Freedom National: The Destruction of Slavery in the United States, 1861-1865 Page 17

  A number of Republicans believed that because it could be constitutionally justified only as a “military necessity,” emancipation had to be the work of the president, acting in his capacity as commander in chief. Congress could specify the “persons” whose labor would be “forfeited,” but once the federal government had taken control of the “persons” so forfeited, only the president could take the additional step of “discharging” slaves from any further service to their masters. If emancipation was strictly military, it had to be done by the commander in chief. To alleviate such concerns the wording of Trumbull’s amendment was changed at the last minute.

  In the bill’s final form, masters would still “forfeit” their claim to the service of a slave. But instead of declaring that forfeited slaves were henceforth “discharged” from service, the revised version prohibited any master from reclaiming any slave who “had been employed in hostile service against the Government of the United States.” On August 3, the House passed this version of the bill by a vote of 60 to 48. Of the 60 favorable votes, 59 came from Republicans. Only 7 Republicans voted against the bill, along with nearly every Democrat and representative from the Border States. The bill went back to the Senate that same day.

  Later that afternoon, Senator Trumbull reintroduced the revised confiscation bill in the Senate. He did not think the new wording altered the meaning of his amendment. The only thing the House version does, he said, is clarify what the bill always assumed: that Congress could specify which masters had forfeited the labor of their slaves, that it could permanently deny masters the right to reclaim the slave’s labor, but that it could not emancipate the slaves. “I think the section as we passed it meant substantially the same thing,” Trumbull explained, “but this makes it more definite.” Trumbull and everybody else still believed it was an emancipation bill because they all assumed that the commander in chief would execute the law by “discharging” the “forfeited” slaves.46

  As it was late in the day, the Senate held over the final consideration of the bill until the following Monday, August 5, at which point the amended fourth section was overwhelmingly approved by a 44 to 11 vote. A single conservative Republican—Edgar Cowan of Pennsylvania—voted against it. As in the House, every senator from the Border States and all but one Democrat voted against it. The bill went to the president the next day, and Lincoln signed it. On August 6, 1861, “[a]n act to confiscate property used for insurrectionary purposes,” known as the First Confiscation Act, passed into law.47

  Two days later, on August 8, the War Department restored Trumbull’s original wording in the instructions it issued for implementing Section 4. Under the terms of the First Confiscation Act, Simon Cameron explained, masters whose slaves were “employed in hostility to the United States” would forfeit the services of those slaves “and such persons shall be discharged therefrom.” The slaves of disloyal masters were emancipated.48 It was crucial that the instructions came from the War Department rather than the attorney general. This was military emancipation; no judicial proceedings were required. Hence the instructions were issued by the secretary of war in the form of an answer to General Benjamin Butler’s letter of July 30 asking for clarification on the status of slaves who ran to Union lines. The immediate circumstances of their composition could not disguise their broader significance.

  The War Department’s August 8 instructions, in conjunction with its May 30 endorsement of Butler’s contraband policy, initiated emancipation and established the basic Union policy regarding slavery in the seceded states that would remain in place for more than a year. Once again, Union soldiers were prohibited from enticing slaves away from their farms and plantations, and the soldiers could not prevent any slave from returning voluntarily to his or her owner. There could be no “interference” with the ordinary workings of slavery. On the other hand, slaves voluntarily entering Union lines from any state that had seceded from the Union were emancipated.

  Most of the contrabands at Fortress Monroe had not been working for the Confederates. Was it practical, or even possible, Butler had asked, for commanders on the ground to distinguish the slaves of loyal and disloyal masters? The secretary of war answered by instructing Butler to retain all fugitives but to keep careful records of the loyalties of their owners. “Upon the return of peace,” Cameron explained, “Congress will doubtless properly provide for all the persons thus received into the service of the Union and for just compensation to loyal masters.”49 This was compensated emancipation, and it effectively extended the reach of the First Confiscation Act far beyond its technical limits. Strictly speaking, the statute freed only slaves used to support the rebellion. But under the War Department’s instruction, all slaves voluntarily coming to Union lines from disloyal states were emancipated. Owners who had been loyal might someday be compensated, but the freed people would never be re-enslaved.

  On August 9, the day after the War Department sent its instructions, Butler informed one of his colleagues that numerous slaves were still coming into his lines at Fortress Monroe and that “as their masters had deserted their homes and slaves he should consider the latter free.” That was certainly Edward Pierce’s understanding. As a Free Soiler who had grown up within the circles of New England reform, Pierce accepted the abolitionist theory that in the act of running away, slaves had restored themselves to their natural condition of freedom. Pierce was also in a position to act on that belief, for General Butler put him in charge of the contrabands at Fortress Monroe when their numbers had climbed to two hundred. In the November 1861 issue of the Atlantic Monthly Pierce explained why, under the principles of the law of nations, the contrabands were now free. Southern state laws regarded them as property to be “used by the rebels for purposes of the rebellion.” Under “the strict law of nations” such slave “property” could be legitimately seized. But secession had nullified state laws, leaving escaped slaves under the purview of a natural-law Constitution that recognized slaves only as persons. “Regarded as persons,” Pierce wrote, “they had escaped from communities where a triumphant rebellion had trampled on the laws, and only the rights of human nature remained.” When the slaveholders of Hampton fled in panic before the advancing Union army, they abandoned not only their slaves but the rule of law as well. Where there is no human law, there is only the law of nature, and by its decrees, Pierce reasoned, the contrabands at Fortress Monroe were persons restored to their natural condition of freedom. He reminded his readers that Hampton Roads was the place where the first African slaves had arrived in Virginia in 1619. “It is fitting,” Pierce noted, “that the system which from that slave ship had been spreading over the continent for nearly two centuries and a half should yield, for the first time, to the logic of military law almost upon the spot of its origins.”50

  Between them, Butler, Pierce, and the War Department established two of the basic criteria for emancipation that prevailed during 1861 and 1862—criteria that went beyond the limits of the First Confiscation Act. The first was labor in service of the Union. Slaves who ran to Union lines and volunteered their services as wage laborers for the Union military, whether male or female, were entitled to their freedom. Having thus served the Union cause, black workers neither could nor would be returned to slavery. The second criterion was abandonment by their owners. Masters who ran from advancing Union occupation troops were presumed to be traitors, whose property was thereby subject to confiscation and who forfeited any further claim to the labor of their slaves, and those slaves were thence discharged from service. Slaves who had refused to run with their masters had, in effect, voluntarily come into Union lines and were thereby emancipated. In the coming months these criteria would confirm the emancipation of thousands of slaves along the southern Atlantic coast, from Virginia to Florida.

  There is no reason to doubt that this was the result the Lincoln administration intended. Even before he was elected president, Lincoln had warned that if the slave states seceded, the federal government would stop enfor
cing the fugitive slave clause, and he had repeated that warning in his first inaugural address. In early July, the House of Representatives, expressing the common sentiment of Republicans, resolved that “it is no part of the duty of the soldiers of the United States to capture and return fugitive slaves.” Lincoln himself had said substantially the same thing to Orville Browning. The War Department’s instructions to Butler thus reflected Lincoln’s conviction that no fugitive slaves voluntarily coming into Union lines from the seceded states would be returned to slavery. If Lincoln had objected to Cameron’s interpretation of the Confiscation Act, he almost certainly would have said so. As the secretary of war himself would soon discover, Lincoln was perfectly willing to disavow Cameron’s words when he disapproved of them, either for legal or for political reasons. But he did nothing to countermand Cameron’s expansive instructions for implementing Congress’s emancipation act. And they were hardly secret. Cameron’s exchange with Butler was published in the New York Tribune, the most popular Republican newspaper in America. The exchange was subsequently reprinted in Frank Moore’s influential Rebellion Record. The secretary of the navy, Gideon Welles, issued similar instructions, and Welles later recalled that Lincoln was informed of “every step” he took regarding emancipation. The Navy Department’s “instructions, and its policy, were reported to the President,” Welles recalled, and Lincoln “approved of them without reserve, modification, or qualification. The course of the Secretary of War,” he added, “was very similar.”51

  The War Department repeatedly sent copies of its May 30 and August 8 instructions to generals in the field to clarify the status of slaves running to Union lines from the seceded states. When Union General John A. Dix argued that all runaways from Virginia should be treated as fugitive slaves, the War Department corrected him by forwarding copies of the May 30 and August 8 instructions. Union officers in Kentucky were likewise instructed to emancipate slaves escaping from the seceded state of Tennessee. Just before General Thomas W. Sherman embarked on the expedition that would result in Union occupation of the Sea Islands off South Carolina in early November, the secretary of war instructed the commanding officer that his treatment of any slaves coming into his lines should be governed “by the principles of the letters addressed by me to Major-General Butler on the 30th of May and 8th of August, copies of which are herewith furnished to you.” No slaves escaping to Union lines were to be returned to their owners, whether they were loyal or not. All slaves escaping from areas in rebellion were to be “discharged” from service—emancipated. General Sherman in turn gave copies of the same War Department instructions to General David Hunter, who, following the policies of his predecessors, declared the emancipation of all the slaves at Fort Pulaski and the surrounding islands his Union troops occupied in the spring of 1862. Even General George McClellan, who made no secret of his objection to an antislavery war, implemented the War Department policy during the Peninsula Campaign in the spring of 1862. Slaves coming into his lines were not returned to their owners, whether their owners happened to be loyal or not. Within a year of its passage, tens of thousands of slaves had been freed by the First Confiscation Act.52

  NOBODY INTENDED THE FIRST Confiscation Act to be a general emancipation law. It was still unclear whether it applied to loyal masters in the Border States or the District of Columbia. It depended on the voluntary action of fugitive slaves; it could not extend to slaves unable to reach Union lines. It depended on the army, which meant that despite the resounding support for Owen Lovejoy’s resolution, emancipation could be thwarted or advanced by individual soldiers and officers who were not always willing to accept runaways into their lines. Nevertheless, military emancipation became official Union policy when Congress passed the First Confiscation Act. As of August 8, 1861, the federal government was emancipating slaves, not just slaves who had been used by the Confederate military but all slaves voluntarily coming within Union lines from the seceded states. Over the next year the scope of “military emancipation” expanded still further to include all slaves abandoned by their masters in the face of an invading Union army and ultimately all slaves in any part of the Confederacy occupied by Union troops.

  As federal policy pushed closer to universal emancipation in the seceded states, Republican radicals occasionally looked back with dismay on the limitations of the First Confiscation Act, and some even expressed regret for having supported the Crittenden-Johnson resolution. But there was no need for them to apologize. The Republicans had endorsed Lovejoy’s resolution declaring that it was not the army’s “duty” to return runaway slaves to their masters. By resoundingly rejecting the Vallandingham-Powell resolutions, Republicans effectively announced their intention to “interfere” with slavery in the seceded states. They had with remarkable speed begun freeing slaves. Congress had come into session five months ahead of schedule; in less than three weeks the Senate Judiciary Committee reported a confiscation bill to the floor and endorsed Trumbull’s emancipation amendment, and within another couple of weeks both houses revised and passed the final bill. Lincoln signed it one day later, and two days after that, on August 8, 1861, the War Department issued its instructions. It’s hard to imagine how emancipation could have begun any sooner.

  No doubt the Republicans were naive in believing that if the rebellion persisted, emancipation would happen almost automatically as slaves ran to the Union forces marching through the South. But they knew the slaves wanted to be free, and they knew the slaves needed the army to secure their freedom. What the Republicans underestimated was slavery’s ability to withstand the rigors of war. The First Confiscation Act turned out to be no match for slavery’s size and strength. But it did free thousands of slaves, immediately and without compensation, just as it was supposed to do.

  5 THE BORDER STATES

  THE FEDERAL GOVERNMENT SETTLED quickly on a policy of emancipating slaves who came “voluntarily” within Union lines from the seceded states, but it took more time—and a good deal more confusion—to settle on an approach to slavery in the four slave states that remained loyal to the Union—Delaware, Maryland, Kentucky, and Missouri. These were the Border States, and for decades they were key to the peacetime scenario of gradual state abolition by means of containment. If slavery was intrinsically weak, it was thought to be weakest in the Border States. Political abolitionists believed that once slavery was effectively contained within the South, the Border States would be the first to abolish slavery. They had fewer slaves than the cotton states, in both absolute and proportional terms. Their economies were more diversified. They had stronger ties to the North. And unlike the cotton states, it was still possible for Border State politicians to advocate the abolition of slavery. For those very reasons the Border States ultimately sided with the Union rather than the Confederacy, and for those same reasons Republicans believed those states would be the first to respond to the combination of federal pressure and federal incentives by abolishing slavery on their own.1

  But was it possible to implement a peacetime policy of containment in states that remained loyal but were severely disrupted by war? Military emancipation was justified by the laws of war; its purpose was to subdue an enemy or suppress an insurrection. There was no question—at least not among Republicans—that the eleven states of the Confederacy were in rebellion and therefore subject to military emancipation. But what about the Border States where secessionists failed? Could slaves who ran to Union lines in Maryland be retained as “contraband of war”? Did the First Confiscation Act apply to Kentucky? Were the War Department’s August 8 instructions applicable in Missouri? The state laws treating slaves as property had been nullified by secession, but were slaves still “property” under the laws of states that remained loyal?

  Massive political disruption within three of the four Border States—the civil wars within the Civil War—made it difficult for the federal government to settle quickly on any antislavery policy. The fact that the Border States were loyal suggested that a peacetim
e policy of gradual abolition was appropriate; the fact that they were disrupted by war suggested that military emancipation could be imposed within those states. Further complicating this already difficult problem was the question of fugitive slaves. It was a well-established principle among antislavery politicians that the fugitive slave clause should be enforced by the states, not the federal government, and by July of 1861 Lincoln and congressional Republicans made it clear that the U.S. military should not involve itself in the capture and return of fugitive slaves. Yet Union troops were a powerful magnet to runaway slaves, and by the fall of 1861 there were thousands of northern soldiers in Maryland, Kentucky, and Missouri, and therefore thousands of runaway slaves. It was one thing for General Butler to retain runaways in Virginia on the ground that the state had seceded from the Union, but what was the Union army in the loyal states supposed to do when slaves ran to their lines for freedom?

  These questions would have been hard enough to answer if Lincoln and the Republicans had been concerned only with keeping the Border States from leaving the Union. But they wanted to maintain the Union and abolish slavery, and they expected abolition to begin in the Border States. The problem policymakers faced was not merely keeping those states in the Union, but keeping them in the Union while at the same time pressuring them to abolish slavery. Not surprisingly, nearly all of the controversial orders and contentious disputes over the implementation of federal antislavery policy during the first year of the war—disputes within the Union army, between the army and Congress, and between Lincoln and the Border States—concerned Delaware, Maryland, Missouri, or Kentucky.