Chapter 8
To save the country is paramount to all other considerations.
—Instructions for the Government of Armies of the United States in the Field, 1863
AS THE MOON sank low in the night sky over eastern Florida on March 8, 1863, 900 soldiers of the Union Army made their way up the St. John’s River from the Atlantic coast aboard the steamer John Adams with an escort of Navy gunboats. Even under ordinary circumstances, the raid would have been a daring and complex one. The mission was to travel twenty miles upriver under cover of night and make a dawn landing at the sharp bend in the St. John’s that sheltered the isolated village of Jacksonville, population 2,000. If all went as planned, the village would be occupied before local Confederate forces even knew what was happening.
But these were not ordinary circumstances. This operation was different from any the Union had carried out in two years of war. Months earlier, all 900 of the enlisted men aboard the John Adams had been slaves on the sea island plantations of South Carolina. Now, in March 1863, they were black soldiers of the South Carolina Volunteers on a mission to spread word of the Emancipation Proclamation among the blacks of Florida.
The South Carolina Volunteers, as one newspaper observed, were “not the phantom” of servile insurrection. They were its reality. The Union had occupied Jacksonville once before in an effort to interrupt the shipment of cattle and hogs to the Confederate armies. This time the Union mission in Jacksonville was different. The regiment’s white officers, Colonel Thomas Wentworth Higginson and Colonel James Montgomery, had been radical abolitionists before the war. Higginson was an admirer of John Brown. Montgomery was an antislavery Kansas jayhawker, raiding slave plantations across the Missouri border in the lawless violence of the 1850s. With Higginson and Montgomery in command, the Volunteers aimed to use Jacksonville as a base for arming Florida’s freedmen against their former masters.
Obstructions along the St. John’s delayed the Union vessels by several hours. At eight in the morning stunned residents of Jacksonville watched the John Adams steam around the bend. As they realized the race of the men in the Union uniforms, the surprise of the white onlookers gave way to terror. For months, Confederate authorities had been warning that Emancipation would mark the beginning of a Union effort to foment slave uprisings across the South. Now the white inhabitants of Jacksonville—“in mortal dread of the sable soldiers,” as one correspondent reported—expected an indiscriminate massacre. Around the country, observers expected that raids such as the one led by the South Carolina Volunteers would be like “a great volcano . . . bursting” upon the South. Critics of the Lincoln administration in the North condemned the expedition (the “wretched business of negro soldiering”) as war “against the women and children on the plantations, and not against the armed force in the field.”
Thomas Wentworth Higginson, commander of the 1st South Carolina Volunteers, and his first sergeant Henry Williams led raids to bring away slaves from the backcountry of the Deep South.
Union officials were painfully aware of the passions raised by the mission. Secretary of War Stanton, who had authorized the recruitment of the black regiment in August, warned the commander of the South Carolina Sea Islands, Brigadier General Rufus Saxton, to use only those means “consistent with civilized warfare.” Saxton, in turn, had expressly limited Thomas Higginson to those measures “consistent with the usages of civilized warfare.” Indeed, Higginson himself believed that his men could easily be turned into savage warriors like the Seminole Indians who had fought U.S. troops in Florida for decades. They were, he wrote, especially suited to “partisan warfare” and “could easily be made fanatics” if their commander chose to train them as such. But Higginson insisted that he would “have none but civilized warfare” in his regiment. The eyes of the nation, he told his men, were upon them.
No one knew better than the black soldiers themselves just how fraught their raid into the Florida interior was. It had not escaped them that in the event of their capture, Confederate forces would treat them not as enemy soldiers but as armed slaves encouraging a general uprising. The penalty for stirring up slave rebellion was death. Even before the announcement of Emancipation in September 1862, southern whites had demanded that southern blacks captured in arms be executed. Since Lincoln had made Emancipation public in September, the Confederacy had made execution or re-enslavement its official policy. “Dere’s no flags ob truce for us,” Higginson’s men observed. None of the Enlightenment’s constraints protected them. “When the Secesh fight de Fus’ South,” one of the Volunteers remarked, “he fight in earnest.”
And yet despite the fears that raced through the town at the arrival of the black South Carolina Volunteers, no massacre ensued. To the contrary, Higginson and his men took the town with such speed and skill that it was completely surrounded before the people of Jacksonville had become fully aware of their presence. When reports of the Volunteers’ success reached the North, newspaper editors reacted with joy. The Boston Daily Advertiser gushed that the use of black troops had been shown to be “something far differentfrom an attempt to arouse servile insurrection, with the horror anticipated from it.” The “conduct of the freedmen” had been “free from excess or disorder,” far more so (the editors were “very sorry to say”) than the conduct of most white regiments. The raid on Jacksonville had been “an act of regular warfare under the established rules of nations.”
THE FREEDMEN OF the South Carolina Volunteers are little remembered today. Unlike the black soldiers of the better known 54th Massachusetts, who under their commander Colonel Robert Gould Shaw led a heroic but ill-fated assault on Fort Wagner near Charleston in July 1863, the Volunteers fought no famous pitched battles. In Jacksonville, it was precisely the absence of violence that marked the Volunteers’ success. What observers North and South understood very well at the time was that Lincoln and Stanton’s decision to expand Union reliance on black soldiers depended crucially on their performance. There might never have been a 54th Massachusetts if it were not for the successes of the South Carolina Volunteers.
The legacy of the black soldiers from South Carolina has remained with us in another, less salient way as well. Even as the South Carolina Volunteers occupied Jacksonville, the Union was putting the finishing touches on an effort to establish that Emancipation and the arming of black soldiers were aligned with the highest humanitarian ideals of the age. The very project that threatened to cause a conflagration across the South helped spark the modern laws of war.
THE CONFEDERACY HAD no need to produce a new chapter in the laws of war. Their aim was not to transform those laws but to embrace them in the form they had taken since the earliest days of the republic.
Within days of the firing on Fort Sumter, Confederate president Jefferson Davis proclaimed his commitment to “the usages of civilized warfare” as they had been understood since the War of Independence. Davis and the Confederate Congress championed broad rights for neutral shipping and affirmed the old American principle that free ships made free goods. They attacked the Union’s blockade as an unlawful paper blockade and adopted the general principles of the 1856 Declaration of Paris, except for its ban on privateering. After southern privateers began to seize Union vessels on the seas, Davis and his administration gleefully mocked the Union’s sudden and transparently self-interested about-face on the Declaration’s privateering provisions.
With more bitterness than glee, Confederate statesmen also excoriated the Union for its treatment of private property on land. After Lincoln signed the first Confiscation Act into law in August 1861, the Confederate Congress announced that the Union had“departed from the usages of civilized warfare” by “confiscating and destroying” Confederate property whether “used for military purposes or not.” The South’s retaliatory Sequestration Act ultimately scooped up more property than the Union’s confiscation legislation ever did. But the South only seized and held Union property in reprisal for Union confiscations and as security to ensure that Confederate citizens were indemnified for their unlawful losses.
All of this aligned the South with a long American tradition of limits on war’s destruction. When Lincoln decided to prosecute southern privateers as pirates, Jefferson Davis had virtually stood in the shoes of George Washington outside Boston demanding that the British treat his men as soldiers instead of as criminals. Davis wrote to Lincoln that it was “the desire of this Government so to conduct the war now existing as to mitigate the horrors as far as may be possible.”
The Confederate position on emancipation and the arming of slaves followed easily from its embrace of long-standing American views on the laws of war. As early as June 1862, southern whites wrote to Davis to demand that the Confederate Army deny prisoner of war status to black Union soldiers and treat them instead as slaves engaged in a criminal uprising. In August, in response to early efforts to recruit black regiments in the Department of the South and the Department of the Gulf, authorities in Richmond ordered that Major General David Hunter and Brigadier General John W. Phelps “be no longer held and treated as public enemies of the Confederate States, but as outlaws.” In the weeks after Lincoln announced Emancipation in September 1862, members of the Confederate Congress introduced bills that would have treated Union officers as agitators inciting slaves to rebellion and thus as criminals, not soldiers. By the end of the year, Jefferson Davis announced that armed “negro slaves” and the commissioned officers found serving with them would be delivered to state authorities for prosecution.
THE CONFEDERACY HAD simply reproduced the views of American statesmen from Jefferson and John Quincy Adams to Franklin Pierce and William Marcy. But as Emancipation approached, and as the Union moved rapidly toward arming black soldiers, Lincoln enjoyed no such luxury.
One alternative that crossed Lincoln’s mind was to revisit the decision to apply the laws of war to the conflict with the South. In setting up the blockade and in abandoning the privateering trials, Lincoln had backed his way into treating the South as entitled to the basic rights of the laws of war. But as the Confederacy threatened to abandon the rules of civilized warfare in retaliation for Emancipation, some thought the only sensible response was to insist that it was the slaveholders who were savage violators of the basic standards of civilization.
The best developed argument on this score came from an unlikely source on the other side of the Atlantic. John Elliot Cairnes was a distinguished professor of jurisprudence and political economy at Queen’s College, Galway, in Ireland. Just two years before the war, Cairnes’s friend the British philosopher John Stuart Mill had forcefully observed that the laws of civilized war did not apply in war with savage peoples. Mill made the observation in the course of defending the use of force in the far reaches of the British Empire. As a description of the limits of the European tradition, he was right. If one thing was clear, it was that the rules of civilized conflicts were inapplicable in fighting against savages and barbarians. This was the basis for Jefferson Davis’s argument that enlisting black soldiers against the Confederacy was an act of barbaric warfare.
Cairnes’s insight was to see that the same idea Mill invoked for the wars of empire and that Davis used to demonize the North could be turned against the South. As the war of words over Emancipation heated up, Cairnes contended that the barbaric people werenot the slaves but the slaveholders. Slaveholding was a backward institution, he insisted, at odds with the moral progress of the modern world. It sapped the moral fiber of peoples who practiced it. And if the slaveholders were barbarians, Cairnes asked, then why should the laws of war bind those who fought against them any more than it did those who fought against the savages and barbarians of faraway lands?
Cairnes’s book was instantly reprinted in the United States, and it garnered widespread interest and much favorable attention. Lincoln himself referred to Cairnes’s idea when he wrote a draft resolution to be issued by English supporters of the Union cause. No state founded on “human slavery,” Lincoln proposed in early 1863, should “ever be recognized by . . . the family of Christian and civilized nations.” Lincoln’s main interest here was to hold off the continuing threat of English recognition of the Confederacy as an independent nation. His careful choice of words suggested a further step: refusing recognition not just as a state, but as a civilized state, a member of the “family of . . . civilized nations.” Lincoln may not have started out as an expert in the international laws of war. But he was learning fast, and he knew very well that only “civilized nations” were entitled to the rules that attached in violent squabbles within the family of European states.
By the time Lincoln proposed his 1863 resolution, however, he also knew that implementing Cairnes’s approach was impossible as a practical matter. From the collapse of the privateering prosecutions in late 1861 onward, the president had come to understand that he could not treat the South as categorically outside the laws of war except at terrible cost. Davis would no doubt retaliate in kind against captured Union soldiers for any punishment of Confederate soldiers. In a world in which tens of thousands of Union prisoners were in Confederate hands, Lincoln would have to work inside the laws of war. His administration would need a different response to Jefferson Davis’s position on Emancipation and black soldiers.
BY THE SUMMER of 1862, Francis Lieber had emerged as the Lincoln administration’s closest adviser on matters relating to the laws of war. Lieber shared Cairnes’s view of slavery as a deeply backward institution. He shuddered when he saw slaves punished by their masters and families separated by sale. Slavery, he thought, was antithetical to the moral progress of the age. “It is not the North that is against you,” he wrote in an unsent letter to the aging defender of slavery John Calhoun in 1850; “it is mankind, it is the world, it is civilization, it is history, it is reason, it is God, that is against slavery.” The South’s peculiar institution was akin to barbaric practices the world over such as polygamy and concubinage, all of which Lieber thought were dying out across the civilized world. Slavery would soon follow. “The whole movement of history,” he said, was against it.
Such ideas were commonplace in the North in 1862. Yet Lieber was differently positioned from most who held this view. For Lieber had been a slaveowner himself only a few years before. Shortly after arriving in South Carolina in 1835, he had spent $1,150 on two slaves: a woman named Betsy and her daughter Elsa, whom he bought from a slave dealer at the state courthouse in Columbia. In his diary he noted their “good looks” and “healthy, cheerful, and bright appearance.” Over the next twenty years he bought more slaves, carefully checking their teeth to gauge their health and examining their backs for signs of whipping to judge their behavior. When Elsa and her baby died in childbirth, Lieber observed privately that the deaths cost him “fully one thousand dollars—the hard labor of a year.” Lieber failed to note that a successful birth of the child, who under the slave law of South Carolina would have belonged to him, would have yielded a fabulous return on his initial investment.
Lieber excused his ownership of slaves by reasoning that in a place where slavery existed, it was better to own slaves and treat them well than to leave them to other, less benign owners. During his South Carolina years he had defended southern slaveowners’ treatment of their slaves and condemned radical abolitionism. His erstwhile friend Sumner had accused him of becoming “a proslavery man.”
Perhaps because of his own experience with slavery and with living in the South, or maybe because his late son had fought on the side of the rebels, Lieber was unwilling to conclude that the slaveholding South was ineligible for the laws of civilized warfare. To the contrary, Lieber saw the war as an opportunity to increase the prestige and significance of the laws of war. Early in the conflict, he proposed an international congress of jurists to resolve open questions in the laws of civilized warfare. If not an international congress, then Lieber suggested to Sumner “a little book on the Law and Usages of War.” (“A catechism for belligerents and neutrals,” Lieber called it, though he assured Sumner that his idea arose from “no sickly philanthropy” or “morbid feeling about war.”)Lieber took up the subject of prisoner exchanges and the law in the pages of the New York Times. The lectures Lieber delivered in New York in the fall and winter of 1861–62 put the laws of war at the center of the conflict. He hoped to make the Civil War an epochal war for civilization, the capstone of centuries of moral development.
If civilization abhorred slavery, it followed for Lieber that slavery could not possibly be protected by the law of war among civilized nations. Slavery, he thought, was a creature of the laws of particular nations, and backward-looking ones at that. War, however, took place in what Lieber (following many before him) called the state of nature, where no one nation’s laws could claim authority. Slavery was therefore at great risk in wartime. After the Mexican War, for example, Lieber had written that slavery did “not exist in conquered Territories” unless authorized in new affirmative legislation by the conquering state.
Lieber’s view had powerful implications for the status of slaves arriving in Union lines. Along with Thurlow Weed and Senator Henry Wilson of Massachusetts, Lieber visited Fort Monroe and discussed the problem of fugitive slaves with General Benjamin Butler. Lieber thought the term “contraband” was ill adapted to the problem, though he agreed that it had been taken up into the culture “amazingly.” The true principle, Lieber contended, was that when fugitive slaves came into Union lines, they instantly “must be, and are by that fact, free men,” whether or not they were useful for the Confederate or Union war efforts. The race of the slaves made no difference. Since “war is carried on by the law of nature,” no nation was bound to recognize the racial status laws of any other, let alone of an enemy. The “law of nature,” he insisted, “does not acknowledge difference of skin.”
Lieber’s law lectures concluded with a long treatment of the status of slaves in wartime. Following Montesquieu and Blackstone, he condemned the traditional justification for slavery as arising from the capture of prisoners of war. When a fugitive slave presented himself for protection to a military commander, Lieber explained to his students, the commander had no capacity and indeed no authority to apply the enemy’s “peculiar” laws authorizing slavery. Any such fugitive was therefore necessarily free. Soon Lieber was collecting notes for his friend Sumner to show that John Quincy Adams had erred as secretary of state in the 1810s and 1820s when he said that the usages of civilized war prohibited the emancipation of fugitive slaves.
Lieber’s outspoken position on the implications of the laws of war for slavery soon attracted the attention of the Lincoln administration. Lieber had been scandalized in 1861 when McClellan promised to put down servile insurrections with the Army. Did McClellan propose, Lieber wondered, to “step back and fight the masters again” once any such slave insurrection had been suppressed? A year later, when Edward Stanly, Lincoln’s military governor for eastern North Carolina, began returning fugitive slaves to their putative owners, Attorney General Bates asked Lieber for a formal opinion on the status of slaves in wartime. Lieber’s opinion, which ran in newspapers in New York and Chicago, drew on his lectures to argue that fugitives who reached Union lines were free. In the laws of war, Lieber argued, “men stand opposed to one another in war simply as men.” Their legal status as husbands, employees, servants, or slaves, fell away “like scales.” When “a negro presents himself to our troops as coming from the enemy and claiming our protection,” he was therefore a free man. A month and a half later, at the beginning of August 1862, Secretary Stanton asked Lieber to prepare a formal opinion on the “military use of colored persons.” Lieber quickly produced another memorandum arguing that the use of slaves in armies was admitted by the “acknowledged law of war,” and urging that the Union Army make more organized use of them in the war effort. By 1863, he was arguing that the enlistment of blacks was “one of the historic facts” of the war. “If only we can prevent regular servile war,” Lieber wrote, “it would be very desirable.”
AS 1862 CAME to a close, Lieber’s views on the slavery question became more salient than ever. Even as the Union began to arm black soldiers in earnest, and even as Thomas Higginson drilled his South Carolina Volunteers, Jefferson Davis issued proclamations excoriating the impending emancipation and ordering that armed “negro slaves” (and the commissioned officers found serving with them) be treated as criminals and delivered to state authorities for prosecution. Rumors began to circulate in Washington that the Confederacy was selling into slavery black freemen captured alongside Union forces. News reports suggested that Confederate soldiers had even begun to execute black teamsters accompanying surrendering Union troops. (The reports, it turned out, were true.)
All of this put enormous pressure on the Lincoln administration as January 1—the appointed day of Emancipation—drew near. Radicals in the Senate demanded to know what Stanton and the War Department planned to do in response to the South’s provocations. And once the administration turned from the work of preparing its annual message to Congress in early December, Lincoln’s secretary of war and his general-in-chief Henry Halleck wired Francis Lieber in New York with an urgent message to come to Washington.