first published in Medium, August 29, 2021
A Measure Right And Necessary
The Story of Union Maj. Gen. John Fremont’s
Civil War Emancipation Order of August 30, 1861
When Abraham Lincoln was elected president of the United States in late 1860 the country was teetering on civil war. As he assembled his cabinet, the president-elect looked to men whose counsel he would value, including fellow republican John Charles Fremont, who he considered to fill the post of ambassador to France; although some of Lincoln’s closest advisors even suggested Fremont for a more prominent cabinet post, such as Secretary of War.
Fremont was an intriguing 19th century figure. At the time, his fame rested primarily on his various expeditions mapping and surveying the western United States, which occurred over a course of twelve years (1842–54), wherein he personally led and directed five western expeditions. Importantly, he popularly chronicled these travels in newspaper accounts and books he wrote with his wife Jessie Benton Fremont’s assistance. Fremont had carefully built a reputation as the epitome of the American adventurer.
Four years earlier, in 1856, Fremont had been the first presidential nominee of the newly organized Republican Party; formed by anti-slavery Whigs and Free Soil Democrats. Curiously, he had rejected overtures from the rival, and also newly-formed, American Party because of their anti-immigration views. He also repudiated an effort to enlist him as the nominee of the Democratic Party (looking to replace embattled incumbent President Franklin Pierce) because of their insistence that Fremont support the Kansas Nebraska Act of 1854, which provided for the extension of slavery into new states, including possibly the territory of Kansas. An opponent of this expansion as well as the Fugitive Slave Law (mandating arrest and transport of any slaves escaped north of the Mason-Dixon line), Fremont chose to align himself with the new Republican Party.
Although Fremont had briefly served as military Governor of California (for less than a month) after American settlers seized the land from Mexico, and he had also served as a Free Soil Party U.S. Senator from California, for less than six months (only 21 days of which were spent in Washington), Fremont didn’t have the political experience to justify being so widely courted. Rather, it showed that each party was looking for someone who had avoided recent political skirmishes and who didn’t carry excessive political baggage. Fremont’s relative youth, he was 43 years old in 1856, also was seen as desirous, as it was thought he would appeal to younger voters.
Ultimately, Democrat James Buchanan was elected with 174 electoral votes, while Fremont and his running mate William Dayton, a senator from New Jersey, received 114 votes (former President Millard Fillmore, running as the nominee of the nativist Know Nothing Party, received 8 electoral votes). Fremont’s far-reaching popularity, mostly due to his anti-slavery views, is illustrated by Walt Whitman’s dedication of the 1856 edition of Leaves of Grass to his presidential candidacy.
Command of the Military Department of the West
Fremont met with the President-elect in January 1861 and expressed interest in being a military commander in what they both believed was the impending Civil War. Lincoln acquiesced and in July 1861, after Fremont returned from a trip to Europe during which time he made arrangements to purchase military armaments, he assumed command of the Union’s western army which included the geographical areas of the states of Illinois and Missouri, all the way to the Rockies, and also the state of New Mexico. Fremont set up his headquarters in St. Louis, as Missouri was facing substantial Confederate hostilities and was seen as a critical position to hold for the Union.
Although Fremont was one of four of Lincoln’s main generals at the start of the conflict, the entire army under Fremont’s control is estimated to have been only 16,000 troops; hardly adequate to quell Confederate hostilities in Missouri which threatened neighboring Kentucky. Fremont immediately focused on retaining Cairo, Illinois in Union control, given that it was strategically located at the confluence of the Mississippi and Ohio rivers, rightfully understanding it would be critical to any Confederate invasion of Kentucky, then a neutral state (albeit slave state).
General Fremont’s Martial Law & Emancipation Order of August 30th
On August 30, five weeks after assuming command, and three weeks after the Union defeat at the Battle of Wilson’s Creek (the first major battle fought west of the Mississippi River), Fremont was desperate to at least contain the confederates to southwestern Missouri. Convinced that he had been given full authority to suppress secession in Missouri, Fremont believed he needed to immediately implement measures that would weaken Confederate sympathies in the area, thus directly affecting the war effort.
Fremont justified issuing the martial law order throughout the state saying it was “in order to suppress disorders, to maintain as far as now practicable the public peace, and to give security and protection to the persons and property of loyal citizens.” His proclamation had two key components. First, “All persons who shall be taken with arms in their hands within these lines [North of the area from Cape Girardeau, Missouri to Leavenworth, Kansas, an area controlled by the Union] shall be tried by court-martial, and, if found guilty, will be shot.” In effect, he authorized capital punishment for secessionist bearing arms north of the then-existing Union controlled line.
The proclamation further stated that “The property, real and personal, of all persons in the State of Missouri who shall take up arms against the United States, and who shall be directly proven to have taken active part with their enemies in the field, is declared to be confiscated to the public use; and their slaves, if any they have, are hereby declared free. [emphasis added] This second provision freed the slaves of any secessionists who took up arms against the government. This latter provision mirrored sentiments made the previous month, in July 1861, by former-slave and abolitionist Frederick Douglass who stated: “To fight against slaveholders, without fighting against slavery, is but a half-hearted business, and paralyzes the hands engaged in it.” This was a sentiment Fremont now openly acted upon. Fremont issued his proclamation without consulting the Governor of Missouri or any military or cabinet officials in Washington, D.C.. In fact, President Lincoln learned of Fremont’s proclamation by reading it in the newspaper.
President Lincoln’s Letter of September 2nd
Although Fremont was focussed on deterring Confederate activity in the region under his command, his pronouncement created a crisis in Washington. President Lincoln was particularly concerned about losing pro-slave (including slave-holding) Unionist in the border states of Missouri, Kentucky, and Maryland; three states which had thus far remained neutral in the national conflict. Lincoln knew he must act quickly lest any of these states consider entering the conflict and aligning themselves with the Confederate cause, something which was very possible at this early period of the war.
Three days after Fremont’s order was issued, on September 2, Lincoln wrote Fremont a letter expressing “some anxiety” about his proclamation of August 30. Lincoln made clear he did not want any Confederate prisoners shot without his consent, for fear that the Confederates would retaliate by killing Union soldiers they captured. Lincoln wrote “Should you shoot a man, according to the proclamation, the Confederates would very certainly shoot our best men in their hands in retaliation; and so, man for man, indefinitely. It is, therefore, my order that you allow no man to be shot under the proclamation without first having my approbation or consent.”
Concerning the confiscation of property and freeing of slaves, Lincoln stated “I think there is great danger that the closing paragraph, in relation to the confiscation of property and the liberation [of] slaves of traitorous owners, will alarm our Southern Union friends and turn them against us; perhaps ruin our rather fair prospects for Kentucky.”
Lincoln thus asked Fremont to amend the order such that Union forces would only confiscate property used for insurrectionary purposes. Lincoln politely concluded “This letter is written in the spirit of caution, and not of censure. I send it by special messenger, in order that it may certainly and speedily reach you.”
Lincoln argued that emancipation was “not within the range of military law or necessity” and that such authority rests solely with the elected federal government.
According to Lincoln, and taken from a letter he wrote to a supporter of Fremont, a Kentucky militia unit fighting for the Union “threw down their weapons and disbanded” upon hearing of Fremont’s proclamation. Although the event is otherwise unconfirmed, as Lincoln had written Fremont, “I think to lose Kentucky is nearly the same as to lose the whole game.”
Lincoln biographer Michael Burlingame notes that despite Lincoln’s concern “Defiantly, Fremont ordered thousands of copies of the original proclamation distributed after the president had demanded its modification.”
General Fremont’s Letter of September 8th
Fremont wrote a reply to Lincoln’s request that he refine his order on September 8, 1861 and sent it to Washington in the hands of his wife, Jessie Benton Fremont, who was well acquainted with the President and with Washington protocols having grown up the daughter of former Missouri Senator Thomas Hart Benton. She met with the President in the White House on September 10. In the letter his wife carried, Frémont stated that he knew the situation in Missouri better than the President and that he would not rescind the proclamation unless directly ordered to do so. In fact, he made clear that he preferred that Lincoln rescind it himself.
Concerning emancipation, Fremont noted “I acted with full deliberation, and upon the certain conviction that it was a measure right and necessary, and I think so still.”
Jessie Fremont later reported that Lincoln harbored particular upset over her husband’s emancipation proclamation. She would later recall the President saying “It was a war for a great national idea, the Union, and … General Fremont should not have dragged the Negro into it.”
Despite his apparent obstinacy, Fremont did acknowledge the President’s supremacy in the matter: “If upon reflection, your better judgment still decides that I am wrong in the article respecting the liberation of slaves I have to ask that you will openly direct me to make the correction. The implied censure will be received by me as a soldier always should the reprimand of his chief. If I were to retract of my own accord it would imply that I myself thought it wrong and that I had acted without the reflection which the gravity of the point demanded. But I did not do so. I acted with full deliberation and upon the certain conviction that it was a measure right and necessary, and I think so still.”
President Lincoln’s September 11th Public Letter Rescinding Fremont’s Order
Once he realized Fremont would not acquiesce, and with a sense of urgency, Lincoln issued a public letter dated September 11, modifying Fremont’s order. Specifically he rescinded the emancipation clause to conform with existing federal law, making it clear that only slaves who participated in armed rebellion could be confiscated and freed. Lincoln wrote: “It is therefore ordered that the said clause of said proclamation be so modified, held, and construed as to conform to, and not to transcend, the provisions on the same subject contained in the act of Congress entitled, ‘An act to confiscate property used for insurrectionary purposes,’ approved August 6, 1961.”
General Fremont is Relieved of his Command
Lincoln began to consider removing Fremont from his command. However, because Radical Republicans and other abolitionists had enthusiastically supported Fremont’s emancipation order, Lincoln was hesitant to remove Fremont, fearing it would be assumed to be related to his abolitionist views, thus possibly alienating his own Republican Party base. Rather, he sent a number of government officials to visit Fremont during the ensuing weeks, who slowly gathered information strengthening the case for Fremont’s removal based on his alleged ineffectiveness.
A few months later, on November 3, on the eve of a planned attack against Confederate forces led by General Sterling Price, Fremont was relieved of his command, thus ending his 100 day command. Accounts of Fremont’s autocratic leadership style, in some cases exaggerated by his detractors and communicated to Lincoln, were cited as the reason.
Despite whatever criticism may or may not be warranted of Fremont, one notable decision he made while in command was appointing Ulysses Grant brigadier general and giving him charge of southeastern Missouri and southern Illinois, where he successfully seized riverfront positions in Kentucky and Missouri from Confederates. This first command, given to him by Fremont, foreshadowed his important role in the Union’s efforts.
Effect of the Proclamation
History records that Fremont’s emancipation order directly “freed, in the end, two slaves” as if to say it wasn’t of much significance. Although it is noteworthy that Fremont is known to have also issued freed papers to twenty-one other slaves while the order was in effect. The St. Louis press gave considerable attention to the affair and records the names of the two men directly freed by the emancipation proclamation; Frank Lewis and Hiram Reed. Jessie Fremont would later write that the two men, declared “to be free, and forever discharged from the bonds of servitude” were the first slaves freed by authority of the Federal Government of the United States.
Historian Tom Chaffin notes that “The directive did manage to demonstrate the popular appeal among northern voters of elevating the war’s objective from mere reunion of the states to the abolition of slavery–and thus laid the groundwork for Lincoln’s more wide-ranging Emancipation Proclamation almost one year later.” Lincoln’s rescision of the order “ignited a firestorm of protest” according to biographer Michael Burlingame, who noted, “His mailbag overflowed with letters denouncing the revocation. Pro-secession Missourians took heart. One observer reckoned that the president’s action ‘gave more ‘aid and confort to the enemy’ in that State than if he had made the rebel commander, Sterling Price, a present of fifty pieces of rifled cannon.’” Republican Congressman George Washington Julian of Indiana wrote, “Fremont’s proclamation stirred and united the people of the North during its ten days of life far more than any other event of the war.”
Fremont remained very popular with Radical Republican congressmen who applauded his emancipation order. Even President Lincoln seemed to forgive their quarrel, inviting Fremont and his wife to a party at the White House only three months after relieving him of his command. Importantly, a congressional inquiry into Fremont’s conduct in Missouri formally exonerated him of any substantive wrongdoing in his conduct as a commander noting the difficult circumstances he was faced with and the depleted military force he had at his disposal. Lincoln would even offer Fremont a new command in the newly created Mountain Department which included western Virginia, eastern Kentucky, and areas of Tennessee.
Fremont accepted the appointment but his army was later merged with the newly created Army of Virginia under the command of Union General John Pope, once his subordinate. Once again, Fremont felt that Lincoln purposefully and unfairly diminished his authority. By late 1862, Fremont again retreated to civilian life.
Less than a year after Fremont’s August 30th order, on September 22, 1862, Lincoln issued his own far-reaching Emancipation Proclamation (taking effect January 1, 1863), very certainly dragging the issue of slavery, which he had criticized Fremont for, to the forefront of the war effort. Like Fremont’s order, Lincoln’s was premised on the military benefit abolition of slavery would provide to the North.
Presidential Campaign of 1864
In May of 1864, Fremont accepted the presidential nomination of an abolitionist splinter party of the Republican Party, called the Radical Democracy Party, believing Lincoln’s leadership was faltering. By this point, Lincoln’s own emancipation declaration had been issued; so the critique stemmed mostly from a belief that Lincoln was not sufficiently prosecuting the war effort. The Radical Democracy Party also adopted a platform calling for direct election of the president, who they wanted to be limited to a single term; and a constitutional amendment abolishing slavery. Four months later, however, Fremont withdraw from the contest when it became apparent his candidacy wasn’t gaining traction and would likely aid Democratic nominee George McClellan who supported maintaining slavery in the south, if it meant peace for the nation. Whatever differences persisted with Lincoln, Fremont set them aside for the sake of ending slavery.
Acknowledging Fremont’s Role in the California Indian Genocide of the 1840s
Although John Fremont’s enlightened views concerning slavery are to be admired, his reputation is deeply compromised because of his participation in the California Indian genocide of the 1840s. The worst of these recorded episodes involving Fremont includes the Sacramento River massacre of April 5, 1846, wherein an expedition led by Col. Fremont attacked an Indian village (likely from the Wintun tribe), near current day Redding, California. The exploring party justified their acts based on unsubstantiated claims the Native Americans were preparing an attack against White settlers.
Details of these atrocities wherein at a minimum 100 men, women, and children were killed (and hundreds more wounded) comes from memoirs written by Fremont’s own expedition members including Thomas Breckenridge, Kit Carson, and Thomas Martin.
by Matt Gonzalez
SOURCES
Michael Burlingame, Abraham Lincoln: A Life (Baltimore: Johns Hopkins University Press, 2008).
Tom Chaffin, Pathfinder: John Charles Fremont and the Course of American Empire (New York City: Hill and Wang, 2004).
Frederick Douglass: Selected Speeches and Writings (Chicago: Lawrence Hill Books, 1999), edited by Philip S. Foner & abridged/adapted by Yuval Taylor.
Steve Inskeep, Imperfect Union: How Jessie and John Frémont Mapped the West, Invented Celebrity, and Helped Cause the Civil War (New York City: Random House, 2020)
Donald Jackson and Mary Lee Spence, eds., The Expeditions of John Charles Frémont, 3 vols. (Urbana: University of Illinois Press, 1970–84).
Allan C. Nevins, Frémont: Pathmaker of the West (New York: Simon & Schuster, 1992).
PRIMARY SOURCES
GENERAL FREMONT’S PROCLAMATION
“Head-quarters of the Western Department, St. Louis, August 31, 1861.
“Circumstances, in my judgment of sufficient urgency, render it necessary that the Commanding General of this Department should assume the administrative powers of the State. Its disorganized condition, the helplessness of the civil authority, the total insecurity of life, and the devastation of property by bands of murderers and marauders who infest nearly every county in the State and avail themselves of the public misfortunes and the vicinity of a hostile force to gratify private and neighborhood vengeance, and who find an enemy wherever they find plunder, finally demand the severest measure to repress the daily increasing crimes and outrages which are driving off the inhabitants and ruining the State. In this condition the public safety and the success of our arms require unity of purpose, without let or hindrance, to the prompt administration of affairs.
“In order, therefore, to suppress disorders, to maintain as far as now practicable the public peace, and to give security and protection to the persons and property of loyal citizens, I do hereby extend, and declare established, martial law throughout the State of Missouri. The lines of the army of occupation in this State are for the present declared to extend from Leavenworth by way of the posts of Jefferson City, Rolla, and Ironton, to Cape Giradeau on the Mississippi River.
“All persons who shall be taken with arms in their hands within these lines shall be tried by court-martial, and, if found guilty, will be shot. The property, real and personal, of all persons in the State of Missouri who shall take up arms against the United States, and who shall be directly proven to have taken active part with their enemies in the field, is declared to be confiscated to the public use; and their slaves, if any they have, are hereby declared free.
“All persons who shall be proven to have destroyed, after the publication of this order, railroad tracks, bridges, or telegraphs, shall suffer the extreme penalty of the law.
“All persons engaged in treasonable correspondence, in giving or procuring aid to the enemies of the United States, in disturbing the public tranquility by creating and circulating false reports or incendiary documents, are in their own interest warned that they are exposing themselves.
“All persons who have been led away from their allegiance are required to return to their homes forthwith; any such absence without sufficient cause will be held to be presumptive evidence against them.
“The object of this declaration is to place in the hands of the military authorities the power to give instantaneous effect to existing laws, and to supply such deficiencies as the conditions of war demand. But it is not intended to suspend the ordinary tribunals of the country, where the law will be administered by the civil officers in the usual manner and with their customary authority, while the same can be peaceably exercised.
“The Commanding General will labor vigilantly for the public welfare, and in his efforts for their safety hopes to obtain not only the acquiescence, but the active support of the people of the country.
J. C. Fremont,
“Major-General Commanding.”
Letter from President Lincoln to General Fremont
“Washington D. C. Sept. 2, 1861.
“My dear Sir:
“Two points in your proclamation of August 30th give me some anxiety. First, should you shoot a man, according to the proclamation, the Confederates would very certainly shoot our best man in their hands in retaliation; and so, man for man, indefinitely. It is therefore my order that you allow no man to be shot, under the proclamation, without first having my approbation or consent
“Secondly, I think there is great danger that the closing paragraph, in relation to the confiscation of property, and the liberating slaves of traiterous owners, will alarm our Southern Union friends, and turn them against us — perhaps ruin our rather fair prospect for Kentucky. Allow me therefore to ask, that you will as of your own motion, modify that paragraph so as to conform to the first and fourth sections of the act of Congress, entitled, “An act to confiscate property used for insurrectionary purposes,” approved August, 6th, 1861,2 and a copy of which act I herewith send you. This letter is written in a spirit of caution and not of censure
“I send it by a special messenger, in order that it may certainly and speedily reach you–
Yours very truly
“A. Lincoln”
Letter from General Fremont to President Lincoln
“Head-quarters of the Western Department, [St. Louis], 8 September 1861.
“Personal
“To the President
“My dear Sir
“Your letter of the 2d,1 by special messenger, I know to have been written before you had received mine, and before my telegraphic despatches and the rapid development of critical conditions here, had informed you of affairs in this quarter. I had not written to you fully or frequently, first because in the incessant change of affairs I would be oposed to giving you contradictory accounts, and secondly because the amount of the subjects to be laid before you would demand too much of your time. Trusting to have your confidence I have been leaving it to events themselves to shew you whether or not I was shaping affairs here according to your ideas. The shortest communication between Washington and St. Louis generally involves two days, and the employment of two days in time of war goes largely towards success or disaster. I therefore went along according to my own judgment, leaving the result of my movements to justify me with you, and as in regard to my proclamation of the 30th. Between the rebel armies, the Provisional Government, and home traitors I felt the position bad and saw danger. In the night I decided upon the proclamation & the form of it. I wrote it the next morning and printed it the same day. I did it without consultation or advice with any one, acting solely with my best judgement to serve the country and yourself, and perfectly willing to receive the amount of censure which should be thought due if I had made a false step. It was as much a movement in the war as a battle is, and in going with these I shall have to act according to my judgement of the ground before me, as I did on this occasion. If upon reflection, your better judgement still decides that I am wrong in the article respecting the liberation of slaves I have to ask that you will openly direct me to make the correction. The implied censure will be recived by me as a soldier always should the reprimand of his chief. If I were to retract of my own accord it would imply that I myself thought it wrong and that I had acted without the reflection which the gravity of the point demanded. But I did not do so. I acted with full deliberation and upon the certain conviction that it was a measure right and necessary, and I think so still.
“In regard to the other point of the proclamation to which you refer I desire to say that I do not think the enemy can either misconstrue it, or urge any thing against it, or undertake to make unusual retaliation. The shooting of men who shall rise in arms, within its lines, against an army in the military occupation of a country, is merely a necessary measure of defence and entirely according to the usages of civilized warfare. The article does not at all refer to ordinary prisoners of war, and certainly our enemies have no ground for requiring that we should waive in their benefit any of the ordinary advantages which the usages of war allow to us. As promptitude is itself an advantage in war I have to ask that you will permit me to carry out upon the spot the provisions of the proclamation in this respect. Looking at affairs from this point of view I feel satisfied that strong and vigorous measures have now become necessary to the success of our arms, & hoping that my views may have the honor to meet your approval I am with respect & regard
Very truly yours,
“J. C. Fremont”
Letter from President Lincoln to General Fremont
“Washington, D. C., Sept. 11, 1861.
“Major-General John C. Fremont:
“Sir,—Yours of the 8th, in answer to mine of the 2dinstant, was just received. Assured that you, upon the ground, could better judge of the necessities of your position than I could at this distance, on seeing your proclamation of August 30 I perceived no general objection to it; the particular clause, however, in relation to the confiscation of property and the liberation of slaves appeared to me to be objectionable in its non-conformity to the act of Congress, passed the 6th of last August, upon the same subjects, and hence I wrote you expressing my wish that that clause should be modified accordingly. Your answer just received expresses the preference on your part that I should make an open order for the modification, which I very cheerfully do. It is therefore ordered that the said clause of said proclamation be so modified, held, and construed as to conform with and not to transcend the provisions on the same subject contained in the act of Congress entitled `An act to confiscate property used for insurrectionary purposes,’ approved August 6, 1861, and that saidact be published at length with this order.
“Your obedient servant, A. Lincoln.”
THE BEGINNING OF THE END.
Harper’s Weekly 09/14/1861
[UNSIGNED EDITORIAL]
ON Saturday, 31st August, Major-General Frémont, commanding at St. Louis, Mis- souri, issued a proclamation placing the whole State of Missouri under martial law, and further stating:
“All persons who shall be taken with arms in their hands within these lines shall be tried by court-martial, and, if found guilty, will be shot. The property, real and personal, of all persons in the State of Missouri who shall take up arms against the United States, and who shall be directly proven to have taken active part with their enemies in the field, is declared to be confiscated to the public use; and their slaves, if any they have, are hereby declared free.”
It has been stated by some of the papers that in thus pronouncing the emancipation of the slaves of rebels General Frémont was only carrying out the Act known as the Confiscating Act passed by Congress at the extra Session. An examination of that act will, however, show that its provisions do not warrant the step taken by the General. The only section in which any reference is made to slaves is the following:
Sec. 4. And be it further enacted, That whenever hereafter, during the present insurrection against the Government of the United States, any person claimed to be held to labor or service under the law of any State shall be required or permitted by the person to whom such labor or service is claimed to be due, or by the lawful agent of such person, to take up arms against the United States; or shall be required or permitted by the person to whom such labor or service is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy-yard, dock, armory, ship, intrenchment, or in any military or naval service whatsoever, against the Government and lawful authority of the United States, then, and in every such case, the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwith- standing. And whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States, contrary to the provisions of this act.
It thus appears that the only slaves who can be forfeited under this Act are those who have been “employed in hostile service against the United States Government;” whereas Major-General Frémont’s proclamation grants freedom to the slaves of every rebel, whether they have been employed in military service or not. The General, therefore, has evidently based his action, not upon the law of Congress, but upon something else.
That something else is THE WAR POWER, which is inherent in the Government, and is exercised by its delegated officers commanding the forces of the United States. What the nature of this war power is, and what it may do with slavery, may be gathered from the following extract from a speech delivered by ex-President John Q. Adams, in the House of Representatives, on April 14, 1842:
When your country is actually in war, whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on according to the laws of war, and by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. This power in Congress has perhaps never been called into exercise under the present Constitution of the United States. But when the laws of war are in force, what, I ask, is one of those laws? It is this, that when a country is invaded, and two hostile armies are set in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory. Nor is this a mere theoretic statement. The history of South America shows that the doctrine has been carried into execution within the last thirty years. Slavery was abolished in Columbia, first by the Spanish General Morillo, and secondly by the Americal General Bolivar. It was abolished by virtue of a military command given at the head of the army, and its abolition continues to be law to this day. It was abol- ished by the laws of war, and not by municipal enactments.
I might furnish a thousand proofs to show that the pre- tensions of gentlemen to the sanctity of their municipal institutions, under a state of actual invasion and of actual war, whether servile, civil, or foreign, are wholly unfounded, and that the laws of war do, in all such cases, take the precedence. I lay this down as the law of nations. I say that the military authority takes, for the time, the place of all municipal institutions, slavery among the rest. Under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States, but the commander of the army, has power to order the universal emancipation of the slaves.
John Quincy Adams thus held that, when- ever a war grew out of slavery, martial law might be proclaimed in any part of the Union, and that such proclamation “swept by the board” all municipal and local laws establishing or recognizing slavery. It may seem superfluous to quote authorities in support of the assertions of so sound a jurist as Mr. Adams. We may mention, however, that he merely repeats, in the speech above quoted, the views of the recognized expounders of the common law. Sir Matthew Hale (Hist. C. L. c. 2), says that “martial law is built upon no settled principles, but is entirely arbitrary in its decisions; it is in truth and reality no law, but something rather indulged than allowed as a law.” Blackstone quotes this passage (Comm., I. 413) and emphatically approves it; adding that in time of war court-martials have “almost an absolute legislative power.” Modern jurists confirm these views, and admit that in actual warfare the powers of the general commanding are dictaterial.
We run no risk, therefore, in stating that, in decreeing the emancipation of the slaves owned by rebels in the State of Missouri, General Frémont has neither, on the one hand, relied upon the recent Act of Congress relating to confiscation, nor, on the other, exceeded the proper limits of his authority as General commanding. Under his proclamation of martial law, all state and municipal laws were at once suspended, and he, as commanding General, was practically invested with dictatorial powers over persons and property, for the just use of which powers he tacitly undertook to render account when martial law ceased to exist in his Department.
The direct consequences of his decree, so far as slavery in Missouri is concerned, can not be of much importance. Missouri does not contain 125,000 slaves, and of these considerably more than one half are believed to be held by loyal men. Moreover, under the terms of Frémont’s proclamation, no slave can be emancipated until it is proved that his owner has been actually in arms, or laboring actively in aid of those who are in arms against the Government: a large number of slaves may thus be defrauded of emancipation through the want of evidence to establish the treason of their masters. It is doubtful whether 25,000 human beings will exchange slavery for freedom under the proclamation of General Frémont.
But its moral effect must be signal. It is a solemn warning to the inhabitants of the rebel States, that wherever the armies of the United States are resisted in the interests of slavery, the cause of the resistance will be removed. It is a pregnant hint that the rebels who have falsely accused us of being abolitionists may, if they choose, make their accusation true. It is a notification to Kentucky, which seems to be on the eve of explosion, that open treason will necessarily involve the extirpation of slavery. This rebellion has more than once recalled the old adage, “Those whom the Gods wish to destroy they first render mad:” we shall now see how far the madness extends. The cost of rebellion is abolition. Those who choose may purchase.
Another important result of General Frémont’s proclamation has been the discovery of the fact that the people of the North are much more solidly united on the question of slavery than was imagined. It had been generally supposed that the first utterance of the cry of emancipation would divide the North into two hostile camps. How this strange delusion came to be entertained it is difficult to discover; the least reflection should have satisfied every one that it was impossible to build up at the North a party based on protection to slavery any where. But, however the notion originated, there is no doubt it did exist, and that leading men and journals in the confidence of the Administration were so thoroughly imbued with it, that they indignantly repudiated the imputation of being friendly to freedom under any circumstances. It seems, from the temper in which the public receive General Frémont’s proclamation, that they are not so tender on the subject. They seem very well satisfied with the prospect. We hear no complaints, no lamentations over the downfall of slavery in Missouri. The respectable Democrats of this part of the country express themselves rather pleased than otherwise. Of course, it must be expected that the lottery-policy dealers and the profligate vagabonds who pretend to represent the Democracy in convention will testify their sorrow at the event, as they will do at every success of the National arms: but neither in this nor in any other particular do they express the sense of the rank and file of the Democracy.
What people want now is decided, startling, effective successes on the part of the United States. If these are achieved, no one will complain of what they may cost. Our Generals may emancipate every slave in the country, and lay waste every field from the Potomac to the Rio Grande—The people will sustain them, provided they crush out the enemy and restore the supremacy of the Government. But there will be no mercy for the general who, for fear of breaking a law or dividing a party, suffers the rebels to progress from victory to victory, and the Stars and Stripes to endure defeat after defeat, and disgrace after disgrace.
Art & Politics 