred Scott, which had ruled the Missouri Compromise unconstitutional because it violated the right of slave-owners to their so-called property.
By May, the Union appeared to have the momentum in the war. It had scored a ser
ies of victories everywhere but Virginia. Building on that momentum, Congress, on June 19, 1862, prohibited slavery in all current and future territories, though not in any current or future states. Again, without comment, Lincoln quickly signed the bill. Once Congress had decided to ignore the Dred Scott ruling, Lincoln obviously had no problem in going along.
On July 16, 1862, Congress took another significant move toward emancipation when it passed the Confiscation Act of 1862, which made court proceedings available to slaves freed from owners who had engaged in the rebellion. The next day, Lincoln took the extraordinary step of preparing a veto message, the first of his presidency. He objected to the forfeiture of property beyond the life of the person convicted of treason. He suggested that this was tantamount to “corruption of blood” or visiting the sins of the father on his descendants.69 Lincoln found fault in the law’s use of in rem proceedings in the courts, which would authorize forfeiture based on status as a slaveholder but not necessarily on evidence of treason. He thought that the defendants in such proceedings required more time to prepare their defenses than the act allowed. In response to the prospect of a veto, Senate leaders hurriedly drafted a resolution to bar the punishment exacted by the law to “work a forfeiture of the real estate of the offender beyond his natural life.”70 They did not have time to fix any other parts of the act. Lincoln signed the law. His sensibilities as a Whig kept him from interfering too much in the legislative process and to enforce the policy enacted by Congress even if it was not perfect and he did not completely agree.
In late July, he convened his Cabinet to announce his intention to issue an emancipation proclamation. He likely based his reasoning on a pamphlet published by a lawyer he had appointed to the Interior Department, which argued that the laws of war “give the President full belligerent rights” as commander in chief to seize all enemy property, including slaves, being used to wage war against the United States.71 Blair opposed going all the way, while Seward counseled Lincoln to postpone doing it “until you can give it to the country supported by military success.”72 Seward’s advice “struck me with very great force,” Lincoln admitted later.73 He pocketed the proclamation until a more propitious moment.
Lincoln continued to correspond over the next few months with Browning, who was campaigning for reelection in Illinois. Earlier that year, in February, Browning had spent hours with the Lincolns after the death of his eleven-year-old son, William. Mary Todd was inconsolable, while Browning kept a close watch on Lincoln, who he knew was prone to bouts of melancholy. Come fall, he vigilantly did what he could to keep Lincoln’s spirits up as the war dragged on. Browning reassured Lincoln, “The skies do not appear to be very dark to me. . . . Be of good cheer—hold yourself up to the work with a pure mind, and an eye singled to your country’s good, and all things will yet be well.”74 Though Lincoln heard otherwise from other sources, Browning further assured him that “the hearts of the people were never warmer for you than they are today.”75
In the summer of 1862, the pressure on Lincoln to take a strong stand against slavery grew. Both Browning and Lincoln’s old friend Joshua Speed of Kentucky counseled him further on the propriety of issuing an emancipation proclamation. Speed had previously advised Lincoln on how to keep the border state of Kentucky in line, having urged him the previous year to overrule Frémont’s proclamation. But now Lincoln wrote to Speed, “I believe that in this measure . . . my fondest hopes will be realized.”76
On September 22, 1862, a few days after the Battle of Antietam and one year to the day after Lincoln had written to Browning that he doubted a general or president had the authority to issue an emancipation proclamation, Lincoln did just that, declaring slaves in rebellious states “forever free” as of January 1, 1863, unless those states returned to the Union within one hundred days.77
When he heard the news, Browning, perfecting his contrariness, was skeptical. Upon his return to Washington in November, he promptly had an extended conversation with Lincoln. In the intervening year, the two men exchanged positions, Browning now explaining his objections and Lincoln defending what he had once criticized Frémont for doing. Browning believed that Lincoln’s planned proclamation had had a disastrous effect on the Republicans during the 1862 midterm elections and that withdrawing or altering it would bolster the war effort. When Lincoln showed no interest in changing his mind, Browning met with Seward, who had been persuaded by Lincoln that the proclamation made sense because of the signal it sent other countries. Seward told Browning that the proclamation showed other countries the true purpose of the war—the United States’ commitment to abolishing slavery. Browning could do nothing to stop the proclamation from going into effect, as planned, on January 1, 1863.
One month before the deadline, on December 1, 1862, Lincoln delivered his Annual Message to Congress. He devoted most of it to the recommendation of a constitutional amendment to offer federal compensation to states that abolished slavery before 1900. The proposal confused many of his fellow Republicans in Congress, but Lincoln’s proclamation was aimed only at freeing slaves in the ten states in rebellion. Yet, in his message, just a month before the effective date of the Emancipation Proclamation, he continued to refine his articulation of the war’s purpose and admonished Congress, “The dogmas of the quiet past, are inadequate to the stormy present.”78
Lincoln warned all that the issue was not only about legality but legacy. “In times like the present men should utter nothing for which they would not willingly be responsible through time and in eternity,” admonishing his audience that
we can not escape history. We of this Congress and this Administration will be remembered in spite of ourselves. No personal significance or insignificance can spare one or another of us. The fiery trial through which we will pass will light us down in honor or dishonor to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We, even we here, hold the power and bear the responsibility. In giving freedom to the slave we assure freedom to the free—honorable alike in what we give and what we preserve. We shall nobly save or meanly lose the last best hope of earth. Other means may succeed; this could not fail. The way is plain, peaceful, generous, just—a way which if followed the world will forever applaud and God must forever bless.79
The repetitive contrasts—freedom and bondage, remembering and forgetting, the individual and the nation, achieving eternal praise or admonishment—were more than echoes of Shakespeare and Burns. Lincoln was doing more than using the rhetorical techniques of the great poets. He was adapting them to the present circumstances by using the plain language of Americans to profound effect. His speech was all the more powerful because he was sharing with the world his own mindset, the urgency of contemplating each day, each step, in light of how history would judge him and judge them all.
Slightly more than two weeks later, on December 17, 1862, General Ulysses Grant, then leading Union forces in the vast Department of the Tennessee, surprised nearly everyone when he issued General Orders No. 11. When Grant caught wind that peddlers were cheating army officers under his command (and Jewish cotton traders might have been doing the same to his father), he ordered that “Jews, as a class, violating every regulation of trade established by the Treasury Department, and also Department [of War] orders, are hereby expelled from the Department.”80 Grant directed all Post Commanders within twenty-four hours of receipt of his order “to see that all of this class of people are furnished with passes and required to leave, and anyone after such notification, will be arrested and held in confinement until an opportunity occurs of sending them out as prisoners unless furnished with permits from these headquarters.”81
While anti-Semitism was common in that era, a government command based on it was not. Henry Halleck, who was then the general in chief for all the Union forces, had concerns about Grant even before the order. A West Point graduate and veteran of the Mexican War, Gran
t had resigned from the army in 1854 because he saw little future in it and “the vice of intemperance had not a little to do with my decision to resign.”82 Elihu Washburne, an Illinois congressman and long-standing friend of Lincoln’s, had found a place for Grant to return to the army shortly after the outbreak of the Civil War, first as a captain, then as a colonel, and eventually as a brigadier general on the western front. In less than two years, Grant had steadily risen in rank because the armies he led delivered much more often than not, including as recently as October 3–4, 1862, when troops from his Army of the Mississippi had repelled Confederate forces in Corinth, Mississippi.
The timing of Grant’s General Orders No. 11 was awkward, both for him and the Jews who were its subject. It overshadowed Union victories just a little more than a week before at Chickasaw Bayou and Vicksburg, the last Southern stronghold on the Mississippi. At the same time, the Treasury Department desperately wanted to restore business within occupied areas to win back the inhabitants’ loyalty, while the War Department worried that Southern profits from the cotton trade could be used to help the Confederate troops. The inflammatory directive barred Jews from residing or doing any business within the area under Grant’s command. Grant’s adjutant, Colonel John Rawlins, urged Grant not to promulgate the order, but Grant responded, “They can countermand this from Washington if they like.”83
In fact, General Orders No. 11 was the most sweeping anti-Semitic governmental action ever undertaken in American history, but less than seventy-two hours after Grant issued it, implementation was delayed because several thousand troops led by Major General Earl Van Dorn attacked his forces at Holly Springs and General Nathan Bedford Forrest’s cavalry attacked Grant’s troops from the opposite direction, destroying fifty miles of railroad and telegraph lines. Communications to and from Grant’s headquarters were disrupted for weeks because of the attacks, and therefore news of the order spread slowly, if at all. Once Grant and his officers got around to enforcing the order, in Paducah, Kentucky, on December 17, 1862, Jewish merchants and residents who were being expelled sent a telegram to Washington protesting their expulsion. In all likelihood, Lincoln never saw Grant’s telegram until after January 1, if he ever saw it.
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