In default of executive action, Congress again took up the matter and on March 13, 1862, enacted a new article of war that prohibited officers, on penalty of dismissal from the service, from aiding in the capture or return of runaway slaves of disloyal masters. Stanton, as shall be shown, instigated a second Confiscation Act, which Lincoln signed on July 17, 1862, and it went further: fugitive, captured, and abandoned slaves of rebels were declared free, and the President could employ Negroes for the suppression of the rebellion, in such numbers and manner of organization as he judged necessary. It was a cautious way for Stanton and radical congressmen to empower Lincoln to enroll Negroes as soldiers and push him toward a willingness to use the power.
For the present, Lincoln chose to use them only as noncombatant laborers. To put arms in the hands of former slaves—to use black men to kill white men—had more explosive potentialities than emancipation itself.
Almost from the time he became Secretary of War, Stanton was far ahead of Lincoln in his thinking on the matter of utilizing Negroes in the war effort. As early as April 1862, newspapers reported that Stanton was considering the use of Negroes as garrison troops in the less healthful parts of the South, and that a colorful Zouave uniform, including scarlet trousers, had already been chosen for the “sable arm.”
Soon after this, General O. M. Mitchell wrote to Stanton that in two instances he owed his own safety to the faithfulness of Negroes, and had thereupon promised protection to every slave who brought him information, regardless of orders to the contrary issued by Buell, his department commander. Stanton revealed his personal feelings in the matter by responding: “The assistance of slaves is an element of military strength, which, under proper regulations, you are fully justified in employing for your security and the success of your operations. It has been freely employed by the enemy, and to abstain from its judicious use when it can be employed to military advantage would be a failure to employ means to suppress the rebellion and restore the authority of the government.”3
As soon as Congress passed the second Confiscation Act, Stanton asked Francis Lieber, a German-born scholar devoted to the Union cause, now teaching law at Columbia College, to prepare suggestions on the use of Negroes “that come to our armies for support or protection.” Lieber’s study, submitted early in August 1862, concluded that Union policy and sentiment required a constructive, humanitarian employment of fugitive Negroes in the Union Army as armed menials, and insisted that the South would benefit from any delay in such utilization.
But Stanton was moving ahead of the idea of using Negroes only as soldierly laborers. Early in September, he had Holt appointed Judge Advocate General of the Army, and asked him to prepare an opinion on the government’s rights and duties under the second Confiscation Act, to counter Bates’s views and perhaps to have arguments at hand to bring Lincoln to his viewpoint. Holt had announced his conversion to emancipation before his appointment; his report to Stanton recommended an unqualified use of Negro troops as fighting men. Holt recalled years later that Stanton, “in one of those unreserved conversations which we occasionally had upon the absorbing questions of the day,… declared … with the vehemence which often characterized him in the discussion of such topics, that the war could never be successfully closed for the government, without the employment of colored troops in the field.” Holt correctly felt that Stanton had been advocating such a policy for some time.4 Indeed, Stanton had already allowed one Union general, David Hunter, to arm Negroes without Lincoln’s knowledge and with his own implied consent.
In March 1862, Stanton had sent Hunter to take command of the Department of the South, where Union control was limited to Hilton Head, North Carolina, and the neighboring coastal area. Hunter’s force was small, and, finding many brawny young Negroes within his lines and noting that his predecessor’s orders from Secretary Cameron authorized the employment of “loyal persons” in any manner that circumstances might call for, he began arming and training colored soldiers, and then ordered that all slaves in his command be freed. It was the same sort of unauthorized action that Frémont had taken earlier in Missouri. The news of it reached Washington in mid-May and broke like a thunderclap. Without discussing the matter with the cabinet, Lincoln rescinded Hunter’s order, and Stanton helped him prepare the text of the annulment.
Hunter’s action brought him under the scrutiny of Congress. Venerable Charles A. Wickliffe, a Union Democratic representative from Kentucky, asked Stanton by private letter whether Hunter’s enlistment of Negroes was sanctioned by the War Department. Receiving no answer, he wrote again, whereupon an assistant secretary responded that the query had been brought to Stanton’s attention and would be answered in due course.
Still no reply was forthcoming; so Wickcliffe obtained passage of a resolution directing Stanton to inform the House concerning the acceptability of Hunter’s policy to the War Department. Brought to bay, Stanton responded that he had no “official” information about Hunter’s Negro regiment, and had ordered Hunter to report to him on the matter.
Hunter was delighted to make the occasion of his report to Stanton an excuse for an impudent apologia. No fugitive slaves were enlisted in his department, he reported. “There is, however, a fine regiment of persons whose late masters are ‘fugitive rebels,’ ” which was eager to go “in full and effective pursuit of their fugacious and traitorous proprietors.”
The general stated that it was his “painful duty” to assert that he had never received any specific authority from the War Department to issue clothes and arms to his Negro regiment. But he deemed himself authorized to enlist as well as outfit the regiment by Secretary Cameron’s instructions to his predecessor. If other duties had not intervened, he concluded defiantly, he would have raised not merely one but five or six such regiments, for the experiment had been “a complete and marvelous success.” By autumn he hoped to have 48,000 or 50,000 Negroes under arms.
Stanton communicated Hunter’s response to Wickliffe without comment, which seemed a gratuitous insult to the congressman. The enraged Kentuckian denounced Stanton’s uncommunicativeness as an implied endorsement of the general’s sarcastic statements, and accused Stanton of complicity in a policy that would stamp the Union cause with infamy and call down the wrath of Christendom.
At this point Congressman Robert Mallory, of Kentucky, came to Stanton’s defense. He felt sure that Hunter had acted without authorization, he declared, because only three or four weeks previously Stanton had informed him and two other border-state congressmen that he had ordered the arrest of an officer who had asked for authority to arm Negroes. Implacable Thad Stevens’s jaw dropped in amazement at Mallory’s statement; he had expected Stanton to assume full responsibility for Hunter’s action and had evidently been misled concerning Stanton’s opinions. Congressman Charles Ingersoll, of Pennsylvania, formerly an admirer of Stanton, hastened to inform Governor Andrew that such “miserable duplicity” as Stanton’s “ought to damn any man however high,” and the antislave Republicans should trust him no longer.5
Newspapers played a guessing game, seeking the truth of the matter; and editor James Gordon Bennett in the New York Herald speculated that cabinet differences respecting Hunter’s proclamation might cause the ax to fall on Stanton for conniving with Hunter and trying to force the President’s hand. The editorial elicited a reply from Lincoln.
Lincoln, marking his letter “private,” assured Bennett that he was wrong about Stanton. “He mixes no politics whatever with his duties; knew nothing of Gen. Hunter’s proclamation; and he and I alone got up the counter-proclamation. I wish this to go no further than to you, while I do wish to assure you that it is true.”
But was it true that Stanton had known nothing about Hunter’s proclamation—that he had no intimation that Hunter might be planning some such action? Some months before this, Hunter had written to Stanton, on January 29, from his previous command post at Fort Leavenworth: “Please let me have my way on the subject of slavery. The Adm
inistration will not be responsible. I alone will bear the blame; you can censure me, arrest me, dismiss me, hang me if you will, but permit me to make my mark in such a way as to be remembered by friend and foe.”
Similarly, though Stanton may have had no “official” information that Hunter was arming Negroes, he had reason to know that something of that nature was afoot, for no sooner had Hunter arrived at Hilton Head in July than he asked for authority to arm “such loyal men as I can find in the country, whenever, in my opinion, they can be used advantageously against the enemy.” Hunter left no room for doubt as to what he meant by “loyal men.” It was important to be able to distinguish them, he said, and for that purpose he requested 50,000 pairs of scarlet pantaloons, “and this is all the clothing I shall require for these people.”6 Stanton also received what amounted to official information of what Hunter was doing when copies of Hunter’s order to enlist Negroes, accompanied by protests from Treasury agents managing plantations in the area, were forwarded to him by Chase.
After the war, Hunter asserted that he enlisted Negroes (and presumably issued his emancipation edict) on his own responsibility, for Stanton would not take an open stand or authorize pay for the black soldiers. But silence on the part of Stanton, after he had received Hunter’s Fort Leavenworth letter and his request for scarlet pantaloons, might very well have been interpreted by the general as implied consent to go ahead. Furthermore, Stanton, in denying any complicity in Hunter’s actions, in permitting Hunter himself to answer Wickliffe’s queries, and in submitting Hunter’s answer to the congressional inquiries without comment, allowed him to take full responsibility for his actions, as the general had promised to do. Nor is it without significance that Hunter chose to adorn his Negro soldiers with pantaloons of the same color that newspapers had credited Stanton with favoring for Negro soldiers only three weeks earlier. And, finally, while the tempest surrounding his actions was still at its height, Hunter had the temerity, or the confidence in Stanton’s reaction, again to make a formal request to the War Department for authority to recruit “all loyal men to be found in my department” as an infantry force.
Further evidence of Stanton’s sympathetic attitude toward Hunter is afforded by a statement of General Townsend, who claimed that in the early spring the Secretary showed him a military proclamation, in his own penmanship, declaring that all slaves and other property of persons in rebellion had been forfeited to the United States, and instructing all commanders to regard the slaves as free men. “There was so much commotion over military orders declaring certain blacks free,” wrote Townsend, “that Mr. Stanton, wholly out of consideration for Mr. Lincoln, dropped his proclamation and instigated the [second] Confiscation Act which accomplished the same result with less friction.”
On July 21, 1862, after this second Confiscation Act gave Lincoln legal authorization to use Negroes in any capacity he saw fit, Hunter informed Stanton that the withdrawal of a large number of his troops to reinforce McClellan had put him in a precarious position and again asked, as already noted, permission to recruit colored soldiers. Stanton brought up the request in a cabinet meeting, where Chase and Seward joined him in endorsing it. But Lincoln declared that he was not yet willing to arm Negroes.
The significant point is that Lincoln thought the moment, not the idea, unpropitious. Halleck, who joined in cabinet discussions on this subject immediately after arriving in Washington, remembered that all agreed that Negroes must serve in the Union cause. “And the only point of doubt,” Halleck later informed Lieber, “was in regard to the time of doing this.” Lincoln thought some delay necessary in order to assure the co-operation of white soldiers and to prepare the public mind. But this was not known to the public, and the Hunter affair seemed proof that Stanton was at odds with Lincoln.7
Actually, the President was contemplating a general emancipation as well as the mere employment of a limited number of blacks as soldiers, as he privately advised Stanton. On May 28, Stanton predicted to Sumner that a decree of emancipation would be issued within two months. While driving to the funeral of Stanton’s baby with Welles and Seward on July 13, Lincoln brought the emancipation possibility up to them. Welles later remembered Lincoln’s saying that this was “the first occasion when he had mentioned the subject to any one.” But either Welles’s memory played him false or else Lincoln, to prevent jealousy, did not want them to know that Stanton had been his earlier confidant on this subject.
On July 22, the day after Lincoln declined to approve Hunter’s request to enlist Negroes, Francis Brockholst Cutting, a New York lawyer who had been a rabid proslavery Democrat, called on Stanton. The Secretary told him that slavery, the cause of sectional troubles, must be wiped out in order to weaken the enemy and to rally the ever increasing number of antislavery people in the North to a more vigorous support of the war effort.
Somewhat to Stanton’s surprise, Cutting agreed with him. Stanton asked him if he would be willing to talk to Lincoln—a free expression of opinion from a onetime proslavery Democrat such as Cutting might go far toward convincing the President that loyal Northern Democrats were now more willing to support an antislavery program than was generally supposed. Cutting readily assented, and Stanton took him to Lincoln’s office, where he left the two men alone.
Cutting talked with Lincoln for two hours. He pointed out the desirability of emancipation as a deterrent to recognition of the Confederacy by foreign governments, and the growing impatience of people of antislavery convictions, the group on which Lincoln must chiefly rely for support in winning the war. Lincoln urged the necessity of holding the border states in line. Cutting responded that they could never be relied on and were disloyal at heart; their congressmen would not even accept the offer of compensated emancipation that Lincoln had been urging upon them almost from the beginning of the war.8 Apparently this meeting which Stanton arranged helped Lincoln reach a fateful decision.
The regular cabinet meeting took place later that day, and the question of arming Negroes was again brought up. “The impression left upon my mind by the whole discussion was,” Chase wrote, “that while the President thought that the organization, equipment, and arming of negroes would be productive of more evil than good, he was not unwilling that commanders should, at their discretion, arm for purely defensive purposes, slaves coming within their lines.” But on the matter of emancipation Lincoln was now ready to go further than most members of his cabinet had suspected. Taking a sheet of paper from his pocket, he read a proclamation that on January 1, 1863, all slaves in states still in rebellion were to be forever free.
Stanton favored Lincoln’s issuing the proclamation at once. Chase, more surprised than anyone, said the measure went beyond anything he had contemplated. He thought it would be better to allow generals to organize and arm Negroes quietly, and to proclaim emancipation in local areas. Stanton recorded, in a memo he made at the meeting, that Chase “thinks it [emancipation] a measure of great danger, and would lead to universal emancipation,” unsettling the government’s fiscal position.
Seward favored enlisting Negro troops but argued strenuously against emancipation. It would induce foreign nations to intervene in the war, he said, because their cotton supply would be endangered. Lincoln should announce emancipation only when the war took a turn for the better, so that it might be heralded by a victory, attended by “fife and drum and public spirit.”9
According to the unsupported testimony of Frank B. Carpenter, the artist, who claimed to have obtained the information from Lincoln himself, the President was so impressed by Seward’s argument that he decided to withhold the proclamation until a more propitious time. Though Carpenter did not say so specifically, it has been inferred that Lincoln reached this decision before leaving the cabinet meeting. But there is evidence to indicate that Lincoln left the meeting undecided, chiefly because of Chase’s opposition; that after giving the matter further thought he decided to issue the proclamation the next day; and that the delay afforded Seward an o
pportunity to bring a new influence to bear upon Lincoln in the person of Thurlow Weed.
Having talked to Lincoln before the cabinet meeting, Cutting saw him again that afternoon. Lincoln told him he intended to issue the proclamation the next day. But that night Weed got to Lincoln and persuaded him to change his mind, arguing that the proclamation could not be enforced and that it would be folly to make an empty gesture that would offend the border slave states.
A letter from Count Gurowski, a State Department translator, to Governor Andrew confirms Cutting’s statement that the emancipation edict had been sidetracked through the interposition of Weed. Another letter, from Wolcott, who had, through Stanton, secondhand knowledge of what happened at the cabinet meeting, confirms the view that Chase, the most radical of all the cabinet members, was chiefly responsible for staying Lincoln’s hand. Wolcott wrote Pamphila: “We all plied him [Chase] so vigorously, that he came round next morning, but Seward had worked so industriously, in the meantime that for the present at least,—that golden moment has passed away, and Chase must be held responsible for delaying or defeating the greatest act of justice, statesmanship and civilization, of the last four thousand years.”10 Whatever Chase or Stanton felt concerning freedom for the Negro, by the second year of the war it was only a matter of timing, and in the cabinet Stanton’s position was clear.
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