III
Lincoln's revocation of Frémont's emancipation order and his removal of the general from command stirred up a controversy. The issue was slavery. During the weeks after congressional passage in July of the Crittenden-Johnson resolutions disavowing antislavery war aims, many Republicans began to change their minds. Abolitionists who had earlier remained silent began to speak out. An important catalyst of this change was the Union defeat at Bull Run. "The result of the battle was a fearful blow," wrote an abolitionist, but "I think it may prove the means of rousing this stupid country to the extent & difficulty of the work it has to do." A rebellion sustained by slavery in defense of slavery could be suppressed only by moving against slavery. As Frederick Douglass expressed this conviction: "To fight against slaveholders, without fighting against slavery, is but a half-hearted business, and paralyzes the hands engaged in it. . . . Fire must be met with water. . . . War for the destruction of liberty must be met with war for the destruction of slavery."22
Recognizing that racism or constitutionalism would prevent many northerners from accepting moral arguments for emancipation as a war aim, antislavery spokesmen developed the argument of "military necessity." Southerners boasted that slavery was "a tower of strength to the Confederacy" because it enabled the South "to place in the field a force so much larger in proportion to her population than the North." Precisely, agreed emancipationists. Slaves constituted more than half of the South's labor force. They raised food and built fortifications and hauled supplies for rebel armies. They worked in mines and munitions plants. Slave labor was so important to the southern war effort that the government impressed slaves into service before it began drafting white men as soldiers. "The very stomach of this rebellion is the negro in the form of a slave," said Douglass. "Arrest that hoe in the hands of the negro, and you smite the rebellion in the very seat of its life."23
22. Moncure D. Conway to Ellen Conway, July 23, 1861, Moncure D. Conway Papers, Columbia University Library; Douglass' Monthly, Sept., May, 1861.
23. Montgomery Advertiser, Nov. 6, 1861; Douglass' Monthly, July 1861.
How could this be done under the Constitution, which protected slavery? Rebels had forfeited their constitutional rights, answered emancipationists. Their property was liable to confiscation as a punishment for treason. Moreover, while in theory the South was engaged in domestic insurrection, in practice it was waging a war. The Lincoln administration had already recognized this by proclaiming a blockade and by treating captured rebel soldiers as prisoners of war. Having thus conceded belligerent status to the Confederacy, the Union could also confiscate enemy property as a legitimate act of war.24
Benjamin Butler was the first prominent figure to act on these arguments. Back in May, three slaves who had been working on southern fortifications escaped to Butler's lines at Fortress Monroe, Virginia. Their owner—a Confederate colonel—appeared next day under flag of truce and, citing the fugitive slave law, demanded the return of his property. Butler replied that since Virginia claimed to be out of the Union, the fugitive slave law did not apply. He labeled the escaped slaves "contraband of war" and put them to work in his camp. Northern newspapers picked up the contraband of war phrase and thereafter the slaves who came into Union lines were known as contrabands.
The administration, after some hesitation, approved Butler's policy. By July nearly a thousand contrabands had rejoined the Union at Fortress Monroe. Their legal status was ambiguous. Butler decided to clarify it by addressing pointed questions to the War Department. In a letter of July 30 which soon appeared in the newspapers, he asked Secretary of War Cameron: "Are these men, women, and children, slaves? Are they free? . . . What has been the effect of the rebellion and a state of war upon [their] status? . . . If property, do they not become the property of the salvors? But we, their salvors, do not need and will not hold such property . . . has not, therefore, all proprietary relation ceased?"25
Hard questions, these, and explosive ones. While Butler wrote, Congress was wrestling with the same questions in debate on a bill to confiscate property used in aid of the rebellion. John J. Crittenden of Kentucky
24. For a lucid discussion of these questions, see James G. Randall, Constitutional Problems under Lincoln, rev. ed. (Urbana, 1951), chaps. 12–16.
25. Jessie A. Marshall, ed., Private and Official Correspondence of General Benjamin F. Butler during the Period of the Civil War, 5 vols. (Norwood, Mass., 1917), I, 185–87. Other relevant correspondence between Butler and the War Department is conveniently reprinted in Ira Berlin et al., eds., The Destruction of Slavery, Vol. I of Freedom: A Documentary History of Emancipation 1861–1867 (Cambridge, 1985), 70–75.
insisted that Congress had no more right to legislate against slavery in the states during wartime than in peacetime. True, agreed Republicans, but Congress can punish treason by confiscation of property, a penalty that operated against the individual but not the institution. In this tentative, limited fashion the Republicans enacted a confiscation act on August 6. Butler had his answer, such as it was. The contrabands were no longer slaves if—and only if—they had been employed directly by the Confederate armed services. But were they then free? The law did not say. This was hardly the ringing endorsement of emancipation that abolitionists had begun to call for. But it went too far for Democratic and border-state congressmen. All but three of them voted against the bill while all but six Republicans voted for it. This was the first breach in bipartisan support for Union war measures. It was a signal that if the conflict became an antislavery war it would thereby become a Republican war.
Such a prospect worried Lincoln in 1861. That was why he had revoked Frémont's emancipation edict, which went well beyond the confiscation act by applying to all slaves owned by rebels and by declaring those slaves free.26 The president's action was unpopular with most Republicans. "It is said we must consult the border states," commented an influential Connecticut Republican. "Permit me to say damn the border states. . . . A thousand Lincolns cannot stop the people from fighting slavery." Even Orville Browning, conservative senator from Illinois and Lincoln's close friend, criticized the revocation of Frémont's edict. Stung by this response, Lincoln chose to reply in a private letter to Browning. Frémont's action, he said, was "not within the range of military law, or necessity." He could have confiscated enemy property including slaves as Butler had done, "but it is not for him to fix their permanent future condition [by declaring them free]. That must be settled according to laws made by law-makers, and not by military proclamations." Browning had endorsed Frémont's policy as "the only means of saving the government." On the contrary, said Lincoln, "it is itself the surrender of government." When a company of Union soldiers from Kentucky heard about Frémont's edict, said Lincoln, they "threw down their arms
26. It should be noted that Butler's contraband policy also went beyond the confiscation act. Butler retained the wives and children of contrabands, even though they had not worked directly for the Confederate armed forces. For that matter, many of the male slaves who had entered Union lines did not legitimately come under the specific terms of the act either.
and disbanded." If the order had not been modified, "the very arms we had furnished Kentucky would be turned against us. I think to lose Kentucky is nearly the same as to lose the whole game. Kentucky gone, we can not hold Missouri, nor, as I think, Maryland. These all against us, and the job on our hands is too large for us. We would as well consent to separation at once, including the surrender of this capitol." And in any case, "can it be pretended that it is any longer [a] . . . government of Constitution and laws, wherein a General, or a President, may make permanent rules of property by proclamation?"27
One wonders if Lincoln remembered these words when a year later he did endeavor to make a permanent rule of property with his Emancipation Proclamation declaring the slaves "forever free." But a lifetime of change had been compressed into that one year. The slavery issue just would not fade away. The slaves themselves would not let it fade away. By ones and twos, dozens and scores, they continued to convert themselves to "contrabands" by coming into Union lines. It proved extremely difficult for their owners to pry them out again, even in the unionist border states. Many northern regiments gave refuge to fugitives and refused to yield them up despite orders to do so.28
Radical Republicans countenanced such action. And by October 1861 some radicals were urging not only freeing the contrabands but also arming them to fight for the Union. Secretary of War Cameron endorsed such action in his annual report: "Those who make war against the Government justly forfeit all rights of property. . . . It is as clearly a right of the Government to arm slaves, when it may become necessary, as it is to use gun-powder taken from the enemy."29 Cameron released his report to the press on December 1 without prior approval from the president. When an astonished Lincoln read these words he ordered Cameron to recall the report and delete this paragraph. But some newspapers had already published it. Cameron's precipitate action,
27. Joseph R. Hawley to Gideon Welles, Sept. 17, 1861, quoted in James G. Randall, Lincoln the President, 4 vols. (New York, 1946–54), II, 21; Lincoln to Browning, Sept. 22, 1861, CWL, IV, 531–32.
28. For rich detail on the continuing escapes of contrabands into Union lines and on the relationship between the army and the slaveholders who tried to retrieve their property, see Berlin et al., eds., The Destruction of Slavery, and Barbara J. Fields, Slavery and Freedom on the Middle Ground: Maryland during the Nineteenth Century (New Haven, 1985).
29. John G. Nicolay and John Hay, Abraham Lincoln: A History, 10 vols. (New York, 1890), V, 125–26.
like Frémont's, contributed to a widening rift between Lincoln and the radical wing of his party. Soon Cameron, like Frémont, lost his job. In both cases the main reason for removal was inefficiency, not abolitionism, but few radicals believed that the slavery issue had nothing to do with it.
In his annual message on December 3, 1861, Lincoln said: "I have been anxious and careful" that the war "shall not degenerate into a violent and remorseless revolutionary struggle." But abolitionists and some Republicans were already viewing it as a revolutionary conflict between two social systems. "WE ARE THE REVOLUTIONISTS!" wrote Virginia-born, New England-educated Moncure Conway in 1861. Although the Confederates "justify themselves under the right of revolution," Conway continued, their cause "is not a revolution but a rebellion against the noblest of revolutions." The North, wrote another abolitionist, must proclaim freedom as a war aim and thereby accomplish "the glorious second American Revolution."30 Thaddeus Stevens, the grim-visaged Cromwellian leader of radical Republicans in the House, called for precisely the kind of violent, remorseless struggle Lincoln hoped to avoid: "Free every slave—slay every traitor—burn every rebel mansion, if these things be necessary to preserve this temple of freedom." We must "treat this [war] as a radical revolution," said Stevens, "and remodel our institutions." Stevens's colleagues were not prepared to go quite this far, but by December 1861 they had moved a long way beyond their position of a few months earlier. On December 4, by a solid Republican vote, the House refused to reaffirm the Crittenden resolution disavowing an an-tislavery purpose in the war.31