Freedom National: The Destruction of Slavery in the United States, 1861-1865 Page 21
Whether deliberately or inadvertently, Lincoln settled the issue when he instructed General Frémont to rewrite his order to comply with the First Confiscation Act. The president thereby left no room for doubt that as far as he was concerned, the laws of war did apply to Missouri. That much was settled. But precisely what did Lincoln expect Frémont to do? Under Section 4 of the First Confiscation Act, slave owners merely forfeited the services of slaves used in the rebellion. Is that all Lincoln intended? Or did the president mean to apply the much broader August 8 War Department instructions, thereby emancipating all slaves who came voluntarily within Union lines in the Border States? Republicans justified military emancipation on the grounds that the disloyal states forfeited all constitutional protection of slavery when they seceded. The August 8 instructions held out the prospect of compensation for loyal masters whose slaves had been freed. Were Union officers in the Border States expected to recognize the distinction between loyalty and disloyalty, whether of states or individuals? Lincoln did not expressly say. For the time being, the Union army was on its own.
“NEITHER NEGRO CATCHERS NOR NEGRO THIEVES”
Northern generals in the Border States interpreted Lincoln’s policy to mean two different things. First, when slaves came into Union lines, soldiers would distinguish between those who had been put to work for the Confederates and those who had not. Even General McClellan, who had so ostentatiously vowed to uphold the property rights of slaveholders, now ordered his men to inquire into the origins of slaves arriving at their camps. Union officers should “ascertain the nature of the employment of the negroes in question while amongst the enemy,” McClellan explained. “If they or any of them have been employed for military purposes, those so employed will be detained by you for such labor as the public policy may offer.”38 This was the standard established by the First Confiscation Act: slaves used in support of the rebellion would not be returned to their owners. It quickly came to mean distinguishing between the slaves of loyal and disloyal owners.
This left unanswered the question of what Union soldiers should do with the slaves of loyal owners in the loyal slave states. Policymakers in Washington were clear that the Union army should not involve itself in the capture and return of fugitive slaves under any circumstances. In response Union generals devised a second approach to slavery in the Border States. In the vernacular of the times, Union soldiers would be “neither negro catchers, nor negro thieves.” The Union army would not enforce the Fugitive Slave Act anywhere in the Border States, but soldiers would never be put in the position of having to enforce it because fugitive slaves would not be allowed into Union camps. The soldiers would not serve as “slave-catchers” for southern masters, but neither could they become “slave thieves” by admitting fugitives into the protection of Union camps. This formula was sufficiently vague that both proslavery and antislavery generals could embrace it with enthusiasm. On August 8, 1861, Major General John Dix, one of the northern commanders most determined to defend the slaveholders’ rights of property, nevertheless declared that Union soldiers in Maryland would be “neither negro-stealers nor negro catchers.” Two months later in Missouri, James Lane, the ferociously antislavery senator who now commanded the “Kansas Brigade,” echoed Dix’s sentiment. The men of his unit, Lane vowed, “shall not become negro thieves nor shall they be prostituted into negro catchers.”39
The first and most obvious of the many problems arising from these two policies was that they contradicted one another. What was the point of ascertaining whether slaves coming to Union camps had been used in the rebellion if all slaves were to be excluded anyway? Conversely, what was the point of a general rule excluding slaves if those used in support of the rebellion had to be admitted to Union camps? “Neither slave catchers nor slave thieves” seemed a simple rule of thumb, but in practice it provoked all sorts of conflicts. If exclusion relieved Union soldiers of any obligation to return fugitives to their owners, it also meant the expulsion of slaves who had escaped to Union camps.
Not surprisingly, more than a few of the officers and soldiers objected to the idea of turning away fugitives, while some willingly assisted slaveholders in their attempts to recover fugitive slaves. Either way, Union commanders had trouble implementing the neither/nor policy. Dix wrote one letter after another ordering his officers to stop admitting slaves into their lines. Slaves who “came to us,” he wrote, should always be sent away.40 When his officers complained that they found the idea of returning slaves to their owners objectionable, Dix repeatedly answered that if runaway slaves were denied admission to begin with, no soldier would ever be asked to return fugitives to their owners. The whole point of the policy, Dix explained, was to prevent the issue of fugitive rendition from arising. In Missouri, General Ulysses S. Grant could not enforce the rule because his own troops, treating official orders “with contempt,” continued to hide slaves running to their lines. Sometimes commanders issued orders to assist in the recapture of fugitives, knowing full well that the orders were unenforceable. It did not take long for Union commanders to realize that without the cooperation of rank-and-file soldiers there was little they could do to control the flow of slaves into their camps, no matter what policy was announced from on high.41
The generals themselves were divided over what to do. In late November of 1861, General Joseph Hooker “accepted sixty or seventy run away negroes” in his camp. Hooker wrote asking for instructions from General McClellan. In compliance with the Confiscation Act, McClellan instructed Hooker to inquire into the background of the fugitives and exclude all those who had not been used in support of the rebellion. But Hooker did not bother to wait for McClellan’s reply. Rather than turn away any slaves, he sent the women to Washington and put the men to work. Though he agreed to comply with McClellan’s instructions in the future, Hooker was clearly unwilling to do so because the fugitives had furnished him with “information concerning the rebels I had not before learned.” General William Tecumseh Sherman gravitated toward the opposite extreme, insisting well into the second year of the war that under both U.S. and Kentucky law, Union soldiers were obliged to return fugitive slaves to their owners. Sherman’s views were clearly different from those of General Henry W. Halleck, who insisted that Union soldiers should never be used to enforce state laws protecting slavery. In one case, acting on the constitutional presumption of universal freedom, Halleck ordered the release of sixteen slaves held in the St. Louis city jail by the sheriff, who had planned to sell them. Still other generals, like Grant, made inconsistent rulings based on their shifting understanding of official policy.42
Given the inconsistency within the Union army in the Border States, it was inevitable that disputed cases would make their way up the chain of command to officials in Washington. When they did, the antislavery bias of federal policymakers became clear. One of Secretary of War Cameron’s favorite tactics—the dodge of many a determined bureaucrat—was to ignore requests for assistance from officers inclined to protect slavery. This drove General Dix to distraction. On August 8, he wrote to the secretary asking for clarification of the administration’s policy regarding fugitives who were successfully escaping onto Union ships docked in Maryland. “To this letter I have received no answer,” Dix grumbled to his superiors nearly two weeks later. Meanwhile, the captain of a Union navy vessel continued to accept the fugitives. After repeatedly ordering the ship’s captain to turn the fugitives away, Dix soon discovered that his instructions were being countermanded by the secretary of the Treasury, Salmon Chase. In frustration Dix appealed instead to General McClellan, who likewise declined to respond. By the end of 1861, Dix’s repeated orders were becoming pointless. In November he instructed Colonel H. E. Paine of the Fourth Wisconsin Volunteers to “do all in your power to correct the misapprehension” that this was a war against slavery. Dix insisted that the sole “mission” of the army was to “uphold the Government” against treason. “Multitudes are laboring under delusions—the fruits of misrepresen
tations and falsehood”—that this was also a war against slavery. “You will take especial care not to interfere in any manner with persons held to servitude, and in order that there may be no cause for misrepresentation or cavil you will not receive or allow any negro to come within your lines.”43
The secretary of war’s reluctance to do anything to sustain slavery was clear in his response to the demands made by Congressman Calvert. In July of 1861, the congressman wrote to Cameron informing him that Union soldiers in Maryland were making “tempting offers” to slaves, encouraging their escape. “I know it is not the desire of the Government to encourage the escapes of this Species of property from the lawful owner,” Calvert wrote. The congressman “most respectfully” requested that Cameron order all Union commanders in Maryland to stop enticing slaves into their camps. Although enticement was prohibited by his own policy, Cameron tried to put the senator off. The “pressure of business,” he wrote, “has prevented any definite action in the premises.” Calvert persisted. In mid-July he wrote another letter to Cameron asking that blacks attempting to board railway cars in Maryland be checked by the Union army, and for assistance in the recapture of one of his own slaves as well as a neighbor’s runaway. Under such intense pressure from an aggressive member of Congress, Cameron relented and issued the orders Calvert asked for. But this was a classic case of an exception proving the rule.44
In most cases Cameron responded to pressure by tilting in favor of emancipation, if only because so much of that pressure came from the opponents of slavery. If Calvert demanded that the army respect the complaints of slaveholders, Republicans politicians were often quick to denounce the army for being too solicitous of the masters’ interests. It was Cameron, for example, who had declined to block the ruling of a provost judge in Alexandria, Virginia, after he freed a slave who had testified that her master was abusive. When Union General W. R. Montgomery wrote Cameron to ask if such proceedings were proper, the secretary replied that he was “not disposed to interfere with the decisions of the Provost Judge” and that he had “no desire to set aside his action” in the case. Cameron’s successor, Edwin M. Stanton, if anything was even less responsive than Cameron had been. In March of 1862, Maryland lawmakers were still complaining that the “loyal citizens” of the state, attempting to recover their runaway slaves from Union camps, “have been violently contravened in the legitimate pursuit of their property.” The complaints of Maryland slaveholders “will receive his attention,” Stanton wrote, “as soon as he is relieved from more pressing and important duties.” By then, however, Congress had stepped in to clarify Union policy in the Border States.45
GENERAL ORDERS NO. 3
In November of 1861, General Halleck, who replaced Frémont as commander of the Department of the West, attempted to codify the new policy by issuing General Orders No. 3. His “intent” was a familiar one: Halleck wanted “to prevent any person in the Army from acting in the capacity of negro catcher, or negro stealer.” The order was brief—a mere two paragraphs—but hopelessly ambiguous. In the first paragraph Halleck explained that a number of “fugitive slaves” who had been admitted to Union lines were subsequently providing information to the Confederates regarding the “numbers and condition of our forces.” Hereafter “no such person” should be admitted into the camps of “any forces on the march.” The second paragraph was more general. It instructed all Union officers to prevent “unauthorized persons of every description from entering and leaving our lines.” A close reading of the order raises a host of questions. Who was being “excluded” from Union camps—“fugitive slaves” or “unauthorized persons”? And what were they excluded from—all Union lines, or the camps of Union forces “on the march”? However unclear the order was, it was immediately and widely read as a blanket exclusion of all slaves coming to Union lines. Union officers in the Border States began expelling blacks from their camps.46
In early November, Colonel G. M. Dodge, in command of a post at Rolla, had ordered the confiscation of the property and slaves of anyone whose whereabouts could not be ascertained, on the assumption that if they were not at home they must be away supporting the rebellion. “Be sure they are aiding the enemy,” Dodge had written, “and then take all they have got.” He qualified the order by warning his men to “[b]e careful in taking contraband negroes that their owners are aiding the enemy.” Dodge was enforcing the Confiscation Act in Missouri. But a week after Halleck issued his General Orders No. 3, Dodge revised his own orders and told his officers to “immediately deliver to these Head Quarters, All fugitive slaves,” and to forbid any more slaves “to enter and remain, within the Lines.” Dodge did not turn any fugitive slaves over to their owners, but he did expel them from his camp.47
This was a violation of federal policy. In September, Lincoln had ordered Frémont to enforce the First Confiscation Act in the Border State of Missouri. At the very least, slaves used in rebellion were to be emancipated, not excluded from Union lines. That same month the War Department instructed General Dix to accept slaves escaping to the Border State of Maryland from the seceded state of Virginia. Similar orders were sent to Kentucky, where fugitives escaping from disloyal masters in Tennessee were making their way to Union camps. On December 22, 1861, the adjutant general directed “that exceptions be made in regard to fugitives in such cases.”48
Halleck understood that the First Confiscation Act applied to the Border States, and when he realized that his own officers were reading General Orders No. 3 as a blanket exclusion of all escaping slaves, he had to issue a series of clarifications. On December 4, 1861, he released General Orders No. 13, declaring martial law and spelling out the procedures for confiscating rebel property and emancipating slaves. “The laws of the United States confiscate the property of any master in a slave used for insurrectionary purposes.”49 Halleck believed he was enforcing the law as Congress had passed it. “Military officers do not make laws,” he explained, “but they should obey and enforce them when made.” As a legal scholar who had written an entire book on the laws of war, Halleck had no doubt that military emancipation was a legitimate wartime practice. “These orders may by some be regarded as severe, but they are certainly justified by the laws of war, and it is believed they are not only right, but necessary.” He emphasized the point in a letter to Missouri Congressman Frank Blair Jr., which Blair read on the floor of the House of Representatives in December. General Orders No. 3, Halleck explained, was an attempt to comply with Congress’s wishes, not to evade them. He was merely trying to implement the policy as best he could understand it, and was ready at any moment to draft a different set of orders should the policy change.50 Halleck claimed that General Orders No. 3 excluded only “unauthorized persons” from Union camps, whether such persons were white or black, slave or free. Among those authorized to enter Union lines were free blacks working as wage laborers for the army and slaves emancipated under the terms of the First Confiscation Act. None of this was clear from his original order, however.
According to Halleck’s clarification, masters who tried to retrieve their runaway slaves were “unauthorized” to enter Union camps. Major George Waring discovered this in December after reluctantly implementing what he believed was Halleck’s general exclusion of fugitive slaves. Upon surveying the blacks working in his camp, Waring discovered that the mess cook was a slave claimed by one Captain Holland, who came into the camp waving a copy of Halleck’s Orders No. 3. “In compliance with your order,” Waring wrote, “she was given up to him.” Waring was writing to explain why, for moral as well as practical reasons, he did not want to expel any of the others. But in his response Halleck actually upbraided Waring for allowing a slaveholder to enter a Union camp and retrieve a fugitive. “This is contrary to the intent of General Orders No. 3,” Halleck explained. He had never suggested that blacks could not work inside Union army camps, nor were Union soldiers to participate in any way in the capture and return of fugitive slaves.51
Perhaps because t
hey were in close contact, General Grant seemed to understand what Halleck was doing. Like most Union officers, Grant believed in civilian rule and was prepared to implement federal policy regardless of his personal feelings. His own position on slavery and the war was a familiar one. “If it is necessary that slavery should fall that the Republic may continue its existence,” he wrote to his father, “let slavery go.” But he did not believe he had any authority to make policy on slavery, and so his own treatment of fugitives moved with the movement of his superiors. After Frémont issued his emancipation edict in Missouri, Grant issued his own orders to enforce it, but once Lincoln rebuked Frémont, Grant reversed himself. He prohibited his men from interfering with slavery and at one point ordered the return of a fugitive slave to his master. With Halleck’s Orders No. 3, Grant instructed his officers to send disloyal masters to local courts for assistance in securing their “civil right” to slave property. Such slaves, Grant ordered, were “not to be restored to the master by military authority.” The general thereby sustained the decision of Colonel Leonard F. Ross, at Cape Girardeau, Missouri, who claimed it was his “duty as an officer” not to return a young black man to his owner, who was then serving in the Confederate army.52
Halleck likewise professed himself ready to enforce whatever policy came out of Washington. “I am ready to carry out any lawful instructions in regard to fugitive slaves, which my superiors may give me,” he said. As he understood that policy, however, slaves escaping from loyal masters in the Border States would still be legally excluded from Union camps. Like Lincoln, Halleck hinted that he was ready to enforce a much broader emancipation policy if Congress implemented one, but until then he would remain within the confines of the First Confiscation Act. “I cannot make law,” Halleck said, “and will not violate it.”53 Until Congress acted, fugitive slaves of loyal masters in the Border States were to be excluded, except those who had been legally emancipated under the statute Congress had passed. That wasn’t good enough for congressional Republicans.