Freedom National: The Destruction of Slavery in the United States, 1861-1865
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To accommodate Lincoln’s objections, Senator Clark proposed two amendments. The first declared that “forfeiture of real estate of the offender” could not extend “beyond his natural life.” The second clarified the bill’s amnesty provision, authorizing the president to restore the property of those he might choose to pardon, thus ensuring that constitutional errors could be corrected by means of executive clemency. There was a flurry of senatorial huffing and puffing about the integrity and independence of the legislative branch. A handful of senators professed to be “astonished” by the “irregularity” of the president dictating the content of legislation to Congress. But calmer heads prevailed once it became known that a number of senators had initiated the contact with the president and had asked Lincoln to explain his objections so that they might be dealt with in Congress.18
The disagreement over property confiscation was serious—it had the potential to cause a major rift within the Republican Party—but it did not undermine the consensus in favor of emancipation. Several Republican congressmen made it clear that they doubted whether the property confiscation provisions of the bill would have any real effect, given the constitutional limits on the permanent forfeiture of real estate. By contrast, there was broad agreement on the importance of the provisions emancipating slaves, as well as the clause authorizing the president to employ black men within the Union army. (Up until then, the army paid wages to emancipated slaves only as civilian employees.) “I have never from the beginning disguised my conviction that the most important part of the bill relates to emancipation,” Charles Sumner explained. He supported Clark’s amendment, readily conceding the point on confiscation to secure passage of the more important emancipation provisions. “Whatever may be the difference between the President and Congress” regarding the confiscation of property, Sumner added, “there are two points on which there is no difference. The blacks are to be employed, and the slaves are to be freed. In this proclamation the President and Congress will unite.”19
WITH THE DIFFERENCES BETWEEN Congress and the president settled, Lincoln signed the Second Confiscation Act—officially known as “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes”—on July 17, 1862. It was a complicated statute, ambiguous in places, though not the legally incoherent mess historians sometimes pronounce it to be. It was carefully framed by some of the best constitutional lawyers in the Congress, but it was also complicated by the differences among Republicans about how it ought to be framed. The easiest way to understand the statute is to grasp the relative simplicity of its most important goal: it would free the slaves of all disloyal masters. This would extend emancipation far beyond the scope of the First Confiscation Act, which applied only to slaves actually used in the rebellion. It likewise surpassed the reach of the August 8, 1861, War Department instructions, which emancipated all slaves voluntarily entering Union lines. By freeing the slaves of all disloyal masters, the Second Confiscation Act was—by comparison with its predecessors—much broader and at least in principle much simpler.
But the simplicity of the statute’s basic goal was obscured at various points by the unstated assumptions upon which it rested. Republicans believed, for example, that the Constitution did not recognize slaves as property, hence the statute’s complicated rules governing the confiscation of real estate did not apply to the emancipation of slaves. Republicans made this clear during the congressional debates, but they did not make it clear within the statute itself. Similarly, Republicans assumed that the Constitution did not allow them to treat slavery in the loyal Border States in precisely the same way they could treat slavery in the seceded states. This, too, was clearer in the floor debates than it became in the actual wording of the law. Guided by these invisible premises Republican lawmakers produced a statute that, among other things, created several different procedures by which slaves could be emancipated. Some would be freed when a master was convicted of treason, others upon the master’s conviction for a brand new crime: “rebellion.” These would seem to apply only to masters in the loyal slave states where the courts were still functioning, but the statute itself is unclear about this. By far the largest number would be freed by presidential proclamation, a purely “military” emancipation requiring no judicial tribunals whatsoever. Military emancipation would seem to apply chiefly to the disloyal states, but once again the statute is not explicit about this. Emancipation by means of presidential proclamation was “prospective”—it would be imposed in the future on those slaveholders still in rebellion after the proclamation’s deadline had passed. But the Second Confiscation Act also made it clear that some slaves were already emancipated and specified that others should be emancipated immediately. As a result, a law originally designed—in Lyman Trumbull’s deceptively simple words—“to confiscate the property of rebels and free their slaves”—can be maddeningly difficult to unpack.20
The truly radical scope of the statute emerges only in Section 6, where courts and treason convictions give way to direct military seizures of all rebel property upon orders from the commander in chief. It was in this section that Congress called for a presidential proclamation warning of the consequences for those who persisted “in armed rebellion” against the Union. Persons still “aiding or abetting such rebellion” sixty days after the proclamation (Lincoln later stretched it to one hundred days) would have their property seized and sold by the government. Section 2 had already established “rebellion” as a crime punishable by the “liberation” of the convicted rebel’s slaves. Section 6, however, allowed the commander in chief to punish “rebels” under the laws of war without resort to courts, after a fair warning by means of a presidential proclamation. Implicitly but unmistakably, Congress thereby cleared the way for an emancipation proclamation freeing the slaves of all disloyal masters. Lincoln seems to have understood it this way. Within days of signing the bill into law, he drafted the first version of an emancipation proclamation that began by citing Section 6 and closed by promising to free all the slaves in areas still in rebellion the following January 1. This was “prospective” emancipation.21
Unlike Section 6, Section 9 specified and affirmed the immediate emancipation of rebel-owned slaves in areas already occupied by the Union army. Three distinct classes of slaves were covered here. The first were slaves who had run to Union lines from rebellious owners, including those who escaped into a loyal state or onto “free soil” from seceded states such as Virginia. This applied to slaves who ran to places like Fortress Monroe, to Maryland from Virginia, or to Kentucky from Tennessee. The second were slaves deserted by their owners “and coming under the control of the government of the United States.” This included slaves in Hampton, Virginia, the Sea Islands, and indeed most of the southern Atlantic Coast. The third and by far the largest group encompassed rebel-owned slaves living in places previously “occupied by rebel forces” but “afterwards occupied by the forces of the United States.” Here Congress meant to emancipate slaves of all disloyal owners, immediately, throughout much of the Mississippi Valley, most importantly in Louisiana.22
Three other sections pushed emancipation still further, albeit indirectly. Section 10 overruled without quite repealing the Fugitive Slave Act of 1850. It declared that “no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way hindered of his liberty.” The entire burden of proof was shifted to the owners of runaway slaves, who were now required to go to court, prove their ownership, and swear under oath that they had never given aid or comfort to the rebellion. Once again Congress affirmed that no Union military personnel could participate in any way in the capture and return of fugitive slaves, “on pain of being dismissed from the service.” Section 11 codified in statute the practice that General Benjamin Butler had established at Fortress Monroe at the beginning of the war—that the restoration of the Union was better served by employing fugitiv
es rather than by returning them to their owners, where their labor would support the rebellion. Here again, paid labor in support of the Union validated emancipation. Section 12 authorized the president to assist any slaves “made free by the provisions of this act, as may be willing to emigrate” to a colony “beyond the limits of the United States” in which they would be guaranteed “all the rights and privileges of freemen.” This was subsidized, voluntary emigration—the form of “colonization” most often advocated by Lincoln and the Republicans.23
It was an extraordinary statute—meticulously crafted yet sweeping in scope, respectful of the constitutional limits of property confiscation yet bold and comprehensive in its attack on slavery. It reaffirmed the most important antislavery policies Republicans had embraced up to that point—the emancipation of slaves who came within Union lines from the seceded states, the neutralization of the fugitive slave clause, and the repeal of the ban on black enlistment in the Union army—but it pushed much further, to the prospective emancipation of virtually all slaves in the rebellious states. Though it has come to be known as the Second Confiscation Act, in the months after its passage it was frequently referred to as “the emancipation bill” and was understood to have freed significant numbers of slaves immediately. As one Boston paper explained, “Certain classes of slaves enumerated in the act are declared free ‘hereafter,’—that is from the moment when the act took effect. . . . No proclamation is required to give these provisions effect.” The “Confiscation-Emancipation Act” required court orders to confiscate property, but not to free slaves, the Springfield Republican noted. Union generals may “safely take it for granted that they are to consider the classes declared free by the bill as free at once, to all intents and purposes.” By the time Lincoln signed the Second Confiscation Act on July 17, 1862, Republicans in Congress had made it clear that in passing the law, they intended to destroy slavery completely in the seceded states.24
“LET SLAVERY FEEL THE WAR”
Democrats and Border State congressmen were scandalized by the vast implications of the Second Confiscation Act. Though stridently opposed to the emancipation provisions of the proposed law, most of their objections were familiar, and the debates they managed to provoke fell out along predictable lines. It was “the unnecessary agitation of the slavery question [that] was the cause of the war,” Democratic Congressman John B. Steele of New York declared. No, Republicans answered, slavery itself was the cause of the war, and only by destroying slavery could the rebellion be thoroughly crushed. The large-scale emancipation Republicans were proposing was “fanaticism,” Representative William Holman, a Democrat from Indiana, declared, and would “destroy the hopes of restoring the Union.” But Republicans had given up waiting for the phantom unionists to rise up and overthrow secession. The slaveholders were the heart and soul of the rebellion, Republicans argued, and the only way to suppress their insurrection was to destroy the slave society that spawned the insurrectionists to begin with. Democrats denounced “military necessity”—the “wild, heated, and monstrous” brainchild of John Quincy Adams—as a spurious rationale for abolitionist radicalism and an outrageous violation of the Constitution. “Pass these acts,” Indiana Democrat John Law warned, “emancipate their negroes; place arms in the hands of these human gorillas to murder their masters and violate their wives and daughters, and you will have a war such as was never witnessed in the worst days of the French Revolution, and horrors never exceeded in St. Domingo.” The Republicans went ahead and did it anyway.25
Throughout the spring of 1862, denunciations of the impending legislation were heard far beyond the halls of Congress. Less than a week before the House passed the final version of the bill, none other than General George McClellan jumped into the debate by telling the president what he thought of the shift in emancipation policy. Lincoln inadvertently gave the general the opportunity when, disturbed by McClellan’s disappointing performance, he decided to visit the general at the headquarters of the Army of the Potomac at Harrison’s Landing in Virginia. There McClellan handed the president a letter decrying the expansion of the military conflict into a full-scale assault on slavery. This should be a limited war, not one aimed at the “subjugation of the people of any state,” the general explained. “Neither confiscation of property, political executions of persons, territorial organization of states or forcible abolition of slavery should be contemplated for a moment.” Where Congress was about to confiscate the slaves of anyone supporting the rebellion, McClellan insisted that “all private property and unarmed persons should be strictly protected.” He accepted the military rationale for a limited emancipation but believed that in general “[m]ilitary power should not be allowed to interfere with the relation of servitude.” McClellan understood what Congress and the administration had decreed, and he did not dispute the policy already in place of emancipating slaves who came into Union lines after escaping from rebellious owners. But the Second Confiscation Act would do something far more radical, McClellan complained. Under the guise of “military necessity” Congress was about to pass a law aimed at the complete destruction of slavery in the seceded states. That, the general argued, would completely alter the character of the war.26
Any civilian who read the papers could also see that the Second Confiscation Act represented an important shift in federal emancipation policy. On the day the Senate passed the bill, Anna Ella Carroll—who had read nothing but a synopsis of it—wrote an urgent letter to Lincoln asking him to veto it. “This bill will inaugurate a new policy, and change the whole morale of the war,” Carroll warned. “It will no longer be regarded, as a war for the maintenance of the American Constitution, but as one, for the subjugation of the Southern States, and the destruction of their social system.” If you sign the bill into law, she warned Lincoln, “you will no longer be considered by the American people, as the President of the mighty republic of the United States; but, as the head of the Abolition faction, warring for the destruction of slavery.”27 It was as clear to critics as it was to supporters that with the Second Confiscation Act federal policy had shifted from limited to universal emancipation in the seceded states.
Although Republicans always insisted that the war for Union was inseparable from the issue of slavery, by early 1862 there were novel elements in the way they defended emancipation. It was not simply that military policy had become more aggressive. There was a new emphasis on the slaveholders as the source of the rebellion and with it the abandonment of any hope that there might exist somewhere in the South a significant unionist element within the slave-owning class. As more and more Republicans zeroed in on the slaveholders, the suppression of the rebellion became synonymous with the destruction of the slaveholders as a class.
Limited emancipation had been a feature of limited war. Hoping to provoke unionist slaveholders to give up their rebellion, and convinced that the tide of escaping contrabands would sweep slavery away, Republicans had initially restricted emancipation to slaves who came within Union lines in the seceded states. But by the spring of 1862, having lost their faith in southern unionism, and no longer persuaded that self-emancipation would be enough to destroy slavery, Republicans began calling for a harder war that included universal emancipation in the seceded states. “Who does not know that treason has gained strength by the leniency with which it has been treated?” Senator Lyman Trumbull asked as he recommended emancipating the slaves of all rebels in the seceded states. “Surely we have dealt gently with our enemies” by not emancipating all of their slaves, Republican Representative Samuel Blair of Pennsylvania declared. “We have held back these powerful engines of military policy in the hope that the enemies of the nation would return to reason and repentance.” But as the slaveholders had shown neither “reason” nor “repentance,” it was time for the North to demonstrate “downright earnestness of purpose” by passing the Second Confiscation Act. What should the government do with slavery now, another Republican congressman asked in the spring of 1862. “
What policy, if any, should the loyal men of the country adopt respecting the future treatment of this cancer upon the body politic? The reply which ought, in my judgment, to be made to these questions, is this: ‘Since slavery made the war, let slavery feel the war.’ ”28
The problem was not merely slaveholders who rebelled; the problem was that the institution of slavery bred rebellion within the slaveholding class. Republicans therefore spoke as if the Second Confiscation Act was designed to free all the slaves in the seceded states. “I am for destroying this hostile institution in every State that has made war upon this Government,” Republican Congressman Charles D. Sedgwick of New York put it. “I propose to leave not one slave in the wake of our advancing armies; not one.” Congressman James M. Ashley, Republican of Ohio, agreed. “My purpose,” he declared, is “to destroy the institution of slavery, if it became necessary to save the country . . . in every State which had rebelled.” “By the laws of peace [slavery] was entitled to protection, and had it,” Republican Congressman John Rice of Maine declared. “By the laws of war it is entitled to annihilation.”29
The “vast majority of slaveholders within the territory now held by the rebels,” one Republican newspaper explained, “—probably nineteen-twentieths at the least—have overtly identified themselves with the rebellion.” A second confiscation law freeing the slaves of rebels was therefore tantamount to universal emancipation in the rebellious states. “As most of the owners of slaves are engaged in the rebellion, and will probably continue so for some time,” Senator Trumbull explained, “the effect” of the Second Confiscation Act “would be, if this bill were speedily enacted into a law, that they would by their own act give freedom to most of the slaves in the country.”30