Frémont, commanding the Department of the West, had issued a proclamation on August 30, declaring martial law throughout the state of Missouri. Lincoln had problems with the third paragraph which went further than the Confiscation Act recently signed into law:
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.
Lincoln, who just then was trying hard to keep Kentucky in the Union, wrote to Frémont on September 2, asking the general to modify his proclamation. Frémont finally replied on September 8:
HEADQUARTERS WESTERN DEPARTMENT,
Saint Louis, September 8, 1861.
MY DEAR SIR: Your letter of the 2d by special messenger I know to have been written before you had received my letter, and before my telegraphic dispatches and the rapid development of critical conditions here had informed you of affairs in this quarter. I had not written to you fully and frequently, first, because in the incessant change of affairs I would be exposed to give 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 show you whether or not I was shaping affairs here according to your ideas. The shortest communication between Washington and Saint Louis generally involves two days and the employment of two days in time of war goes largely toward success or disaster. I therefore went along according to my own judgment leaving the result of my movements to justify me with you.
And so 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 and 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 judgment 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 movement. This is as much a movement in the war as a battle, and in going into these I shall have to act according to my judgment of the ground before me as I did on this occasion. 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 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. 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 or urge anything against it, or undertake to make unusual retaliation. The shooting of men who shall rise in arms against an army in the military occupation of a country is merely a necessary measure of defense and entirely according to the usages of civilized warfare. The article does not at all refer to 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 also 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 am satisfled that strong and vigorous measures have now become necessary to the success of our arms; and hoping that my views may have the honor to meet your approval,
I am, with respect and regard, very truly, yours,
J. C. FRÉMONT.
In addition to sending the letter, Frémont sent his wife, Jessie Benton Frémont, to Washington to plead his case. She would arrive in Washington on September 10.