Freedom National: The Destruction of Slavery in the United States, 1861-1865 Read online

  The Powell and Vallandingham resolutions, designed to disarm Republican support for military emancipation, went down to overwhelming defeat. Republicans voted, as usual almost unanimously, against any public statement declaring that the army and navy had no business “abolishing” or “interfering” with slavery in the seceded states. When the Senate at last voted on Powell’s version of the resolution on July 18, only nine senators supported it; thirty voted against it. Congress thereby declared that although the destruction of slavery was not the purpose of the war, it was fully prepared to let the army “interfere” with slavery in the states that had seceded from the Union.14

  TRUMBULL’S AMENDMENT

  On July 20, two days after the Senate rejected Powell’s resolution, Illinois Senator Lyman Trumbull, acting as chair of the Senate Judiciary Committee, reported a confiscation bill to the floor. The bill was brief. It included three short sections that taken together, established the legal procedures for confiscating the property of traitors. Section 1 stipulated that if the president declared an area to be in rebellion, the military could seize the property of active rebels within that area. Once the property was seized, the courts took over. Section 2 required either district or circuit courts to determine the guilt or innocence of any rebels whose property had been seized. Finally, Section 3 prescribed that the property of anyone found guilty of treason would be condemned by the court and sold, the proceeds of the sales going to the federal Treasury to defray the cost of the war. Nothing in the bill was applicable to slaves.15

  Immediately upon introducing it, however, Trumbull offered two amendments to the committee’s bill. The first, prepared at the direction of the committee, specified the jurisdiction of U.S. district or circuit courts in cases arising “in admiralty” from the confiscation of property. This, too, had nothing to do with slavery. But Trumbull’s second amendment was his own, and it had nothing to do with property confiscation. Even the language was different. The first three sections of the bill dealt exclusively with “property,” but Trumbull’s second amendment referred only to “persons,” and the persons concerned were masters and slaves. It declared that any “person”—the master—“claiming to be entitled to the labor of any other person”—the slave—and who allowed the slave’s labor to be used in support of the rebellion,

  shall forfeit all right to such service or labor, and the person whose labor or service is thus claimed shall be henceforth discharged therefrom; any law to the contrary notwithstanding.16

  This was not confiscation; it was emancipation—immediate and uncompensated—of some but not all slaves. Masters who allowed slaves to be used in support of the rebellion “forfeited” their slaves, and the slaves were “henceforth discharged” from service to the master.

  Trumbull’s wording was not accidental. At least since the Somerset case in the 1770s, the opponents of slavery insisted on the legal distinction between slaves as “property” and slaves as “persons.” All of antislavery constitutionalism rested on the proposition that the framers had deliberately chosen to refer to slaves as “persons” rather than property. Trumbull’s own language was taken almost verbatim from the fugitive slave clause of the Constitution. Under the terms spelled out in Article IV, Section 2, “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour.” Trumbull was being scrupulous, not ironic, when he referred to slaves not as “property” but as “persons held in service.”

  Trumbull’s amendment thus reflected a universal Republican conviction—derived from radical antislavery lawyers and spelled out by Lincoln in his Cooper Union address more than a year earlier—that slaves were not recognized as property under the Constitution and therefore could not be treated as such by Congress or the Union army. Commenting on Lincoln’s understanding of the law a month after it was passed, Treasury Secretary Salmon Chase noted that “the slaves are not recognized as the property of rebels [and] are not recognized as the property of rebels when employed in hostility to the Union.”17 If Chase’s rendering is accurate, Lincoln had gone beyond his argument at Cooper Union. There Lincoln denied a constitutional right of property in slaves, but he had not denied that slaves were property under the laws of the slave states. Now he was arguing that slaves were not the property of rebels, even in the slave states, maybe even rebellious masters in loyal slave states. Rebellion stripped rebels of any claim to slave property whatsoever. This was military emancipation, justified under the laws of war.

  The emancipation debate was not the only point at which the status of slaves as “persons” rather than “property” arose. The issue came up in the same special session of Congress in July of 1861 when Thaddeus Stevens, the radical Republican congressman from Pennsylvania, proposed an amendment to a revenue bill imposing taxes on various forms of property, including “slaves.” The Stevens bill was yet another way of getting at slavery indirectly without actually abolishing it in the states, yet it alarmed Owen Lovejoy, the abolitionist congressman from Illinois. If Congress planned to tax slaves as property, Lovejoy asked, was it not also obliged to protect slaves as property? Stevens insisted that he was proposing a “capitation tax” that in no way implied that slaves were property. Ohio Congressman John A. Bingham agreed. Slaves were “taxable persons,” he said, not property. Bingham also claimed that Stevens’s amendment, by specifying land, houses, and slaves, implicitly recognized the distinction between persons and property. Lovejoy was not persuaded. “This is not a personal tax,” he explained. “It is on the valuation of these items of property.” To Lovejoy’s way of thinking, Bingham’s argument was specious. He was proposing a tax based on the “valuation” of the slaves, which meant that they were “to be taxed—not as persons—but according to their valuations; just as horses or any other species of property is taxed.”18 It was a minor debate, interesting primarily because Republicans on all sides went out of their way to deny that slaves could be treated legally as property.

  Conservatives responded to Trumbull’s amendment by disputing the Republican distinction between persons and property. Slaves, they insisted, were protected as a right of property in exactly the same way as other forms of property. When “Congress undertakes to confiscate slave property,” Kentucky Congressman Henry Burnett insisted, “that species of property should be upon the very same bases as well as all other property confiscated by the General Government.” Senator John Carlile of Virginia did not doubt the government’s power to confiscate the property of convicted traitors, but it could not single out slave property for special treatment. “I know no distinction of property,” Carlile insisted.19 If Burnett and Carlile were right, if slaves were property on the same “footing” as every other “species of property,” Trumbull’s amendment could not possibly be constitutional.

  But to slavery’s opponents the dual character of slaves as “property” under state law but “persons” under the Constitution was crucial. Slave emancipation was contained within a “confiscation” bill because under state law slaves were property, but the bill itself treated slaves as “persons held in service” because that’s how slaves were recognized in the Constitution. In one sense the title of the law is misleading: it “confiscated” property, but it “emancipated” slaves. The distinction is clear even within the statute itself. Confiscated property was to be sold to pay for the war effort, and eventually real estate could be restored to the heirs of a convicted traitor. But because slaves were persons rather than property, nobody dared propose that they be confiscated and then sold, much less returned to their owners. Rather, masters “forfeited” their claim to the labor of “persons held in service,” and those persons would be “discharged” from any further obligation to their masters. They were emancipated. Nor did emancipation require judicial proceedings, because the legal basis for it was not the law of treason.20 Instead, emancipation was justified under the laws of war, and Trumbull
was adamant that this made military emancipation fully constitutional because the laws of war were embedded within the Constitution. Years of effort by diligent abolitionist lawyers were now paying off.

  Trumbull submitted the committee’s bill along with his two amendments to the full Senate on Saturday, July 20, but discussion of the legislation was postponed until the following Monday.21 The next day, while Congress was in Sunday recess, the first significant battle of the war took place twenty-five miles away.

  “WE SHALL PROCLAIM FREEDOM WHEREVER WE GO”

  Everyone knew the battle was coming. “[T]he expected pageantry in Virginia,” Ohio Democrat Samuel Cox later recalled, “aroused the wildest excitement” among his fellow congressmen.22 On that sweltering July morning several members of the House and Senate—including prominent radicals Benjamin Wade and Zachariah Chandler—rode out to witness the events near a crossroads at Manassas Junction. Approaching from the northeast, Union troops, led by General Irvin McDowell, reached a shallow river known as Bull Run. The Confederates, under General Pierre Beauregard, had taken up positions along the southwest side of the river. Both generals had the same idea. Each planned to cross the river in a flanking maneuver aimed at turning the enemy’s left. But McDowell took the offensive first, crossing Bull Run early in the morning at Sudley’s Ford, farther north than Beauregard had expected. Initially it looked as though McDowell’s surprise move would work, but Beauregard quickly shifted his troops north to the scene of the battle. In the afternoon the tide turned in favor of the Confederates, who had taken up strong defensive positions atop Henry House Hill. The southerners were also aided by timely reinforcements rushed to the scene by General Joseph E. Johnston. All afternoon a confused series of attacks and counterattacks left the green Union troops dazed, and by 4:30 they began drifting into retreat. During another surge by the emboldened Confederates, shouting their soon-to-be-famous “rebel yell,” the Yankee soldiers panicked.23

  The congressmen at the scene looked on in horror. To Republican Albert Riddle of Maine it seemed as if “the very devil of panic and cowardice” had suddenly seized every Union soldier and officer on the battlefield. “No officer tried to rally the soldiers, or to do anything,” Riddle explained, “except to spring and run.” The congressmen shouted at the retreating Yankees; some pulled out revolvers and threatened to shoot the “cowards,” but to no avail. Nothing could stop the mad scramble back to Washington, where the first to arrive were fugitive slaves.24

  In the wake of their exhilarating victory, southerners predicted a swift Union capitulation, but William Howard Russell, who witnessed the battle and described the rout in vivid terms, was not persuaded. This “prick in the great northern balloon,” Russell predicted, “will rouse the people to a sense of the nature of the conflict on which they have entered.”25 Russell was right. If anything, the Union defeat stiffened northern opposition to slavery. Soldiers returning from Manassas told of the “thousands of slaves” being used by Confederates to sustain their troops in battle, including reports of a small number of black sharpshooters among the rebels.26 At the same time, rumors circulated that Confederate troops had desecrated the bodies of fallen Union soldiers or had abused Yankee prisoners. “We must soon begin treating the enemy with the hempen penalties of treason,” a prominent New Yorker wrote in his diary. But there were other penalties to be inflicted besides swinging traitors from a rope. More Yankees than ever were prepared to undermine the rebellion by undermining slavery. Northerners were no longer calling “only for vengeance and righteous retribution,” Frederick Douglass declared, but for “the destruction of the cause of their great national disaster. A cry has gone forth for the abolition of slavery.” This was not merely the wishful thinking of a radical abolitionist. Mainstream politicians were saying the same thing. “We may commence the war without meaning to interfere with slavery,” a former Rhode Island congressman declared, “but let us have one or two battles, and get our blood excited, and we shall not only not restore any more slaves, but shall proclaim freedom wherever we go.”27

  The fury of the battle was transferred to the floor of Congress when it convened the next day, July 22, and began considering the confiscation bill. Nearly all the discussion centered on the emancipation amendment. An enraged Trumbull tied his proposal directly to the previous day’s military disaster. Referring to reports of slaves used by Confederates on the battlefield, Trumbull demanded a direct up-or-down vote on his emancipation amendment. “[L]et us see who is willing to vote that the traitorous owner of a negro shall employ him to shoot down the Union men of the country,” Trumbull declared, “and yet insist upon restoring him to the traitor that owns him.” This was hyperbole: Confederates often brought their slaves to the battlefield, especially in the first months of the war, but the slaves themselves were hardly ever armed. For nearly four years slaves were excluded from the Confederate army, and only in the very last weeks of the war were a tiny handful finally accepted. Nevertheless, Trumbull dared the opponents of emancipation to come right out and declare “that negroes who are used to destroy the Union, and to shoot down the Union men by the consent of traitorous masters, ought not to be restored to them.” In a pointed reference to the Senate’s leading critic of emancipation, John Breckinridge, Trumbull all but equated opposition to emancipation with support for treason. “If the Senator from Kentucky is in favor of restoring them”—that is, returning slaves used in the rebellion to their “traitorous” owners—“let him vote against the amendment.” Bull Run thus added an element of emotional urgency to the argument for emancipation. Southerners were using slaves to help their rebel troops shoot down Union soldiers. That’s what happened yesterday, Republicans now argued. Are we going to let it happen again tomorrow? Are we going to “disgrace our cause and our country,” Massachusetts Senator Henry Wilson asked, “by returning such men to their traitorous masters?”28 The Union defeat made the argument for military necessity seem less hypothetical, more concrete.

  But Bull Run did not really alter the terms of the debate, nor did it change many minds. A few holdouts shifted their votes. On Saturday, the day before the battle, conservative Republican Senator John Ten Eyck of New Jersey had voted in committee against Trumbull’s amendment. On Monday, the day after the battle, he announced that he would vote for it. He had not believed that the rebels would actually do it, but having seen slaves used “to shed the blood of the Union-loving men of this country, I shall now vote in favor” of Trumbull’s emancipation amendment.29 But that was it. The sides and the arguments remained the same. Republicans had already voted overwhelmingly in favor of Lovejoy’s resolution. In the debates over the Vallandingham and Powell resolutions, not a single Republican would disavow federal attacks on slavery. There was no reason to believe that Bull Run would alter the outcome of the vote on Trumbull’s amendment.

  Certainly the conservatives were unbowed. Maryland Senator James A. Pearce distinguished the main body of the bill, concerning property confiscation, from the amendment Trumbull offered. The confiscation provisions, Pearce said, were drawn with reasonable care. They targeted persons engaged in rebellion, specified how their property was to be seized, and provided the judicial means for having that property condemned and then confiscated. By contrast, Pearce complained, Trumbull’s emancipation amendment merely declared that slaves of rebel masters were to be freed. Pearce then spelled out the arguments against emancipation that would be repeated endlessly during the war. There was no way to enforce the law within the rebellious states. It provided no judicial means for determining whether owners were in fact engaged in rebellion. And it did not specify what was to be done with slaves it claimed to have emancipated. It will “inflame suspicions,” add to the “irritations” already dividing Americans, “exasperating the country to far too great an extent.”30 Pearce had no reservations about the confiscation provisions of the bill, but Trumbull’s emancipation amendment was something else entirely.

  Conservatives were particularly an
xious to dispute the claim that the rebellion would force northerners to choose between slavery and the Union. When Senator Browning uttered that standard Republican refrain, Senator Carlile of Virginia immediately denied it. Such a choice, Carlile said, “never can be forced upon the Senator” for the simple reason that the Union was based on the principle that property rights were sacred and inviolable. To uphold the Union was to defend, not repudiate, the right of property in slaves. In Carlile’s mind, Browning was posing a false dichotomy. Or as Kentucky’s Senator Powell asked, can Senator Browning “uphold constitutional government by putting the Constitution of his country under his feet?” The kind of war Republicans were proposing to wage was outrageous, Powell declared. “[Y]ou have no right to enter with your armies any State of this Union and despoil the people of their property.”31 This made perfect sense—but only to those who believed slaves were constitutionally protected property.

  The relentlessness with which conservatives pressed their case only forced the more moderate Republicans to take positions they might have preferred to avoid. Senator John Sherman of Ohio epitomized the dilemma. He desperately reiterated that it was not his purpose to emancipate the slaves. But under the pressure of congressional debate he shifted ground. During the secession crisis he had incurred the wrath of his fellow Republicans by endorsing constitutional changes that would have increased the protection afforded to slavery. That was six months ago, though. “I would not do that now,” Sherman admitted. He had struggled to distance himself from radical enthusiasm for emancipation by declaring his fervent wish that such a revolution could be avoided. But neither could he disavow the Republican argument for emancipation as a military necessity. He freely admitted the discomfort he felt. “I do not wish to be placed in that position,” Sherman said, but he would not shrink from it either. Quite the contrary: Rather than see “one single foot of this country of ours torn from the national domain by traitors,” he declared, “I will myself see slaves set free.” If “there is no way of conquering South Carolina, for instance, except by emancipating her slaves, I say emancipate her slaves and conquer her rebellious citizens.”32 Forced to clarify his position, Sherman defended emancipation as a legitimate tool of war.