by James Oakes
SOLDIERS AND SLAVES
For as long as there was slavery, there were slaves who took advantage of war and civil strife to break for their freedom in any way they could. The slaves in the Border States were no exception. The political instability and military insecurity caused by the outbreak of the Civil War created ideal conditions for slaves to press for their freedom. Indeed, escaping slaves were not merely responding to disruption—to a large extent they were the disruption. Union army commanders had to respond, but it was not clear how. By long-standing federal policy, the government in Washington enforced the fugitive slave clause and the Union army acted accordingly. The Republicans who took power and began making policy in July of 1861 started from a very different premise: even if the federal government was supposed to enforce the fugitive slave clause—which most Republicans doubted—the Union army was not. Veteran officers (and Democratic generals) were sometimes slower than new recruits to appreciate the implications of the Republican takeover of the federal government. Then, too, it took longer for Republicans to formulate an antislavery policy for the Border States that was as clear-cut as the contraband policy they applied early on to the seceded states. As a result, different Union commanders responded differently to the chaotic military and political conditions in the Border States, and slaves who claimed their freedom by running to Union lines often found themselves embroiled in conflicts between soldiers and officers over how to deal with runaways—and the slave owners who came looking for them.24
On June 10, 1861, six slaves from Howard County, Maryland, escaped to nearby Washington, where they found a regiment of Union soldiers from Connecticut. Clearly aware of the politics of the sectional crisis, the fugitives declared—or so a Union officer reported—that their masters were “secessionists in sentiment and opinion and members of secret military organizations hostile to the Government.” The runaways thereby created a dilemma for Alfred H. Terry, the colonel in charge of the regiment. Maryland was a loyal state, yet many of the state’s slaveholders sympathized with the South. If what the fugitives were saying was correct, could Colonel Terry send them back to their traitorous owners? Slaves in Kentucky made the same claim under similar circumstances. In November, shortly after Union troops arrived in the state, ten runaways appeared at Camp Nevin claiming that “there masters are rank Secessionists, in some cases are in the rebel army—and that Slaves of union men are pressed into service” for the Confederates. Like his Maryland counterpart, the Union commander in Kentucky, Brigadier General Alexander McD. McCook, was not sure how to respond. Despite the pro-southern sympathies of many of the state’s slaveholders, Kentucky had not seceded from the Union. McCook had “no faith in Kentucky’s loyalty” but no particular interest in helping slaves escape, especially if it might weaken the unionists in the states. What, he asked his superiors, was he supposed to do? Slaves often had good reason to believe that their master’s disloyalty would justify their emancipation. During the first summer of the war, a black woman who “absconded the premises of her master” was captured and returned to her owner, only to run away a second time. Brought before a provost judge, she “complained of certain bad treatment from her master.” Her owner, having refused to swear his loyalty to the Union, was barred from testifying. The slave “was liberated and her master sentenced to be incarcerated.”25
Denouncing their masters as “secessionists” was only one of the ways escaping slaves tailored their biographies to suit the criteria for freedom established by different Union commanders in different Border States. Where Union troops were under orders to exclude slaves from their camps, fugitives often presented themselves as free blacks. In late 1861, Major George Waring examined the blacks working in a Union army camp in Rolla, Missouri, and found “they all stoutly asserted that they were free.” Unable to disprove their claim, though he realized it could not possibly have been true, Waring was unwilling to risk expelling free blacks. By claiming they were already free, the refugees evaded the order to keep “fugitive slaves” from Union camps.26
Slaves often provided northern troops with important military intelligence about the location of rebel troops or their supply depots, and Union officers were extremely reluctant to turn over such slaves to their owners. Two slaves in Fulton, Missouri—to give but one example—proved such useful guides and had provided so much “valuable information” to the Union army that General John M. Schofield “permitted them to remain under the protection of our troops. To drive them from the camp,” he explained, “would subject them to severe punishment, perhaps death.” Beyond the immediate value of slaves who provided military intelligence, there was the increasingly urgent question of the military value of slaves to the rebels. “Every negro returned to these traitors adds strength to their cause,” one Missourian explained to the secretary of war in December of 1861. Why, he wondered, would the U.S. Army waste precious resources “hunting up & guarding the slaves of traitors while the secessionists are robbing & plundering loyal men in the western part of the state?”27
Union soldiers in the Border States were clearly cooperating with the slaves, refusing to turn them over to their owners and hiding them in camps, sometimes with and sometimes without the support of their immediate superiors. Having come of age during the 1850s, many Yankee soldiers had shared the horror and dismay as “slave-catchers” roamed the streets of northern towns and cities. Recruits came into the Union army in 1861 from a society that had just passed through a decade of protracted debate over slavery and emancipation. Many—if not most—went South assuming that slavery had caused the war, and most were at least familiar with the commonplace Republican prediction that slaves would run for freedom to invading Union troops. So it was hardly surprising that once they got to the South, northern soldiers were enraged by the spectacle of slaveholders and their agents prowling through Union army camps in search of runaways.28
From the earliest weeks of the war, there were reports that owners looking for fugitives felt “menaced” by Union troops, especially in Maryland. Slaveholders repeatedly complained that they were harassed when they entered Union camps in search of their runaway slaves. In November of 1861 a Maryland master showed up at a Union camp near Annapolis in search of a “servant, that had left him.” But upon entering the camp, the owner was surrounded, or so he claimed, by “quite a number” of soldiers who threatened him “and applied opprobrious Epithets” such as “Negro stealer” and “Negro catchers,” until “he was obliged to leave the ground, without looking for his servant.” The same thing happened to A. J. Smoot, another Maryland master who went to Camp Fenton looking for a teenage boy who had escaped to the Union army camp. Smoot said that when his mission became “general known” among the soldiers, “a large crowd collected and followed me crying shoot him, bayonet him, kill him, pitch him out, the nigger Stealer the nigger driver.” The verbal taunts were supplemented by “a continued shower of stones.” Richard Green likewise went looking for a runaway slave at a Union camp in Montgomery County, Maryland, “but was driven out and was not permitted to look for him.” Two months later Green went back and found his runaway, but when he “attempted to take him out,” Green declared, “a large crowd got around him and knocked him about throwing small stones and dirt at him and otherwise ill treating him and finally driving him out of the camp without allowing him to take his Negro.” In Fulton, Missouri, a “gentleman” who tried to retrieve a slave from a Union camp was “repulsed by an officer who threatened to shoot him if he persisted.”29 Nor was antislavery intransigence restricted to enlisted men. There were numerous complaints against Union officers who were at best indifferent to masters who came looking for their slaves. The Maryland owner who had been subjected to a “shower of stones” gave up his search when he realized that the Union officer accompanying him “took no notice of what was going on.” A Missouri master who asked “for permission to recover his negro” claimed he was “rudely refused” by a Union colonel. When another master was surrounded by a “lar
ge crowd of Soldiers” shouting, “Bayonet him, Drum him out,” the colonel in charge of the outfit calmly told the owner that “the best thing he could do would be to get on his horse & leave the camp,” which he did—“and did not get his negro.”30
Just as slaves developed strategies for evading the rules excluding them from Union military camps in the Border States, northern soldiers proved ingenious at thwarting slave-catchers. Some of these strategies were clearly holdovers from the fugitive slave crises of the previous decade. Many northern states had passed “personal liberty laws” ensuring the rights of due process for all accused runaways. Northern officers sometimes brought the same standard with them into southern army camps. Colonel Henry Briggs informed masters “that I shall neither give nor permit those in my command to give aid in the rendition of slaves beyond that required under due process of law.” Union officers often demanded proof of ownership before they would release blacks to anyone coming into a camp claiming a slave. Slave-catchers were likewise required to prove that they were legally authorized to act as “agents” of masters who sent them.31
Union soldiers had moral as well as mundane objections to sending fugitives back to their owners. Commanded “to turn out from my camp any colored servant that may be claimed as a slave,” Colonel Briggs asked “to be relieved from the order” on the grounds that it would “violate my conscience” to follow it. Under similar orders in Missouri, Major Waring announced to his commanding officer “my private feelings revolt” at the practice. Besides, Waring added, there were very real practical considerations to keep in mind. Blacks working as teamsters for the Union army or as personal servants to individual soldiers needed those jobs; without them they “would be homeless and helpless.” Moreover, the loss of “our servants” would be a great “personal inconvenience” to the officers and soldiers who employed them.32
Fugitives who arrived accusing their masters of treason, or claiming they were free blacks; common soldiers repelled by the spectacle of slave-catchers scouring their camps; local officers unwilling to turn away slaves who provided the Union army with valuable intelligence—how could Union generals formulate a policy that would not “interfere” with slavery in the Border States when it was clear that slaves would keep running to Union lines and that soldiers within those lines could not be counted on to send the slaves back?
FORMULATING FEDERAL POLICY IN THE BORDER STATES
Because slavery was still formally protected by the Constitution in the Border States, Republican policymakers claimed that the federal government could not emancipate slaves escaping to Union lines from loyal owners in loyal states. On the other hand, as of July in 1861, Republican policymakers made it clear that they did not want the Union army to be involved in the capture and return of fugitive slaves in any states, whether loyal or disloyal. Likewise, slaves used to support the rebellion were emancipated, no matter where they came from—a rule that specifically included slaves escaping into the Border States from seceded states. Faced with a plethora of different, often complicated policies dribbling out of Washington, Union commanders found it difficult to issue consistent orders. Nevertheless, the war was not only disrupting slavery on the ground in the Border States but also allowing Republican policymakers to take a more aggressive approach to slavery than they could have taken in peacetime.
For a short while at the outset of the war, administration officials in Washington and Union commanders in the field tried to protect slavery in the Border States. In May of 1861 General William S. Harney, Frémont’s predecessor in the West, had “no doubt whatever” that the government’s policy was to protect slave property in Missouri. In one extraordinary case, even Lincoln, responding to intense pressure from Maryland Congressman Charles Calvert, quietly suggested to General in Chief Winfield Scott that owners of slaves escaping from Maryland should be allowed “to bring back those which have crossed” the Potomac with Union troops. Orders followed swiftly, first from the assistant adjutant general to the commander of the Department of Washington and then, one day later, from the commander himself: “Fugitive slaves will under no pretext whatever be permitted to reside or be in any way harbored in the quarters and camps of troops serving in this department.” Embarrassed by his own request, Lincoln instructed Scott to ensure that it could not be traced back to the president. Never before, and never again thereafter, did Lincoln order anyone in the U.S. military to return escaped slaves to their owners. Indeed, the order was an anomaly, as well as a violation of his own stated principles. By early July Lincoln and his fellow Republicans in Congress made it clear that as a matter of principle, Union soldiers should not participate in the capture and return of runaway slaves.33
But even after July, escaping slaves were sent back to their owners in Kentucky. There General William Tecumseh Sherman returned even slaves whose masters were “rank Secessionists.” In mid-October, when two slaves escaped to a Union army camp near Louisville and the owner appealed for help, Sherman declared that the laws of the United States and of Kentucky “compel us to surrender a runaway negro on application of the negro’s owner or agent.” Sherman’s orders were unambiguous: “All negroes shall be delivered up on claim of the owner or agent.” As a general rule, Sherman added, it is “better to keep the negroes out of your camp altogether.” He repeated his order a few weeks later after learning that ten slaves had escaped to Camp Nevin. Because Kentucky had not seceded, the laws of the state of Kentucky “are in full force,” Sherman explained. Therefore, “negroes must be surrendered on application of their masters or agents or delivered over to the sheriff of the County.” In one sense Sherman was correct: the civil authorities in Kentucky were functioning, and it was a loyal state so its slave laws were still in force. But was it the business of the Union army to enforce those laws?34
In July of 1861, Attorney General Edward Bates emphatically declared that because Missouri remained a state within the Union, the fugitive slave law—like every other law—was still applicable. “The insurrectory disorders in Missouri are but individual crimes and do not change the legal status of the State nor change its rights and obligations as a member of the Union.”35 Bates, at least, believed that the Fugitive Slave Act of 1850 should be enforced in the Border States. However, the clarity of Bates’s assertion masked the complexity of the issue. Who was responsible for enforcing the Fugitive Slave Act? On the principle that freedom was national, most Republicans believed that laws relating to slavery should be enforced not by the federal government but by local civil and judicial authorities. Technically, the fugitive slave clause of the Constitution did nothing more than allow owners to reclaim runaway slaves who had crossed state lines. It did not specify who was responsible for reclaiming runaways, nor did it apply at all to slaves escaping within a state. The Fugitive Slave Act of 1850 transferred enforcement to a cadre of federal commissioners, and for that very reason most Republicans wanted the law revised, and many wanted it repealed. But even under the 1850 statute, federal commissioners were civilian rather than military officials, and by the time Bates scribbled that entry in his diary, Republicans had already agreed that capturing and returning fugitive slaves was, in the words of Owen Lovejoy’s House resolution of July 9, not the “duty” of the Union army or navy—not even in the Border States.
As of August 8, 1861, federal policy was to leave enforcement of the fugitive slave clause in the Border States entirely to the local government. According to Secretary of War Simon Cameron, this is precisely what distinguished the Union’s fugitive slave policy in the loyal states from that in the seceded states. In the disloyal states the federal government was officially emancipating slaves who voluntarily escaped to Union lines; in the Border States, slavery still operated within the Constitution, and for Republicans that restricted the federal government’s power to emancipate fugitives. In Cameron’s words, “[N]o question can arise as to fugitives from service within States and Territories in which the authority of the Union is fully acknowledged.” But Camer
on was not saying that the federal government was responsible for enforcing the fugitive slave clause. On the contrary, where local “civil authorities” were still functioning, he explained, the problem of fugitive slaves could be dealt with by “the ordinary forms of judicial proceedings.” Those civilian authorities “must be respected” by Union officers and soldiers. In short, Cameron’s August 8 instructions implied that enforcement of the fugitive slave clause in the Border States was the responsibility of those same states rather than the federal government, and of civilian authorities rather than the Union army. Union officers and soldiers who violated this policy by returning fugitive slaves to their owners were excoriated by Republican editors and politicians and often rebuked by their commanders.36
Did Cameron’s August 8 instructions mean that the First Confiscation Act, including its emancipation provisions, applied to the Border States? Nothing in the congressional debates or in the text of the statute indicates that Republican congressmen were thinking about the Border States when they passed the law. They had instituted military emancipation under the laws of war, but the Union was not at war with the Border States. At that point Missouri was the only Border State in which Confederate troops had engaged in battle with the Union army. The August 8 instructions were designed to clarify the status of fugitive slaves “in States in insurrection against the Federal Government.”37 On the other hand, the instructions had exempted only those areas in which federal authority was “fully acknowledged.” Given the state of military and political affairs in Maryland, Kentucky, and Missouri, it would be hard to claim that federal authority in the Border States was “fully acknowledged.” When, decades earlier, John Quincy Adams first declared that under some circumstances the federal government could “interfere” with slavery in the states, what he had in mind was not full-scale civil war but the suppression of domestic insurrections. At various points in 1861, Union troops were actively engaged in suppressing domestic insurrections within three of the four Border States. So the question remained: Did the First Confiscation Act apply to the slave states that had remained loyal to the Union?
