The Fiery Trial (36 page)

Lincoln soon appointed a three-man commission, headed by Daniel R. Goodloe, to allocate federal compensation payments. Their proceedings were rife with irony. Unsure how to assess the market value of slaves, the commission hired a slave trader from Baltimore to advise them. To ascertain slaveholders’ loyalty or lack thereof, the commission turned to the emancipated slaves (barred by District of Columbia law from testifying in court against whites), who reported conversations they had overheard in their owners’ homes. The commissioners worked quickly by Washington standards, and awarded compensation for slightly over 3,000 slaves, who ranged in age from infants to a ninety-three-year-old. At the end of January 1863, hundreds of former slaveholders lined up at the Treasury Department to receive their checks, amounting in total to around $900,000. When Goodloe informed the president that the commission had completed its labors, Lincoln replied that he was “glad to know that somebody had finished something.”
⁷⁵

But if the allocation of compensation was resolved expeditiously, the future status of the emancipated slaves was not. Some Republicans believed colonization would solve (or avoid) the problem. But the $100,000 appropriation, with a maximum of $100 for any individual, would have paid for the emigration of only 1,000 of the 14,000 black residents in the Districts. In any event, this part of the law proved to be an abject failure. Immediately after passage, the American Colonization Society offered to assist potential emigrants. “The number known to entertain that desire,” it discovered, “was
one
. The colored people…are waiting, in the hope of changes which will make their condition here as good as that of white men.” And soon after passing the emancipation act, Congress repealed the District’s black code, which had barred free blacks from certain occupations, required them to post bonds for good behavior, and limited their freedom of assembly. It soon directed local authorities to establish schools for black children, financed from black property tax payments. Early in May, Lincoln’s secretary William O. Stoddard commented perceptively that the District’s black residents “begin, the best of them, to feel and cherish the notion of their
nationality
…. The blacks refuse to regard themselves as
Africans
.”
⁷⁶

The first federal statute to grant immediate freedom to any group of slaves, the law ending slavery in Washington, D.C., fulfilled a long-standing abolitionist dream and marked a significant change in federal policy. It abolished slavery as an institution, rather than releasing individual slaves from their obligations to their owners as the Confiscation Act had done, and freed the slaves of loyal as well as disloyal owners. It ended the anomalous situation that had existed since the beginning of the century in which the civil and criminal laws, including slave codes, of Virginia and Maryland continued in force in the parts of the District these states had ceded to the government to create the national capital. It offered one example of how the war was inexorably expanding federal power.

Abolition in Washington further undermined slavery in nearby Virginia and Maryland, inspiring a new wave of runaways. One Maryland congressman complained to Lincoln that his constituents were “hourly suffering great losses from their slaves being entered into this District.” He demanded to know if Lincoln planned to enforce the Fugitive Slave Act. The situation remained unclear and volatile. James S. Wadsworth, the military governor of the District and a strong opponent of slavery, sent troops to arrest the city jailor and release blacks from prison, whereupon Marshal Ward Hill Lamon organized a posse to apprehend the military detachment. Lincoln tried to persuade civil and military authorities to come to some sort of accommodation, but to no avail. In July 1862, Washington’s mayor ordered a Maryland fugitive “remanded to his legitimate claimant,” whereupon soldiers rescued the man and brought him before a provost marshal, who freed him, stating that henceforth no escaped slave would be arrested in the District. “This policy,” one owner complained, “will be tantamount to issuing an Emancipation Proclamation” in the counties surrounding Washington.
⁷⁷

With abolition in the District of Columbia, however, the antislavery initiative in Congress temporarily ground to a halt. When the Indiana Radical George W. Julian introduced a resolution in June calling for the repeal of the Fugitive Slave Act, the House tabled it by a vote of 66 to 41. Charles Sumner pressed for repeal of an 1825 law limiting employment as mail carriers to white persons. The Senate approved the measure, but the House rejected it, with Republicans divided among themselves.
⁷⁸

Congress also failed to reach agreement on the enlistment of black troops in the Union army. The employment of slave soldiers was hardly unfamiliar. Britain had established a Caribbean slave army numbering more than 10,000 men during the wars of the Age of Revolution, and Parliament in 1807 emancipated them, paying compensation to the owners. Spain had also used slave soldiers in Caribbean wars. Black soldiers had served under George Washington in the War of Independence and Andrew Jackson at the battle of New Orleans. “Why [is it] offensive to employ colored men to fight for the Union,” Senator James Harlan asked in January 1862, “any more than for independence?” Harlan’s Iowa colleague James W. Grimes believed black enlistment would mean “the end of slavery.” Other Republicans supported the idea on purely military grounds. “When a negro rushes in to save the life of my brother or my son from the bayonet of a traitor,” said Lyman Trumbull, “I will say ‘God speed.’” Democrats were appalled. Blacks, they insisted, were unfit to be soldiers. Armed slaves would commit barbarous acts against their owners yet flee the first sign of combat, said Robert Mallory of Kentucky. How was it, Thaddeus Stevens responded, “that they are so dangerous to their masters, when a single cannon shot will put ten thousand to flight?”
⁷⁹

Even more contentious was the debate that raged throughout the session over further confiscation of Confederate property. This raised thorny political, legal, and constitutional questions. Early in December 1861, Lyman Trumbull introduced a bill for the “absolute and complete forfeiture forever” of “every species of property” of “rebels,” including their slaves, who would be “made free.” Trumbull’s proposal envisioned a far more radical attack on slavery than the first Confiscation Act, which applied only to slaves used for military purposes. Most members of the Republican caucus, the
New York Herald
reported, favored passage of a confiscation measure, but “the general shape of such a law was not agreed on.” This was, to say the least, an understatement. During the course of the next seven months, Congress spent more time debating confiscation than any other question. Radicals pressed for sweeping confiscation as a means of liberating the vast majority of the slaves in the Confederacy. Rebels, declared one congressman, “are entitled to no rights whatever, and least of all to the right of domination over others.” But many moderates held back, fearing that Trumbull’s bill violated the Constitution’s bar on bills of attainder—legislative acts declaring a person guilty of a crime and punishing him without benefit of a trial—as well as its provision limiting forfeiture of property for treason to the lifetime of the offender. Property rights, moderates insisted, were inviolable, even for rebels, unless the property was used directly to support the southern war effort.
⁸⁰

The leading Republican opponent was Lincoln’s old friend Orville H. Browning, who delivered interminable speeches outlining the legal objections to confiscation. Slavery, Browning told the Senate, was “the sole, original cause” of the war and were it “blotted from the American continent,” the conflict could not last another thirty days. But under the Constitution, he insisted, only the president, as military commander in chief, possessed the authority to act against the institution. “From hour to hour,” Benjamin F. Wade complained, Browning held the floor arguing “that the President has all power in war, and we none.” At one point John Sherman exclaimed, “I am sick and tired of this debate.” Grassroots Republicans seemed to agree. “Do let us have
some
kind of confiscation measure, and that speedily,” wrote a constituent of Trumbull’s. “By the way, does it never occur to Congress that…they are frittering away month after month in bickerings and twaddle unworthy of a country-school debating society?”
⁸¹

In fact, in the two months after the abolition of slavery in Washington, D.C., only one further piece of antislavery legislation won approval. In May 1862, Isaac N. Arnold of Illinois introduced a bill to abolish slavery in all places of exclusive federal jurisdiction—the territories, forts, dockyards, federal buildings, and American vessels on the high seas. The purpose, said Arnold, was “to render freedom national, and slavery sectional.” But moderates considered the bill too broad. Owen Lovejoy quickly proposed a substitute narrowing its scope to slavery in the territories, the issue that had always united the Republican party. This passed the House on May 12 and the Senate on June 9. The breakdown of votes had by now become familiar. Every Republican was in favor, while every Democrat and nearly all the border Unionists voted against.
⁸²

Abolition in the territories, which directly repudiated the
Dred Scott
decision, affected only a handful of slaves. The Census of 1860 counted fifteen in Nebraska and twenty-nine in Utah. (New Mexico had already repealed its slave code in December 1861, freeing the few slaves within its borders.) Nonetheless, the measure had great symbolic importance. It finally settled the question that, as Congressman William D. Kelley put it, “has kept the nation boiling with agitation for the last thirty years.” The bill provided for immediate abolition and made no mention of compensation to owners or the colonization of those freed. Nonetheless, on June 19 Lincoln signed it into law. Together with other measures of this session—the Morrill Act, which provided states with public land grants to fund the establishment of agricultural colleges; the Homestead Act, which offered free public land to settlers; and the Pacific Railroad Act—abolition in the territories sought to implement the free-labor vision of the American West, as a region free from the presence of slavery and populated by small farmers engaged in forward-looking market agriculture.
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All in all, the first sixteen months of Lincoln’s presidency—the period from March 1861 through June 1862—witnessed noteworthy changes in the government’s relationship to slavery. Lincoln had become the first American president to send to Congress a plan for abolition and had signed measures ending slavery in the nation’s capital and territories and superseding the Fugitive Slave Act. At this point, however, the course of future policy remained uncertain. The war and its consequence, the flight of slaves to Union lines, had weakened but by no means dissolved slavery’s traditional legal protections. The Confiscation Act of 1861 and the additional Article of War dealt with slaves in terms of their relationship to the military situation. Other measures, such as the resolution offering assistance to states that adopted emancipation plans and abolition in the District of Columbia and the territories, operated within the well-established constitutional framework. They attacked slavery either through action by slave states themselves or in places where Republicans believed the federal government enjoyed undisputed authority. Thus far, federal actions had no bearing on slaves in the Confederacy other than those set to work for the military or who managed to escape to Union lines. Nonetheless, the presidential initiatives and congressional enactments of the spring of 1862 portended large changes in American life. “Hereafter,” declared a writer for a northern periodical, “the thinking on the subject of American Slavery will be only in one line—how shall it be done away?”
⁸⁴

That outcome, however, depended on Union victory. And in the spring of 1862, this by no means appeared inevitable. In April, General George B. McClellan began the laborious process of moving the immense Army of the Potomac from the vicinity of Washington down to the Virginia Peninsula, from which he planned to march on Richmond, the Confederate capital. A two-month campaign began early in May, culminating in the Battles of the Seven Days at the end of June. A staunch Democrat, McClellan never developed an understanding of the relationship between politics and the war effort. He strongly opposed talk of abolition and insisted that the war could and should be won without touching slavery.
⁸⁵
Had McClellan defeated the Confederate army and captured Richmond, the war might have ended then and there, with slavery weakened but intact. McClellan’s failure inspired Lincoln and Congress to rethink the Union’s military and political strategy, opening the door to general emancipation.

E
VEN AS THE ARMY
of General George B. McClellan embarked on the Peninsular campaign, a military commander with a very different political outlook compelled Lincoln to clarify yet again his policy toward slavery. In March 1862, Major General David Hunter, a West Point graduate from Illinois and one of the few abolitionists in the officer corps, was appointed commander of the Department of the South. On paper the department encompassed all of South Carolina, Georgia, and Florida; in reality, the army’s control did not extend much beyond the South Carolina Sea Islands, captured the previous November. Before departing for his new post, Hunter asked Secretary of War Stanton for permission to “have my own way on the subject of slavery,” including the authority to “arm such loyal men as I can find in the country.” Since the entire white population of the islands had fled, Hunter clearly intended to enlist black soldiers. When Stanton failed to reply, Hunter took his silence as permission to proceed. On May 9, 1862, he declared all the slaves in his department (over 900,000 men, women, and children) “forever free,” and instructed his officers to accept black volunteers.
¹

Hunter may have been a talented general, but when it came to politics he displayed a certain naiveté. When he asked Stanton’s permission to attack slavery he added, “The administration will not be responsible.” Of course, his proclamation, if not revoked, became administration policy. When Secretary of the Treasury Chase urged Lincoln not to overturn the order, the president sent a sharp reply: “No commanding general shall do such a thing upon
my
responsibility without consulting me.” At a time when he was energetically promoting his plan of border emancipation based on the principles of gradualism, compensation, and colonization—every one of which Hunter’s order violated—it was inconceivable that Lincoln would allow the edict to stand. With Stanton’s assistance, Lincoln drew up a statement revoking Hunter’s order, which he made public on May 19. Like his order rescinding John C. Frémont’s emancipation decree in August 1861, it denied that army officers had the authority “to make proclamations declaring the slaves of any State free.” This time, however, Lincoln appealed directly to the people of the border states to take up his offer of compensated emancipation: “The change it contemplates would come gently as the dews of heaven, not rending or wrecking anything. Will you not embrace it?” The death of slavery, he strongly implied, had become inevitable: “You cannot if you would, be blind to the signs of the times.”
²

Carl Schurz, back in the United States after a stint as ambassador to Spain, had urged Lincoln, if he overturned Hunter’s order, not to preclude future action. “You can hardly tell at the present moment,” Schurz wrote, “how far you will have to go six weeks hence…. The arming of negroes and the liberation of those slaves who offer us aid and assistance are things which must and will inevitably be done.” And in his proclamation, Lincoln for the first time claimed the right as commander in chief to abolish slavery if “it shall become a necessity indispensable to the maintenance of the government.” This marked a significant change in his view of presidential authority. Interestingly, Lincoln never officially communicated the revocation to Hunter. “I wanted him to
do
it, not say it,” Schurz reported Lincoln remarking when the two met in June. Some Radicals took note of Lincoln’s language holding out the possibility that he might in the future exercise the power he denied to Hunter. Lincoln’s statement, declared the
Chicago Tribune
, “sounds like a prophet’s word,” warning slaveowners that freedom “will soon dawn.”
³

The Hunter imbroglio had an unusual afterlife. On June 9, 1862, the House of Representatives called on Stanton for information about whether Hunter had in fact formed a black regiment. Stanton replied that he had no information to that effect, but forwarded Hunter’s justification of his policy: the white masters had fled the Sea Islands, thus abandoning their self-proclaimed responsibility to feed and clothe their slaves. In the absence of a “fugitive master law,” Hunter had no alternative but to arm “hardy and devoted” slaves in the hope of retrieving their owners. Radicals in Congress laughed and applauded when the letter was read; border representatives denounced their reaction as “disgraceful to the American Congress.”
⁴

I

W
HAT WERE
the “signs of the times” portending the doom of slavery to which Lincoln referred? In the spring and early summer of 1862, pressures for a change in government policy intensified. As the army pushed into new parts of the Confederacy—coastal North Carolina, portions of Tennessee, Arkansas, and Louisiana—slaves viewed its arrival as a sign of “their approaching millennium,” and thousands fled to Union lines. The war’s destructive impact on slavery was dramatically evident in the sugar plantation region near New Orleans, where the arrival of Union forces inspired mass escapes, strikes, and demands to be paid wages. Even officers who strongly opposed action against slavery found themselves employing more and more black refugees as laborers. Moreover, fugitive slaves provided intelligence about the disposition of Confederate forces, the location of hidden supplies, and routes through unmapped terrain, making commanders reluctant to turn them away. General Ormsby Mitchel, who in March 1862 expelled fugitives from his camp in Tennessee, soon realized the “absolute necessity of protecting slaves who furnish us valuable information.”
⁵

Encounters with runaway slaves strongly affected opinion regarding slavery in the army. “When the Union soldier meets the negro in the enemy’s country,” wrote George E. Stephens, one of the few black war correspondents, “he knows him as a friend.” Stephens did not fail to convey to his readers the deep-seated racism of many soldiers. But witnessing firsthand slaves’ loyalty to the Union and encountering evidence of the cruelty of slavery increased emancipation sentiment. Samuel F. DuPont, who had led the naval expedition that captured Port Royal in the Sea Islands, remarked that he “accounted himself a conservative until he had seen the institution in all its horrors.” He now called himself an abolitionist. James A. Garfield, commanding an Ohio unit in Tennessee, reported that he found “the rank and file of the army steadily and surely becoming imbued with sympathy for the slaves and hatred for slavery.” In this war of “thinking bayonets,” in which soldiers eagerly debated political issues and wrote numerous letters home, sentiment in the army could not but affect northern politics.
⁶

As in 1861, dissension over dealing with slavery flared within the army. The most dramatic incident took place in southern Louisiana. Hoping to conciliate local whites, General Benjamin F. Butler abandoned his earlier contraband policy and ordered most fugitives barred from Union lines. But at Camp Parapet just outside New Orleans, Brigadier General John W. Phelps, a strong opponent of slavery, refused to carry out Butler’s policy and welcomed escaped slaves. After considerable back and forth between the two officers, Butler in June 1862 referred the whole matter to Washington. On July 3, Stanton replied. Saying he spoke for Lincoln, Stanton reminded Butler that army officers were no longer allowed to return escaped slaves. “In common humanity,” they must be provided with food and shelter and those capable of labor put to work and “paid reasonable wages.” “In directing this to be done,” Stanton added, “the President does not mean, at present, to settle any general rule in respect to slaves or slavery.”
⁷

But a general rule was becoming more and more necessary. Radicals and abolitionists kept up demands for general emancipation. Some denounced Lincoln as “irresolute” and a “coward,” in the heated words of Chicago journalist Horace White. Radicals close to Lincoln defended him against these assaults. In June, in a speech in New York City, Owen Lovejoy assured the Emancipation League of Lincoln’s intentions. The president, he said, was riding in a carriage being pulled by “the Radical steed…. If he does not drive as fast as I would, he is on the same road.”
⁸

More surprising than the continuing campaign by longtime advocates of emancipation was that moderate Republicans now expressed increasing impatience with the administration. Even those who professed “unbounded confidence” in Lincoln’s integrity wished he would “strike rebellion with a little more force.” Thomas J. Sizer, a moderate from Buffalo, New York, published a pamphlet noting that northerners themselves were being “emancipated”—from their “mental thralldom to slavery.” “The great phenomenon of the year,” the anti-abolitionist
Boston Daily Advertiser
remarked in August, “is the terrible intensity which this [emancipation] resolution has acquired. A year ago men might have faltered at the thought of proceeding to this extremity.” Now they were “in great measure prepared for it.” The reason, the paper added, was the “process of education which is going on with every day of the war.” But growing support for the idea of attacking slavery, expressed in newspapers, pamphlets, and letters to Republican congressmen and the president, did not translate into a clear policy. “The government seems to us,” wrote the abolitionist but generally pro-Lincoln
Independent
, “to be in the position of men who don’t know what to do.”
⁹

Despite the gathering pressure for action against slavery, Lincoln hesitated. He feared that the northern public was not prepared for more radical steps. Lincoln valued the support of War Democrats like the New York investment banker August Belmont, who used his extensive connections in Europe to help forestall recognition of the Confederacy but urged Lincoln not to yield to “extremists” demanding emancipation. Lincoln also feared the repercussions of an emancipation edict on the army, knowing the opposition of the officer corps and perhaps mistaking their views for those of ordinary soldiers. Steeped in antebellum legal culture, he harbored doubts whether even under the war power, an emancipation edict would be constitutional. Lincoln told Carl Schurz that he feared he was too radical for Democrats and not radical enough for Republicans and would end up without political support.
¹⁰

Lincoln worried that since most of the Confederacy lay outside the control of the Union army, a proclamation of emancipation would be seen as a sign of desperation. When a delegation of Quakers visited the White House on June 20, 1862, to express their “earnest desire that he might…free the slaves and thus save the nation from destruction,” Lincoln responded that he shared their belief “that slavery was wrong” and recalled that he had publicly anticipated its ultimate extinction. But “if a decree of emancipation” could abolish slavery, he added, “John Brown would have done the work effectively.” In the
Liberator
, Wendell Phillips Garrison, the editor’s son, wondered how “any sensible man” could equate an edict issued by John Brown at Harper’s Ferry with one emanating from “the Commander-in-Chief of the whole army, and invested by the Constitution with the absolute, undisputed control of the War Power?” Lincoln’s point, however, was that an unenforceable proclamation would be taken as an exercise in futility.
¹¹

Lincoln remained wedded to his border emancipation plan and his fear that a direct assault on slavery would drive the border to secede, even as the Union’s hold on the region tightened and the prospect of border secession receded. When Charles Sumner urged him to celebrate July 4, 1862, by issuing a proclamation of general emancipation, Lincoln replied that he would do so if he did not worry that “half the army would lay down their arms and three other states would join the rebellion.” Lincoln also feared that precipitous action against slavery would undermine efforts to woo wavering Confederates to the Union cause. He praised an article in the
Continental Monthly
which acknowledged that slavery could hardly be “let alone” during the conflict but made a sharp distinction between “the results of the war in relation to slavery” and the official “purpose of the North,” preserving the Union. It also argued that respect for the constitutional right of states to determine their domestic institutions would help to swell the ranks of “loyal citizens” in the South.
¹²

Lincoln hoped to encourage Unionists in parts of the South to establish civilian governments after the federal army gained control. Early in the war, he extended recognition to the Restored Government of Virginia, a convention of Unionists who met in Wheeling after the secession of their state and chose Francis H. Pierpont, a prominent antislavery attorney, as Virginia’s new governor. (Pierpont’s authority, in fact, extended only to western Virginia, the immediate vicinity of Washington, and the area around Norfolk.) In 1862, Lincoln appointed military governors for Tennessee, Louisiana, Arkansas, and North Carolina. He hoped they would rally loyal sentiment and restore their states to full participation in the Union. At the beginning of July 1862, he urged Andrew Johnson, Tennessee’s military governor, to hold elections as preparation for the state’s restoration. “If we could, somehow, get a vote of the people of Tennessee and have it result properly,” Lincoln explained, “it would be worth more to us than a battle gained.” Lincoln’s expectation that military governors could win over local whites militated against further steps toward abolition. “In all attempts to soothe southern wrath,” one northern reporter shrewdly noted, “the negro is thrown in as the offering.” Andrew Johnson, for example, did not hesitate to take strong action against rebels—he jailed disloyal local officials and ministers who preached support for secession. But he assured the people of Tennessee that he aimed to restore them to the Union in “the same condition as before the existing rebellion,” with their slaves “still in subordination.”
¹³