While historians have long countered the myth that slavery was not the central cause of the Civil War, they have clung to the view that the Union’s opposition to slavery developed very slowly and almost reluctantly, largely due to the Republicans’ commitment to the constitutional ban on “interference” with slavery that already existed in slaveholding states. Hence Lincoln’s Emancipation Proclamation often appears as a sudden, radical action, really out of the blue. Though I long accepted most such interpretations, I have always been puzzled by the so-called First and Second Confiscation Acts, passed by Congress in 1861 and 1862, which have received far too little attention. These acts applied, among others, to armies fighting in the South, to whom slaves might surrender. The 1861 act, for example, held that Confederate properties including slaves were the “lawful subject of prize and capture wherever found.”
Fortunately James Oakes’s Freedom National clarifies the aims of the war with a wholly new perspective. I agree with the eminent historians Eric Foner and James M. McPherson that his book (in Foner’s words) is “the best account ever written of the complex historical process known as emancipation,” though for some reason Oakes omits the complex French and British responses to the Civil War, including the close decision not to intervene and formally recognize the Confederacy.1 But Oakes shows how President Lincoln and other Republican leaders experienced “memory lapse[s]” that contributed to myths that obscured the meaning and impact of the two Confiscation Acts, that portrayed Lincoln as a “reluctant emancipator,” and that erased much of the history of emancipation before Lincoln’s Emancipation Proclamation of January 1, 1863.
The basic theme of Oakes’s long and extremely detailed book is that Lincoln’s new Republican Party was a strong and united antislavery party both before and throughout the war, a party dedicated to the proposition that defining humans as chattel property was a violation of the “freedom principle” embodied in natural and international law. Republicans held that such chattel bondage was unrecognized in the US Constitution, which defined slaves as “persons held in service,” not property, and was thus restricted within the boundaries of specific Southern states whose laws sanctioned true slavery.
This was the meaning of the slogan “Freedom National, Slavery Sectional,” terms used by the abolitionist Charles Sumner not long after he was elected to the Senate in 1851, terms that extended back to the pivotal British Somerset ruling of 1772, which held that “no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever.” The terms also extended back to the natural condition of the populations of Western Europe.
Oakes shows that Republicans had devised well-considered plans for a national assault on slavery, that Southerners were quite right in seeing the Republicans as a threat to their “peculiar institution,” and that secession was not a paranoid act of irrationality. But while Republicans were determined from the first to move toward the ultimate extinction of slavery, they could never imagine that their efforts would result in four years of brutal war, at a cost of 750,000 military lives, in order to free four million slaves and permanently outlaw the institution with a ratified constitutional amendment eight months after the assassination of President Lincoln. Oakes succeeds in dramatizing the extraordinary complexity and difficulty of achieving that objective.
Oakes is so absorbed in the Republican Party’s prosecution of the war that he never takes notice of the actual nature of American slavery as experienced by slaves and never recognizes the economic strength and profitability of the institution, which presented one of the major obstacles to abolition, especially since Republican leaders believed that slavery was weak, vulnerable, and obsolete. (Their party had been founded in 1854 to oppose the extension of slavery into Kansas and Nebraska.)
But Oakes convincingly shows that by 1861 Republicans had drawn on the antislavery arguments of such figures as John Quincy Adams, Salmon Chase, Theodore Weld, Joshua Giddings, and Charles Sumner to formulate plans for undermining and attacking slavery, while still observing the “federal consensus” that the Constitution put slavery in the states beyond the reach of federal power. Republican policymakers found a solution to this conundrum in the conviction that, contrary to the Dred Scott decision of 1857, the legality of defining slaves as property was wholly confined to the existing slaveholding states, and could thus be kept from expanding into American territories or the high seas.
The Republicans’ first conception of their aims was based on a theory of containment: “a cordon of freedom” would stop the spread of slavery, a view that went back to abolitionist proposals of the 1830s and the later Free Soil Party. Actually, as early as 1784 Thomas Jefferson sponsored a narrowly failed provision in a bill in the Continental Congress to prevent “neither slavery nor involuntary servitude, otherwise than in the punishment of crimes” from expanding into any of the western territories, even those west of Georgia and the Carolinas.
Oakes fails to mention this but notes that Jefferson’s words were incorporated into the Northwest Ordinance of 1787 banning slavery north of the Ohio River (passed when Jefferson was in France), and then into a Republican bill of 1862 banning slavery “in all places whatsoever where the national Government has exclusive jurisdiction,” including the territories taken over by the Union forces. Finally, Jefferson’s words were incorporated into the Thirteenth Amendment.
Apart from advocating the confinement of slavery to the existing slaveholding states, abolitionists had called for constructing a moral wall or cordon around the slave states in order to undermine even the slaveholders’ support of a condemned institution. As the young escaped slave Frederick Douglass put it in a speech to a large audience in London in May 1846:
I want the slave holder surrounded, as by a wall of anti-slavery fire, so that he may see the condemnation of himself and his system glaring down in letters of light. I want him to feel that he has no sympathy in England, Scotland, or Ireland; that he has none in Canada, none in Mexico, none among the poor wild Indians…. I would have condemnation blaze down upon him in every direction, till, stunned and overwhelmed with shame and confusion, he is compelled to let go the grasp he holds upon the persons of his victims, and restore them to their long-standing rights. (Loud cheers.)2
As Oakes points out, with the Republicans’ political victory in 1860, the cordon became more physical and material. Then the secession of eleven slave states enabled Republicans to abolish slavery in the nation’s capital, ban slavery from the western territories, refuse to enforce the Fugitive Slave Act, and withdraw federal protection from slavery on the high seas. No less important, they applied pressure on the “loyal,” slaveholding border states—Delaware, Maryland, Kentucky, and Missouri, which were soon occupied by many Union troops—to abolish slavery on their own. And by early 1862, they required a new state, West Virginia, to abolish slavery as a condition for admission to the Union. That would become a precedent that would later be applied to all states wanting readmission to the Union.
The second abolitionist plan held that in the event of war or rebellion, the federal government could free slaves by “military necessity,” as finally exemplified by Lincoln’s Emancipation Proclamation of January 1, 1863. Here the Republicans drew heavily on two sources of legal argument. First, the case John Quincy Adams had made against the so-called gag rule—which was passed with the support of Southern congressmen in 1836 and barred discussion of slavery in the House until the rule was repealed in 1844. The second argument recalled Adams’s defense of the right of self-emancipation of the African slaves on board the slave ship Amistad in 1839. Indeed, after the abolitionist Charles Sumner learned of the Confederate attack on Fort Sumter, he waved copies of Adams’s speeches in President Lincoln’s face, defying him to live up to Adams’s arguments. But Oakes makes it clear that Lincoln did not lag behind the Republicans in Congress with regard to antislavery policy. Rather, while one branch of government would sometimes take the lead, they worked together, as can be seen in the enforcement of the First Confiscation Act, which was above all a response to the expected move toward liberty by many of the slaves themselves.
Even before the war, many Republican leaders predicted that in the event of war slaves would flee their masters or possibly rise in a Haitian-like rebellion. But even after the war began, there were no formulated plans for runaway slaves who arrived at the Union-controlled Fort Pickens, in Florida, and were then returned to their masters, right after Lincoln’s inaugural.
The new policy proclaimed by the Confiscation Acts, based on “military necessity,” began in May 1861 when three slaves fled behind Union lines at Fortress Monroe, Virginia—to be followed by some nine hundred by the end of July. General Benjamin Butler found that the owner of the three fugitives had intended to take them to North Carolina to help secessionists there, and thus sent a report to Washington arguing that slaves should not be returned to aid the rebel cause. The secretary of war and Lincoln’s cabinet approved Butler’s “contraband policy,” allowing able-bodied black men and women to work for wages to support the Union army and to live with their children behind Union lines.
Nevertheless, the Republican leaders agreed that they had to try to balance measures justified by military necessity with the “federal consensus” that the Constitution prohibited direct federal “interference” with slavery in existing states. This goal was reinforced by the crucial need to prevent the slaveholding border states from joining the Confederacy. Thus the War Department’s initial instructions for implementing the First Confiscation Act prohibited Union soldiers from “enticing” slaves away from peaceful farms and plantations. This rule was only overturned by Lincoln, acting as commander in chief of the military, in the Emancipation Proclamation of January 1, 1863.
The War Department took a far more radical step in its instructions of August 8, 1861, declaring that the slaves, or rather “persons,” who escaped even from masters “loyal” to the Union would be emancipated. Early in this war against so-called Southern “traitors,” Northern leaders greatly overestimated the number of Southerners who it was hoped would turn out to be loyal to the Union. While the distinction between loyal and disloyal with regard to the freeing of slaves was intended to reinforce such loyal support of the Union, it almost immediately proved to be impossible to carry out.
By July the number of slaves escaping from Confederate territory had convinced Republican leaders that the rebellion of slaveholders had made slavery’s destruction inevitable. While the First Confiscation Act was originally intended to apply only to those fugitives “employed in hostility to the United States,” under the War Department’s instructions “military necessity” meant the freeing of all slaves who voluntarily entered Union lines from any Confederate state. In theory, owners who were loyal to the United States might someday be compensated, but no freed people were to be reenslaved. The act even emancipated the large number of slaves, as in coastal South Carolina, whose masters were presumed to be traitors to the Union since they ran inland from advancing Union troops.
Even though there was some inconsistency in the behavior of Union officers, the First Confiscation Act applied to all parts of the Confederacy occupied by Union troops and within a year of passage it had liberated tens of thousands of slaves. As Oakes emphasizes, it is difficult to imagine how emancipation could have begun any sooner. Contrary to the views of many historians, Lincoln had been informed of every step taken and seems to have accepted the War Department’s more radical criteria for enforcing the law. Yet Oakes never explains why an administration so committed to slave emancipation utterly failed to convey this message to Britain, where supporters of the North desperately needed such news to counteract their powerful enemies.
2 The Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews, Volume I: 1841–46, edited by John W. Blassingame (Yale University Press, 1979), pp. 394–395. Oakes does not mention Douglass’s speeches in Britain, which sometimes included the key word “cordon” as a way of walling off the slaveholding South. ↩
The Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews, Volume I: 1841–46, edited by John W. Blassingame (Yale University Press, 1979), pp. 394–395. Oakes does not mention Douglass’s speeches in Britain, which sometimes included the key word “cordon” as a way of walling off the slaveholding South. ↩