by James Oakes
Trumbull’s amendment passed in the Senate, overwhelmingly, by a vote of 33 to 6. The conservatives had now failed three times. They could not block passage of Lovejoy’s resolution declaring that Union soldiers had no business returning fugitive slaves. They could not secure passage of the Vallandingham and Powell resolutions renouncing military interference with slavery in the seceded states. Nor could they muster even a slim Senate majority to oppose Trumbull’s amendment. The Republicans were now on record unambiguously in favor of emancipating slaves used in support of the rebellion.
THE CRITTENDEN-JOHNSON RESOLUTION
Desperate to slow the march of radicalism, conservatives came back with another resolution. The brainchild of Kentucky Congressman John Crittenden, who introduced it in the House, it was sponsored in the Senate by Andrew Johnson of Tennessee. The Crittenden-Johnson resolution had essentially two parts. The first blamed the war on the South. The “present deplorable civil war,” it declared, “has been forced upon the country by the disunionists of the southern States.” The second part denied that the war was being “waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institution of those States.” The sole purpose of the war was “to defend and maintain the supremacy of the Constitution and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired.”33 On the surface this seemed no different from the Vallandingham-Powell resolutions Congress had already rejected.
In fact, the Crittenden-Johnson resolution was much more circumscribed. Rather than declare that the Union army had no business interfering with slavery, it declared only that the overthrow of slavery was not the “purpose” of the war. This made the resolution an empty gesture, for even radicals agreed that the Constitution did not allow the federal government to prosecute a war for the “purpose” of abolishing slavery. They argued instead that emancipation would be the effect—even the desirable effect—of a war whose purpose was to restore the Union. Moderate Republicans likewise embraced military emancipation while freely acknowledging that the purpose of the war remained what it had always been. Up and down the line, Republicans responded to the Crittenden-Johnson resolution by insisting that it was not the “purpose” of the war to interfere with slavery in the seceded states. Lincoln had said it in his inaugural address. Republican editors swore it in their columns. Senator James Lane said it, even as he exulted in the prospect of a slave “insurrection” as the Union forces marched through the South. There was no way to stop emancipation from happening, Lane argued, and yet “I disavow any intent upon the part of the Government or the Army to war against the institution of slavery.”
Several Republicans made exactly this point when Johnson introduced the resolution in the Senate. “If slavery shall be abolished, shall be overthrown as a consequence of this war, I shall not shed a tear over that result; but sir, it is not the purpose of the Government to prosecute this war for the purpose of overthrowing slavery. If it comes as a consequence, let it come; but it is not an end of the war.” New Hampshire Senator Daniel Clark agreed. He would vote for the resolution, he told his colleagues, secure in the conviction the “we should use all the means which have been put into our power to compel the rebels to submit to the Government.” He was “ready” to endorse emancipation, Clark said, but he was also “willing to pass this resolution as it is, without amendment.” Senator Hale of New Hampshire reminded his colleagues that antislavery leaders had always understood and acknowledged that the federal government had no authority to abolish slavery in the southern states. Nothing had changed. No opponent of slavery objects to the Crittenden-Johnson resolution, Hale argued. His hatred of slavery, his desire to see it abolished, his belief that the war would lead to its abolition—notwithstanding all of this, Hale still insisted that the “purpose” of the war was not to interfere with slavery, but to restore the Union. Accordingly, Republicans in the House joined in a nearly unanimous vote of 117 to 2 in favor of Crittenden’s resolution.34
The day after Crittenden introduced his resolution in the House, Republicans in the Senate overwhelmingly endorsed Trumbull’s emancipation amendment. Conservatives realized that Republican support for the Crittenden-Johnson resolution was essentially meaningless. In fact, some of them had their own reasons for opposing it. Kentucky Senator John Breckinridge complained that the first part of the resolution blamed the war solely on southern disunionists, when in his view northern antislavery fanatics deserved most of the blame.35 Accordingly, conservatives asked that the resolution be divided so that they could vote against the first part. They would, of course, support the rest of the resolution stating that the “purpose” of the war was neither the abolition of slavery nor the “subjugation” of the South but merely the restoration of the Union. This stance only succeeded in further inflaming the moderate Republicans.
Senator John Sherman was infuriated by Breckinridge’s remarks, and in a stinging rebuke he not only denied that the war was caused by disunionists in the North, but also explained why he had no trouble voting for the resolution after having voted in favor of Trumbull’s emancipation amendment. The Crittenden-Johnson resolution, Sherman explained, is a mere statement of “what is literally true.” The war was commenced by southern traitors. It “was never commenced, it was never prosecuted, with any idea of interfering with the domestic relations of the southern states. . . . It was prosecuted simply for the purpose of maintaining the Government.” As for Trumbull’s emancipation amendment, Sherman went on, “I have but this to say: if a slave is used by his master in the actual prosecution of the war, that slave ought to be freed; the master ought to forfeit all right to him.” Does Senator Breckinridge deny this? Sherman asked.36
One after another, Republicans lined up in agreement. Senator Breckinridge complains that the Trumbull amendment “will accomplish the universal emancipation of the slaves in America,” Orville Browning declared. “If it shall be so, if this war results in any such consequence, the responsibility of it is not upon us.” The traitors of the South threaten to use their slaves to prosecute their “nefarious” rebellion. “Just let them carry their threats into execution,” Browning declared, “and for one I will assail the institution of slavery wherever it exists, through every avenue by which it can be reached, and with every weapon by which I can strike it.”37 A few minutes later Browning cast his vote in favor of the resolution. Thoroughly disgusted, Breckinridge soon resigned from the Senate and defected to the South to become a Confederate general. Conservatives were right; as a barometer of the strength or weakness of Republican support for military emancipation, the vote on the Crittenden-Johnson resolution was meaningless.
“THERE WAS NO NECESSITY”
One of the things Breckinridge most despised about the Republican distinction between the purpose and the consequence of the war was that it seemingly freed supporters of emancipation from any obligation to justify freeing slaves “upon constitutional grounds.” You get up and call us traitors, Breckinridge complained, yet we stand on firm constitutional principles while all you do is declare emancipation a “necessity.” Follow the logic of “necessity” to its inevitable conclusion, Breckinridge warned, and you end up at military despotism. There are no limits to “military necessity”; it could be used to justify anything. Even before the fate of slavery came up for debate, Breckinridge was protesting the extraordinary actions Lincoln had taken on his own—calling out a huge army, spending millions of federal dollars, initiating a blockade of southern ports, and suspending habeas corpus in parts of the North. “What is the excuse; what is the justification; what is the plea?” Breckinridge demanded. “Necessity? I answer, first, that there was no necessity. . . . I deny this doctrine of necessity. I deny that the President of the United States may violate the Constitution upon the ground of necessity, and his decision not to be appealed from, the will of one man for a written constitution.”38 Under
the doctrine of “necessity,” conservatives warned, a tyrant could do whatever he pleased.
A tyrant could free slaves, for example. Breckinridge could not help noticing that congressional Republicans were already invoking the doctrine of military necessity to justify the destruction of slavery. He took particular exception to one of the confiscation bills that had been introduced and sent to the Judiciary Committee for consideration, this one entitled a “Bill to suppress the slaveholders’ rebellion.” It called for the emancipation of slaves used in the rebellion and for the enlistment of freed slaves into the Union army. “It is not only a congressional act of emancipation,” Breckinridge fumed, “but it is intended to arm the slaves against the masters. It is not only to confiscate the whole property, but it is to foment a servile war.” When Michigan Senator Kingsley S. Bingham declared that he had no objections to the title of the bill, Breckinridge asked whether he was “in favor of freeing the slaves in the seceded states.” Bingham responded without hesitation. “If it be a necessity,” he said, “I am.”39
Republicans responded to charges of tyranny by pointing out that the laws of war were embedded within the Constitution and were therefore subject to its checks and balances. Precisely because the laws of war were unwritten, it was up to Congress to determine their reach as well as their limits. Things that were illegal under the peacetime Constitution were perfectly legal under the laws of war, Senator Edward Baker of Oregon argued, but it was up to Congress to specify what those things were. Emancipation, for example: under the laws of war the government acquired the power to emancipate the slaves of belligerents. Trumbull was adamant on this point. Not only was emancipation justified under the laws of war, he argued, but because these laws were embedded within the Constitution, military emancipation was therefore fully constitutional. In the Senate this discussion was brief. There Republicans were primarily concerned to show that by invoking the laws of war, Congress was ensuring that the military could not become the agent of executive tyranny but was instead legally subordinated to civilians in the legislative branch of government.
A more wide-ranging discussion took place in the House, where the debate over the confiscation bill was bound up with the debate over the laws of war. On August 2, the House Judiciary Committee sent to the floor a confiscation bill that was virtually identical to the Senate’s. Everyone understood that Section 4 was an emancipation provision. Burnett interpreted it to mean that the use of any slave “by authority of the owner, in any mode which will tend to aid or promote this insurrection, will entitle that slave to his freedom.” Bingham did not dispute this: “Certainly it will.”40 In short, everyone agreed that the legislation before the House was designed to free slaves. The issue was now squarely joined. Did Congress have the power to pass such a law?
Conservatives were emphatic that the answer was no. It “has been conceded in all time,” Crittenden pointed out, that no branch of the federal government had the power “to legislate upon the subject of slavery in the States.” If this is true in peacetime, he insisted, so must it be true in war. But was Crittenden right? Republicans believed that although the seceded states remained under the Constitution, they had nevertheless forfeited the protection of the Constitution when they rebelled. Was this not precisely the condition prescribed by the laws of war? In the face of insistent Republican questioning, Crittenden evaded the issue of what the government could do under the laws of war. Finally, he admitted what was really bothering him. The “laws of war,” he suggested, were merely a pretext being used by Congress “to insinuate our jurisdiction” over slavery in the southern states. Trumbull’s amendment had nothing to do with property confiscation upon conviction of treason, Crittenden noted. It was designed to emancipate slaves, and its supporters were using the laws of war as an excuse.41
Crittenden had a point. It requires very little digging in the corpus of Republican speeches and editorials to come up with a treasure trove of hatred for slavery. But at that point no Republican senator or representative—not even Charles Sumner—was going to stand up in Congress and declare that the federal government could abolish slavery simply because slavery was despicable, no matter how despicable he thought slavery was. Antislavery activists had devoted decades to the formulation of careful constitutional arguments about precisely where and under what circumstances the federal government could attack slavery. The doctrine of “military necessity” was crucial to the legitimacy of their politics. That much every Republican understood.
Yet their opponents raised a serious issue when they wondered if there were any limits to the war powers Republicans were invoking. The most respected legal authorities—Joseph Story, for example, and now Lyman Trumbull—had always been careful to insist that the war powers clause brought the law of nations into the Constitution. But this created the legal anomaly of extra-constitutional powers that were somehow constitutional. During the debate in the House, Thaddeus Stevens insisted that the laws of war allowed the government to do things that would otherwise be considered unconstitutional, and that “constitutions, if they stood in the way of the laws of war in dealing with the enemy, had no right to intervene.” In the face of sharp criticism from several of his congressional colleagues, Stevens stood his ground. He was not saying the Constitution be damned in time of war; he was merely noting that in wartime the government was allowed to do things it could not constitutionally do during peacetime. This has been true from “the days of Cicero . . . down to the present time.” Stevens freely admitted “that if you were in a state of peace you could not confiscate the property of any citizen. You have no right to do it in time of peace, but in time of war you have the right to confiscate the property of every rebel.” Stevens also believed that under the Constitution the executive and legislative branches shared the power to invoke the laws of war. The president could not do it alone, Stevens believed; he needed congressional authorization to do so.42
Most important, Stevens offered a justification for emancipation implied by Emmerich de Vattel in his classic study, The Law of Nations. “[T]o deliver an oppressed people is a noble fruit of victory,” Vattel had written, but it was also “a valuable advantage gained, thus to acquire a faithful friend.” Stevens interpreted Vattel’s words as sanctioning the emancipation of slaves held by an enemy. “If it be a just war, and there be a people who have been oppressed by the enemy and that enemy be conquered,” Stevens explained, “the victorious party cannot return that oppressed people to bondage from which they have rescued them.” Accordingly, Stevens argued, “one of the most glorious consequences of victory is giving freedom to those who are oppressed.” And once the slaves had been “rescued” from their oppression, they could never be returned to slavery. “God forbid,” he declared, “that I should ever agree that they should be returned to their masters!”43
Stevens made the strongest case for emancipation under the laws of war, yet even for him this did not alter the purpose of the war. “Our object,” he explained, was still “to subdue the rebels.” If “in order to save this Union from destruction” the North had to free every slave, lay waste to the entire South, make the entire region into a desert, Stevens said, well then “so let it be.” Stevens would not say that the war had reached the point where the complete destruction of slavery was absolutely necessary for the restoration of the Union. But if the war continues, he warned, the time will come when the northern people will not sit by and watch their sons and husbands go to their deaths while their government held back and refused to use every means at its disposal to subdue the rebellion.44
For all his rhetorical radicalism, Stevens had presented a thoroughly mainstream Republican argument. From the earliest months of the war, Republicans in both the Senate and the House justified emancipation as a “military necessity” under the laws of war. In times of peace the Constitution did not allow the federal government to interfere with slavery in any loyal state, but in wartime a different set of rules came into play, rules based on the law of natio
ns. No one argued that under the laws of war anything was justifiable. However, Republicans did agree that the states that had seceded from the Union had forfeited the Constitution’s protection and entered into a state of war. In those states, no Republican doubted, emancipation was justified as a “military necessity.” This was the premise of the First Confiscation Act.
EMANCIPATION, IMMEDIATE AND UNCOMPENSATED
The most consequential criticism to emerge from the House debate was that Trumbull’s amendment looked like legislative rather than military emancipation. Conservatives such as Henry Burnett noted that because slaves were “discharged from service” as they ran to Union lines, the confiscation bill “amounts to a wholesale emancipation of the slaves in the seceding or rebellious states.” Some representatives thought it did not clearly specify that only slaves used by the Confederate military were emancipated. Lincoln was likewise concerned that the confiscation bill would be interpreted as a general rather than a strictly military emancipation. That was not what Trumbull or anyone else had in mind. Bingham argued that although the bill would emancipate slaves owned by traitors, it was neither written as nor intended to be read as a general emancipation of the slaves. “By the express words of the act it is limited,” he said. Even in the midst of his reverie about universal freedom, Thaddeus Stevens had been quick to check himself: under the laws of war he would emancipate any slave “belonging to a rebel, recollect; I confine it to them.”45
