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study in historical psychology doubtless lies beneath the bare formality of its Journals; its vacillation forms an amazing spectacle, which as yet challenges explanation in vain. After voting down, by such a large majority, the resolution of February 7, the Senate, on the tenth, permitted the introduction of a bill-S. 190-to provide for the raising of 200,000 negro troops,25 and a week later considered an amendment empowering the War Department to manumit slave soldiers providing it had the consent of the state in which the slaves would be at the date of the proposed manumission.26 This bill however though it seems to be the source of an erroneous tradition was not destined to become law. On February 21, by a vote of eleven to ten, it was indefinitely postponed.

It is easy to see why the bill was dropped. To begin with, the opposition in the Senate was very strong. Long afterward, Davis made the assertion that "a chief obstacle" to the adoption of this bill, was the opposition of Senator R. M. T. Hunter. 28 In retort the senator said:29

That my opposition to this bill was some obstacle to its passage I had supposed, but that it was a chief obstacle, I had not imagined. I say this not to avoid the responsibility of opposition to that ill-starred measure. I wish I could have defeated it altogether, for I regard its approach to a passage as a stain upon Confederate history. It afforded, I believe, plausible ground against them for the accusation of falsehood in professing to secede from the United States Government, in part, and mainly on the plea that it was, by reason of their fear that the party in power would emancipate the negroes in defiance of the constitution. . . . And now it would be said we had done the very thing . . . without any more constitutional right than they would have had.

And yet in opposition to Hunter was the known fact that Lee favored arming the negro. However, to find the real clew to the willingness of the Senate to drop its measure, one must consider what had recently taken place in the House. The Senate bill, which

25 Journals, IV. 543.

20 Ibid., pp. 572-573. The bill had been referred to the Committee on Military Affairs, by which the manumission amendment was reported, February 17. The Journals do not reveal the precise significance of this amendment as the original text of the bill is not to be found in them. Neither are they absolutely explicit as to what was the history of the amendment. There are details in the entry for February 17 that make it seem fragmentary. It remains to be determined whether the "ill-starred measure", condemned by Hunter in the quotation which follows above, was the bill as first read or this amendment.

"This tradition, met with in numerous places, finds such expression as this: "The reluctant Confederate Congress debated long in secret session and did not pass a bill for arming and emancipating 200,000 slaves until March 10th." Pendleton, Alexander H. Stephens (American Crisis Biographies), p. 271.

28 Southern Historical Society Papers, IV. 209.

29 Ibid., p. 313.

came to its end in that indefinite postponement, appears to have got confused in the minds of most students with quite a different measure that ultimately became law. It was the unsuccessful Senate bill -to which Hunter was "a chief obstacle "-not the House bill, now to be considered, to which may be traced the groundless story that the Confederate Congress authorized Davis to raise an army of 200,000 negroes on the promise of manumission. That, as we have seen, Hunter and his following prevented.

The successful bill-H. R. 367—was introduced by Barksdale, of Mississippi, on the same day that saw the introduction of the illstarred Senate bill.30 The House referred it to a "select committee of one from each State".31

Like Benjamin, at about the same date, Barksdale wrote to Lee for advice. His letter was dated on February 12. Lee replied on the eighteenth. He wrote: "I think the measure not only expedient but necessary. The enemy will certainly use them against us if he can. get possession of them. . . . I think those who are employed should be freed. It would be neither just nor wise, in my opinion, to require them to serve as slaves."32 After a parliamentary battle over amendments, H. R. 367 was passed.33 It was on the following day, after receiving this bill from the House, that the Senate postponed its own bill indefinitely.34 At this point we encounter again that inexplicable dilatoriness of the Congress of the Confederacy. When every hour was precious, when something-one thing or anothershould have been ordered at once, the Senate had wavered over its own bill during eleven days. During that time Columbia had gone up in smoke. The House bill was now to be kept waiting fifteen days more. In this period Sherman reached the borders of North Carolina. Would that we had a satisfactory clew to the psychology of the Confederate Senate during these dreadful weeks, when the wave of fire which was Sherman's advance moved steadily toward Richmond!

Why the Senate abandoned its own bill and took up the measure submitted by the House, now becomes plain. The latter bill evaded the constitutional difficulties that plagued the legal conscience of the Senate. The great discussion in the House had ended in excluding altogether from the proposed scheme the issue of emancipation. It increased the number contemplated to "three hundred thousand troops, in addition to those subject to military service under existing *Journals, VII. 562.


32 J. D. McCabe, Life of Lee, pp. 574-575.

23 February 20, 1865. Yeas 40, nays 37. Journals, VII. 613-614.

34 Ibid., IV. 585.

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laws .. to be raised from such classes of the population, irrespective of color, in each State as the proper authorities thereof may determine " 35 "35 The President was authorized to call upon each state for its quota under this law. The Senate amended the bill, providing that the levy in any one state should not exceed twenty-five per cent. of the state's slave population. The House accepted the amendment, and the bill was passed, March 9.37 It had been under discussion, since Barksdale introduced it, no less than twenty-seven days.


To repeat, the dilatoriness of Congress is a psychological mystery yet to be solved. Allowing for all the repugnance the measure naturally inspired, how are we to excuse the Congress for having such uncertain knowledge of its own mind? Fiddling while Rome was burning, really does not seem too harsh a verdict. The form of the measure is not so surely deserving of censure. To be sure Professor Dodd, in his recent remarkable life of Davis, apparently considers it a contemptible measure, one quite unworthy of the greatness of the problem of Confederate defense. He dismisses it as a "lame" enactment, the work of a "panicky" Congress.88 But Professor Dodd, very naturally, has observed the episode from the President's point of view. Somewhat similar was the attitude of Lee's contemporaneous biographer, J. D. McCabe, who made the charge long ago, that Congress "studiously set aside the recommendation of General Lee ".3 39 McCabe added that the negro . . . was to be forced to fight for his own captivity". That brilliant but ungenerous persecutor of Davis, Pollard, writes scornfully of the "emasculated measure" which he asserts bore no fruit except two companies of rather ridiculous negro recruits about which, in Pollard's description, there is a savor of opera bouffe:40

Two companies of blacks, organized from some negro vagabonds in Richmond, which were allowed to give balls at the Libbey Prison and were exhibited in fine fresh uniforms on Capitol Square as decoys to

35 Journals, VII. 611-612; Nicolay and Hay, Abraham Lincoln, VI. 487. 30 Journals, IV. 670-671. Thus amended the bill passed the Senate by a vote 9 to 8.

87 Ibid., VII. 729.

38 To defend the Congress would be a great undertaking. And yet I cannot but feel that Professor Dodd is too severe. His point of view is the modern one; he ignores the distinction between Confederate and state politics. He treats the matter as a single problem whereas the old view treated it as a dual one. I must be allowed to enter my plea for a revival of the older mode of treatment. Without it I cannot see how we are to conceive the men of that day in their true political perspective. For Professor Dodd's position, see his Jefferson Davis, ch. XXI. 39 McCabe, Life of Lee, p. 576.


Nicolay and Hay, Lincoln, VI. 488, quoting Pollard's Life of Davis, p. 456.

obtain recruits. But the mass of their colored brethren looked on the parade with unenvious eyes, and little boys exhibited the early prejudices of race by pelting the fine uniforms with mud.

Pollard, it should be remembered, is always to be taken with a grain of salt.

These extravagant condemnations omit from consideration three things the guessing of the Congress with regard to the secret intentions of the President and Benjamin; the reality of state patriotism; and the last paragraph of Lee's letter to Barksdale. So illuminating is the latter that it should be spread upon the record. Lee wrote:11

I have no doubt that if Congress would authorize their [the negroes'] reception into service, and empower the President to call upon individuals or States for such as they are willing to contribute, with the condition of emancipation to all enrolled, a sufficient number would be forthcoming to enable us to try the experiment [of determining whether the slaves would make good soldiers]. If it proved successful, most of the objections to the measure would disappear, and if individuals still remained unwilling to send their negroes to the army, the force of public opinion in the States would soon bring about such legislation as would remove all obstacles. I think the matter should be left, as far as possible, to the people and the States, which alone can legislate as the necessities of this particular service may require..

This letter, apparently, is confused in the minds of some writers with that other written a month previously to Andrew Hunter, of Virginia. Those who confuse the two letters forget that the Hunter letter was addressed to a member of the Virginia legislature, while the letter to Barksdale was intended to guide a member of the Confederate Congress. Because Lee had concluded that emancipation was now the final hope of the South, it does not follow that he would have tolerated it if attempted by the Confederate Congress in defiance of his own state. The letter to Barksdale was written at headquarters on the eighteenth; the bill passed the House on the twentieth. Considered in the light of the Barksdale correspondence may it not be construed as the acceptance by Congress of what it understood to be Lee's wishes? If the House took the matter calmly, deliberately, so did Lee. If the House regarded the situation as one in which "experiment" was still possible, so did Lee. If the House carefully guarded the authority of the states and shut the door against overruling Confederate action, what else could be inferred as the settled conviction of the leader it trusted above all others? If, on one point-the definite invitation to the states to consent to manumission of slaves owned by the Confederate govern"McCabe, Life of Lee, p. 575.

ment-the House was silent, at least it did not set up any barriers to manumission but left the whole matter of the future of slave soldiers to state action. To charge it with studiously disregarding the advice of Lee is extravagant. The sin of the Congress in this connection remains its dilatoriness.

As we have seen, the passing of the act led to bitterness between the President and the Senate. When Davis wrote the message of March 13 reproving Congress for its delay, he was undoubtedly in an overstrained nervous condition. For this, besides the general tension of the moment, there are at least three causes clearly to be discerned. He was now anxious to enlist the slaves. He was involved in a diplomatic tangle from which he was not destined to emerge successful. But there was a third cause of anxiety which has not as yet received attention from any of his biographers. To understand it we must leave momentarily the politics of the Confederacy as a whole and glance at the politics of Virginia.

While Congress had fought to a finish its battle over the enrollment of slaves the same issue had been dealt with locally by Virginia. In the course of the latter discussion Lee fully revealed himself in his overlooked capacity of statesman. Whether his abilities as a statesman equalled his ability as a soldier does not here concern us. It is well known that he had no high opinion of them himself. However, in the advice he gave at this final moment of crisis he expressed a definite conception of the articulation of civil forces in a system like that of the Confederacy. He held that all initiative in legislation should remain with the separate states-that the function of the general government was to administer, not to create, conditions-and that the proper power to constrain the separate state legislatures was the flexible extra-legal power of public opinion. Therefore when Congress, accepting practically these views, threw the burden of the military problem on the shoulders of the states, the test of Lee's influence began. Here again, as at several other points in this singular drama, an erroneous tradition has become established. Even so careful a student as Mr. Bradford, whose fine work on Lee deserves such high praise, has for once affirmed an error, saying that "nothing shows more clearly Lee's immense influence than the fact that he was able to persuade his countrymen to accept his view" of the matter of negro enrollment. It will be plain in a moment that this statement is far too unconditional.

Long before the Barksdale act was passed-in fact even before it was introduced-Lee had formulated his programme, and a test of its adequacy to the conditions of the moment was going forward.

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