James Oakes has written an article in Jacobin Magazine that is creating some buzz. I have to say I’m a bit disappointed. The article is long on assertions and very, very short on evidence. The first instance is in the very first paragraph. Oakes says, “During the tense crisis months that followed – the ‘secession winter’ of 1860–61 – practically all observers believed that Lincoln and the Republicans would begin attacking slavery as soon as they took power.” This statement makes one think of a direct attack on slavery, and some evidence here would be wonderful. His second paragraph indicates he may be talking about an indirect approach rather than a direct approach. These are things the secession commissioners wrote about, such as “abolitionist” postmasters who would allow abolition tracts to proceed unimpeded through the mails. Or antislavery US Marshals who would not go after Fugitive Slaves. They feared the growth of a Republican Party in slave states, using the patronage power to appoint antislavery men to key positions and thus weaken the supporting infrastructure for the institution, especially in border states. But where is the evidence “practically all observers” in the free states believed so?
He makes the claim that, “It’s a familiar chronology: Under the terms of the First Confiscation Act of August 1861, disloyal masters would ‘forfeit’ the use of their slaves, but the slaves were not actually freed.” It’s not clear to me from what he wrote whether he’s simply reciting what he claims other historians are saying or whether he’s making a claim of his own. Again, evidence would be nice here, especially since I don’t think the claim about the First Confiscation Act is actually correct. The Act states that when a slaveowner employs a slave in service against the US, ” 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 notwithstanding.” No, it doesn’t specifically say the slave would be free, but if the owner no longer owns the slave, who does? Not the Federal government, which means the slave would have no owner, and would therefore be free.
He does ask a good question: “What if the original premise is wrong?” I think it’s very useful to challenge our premises, so I applaud this question. My problem is with what he does after that.
He makes the claim that the revisionist interpretation of the Civil War’s cause, at least pertaining to those in the free states, “is alive and well. Indeed, it is pervasive among historians.” Really? The majority of historians today believe the war came about as the result of a “blundering generation?” They believe the differences between the sections were not great enough to cause a war? Really? I don’t know of a single historian today who makes that claim. He introduces a label of “neo-revisionists,” which makes it seem to me at least that he’s constructing an elaborate straw man.
He claims, “We are repeatedly told that the North did not go to war over slavery. The Civil War is once again denounced as morally unjustified on the grounds that the North was not motivated by any substantial antislavery convictions. Emancipation itself is described as an accidental byproduct of a war the North fought for no purpose beyond the restoration of the Union.” Well, Lincoln himself claimed he had no interest to interfere with slavery in the states where it existed, and at the beginning of the war the U.S. Congress passed a resolution denying that this was a war against slavery and pledging it was solely a war to preserve the Union. I think this view has some strong evidence behind it.
He states, “On the basis of my research, I can no longer accept the thesis that the Union did not begin emancipating slaves until 1 January 1863.” This is, I believe, a massive straw man. Benjamin Butler held onto fugitive slaves as contraband of war early in the conflict, and thus these slaves were freed. That really seems to me as though they were emancipated. I think that shows historians have accepted the Federal government had been emancipating slaves since early in the conflict; however, it wasn’t until January 1, 1863 that the Federal government was emancipating slaves wholesale throughout the confederate states.
Then he says something I believe is amazing: “To my astonishment, I discovered that Section Four of the Act, the clause specifically authorizing the forfeiture of slaves, was written by Senator Lyman Trumbull, chair of the Judiciary Committee, as an emancipation clause.” What? How could he be astonished by this, since a plain reading of Section Four indicates it is an emancipation of a narrowly defined group of slaves: “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, entrenchment, 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 notwithstanding. 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.”
So if any slaveowner or agent of a slaveowner uses his slaves in work to support the rebellion against the United States, then that slaveowner forfeits those slaves. If they have no owner, they are free.
Oakes states, “A full-scale congressional debate erupted in July of 1861, focusing on the legitimacy of the emancipation that Republicans were undertaking.” I don’t doubt this at all, but it would be nice for him to provide some excerpts from the debate. He states, “I went back to the secession debates. And sure enough, everything critics had accused the Republicans of planning to do was exactly what Republicans themselves were saying they were going to do.” Here I’d like to see the evidence.
He asks another good question. Given that, in the middle of the 19th Century, the prevailing constitutional interpretation, shared by many if not most abolitionists, was that slavery could not be abolished by Federal action and was strictly a matter for the states, “how did the abolitionists expect to get slavery abolished?” To my mind, it’s obvious they wished to persuade enough people in enough slave states to abolish slavery that at some point a constitutional amendment could be ratified to abolish slavery. It appears Oakes has a different take on it, though.
He claims, “Coming out of the 1860 election, Republicans declared that there were two possible policies. The first was to make freedom national and restrict slavery to the states where it already existed. Republican policymakers would seal off the South: they would no longer enforce the Fugitive Slave Clause; slavery would be suppressed on the high seas; it would be abolished in Washington DC, banned from all the Western territories, and no new slave states would be admitted to the Union. A ‘cordon of freedom’ would surround the slave states. Then Republicans would offer a series of incentives to the border states where slavery was weakest: compensation, subsidies for voluntary emigration of freed slaves, a gradual timetable for complete abolition.” Once again, evidence would be wonderful. Which Republicans claimed this? Lincoln had pledged to enforce the Fugitive Slave Law, and his idea for emancipation in the District would involve the permission of the slaveowners and compensation to them. Having their permission certainly implies to me that some persuasion had to be done beforehand.
He then says, “The South would simply have to accept this. And if it couldn’t tolerate such a federal policy, it could leave the Union. But once it seceded, all bets would be off – it would lose the Constitutional protections that it had previously enjoyed. The Republicans would then implement the second policy: direct military emancipation, immediate and uncompensated.” Where are the Republicans saying southern states could secede? Where are the Republicans making the claim that the policy they would implement is military emancipation? This is crying out for evidence, yet none is presented. Oakes simply asserts, “Republicans said this openly during the secession crisis. And that’s what they were saying in Congress as they debated the Confiscation Act.” Where? Which Republicans? What exactly did they say?
All together, while Oakes asks good questions, and while we should periodically challenge our prevailing interpretation, it seems to me that this article fails because he offers nothing more than vague generalities and what appears to me to have been a misunderstanding of the First Confiscation Act. There appears to me also to be a concurrent misunderstanding of the emancipation process. The main course of emancipation proceeded from the First Confiscation Act, which affected only slaves used in support of the confederacy, to the Second Confiscation Act, which affected slaves of disloyal owners, whether those slaves were used in support of the confederacy or not, to the Emancipation Proclamation, which affected all slaves in certain areas, no matter what use they were put to or the loyalties of their owners, to the 13th Amendment, which affected every slave in the US. Oakes tells us the First Confiscation Act failed, but he doesn’t tell us why it failed. It failed because it targeted an extremely limited population of slaves. the vast majority of whom were not likely to be freed in deed instead of in word, and also because it affected a small population of slaves and not a blanketed approach, those slaves had to be identified, and because their owners had the constitutional right of due process, the case had to be proven. These restrictions made the number of slaves freed under the First Compensation Act extremely small, something Oakes could have gone into.
The article, then, is disappointing. It has some strawman arguments in it, it lacks the evidence to support its thesis, and it betrays what seems to be a misunderstanding of the Compensation Acts and the emancipation process. I hope he intends to flesh this out later with his evidence.