by Alan Axelrod
ON AUGUST 30, 1861, some five months into the Civil War, John Charles Frémont, commanding the Union army’s Department of the West, proclaimed martial law over Missouri, warning that the property of those who bore arms in rebellion against the United States would be seized, including their slaves, who would be both removed and emancipated. Fearing that the emancipation would send a deeply divided Missouri into the arms of the Confederacy, President Abraham Lincoln annulled the order. In April of the next year, when Major General David Hunter, commanding the Union army’s Department of the South, captured Confederate-held Fort Pulaski, Georgia, he declared free all slaves currently in Union hands. He then expanded the emancipation to all slaves living “within reach” of his military jurisdiction. Once again, Lincoln annulled the orders on the grounds that they authorized an unconstitutional seizure of property without due process of law.
The South feared Lincoln as a bringer of abolition, yet he came into office with an inaugural address disavowing any intention of ending slavery where it currently existed. As late as the summer of 1862, he persisted in defining himself as anything but an abolitionist. On August 19, the influential editor of the New York Times, Horace Greeley, published in his paper an open letter to the president on behalf (he claimed) of the twenty million citizens of the loyal states. Among other things, he criticized Lincoln for annulling the orders of Frémont and Hunter and called for immediate emancipation. Three days later, President Lincoln replied in terms so stark that they are still capable of shocking us today: “My paramount object in this struggle is to save the Union, and is not either to save or destroy Slavery. If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could do it by freeing some and leaving others alone, I would also do that.”
Lincoln publicly justified his decision to go to war to restore the Union on the basis of his presidential oath to preserve, protect, and defend the Constitution—the very document that unmistakably protected slavery as a property right. In this, he reflected the views of most Northerners and even most Republicans, save the so-called Radical Republicans, who were ardent and uncompromising abolitionists. If he used the war as a convenient occasion for abolishing slavery, he risked making the war itself unconstitutional. If he broke the law, even to achieve a moral purpose, he yielded to the Confederacy the same right to break the law for what they asserted was a moral purpose. Even before taking office, Lincoln wrestled with this conundrum. He groped for alternatives to an executive proclamation of emancipation. What appealed to him was a policy of gradual emancipation, to be carried out within the constraints of the Constitution by compensating slave owners for setting their slaves free. In effect, Lincoln proposed buying their property from them. Moreover, he contemplated instituting this policy of “compensated emancipation” state by state rather than with a federal law. His idea was to begin by approaching law makers in those states where slavery was already weak—border states such as Delaware.
Even after he was inaugurated and the first seven states of the Confederacy had seceded, Lincoln continued to cling to the hope of legislated emancipation. His strategy of not “interfering with” slavery where it existed while blocking the expansion of slavery was a play for time. He hoped that by containing the spread of slavery, he might eventually prevail upon state legislatures to enact compensated emancipation. If this could be made to work, slavery would, in time, wither and die—without civil war and bloodshed.
Not even the eruption of a shooting war ended Lincoln’s appeal to the border states (the slaveholding states that had remained loyal to the Union) to adopt compensated emancipation. If he could demonstrate that purchasing the liberation of slaves was possible, perhaps the rebellion would end. Even if the Confederate states were not persuaded, Lincoln believed that the combination of Union military victories and a successful program of compensated emancipation in border states would knock the props out from under the rebellion. As Lincoln saw it, the border states were key. He felt that the best chance for ending slavery while also restoring the Union lay with them, and, for this reason, he dared not alienate them with a forceful, perhaps unconstitutional emancipation policy. If even a single border state fled to the Confederacy, the very idea of a Union might be forever doomed.
Despite the president’s efforts, however, every one of the border state legislatures rejected compensated emancipation. Even worse, these rejections came at a time when the war was not going well for the North. The “Young Napoleon,” Major General George B. McClellan, on whom Lincoln and the Union staked their hopes for crushing the rebellion, failed to capture Richmond, the capital of the Confederacy. His excessive caution and his delusional belief that his Army of the Potomac was always badly outnumbered by Robert E. Lee’s Army of Northern Virginia (quite the opposite was true, of course) led to one draw or defeat after another. Even when the Union managed a victory, it was typically at a grievous cost.
The border states’ rejection of voluntary abolition through compensated emancipation, combined with a war fought to bloody stalemate, persuaded Abraham Lincoln that only a decisive combat victory could now drive the abolition of slavery. Winning a major battle would give an executive proclamation of emancipation the force of righteous strength, while such a proclamation would impart to the war a new moral dimension. It would be transformed from a military effort to preserve, protect, and defend the Constitution into a holy crusade to end the abomination of slavery. Fighting the war as a defense of the Constitution was not winning the war. But fighting the war for the moral and spiritual purpose of breaking the chains that held men, women, and children in bondage invited comparison with the Old Testament. Lincoln wanted a holy war.
There were still strategic and legal hazards attached to issuing a presidential proclamation of emancipation. Such a step could well alienate the border states, sending some or all into secession. The proclamation could also be challenged by suit brought in the federal courts, which were conservative and liable to hand down a decision that would not only squelch the proclamation, but also set a legal precedent explicitly protecting slavery forever. For that matter, emancipation might truly be unconstitutional. For all these reasons, Lincoln planned to frame his proclamation in a very limited way as an emergency war measure designed to deprive the rebelling states of the military value of slave labor. In effect, slaves were to be classified as contraband of war, so that the emancipation would liberate only those slaves who lived in parts of the Confederacy that were not yet under the control of the Union army. Elsewhere, where it existed, including in the border states, slavery would continue. Lincoln hoped that its status as a war measure would allow the proclamation to survive or altogether evade legal challenge. He further hoped that its strict limitation, applying only to those states and portions of states actively in rebellion, would prevent alienating the border states and would also avoid provoking renewed fighting in portions of Confederate states occupied by the Union army. Of course, there was no assurance that an executive proclamation occasioned by war would survive the war, even if the Union won. Emancipation would be open to legal challenge on constitutional grounds.
Finally—and this is what so many modern students of history find hard to accept—the border states were not alone in believing that “negroes” were an inherently inferior race. Many citizens, politicians, and soldiers throughout the North, including (at times) President Lincoln himself, also believed this. That many Northerners objected to the injustice of slavery did not necessarily mean that they were eager to sacrifice their lives for the liberation of what they regarded as a lesser race. Moreover, among the Northern working class, particularly recent immigrant laborers, there was great fear that freed slaves, once liberated, would flood the North and “steal” the low-paying jobs on which they depended. Such anxiety triggered racially motivated “draft riots” in New York and other Northern cities and towns during 1863.
Despite all the pitfalls, immediate and
potential, President Lincoln decided that the risks were worth taking, if, at long last, emancipation provided a moral and spiritual impetus sufficient to drive a majority of the civilians, soldiers, and commanders of the North to act boldly and achieve victory. Lincoln consulted with William Whiting, a future US representative from Massachusetts who, during the Civil War, served as a solicitor for the War Department. He had just completed a major work of legal theory entitled The War Powers of the President and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery (Boston, 1862), and Lincoln now asked him point blank if the president possessed the legal authority to declare emancipation. Whiting responded that, in his opinion, the chief executive’s war powers did indeed confer the necessary authority. Seeking further confirmation, the president consulted with his vice president, Hannibal Hamlin, before sitting down to compose an emancipation proclamation designed to seize the moral high ground without alienating the border states or anyone else, without doing violence to the Constitution, and without inviting legal challenge.
On July 22, 1862, the president convened his Cabinet and announced to them his intention of issuing a proclamation freeing the slaves, but only in the unconquered parts of the Confederacy. The response was mixed. Postmaster General Montgomery Blair protested that the proclamation would kick the supports out from under the Republican Party, which, founded in 1854, was still a political toddler. Secretary of State William Seward, however, supported the idea. But he offered a more urgent caveat, which confirmed a concern the president already had. Up to this point, as both Lincoln and Seward well knew, the war had not gone well for the Union. Seward argued that issuing the proclamation on the heels of numerous military defeats would undercut it, perhaps fatally. At best, it would come off as something of an empty gesture. At worst, it would appear to be an act of utter desperation. He strongly advised Lincoln to delay the proclamation until the army could boast a significant military victory.
In some ways, Seward was preaching to the proverbial choir, as this was a concern of the president as well. So far, 1862 had been a year of much heartbreak and some disaster as General McClellan continued to disappoint and even suffered the supreme humiliation of having Confederate cavalry commander J. E. B. Stuart “ride around”—circumnavigate—his entire Army of the Potomac on June 12. Less than a month later, on July 2, McClellan abandoned his advance on Richmond by retreating to Harrison’s Landing, his army’s point of embarkation. Two days later, on Independence Day, the daring Confederate cavalryman John Hunt Morgan began a three-week sweep through the border state of Kentucky with some 900 raiders, terrorizing the countryside and humiliating the Union’s Major General Don Carlos Buell by capturing some 1,200 of his soldiers along with several hundred horses. (He paroled the soldiers, but kept the horses.) Two days after Morgan commenced his raid, another Confederate firebrand, Nathan Bedford Forrest, led a cavalry raid through Union-controlled Middle Tennessee. The next month, on August 26, Stonewall Jackson captured the Union supply depot at Manassas Junction, Virginia, near Bull Run, site of the war’s first major battle and the Union’s first major defeat. This led to the Second Battle of Bull Run (August 28–30, 1862), in which some 77,000 Union soldiers of the combined Army of Virginia and the Army of the Potomac, all under the command of the insufferably pompous and little-loved John Pope, were trounced by some 50,000 men of Lee’s Army of Northern Virginia. Pope lost 14,462 soldiers, killed, wounded, captured, or missing, for Lee’s loss of 6,202 killed or wounded.
General Pope, who had supplanted General McClellan, was now himself replaced by McClellan, to whom a desperate Abraham Lincoln returned full command of the Army of the Potomac on September 2.
“Again I have been called upon to save the country,” the “Young Napoleon” wrote to his adoring wife, telling her that, as he cantered his mount among his men, they called out to him: “George, don’t leave us again.”
On September 4, two days after McClellan was recalled to full command of the army he had created, Robert E. Lee, in a daring and unexpected move, led his Army of Northern Virginia, now with some 60,000 men, into Maryland. The Union was being invaded—and in force.
Although he had been highly successful fighting a defensive war against Union incursions into the South, Lee was convinced that the Confederacy could not prevail in a prolonged defensive war of attrition. The North simply had more of everything than the South—more men, money, and munitions. Lee was convinced that the Confederacy’s only hope was to assume the offensive, wrest the border states—of which Maryland was the most important—from the Union’s grasp, replenish the Army of Northern Virginia from among the Marylanders, and bring the war farther north. Moreover, if he could win victories in an offensive war, Lee was convinced that he might also win the support of Britain and France. If he could sustain the invasion of the North, he believed that the people of that region would simply lose the will to focus on fighting. Indeed, on September 8, he published an open letter to the people of Maryland, inviting them to secede:
The government of your chief city has been usurped by armed strangers—your Legislature has been dissolved and by the unlawful arrest of its members—freedom of the press and of speech has been suppressed … Believing that the people of Maryland possess a spirit too lofty to submit to such a government, the people of the South have long wished to aid you in throwing off this foreign yoke, to enable you again to enjoy the inalienable rights of freemen, and restore the independence and sovereignty of your state.
Lee had devised an ambitious plan for the opening phase of his invasion, which he detailed in a document known to history as Special Order No. 191. Rarely has a commander poured so much into a single plan. It was the key to the highest-stakes operation any Confederate general had yet attempted. He gave a copy of the order to Stonewall Jackson, who took it upon himself to copy a set for General Daniel Harvey Hill. Scholars are divided as to what happened next. Some believe that Hill, having already received the orders directly from Lee, carelessly discarded the copy Jackson sent him; others believe it far more likely that the document was not thrown away, but lost, probably dropped by a staff officer. Whatever happened, on September 13, when Union soldiers occupied the campground Hill had just vacated, a Private W. B. Mitchell, of the 27th Indiana, found Order No. 191 lying on the ground, wrapped around a clutch of cigars. Private Mitchell lusted after the cigars, but he took time to glance at the paper and concluded that it was important. He therefore passed it to an officer, who delivered it into the hands of George Brinton McClellan.
At first, the Union commander basked in his unbelievable good fortune. For one thing, he immediately perceived that the daring plan was also an infinitely hazardous one. Lee proposed to split his forces in two. He would send Jackson toward Harpers Ferry, Virginia, and Longstreet toward Hagerstown, Maryland. A conventional military man, McClellan had been taught that to divide your forces in the face of the enemy was to invite certain defeat.
“Here is a paper,” McClellan famously exclaimed, “with which, if I cannot whip Bobby Lee, I will be willing to go home.”
Victory had been handed him, yet, with a perverse genius for snatching defeat from the jaws of victory, McClellan was suddenly assailed by doubt. For one thing, he was convinced that Lee had twice the number of men he himself commanded—when, in fact, Lee actually had available less than half the Union’s strength. For another, McClellan began to suspect that the “lost order” was actually a set-up, a ruse leading to a snare. In any event, on September 14, the Army of the Potomac fought its way through three gaps in South Mountain, near the border of western Virginia. Through these gaps, McClellan was fiercely resisted by D. H. Hill’s Confederates, who could not stop but certainly slowed the Union’s advance. The delay gave Lee the time he needed to position his army for battle west of Antietam Creek.
Admittedly, McClellan planned carefully and quite competently. He intended to envelop Lee, striking at both of his flanks before releasing his reserves against Lee�
��s center. It was a double-envelopment battle plan that had brought Hannibal victory against the Romans at Cannae in 216 BC. Trouble was, George McClellan was no Hannibal, and when he launched his attack on April 17, it was anything but coordinated, dribbling out in a succession of piecemeal assaults. The Union’s “Fighting Joe” Hooker succeeded in driving back Jackson’s Corps so far and so fast that Lee was compelled to order up his reserves. But Hooker was alone, unsupported. In the meantime, Confederate units under Daniel Harvey Hill and James Longstreet hit the Army of the Potomac everywhere, in the East and West Woods, in Farmer Miller’s cornfield, and around a church belonging to a German pacifist sect called the Dunkards. This blunted Hooker’s early success and, by midday, the fighting had shifted to the center, along a sunken farm road forever after called “Bloody Lane.” This position was unrelentingly held by Hill’s Confederates, and it took a horrific five-hour battle and three divisions under the Union’s Major General Edwin “Bull” Sumner to pound the Confederate commander out of position.
It was deep into midafternoon before the entire left wing of the Union army, under Major General Ambrose Burnside, belatedly forced a crossing of the stone bridge that bears his name to this day. Too late to support Hooker or to be supported by him, Burnside managed to pierce the Confederate line, but was quickly overwhelmed and repulsed by a lightning counterattack under A. P. Hill, whose troops were freshly arrived from Harpers Ferry. As Confederate brigadier general John Brown Gordon recalled after the battle, “McClellan’s … infantry fell upon the left of Lee’s lines with the crushing weight of a landslide.” Nevertheless, when Lee himself appeared before the wavering soldiers of the line, his troops “re-formed … and with a shout as piercing as the blast of a thousand bugles, rushed in countercharge upon the exulting Federals [and] hurled them back in confusion.”
