The Confederate Congress took up a blizzard of retaliatory resolutions. One bill resolved that “all rules of civilized warfare should be discarded in the future defense of our country.” Another proposed that “every person pretending to be a soldier or officer of the United States” captured after January 1 should be presumed to intend “to incite insurrection and abet murder” and therefore “suffer death” as a criminal. The Confederate Congress’s final joint resolutions described the Emancipation Proclamation as an effort to encourage slaves to take up a servile war that would be “inconsistent with the spirit of those usages which in modern warfare prevail among civilized nations.”
Many observers in the North and in the border states were almost as critical as the rebels. Two days after the Proclamation was made public, McClellan wrote privately to his wife, Ellen, that he would not “fight for such an accursed doctrine as that of a servile insurrection—it is too infamous.” The Louisville Journal observed angrily that Emancipation freed enemy slaves and incited “servile insurrection,” both of which were “condemned by the laws of civilized warfare.” Further west, in Dubuque, Iowa, critics of Emancipation saw it as tending toward “a servile war, instigated by the President’s proclamation.” In Lincoln’s old haunts of Springfield, Democrats accused him of unloosing “the lusts of freed negroes who will overrun our country.” Former Supreme Court Justice Benjamin Curtis conjured up “scenes of bloodshed, and worse than bloodshed.” The governor of New Jersey, Joel Parker (no relation to the Harvard professor of the same name), predicted a slave uprising that would lead to the genocidal massacre of all the South’s blacks. Similar nightmarish stories raced through the salons of Britain and France in the winter 1862–63, creating speculation that the threatened terrors of Emancipation might lead the two European states to recognize the South and impose a mediated peace.
Detractors focused in particular on one aspect of the September 22 preliminary Emancipation Proclamation: Lincoln’s promise that the armed forces would “recognize and maintain” freedom and not “repress” the efforts of former slaves to turn the Proclamation into “actual freedom.” Outraged newspaper editors spluttered that Lincoln was practically “inviting the negroes to the commission of any atrocity which their brutal passions may suggest.” With Lincoln’s active assistance, Emancipation would lead “a barbarous and servile race” to wreak violence on the white women and children of the South.
FOR EMANCIPATION’S CRITICS, the Proclamation seemed to signal the end of restraint. But in this they were badly mistaken.
Like Butler at the outset of the war, Lincoln and his cabinet remained gravely concerned about the risk that slave uprisings would give rise to an indiscriminate bloodbath. Secretary of War Stanton thought enough of the concern to assure the Congress in his December 1862 annual report that “under no circumstances has any disposition to servile insurrection been exhibited by the colored population in any Southern State.” And when Lincoln issued the final Emancipation Proclamation on January 1, 1863, he aimed to allay precisely these worries. All persons held as slaves in the rebellious states, the Proclamation reaffirmed, “are, and henceforward shall be free.” But where the preliminary Proclamation in September had promised Union aid to slaves’ own efforts to achieve “actual freedom,” now Lincoln substituted a stern warning against self-help: “I hereby enjoin upon the people so declared to be free,” he wrote, “to abstain from all violence, unless in necessary self-defence.” Indeed, Lincoln went further, urging the newly freed blacks of the South to refrain from any attempt to challenge the allocation of power and wealth in the southern states. “I recommend to them,” he continued, “that, in all cases when allowed, they labor faithfully for reasonable wages.” A year later, in his 1863 message to Congress, Lincoln proudly reported on the status of the Emancipation Proclamation and on the Union’s military successes since its implementation: “No servile insurrection, or tendency to violence or cruelty,” the president said, “has marked the measures of emancipation and arming the blacks.”
Emancipation did not entail the elimination of restraints. But it did mean a different way of talking about them. As Francis Lieber told his students a year before, jurists in Europe and America had sought for a century and more to maintain a sharp separation between rules for combat, on the one hand, and the justice of the cause, on the other. Jurists like Vattel had done this by articulating hard-and-fast prohibitions that could be followed without reference to the cause of the underlying conflict. Lieber’s lectures aimed to dismantle the partition between means and ends, and most of Vattel’s rules had come tumbling down in the process. Now Lincoln experimented with the same move. Like Lieber’s lectures, Emancipation pressed humanitarian limits and justice back together by measuring the limits on conduct by reference to the justice of its ends. Lincoln had announced the Emancipation Proclamation “as a fit and necessary war measure,” one that was “warranted by the Constitution, upon military necessity.” The military necessity test tethered the means allowed to the justice of the end in view. Justice—God’s justice—was precisely what Lincoln had in mind. “Upon this act, sincerely believed to be an act of justice,” the president wrote in the final Emancipation Proclamation, “I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.”
ODDLY, the grave reasoning of the Emancipation Proclamation has been missed by most of its readers. For a century and a half, even sympathetic observers have criticized the Proclamation’s text as morally impoverished. The abolitionist Lydia Maria Child—who had sympathized openly with John Brown’s raid on Harper’s Ferry just four years before—complained that the Emancipation Proclamation was “merely a war measure.” Child said it made “no recognition” of the “principles of justice or humanity” that had prompted it. The influential twentieth-century historian Richard Hofstadter dismissed the document as having “all the moral grandeur of a bill of lading.” It was, Hofstadter protested, based on nothing more than “military necessity.”
What Child and Hofstadter missed is that military necessity was morally momentous. As a war measure based in military necessity, the Emancipation Proclamation condensed a millennium of moral and legal reasoning into its short text. It contained an entire world of moral considerations about the relationship between means and ends. In cutting against the grain of the hard-and-fast rules that had populated the laws of war since the Enlightenment, Lincoln moved the war to a dangerous new footing—one that not only undid one of war’s limits but also threatened to undermine the very moral structure of just wars in the modern tradition. Yet it was hardly a lawless vision of war that Lincoln offered. Even the flat affect of the Proclamation itself was exquisitely attuned to moral restraint in warfare and to what men like Seward were telling the president might be the “vast and momentous” consequences of his act. Lincoln knew precisely the risks posed by bringing justice back into the conduct of war. He thus did so quietly, omitting rhetoric calculated to stir the passions of the conflict. Lincoln announced Emancipation with the modesty of a man who knew that he could never understand for certain how God willed him to act, but who knew that he had to act nonetheless.
If uncertainty was man’s fate, if there were to be no miracles, then the Lincoln administration would have to attend very carefully to the risks that Emancipation occasioned. Recruiting the newly free men into the Union Army would turn those risks into one of the most pressing problems of the entire war.
Chapter 8
To Save the Country
To save the country is paramount to all other considerations.
—Instructions for the Government of Armies of the United States in the Field, 1863
AS THE MOON sank low in the night sky over eastern Florida on March 8, 1863, 900 soldiers of the Union Army made their way up the St. John’s River from the Atlantic coast aboard the steamer John Adams with an escort of Navy gunboats. Even under ordinary circumstances, the raid would have been a daring and complex one. The mission was to trav
el twenty miles upriver under cover of night and make a dawn landing at the sharp bend in the St. John’s that sheltered the isolated village of Jacksonville, population 2,000. If all went as planned, the village would be occupied before local Confederate forces even knew what was happening.
But these were not ordinary circumstances. This operation was different from any the Union had carried out in two years of war. Months earlier, all 900 of the enlisted men aboard the John Adams had been slaves on the sea island plantations of South Carolina. Now, in March 1863, they were black soldiers of the South Carolina Volunteers on a mission to spread word of the Emancipation Proclamation among the blacks of Florida.
The South Carolina Volunteers, as one newspaper observed, were “not the phantom” of servile insurrection. They were its reality. The Union had occupied Jacksonville once before in an effort to interrupt the shipment of cattle and hogs to the Confederate armies. This time the Union mission in Jacksonville was different. The regiment’s white officers, Colonel Thomas Wentworth Higginson and Colonel James Montgomery, had been radical abolitionists before the war. Higginson was an admirer of John Brown. Montgomery was an antislavery Kansas jayhawker, raiding slave plantations across the Missouri border in the lawless violence of the 1850s. With Higginson and Montgomery in command, the Volunteers aimed to use Jacksonville as a base for arming Florida’s freedmen against their former masters.
Obstructions along the St. John’s delayed the Union vessels by several hours. At eight in the morning stunned residents of Jacksonville watched the John Adams steam around the bend. As they realized the race of the men in the Union uniforms, the surprise of the white onlookers gave way to terror. For months, Confederate authorities had been warning that Emancipation would mark the beginning of a Union effort to foment slave uprisings across the South. Now the white inhabitants of Jacksonville—“in mortal dread of the sable soldiers,” as one correspondent reported—expected an indiscriminate massacre. Around the country, observers expected that raids such as the one led by the South Carolina Volunteers would be like “a great volcano . . . bursting” upon the South. Critics of the Lincoln administration in the North condemned the expedition (the “wretched business of negro soldiering”) as war “against the women and children on the plantations, and not against the armed force in the field.”
Thomas Wentworth Higginson, commander of the 1st South Carolina Volunteers, and his first sergeant Henry Williams led raids to bring away slaves from the backcountry of the Deep South.
Union officials were painfully aware of the passions raised by the mission. Secretary of War Stanton, who had authorized the recruitment of the black regiment in August, warned the commander of the South Carolina Sea Islands, Brigadier General Rufus Saxton, to use only those means “consistent with civilized warfare.” Saxton, in turn, had expressly limited Thomas Higginson to those measures “consistent with the usages of civilized warfare.” Indeed, Higginson himself believed that his men could easily be turned into savage warriors like the Seminole Indians who had fought U.S. troops in Florida for decades. They were, he wrote, especially suited to “partisan warfare” and “could easily be made fanatics” if their commander chose to train them as such. But Higginson insisted that he would “have none but civilized warfare” in his regiment. The eyes of the nation, he told his men, were upon them.
No one knew better than the black soldiers themselves just how fraught their raid into the Florida interior was. It had not escaped them that in the event of their capture, Confederate forces would treat them not as enemy soldiers but as armed slaves encouraging a general uprising. The penalty for stirring up slave rebellion was death. Even before the announcement of Emancipation in September 1862, southern whites had demanded that southern blacks captured in arms be executed. Since Lincoln had made Emancipation public in September, the Confederacy had made execution or re-enslavement its official policy. “Dere’s no flags ob truce for us,” Higginson’s men observed. None of the Enlightenment’s constraints protected them. “When the Secesh fight de Fus’ South,” one of the Volunteers remarked, “he fight in earnest.”
And yet despite the fears that raced through the town at the arrival of the black South Carolina Volunteers, no massacre ensued. To the contrary, Higginson and his men took the town with such speed and skill that it was completely surrounded before the people of Jacksonville had become fully aware of their presence. When reports of the Volunteers’ success reached the North, newspaper editors reacted with joy. The Boston Daily Advertiser gushed that the use of black troops had been shown to be “something far different from an attempt to arouse servile insurrection, with the horror anticipated from it.” The “conduct of the freedmen” had been “free from excess or disorder,” far more so (the editors were “very sorry to say”) than the conduct of most white regiments. The raid on Jacksonville had been “an act of regular warfare under the established rules of nations.”
THE FREEDMEN OF the South Carolina Volunteers are little remembered today. Unlike the black soldiers of the better known 54th Massachusetts, who under their commander Colonel Robert Gould Shaw led a heroic but ill-fated assault on Fort Wagner near Charleston in July 1863, the Volunteers fought no famous pitched battles. In Jacksonville, it was precisely the absence of violence that marked the Volunteers’ success. What observers North and South understood very well at the time was that Lincoln and Stanton’s decision to expand Union reliance on black soldiers depended crucially on their performance. There might never have been a 54th Massachusetts if it were not for the successes of the South Carolina Volunteers.
The legacy of the black soldiers from South Carolina has remained with us in another, less salient way as well. Even as the South Carolina Volunteers occupied Jacksonville, the Union was putting the finishing touches on an effort to establish that Emancipation and the arming of black soldiers were aligned with the highest humanitarian ideals of the age. The very project that threatened to cause a conflagration across the South helped spark the modern laws of war.
Simply as Men
THE CONFEDERACY HAD no need to produce a new chapter in the laws of war. Their aim was not to transform those laws but to embrace them in the form they had taken since the earliest days of the republic.
Within days of the firing on Fort Sumter, Confederate president Jefferson Davis proclaimed his commitment to “the usages of civilized warfare” as they had been understood since the War of Independence. Davis and the Confederate Congress championed broad rights for neutral shipping and affirmed the old American principle that free ships made free goods. They attacked the Union’s blockade as an unlawful paper blockade and adopted the general principles of the 1856 Declaration of Paris, except for its ban on privateering. After southern privateers began to seize Union vessels on the seas, Davis and his administration gleefully mocked the Union’s sudden and transparently self-interested about-face on the Declaration’s privateering provisions.
With more bitterness than glee, Confederate statesmen also excoriated the Union for its treatment of private property on land. After Lincoln signed the first Confiscation Act into law in August 1861, the Confederate Congress announced that the Union had “departed from the usages of civilized warfare” by “confiscating and destroying” Confederate property whether “used for military purposes or not.” The South’s retaliatory Sequestration Act ultimately scooped up more property than the Union’s confiscation legislation ever did. But the South only seized and held Union property in reprisal for Union confiscations and as security to ensure that Confederate citizens were indemnified for their unlawful losses.
All of this aligned the South with a long American tradition of limits on war’s destruction. When Lincoln decided to prosecute southern privateers as pirates, Jefferson Davis had virtually stood in the shoes of George Washington outside Boston demanding that the British treat his men as soldiers instead of as criminals. Davis wrote to Lincoln that it was “the desire of this Government so to conduct the war now existing as to mitigat
e the horrors as far as may be possible.”
The Confederate position on emancipation and the arming of slaves followed easily from its embrace of long-standing American views on the laws of war. As early as June 1862, southern whites wrote to Davis to demand that the Confederate Army deny prisoner of war status to black Union soldiers and treat them instead as slaves engaged in a criminal uprising. In August, in response to early efforts to recruit black regiments in the Department of the South and the Department of the Gulf, authorities in Richmond ordered that Major General David Hunter and Brigadier General John W. Phelps “be no longer held and treated as public enemies of the Confederate States, but as outlaws.” In the weeks after Lincoln announced Emancipation in September 1862, members of the Confederate Congress introduced bills that would have treated Union officers as agitators inciting slaves to rebellion and thus as criminals, not soldiers. By the end of the year, Jefferson Davis announced that armed “negro slaves” and the commissioned officers found serving with them would be delivered to state authorities for prosecution.
THE CONFEDERACY HAD simply reproduced the views of American statesmen from Jefferson and John Quincy Adams to Franklin Pierce and William Marcy. But as Emancipation approached, and as the Union moved rapidly toward arming black soldiers, Lincoln enjoyed no such luxury.
One alternative that crossed Lincoln’s mind was to revisit the decision to apply the laws of war to the conflict with the South. In setting up the blockade and in abandoning the privateering trials, Lincoln had backed his way into treating the South as entitled to the basic rights of the laws of war. But as the Confederacy threatened to abandon the rules of civilized warfare in retaliation for Emancipation, some thought the only sensible response was to insist that it was the slaveholders who were savage violators of the basic standards of civilization.
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