Freedom National: The Destruction of Slavery in the United States, 1861-1865
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By the middle of 1862, however, it was clear to Union officials that the real threat of re-enslavement came from the southern states bent on restoring slavery, not the federal government reneging on its promises. In September of 1862, Lincoln cited examples of Confederate re-enslavement to a group of Chicagoans visiting him in Washington. In one case rebels captured several black soldiers on a boat on the Tennessee River and promptly enslaved them. After both battles of Bull Run, Lincoln noted, federal authorities dispatched expeditions to the battlefield “under a flag of truce to bury the dead and bring in the wounded, and the rebels seized the blacks who went along to help and sent them into slavery.” Suppose the demands of the war forced the Union to “call off our forces from New Orleans to defend some other point,” Lincoln wondered. “[W]hat is to prevent the masters from reducing the blacks to slavery again?” Already, black soldiers were routinely re-enslaved by their Confederate captors. “Whenever the rebels take any black prisoners, free or slave,” Lincoln complained, “they immediately auction them off!”46
As more slaves were emancipated by the Yankees, more of them were re-enslaved by the rebels, and Union officials adopted a number of policies aimed at shielding freed people against both the legal and the physical threat of re-enslavement. By statute and by presidential proclamation they insisted that slaves freed by the war were “forever free.” When, weeks before the Emancipation Proclamation was issued, Attorney General Bates ruled that blacks were citizens of the United States, he was motivated in part by the desire to prevent re-enslavement. If slaves became citizens the moment they were emancipated, and if national citizenship took precedence over state citizenship, no state could subsequently deprive freed men and women of the privileges and immunities of citizenship by attempting to re-enslave them. Of course the Bates ruling had no effect on Confederate policy. On the contrary, re-enslavement increased dramatically after the proclamation was issued. In late July of 1863, Lincoln retaliated by ordering that one Confederate prisoner be sentenced to hard labor for every black Union soldier re-enslaved by a Confederate captor. Weeks later, responding to reports of freed people being re-enslaved in Mississippi, Lincoln drafted an order to General Stephen Hurlbut, instructing him to make every effort to find employment for them on secure plantations whose owners would “not let the contrabands be kidnapped, or forcibly carried away.” The secretary of war wrote to several Union generals on Lincoln’s behalf ordering them to stop the re-enslavement of blacks in the Border States.47
AFTER THE CONFEDERATE DEFEATS at Vicksburg and Gettysburg in the summer of 1863, the prospect of an impending Union victory focused the attention of Republican policymakers on the inadequacy of military emancipation as a means of destroying slavery. The slaveholders were throwing too many roadblocks in emancipation’s way. From the congress in Richmond through state and local governments, all the way down to local militia units and individual planters, the Confederacy mobilized itself to prevent the slaves from taking advantage of the war to claim their freedom. No doubt plantation routine was disrupted by the war, but sometimes the disruption itself was part of the often successful efforts to keep the Union army away from the slaves. As it was, Union troops could reach only a fraction of the southern slaves, and it could not support those it was able to reach. It is hardly surprising, then, that when the war ended, only one out of seven slaves had actually been emancipated. No one in Washington could say for certain that those still enslaved would be freed, or even that those who had been freed could never be re-enslaved.
Yet military emancipation was not a complete failure. It seriously weakened the Confederacy by depriving the South of the labor of thousands of black workers, in addition to those who fought for the Union. When the Confederates impressed slaves into service, they disrupted plantations, angered slaveholders, and sent countless slaves fleeing to Union lines. By contrast, Union impressment transferred the labor of tens of thousands of African Americans from the South to the North, simultaneously weakening the Confederacy and strengthening the Union—the famous “double” benefit of which Lincoln and other Republicans spoke. Lincoln and many of his leading generals—not least Ulysses S. Grant—came to believe that emancipation and black enlistment were “indispensable” to Union victory, and without Union victory there could be no abolition. The Emancipation Proclamation did something else as well, something harder to measure but perhaps equally important: it created the expectation among northerners that when the war was over, slavery would be fully destroyed. The proclamation helped forge the political will to do what emancipation itself could not do—abolish slavery everywhere in the United States. Emancipation made the Thirteenth Amendment politically viable.
Yet if military emancipation was in many ways a success, it was a success that came at a terrible price. By definition military emancipation took place amid the chaos and horror of war. The horror began but did not end with the hundreds of thousands of soldiers who died, and the generation of maimed veterans who survived. For the slaves themselves, military emancipation could be a terrifying and deadly experience. Tens of thousands were ripped from their communities, families were physically separated, the contrabands—sometimes frozen, often starving—got sick and died in the very process that was supposed to free them. Republicans had warned from the start that military emancipation would be brutal and bloody, though they could scarcely have imagined the staggering human cost. They had always said that a peaceful, gradual abolition was the better, more humane alternative to bloody military emancipation. All through the war Lincoln continued to offer the disloyal states that option in return for an end to the bloodletting. But the slaveholders could never accept abolition, on any terms. That left only two alternatives: either the North accepted perpetual slavery or the South was subjected to military emancipation.48
Having embraced military emancipation, however, Republicans ultimately concluded that it would not destroy slavery. When Lincoln and the Republicans expressed fears of a court decision overturning wartime emancipation, what they mostly worried about was a state court upholding a state’s right to enslave those freed by the war. By their own understanding of the Constitution, slavery was a state institution, military emancipation a wartime expedient, and when the war was over, control over slavery would revert to the states. By early 1864, Republicans were pointing anxiously to the shortcomings of military emancipation to justify their new proposal for an antislavery amendment. Congress had passed confiscation laws and the president had issued emancipation proclamations, one Republican congressman explained, but “the world knows” that “none of the laws I have mentioned have gone beyond the fact of making men affected by them free; that no one of them has reached the root of slavery and prepared for the destruction of the system. We have made some men free,” he concluded, “but the system yet lives.”49
12 “OUR FATHERS WERE MISTAKEN”
“SIR, IS IT NOT MADNESS to act upon the idea that slavery is dead?” Republican Congressman James T. Wilson of Iowa asked in March of 1864. He cited the threats coming from the Border States to “reenslave every person you attempt to set free.” Even after three years of war, Wilson said, slavery was a “condemned” but “unexecuted culprit.” We “know that it is not dead,” he declared. “Why should we not recognize the fact and provide for the execution?” But by what means shall it be executed, Wilson wondered. “How shall we perform it?”1 That was the question on every Republican mind when the Thirty-Eighth Congress opened its first session in December of 1863. Slavery was not yet dead. How can we kill it? Republicans were more certain than ever that the Union forces would soon win the war, but less certain than ever that slavery would be destroyed in the process. Desperate to abolish slavery and even more desperate to prevent the re-enslavement of those emancipated by the war, Republican lawmakers introduced a raft of bills designed to “enforce” emancipation and make it irreversible. Most of their proposals, however, ran afoul of the federal consensus: for reasons of military necessity the government
could emancipate slaves as individuals, but the power to abolish slavery resided exclusively in the states. As a result Republicans could not unite around any of the proposals to abolish slavery by means of congressional legislation.
There were only two ways to destroy slavery: the states could abolish on their own, or the Constitution could be amended to abolish slavery everywhere. When the Thirty-Eighth Congress convened, it was not clear whether either of these approaches would succeed. At that point—in December of 1863—not a single state had abolished slavery on its own, notwithstanding intense federal pressure to do so. Only West Virginia had adopted gradual abolition, and only because Congress had demanded it as the price of admission to the Union. It seemed unlikely that every loyal slave state would abolish slavery, and even where it was abolished it could eventually be reestablished. That left only a constitutional amendment, but there was as yet no Republican consensus in favor that strategy, nor was it clear that Republicans had the power to get an amendment through Congress. Over the next several months, as the weaknesses of other approaches became more evident, Republicans settled on a thirteenth amendment as the best way to destroy slavery completely. In so doing they finally repudiated the federal consensus.
“SLAVERY CANNOT BE ABOLISHED BY CONGRESS”
On December 14, 1863, Senator John Hale of New Hampshire introduced a bill to “more effectually suppress the rebellion.” It was brief and simple: Hale’s bill abolished slavery everywhere in the United States. Hereafter, it read, “all persons within the United States are equal before the law.” All “claims of personal service . . . are hereby forever abolished.” The only exceptions were parental claims on the labor of minors, state claims on the labor of convicted criminals, and personal claims based on voluntary contract. This was federally mandated abolition, all state laws and constitutions to the contrary notwithstanding. There was no chance that Hale’s bill would pass. It was an open rejection of the Republican Party’s long-standing acknowledgment that the Constitution recognized slavery as a state institution and that the federal government had no power to abolish slavery in a state where it existed. Hale himself had long proclaimed his allegiance to the federal consensus, as had Massachusetts Senator Charles Sumner. Yet by 1864 both had shifted ground, adopting the position that the Constitution was actually an antislavery document, that it was incompatible with slavery in the states, and that Congress was fully empowered to abolish slavery anywhere within the territorial limits of the United States.2 It was a desperate move to get slavery abolished, and there were others—less desperate, but each one controversial.
One of the most startling proposals designed to achieve abolition legislatively—it later became the basis of radical reconstruction—was to reduce the seceded states to the status of territories. All Republicans, even those who believed that the federal government had no power to abolish slavery in a state, agreed that Congress could abolish slavery in the territories. Senator John Brooks Henderson, the stanch Missouri unionist, derisively explained the logic of the proposal: “The argument admits that slavery cannot be abolished by Congress in a State, but insists that it can be in a Territory.” Thus by treating the seceded states like territories, Congress could abolish it. Henderson favored the complete abolition of slavery, but he dismissed territorialization as yet another attempt by Congress to devise indirect “ways and means to cripple slavery.” Reducing the states to territories put the Republicans in a legally absurd position of simultaneously declaring the secession ordinances null and void, while on the other hand investing those same ordinances “with sufficient validity to destroy the state.”3 As a means of abolishing slavery, territorialization gained few supporters.
Emancipating the families of Union soldiers was yet another way to expand the scope of emancipation indirectly. Congress had already approved this in the Militia Act of July 1862 as part of the attempt to put added pressure on the Border States. At the time it provoked little comment. The issue came up again in November of 1863, however, when a Kentucky general caused a nationwide scandal by cruelly expelling the wives and children of black soldiers from camp, sending them off into a brutal winter where several of them froze to death. The order was quickly reversed, the general was nearly removed from command, and the surviving families were readmitted to the camp, where they were housed and fed. In Congress the scandal resulted in a resolution reaffirming that the families of freed men who had enlisted in the army were emancipated. By then Democrats and Border State politicians had launched a ferocious legal counterattack, claiming that the federal government had no constitutional authority to free any slaves of any loyal masters in a loyal slave state. Democrats conceded that the federal government might have the power to conscript the slaves of loyal masters into the Union army, but it could not touch their families. Like every other Republican, Senator John Sherman of Ohio was prepared to “guaranty” the freedom of any slave “employed in the military service of the United States,” but he did not think Congress had the power to legally emancipate the slave’s family members if his master was loyal. The only way to do that was by passing a constitutional amendment abolishing slavery everywhere, which Sherman strongly supported. Lyman Trumbull wondered if it was possible to free the wives of slaves when state laws did not recognize the legality of slave marriages. Nevertheless, frustrated and angered by the intransigence of the Border States, especially Kentucky, Republicans passed the resolution.4
Searching for constitutionally viable ways to prevent re-enslavement by the southern states once peace was restored, several Republican lawmakers proposed legislation to “enforce” Lincoln’s proclamation. “The decree of emancipation,” Senator Henry Wilson argued, “should be enforced and sanctioned by measures of legislation.” Isaac Arnold, a Republican congressman from Illinois, introduced a bill to “carry into immediate execution” the Emancipation Proclamation. Arnold’s proposal would prohibit “the reenslaving or holding, or attempting to hold, in slavery or involuntary servitude of any person who shall have been made or declared free by said proclamation.” On the same day that Arnold introduced his bill another Illinois congressman, the abolitionist Owen Lovejoy, introduced a complementary proposal “to protect freedmen and punish any one for enslaving them.” His bill would give congressional sanction to the attorney general’s earlier ruling that free or freed blacks were citizens, thereby making re-enslavement a palpably unconstitutional deprivation of the “privileges and immunities” of citizenship. Re-enslavement would become a crime under Lovejoy’s bill, punishable by one to five years in prison and a fine of between one and five thousand dollars.5
The fear that even black soldiers might be re-enslaved led the Republicans to repeal the Fugitive Slave Act of 1850, even though the statute had been a dead letter for several years, ever since the war began. As early as December in 1861, a Republican congressman warned that if “the rebellion be suppressed to-morrow, the masters of those slaves now coming within our lines, and helping us, would have a claim to their rendition under the fugitive slave law.” In March of 1862, Congress made it a crime for anyone in the military to enforce the fugitive slave clause, and a few months later, in the Second Confiscation Act, Republicans went further by restricting enforcement to the states. Nevertheless, by early 1864, Republicans were still concerned by threats to re-enslave even black soldiers recruited from the Border States whose masters had remained loyal to the Union. Democrats and Border State congressmen had always denounced the Emancipation Proclamation as unconstitutional, but some were willing to concede that the Union could legally conscript and emancipate the slaves of disloyal masters. They made no such concession for black enlistees owned by loyal masters in the loyal slave states. When pressed in congressional debate, Democrats refused to disavow their intention to re-enslave those black recruits. Republican Senator Edgar Cowan wondered whether any black soldier freed by the war was secure from re-enslavement by the states. “Is there any authority in this Government,” Cowan asked, “to prevent that retur
n to his original status?” Because enlistment was the surest path to freedom for black men in the Border States, tens of thousands of them had abandoned their owners and joined the Union army, and for the same reason, federal authorities made special efforts to recruit blacks from those areas. Hoping to make their re-enslavement difficult, Republicans finally repealed the Fugitive Slave Act on June 28, 1864. States were thereby deprived of any statutory claim to federal assistance in the capture of former slaves who had joined the Union army and left the state.6
The repeal of the Fugitive Slave Act was uncontroversial among Republicans because it flowed logically from the principle that freedom was national and slavery merely local. Republicans, though, could not unite around the other legislative measures to expand the scope of emancipation. Sherman questioned the resolution to free the families of Union soldiers not because he opposed abolition, but because he did not think the Constitution in its current form allowed Congress to do such a thing. Like Trumbull, Sherman supported a constitutional amendment abolishing slavery everywhere as a sounder means of achieving universal emancipation. In the Senate, the same position was articulated by a crucial handful of influential unionist Democrats from states that were on the verge of abolishing slavery on their own. Like Henderson of Missouri, Reverdy Johnson of Maryland supported a constitutional amendment after coming to the conclusion that there could be no “prosperous and permanent peace” until slavery was abolished. He also questioned “the legality and effect of the other means by which it is proposed to get right of it.” Abolition, Johnson said, was not “within the power of Congress by virtue of its legislative authority.” Nor could the president do anything more than emancipate slaves within the actual reach of the Union army. He “has no practical power to effect the manumission of slaves belonging to the enemy where he has not the physical power to attain the result.”7