Incidents of War - War Powers and Emancipation: Anna Ella Carroll vs. Charles Sumner

Nicknamed “the great unrecognized member of Lincoln’s cabinet” in her lifetime Anna Ella Carroll (1815-1894) was one of the more interesting of Nineteenth Century Americans,  yet remains  little known today,  

During the Civil War, Carroll wrote to sway public opinion regarding some of the most critical political and legal questions of the era.  Attorney General Edward Bates noted that she is “a person of superior mind, highly cultivated, especially in the solids of American literature, political history, and constitutional law. . . .”

Carroll was ushered into elite political circles by her father. She was born in Maryland, the daughter of Thomas King Carroll (who later served as governor of the state) and his wife Juliana Carroll.  As a young adult, she was largely consumed absorbing historical, philosophical, and theological tracts in the family library, while reading law under her father’s tutelage.

Beginning in 1854, Carroll became a leading publicist for the American Party in Maryland.  Popularly called the “Know Nothings”, the party had been formed from the wreckage of the Whigs plus disaffected Democrats. It was also deeply nativist and anti-Catholic, which made it an odd choice for Carroll, since she had ties to one of America’s most notable Catholic families.  But the party was also Unionist without being pro-slavery or pro-labor, as mainstream Democrats tended to be.  According to Thomas H. Hicks, his election as governor of Maryland in 1857 was due to her writings.

During the secession crisis of 1861, Carroll supported Hicks’s pro-Union stance and President Abraham Lincoln’s invocation of war powers. After reading her pamphlet Reply, written to counter an anti-Lincoln speech given by Senator John C. Breckinridge (D-Ky.) on July 16^th, 1861, the President asked Carroll to write on behalf of his administration.

In December, Carroll delivered her first treatise, the War Powers of the General Government, six thousand copies of which were printed by the War Department.  In it she addressed Lincoln’s powers as commander-in-chief and questions pertaining to the confiscation and emancipation of slaves.  The previous August Congress had passed the First Confiscation Act which stated that slaves who were used for Confederate military purposes could be freed.

By the spring of 1862, Lincoln was being painted into an abolitionist corner.  Escaped slaves were flooding Union camps and emancipation was becoming a fait accompli in the field. Lincoln’s offers of compensated emancipation to loyal slave owners were falling on deaf ears.  By July, Governor John A. Andrew of Massachusetts warned that he could not raise more recruits unless the slavery issue was addressed.

On May 19, 1862, Charles Sumner of Massachusetts rose on the floor of the Senate to expound on his proposed Second Confiscation Act.  He argued that persons who engaged in or aided the Rebellion were to be regarded both as criminal traitors and foreign belligerents, as they had “gone outside the Constitution to make war upon their country.”  They would therefore be subject, he said, to the double “penalties of rebellion and the triumphs of war”, which would include confiscation of property, by congressional legislation.  Emancipation of slaves, through confiscation, would be legally justified as an act of human justice.  Quoting Emmerich de Vattel’s 1758 work Law of Nations, Sumner declared, “To deliver an oppressed people is a noble fruit of victory. . . .”

Sumner argued further, that plantations of the leaders of the Rebellion “should be broken up, so that never again can they be nurseries of . . . disaffection,” and the lands redistributed to deserving parties.  In this way, he concluded, peace would be fully secured, as the conspirators’ influence would be stripped and rebellion would be “so completely crushed that it cannot again break forth.”

Carroll responded to Sumner’s speech with the blistering The Relation of the National Government to the Revolted Citizens Defined.  Regarding confiscation and emancipation, the two most important points she made in this and in her “War Powers” pamphlet were: 1) Congress cannot wage war upon its own people; nor, with victory, subject them to confiscation and redistribution of their property, except through due process; 2) because slave labor had become an integral part of the Confederate war machine, the President, through his military powers, could free slaves, as a temporary war measure.

As to the first position, Carroll declared that Southerners were not foreign belligerents who could, as a class, all be considered enemies.  The loyalty or disloyalty of each U. S. citizen had to be proven through due process, civilian or military.  According to Carroll, in a civil war, the Government’s right to charge and “punish a domestic enemy [traitor], and hold his property liable for damages, is exclusively vested in the Executive and Judicial Departments.”  Moreover, the war was being waged under the proposition that the Confederacy was not a sovereign nation.  A reversal of that policy would invite foreign recognition and/or intervention on the side of the Confederacy. 

Carroll argued that Southerners had had a belligerent Confederate government imposed on them.  Thus, the U. S. government’s duty was to reestablish its civil authority once the national territory was redeemed.  Following that, it must reinstate protection and rights to its citizens and sovereignty to the states.  However, those who led or aided in the Rebellion could be punished through judicial proceedings, according to the constitutional provision regarding treason.

Yet, she noted, during the war, under the doctrine of military necessity, slaves could be temporarily freed to prevent their owners from converting their labor to a public military use:

. . . .so long as the rebels maintain their attitude of open hostility to the Government, the latter, for the time, may treat them as alien enemies, de facto, . . . and consequently may prevent them from using even their private property . . . to aid in the movement of the insurrectionary forces.

However, such military necessity expires with the expiration of the war itself.  Carroll thus differed from Sumner as to permanent confiscation of slaves and other property by congressional legislation.

According to Carroll, her “Citizens” pamphlet was written expressly to meet Lincoln’s views.  This and her “War Powers” pamphlet are two of the few that argue the President’s singular military power to emancipate.  As a military order, U. S. officers could only implement and enforce emancipation in areas governed by martial law, that is, the states in rebellion. Thus, emancipation was not declared in the loyal states.  On June 2, 1862, Carroll met Lincoln in the Capitol and gave him his copy of her newly printed brief.  She then distributed copies in both houses of Congress.

On July 17, 1862, the Second Confiscation Act passed, stating that that those persons who participated in or aided the Rebellion would be defined as traitors and forfeit their rights to property, including slaves.  Although he signed the bill, like Carroll, Lincoln had doubts about Congress’s ability to emancipate.  In contrast, Sumner considered the measure within Congress’s military rule-making powers.  

Lincoln may have initially discussed a draft of the Emancipation Proclamation with Vice President Hannibal Hamlin on June 18^th.  In the final Emancipation Proclamation, Lincoln specifically designated the states and areas of states considered to be in rebellion. He then went on to write,

. . . .I do order and declare that all persons held as slaves within said designated. . . [areas] are and henceforward shall be free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

During the war Union army provost marshals in the South implemented Executive Orders, among them directives regarding confiscation, conscription, and emancipation.

Lincoln ended the Emancipation Proclamation stating that it was “. . . .an act of justice warranted by the Constitution upon military necessity. . . .”  He, thus embraced both Carroll’s and Sumner’s arguments.  As Carroll averred, war emancipation could only be temporary.  A constitutional amendment would be required to make it valid in peace, which came with the Thirteenth Amendment, ratified in December of 1865.  But as Sumner argued, emancipation was an overwhelming act of justice carried out on behalf of an oppressed people, and thus legal under the laws of war.

In July Carroll had written Lincoln regarding the Second Confiscation Act:

. . . . for with the dread of emancipation and, the apprehension of insurrections from arming the slaves, it [suppression of the rebellion] will require a million of men, Mr. President, added to the numbers we have now in the field, instead of the 300,000, for which you have called . . . .

A Border-state Unionist, although Carroll vehemently opposed slavery, she powerfully argued Southern rights, yet also staunchly defended the war powers of the chief executive that were critical to achieving victory. 

Prior to the war she had freed the slaves given her.  Yet initially she lobbied Lincoln against emancipation.  Unless the Confederates were defeated in battle, they would be “forever free from all restraint . . . to pursue their favorite schemes for the extension and perpetuation of slavery.”   In her view, Southern Unionists would see universal emancipation as changing the rationale of the war from one for preservation of the Union to one for abolition and the subjugation of the South. 

Of course, neither Carroll, nor anyone else could envision that emancipation under any circumstances would prove so unpalatable to the South that the old order would shortly reassert itself in a new guise.

--C. Kay Larson