Freedom National: The Destruction of Slavery in the United States, 1861-1865

by James Oakes

  The Bates ruling was later overshadowed by the Civil Rights Act of 1866, in which Congress legislatively recognized black citizenship, and by the Fourteenth Amendment, which enshrined national, color-blind citizenship in the Constitution. During the war, however, the attorney general’s ruling was widely hailed by abolitionists, radical Republicans, and African Americans, as a fundamental repudiation of “Dred Scottism” and a major step toward civic equality for blacks. In August of 1863, a group of black soldiers at Morris Island, South Carolina, drafted a set of resolutions praising three specific actions taken by the federal government: the Emancipation Proclamation, the effort to purchase and free all slaves in the Border States, and “the decision of Attorney-General Bates.” In January of 1865, blacks in New Orleans formed the Equal Rights League, whose convention denounced the “difference between ‘citizens of the United States’ (as we are recognized by Attorney General Bates), and ‘citizens of Louisiana’ (that we are not according to the laws now in force).” The petitioners demanded that the state adopt Bates’s more expansive definition of blacks as “citizens of the United States.”30

  National citizenship for whites and blacks alike is often viewed as one of the most important consequences of emancipation, and there is an important element of truth in that. Bates, though, issued his citizenship opinion before the Emancipation Proclamation was released, and it is reasonable to conclude that he did so to establish the legal basis for the president’s claim that once emancipated, slaves were “forever free.” National citizenship for blacks may have been less a consequence than a precondition for permanent emancipation.

  BATES’S CITIZENSHIP RULING ALSO cleared the way for Lincoln’s announcement, toward the end of the Emancipation Proclamation, that as of January 1, 1863, blacks “will be received into the armed service of the United States.” Lincoln could not have made that announcement at the beginning of the war, first because Congress had to repeal the racial exclusion that had always reserved enlistment in the Union army to white males, and second because the citizenship of black men had to be established. Since the late eighteenth century, enlistment in the Union army was legally linked to citizenship. If black men were not citizens, they could not enlist.

  The Militia Act of 1792 restricted service in the army to “every free able-bodied white male citizen.” Northern states generally recognized blacks as citizens but they still often excluded black citizens from their own militias. Because the U.S. Army drew its regimental strength from the state militias the 1792 restrictions meant that from the earliest years of the nation’s founding black men were legally barred from enlisting in the army. In the Dred Scott decision of 1857 Chief Justice Taney pointed specifically to this long history of racial exclusion in the military to reinforce his claim that blacks were not and never had been citizens. He quoted the 1792 statute as proof that “none but white persons are citizens.” He pointed to state laws that likewise restricted the militia to “free white citizens.” By Taney’s legal reasoning the all-white army demonstrated that blacks were “not permitted to share in one of the highest duties of the citizen.” When the Civil War began, both whiteness and citizenship remained conditions for enlistment in the U.S. Army.31

  The Militia Act of July 17, 1862, removed the words free and white from the qualifications for enrollment in the militia. Instead of “free able-bodied white male citizens,” the new law authorized the president to open enlistment to all “able-bodied male citizens.” The racial exclusion was thereby removed along with the ban on enlisting slaves, but citizenship remained a qualification for military service. The statute made no mention of black citizenship, and perhaps for that reason Lincoln’s Preliminary Proclamation of September 22 made no corresponding mention of black enlistment. In the hundred-day interim between the preliminary and the final proclamation, however, Bates issued his opinion that blacks were citizens of the United States and that U.S. citizenship took precedence over state citizenship. Emancipated men thereby met the standard of the recent Militia Act and were now eligible for military service. Indeed, citizenship soon made black men available for conscription as well. On March 3, 1863, Congress enacted a national “enrolling” law—a military draft—making “all able-bodied male citizens” eligible for the draft. Within weeks the Union army began sporadically “impressing” slaves directly into the army, for with freedom they became citizens and with citizenship came the obligation to military service. Once again citizenship, often viewed as a reward for black military service during the Civil War, was more likely the necessary precondition for such service. Without the attorney general’s citizenship ruling, Lincoln would have had no legal basis for authorizing black enlistment one month later. Like the natural-law principle of fundamental human equality, black citizenship was another of the hidden assumptions embedded in the Emancipation Proclamation.32

  THE EXEMPTIONS

  One full paragraph of the Emancipation Proclamation was devoted to a tedious recitation of the areas exempted from it. In a sense this paragraph was the reason there was any need to issue a proclamation. Congress had already made universal emancipation in the rebellious states the de facto policy of the federal government. In Republican minds the distinction between freeing the slaves of all rebels and freeing slaves in all rebel areas was essentially meaningless, since virtually all slaveholders in the Confederacy were believed to be rebels. Both the First and Second Confiscation Acts called for a presidential proclamation specifying the areas in rebellion. Throughout the congressional debates of mid-1862 Republicans sometimes spoke of freeing the slaves of all rebels and sometimes freeing slaves in all rebel areas—as if the two criteria were interchangeable. By proclaiming emancipation in all rebellious areas, Lincoln was not moving beyond what Congress expected, and some Republicans later complained that he had narrowed their intended scope.33 In any case the Second Confiscation Act required a presidential proclamation distinguishing the loyal areas from those in rebellion. In the closing months, even days, of 1862, Lincoln made concerted efforts to find out exactly which parts of the Confederacy qualified as “loyal” and were therefore exempt.

  Exemption meant only that an area was loyal, not that slavery was untouchable. Loyal areas were those that had sent duly elected representatives to Congress, but that was an unreliable guide to the progress of emancipation in any particular area. Slaves were already freed, for example, in several occupied parts of the Confederacy that were nevertheless covered by the proclamation. Emancipation had begun a year earlier in the Sea Islands, and by late 1862 it was already under way in western Mississippi as well as in Arkansas, but none of those areas were exempted because none had held legitimate elections that sent unionist representatives to Congress. On the other hand, slaves were being emancipated in several of the areas that were exempted, such as southern Louisiana and western Tennessee, both of which were represented in Congress by unionists. The day before he issued the Emancipation Proclamation Lincoln signed the West Virginia statehood bill, which required abolition as a condition for admission to the Union. Yet the entire state was exempted. Even in theory the exemptions in the Emancipation Proclamation did not correspond to the areas where slaves were or were not being freed. In practice exempted areas often felt the proclamation most immediately.

  Consider one example from Kentucky. There was “great excitement” among the slaves on Charles Hays’s plantation, sixteen miles from Louisville, when they “heard the news of Lincoln’s emancipation proclamation.” Just before the war began Hays had paid eleven hundred dollars for a young slave named Harry Smith, and it was Smith who several decades later recalled the events of January 1863. A number of “Union men” were passing by the Hays plantation and “enquired of the slaves if their master had set them free.” Fearing he would be arrested if he failed to let his slaves know of their freedom, Hays appeared one morning as the slaves were eating their breakfast. In a nervous, “uneasy” manner, he made the announcement. “Men and women hear me, I am about to tell you some
thing I never expected to be obliged to tell you in my life, it is this: it becomes my duty to inform you, one and all, woman, men and children, belonging to me, you are free to go where you please.” Hays then cursed Lincoln “for taking all you negroes away from me.” A “great jubilee” commenced on the plantation, but “Old Massa” got drunk and skulked off to his room while the slaves were “cheering Abraham Lincoln.” Bless the Lord, Aunt Bess exclaimed, “my children are all free.” The state in which she and Smith lived had been exempted from Lincoln’s proclamation, yet as of January in 1863 they were emancipated.34

  As Charles Hays was letting Harry Smith know that he had been emancipated by the president’s proclamation, J. Vance Lewis’s master was making a similar announcement farther South, on a sugar plantation in Louisiana. It was a Sunday morning early in 1863, and the master had called all the slaves together “at the big gate.” Unlike Hays back in Kentucky, “Mars Dunc” appeared the picture of the southern gentleman—erect, well groomed, wearing a long, gray Prince Albert coat that “added dignity to grace.” He spoke in a calm, fatherly voice. “Three days ago Abraham Lincoln, the President of the United States, issued a proclamation whereby you are made free men and women,” he explained. Some of the slaves, like Lewis, had been born and raised on the plantation and others had been purchased from different owners. “But now you are free to go anywhere you please,” the planter explained. He would not “drive” any of them away; he still needed people to continue the work. “You will be treated as hired servants. You will be paid for what you do and you will have to pay for what you get.” I am a poorer man than I have ever been, he admitted, but he was not a pauper and he would not turn his workers “a-loose in the world with nothing.” He gave ten dollars to each adult and two to every child, along with a month’s supply of food. “I hope you will be honest and industrious and not bring disgrace upon those who have brought you up,” he concluded. “Behave yourselves, work hard and trust in God, and you will get along all right. I will not hire anybody today, but tomorrow all who want to go to work will be ready when the bell rings.” As Lewis recalled the scene, “there was hardly a dry eye amongst us.” The next morning all two hundred of the freed men and women “reported for duty” when the bell rang. The fact that the plantation was located in a part of Louisiana that had been exempted from the proclamation made no apparent difference to Lewis’s owner.35

  Nor did exemption always make a difference to Union soldiers. Several months after Harry Smith had been freed in Kentucky and J. Vance Lewis in Louisiana, Union soldiers in the Eighth New York Artillery were gleefully helping slaves escape to freedom from another exempted state, Maryland. Sergeant Edmund Evarts’s captain had given orders for the company to pack up and prepare to leave Eastville for Baltimore. But the area “was full of negroes” and Evarts suggested to them that if they wanted to leave with the Union troops they should “run around Eastville, and fall in below the village.” Evarts’s suggestion set off a “skedaddling” among the slaves, and “over the fields they came in all directions.” It was a dark night so Evarts was able to slip the runaways onto the Union gunboat without the captain noticing. The next morning, when the owners arrived on the shore demanding the return of their slaves, the Union soldiers instead treated the whites to “a little mob law.” One Union officer announced that “he was no slave-hunter” and that the masters would have to recapture the slaves on their own, but only with the help of local authorities. “Smelling a rat,” the “secesh” had brought a sheriff with them, who proceeded to “make out the papers,” but the local authorities were no match for the Union soldiers. A burly corporal took hold of the sheriff, cried, “Rally!” and a dozen more Yankees sprang into action. They tossed the sheriff onto a blanket “and up he went into the air sprawling in all shapes.” Three times, up and down. Next came Mr. Jarvis, one of the slave owners, whom Evarts described as “a perfect specimen of a Virginia gentleman, too fine to look at a laboring man unless he was a black one.” Jarvis, too, was thrown onto the blanket “and up he went.” Just think, Evarts wrote, of a southern aristocrat “being tossed fifteen feet in the air, three times, by Union soldiers—northern mudsills.” Some slaves watched from nearby fields, “afraid to come.” The slave owners who were there to claim their runaways, however, “got no slaves.” Instead the Union gunboat left for “a pleasant ride to Baltimore” with fifteen “free men and women” on board.36

  It’s a familiar precept that things rarely happen in precisely the way law and policy dictate they should happen. The areas where these three incidents took place in 1863—Kentucky, Louisiana, and Maryland—were all exempt from the Emancipation Proclamation. There would always be some Union soldiers and officers, especially troops native to the Border States in which they served, who returned slaves to their owners long after policymakers had banned the practice. Kentucky troops, following the lead of Kentucky politicians, were ferocious in their determination to restrict emancipation to its narrowest possible reach. They captured, arrested, and re-enslaved fugitives from disloyal states until Lincoln’s adjutant general, Joseph Holt, declared it illegal, and Secretary of War Stanton ordered Union commanders in Kentucky to put a stop to the practice. Forced to recognize the conscription of their own slaves, Union troops from Kentucky nevertheless expelled the wives and children of black soldiers from their camps, sometimes sending the soldiers’ families to their deaths and outraging Republican editors and lawmakers. By 1865 something like legislative warfare pitted the Republican Congress against the Kentucky legislature. The cause of so much tension is clear: it was far more common for slaves to be freed by Union troops in areas that the proclamation explicitly exempted than in the areas it technically covered.

  Here was the “friction and abrasion” of war to which Lincoln had referred a year earlier in his warning to the Border States, and his warning suggests that the effect the proclamation had on exempted areas was not mere serendipity. Lincoln and the Republicans were already putting tremendous pressure on the exempted loyal slave states to abolish slavery on their own, and the Emancipation Proclamation dramatically increased that pressure. The policy was in many ways a success. Kentucky would never relent, but by the time the war ended, six states had abolished slavery—West Virginia, Maryland, Tennessee, Missouri, Louisiana, and Arkansas—and five of those six were exempted from the Emancipation Proclamation. Put differently, the exempted states were the most likely to abolish slavery before the Civil War ended.

  This is surprising only if you assume that by specifying so many exemptions, Lincoln restricted the reach of emancipation. But this ignores all that had happened before the Emancipation Proclamation and thereby obscures its true significance. The federal government had been emancipating slaves since the first summer of the war; for more than a year it had been pressuring the Border States to abolish slavery on their own. The proclamation increased the pressure on the Border States and extended emancipation into areas previously untouched by federal policy. And this raises the question Lincoln himself asked: How could he enforce a proclamation in areas over which he had no control?

  ENTICEMENT

  Shortly after issuing the Emancipation Proclamation the Lincoln administration lifted the ban on enticing slaves into Union lines. Unlike the enlistment of black troops, which was clearly announced in the proclamation, the new policy of deliberate enticement was only hinted at in Lincoln’s implicit invitation to slaves to run to Union lines where their freedom would be protected and maintained by the federal government. So obscure was this important policy shift within the proclamation itself that is has remained largely invisible. That’s why some people still say the Emancipation Proclamation “did not free a single slave.” Yet the new policy of enticing slaves was clearly enunciated in the unambiguous instructions flowing from the War Department to Union officers in the South beginning in early 1863. Whatever else it was, the Emancipation Proclamation was more than a paper threat. After January 1, 1863, military emancipation would be systemati
cally enforced in the disloyal states.

  As late as September in 1862, Lincoln’s personal secretary could describe the president’s emancipation policy in the same terms that had been in place for over a year. The government was “[n]ot to return to slavery those slaves who fall necessarily into our hands in the course of the war,” but Union soldiers were “not to entice them in, nor to incite them to rise.” These were the familiar features of the “self-emancipation” policy. Slaves who came within Union lines were freed, but Union troops would not “entice” slaves away from their farms and plantations. Both elements were already specified in the cabinet’s contraband decision forwarded by the secretary of war to General Benjamin Butler in May of 1861. You are to “refrain from surrendering to alleged masters any persons who may come within your lines,” the secretary explained, but at the same time “you will permit no interference, by the persons under your command, with the relations of persons held to service under the laws of any state.” As northern armies moved down the Atlantic coast, one Union general after another affirmed this distinction and it was reaffirmed in the Mississippi Valley a year and a half after it was first proposed. On December 17, 1862, General Ulysses S. Grant ordered his superintendent of contrabands to employ any “negroes who voluntarily come within the lines of the army.” But “in no case,” Grant added, “will negroes be forced into the service of the government, or be enticed away from their homes except when it becomes a military necessity.” For eighteen months—from August 1861 through December 1862—federal policy remained the same: slaves within Union lines were emancipated, but they were never “enticed.”37