by James Oakes
Throughout the summer of 1862, concerns about the incoming flood of runaway slaves filled Grant’s letters to his wife, Sherman’s letters to his brother, and Buell’s orders to his subordinates. As was true everywhere else in the Union-occupied South, soldiers frequently encouraged slaves to escape to the protection of Union lines in direct violation of prohibitions against enticement. In June, Grant noted “instances of negro stealing” by individual Union soldiers who went onto the farms of unionist slaveholders “and before their eyes perswaid their blacks to mount up behind them and go off.” It was one thing to accept slaves who came into Union lines voluntarily; it was another thing to “perswaid” them. Persuasion was not always necessary. In July, Brigadier General Alvin P. Hovey reported that hundreds of runaway slaves had fled to his lines in Memphis. “Many of the negroes no doubt are from rank rebels in the army,” Hovey reported, “and are coming in here in hopes that their masters Treason will liberate them.” Hovey put the fugitives to work on the city’s fortifications.36
In July, Halleck was called to Washington to take up a new post as general in chief. Shortly thereafter—on the same day Lincoln signed the Second Confiscation Act—Grant took Halleck’s place in command of the western armies. Within days, Grant’s patron, Illinois Republican Elihu Washburne, made it clear that Halleck’s earlier orders were dead. “This matter of guarding rebel property, of protecting secessionists and of enforcing ‘order No. 3,’ is ‘played out’ in public estimation,” Washburne wrote Grant on July 25. “The negroes must now be made our auxiliaries in every possible way they can be, whether by working or fighting. That General who takes the most decided step in this respect will be held in the highest estimation by the loyal and true men in the country.” Washburne had just sat through the lengthy congressional debates over various antislavery measures and had voted with his fellow Republicans in support of the Second Confiscation Act. Barely a week after the new policy became law, the congressman was carefully instructing Grant in familiar Republican doctrine. “The idea that a man can be in the rebel army, leaving his negroes and property behind him to be protected by our troops, is to me shocking,” Washburne wrote. “If the constitution or slavery must perish,” he told Grant, “let slavery go to the wall.”37
Grant immediately began employing significant numbers of fugitives to work on Union fortifications. It is not clear, however, that Grant paid the “contrabands” wages or that he thought they were emancipated. He spelled out his policy in orders he issued on August 11 through his adjutant general, Lieutenant Colonel John Rawlins. “Recent Acts of Congress prohibit the Army from returning fugitives from labor to their claimants,” Grant’s order declared, “and authorize the employment of such persons in the service of the Government.” That was all. Grant would not return fugitives to their masters and would employ able-bodied fugitives, but he did not so much as hint that any of the fugitives had been freed.38
William Tecumseh Sherman had a lot more to say about slavery and emancipation than did Grant, but his policy through the summer of 1862 was essentially the same. And just as Grant was instructed by a Republican congressman on the need to destroy slavery, Sherman was similarly urged by his brother—Ohio Senator John Sherman—to follow a policy of universal emancipation. When slaves enter your lines, the senator explained, “You ought to presume their freedom until the contrary is shown & pay them accordingly.” Like Grant, Sherman abandoned Halleck’s policy shortly after Congress passed the Second Confiscation Act in mid-July. “My orders,” he explained to his wife, “are to take all who come in.” But he complied with his new orders in the most limited way possible. On July 22, Sherman instructed that blacks be put to work and given provisions but not be paid wages, and he employed only able-bodied men. “We never harbor women or children,” Sherman wrote in late August. Even after reading the Second Confiscation Act and clarifying his orders, Sherman refused to pay the blacks he put to work. “[N]o wages will be paid,” he ordered, “until the courts determined whether the negro be slave or free.” It was in response to this order that Senator Sherman told his brother to “presume” that the blacks had been freed and to pay them wages. The general resisted. “I think you are wrong in saying that Negros are free & entitled to be treated accordingly,” he told his brother in early September. General Sherman had no objection, in principle, to punishing rebels by taking their slaves, but he did not believe the law had made them free and he did object, in principle, to army officers deciding what the law was. Apparently not even lawmakers like his brother were competent to decide what their own laws said.39
Grant was indifferent rather than hostile to emancipation, and Sherman resisted emancipation for legal and practical reasons. General Buell was closer in spirit to McClellan. Both men hated the idea that a war to restore the Union had to be a war against slavery as well. During 1862, Buell’s orders regarding slaves were, if anything, even more restrictive than Sherman’s or Grant’s. Oblivious to the shift in federal policy, Buell continued to enforce a rigid exclusion policy that both Grant and Sherman had abandoned. There were even reports that acting on Buell’s instructions, Union soldiers were being ordered to hunt down and return fugitives to their masters. By the summer and fall of 1862, Buell’s policy had provoked widespread resentment, even outright defiance, among his own officers. Some threatened to resign rather than obey the general’s orders.40
Lincoln’s Preliminary Proclamation bolstered slavery’s opponents in Buell’s army. When Brigadier General Quincy Gilmore ordered Colonel William Utley to return “four contrabands . . . known to belong to loyal citizens,” Utley refused. “You are no doubt conversant with the Proclamation issued Sept. 23d 1862, and the law of Congress on the subject,” Utley told Gilmore. The colonel recognized General Gilmore’s authority “to command me in all matters pertaining to the Military and movements of the army,” he explained. “But I do not look upon this as belonging to that department. I recognize no authority on the subject of delivering up contrabands save that of the President of the United States.”41
Lincoln’s Preliminary Proclamation had indeed made it clear that slaves coming within Union lines were emancipated. By quoting directly from the March 13 statute making it a crime for anyone in the U.S. military to participate in the capture and return of fugitive slaves, Lincoln emphatically repudiated Buell and sided with soldiers like Colonel Utley who had refused to hunt down runaways and return them to their former masters. Under “the express requirement of the President’s Proclamation,” the Cleveland Plain Dealer pointed out, “[n]o more will traitors hunt their human chattels in and drag them forth from Union camps.”42 By highlighting the immediate emancipation clauses of the Second Confiscation Act, Lincoln affirmed the freedom of the tens of thousands of slaves in the parts of the Mississippi Valley recently occupied by the Union army and “formerly occupied” by the Confederates. And by circulating the Preliminary Proclamation as General Orders No. 139, the War Department turned Republican policy into an unambiguous military order.
Grant got the message. In August he had begun employing contrabands as military laborers, but without pay. In early September he appointed Chaplain J. B. Rogers to “superintend the contrabands” at Corinth, Mississippi. On November 11, he appointed another chaplain, John Eaton, to “take charge of the contrabands” who were flocking to Grant’s camp near LaGrange, Tennessee. Eaton proceeded directly to Grant’s headquarters. As in Louisiana, the Union army in the Mississippi Valley confronted a massive logistical and humanitarian problem once it found itself in control of vast tracts populated by large numbers of freed people. The slaveholders were abandoning their plantations “and negroes [are] coming in by wagon loads,” Grant wrote to Halleck. “What will I do with them?” Unwilling to make any decision on his own, Halleck asked the secretary of war for instructions. Stanton directed Grant to employ as many fugitives as he had use for, to provide food and clothing from the quartermaster’s supplies, and to put as many people as possible back to work cultiva
ting cotton. Grant in turn ordered Eaton to oversee the operation of a large contraband camp at Grand Junction.43
In recognition of their freedom, the former slaves would now be paid wages. By the late fall of 1862, Eaton recalled many years later, “the notion that the Negro was a free agent had penetrated with the advance of our armies into the South.” In the areas controlled by Union forces “it became our policy,” Eaton added, “whenever possible to put the Negro on the basis of a paid laborer.” The adoption of a wage labor system by the Union army forced a general transformation of the entire labor system in the surrounding area. Masters who remained on their plantations were forced to shift from slavery to free labor; otherwise blacks would leave to work for wages on Union-controlled farms. In December, Grant issued orders spelling out the terms under which the former slaves would work. As “Superintendent of Contrabands,” Eaton was charged with providing food, clothing, and shelter for the workers, to be paid for “out of their earnings.” Eaton in turn would keep accounts “of all earnings and expenditures,” subject to examination by the inspector general. By the end of December in 1862, Grant had responded to Lincoln’s Preliminary Proclamation by establishing the rudiments of a free labor system in the Mississippi Valley.44
Sherman did the same thing. As late as September 23—the day after Lincoln issued his proclamation—Sherman still believed that only a court, never a general, could free a confiscated slave. His brother, Senator John Sherman, had repeatedly told him that no courts were required for military emancipation in areas that were “in rebellion.” When the enemy “has destroyed the Court, rendering the Law inoperative,” Senator Sherman explained, “the military power may supply the defect.” But General Sherman continued to insist that he had “no power under any possible combination of circumstances to ‘free a negro.’ ” That was technically true but beside the point: the law required General Sherman to open his lines to all escaping slaves; once within Union lines the contrabands were “discharged from service,” not by General Sherman but by congressional statute as implemented by the commander in chief. A week later, however, having read Lincoln’s Preliminary Proclamation, Sherman began to shift his position. “They are free,” he wrote on October 1, although he wondered whether the government was ready to feed, clothe, and shelter the former slaves. “The President declares the negros free,” he added, “but makes no machinery by which such freedom is assured.” By early November, however, he had begun paying black workers wages of ten dollars per month, though he still complained that “no provision thus far has been made for the payment.”45
As always with General Sherman it was a matter of law and order. He viewed secession as a flagrant criminal act—in this case a violation of the Constitution—and believed the rebels deserved to be punished as criminals. In his own peculiar way, Sherman applied the same strict standards to himself. As a military man he believed it was his job to enforce the law as decreed by Congress, the president, and courts. In the Preliminary Proclamation, Lincoln decreed that under the terms of the Second Confiscation Act the slaves within Sherman’s lines were emancipated. The law was the law, and Sherman would obey it. “The only safety in the Country now is in Union, and we must be governed by the President,” he explained in late November, adding that “we have no right to dispute his acts or instructions and must leave him to manage the war in his own way.”46 He would thereafter assume that the slaves within his lines were legally emancipated.
Sherman’s mind gravitated instinctively toward hierarchy and obedience. For him that meant not only that he would do what he was ordered to do, but also that federal statutes and the laws of war took precedence over the laws of the states. A few weeks after Lincoln issued his Preliminary Proclamation, Sherman got into a dispute with a Tennessee lawyer named John Swayne, who, in a charge to a local grand jury, quoted several state statutes that protected slavery “while utterly ignoring,” Sherman complained, “the Laws of Congress and the State of war.” Sherman accepted the general view that under the laws of war, armies were free to confiscate enemy slaves as a “military necessity” without regard to state and local statutes. It was for lawmakers in Washington to determine the status of confiscated slaves, Sherman told Swayne, and Congress had settled that issue definitively in favor of emancipation. A state could not nullify a congressional statute. Sherman then proceeded to quote at length from the emancipation clauses of the Second Confiscation Act—the same Sections 9 and 10 that Lincoln reproduced in the Preliminary Proclamation. If you have a problem with that federal law, Sherman instructed the Tennessee lawyer, “a county court is not the place to adjudicate it.” Take your case to the Supreme Court and let it decide. In the meantime, Sherman concluded, “I Shall obey the plain Law of Congress and the order of the President of the United States under, and my army Shall be used to enforce it.”47 The law was the law. Congress and the president had determined that the slaves in the Union-occupied Confederacy were emancipated, and Sherman would obey their commands.
Whether General Buell would have done the same cannot be known, for on October 24—a month after the Preliminary Proclamation was announced—Lincoln relieved Buell of his command. A few weeks later Lincoln likewise relieved McClellan of his command. Neither general lost his job for opposing emancipation but for their persistent failures to pursue the war aggressively. Their dismissals meant, however, that within weeks after release of the Preliminary Proclamation the two highest-ranking Union generals who most consistently opposed emancipation were removed from command.
With the transition to free labor systems among the former slaves in the Mississippi Valley, the antislavery policy initiated by the Republicans in the first summer of the war reached its logical conclusion. Emancipation had begun on August 8, 1861, when General Benjamin Butler was instructed to free the slaves at Fortress Monroe in Virginia. A few months later Edward Pierce was authorized to supervise the transition from slavery to freedom on the Sea Islands. The slaves in coastal North Carolina were emancipated in the wake of General Ambrose Burnside’s successful invasion in early 1862, as were those who flocked to McClellan’s lines during the Peninsula Campaign. Further south, the slaves at Fort Pulaski and the surrounding area were freed by General Hunter’s proclamation, which was never rescinded. In Louisiana, Lincoln tilted Union policy in favor of emancipation in July of 1862, setting in motion a vast experiment in free labor in the densely populated sugar parishes around New Orleans. And with his Preliminary Proclamation, Lincoln forced reluctant generals in the Mississippi Valley to acknowledge that the slaves within their lines had in fact been freed.
This was clearly understood by Union generals and policymakers. As Benjamin Butler explained in August of 1861, because the masters in Hampton, Virgina, had deserted both their homes and slaves, Union generals “should consider the latter free.” In March 1862, when a Sea Island planter asked Treasury Secretary Salmon Chase about the status of slaves, Chase’s response was straightforward: “They were free.” A few weeks after Lincoln issued his Preliminary Proclamation, General Sherman wrote about the slaves to his brother and freely admitted the same thing: “They are free.” In late October, Butler was even more emphatic with his own subordinates: “By the act of Congress they are clearly free.”
By January 1, 1863, tens of thousands of slaves were already emancipated in those parts of the Confederacy occupied by the Union army, freed not by accident but by an accumulating series of policy decisions made by Congress and the Lincoln administration as they responded to the shifting course of the war, the tide of public opinion, and the steady arrival of slaves coming within Union lines. Moreover, emancipation was only one part of a broader Republican assault on slavery. The federal government had stopped enforcing the fugitive slave clause of the Constitution. Slavery had been banned from the western territories, suppressed on the high seas, and abolished in the nation’s capital. West Virginia would be admitted to the Union after vowing to abolish slavery.
Only in historical mythology di
d the purpose of the war shift on January 1, 1863, from the restoration of the Union to the abolition of slavery. Yet even as the first phase of emancipation policy was reaching its climax in the Mississippi Valley, the mythology of the Emancipation Proclamation was already being constructed.
MYTHMAKING
Several decades after the Civil War ended, when John Eaton sat down to write about his experience superintending contrabands in the Mississippi Valley, he was bemused by the recollection that slaves had somehow been emancipated prior to January 1, 1863. He apparently had no memory of the Second Confiscation Act, Lincoln’s Preliminary Proclamation, or the military orders that prompted Grant’s appointment of Eaton to supervise the transition from slavery to freedom in the area. Writing in 1907, Eaton viewed the introduction of free labor in late 1862 as a curious local practice that had somehow developed as if spontaneously in the area around LaGrange, Tennessee. Nor was Eaton the only one who could not remember clearly. By 1900 virtually all memory of emancipation policy before January 1, 1863, was lost, and it has remained lost. The memory lapse is etched in the labels historians now attach to the policies that preceded the Emancipation Proclamation. What contemporaries often referred to as the “Confiscation-Emancipation Act” of July 17, 1862, is now referred to as the Second Confiscation Act, a title that effectively obscures the broad emancipation policy it initiated. The Preliminary Proclamation—which Lincoln issued as “A Proclamation” and Republican papers sometimes called the “Emancipation Proclamation”—was dubbed the “Preliminary Emancipation Proclamation” by Lincoln’s secretaries in the late nineteenth century, and part of it was indeed “preliminary.” But by labeling it the “Preliminary Proclamation” they further obscured the immediate impact Lincoln expected it to have.48