The Destruction of Slavery During the Civil War

A review of James Oakes’ Freedom National: The Destruction of Slavery in the United States, 1861-1865, W.W. Norton & Co., 2013

by Nancy Spannaus

Feb. 8, 2024—In this extensive review of the fight over U.S. government policy toward the enslaved during the Civil War, James Oakes brings to light a surprising reality about the Lincoln administration’s emancipation policy. To wit: By the time of the Emancipation Proclamation, hundreds of thousands of enslaved African Americans had already been freed!

How was this possible? As Oakes explains, the key was the Lincoln Administration and Republican-led Congress’s reliance on the Law of Nations, which held that liberating the slaves of an enemy was a time-honored and honorable tradition. Thus, while Lincoln and the Republicans subscribed to the idea that slavery couldn’t be touched in the original states under the Constitution, once a state seceded, it no longer had any protection for its policy of enslavement.

The Destruction of Slavery during the Civil War

In fact, Oakes argues, the Republicans believed that the Constitution itself was based on the idea that slavery was a state-sanctioned institution, not a national one.[1] Not only that, but the Law of Nations, which was considered an integral part of the Constitution,[2] dictated that “so far as the law of nature is concerned, all men are equal.” Thus, once the formerly enslaved African Americans were in a territory controlled by the Union, they were to be presumed free.

In the rest of this review, I will identify the progression of the emancipation process, but since I can by no means replicate the detail and full reasoning of Lincoln and the Unionists which Oakes includes,  I highly recommend that you read this book.

The First Step: May 23 to August 8, 1861

It was May 23 of 1861 when three enslaved males showed up at Fort Monroe in Virginia, seeking to escape their impressment into labor for the Confederate Army. General Benjamin Butler not only accepted them, but then refused to release them to their self-proclaimed owners, who showed up to demand they be returned. He then sent a query to Washington, D.C., asking for advice.

The response came by May 30.  Butler’s decision was approved, and from then on, runaways who had been working for the Confederates (or were about to be so employed) could be put to work for the Union, paid wages, and have their families accepted as well. Over the next months, the numbers of African Americans fleeing and being accepted under Butler’s command swelled to 900 or more. They were called “contrabands of war.”

The Destruction of Slavery during the Civil War
Photos of the contraband camp in Harper’s Ferry, West Virginia (Library of Congress)

There was an unresolved question, however, which Butler also raised to his civilian superiors:  Were these “contrabands” to be considered free? The answer came in the Confiscation Act of 1861, which authorized seizure of rebel property, and declared that persons using slave labor in service of the rebellion forfeited their rights to their labor.

After extensive debate, the final bill passed on August 6, and was followed by a specific instruction from the War Department on August 8. The instruction was unequivocal: Any enslaved person who was being used against the United States, and seeking protection from the Union Army, was declared free.

No Property in Man

Did this act therefore categorize the enslaved as property?  By no means.  The bill’s sponsor, Illinois Senator Lyman Trumbull, ensured that the liberation of the enslaved was included as a separate section, and referred to them (as in the Constitution) as persons.

The Destruction of Slavery during the Civil War
Illinois Senator Lyman Trumbull

This issue, of course, lay at the core of the controversy with the Confederate States, who had increasingly based their arguments in favor of expanding slavery and kidnapping fugitive slaves on the basis of the guarantee of property rights in the U.S. Constitution. The anti-slavery forces consistently refuted this interpretation by asserting that the enslaved were people, not property. In fact, this argument, Oakes points out, was one of the justifications for their not using the Commerce clause to go after the internal slave trade.

The Border States

But what was to happen in the four border states (Delaware, Kentucky, Maryland, and Missouri)?  If, as was happening, enslaved individuals sought freedom behind U.S. military lines in those states, were they to be returned to the loyalists who claimed to their owners?

This question posed serious problems for President Lincoln, who saw keeping these states in the Union (especially Kentucky) as critical to Union victory. In addition, he found that many of his generals, most especially General McClellan, were opposed to the Confiscation Act, and all too eager to return slave “property” to those who demanded them, citing the Fugitive Slave Law of 1850.

This problem was eventually resolved by a bill passed in March 1862, which prohibited the U.S. Army from enforcing the Fugitive Slave Act. From then on, individuals demanding the return of their slaves were told to take their complaints to the local government authorities, and take their chances. In many cases, their difficulty in doing this was compounded by the resistance of Union soldiers who were averse to returning African Americans to servitude.

Self-Emancipation

Meanwhile, tens of thousands of enslaved people were seeking freedom by fleeing to Union lines.  In many cases, it was impossible to determine whether they fell under the qualifications of the Confiscation Act of 1861 – i.e., were they being employed in the cause of the Confederacy? In cases where the Union Army had taken control of an area, and the Confederates had fled, it seemed clear that the Union had to provide for them.

The Destruction of Slavery during the Civil War
Emancipated slaves in the Sea Islands celebrate Emancipation Day.

Two major regions where this situation existed were the Sea Islands off the southeastern Atlantic coast, and the New Orleans area. The numbers of enslaved persons involved were significant: between 10 to 12,000 in the Sea Islands, and about 150,000 in the lower Mississippi Valley. In both cases, Union victories in late 1861 to early 1862 brought all these people under the protection of the Union.

The Confiscation Act of 1862

Once again, the legal question raised its head: were these people free? To declare them so was to expand the previous ruling, which had only freed those who sought out Union aid and had been the “property” of Confederates actively participating in the war against the Union. Under the Confiscation Act of 1861, unionists were explicitly enjoined from “enticing” Blacks to escape slavery.

The debate went on for months. Over the same period, President Lincoln attempted to entice the border states to give up slavery, by offering financial compensation to the states (not individuals). He also insisted that West Virginia enact abolition as a condition for admission as a state of the Union.

On July 17, 1862 the Confiscation Act of 1862 was finally passed. This act removed any ambiguity about the status of Blacks escaping to Union lines: they were to be forever free. In addition, soldiers were prohibited from returning freed slaves to their owners, even those in the loyal slave states. And, most famously, all the enslaved persons within areas in rebellion were declared to be emancipated. This latter act was left to be finalized by a Presidential Proclamation that specified the areas.

The Question of Citizenship

On January 1, 1863, Lincoln finally issued the proclamation which the July bill had mandated.  Citing military necessity, and acting as Commander in Chief, he declared all the enslaved in Confederate areas to be liberated, and that the freedmen would be received into the Armed Forces of the United States.

Ironically, the Proclamation’s major impact was in the border states, Oakes writes. Over 60% of those African Americans who enlisted in the Union Army were from the loyal slave states, especially Missouri. The relatively small number freed in the seceded states can be attributed, at least in part, to the effective suppression of the news of the President’s Proclamation to the enslaved, and the difficulty of escape in regions far from Union lines.

A recruitment poster for the US Colored Troops

Yet, as Oakes makes clear, hundreds of thousands of enslaved Americans were liberated during the course of the war. But would this emancipation through war time measures be permanent?  What would happen once the war was over? President Lincoln was particularly concerned with these issues.

Two additional decisions taken under Lincoln’s supervision are relevant to answering these questions.

First was the November 29, 1862 ruling by Attorney General Edward Bates on the question of who is an American citizen. The ruling had been requested by U.S. Treasury Secretary Salmon Chase in relation to a free African American, David M. Seeley, who was master of a ship; since U.S. law said that ship’s masters had to be citizens, Chase wanted to know whether Seeley qualified.

Bates took a major step in declaring that indeed he was. Citizenship was conferred by being born in the nation. Nor was Seeley’s color any barrier; the Constitution said nothing that could be construed as prohibiting a black person from being a citizen. In making this determination, Bates was specifically contradicting the Dred Scott decision, declaring it null and void.  Bates’ ruling was publicized and widely hailed at the time.

The second significant decision was taken in the spring of 1863, with the issuance of the Lieber Code, which defined the U.S. rules for military conflict. Among the significant elements were: 1) the ban on cruelty (such as torture) and “any act of hostility which makes the return to peace unnecessarily difficult;” and 2) the statement that international law does not sanction slavery, and that all who fled to the North were automatically free.

Neither of these decisions, nor the Emancipation Proclamation, was sufficient to ensure that slavery would come to a permanent end, however. Oakes describes Lincoln’s worry over this, and his insistence on the passage of the 13th Amendment to the Constitution (passed Jan. 31, 1865, ratified Dec. 6, 1865) as a result.

A Coda on Lincoln and Douglass

Oakes’ enlightening story of the process of emancipation during the Civil War is enhanced by his previous book (issued in 2007) on the relationship between Frederick Douglass and Lincoln. It is entitled The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics.

This book traces the parallel developments of these two men’s thinking, as they confronted the issue of how to defeat slavery. Whereas Douglass begins as a “radical,” extremely critical of Lincoln, Lincoln starts as a Republican politician, hating slavery but determined to work within the political system. Yet, through their personal interactions, as well as the problems they face, both men end up collaborating for victory in the Civil War.

The Freedman’s Memorial in D.C.’s Lincoln Park, where Douglass memorialized Lincoln

Both men always believed that slavery was doomed, Oakes asserts. In supporting this statement, Oakes quotes this highly significant observation by Douglass from 1857: “[slavery] has an enemy I every bar of railroad iron, in every electric wire, in every improvement in navigation, in the growing intercourse of nations, in cheap postage, in the relaxation of tariffs, in common schools, in the progress of education, the spread of knowledge, in the steam engine ….”

Clearly, this approach puts Douglass squarely in line with Lincoln’s American System commitment to the nation’s economic development, a commitment the President intended to use to re-unite the nation after the war.

I also was surprised to learn that, after the second meeting between Lincoln and Douglass in August of 1864, the President had invited Douglass to his summer cottage, the Soldier’s Home, for tea, clearly intending to have more extensive discussion. Douglass declined due to another commitment, and obviously never got another opportunity to do so.

Oakes concludes with a discussion of Douglass’s ever more positive reflections on Lincoln, shown in his series of eulogies and/or writings on the President from April 1865 to his final autobiography in 1881. He considers the abolitionist orator’s speech at the dedication of the Freedman’s Memorial to Lincoln to be the best. (You can find my reflection  on this speech here.)

Nancy Spannaus is the author of Defeating Slavery: Hamilton’s American System Showed the Way. For more information, click here.

[1] This concept is elaborated in the book No Property in Man by Sean Wilentz. A substantial review can be found here.

[2] The major source for the Founders’ thinking on the Law of Nations was the 1758 book by that name by the Swiss jurist Emmerich Vattel, which was widely read and cited as an authority on defining national sovereignty and the rights and duties of nations to their citizens and other countries. It is specifically referred to in the Constitution in Article I, Section 8, no. 10.

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