With Lincoln reluctant to exercise the authority to enlist Negro troops which Congress had granted him, Union commanders continued to follow their own predilections. Having had his fingers scorched in Hunter’s case, Stanton was now careful to keep his own counsel on the issue of colored soldiers. Lincoln maintained the policy of no policy; so Stanton, obedient to the President’s wishes, dealt with each case on its merits, and held off impetuous radicals who insisted on the immediate employment of black soldiers throughout the Army.
When swashbuckling Jim Lane, commanding in Kansas, advertised in newspapers for black recruits and wired Stanton that he was “receiving Negroes under the late act of Congress,” Stanton informed him that only Lincoln’s authorization could permit the enlistment of Negroes and that the President disapproved of Lane’s orders. But Lane ignored the rebuke from far-off Washington and by the end of October had two Negro regiments in being. Journalists persistently questioned Stanton concerning the fate of colored units forming in Kansas, Rhode Island, Massachusetts, and other places. He dodged the issue, stating that he would not muster them into service but that they might find employment in “some local use.”11
Stanton authorized General Rufus Saxton, who had been assigned to Hunter’s department to recruit a Negro labor force, to enlist 5,000 black volunteers to guard plantations and settlements within the Union lines and to protect Negro workers from attack by former masters. He reminded the general that by act of Congress all slaves entering the service of the United States, along with their wives, mothers, and children, were to be forever free: “You and all your command will so treat and regard them.”
The Secretary wondered, however, how various generals would carry out the new policy. There was no simple answer. Modern concepts of administrative uniformity do not apply in the Civil War; the responsibilities of generals to the President and Secretary of War were ambiguous and exceedingly flexible. Scorn for the civilian Secretary had been a fixture of professional martial mores for seventy years, and Stanton’s driving energy had not yet eradicated that attitude, although the presence in the army higher command of numerous recent appointees from civilian life had injected a whole new set of relationships between the military and the civilian authorities. No one knew with any degree of certainty what these relationships were.
Under Stanton’s orders, Grant employed refugee Negroes as laborers, teamsters, and quartermaster workers. In Missouri, where Frémont’s earlier activities had split Unionists into rival factions, Stanton, for once disobeying Lincoln, who wanted to go very slowly on this tender issue, ordered that the confiscation legislation be enforced. Because local partisanship in that harassed state continually entangled the Army in personal and political quarrels, which no one in Washington could predict or prevent, Lincoln suspended the order.
One of Butler’s generals, West Point graduate John W. Phelps, a hard-driving Vermont abolitionist, commanding near New Orleans, began to organize slaves as soldiers. Butler informed Stanton that Phelps “intends making this a test case for the policy of the government,” and asked for instructions.
Stanton, again obedient to Lincoln, answered that the President held to the opinion that under the laws of Congress fugitive Negroes must not be returned to disloyal masters, and that the laws of humanity demanded that they be fed and cared for. Those capable of labor should be put to work and paid wages. “In directing this to be done,” wrote Stanton, “the President does not mean, at present, to settle any general rule in respect to slaves or slavery, but simply to provide for the particular case under the circumstances in which it is now presented.”12
Butler, a former Democrat, held the Negro in low esteem as a potential soldier, but Phelps, in defiance of both Butler and the War Department, went ahead with his plan of enlistment, and asked Butler to provide arms and accouterments. When Butler promptly denied Phelps’s request and ordered him to stop drilling his colored recruits and put them to work cutting timber and digging trenches, the testy Vermonter resigned from the Army.
Meanwhile, public opinion in the North began to veer unmistakably toward the use of Negro troops, and with Chase’s encouragement, Butler, a man who could change course quickly when the political winds shifted, made a deft alteration of policy. At the outbreak of the war, Governor Thomas 0. Moore, of Louisiana, had organized a regiment of “Native Guards” made up of free Negroes, who were numerous in New Orleans, planning to use them in the service of the Confederacy. Persuading the members of this unit to transfer their allegiance to the Union, Butler proceeded to augment it with colored volunteers, not bothering to inquire too carefully whether a recruit had been a free man or a slave. But the idea persisted in Washington that Butler still felt dubious about the fighting qualities of former bondsmen.
Stanton was not dubious. From the reports which crossed his desk he realized that the question of arming Negroes was interwoven with other issues—the status of fugitive slaves of loyal as distinguished from disloyal owners, and the Army’s relationships with ostensibly loyal civil authorities in the border areas. But in his annual report for 1862, Stanton, undoubtedly with the President’s approval, publicly repeated the argument which he had expressed to Lincoln in private conversations and in cabinet counsels—that rebel strength derived from slave labor and that the Union must turn black energy everywhere against the South in order to win.
If possessed of the power, Stanton would have used Negro troops in 1862 and the Army would have treated all fugitive slaves as free men regardless of the loyalty or disloyalty of the master. When a fifteen-year-old slave boy escaped in November from his “thorough loyal master” in Maryland, and army officers in the District of Columbia refused to return him, Stanton supported them. “The [Confiscation] Act of Congress,” he wrote, “will not allow such an order to be given.” The majority of the Union Army simply would not be slave catchers, Stanton was convinced.13
But individual Union commanders continued to decide local policies for themselves. Dix, commanding in Norfolk in December 1862, placed the necessity for re-establishing municipal civil government ahead of considerations of the Negro’s status, and ordered that only white residents who swore loyalty to the Union might vote, and promised that the Army would protect oath takers in all their property. Dix’s approach matched that of Lincoln, whose thinking at this time envisaged no change in race relations in ostensibly loyal areas and who was supporting a policy of financial compensation for slaveholders in the loyal states.
Such caution disgusted many Northerners. George Bancroft came to the real point involved when he wrote to his soldier son: “I do not approve of General Dix’s proclamation, by which he saves the slaves of Norfolk … to their masters under the pretext of ordering an election … If Lincoln carries out all his projects he will leave the United States a very speckled sheep indeed, here a bit of black slave and here a bit of free.”
Stanton had but one “project”—to give his armies the power to win. Still, he now obeyed Lincoln on the question of Negro troops as in all else. But as Stanton told Edward Atkinson in June 1862, he had come to the conclusion that every day the war continued, force was added to the abolitionists’ arguments. Any large number of black soldiers for Northern armies must obviously come from the border states and from the South, for the colored population of the free states was too insignificant to fill up large troop units. Thus, the labor corps of Secessia would diminish while the fighting forces of freedom grew in proportion. Southern white soldiers would be reluctant to go off to fight far from their homes from fear that the blacks about them would rise to arms under the national banner.
Accepting these arguments, Stanton passed them on to the President, ever cautious on the color question. Even as Lincoln debated the wisdom of emancipation in the South and the use of Negro troops as war policy, important Northern opinion was advancing to demand abolition in both the North and the South as a war aim.14
The Union Army marched in the van of Northern opinion, and Stanton and Lincoln could lose step with
the preponderance of military sentiment only at the unimaginable risk of losing army support for civil policy. When a woman slave found refuge in Washington, and federal marshal Lamon jailed the hapless Negro as the first step in returning her to her self-proclaimed loyal Maryland master, the provost marshal of the District, Doster, led an infantry company to the prison and threatened to break it down. The two men took their quarrel to Lincoln, who refused to intervene, but Lincoln’s guess “that if I wanted to take the woman, Lamon could not prevent it,” resulted in freedom for the slave.
Minnesota soldiers on a train in “loyal” Missouri saw Negroes, under a provost guard, being taken back to masters who had sworn allegiance. The troops had no sympathy for provost marshals or for slavery; they overpowered the guard, freed the slaves, and were themselves arrested. Soon after, newspaper accounts of the incident brought on a congressional investigation. The Army in this case was caught in a squeeze. Would military discipline be upheld or must the administration suffer a deluge of public opprobrium?
Stanton saw to it that the disobedient Minnesotans were “imprisoned” in a comfortable St. Louis hotel on full rations, while he worked through his friends in Congress to have the whole unsavory matter dropped. The Negroes remained free, the soldiers were released without penalty or court-martial, but the basic question remained.
Army officers created various formulas in attempts to meet their own immediate, local needs, and indirectly complicated the question. General Buford, commanding at Cairo, Illinois, an important river junction in a deeply divided area, ordered his provosts not to receive applications from disloyal slaveowners for the return of slaves and other property. Loyal owners got army co-operation only if their slaves were willing to return to bondage. If the Negro was not willing, then the provost involved was to prevent the owner from regaining his human chattel.
Stanton approved Buford’s policy, but it was only temporary and local and was unsuited to other areas and other times. He also approved Holt’s decision which held that West Bogan, a Negro slave in Arkansas who murdered his master in self-defense, was responsible as a whole man for his act both under military and civil law.15
Little by little, the Army was making the institution of slavery a casualty of its needs. On the Negro question Stanton could go only as fast as Lincoln and the Army permitted him to proceed. But the soldiers’ needs, and the need for soldiers, were pushing the North ahead on the decisions concerning emancipation and the employment of freed Negroes in military service, far faster than the radical political leaders could accomplish.
For example, the draft call of July 2 had failed to produce a sufficient number of troops; on August 4 a supplementary call was made. Stanton issued elaborate regulations for putting the draft into effect in those states that should fail to fill their quotas. The threat of conscription caused serious unrest.
One governor after another asked for a postponement of the hated draft, each of them assuring the War Department that he could fill his quota through volunteering, if granted a little more time. Stanton refused to defer the draft beyond August 15, the date originally set for it, but he permitted each governor to assume the responsibility for doing so himself. Actually, he had no alternative; he could not coerce the governors. One state and then another put off the draft—a month, two months, three months. States supplemented the federal bounties for enlistments with bounties of their own. Some of them, after exhausting all other alternatives, had to resort to a draft at last. With flagrant inequalities, the states tardily met the demands of both calls.16
It was becoming evident to Stanton and to Lincoln that if the war should be prolonged, volunteering and drafting by the states could not supply the needed manpower. The alternatives were a federal draft law and the enlistment of Negroes from occupied Dixie. As wars sometimes do, this one was getting out of hand. In the forge of the battlefield it was shaping the fate of the nation and of the Negro in ways which neither side had foreseen when it began. At the storm center Stanton could feel the irresistible pull of the winds, and as was his habit, he rode with them. So did Lincoln.
On Monday, September 22, it was certain that Lee had been halted at Antietam. Lincoln summoned the cabinet members to meet with him at noon. He brought along a book that the humorist Artemus Ward had sent him, and read them a chapter from it, chuckling appreciatively.
Stanton listened glumly. He felt that it was scarcely a time for nonsense. It did not occur to him that Lincoln, by relaxing for a moment, was steadying his nerves.
Lincoln put the book down and his face became grave. They all knew, he said, that for months he had been pondering the troublesome slavery question. Two weeks before, when the rebel army entered Frederick, he had made a silent promise to himself and—he hesitated—to his Maker that as soon as the enemy had been driven out of Maryland, he would issue the emancipation proclamation that he had been withholding since July. Lincoln drew a paper from his pocket. He did not want advice about whether to issue it or not, he said; he knew what each of them felt about it and had made up his own mind. True, he would have preferred a more decisive victory than Antietam with which to proclaim freedom, but he had waited long enough. He read the proclamation. It warned that in one hundred days—on January 1, 1863—all slaves in states still in rebellion were to be declared free.
Stanton offered no comment, but he undoubtedly was disappointed that Lincoln was still in favor of compensating “loyal” slaveholders and had not yet faced up to the need for employing Negroes in the Union’s military services. Later that day, Watson grumbled to Dahlgren that the proclamation did not go far enough.17
McClellan, then under fire from Washington for not pursuing Lee with greater vigor, learned of the emancipation decision and thought of opposing it openly. He finally issued an order calling it to the attention of his troops, adding significantly, and with an eye cocked at a presidential nomination for himself, that in a democracy, where the civil authority was paramount, “the remedy for political errors … is to be found only … at the polls.”
The War Department received reports of loud, disloyal talk around McClellan’s headquarters, some of it attributed to the general himself. One of Horace Greeley’s men sent Stanton accounts of these unsettling attitudes. Thanking Greeley, Stanton wrote: “The state of sentiment described by your correspondent has long been known to me & has been stimulated and fostered for twelve months against all my warnings and efforts.”18
But the President, as already noted, decided to hold off a decision on ousting McClellan until after the fall elections were past, though Stanton argued that the administration would gain more votes than it would lose by kicking him out immediately. Stanton also insisted that Republicans everywhere would benefit if all the party’s candidates stood foursquare against slavery. To that end he induced General James S. Wadsworth, a man of strong antislavery sentiments, to run for governor of New York, refusing him a field command so that he would accept the gubernatorial nomination.
Stanton was well advised in directing his attention to the state elections, for with the country sunk in discontent prospects looked bleak for the Republicans. In the Midwest this disaffection had reached a stage of near revolt, and in the southern counties of Illinois, Indiana, and Ohio, where a majority of the people were of Southern descent, secret “copperhead” societies began to work furtively and even openly against the government.
It was Lincoln’s edict of emancipation that touched off this tinder pile of discontent, for although many of these people or their forebears had brought with them a hatred of slavery when they emigrated from the South, they also hated the Negro with equal vehemence. Perhaps the loosening of his bonds would permit him to come spilling as a cutthroat competitor for jobs across the Ohio into the Northwest. Stanton unwittingly gave substance to this fear when, notwithstanding a provision of the Illinois constitution forbidding the entrance of free Negroes into that state, he ordered the commanding general at Cairo to colonize and find jobs for confiscated Negr
oes sent North by federal armies operating along the Mississippi.19
To combat this rising hostility to the government in the Midwest, Stanton authorized federal officers to arrest all persons attempting to discourage volunteering or otherwise affording aid and comfort to the enemy. As a result, hundreds of persons were taken into custody, and thus Stanton’s reputation as a ruthless enforcer of internal security was cemented into history. These measures served to stiffen the attitude of resistance, and as almost all the victims were Democrats, the cry arose that the administration was attempting to stifle criticism and to destroy the opposition party. Even loyal Democrats considered Stanton’s actions a threat to civil liberties and joined in the chorus of protest.
When some states found it necessary to impose a draft in order to obtain their enlistment quotas, the opposition to the administration reached a new pitch of intensity; and when decisions in state courts by certain Democratic judges threatened to render the draft laws inoperative, Lincoln, two days after issuing the preliminary Emancipation Proclamation, ordered that all persons discouraging enlistments, resisting state draft laws, or found guilty of any disloyal practice, be subject to trial by military court and denied the benefit of the writ of habeas corpus. The proclamation not only gave implied approval to the wide latitude that Stanton had already allowed himself in combating sedition, but by creating new and loosely defined offenses akin to constructive treason, gave him virtually unlimited power, subject only intermittently to the intervention of the humane and forgiving President.
It was not Stanton’s nature to coddle treason. Henceforth an individual’s liberty could hang on a stroke of his pen or a curt sentence from his lips. Yet although not hesitant to act sternly on mere suspicion of guilt, Stanton, except in moments of high excitement and crisis, acted with reasonable restraint. Appointing a new corps of civilian provost marshals throughout the country to enforce the new edict, he instructed them to arrest troublemakers only on the authority of a governor, a general commanding a military district, or the Judge Advocate General of the Army. His and Lincoln’s harsh orders were necessary and desirable, not only to secure adequate numbers of men for the Army but at least partially to centralize and to regularize the sprawling, undisciplinable, and irregular internal security apparatus bequeathed to Stanton by Seward and Cameron. The new regulations imposed a superficial uniformity upon Northern anti-disloyalty activities. Stanton still had to accept state and local participation in security administration, but this was a step upward from what had been in effect.
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