by James Oakes
That premise, however, turned upside down as the dogged resistance of the Border States to Lincoln’s abolition proposal became clear in early 1862. By then Republicans were shifting to a much more aggressive policy of universal military emancipation in the Confederacy, with potent implications for the loyal slave states. The Republicans began to argue that military emancipation in the disloyal states would inexorably spread into loyal parts of the South. The dominoes were still going to fall, only now they were likely to tumble from south to north. Abolition would still begin in the loyal slave states because only a state could abolish slavery within its limits, but the catalyst for abolition in the Border States would now be military emancipation in the seceded states. For decades the opponents of slavery saw abolition in the Border States as the initial goal of the “cordon of freedom” they planned to build around the South. Secession and war did not alter the goal but it radically altered the way Republicans went about achieving it. They came to see military emancipation in the seceded states as an additional “lever” they could use to pressure the Border States to abandon slavery.
The Union’s wartime policy on slavery is sometimes described as a shift from gradual to immediate emancipation, but this misses the distinction between the two policies as well as the critical relationship that developed between them. The Republican Congress had endorsed immediate, uncompensated military emancipation in the First Confiscation Act, which Lincoln signed on August 6, 1861, and began implementing two days later, on August 8. It was several more months before Lincoln formulated his first proposal for gradual abolition in the Border States. Immediate military emancipation came first, and it targeted the disloyal states. Gradual abolition came later and was aimed at the loyal slave states. Indeed, by early 1862 Republicans argued that military emancipation, spreading northward from the cotton states, would force the Border States to abolish slavery on their own. Until 1861 no one had ever imagined such a scenario. But the war changed everything. It enabled Lincoln and the Republicans to put more rather than less pressure on the Border States.
It is often said that Lincoln’s embrace of emancipation was impeded by his overriding concern to keep the Border States from leaving the Union. But something closer to the opposite may be true. Oblivious to the cries of outrage from the Border States, Lincoln and the Republicans began emancipating slaves very early in the war. It wasn’t the Border States that made emancipation more difficult; it was emancipation that made keeping the Border States from seceding more difficult. If Lincoln’s sole concern had been to prevent their secession, he would have had a much easier job. What made the Border States such a ticklish problem was that Lincoln was struggling to keep them in the Union while at the same time he was pressuring them to abolish slavery. Lincoln was not alone. By early 1862 Republicans in Congress were also dreaming up new ways to stimulate abolition in the Border States, ways that would have been inconceivable to antislavery radicals only a year earlier. The Republicans even decided that if the Border States would not abolish slavery on their own, they would create a brand new Border State and force it to abandon slavery as a condition for admission to the Union.
THE FREE STATE OF WEST VIRGINIA
For centuries settlers in western Virginia chafed under the rule of aristocratic eastern planters. Throughout the colonial era the sectional antagonism between east and west remained a struggle within the slaveholding class, pitting the parvenu planters of the inland Piedmont against the more established families of the eastern tidewater regions. These conflicts most often centered on the disproportionate power the eastern planters exercised in the colonial legislature, the House of Burgesses. Piedmont masters—like Thomas Jefferson—emerged from these struggles as the foes of aristocracy, demanding equal representation and a more democratic state constitution. But Jefferson’s personal hatred of slavery notwithstanding, the early advocates of legislative reapportionment were anything but abolitionists. They were, instead, the exponents of a slaveholders’ democracy. Not until the 1820s, after settlement had pushed farther into the mountainous western counties where plantation slavery did not take root, did western democrats express their frustration with anti-democratic easterners by denouncing slavery itself.51
There was an economic component to western demands for more equitable representation. Yeoman farmers complained that the state’s tax structure was biased in favor of the slaveholders, that slave property was taxed at a lower rate than land, and that the tobacco and wheat that slaves produced were exempted from taxes while the cattle, sheep, and hogs raised by small farmers were not. Cut off from ready access to markets, small farmers in western Virginia clamored for roads, canals, and rail lines that would boost the prosperity of their region. Throughout the antebellum decades, right up to the Civil War, the stubborn resistance of eastern planters to support democratic reform and state funding for “internal improvements” transformed a simple struggle over political representation into a simmering class conflict between slaveholders in the east and yeoman farmers in the west. By 1860 democratic politics in western Virginia was anti-slaveholder politics—but it still wasn’t abolitionism.52
As soon as Virginia joined the Confederacy, the western counties voted overwhelmingly against secession and quickly declared their independence from the rest of the state. They formed their own government and pronounced it the legitimate sovereign for the entire state of Virginia, sending unionist senators and representatives to Congress and organizing a loyal legislature that granted the western counties permission to secede and form their own state. In late 1861 those counties sent delegates to a constitutional convention where they drew up a new state charter that was approved by an overwhelming vote in a referendum held in early 1862. Having thus observed the formalities, West Virginia applied to Congress for statehood.53
If they had their way, West Virginians would have entered the Union as a slave state. At the constitutional convention in December of 1861, the delegates overwhelmingly defeated a proposal for gradual abolition. Despite the long history of animosity between east and west, despite the fact that there were relatively few slaves and hardly any plantations in western Virginia, there was still enough deference to the property rights of slaveholders to block the adoption of a gradual emancipation clause in the new state constitution. Instead, all the convention managed to endorse was a resolution banning the further importation of slaves into the new state of West Virginia.54
When the statehood request got to Congress, however, Republicans forced the issue by requiring West Virginia to abolish slavery as a condition for admission to the Union. Virginia Senator John Carlile claimed that Congress had no right to impose such demands on a state. Senator Waitman T. Willey of the same state was more cooperative, though he tried to dilute the effects of the abolition requirement by proposing the gradual emancipation of all slaves born after July 4, 1863, once those slaves reached adulthood. But Senator Benjamin Wade, who was in charge of the bill, substituted the more aggressive schedule for gradual emancipation that antislavery delegates had proposed in West Virginia’s constitutional convention the previous December. Under the terms of the bill, West Virginia could not enter the Union until President Lincoln issued a proclamation certifying that the state had complied with the abolition requirement imposed by Congress. Sixty days after the president issued his proclamation, West Virginia would become a state.55
The slaves themselves would help ensure this outcome—or so some Republicans believed. At one point in the congressional debate, Senator Willey suggested that the slaveholders would evade the gradual abolition law by moving their slaves out of the affected counties and selling them before they reached the age of emancipation. In reply, Senator James Lane cited the example of the slaves in Kansas, who were waiting to be freed on July 4, 1856. As the date of emancipation approached, some Kansas masters attempted “to spirit their slaves out of the State.” According to Lane the slaves themselves thwarted their owners’ plans. “They said to their masters, ‘we are to b
e freed on the 4th day of July, and you shall not take us from the borders of Kansas.’ They remained there and were freed.” Lane supposed that “the slaves of Virginia have about as much sense as the slaves of Kansas had in 1856.” Wade seconded Lane’s sentiments. West Virginia was “essentially a free State,” he noted. Of course there were still a “few” who remained in the “anomalous condition” of slavery, but many others had already “nobly emancipated themselves.” The slaves, Wade believed, were the final guarantors of abolition in the free state of West Virginia.56
As soon as Wade reported the statehood bill out of the Senate Committee on the Territories, Charles Sumner objected to the gradual-abolition clause on the grounds that it amounted to the admission of a new slave state into the Union. It may be “but a few slaves only,” Sumner explained, “and for a generation only, but nevertheless a new slave State.” As of 1860 there were twelve thousand slaves in the proposed state of West Virginia, and Sumner would not “consent that there shall be two additional slaveholding Senators for another generation in this body.” The radicals on the committee rejected Sumner’s logic. John Hale thought it would be “a singular fact” if, after years of admitting states with constitutions that made slavery “perpetual and eternal,” the Congress should suddenly refuse to admit “the first one that came to our doors with gradual emancipation inscribed on her constitution.” Slavery is “an evil,” Hale declared, and he was determined “to get rid of it in some practical form, in some practical way.” As far as Hale was concerned, the West Virginia bill did that. Benjamin Wade, who did more than anyone to force the incoming state to abolish slavery, likewise disputed Sumner’s argument. He would certainly have preferred to see West Virginia emancipate its slaves immediately, but Wade believed it was a fundamental mistake for Sumner to say that the mere presence of slaves made a state into a “slave state.” On the contrary, Wade insisted, the historical record of northern abolition demonstrated conclusively that once a state placed slavery under a sentence of death by gradual emancipation, its representatives ceased to vote as slave states. Delaware, by its obstreperous rejection of gradual abolition, continued to behave like a slave state. West Virginia, on the other hand, with far more slaves than Delaware, had embraced abolition and would come into the Union committed to slavery’s destruction. It was a stretch, Wade suggested, to call that a “slave state.” Senator Fessenden agreed. Once it is “fixed in such a manner as to be irrevocable that slavery is to terminate in a given time,” he observed, “it becomes a free State in point of fact.” This was the same reasoning that led Lincoln to insist that gradual abolition commence immediately: once a state had committed itself to abolition, it behaved like a free state, further weakening the power of the remaining slave states.57
On July 14 the Senate voted down Sumner’s amendment, 24 to 11, but several key radicals supported Sumner. Concerned by this split within the party ranks, Wade tried to assuage Sumner by strengthening the gradual-emancipation provision of the bill, freeing more slaves more quickly. When Sumner tried to reintroduce his amendment, even his radical allies abandoned him. Hale wanted a “practical” bill that would ensure slavery’s destruction. Wade pleaded with his colleagues for “a little compromise.” Lane of Kansas, another dependable radical, agreed. He had originally supported Sumner’s amendment, but he wanted “to legislate upon the subject of slavery as upon all other subjects, practically.” As they had from the start of the war, Republican radicals pushed for as much as they could get, but compromised when necessary to get as much as they could. Lane would vote for the West Virginia statehood bill, he explained, “being willing to take from a slave State slavery in twenty-one years, if we cannot get rid of it earlier.” Congressman John Bingham said the same thing in the House debate later that year. “God knows, I would have preferred that this House had the courage to have said that every human being should be free now and forevermore within the proposed State.” If he could “give liberty” to every slave in Virginia, he would. But as the statehood bill gives freedom to “nine-tenths” of them, with the ultimate promise of freedom to all, “I choose,” Bingham concluded, “to follow the express will of a majority in that respect.” Unwilling to sacrifice goodness on the altar of perfection, radicals took the measure of their colleagues and pressed for the broadest, quickest abolition possible. Sumner voted against the final bill, but most of his fellow radicals—Clark, Wade, Pomeroy, Lane, and Wilson of Massachusetts—supported it.58
The dispute over Sumner’s amendment was an early indication that Republicans were giving up on voluntary abolition by the Border States as they drew closer to universal military emancipation in the seceded states. Lyman Trumbull drew the connection explicitly. He pointed out that only two days before the Senate was set to vote on the West Virginia statehood bill, it had passed the Second Confiscation Act, thereby freeing all the slaves in the rebel states. Virginia was a rebel state, so wouldn’t the emancipation of the slaves in western Virginia be accomplished more rapidly if the area was left within the seceded state? Trumbull asked. But most Republicans understood that state abolition was a far more secure method of destroying slavery than military emancipation. Besides, Wade argued, slavery was already effectively dead in West Virginia, and separate statehood was as much as anything a well-deserved reward for the loyal people, black and white, of those counties that had suffered for generations under the domination of eastern planters. Having watched the Border States reject all proposals for gradual abolition, Republicans had decided to create a Border State of their own—determined to get slavery abolished in at least one state South of the Ohio River.
With Congress ready to adjourn, the House held back on consideration of the statehood bill until it returned in December. There the debate took an entirely different turn. In contrast with the Senate, the House debate scarcely touched on the relative merits of immediate versus gradual abolition—most likely because by December of 1862, few Republicans still thought emancipation was likely to happen gradually, no matter what the constitution of West Virginia said.59 House opponents instead denounced the constitutional irregularity of the process. The “loyal” government of Virginia was essentially indistinguishable from the western counties, yet it was that skeletal entity to which those same counties formally applied for permission to secede from the state. Needless to say, the “loyal” government granted its permission. Democrats, and even a few Republicans, questioned the legitimacy of the western counties’ secession and even Lincoln’s attorney general, Edward Bates, concluded that the procedure was unconstitutional. But Lincoln disagreed and signed the statehood bill, with the abolition requirement, on December 31, 1862.
The following day he issued the Emancipation Proclamation, excluding from its reach the forty-eight counties of western Virginia. As with Louisiana, West Virginia was excluded not because its slaves would not be freed, but because it was loyal and because slavery in those counties was already slated for abolition by other means. Those means—a federal requirement that slavery be abolished by a state as a condition for admission to the Union—became a crucial precedent. Less than six months after Lincoln certified that West Virginia had met the congressional requirement for the abolition of slavery, the president imposed a similar condition on Louisiana, requiring the state to endorse the Emancipation Proclamation as a condition for readmission to the Union. Eventually the federal government would impose the same requirement on every one of the defeated Confederate states.
DURING THE SENATE DEBATE over the West Virginia bill, Lyman Trumbull wondered whether this was the right time to organize a new state, given the turbulence of the war. “Sir,” Ben Wade replied, “amidst that turbulence is the very time to organize” a new free state. The admission of West Virginia is “one of those things that the exigencies of the times most eminently demand,” Wade argued. “You can do justice now easier than you can begin to contemplate in earlier times.” By then it had become a commonplace among Republicans that the “friction and abrasion” o
f war, spreading northward from the seceded states, would eventually overwhelm and destroy slavery in the loyal states—including West Virginia. The opponents of emancipation were making the same point. In the spring of 1862, as Congress was debating the bill to abolish slavery in Washington, Ohio’s Clement Vallandingham pointed out that in the previous Congress “there were not ten men” who would have recorded their votes “in favor of the abolition of slavery in the District of Columbia.” Now, only a year later, he complained, Republicans were “availing themselves of the troubles of the times” to do something they could never have done in peacetime.60
For at least a generation, antislavery politicians had been struggling to abolish slavery in the District of Columbia, exclude slavery from the western territories, require the slave states to enforce the fugitive slave clause on their own, and reverse the proslavery bias of American foreign policy. The Civil War made it possible to implement these antislavery policies. The war also enabled Republicans to go further, to impose new pressures on the Border States that would have been inconceivable in peacetime—pressures unabashedly designed to get the loyal slave states to abolish slavery on their own. It remained to be seen whether a “cordon of freedom” would be enough to destroy slavery everywhere in the United States.
9 THE “PRELIMINARY” PROCLAMATION
ABRAHAM LINCOLN OFTEN USED comedy to make a serious point, but sometimes he liked to tell stories just because they were funny. When he met with his cabinet on September 22, 1862, he began by reading aloud from a tale by the popular humorist Artemus Ward. There was no fable with a message; it was just a good story. But if Lincoln told the tale for the sheer fun of it, he had called his cabinet together to discuss a serious subject. He wanted to tell everyone that he had decided to issue “A Proclamation” affirming the emancipation of rebel-owned slaves in the Union-occupied parts of the Confederacy and promising to emancipate the slaves in the unoccupied areas of seceded states one hundred days later. Lincoln had sent word that morning to convene at the White House at midday, and by noon all the cabinet secretaries had arrived. After reading the story and chuckling along with most of the cabinet members—Stanton didn’t laugh but everybody else did—the president “then took a graver tone.” He had “thought a great deal about the relation of this war to Slavery,” he said. Indeed he had intended to issue the proclamation the previous July but withheld it “on account of objections made by some of you.” Back then the military situation was so bleak that issuing a proclamation would have seemed like an act of desperation. But on September 17, Union troops defeated Robert E. Lee’s Confederate army in a brutal battle at Sharpsburg, Maryland, beside Antietam Creek. Lincoln told the cabinet that he had made a promise to himself and—he hesitated—“to my Maker,” that if the “rebel invasion” were turned back, he would release the proclamation. “I think the time has come now.”1 That evening, news of the so-called Preliminary Proclamation began appearing in newspapers all across the nation.