by James Oakes
Frémont also ordered the emancipation of all slaves owned by rebellious masters. The Confiscation Act signed by the president a few weeks earlier applied only to those slaves used in support of the rebellion, although the War Department’s implementation instructions freed all slaves coming voluntarily within Union lines. Frémont’s order would have emancipated the slaves of “all persons in the state of Missouri who shall take up arms against the United States”—whether or not they had allowed their slaves to be used in support of the rebellion and regardless of whether the slaves were inside Union lines. In theory Frémont’s edict would have freed more slaves than the Confiscation Act, but fewer perhaps than the War Department’s August 8 instructions implementing the law.13
On September 3, four days after Frémont declared martial law in Missouri, Lincoln wrote him a brief, private note urging the general to “modify” his order to conform to the Confiscation Act. That should have been the end of it. Instead, Frémont arrogantly refused to do what Lincoln asked unless directly ordered to do so. On September 11, Lincoln bowed to Frémont’s wishes and ordered him to modify his proclamation. The president “perceived no general objection” to martial law, property confiscation, or emancipation. He did worry, however, that if Union generals began shooting Confederate prisoners, the Confederates would retaliate by shooting Union prisoners, “and so, man for man, indefinitely.” Accordingly, Lincoln told Frémont not to order any executions “without first having my approbation or consent.” Nor was Lincoln opposed, in principle, to confiscating the property and emancipating the slaves of “traitorous” owners. But Frémont’s order did not establish the judicial procedures that Congress had established for the confiscation of rebel property as spelled out in the first section of the Confiscation Act, nor did it specify the scope of emancipation called for in the fourth section of the Confiscation Act. Frémont’s order “appeared to me objectionable,” Lincoln explained, “in its non-conformity to the Act of Congress passed the 6th of last August.” Lincoln therefore ordered Frémont to “modify” his order “so as to conform to the first and fourth sections” of the Confiscation Act passed by Congress a few weeks earlier.14
It was a relatively modest request, but it was based on objections far more substantive than Lincoln was prepared to spell out to the general himself. Most seriously, Frémont was making political decisions that were not properly the province of the military—or as the president put it, the general’s order was “not within the range of military law, or necessity.” This was true of both the property confiscation and the emancipation orders. Lincoln understood that under the laws of war a commander could, if he “finds a necessity,” seize enemy property and use it for “as long as the necessity lasts.” But military law did not allow a general to determine the ultimate disposition of property once the necessity ended. It was a well-established constitutional principle that property confiscated for treason could not be withheld from the traitor’s heirs, for that would work “corruption of blood.” In other words, Frémont’s order violated the constitutional ban on attainder. Similarly, under the laws of war, army officers could impress slaves as a military necessity, but they had no authority to determine the ultimate status of the slaves they impressed. That was a political question, Lincoln pointed out, one that “must be settled according to laws made by law-makers, and not by military proclamations.” Frémont’s order was therefore not military but “purely political” and as such beyond his authority. Congress was perfectly within its right to pass a law confiscating the slaves of all disloyal masters, Lincoln explained, and if he were a member of Congress he might well vote for it. But it was for lawmakers not generals to decide the “permanent future condition” of the slaves. Generals cannot make such decisions. Frémont’s proclamation “is simply ‘dictatorship,’ ” Lincoln added. “It assumes that the general may do anything he pleases.” As a legal issue, the dispute between Frémont and the president was not about slavery; it was about civilian rule.15
Lincoln’s gravest concerns, however, had less to do with the sanctity of civilian rule in Missouri than with the integrity of the Union in Kentucky.
THE INVASION OF KENTUCKY
On September 1, two days after Frémont issued his decree, Joshua Speed wrote to his old friend Lincoln warning of the dire consequences Frémont’s order would have in Kentucky. Speed’s letter could not have reached Washington by the time Lincoln wrote his first note to Frémont on September 3. But when the president wrote his second letter to the general, on September 11, things had changed considerably. The southern army, hoping to rally popular support that would bring the state into the Confederacy, had invaded Kentucky on September 3. Under the circumstances, Kentucky unionists became alarmed that news of Frémont’s emancipation edict would dampen support for the North. The danger of Frémont’s order was not that it would free slaves in Missouri, but that it would bolster secessionists in Kentucky.
Kentucky voters had been divided over secession, and as in Maryland and Missouri, geography told some of the story. Not all of Kentucky was slave country. The mountainous eastern counties had few slaves and many devoted unionists, as did Louisville—a prosperous Ohio River city with a growing immigrant population and strong economic ties to the North. Unlike Maryland and Missouri, however, Kentucky slaves were not concentrated in certain counties or along the river bottoms but were instead spread broadly over the countryside on farms that were relatively small by the standards of the cotton belt. To be sure, there was little opposition to slavery in Kentucky and considerable sympathy with the southern cause. As in Maryland, the most ardent southern sympathizers, like John Breckinridge, ended up defecting to the Confederacy, and thirty-five thousand Kentuckians eventually did the same. But unionism—even if it was proslavery unionism—was stronger than secessionism. Seventy thousand Kentuckians would fight for the North. The ingredients for a Missouri-style internal collapse were there—a secessionist legislature flew the Confederate flag at Russellville—but the mixture wasn’t nearly as combustible. The Union commander, Major General Robert Anderson (of Fort Sumter fame), was patient where Nathaniel Lyon had been aggressive. Kentucky’s Governor Beriah Magoffin was a southern sympathizer, but he was no Claiborne Jackson. And far from preparing for war, Kentucky’s legislature was determined to maintain the state’s neutrality.16
For five months northern and southern troops had fitfully respected Kentucky’s neutral status. Kentucky families were torn apart by divided loyalties, Confederate armies brutally suppressed unionists in the eastern mountains, but Kentuckians did not make war on each other the way Missourians did. No Union troops marched provocatively through Kentucky as they had through Maryland. General Anderson had been careful to keep his Yankee regiments across the Ohio River in Cincinnati, safely removed from Kentucky soil. In June of 1861, Kentucky voters went to the polls and elected a slate of unionists to represent their state in the special session of Congress scheduled to convene in July. But if Kentuckians thought they had succeeded in avoiding the war, they were soon disabused. By late August the signs were everywhere that the state’s neutrality was untenable. Union forces were converging on Cairo, Illinois, in preparation for an assault on Columbus, Kentucky. In Tennessee a large Confederate army was amassing for the same purpose. Kentucky was about to be invaded, and everybody knew it.17
Imagine what the Border States must have looked like to Lincoln in late August and early September as he watched anxiously from Washington. In Missouri, Confederate General Sterling Price, flush with his victory over Union forces at Wilson’s Creek a few weeks earlier, was hurtling northward unimpeded with his fifteen thousand troops preparing to lay siege to Lexington. Huddled inside his mansion fortress in St. Louis, Frémont was paralyzed even as Missouri seemed on the verge of collapse. In Maryland it took the heavy hand of Union troops to check the secessionist sympathizers in the state legislature. Meanwhile, Confederate forces were preparing to march into Kentucky from Tennessee. If any one of the Border States
fell into the Confederacy, the rest might topple out of the Union like dominoes, and the war would be lost. That’s when the South invaded Kentucky. In early September Confederate General Leonidas Polk moved his troops into the state and occupied Columbus, strategically situated on the Mississippi River at a terminus of the Mobile & Ohio Railroad. Polk and Confederate leaders in Richmond, including President Jefferson Davis, were confident that with its 225,000 slaves, Kentucky’s interest lay with the Confederacy.
It was the imminent Confederate invasion that prompted the letters from Kentucky condemning Frémont’s order in Missouri. Frémont’s “foolish” proclamation “will hurt us in Ky.,” Speed wrote to Lincoln. With the Confederates preparing to attack, Kentucky was already in a state of high military alert; at the very moment Union commanders were trying to organize Kentucky regiments to fight for the North, Frémont’s order threatened to “crush out every vestige of a union party in the state.” More dire warnings followed. Frémont’s order “will be condemned by a large majority of Legislature & people of Kentucky.” “We are much troubled about Frémont’s proclamation,” came another complaint from Frankfort. The “power and fervor of the loyalty of Kentucky” might “at this moment be abated or killed” by Frémont’s proclamation, warned Joseph Holt. But the most disturbing message of all was the one General Anderson sent. While busily raising troops to repel the Confederate invasion, Anderson became alarmed by reports that an entire company of soldiers “threw down their arms and disbanded” upon learning of Frémont’s proclamation. Anderson predicted that if the emancipation order was not “immediately disavowed and annulled, Kentucky will be lost to the Union.” Here was the thing that most concerned Lincoln—that Kentucky would be “lost to the Union.”18
In Lincoln’s mind the issue was this simple: if Kentucky secedes, the North cannot win the war. The president was therefore especially alarmed by Anderson’s report. Arms sent to Kentucky for the defense of the Union “would be turned against us,” Lincoln concluded, if Frémont’s orders were allowed to stand. Lincoln did not doubt that many northerners supported Frémont despite the illegality of his edict. But what good would that do if it led to the complete dissolution of the Union, which was bound to happen if Kentucky seceded? “I think to lose Kentucky is nearly the same as to lose the whole game,” Lincoln explained. “Kentucky gone, we can not hold Missouri, nor, as I think, Maryland. These all against us, and the job on our hands is too large for us. We may as well consent to separation at once, including the surrender of this capitol.”19
As it turned out, there was less cause for alarm than Lincoln feared. The half dozen or so Kentucky protests against Frémont were mere squawks compared to the howls Kentuckians aimed at Confederate authorities in Richmond. Jefferson Davis had badly miscalculated. Far from welcoming the southern troops as liberators, “the people of Kentucky are profoundly astonished that such an act should have been committed by the Confederate States.” Both houses of the Kentucky legislature endorsed resolutions “requiring [the] governor of Kentucky to issue [a] proclamation ordering off Confederate troops.” Southern leaders were stunned. General Polk felt compelled to draft a defensive response justifying the Confederate action. Tennessee’s governor warned that the invasion of Kentucky was a disaster for the Confederate cause, and urged “immediate withdrawal.” Authorities in Richmond scrambled to undo the damage. Confederate troops under General Gideon Pillow were ordered to withdraw from Kentucky on the grounds that the movement was “wholly unauthorized” by Richmond. Davis explained that the invasion was a purely “defensive measure” prompted by military necessity and would be “limited by the existence of such necessity.” Politically, the Confederate invasion had backfired.20
But so did Lincoln’s order modifying Frémont’s proclamation. When Illinois Senator Orville Browning saw what the president had done, he shot off a blistering rebuke. A week earlier Browning had scribbled a telegram to Lincoln saying that “Fremont’s proclamation was necessary, and will do good.” Excitable by nature, Browning grew more heated as the days passed. It was true, he wrote, that there was “no express, written law, authorizing” what Frémont had done. But “war is never carried on, and can never be, in strict accordance with previously adjusted constitutional and legal provisions.” Why, he asked, are you willing to shoot disloyal masters but not free their slaves? “Is a traitor’s negro more sacred than his life?” Whatever the order had done to calm down the slaveholders in Missouri and Kentucky, it had done much to upset the loyal men and women of Illinois.21
Browning’s notes were but early warnings of the blizzard of protests provoked by Lincoln’s order to Frémont. Even before word of the president’s action was made public, an Iowa citizen warned Lincoln that the rumor that Frémont’s proclamation “is not to be sustained . . . causes extreme dissatisfaction—If true it will suspend volunteering.” Caleb Smith, Lincoln’s interior secretary, got the same warning: If Frémont “is abandoned by the administration the people will take him up & will abandon the war. The feeling is intense in this direction.” When the rumors were confirmed with the public release of the president’s order to Frémont, the cloud finally burst and a storm of angry letters poured in from across the North, most of the ire directed at Lincoln. Frémont’s repudiation “will produce such a shock to the present energy of the western army, as will almost paralyze it,” an Indiana man wrote. Frémont’s proclamation was “the very thing to save our Government,” wrote a Union soldier from Illinois, whereas Lincoln’s order “to Countermand a part of his proclamation Seems to be a Death blow to Our freedom and Independence.” A group of Michigan citizens “resolved that we fully approve of the recent Proclamation of Major General John C. Frémont confiscating the slave property of rebels in Missouri.” Thomas Little swore that he had never been an abolitionist, but he was “one of thousands who have changed views very much,” he explained in his letter to the president, “& I just want to say that your letter to Gen Fremont in regard to his proclamation will occasion great dissatisfaction to multitudes of us.” J. C. Woods was more blunt: “Either Fremonts proclamation or the South will win. Take your choice.” From Kalamazoo, Michigan: “You can heardly imagine the thrill of pain that you have sent through many Christian hearts, by revoking that ritcheous proclamation of Gen. John C. Fremont. . . . The rebellion can never be put down till slavery is uprooted.” From Illinois: “Had you a Brother in Mo. as I have . . . I think you would feel that Freemont was all right—I do earnestly pray God to forgive you.” And so on. These were not the complaints of a handful of radicals; they appear to have come from across the Republican spectrum—from church and civic groups, for example, and from conservatives like Browning. As evidence of what Lincoln had done, or of his sentiments regarding emancipation, the letters tell us almost nothing. As testimony of the depth of emancipationist sentiment in the North, however, they are extremely revealing. Whatever else Lincoln was doing about slavery in the first eighteen months of the war, he was not waiting for public opinion to catch up with him.22
For all the accolades he won from outside of Missouri, Frémont’s support among unionists inside the state continued to plummet. Demands for his ouster had begun arriving weeks before his proclamation, and they did not stop after it. The most devastating attacks came from antislavery Republicans, like Salmon Chase and David Hunter, some of whom had once been among Frémont’s staunchest supporters. Frank Blair Jr. had written from Missouri, urging Lincoln to dismiss Frémont as early as September 1. Back in Washington, Postmaster General Montgomery Blair took up the anti-Frémont cause. He singled out Frémont’s emancipation edict as “the best thing of the kind that has been issued but should have been issued when he first came when he had the power to enforce it & the enemy no power to retaliate.” It was also in Blair’s view an exception to Frémont’s otherwise disastrous administration. Both Blairs had come to the conclusion that Frémont’s administration was so corrupt and incompetent that he had to be fired. When Lincoln sent David Hun
ter (who would later issue an even broader abolition order of his own) to investigate the charges, he wrote back confirming the worst: Frémont was inaccessible, dictatorial, and surrounded by toadies and corruptionists. “You may be very sure that if Genl F. is recalled from his high command,” Salmon Chase wrote to an Ohio friend in early November, “his Proclamn. will not be the cause.” However good “in itself,” Chase explained, Frémont’s order “was an act of insubordination.” Chase’s antislavery credentials were impeccable, and he was arguably more committed to abolition than anyone else in the cabinet. Yet merely “declaring the slaves of rebels free, frees nobody,” Chase argued. In any case, if Frémont were to be fired, it would be for incompetence, not for favoring emancipation. Lincoln waited to give Frémont one more chance to redeem himself by beating back the Confederate military invasion, but when he failed at that, the president finally relieved the Pathfinder of his command.23
