The Fiery Trial (31 page)

Lincoln greeted the legislators with a long message detailing his actions since the outbreak of war and offering a philosophical and legal justification for the Union cause. Acknowledging that some of his actions might not have been “strictly legal,” he insisted that all had been demanded by “public necessity.” To critics, he posed a pointed challenge: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” He asked for retroactive approval of his conduct. This was soon forthcoming for all of Lincoln’s military measures, although Congress notably failed to endorse his suspension of the writ of habeas corpus. This did not stop Lincoln from continuing to suspend the writ when he thought proper.
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Lincoln’s message reiterated arguments from his inaugural address about the permanence of the Union, the nation’s supremacy over the states, and the illegality of secession. He rejected the idea that any seceded state except previously independent Texas had ever been a sovereign entity, which he defined as “a political community without a political superior”—a description so “terse and complete,” the lawyer and political essayist Sidney George Fisher wrote in his diary, “that it deserves a place in the science of politics.” Northern newspapers, as well as many ordinary soldiers, had already insisted that the effort to maintain the Union embodied “the cause of self-government throughout the world.” Lincoln offered a powerful affirmation of this understanding of the war’s meaning:

Lincoln went on to link the idea of democracy directly with the familiar free-labor ethos, which he had not mentioned in his inaugural. Democracy was not simply a structure of government but a promise of economic opportunity and social justice:

Lincoln’s celebration of free labor implicitly conveyed a critique of its opposite, slave labor. But apart from a reference to “slave states,” the message to Congress contained no reference to slavery as a cause of the war or to abolition as a potential result. Indeed, Lincoln promised that after the conflict ended, the states would enjoy all their traditional constitutional rights. “Any one reading that document, with no previous knowledge of the United States,” Frederick Douglass complained, “would never dream…that we have a slaveholding war waged upon the Government…. Thus do we refuse to see even what it is impossible to hide.” To be sure, many northern newspapers praised the message for precisely this reason. But
Harper’s Weekly
greeted the assembling lawmakers with an editorial entitled “The Slavery Question.” “This,” it declared, “without doubt, will be the most difficult problem with which Congress will have to grapple.” The disposition of runaway slaves, the editors continued, could not be left to individual military commanders—the government must adopt a “uniform policy.”
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A uniform policy, however, proved difficult to arrive at. Indeed, during the five-week session, Congress adopted measures that seemed patently contradictory. Five days into the session, Owen Lovejoy presented to the House a resolution declaring it “no part of the duty of the soldiers of the United States to capture and return fugitive slaves,” and calling for repeal of the Fugitive Slave Act. The resolution was tabled, but the following day, after the second part had been omitted, the House approved it 93 to 55, with nearly every Republican voting in favor and Democrats and border Unionists opposed. The resolution never came before the Senate and did not have the force of law, but it indicated widespread Republican dissatisfaction with military commanders who returned runaway slaves.
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On the other hand, shortly after the battle of Bull Run on July 21, the war’s first significant encounter and a shocking defeat for the Union army, both houses approved by overwhelming margins a resolution affirming that the war was being waged solely to maintain the supremacy of the Constitution and not “for the purpose of overthrowing or interfering with the rights or established institutions of these states.” Introduced in the House by John J. Crittenden of Kentucky and in the Senate by Andrew Johnson of Tennessee, the lone senator from a seceded state to remain in his seat, and supported by Lincoln, it passed the House, 117 to 2, on July 22, and the Senate, 30 to 5, three days later. According to James G. Blaine, the resolution accurately reflected “the popular sentiment throughout the North” in mid-1861. Presumably for this reason, James Ashley, George W. Julian, Owen Lovejoy, Thaddeus Stevens, and Charles Sumner, the leading Radicals in Congress, abstained rather than opposing it (a decision Ashley later called “the most cowardly act of my life”).
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The special session mainly concerned itself with fiscal and military matters. The question of “the future relations of the government with slavery,”
Harper’s Weekly
observed when Congress adjourned in August, had “by general consent” been postponed to December, when the members would reconvene. Yet the debates in July and August indicated that if Republicans did not see emancipation as the war’s “purpose,” many believed it might well become a consequence. Senator James H. Lane of Kansas warned that when “the army of freedom” penetrated the South, “it will be the tocsin…for an insurrection of the slaves.” To the alarm of border-state Unionists, even moderate Republicans like Senator James Dixon of Connecticut declared that if slavery interfered with the success of the war effort, “let slavery perish.” No one sought abolition, said the moderate Henry S. Lane of Indiana, but emancipation might well be “one of the results of the war.” This, he added, was “precisely the position of the administration.” Even Garrett Davis, the Unionist senator from Kentucky, who described himself as having “always been a pro slavery man,” informed Lincoln that if it came to a choice between preserving slavery or saving the Union, he would sacrifice slavery even if it meant that “another fibre of cotton should never grow in our country.”
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Especially after the fiasco at Bull Run, constituents inundated members of Congress with letters calling for invigoration of the war effort, a demand echoed in northern newspapers. Even moderate journals like the
New York Times
hinted that emancipation might become necessary to win the war. Reports also circulated of slaves “by the thousands” employed by Confederate armies. As the session neared adjournment, Congress on August 6 responded to this pressure by passing the Confiscation Act. Enacted over the objections of Democrats and border Unionists, it confiscated property (including slaves) utilized for Confederate military purposes and declared that the owner would “forfeit his claim” to any slave so employed.
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“This bill,” John J. Crittenden complained, “will be considered as giving an anti-slavery character and application to the war.” To be sure, as a measure of abolition it was extremely limited. The act confiscated individual slaves but did not affect the law of slavery. It said nothing about the status of the large majority of slaves within Union lines, who had not been employed by Confederate armies. An early version described confiscated slaves as “discharged from service”—that is, emancipated—but this clause did not make it into the bill as passed. Undoubtedly, slaves to whom the law applied thought of themselves as freed. But their legal status remained unclear. They no longer owed labor to their owners, but the act did not explicitly emancipate them.

For all its limitations, however, the Confiscation Act represented an early turning point in the relations of the federal government to slavery. It treated slaves as persons “held to labor,” rather than chattel property. The confiscation of other property required a court proceeding, but the termination of the master-slave relationship did not—that was meant to be self-executing. The law, moreover, applied not only in the seceded states but also in the loyal border if owners allowed the Confederacy to utilize their slaves. Fearing it would alienate the border states (and possibly violate the Constitution’s prohibitions against the seizure of property without due process of law and confiscation beyond the lifetime of the owner), Lincoln signed it “with great reluctance,” according to the
New York Times
. But given that virtually every Republican member of Congress had voted for the bill, he felt he had no alternative.
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When Congress adjourned in early August, the administration still lacked a consistent policy regarding slavery, as Lincoln no doubt preferred. Immediately after the passage of the Confiscation Act, Secretary of War Cameron, claiming to speak for the president, advised Butler that while the army could not receive fugitives from states that remained in the Union, the rights of slaveholders in the Confederacy must be “subordinated to the military exigencies created by the insurrection.” Butler himself had already decided to treat arriving slaves as “free,…never to be reclaimed.” All this went well beyond the letter of the Confiscation Act. But early in August, Lincoln suddenly appointed General John E. Wool commander at Fortress Monroe, dispatching Butler to New England to raise troops. Butler assumed that this insulting demotion arose from “my views on the negro question.” In fact, it resulted from a debacle in which he had sent untrained troops to try to capture a Confederate outpost.

Wool continued Butler’s contraband policy, paying wages to both male and female fugitives employed by his forces. Military commanders elsewhere, however, still barred runaways from entering their lines and returned them to their owners. In the nation’s capital, Ward Hill Lamon, an old friend from Illinois whom Lincoln had appointed U.S. marshal, enforced the Fugitive Slave Act, jailing blacks who sought refuge from nearby Virginia and Maryland. “Thus far,” complained Francis E. Spinner, the treasurer of the United States, “our army has been but an armed police, whose duty has seemed to be to arrest and return runaway slaves to their rebel masters.” Spinner consoled himself with the reflection that “this will work itself out. There can be but one result to this contest, and it is only a question of time, and the manner of its being done.”
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II

A
LLOWING INDIVIDUAL
military commanders to make policy about dealing with slaves had the advantage of enabling the administration in Washington to avoid the issue. But since every such decision unavoidably made a political statement, it could lead to unanticipated problems. The disadvantages became strikingly evident at the end of August 1861, when John C. Frémont, commanding Union forces in Missouri, issued an order declaring martial law in the state, providing for the summary execution of rebels, and confiscating the property and emancipating the slaves owned by Confederates. Frémont had been dispatched in May to bring Missouri firmly under Union control. He found the state, he reported to Lincoln, “in disorder, nearly every county in an insurrectionary condition.” Frémont believed the administration had given local commanders a free hand. But his order went well beyond both Butler’s contraband policy, which applied only to fugitives, and the recently enacted Confiscation Act, which dealt with slaves employed for military purposes. Although it freed only slaves of rebels, not those of Unionists, Frémont’s was the war’s first proclamation of emancipation.
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Military emancipation—liberating slaves as a means of weakening a foe in wartime—was hardly a new idea. As early as the seventeenth century, Spain had used it as a weapon against other slaveholding powers in the New World. The British had done so during the War of Independence. In the Second Seminole War, the U.S. Army itself had offered freedom to black Seminoles, most of them fugitive slaves from Florida, who surrendered to its forces. Nonetheless, Frémont’s proclamation, issued at the very moment that the Kentucky legislature was considering throwing in its lot with the Union, raised a furor throughout the border. Lincoln’s old friend Joshua Speed, now a prosperous Kentucky slaveholder, had opposed Lincoln’s election but in 1861 helped to rally his state’s Unionists. Speed warned the president that Frémont’s order would inspire border slaves to “assert their freedom” and would “crush out every vestige of a union party” in Kentucky. Freeing the slaves of Confederates would destroy Unionists’ hold on their own slaves: “You cannot declare my neighbor’s negroes free—without affecting mine.” After all, Speed pointed out, slaves differed from every other kind of property: “It is the only property in the world that has locomotion with mind to control it.” Other Kentucky Unionists also pleaded with the president, including Robert Anderson, the former commander of Fort Sumter, who warned that unless the order were immediately reversed, “Kentucky will be lost to the Union.”
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Lincoln, who was born in Kentucky, who married a Kentuckian, and who had lived among migrants from Kentucky in Illinois, paid a great deal of attention to opinion in that state. (Critics accused him of being “president of Kentucky.”) Even before receiving Speed’s letter, Lincoln, “in a spirit of caution and not of censure,” asked Frémont to modify his order. Lincoln wanted him to seek presidential approval before executing Confederates (otherwise the enemy would “very certainly shoot our best man in their hands in retaliation”) and to modify the provisions relating to property, including slaves, to conform to the Confiscation Act. If he did not, “our rather fair prospect for Kentucky” would be ruined. Frémont, a man of considerable stubbornness, refused. If the president wanted the order modified, he replied, he should do it himself. Frémont dispatched his wife, Jessie, the daughter of former senator Thomas Hart Benton of Missouri, to plead his case. Lincoln received her coolly. When she made the point that emancipation would win the support of Great Britain, which otherwise might recognize the Confederacy, he called her, according to her later account, “quite a female politician.” The next day, Lincoln directed Frémont to modify his proclamation in the ways he had earlier requested. Six weeks later, Lincoln removed Frémont from his command.
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