Chapter 7
The extraordinary spectacle is presented to the contemplation of civilized man in this boasted nineteenth century of the Christian world, of a nation claiming to be civilized . . . inaugurating deliberately servile war by stimulating the half-civilized African to raise his hand against his master and benefactor. . . .
—Brigadier General Daniel Ruggles, Confederate States Army, 1862
ABRAHAM LINCOLN TRIED his best to avoid the question of whether he could free the South’s slaves. But when the war forced his hand, the first answer Lincoln gave was that he could not.
It was Major General John C. Frémont, the handsome but politically clumsy commander of the Western Department, who pushed the slave question onto Lincoln’s agenda. Born in 1813 as the illegitimate son of a planter’s wife and her French émigré dance teacher and lover, Frémont had risen by some combination of good luck, good looks, and personal charm to become an officer in the U.S. Army Corps of Topographic Engineers, surveying the trans-Mississippi West. In 1841, he had eloped with Jessie Benton, the seventeen-year-old daughter of powerful Missouri senator Thomas Hart Benton. When he won over her father as well, he made himself part of one of the country’s most influential political families. For the next decade, Frémont led widely publicized exploring expeditions into the Oregon country and California. When gold was discovered on lands he had acquired near what is now Yosemite National Park, Frémont became a wealthy man. Several years later, his burgeoning fame won him the fledgling Republican Party’s 1856 nomination for president. And in July 1861, his political clout—and especially his influence in the critical border states—led Lincoln to appoint him commander of the Western Department, headquartered in Missouri.
The problem was that Frémont’s fame and political connections far outstripped his competence. He arrived in St. Louis at the beginning of Missouri’s bitter guerrilla war. Frustrated by anonymous attacks on trains and Union soldiers, and badly out of his depth, Frémont issued a hastily drafted, ill-considered, and unauthorized declaration of martial law. The declaration, dated August 30, 1861, ordered the execution of armed Confederates found behind Union lines. It also confiscated the property of all persons in the state of Missouri who were in arms against the United States. To this Frémont added the most controversial provision of all: “Their slaves, if any they have, are hereby declared free.”
Frémont’s emancipation declaration thrilled abolitionists, but it left moderate Lincoln supporters aghast and southerners spluttering. Lincoln had chosen Frémont in order to shore up Union loyalties in the border states. The general’s rash declaration risked alienating the very constituency he had been appointed to reassure. Joseph Holt, the former secretary of war during President James Buchanan’s crisis-filled final weeks in office, warned Lincoln that Frémont’s order was inspiring outright terror in the loyal slaveholding states. As protests from Kentucky and Missouri poured in, Lincoln concluded that he had no choice but to countermand the order. Writing to Frémont, the president warned that “liberating [the] slaves of traitorous owners” threatened to “alarm our Southern Union friends, and turn them against us.” Such a policy might cause Kentucky to leave the Union. To lose Kentucky, Lincoln believed, would be “nearly the same as to lose the whole game.”
Even if Lincoln had thought it prudent to emancipate slaves in Missouri, he concluded that the customs and usages of warfare prevented him from doing so. It would be one thing, he reasoned, for a military commander to seize property and hold it “as long as the necessity lasts.” Such a seizure would be “within military law, because within military necessity.” But to appropriate property permanently was another thing altogether. To say, for example, that a farm “shall no longer belong to the owner, or his heirs forever,” even after the farm was “no longer needed for military purposes,” was to make a political pronouncement, not a military one. The same held true for slaves. “If the General needs them,” Lincoln explained to his Illinois friend Orville Browning (now serving as a U.S. senator), “he can seize them, and use them; but when the need is past, it is not for him to fix their permanent future condition.”
In overruling Frémont, Lincoln carried on a tradition that ran back to the founders, back all the way to Lord Dunmore’s slave emancipation decree in 1775. American statesmen had proclaimed time and again that the laws of war protected slavery from war’s ravages. Civilized warfare, the United States had insisted, prohibited acts that might incite slaves into a war of servile insurrection and indiscriminate violence.
That Lincoln walked in the footsteps of his predecessors in September 1861 was unsurprising. What was remarkable was that in less than a year he would change his mind.
EVER SINCE Thomas Jefferson’s Virginia Constitution of 1776 indicted the king for causing “negroes to rise in arms” against the colonists, emancipations had been closely linked in the minds of white Americans to violence that defied the civilized constraints of modern war.
For one thing, slaves were private property, and as General-in-Chief Henry Halleck’s 1861 book on international law explained, “private property on land is now, as a general rule of war, exempt from seizure or confiscation.” Chief Justice Roger Taney had endorsed the same idea when he was attorney general of the United States in 1833, as did the late Henry Wheaton, whose Elements of International Law was still a leading authority on the laws of war. According to the editors of the widely respected Massachusetts-based Monthly Law Reporter, the rule had been asserted so often by the State Department that it could not be abandoned now without great embarrassment. “The just fame which the United States have acquired in their efforts to soften and ameliorate the code of war,” the editors wrote, “forbids that they should seek to exercise those rights, the legality of which they have steadily denied.”
Slaves, moreover, were a peculiar kind of private property. As the Georgia lawyer Thomas Cobb had put it before the war, slaves had “a double character,” at once property and person, and in wartime their personhood seemed to many to create a grave humanitarian danger. Wartime emancipations might let loose unimaginable waves of violence. Slave uprisings in the midst of civil war threatened to produce atrocities and destruction enough to set the South back decades, perhaps centuries. The region might be left a dismaying ruin, with rapes and murders from the Atlantic to the Mississippi.
History provided terrifying examples. The editors of the North American Review offered their readers lurid descriptions of the servile wars of antiquity (“the constant terrors” of ancient Rome). More recent episodes lay close at hand, too. In 1791 in the French colony of Saint-Domingue in the Caribbean, slaves had massacred their masters and burned plantations at the beginning of what became the Haitian Revolution. A decade later, as Napoleon tried to wrest control of the island away from the revolutionary leaders Toussaint L’Ouverture and Jean-Jacques Dessalines, both sides fought wars of racial extermination, executing prisoners and moving across the countryside in waves of terrifying destruction that left much of the once wealthy island a smoking hulk. Even nearer to home, domestic slave revolts such as Nat Turner’s rebellion in Virginia in 1831 provided fresh reminders that under the right conditions, slavery’s suppressed war could quickly erupt into a violence that no laws of warfare could hope to contain.
The South’s military vulnerability to slave rebellion had become conventional wisdom in the years leading up to the war. In 1856, while trying to block the Treaty of Paris’s prohibition on privateering, the American diplomat Alexander Dallas had warned that without privateers, European navies would be able to land at any “point of our immense coast” and from there touch off a “servile insurrection.” British military men had long boasted that, with or without privateers, attacking the American South would be like striking a spark into a tinderbox. Indeed, as tensions mounted between North and South, many in the North argued that a slave society such as the South could never fight a war in earnest. As one northerner put it in casual conversation with a southern tourist on a Hudson River steamboat, “You cannot fight! Your worst enemy is in your midst. Let us but sound the tocsin of war and your slaves will rise! Why, you will have murder and cutting of throats in every house.”
The most radical abolitionists in the North advocated precisely such an uprising. Before war broke out, an abolitionist pamphleteer from Massachusetts named Lysander Spooner called for citizen associations to raise money and arms for a “private war” of abolitionists and slaves against the master class of the South. Spooner stopped circulating his pamphlet at the request of John Brown, a veteran of antislavery violence in Kansas who worried that Spooner’s efforts would hinder the raid he himself was planning. In 1859, Brown led precisely the kind of raid Spooner had proposed when Brown tried unsuccessfully to start a slave uprising at Harper’s Ferry, Virginia. Even moderates in the North thought they might have to choose between disunion and a slave uprising as the war approached. Harvard law professor Joel Parker said that he, for one, would rather risk the “consequences attendant on a servile insurrection” than allow the United States to fall apart.
On the eve of the war, talk of slave uprisings reached a fever pitch. Outgoing president James Buchanan blamed abolitionists for encouraging “servile insurrections.” South Carolina listed northern incitement of slave rebellion as a ground for secession. Thomas J. Jackson of Virginia (known to history as “Stonewall” Jackson for his courage at the First Battle of Bull Run) accused the North of conspiring to excite slaves to a “servile insurrection in which our families will be murdered without quarter or mercy.” In Charleston, women of the planter elite such as Mary Boykin Chesnut whispered to one another about the slave uprising that would surely come once war began.
As state after state seceded, rumors of abolitionist and slave conspiracies raced across the South. Stories of secret caches of gunpowder circulated in Virginia. Suspicious arson in Texas produced near hysteria and led to the execution of fifty men, most of them black slaves, at the hand of vigilante mobs and the state’s home guard. Louisiana planters got wind of a slave conspiracy planned for March 4, the day of Lincoln’s inauguration. Slaveowners in Tippah County, Mississippi, talked of “an insurrection of the black population” and cited attempts to poison masters and burn their homes in the night. In May, fear of uprisings washed across the countryside near Huntsville, Alabama. By July, rumors flew around upcountry North Carolina that slaves were rising against their masters and that “whole families” had been “brutally butchered at midnight.” Indeed, for the first half of the year letters poured into the offices of state governors around the South warning of supposed insurrections.
Virtually nothing appeared in the newspapers, lest the slaves themselves learn about the suddenly improved prospects for uprisings. In the War of 1812, newspapers in the South had manufactured stories of British officers selling Virginia slaves into the West Indies in order to discourage slaves from running off to British lines. Now papers like the Mobile Register made up outlandish stories about horrific northern plans to abolish slavery by mass murder of the South’s 4 million slaves. The story was so implausible the author could barely muster the energy to see it through. The master class, he concluded weakly, would “in this, as in all other instances” be the slaves’ “protectors and saviours.”
FEAR OF A slave uprising shaped the conduct of both southern and northern armies in the early months of the war. Southern state governors declined to hand over confiscated federal weapons to Confederate authorities out of fear that the arms would be needed for local defense against slave rebellions. Local reluctance to turn over weapons to Richmond officials kept as many as 200,000 Confederate troops out of the field in the first year of the war.
Union commanders made suppressing slave insurrections one of their first priorities as well. Along the Mason-Dixon line, the aged and doddering Major General Robert Patterson, a veteran of the War of 1812, instructed soldiers in the Department of Pennsylvania that it was their duty to “suppress servile insurrection.” Brevet Major General George Cadwalader of Philadelphia issued the same orders. So did the commander of Union forces in western Virginia. And when Brigadier General Benjamin Butler of the Massachusetts militia heard rumors of slave insurrection in Maryland in April, he offered the assistance of his Massachusetts forces to Maryland governor Thomas Holliday Hicks.
Historians usually describe Butler as the man who put the Union on the path to emancipation. In late May, when three fugitive slaves named Frank Baker, Shepard Mallory, and James Townsend rowed four miles across the mouth of the James River to Butler’s command at Fort Monroe, Butler refused to hand them over to the Virginia officer who came under a flag of truce to collect them. The three slaves had been working to build a battery opposite the Union position, and Butler decided that their usefulness in the southern war effort made them “contraband of war.” The term was an ill-fitting one. Its technical use was to describe weapons and other kinds of property that could be seized in warfare at sea, even though belonging to a neutral owner or shipped on a neutral vessel. The black abolitionist Frederick Douglass said the term was better suited to pistols than to people. Nonetheless, Butler had hit on a way to finesse the Union treatment of fugitive slaves, and during the first year of the war the term “contraband” quickly took on vast significance as slaves gathered at Union encampments all around the edges of the South.
Yet focusing only on the contraband episode mischaracterizes Butler and ignores a problem that loomed as large as fugitive slaves in the opening weeks of the war. Butler was no abolitionist, at least not at the beginning of the war. In the election of 1860, he had been a lonely northern supporter of Jefferson Davis for the presidency. In 1862, at New Orleans, he would turn slaves away from Union lines, a decision that prompted the Congress to enact legislation barring Union forces from doing so. When Butler offered to suppress slave insurrections for Governor Hicks in April 1861 (a full month before he received the first contrabands at Fort Monroe), he expressed a keenly felt fear that the Union Army’s appearance in the South would trigger a slave rebellion.
Butler’s position on slave uprisings produced instant controversy. Angry abolitionists across the North argued that to relieve slaveowners of this risk was to do their dirty work for them. Governor John Andrew of Massachusetts protested to Butler that the South’s vulnerability to slave insurrection was not the Union’s problem, but “one of the inherent weaknesses of the enemy.” Butler’s reply put in sharp focus what was fast becoming a central humanitarian question in the first months of the war. “In what manner,” he asked rhetorically, “shall we take advantage” of the South’s weakness as a slave society? Should the Union, Butler demanded, allow the slave population “to rise upon the defenseless women and children of the country, carrying rapine, arson and murder?” In Butler’s view, a servile insurrection in the United States would have “all the horrors” of Haiti, only “a million times magnified.” Once the slaves had “tasted blood,” Butler warned, they might “turn the very arms we put in their hands against ourselves, as a part of the oppressing white race.” The founding fathers, Butler reminded Governor Andrew, had complained bitterly when the British armed “the red man with the tomahawk and the scalping knife against the women and children of the colonies.” Surely the Union could not now justify itself “in letting loose four millions of worse than savages upon the homes and hearths of the South.” In the Revolution, the British had been willing to use “all the means which God and nature” gave them “to subjugate the colonies.” But the United States could do no such thing, at least not if the conflict was to consist of “honorable warfare.”
LONG-STANDING IDEAS about honorable warfare exerted powerful influence on Union policy toward slavery in the first year of the war. But already some urged Lincoln to move toward emancipation. And when they did, they ran headlong into the well-established American position protecting slavery in wartime.
A current of dissent on the slavery question ran through American history from the founding of the republic right up to the Civil War, but it was plagued by an embarrassing ancestry. For the clearest statement of the abolitionist view of slavery in wartime had come not from an American but from the commander of British forces in North America at the close of the Revolution. In 1783, Sir Guy Carleton had issued a “Précis Relative to Negroes in America,” contending that slaves crossing into British lines during the Revolution were thereby made free.
In the decades since Carleton, John Quincy Adams had offered extensive and compelling arguments on the same point. But Adams’s arguments were almost as compromised as Carleton’s were awkward. For a decade and a half after the War of 1812, Adams had championed the proslaveholder argument on the status of slaves in wartime in his capacity as diplomat, as secretary of state, and finally as president. Indeed, no one had done more to associate the United States with the view that civilized nations sheltered slavery from war’s destruction.
In the second half of his career, as a senior statesman in the House of Representatives, Adams rediscovered his antislavery commitments and reversed course. Contesting the so-called gag rule barring antislavery petitions on the floor of Congress, Adams argued that the federal government did have a power over slavery—the war power. By the laws of war, Adams said in Congress in 1842, the “laws and municipal institutions” of the territory being fought over were “swept by the board.” In their place stood the laws of war, which Adams said gave armies awesome powers, including the power to emancipate slaves. How else could the emancipations in revolutionary South America be explained? Indeed, could it possibly be the case, Adams asked his colleagues in the House of Representatives, that the federal government possessed no authority to intervene if “servile war” broke out in the South? With astonishing foresight, Adams told his colleagues that it was “in the very nature of things” that the “Southern and Southwestern States” would one day “be the Flanders of these complicated wars, the battle field upon which the last great conflict must be fought between slavery and emancipation.”
Building on Adams’s unorthodox late-career account, antislavery men in 1861 and 1862 argued that, properly understood, the laws of war permitted the emancipation of enemy slaves. Writing to Lincoln shortly after the Frémont debacle, Senator Orville Browning of Illinois insisted that Frémont’s proclamation “was fully warranted by the laws of war.” In Browning’s view, contrary to the spirit of the American authorities on the question, private property was “subject, by the law of nations, to be taken, and confiscated, and disposed of absolutely and forever” in wartime. If a belligerent could “turn loose horses,” Browning asked Lincoln, “why may he not negroes?”
Charles Sumner pressed the case most strongly. As the powerful chair of the Senate Foreign Relations Committee, and as a confidant of Lincoln in the early months of the war, Sumner encouraged the president from the day Fort Sumter was shelled in April 1861 to make use of the war power to emancipate slaves. After the military debacle at Bull Run in July, Sumner became convinced that emancipation was imperative. In a long and intense conversation that went late into the night, he tried unsuccessfully to persuade Lincoln to exercise the war power authority to free the South’s slaves. In September, after Lincoln had reversed Frémont’s emancipation order, Sumner wrote his rediscovered friend Francis Lieber to complain that Lincoln had abandoned what Sumner thought to be the most viable path to emancipation. And once Lincoln seemed to have rejected the war power case for emancipation, Sumner took his argument to the public. The laws of war, he declared in an October 1861 speech before the annual convention of the Massachusetts Republican Party, knew no master but necessity. If necessity so warranted (and Sumner contended it did), armies could emancipate an enemy’s slaves.
Sumner’s speech called forth fierce opposition. A Pennsylvania newspaper wrote scathingly that Sumner had endorsed a “horrid policy of unloosing the bonds of four million slaves, and setting them against the Caucasian race,—to murder, pillage, and destroy, without stint, until their barbarous appetites may be appeased.”
But if Sumner’s controversial October address sparked a firestorm of criticism, it generated a groundswell of support as well. The editors of the New York Journal of Commerce opined that “the slave property of rebels is unquestionably the subject of confiscation as much as their horses or their cotton.” Harper’s Weekly reached a conclusion that would have been startling a few months before: “nothing is truer than that emancipation may become an incident of the war.” Even the moderate Christian Intelligencer, the official journal of the American Reformed Church, decided that it was time to “let slavery feel the war.” By the spring of 1862, a Harvard Law School graduate named William Whiting (soon to be appointed as the lawyer for the War Department) prepared a long pamphletdefending a broad war power of the president to emancipate enemy slaves in wartime. Whiting later exaggerated his own importance when he claimed that his essay ran through forty-three separate printings. But the pamphlet was distributed widely nonetheless, coming out in ten editions by 1864.
Some in the North also began to push back against the idea that emancipation would inevitably lead to the horrors of servile insurrection. Nathaniel Eggleston, a congregational pastor in Connecticut, complained that every mention of emancipation was met with the frantic claim that abolition would be “like the letting loose of so many wild beasts to devastate and devour.” Sumner argued that only emancipation could save the South from the fate it feared most. Without the salutary influence of the armies of the North, Sumner predicted “wild and lawless” slave insurrections. “If Liberty does not descend from the tranquil heights of power,” he warned, “it will rise in blood.” Others such as Henry Ward Beecher of Brooklyn, the North’s most influential pastor, argued that if a slave uprising occurred it would be the result of the slave system itself, not the product of Union policy. “Servile insurrections and war,” he said, “are just as certain, as it seems to me, as explosions are, where fire comes to gunpowder.” His sister Harriet Beecher Stowe, the author of Uncle Tom’s Cabin, agreed: “What are these madmen now doing,” she asked of the South’s secessionists, “as they sit on their powder magazine and fire hot shot to right and left?”
And yet for all this, the memory of Haiti and the threat of indiscriminate bloodshed prompted continued caution. “Experiments of emancipation by martial law,” warned Charles Francis Adams, Jr., would produce “terror and confusion” across the South. “Can a torch be thrust into a magazine,” he asked, “without an explosion?—if it can, the powder is worthless. Will two centuries of grinding oppression produce no spirit of revenge? If it does not, then indeed is the African unfit to be a freeman.” Emancipation would “force millions of irresponsible barbarians into society” where they would wreak a “just vengeance for their own wrongs.” It would, Adams thought, create “convulsions before which humanity must stand aghast!”
LINCOLN WAS NO STRANGER to controversies over slaves in wartime. He had been almost twenty years old in 1828 when John Quincy Adams distributed the last compensation funds to American slaveholders whose slaves had been carried off by the British in the War of 1812. Two decades later, in 1849, as a member of the Thirtieth Congress, Lincoln debated whether the United States was obliged to compensate the descendants of a slaveowner whose slave had been hired by the U.S. Army as a guide and then escaped to freedom with the Seminoles during the Second Seminole War. Lincoln cast a losing vote to deny compensation; along with most northern congressmen, he seems to have objected to giving slavery protected status under the federal Constitution. The southern legislators who won the vote had turned the debate into a referendum on the basic standards of civilized conduct in wartime. “Every civilized nation on earth,” they insisted, compensated property owners for property destroyed in wartime, including slave property.
Once the Civil War began, Lincoln heard almost constantly about the risk of slave insurrection. Letters warning of the risk of uprisings poured in from the day of his election forward. In the critical days of April, Attorney General Bates warned Lincoln repeatedlythat armed conflict between North and South would “bring on a servile war, the horrors of which need not be dwelt upon.” (Bates advised the president to abandon Fort Sumter in order to avert the danger.) And as word spread of Frémont’s emancipation decree in September, loyal Unionists in the border states turned once again to the familiar theme. “All of us who live in the slave states,” Lincoln’s friend the Kentucky slaveowner Joshua Speed wrote to the president, “have great fear of insurrection.” If “such a proclamation” were read by the slaves, Speed complained, would it not “incline them to assert their freedom”?
Lincoln tried to dampen emancipation enthusiasm as best he could. He quietly approved Butler’s narrow “contraband” policy at Fort Monroe in May 1861. But he publicly rebuked Frémont in September. And when his beleaguered first secretary of war, Simon Cameron, endorsed arming slaves in an early draft of his annual report in December 1861 (a draft that was quickly leaked to the press), Lincoln removed him and unceremoniously shipped him to Russia as America’s minister to the czar.
Lincoln knew well that emancipation and indiscriminate violence were closely connected to one another in the minds of white Americans. Indeed, the risk that fighting might lead to race war in the South seems to have worried him a great deal. For one thing, predictions of atrocity-filled slave uprisings turned on estimations of what kind of people the slaves were, and as the historian Eric Foner has recently emphasized, Lincoln had very little contact with blacks before becoming president. One of his few interactions had come when a group of black men assaulted him while he was shipping farm goods down the Mississippi. “Seven negroes,” he later remembered, had tried to “kill and rob” him, but he and his partner managed to drive them from the vessel. That was 1831. Now, thirty years later, Lincoln found himself wondering whether unloosing the bonds of slavery would reproduce the kind of violence he had experienced then, only on a massive scale and in all likelihood with much less happy results.
Yet as the months wore on, Lincoln quietly shifted his ground on emancipation. In May 1862, Major General David Hunter repeated Frémont’s premature emancipation decree, this time in the Department of the South, which consisted of South Carolina, Georgia, and Florida. Declaring martial law as a matter of “military necessity,” Hunter followed Guy Carleton’s 1783 reasoning and announced that “slavery and martial law in a free country” were “entirely incompatible.” All persons “heretofore held as slaves” in the three states under his command, he declared, were “forever free.” Hunter’s order was even more ambitious than Frémont’s. Frémont’s order had applied only to the slaves of those who took up arms against the United States. Hunter’s emancipation order contained no such limit. It purported to free the slaves in three southern states with a single blow. But where Lincoln had reversed Frémont’s order on the ground that neither he nor Frémont could free slaves under the laws of war, now he countermanded Hunter’s order because it claimed to make decisions that were the president’s alone to make. “Whether at any time, in any case, it shall have become a necessity indispensable to the maintenance of the government, to exercise such supposed power,” Lincoln explained, “are questions which, under my responsibility, I reserve to myself.”
The implication was clear: emancipation was permissible if necessary, and Lincoln himself would decide when the necessity had arrived. But that was not all. For if emancipation came, the president added, it mattered how it came. “Rending or wrecking” the social life of the South would not do. If done right, Lincoln said, emancipation would arrive as “gently as the dews of heaven.”