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There may be one consideration used in stay of such final judgment, but that is not for us to use in advance. That is, that there exists in our case, an instance of a vast and far reaching disturbing element, which the history of no other free nation will probably ever present. That however is not for us to say at present. Taking the government as we found it we will see if the majority can preserve it.61

One consideration. Disturbing element. Where Browning had conjured images of fire and blood, the president declined even to breathe the words slavery or slave. In speaking of a “stay of … final judgment,” however, he was using legalese—Lincoln the attorney talking to Hay the law clerk in unmistakable terms. Hay understood the startling import of what he was hearing: Lincoln had just admitted, for the very first time, that a decree of emancipation might become necessary in the course of the war. It would be the Union’s last appeal, to the universe’s highest court, for a stay of execution. (This was not the last time Lincoln would conjure a vision of Providence as supreme tribunal: in his second inaugural address, he described more explicitly a God who sat in impartial judgment of North and South, master and slave.) Lincoln’s choice of language revealed something else, besides: when the day of jubilee did come, judgment would not be hurled down from Sinai amid wrathful blasts of brimstone, as Browning would have had it. Rather, the slaves would have to be released from bondage by mundane legalese—perhaps even allowed to slip out through a legal loophole. Legalese, Lincoln knew, was the language of democracy itself: the rule of law, whether civil or military, came down to the power of words to compel. Had not the Founding Fathers framed their declaration of independence as a last-ditch political “necessity” to which they must reluctantly “acquiesce” in the face of tyranny? Decrees by fire and brimstone were a version of anarchy, just like secession.62

It is somewhat ironic: anarchy was what both Lincoln and the South feared most.

In his conversation with Hay, the president had characterized slavery as a “vast and far reaching disturbing element”: a great structural crack in the edifice of the old Union. Here Lincoln reiterated what many other Americans—notably Jefferson—had been saying ever since the nation’s founding. (He was also echoing his own famous “House Divided” speech.) Meanwhile the edifice of the new Confederacy had been, in the words of its vice president, Alexander H. Stephens, “founded upon exactly the opposite” of Jefferson’s idea: “Its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.” By using this metaphor, Stephens was not simply saying that he and other Confederate founding fathers believed profoundly in the rightness of slavery and white supremacy. He was also confessing that their new Southern republic would stand or fall depending on the solidity of its peculiar institution. In this perverse way, the very architecture of the Confederacy relied on blacks, no less than Colonel Mallory’s gun platforms at Sewell’s Point.

But by late May of 1861, some Southerners were already starting to realize that their war to defend the institution of slavery was actually undermining the foundations of slavery—in all sorts of alarming and unexpected ways—before even a single federal regiment had marched onto rebel territory.

In the first months of the war, Southern newspapers often boasted of slaves’ loyalty to the Confederate cause. The Richmond Dispatch, under the headline “Negro Heroism,” told its readers about some black men in North Carolina who—under the direction of local whites—had collected a thousand pounds or so of scrap iron to be molded into cannonballs. The Negroes, according to the editors, “express themselves highly pleased with the preparations that are being made to kill up the