by James Oakes
No one in the Lincoln administration would have disputed the broad principles Hunter was enunciating; Lincoln frequently used the terminology of martial law when he declared that the civil and judicial authorities in the rebellious states had ceased to function. But Hunter had already emancipated slaves in areas where his troops had imposed martial law. The War Department instructions under which Union officers operated allowed them to emancipate slaves who came into their lines from seceded areas. Hunter’s first proclamation conformed to those guidelines; the second one did not.
Once again, the president felt compelled to reassert the essential principle of civilian rule: generals do not make policy. When Chase urged Lincoln to sustain Hunter’s order, the president lost his temper. “No commanding general shall do such a thing, upon my responsibility,” Lincoln snapped, at least not “without consulting me.” Chase had defended Hunter’s order on the grounds that it was “made as military measure to meet a military exigency.” Precisely for that reason, Chase believed, the decision to emancipate was best left to local commanders on the ground. Let them issue such proclamations as the “military necessity” arose, Chase argued. Carl Schurz, another prominent Republican with radical leanings, made a similar point: don’t say anything in public about Hunter’s general abolition edict, he urged the president. Like Chase, Schurz still believed that the complete destruction of slavery would inevitably accompany the Union army as its invasions penetrated deeper and deeper into the South. Hunter’s troops, however, occupied almost none of the ground covered by his second proclamation. Schurz acknowledged that Hunter may have been a bit “premature,” nevertheless federal policy “will come to this all over the Cotton states during the summer.” If you simply let it happen, “the people will readily acquiesce if you see fit to sustain Hunter.”38
But for Lincoln all of that was beside the point. The law governing Hunter and all other Union commanders was still the First Confiscation Act and the War Department instructions for implementing it. By them the general was empowered to free all slaves coming voluntarily within his own lines. That’s what Hunter’s first proclamation did, and nobody in the administration objected to it. Hunter’s second proclamation stepped beyond those legal boundaries by pronouncing the emancipation of slaves in three entire states. By no conceivable standard could it be said that the slaves in those states had come voluntarily within Union lines. Lincoln certainly understood that Congress was at that moment considering a second confiscation act that would empower the president to proclaim a general emancipation in the seceded states. But that was months away. Until then, “neither General Hunter, nor any other commander, or person, has been authorized by the Government to make proclamations declaring the slaves of any State free.” That kind of proclamation “I reserve to myself,” Lincoln declared, “and which I can not feel justified in leaving to the decision of commanders in the field.”39 Generals don’t make policy—not Frémont, not McClellan, and not Hunter. Hunter’s second proclamation was therefore illegal, and Lincoln revoked it on May 19, ten days after it was issued.
As with his order to Frémont the previous September, Lincoln was asking only that Hunter comply with the law. Lincoln fully endorsed the policy of emancipating slaves who came within Union lines in the seceded states. Because the general’s first emancipation proclamation conformed to federal policy, Lincoln had no reason to revoke it. The slaves who had recently come within Union lines at Fort Pulaski and Cockspur Island were still properly emancipated under Hunter’s April 13 decree. Thus Lincoln’s revocation of Hunter’s May 9 proclamation cannot be read as evidence of the president’s “reluctance” to embrace emancipation as a policy. Even the way Lincoln framed his revocation suggested this. After pointing out that he alone, as commander in chief, could issue a general emancipation order covering areas not under Union military occupation, Lincoln strongly suggested that he was ready and willing to do so. It was already clear by then that Congress was likely to authorize such a move. Lincoln heightened the threat by devoting most of his revocation order to a strongly worded warning to the Border States that if they did not abolish slavery on their own, they would lose everything as emancipation spread uncontrollably into their states. Another indication of Lincoln’s state of mind was the fact that he would not remove Hunter, despite the fact that Lincoln was being bombarded with demands for the general’s head.
The reaction to Lincoln’s revocation of Hunter’s order was surprisingly muted, however. Unlike the previous September, when antislavery northerners briefly but vehemently bombarded the White House with objections to the president’s order to Frémont, not a single letter of complaint landed in the president’s mailbag after he revoked Hunter’s second proclamation. This time only a handful of letters arrived, all of them praising Lincoln. By then there was no longer any doubt where Lincoln stood on the issue of emancipation. For nine months his administration had been instructing the Union troops to free the slaves in areas they occupied, including the areas under Hunter’s control. The president had rejected calls to fire Hunter. A month earlier, in a message to Congress, Lincoln had made it clear that he was an avowed supporter of abolition. If he was reticent in public, he was vocal in private, expressing his determination to use all of his constitutional powers to undermine slavery. Even Schurz understood that in revoking Hunter’s second proclamation, Lincoln was merely upholding the rule of law. “I do not see how you could have acted otherwise,” he wrote. Having spoken with Lincoln at the White House only a week earlier, Schurz was “fully convinced that, in spite of appearances to the contrary, you were determined to use all your constitutional power to deliver the country of the great curse” of slavery.40
And yet the Hunter affair suggested that the emancipation policy in place since August of 1861 had reached the limits of its effectiveness. The general’s first proclamation was based on familiar premises: slaves who refused to leave when their masters fled the approaching Union army and who then offered their services to the military had, in effect, emancipated themselves by choosing loyalty over rebellion. This policy had worked well enough on the southern Atlantic coast, though even there, kidnapping raids by Confederate troops and southern militia raised questions about whether emancipation was truly secure. But the real test of Union policy came in Louisiana, where dramatic Union advances in early 1862 brought huge numbers of slaves within Union lines, raising both legal and practical questions that neither the First Confiscation Act nor the War Department instructions of May 30 and August 8, 1861, could address.
“WHAT AM I TO DO?”
The successful Union occupation of the southern Atlantic coast beginning in late 1861 was soon followed by even more dramatic advances in the Mississippi Valley, where the number of slaves who ended up inside Union lines dwarfed anything the army had yet encountered. In February, General Ulysses S. Grant seized the military initiative and, in conjunction with the navy, launched serial attacks on Forts Henry and Donelson, on the Cumberland and Tennessee Rivers. Having routed the Confederates, Grant quickly followed up his victories with advances down the Mississippi River nearly to Vicksburg. At almost the same time, yet another joint army-navy operation, this time led by naval commander David Farragut, set off from Ship Island off the Gulf Coast on a spectacular campaign to move up the river and seize the crucial southern city of New Orleans. Once the Crescent City was safely in Union hands, Farragut continued upriver, taking Baton Rouge and moving as far up as he could, until he, too, was stopped by powerful Confederate fortifications at Vicksburg. Though it would take the Union more than a year to finally capture Vicksburg—and with it substantial control of the Mississippi River—the stunning victories of early 1862 provided the northern armies with crucial staging grounds for an ultimately devastating series of attacks on the Confederate armies west of the Appalachian Mountains. At the same time, the occupation of the Mississippi Valley brought vast numbers of slaves within Union-held territory.
Like the plantations along the southern Atl
antic coast, those along the Mississippi River were unusually large and wealthy. Rich bottom lands proved exceptionally fertile grounds for cotton production in Tennessee, Mississippi, Missouri, and Louisiana. These plantations sustained some of the wealthiest families in the United States. The sugar parishes of southern Louisiana were larger and wealthier still. They were also deadlier. The same subtropical climate that was so conducive to the cultivation of sugarcane proved lethal to the slaves who did the cultivating. The mortality rates among sugar slaves were the highest in the South. Besides being more lethal, sugar plantations were also larger than cotton farms. Cotton could be baled and stored after harvest, but sugarcane rotted quickly if it was not processed immediately, and sugar processing required expensive machinery for pressing and boiling the cane. Sugar plantations thus demanded a much higher capital investment to operate and were therefore more efficient with larger numbers of slaves. On average, sugar plantations were the largest in the United States. All of this meant that the successful federal occupation of the lower Mississippi Valley in early 1862 brought more than 150,000 slaves into Union lines. These numbers alone put a great deal of pressure on Union emancipation policy.
No one understood these pressures better than Benjamin Butler, the Union general in charge of the occupation of New Orleans and the same man who had formulated the original contraband policy at Fortress Monroe in Virginia a year earlier. Butler’s troops arrived in New Orleans on May 1, 1862, and as he had in Baltimore at the beginning of the war, the general made it clear from the start that he would brook no “rebellious” behavior from the city’s “sullen and dangerous” residents. On the day he arrived, Butler issued a proclamation making the same promise that Generals Sherman and Burnside had previously made when they occupied portions of the Carolinas: the Union would not interfere with the property rights of those who were loyal to the United States. To disloyal Louisianans, Butler made no promises. Yet for a number of reasons, this otherwise familiar declaration left the status of slavery in Louisiana up in the air. On the one hand, many Louisiana sugar planters declared their loyalty to the Union; on the other hand, the state of Louisiana had seceded and as such had forfeited the protection the Constitution afforded to slavery.41
Precisely because Louisiana had left the Union, some northern commanders welcomed contrabands into their lines and treated them as emancipated. General John W. Phelps, a Vermont abolitionist, was the most aggressive advocate of this approach. When he first arrived on Ship Island, Phelps had ostentatiously declared that the very admission of Louisiana as a slave state had been a violation of the Constitution and that slavery therefore had no legal standing. Over the next few months, Phelps, who commanded Camp Parapet above New Orleans, treated Louisiana’s slaves as emancipated and welcomed them into his camp. Local planters complained that Phelps was stepping beyond the law by sending his soldiers onto plantations and enticing slaves to leave, but Phelps denied it. “Many of these Negroes have been sent away from one of the neighboring sugar plantations, by their owner,” Phelps explained. Owners were rumored to be telling their slaves that “the Yankees are King here now, and that they must go to their King for food and shelter.”42 Butler responded on July 19 with an order declaring that the expulsion of slaves from plantations would be “deemed an act of Voluntary emancipation and slaves sent away by their Masters with such declarations” would “be regarded and treated as manumitted & emancipated.”43
Yet both generals had the sense that the War Department instructions implementing the First Confiscation Act were no longer adequate. “It is clear that the public good requires slavery to be abolished,” Phelps wrote, “but in what manner is it to be done? The mere quiet operation of Congressional law cannot deal with Slavery as in its former status before the war.”44 Notably less self-righteous than Phelps, Butler was in his own lawyerly way equally certain that existing policy could not adequately address the conditions in Louisiana. It was not obvious to Butler, for example, that the slaves in Louisiana met the criteria for self-emancipation. All along the southern Atlantic coast the slaveholders abandoned their farms and plantations, but in southern Louisiana many slaveholders did not leave, some claimed to have opposed secession all along, and still others were willing to proclaim their loyalty to the Union. By one report, Jefferson Parish, just south of New Orleans, had opposed secession by an overwhelming vote of 900 to 200.45 “The planters and men of property are now tired of the war,” Butler reported. Moreover, they were “well-disposed toward the Union, only fearing lest their negroes should not be let alone, would be quite happy to have the Union restored in all things.”46 Under the circumstances it was not clear whether existing emancipation policy was applicable. On what basis, Butler wondered, could the military legally free Louisiana slaves?
The problem arose because the slaves in Louisiana behaved just as the slaves in the Border States and along the southern Atlantic coast behaved: they ran to Union army camps and claimed their freedom. When they got to Camp Parapet, General Phelps welcomed them. But as night follows day, owners followed runaways and demanded their return. Butler had to do something, and what he first tried to do was split the difference. He advised Phelps that if he had any useful employment for a runaway, he should “employ him without any scruple.” If there was no such work, the runaway should be treated “like any other vagrant about the Camp.” Butler himself “caused as many to be employed as I have use for.” He also tried to distinguish the slaves of actively disloyal masters from those who were loyal or who, if not quite loyal, had nevertheless peacefully acquiesced to the authority of the Union. The slaves of disloyal masters “I am hunting out and holding for confiscation under the laws,” Butler explained. With these distinctions—between slaves who could be employed and those who could not, between slaves of loyal and those of disloyal owners—Butler was trying to remain within the law. He understood that “a Military Commander has no right to an opinion” on what government “policy” ought to be. Phelps was prepared to proclaim the freedom of all the slaves in Union-occupied Louisiana, but Butler doubted that any Union general had the legal authority to do so. A series of testy exchanges between the two generals ensued.
Butler also faced an urgent practical problem: “It is a physical impossibility to take all.” There were upwards of 100,000 slaves in the areas occupied by Union forces in Louisiana in 1862 and perhaps more than 150,000 in the Union-occupied parts of the lower Mississippi Valley. The army could not employ that many workers, nor could its commissary readily supply the provisions to feed and shelter them. For Butler it was not a question of the right or wrong of slavery. “Reared in the full belief that slavery is a curse to the nation,” he explained, “further acquaintance with it only deepens and widens” that conviction. But whereas Butler could accommodate a few thousand freed people in Virginia, he felt overwhelmed by the numbers in Louisiana. “Now,” Butler asked Secretary of War Stanton on May 25, “what am I to do?”47
Here Benjamin Butler proved yet again that however incompetent he was as a military commander, he was a sharp lawyer with a keen sense of the politics of the war. When he wrote his letter to Stanton, he had to know—because anyone who read the papers knew—that Congress was in the final stages of debate over a second confiscation bill that would address precisely the issue raised by the status of the slaves in the occupied Mississippi Valley. Phelps also knew it. In mid-June he asked Butler to forward their correspondence to Washington in the hopes that Stanton would settle the dispute.48
7 “BY THE ACT OF CONGRESS THEY ARE CLEARLY FREE”
A FEW DAYS AFTER the Thirty-Seventh Congress returned to Washington in early December of 1861, Senator Lyman Trumbull introduced “A Bill to Confiscate the Property of Rebels and Free their Slaves.” All the slaves of all the rebels. The bill—now known as the Second Confiscation Act—made its way slowly through both houses until it finally became law on July 17, 1862. A lot happened in those intervening months. Dramatic northern military successes in the Mississippi
Valley brought perhaps 150,000 slaves into Union lines. In the East, General McClellan’s long-awaited campaign in Virginia lumbered forward and finally stalled within earshot of Richmond, the Confederate capital. Frustrated Republicans began to demand a harder war, and with it a more aggressive approach to slavery. By then they had lost all hope that a submerged unionist sentiment among southern whites would assert itself and overthrow secession. The only truly loyal southerners were the slaves, Republicans concluded. A “general” emancipation would punish the disloyal slaveholders, reward the loyal slaves, and suppress the rebellion. The laws of war, Trumbull explained, gave the federal government the “right to free the slaves of rebels,” whether or not their slaves had been used by Confederate forces in direct support of the rebellion.1
This was still military emancipation, but dramatically expanded in scope. In truth, emancipation had been expanding for some time. Back in mid-1861, in the First Confiscation Act, Congress deprived masters of any slaves used in the rebellion. Almost immediately the War Department broadened emancipation’s reach by freeing all slaves from rebel areas who emancipated themselves by coming into Union lines voluntarily. By 1861 the concept of self-emancipation through voluntary entry into Union lines had ballooned to include all slaves who remained behind when their masters fled from invading Union forces. But this left uncertain the status of large numbers of slaves in places like southern Louisiana, where masters often remained on their plantations when Union troops arrived in early 1862. The Second Confiscation Act freed many of those slaves as well.