Freedom National: The Destruction of Slavery in the United States, 1861-1865

by James Oakes

  When Congress came back into session in early December of 1861, Republicans were in an uproar over stories of Union soldiers turning away fugitive slaves. Outraged congressmen told of slaves who had risked their lives crossing the Ohio River to reach the “flag of liberty” waving on the northern shore, only to be seized by northern soldiers and returned to their owners. In late 1861, Brigadier General Charles P. Stone, a Union officer in Poolesville, Maryland, ordered some Massachusetts soldiers to arrest and return several slaves to their owners. The slaves had come to the camp “for the purpose of selling cake, pies, &c to the Soldiers.” Seeing that the blacks were themselves “almost famished,” a German American company treated them to breakfast. The soldiers were clearly upset when they later discovered that the blacks had been seized and returned to their owners, and one of them wrote a letter of protest to the antislavery governor of Massachusetts, John Andrew, who had been responsible for organizing the regiments to begin with. Andrew in turn wrote his own letter of protest to the secretary of war, Simon Cameron. “Massachusetts does not send her citizens forth to become the hunters of men,” Andrew complained, “or to engage in the seizure and return to captivity of persons claimed to be fugitive slaves.” The controversy escalated still further when Andrew demanded an explanation from the officer who had ordered the arrest. The officer in turn protested the governor’s interference to General McClellan, who proceeded to make matters worse. Rather than discipline Stone for violating Union policy, McClellan instead chastised Governor Andrew for improper civilian interference in the military chain of command. Cameron in the meantime had written to Stone’s commanding officer, General Nathaniel Banks, urging him to prevent such abuses in the future. By then Andrew had alerted his friends in Congress, who made a conspicuous example of Stone by hauling him before the newly formed Committee on the Conduct of the War and destroying his career.54

  Republicans blamed these violations on Halleck’s Orders No. 3. On December 9, the House of Representatives formally requested the president to have Halleck withdraw his order.55 They introduced legislation designed to overturn it. In the House, Owen Lovejoy proposed a law making it a crime for anyone in the army or navy “to capture or return, or aid in the capture or return, of fugitive slaves.” In the Senate, Henry Wilson of Massachusetts introduced a similar bill making it a misdemeanor for any officer to assist in the recovery of fugitive slaves, punishable by dishonorable discharge and permanent exclusion from service in the army or navy. These bills assumed that Halleck had ordered Union soldiers to return fugitive slaves to their owners. In fact, Halleck actually agreed with congressional Republicans that enforcing the fugitive slave clause was none of the army’s business.

  The real problem with General Orders No. 3 lay elsewhere. Halleck’s order required soldiers to determine the status of blacks coming to Union lines. Free blacks along with slaves emancipated by the First Confiscation Act were admitted; slaves of loyal masters in loyal states were excluded. Republicans, however, did not believe soldiers were competent to determine anyone’s legal status. On the contrary, as agents of a federal government based on the principle of freedom national, Union soldiers could only presume that all persons coming into their lines were free. By late 1861 a consensus had emerged among Republicans that if an African American arrived at a Union military installation offering to work, and if there was work to be done, the military commander had to assume universal freedom and was therefore within his rights to employ that person. If someone later showed up claiming the black employee as a slave, and if the employee preferred to stay, the putative master was to be turned away and told to seek redress with local civil and judicial authorities. Congressional Republicans repudiated Orders No. 3 for the same basic reason Lincoln had repudiated Frémont: the status of anyone coming to Union lines was a political, not a military question. Union soldiers were not competent to determine whether anyone was legally free or legally enslaved.

  Imagine this scenario, Senator Edgar Cowan of Pennsylvania suggested: I’m a Union general and someone shows up at my camp and says to me, “Sir, here is my negro; I want him.” What am I supposed to say? “It may be that this is your negro; but I cannot determine that question; I cannot try the title to him; I am not a court; I am not a jury.” For me to hand over the alleged slave “presumes that I decide the very question which I am incompetent to decide.” A military officer who presumes “to exercise the functions of civil magistracy, and undertakes to sit upon the right of any human being born within the limits of this Republic . . . is worse than a kidnapper. He has no right to do it,” Ohio Congressman John Bingham declared, “and by doing so commits a crime, a great crime.” It amounted to “military despotism” for the U.S. Army to exercise that kind of power. Slavery was a strictly local institution and could only be enforced by local authorities.56

  Republicans argued that the bills criminalizing military enforcement of the fugitive slave clause did not “interfere” with slavery in the states where it existed, because slaveholders were still entitled to pursue the return of runaway slaves through the proper legal channels within their own states. “The return of fugitive slaves,” a leading Republican radical explained, “is a civil question, a judicial one, not a military one.” Another Republican senator understood the bill “as simply prohibiting military men from disgracing the uniform” of the United States “by engaging in the business of slave-catching, and delivering slaves to their owners,—a disreputable business, in which no gentleman, North or South, military or civil, I undertake to say, will willingly engage.” Under the legislation the Republicans were pushing through Congress, U.S. soldiers not only were forbidden to enforce state and local fugitive slave laws, but also would actually be punished for doing so.57

  Democrats and Border State congressman objected. Responding to the Lovejoy bill criminalizing the return of fugitives by military personnel, Delaware Senator Willard Saulsbury wanted to make it a crime for any soldier to deprive a loyal master of his rightful claim to a slave. His goal was consistent with the Democratic Party’s position that the war had nothing to do with slavery: he would separate the military completely from slavery, punishing those who interfered with it either by returning fugitives to their owners or by refusing to respect the legitimate property claims of owners. But Saulsbury’s proposal demanded a degree of federal neutrality that was incompatible with the doctrine of freedom national. As Senator Wilson explained, any legislation “protecting, covering, or justifying slavery for loyal or disloyal masters” was a violation of the Constitution. The southern states already had laws regulating the capture and return of fugitives, and those laws were still in force in the slave states that remained in the Union. But U.S. soldiers, agents of the federal government, who returned fugitives to their masters did so without legal sanction. A new law was necessary, Wilson said, to stop the practice by punishing soldiers who returned slaves when they had no legal authority to do so.58

  In early March of 1862, the House passed, by a vote of 83 to 42, the bill prohibiting the U.S. military from enforcing the fugitive slave clause. Six days later, Wilson brought the House bill up for consideration in the Senate. Once again Democrats did what they could to stall passage, but this time Republicans whisked away every effort to amend the legislation. On March 10, the Senate passed the bill by a vote of 29 to 9. In both houses, Republicans gave the bill their nearly unanimous support while almost every Democrat opposed it. Lincoln signed it on March 13, 1862.

  By then Halleck had already rewritten his orders yet again, this time to take his Republican critics into account. “It does not belong to the military to decide upon the relation of master and slave,” Halleck decreed. “Such questions must be settled by the civil courts.” This effectively destroyed General Orders No. 3 as the army’s policy in the Border States. By April of 1862, a month after Lincoln signed the bill into law, not even Halleck was willing to enforce his original order. When a Missouri slaveholder claimed that he was chased down and stoned by nort
hern soldiers as he tried to recapture his runaway slave, Halleck claimed there was nothing he could do. The frustrated master sent his complaint to Secretary of War Stanton, who likewise ignored the slaveholder.59

  STRUGGLE ON THE GROUND

  In most places, restricting enforcement of the fugitive slave clause to local authorities effectively inhibited the capture of runaways, but in Washington it created a loophole that enabled the city marshal, Ward Lamon, to jail runaways from loyal states and Union-occupied parts of Virginia for much of the war. In December of 1861, Secretary of State William Seward instructed General McClellan that Union troops were not empowered to enforce the fugitive slave clause. As a result, fugitives entering the city who found their way to Union army or “contraband” camps were emancipated, whereas those captured by the city marshal were often jailed and returned to their owners. Frustrated Republicans tried to stop Lamon, but by their own legal logic there was nothing they could do; enforcement of the fugitive slave clause was strictly up to local civil and judicial authorities.

  By the spring of 1862 a disproportionate number of the complaints about slaves being returned to their owners involved local police officials. Slaveholders in the Border States learned quickly that if they wanted to recover their slaves from a Union camp, they would have to bring the sheriff with them, preferably with a court order in hand. Traveling with Union troops in Maryland in late 1861, a black reporter named George Stephens complained of “a man who is dignified with the title of sheriff” who “rode into camp with a posse of five persons, and seized a little boy about 15 years of age, a fugitive from slavery.” So hostile were the Union soldiers that the sheriff and his posse required the assistance of “a sergeant and a guard to escort them over the lines.” To prevent such incidents in the future, Stephens and others began urging Maryland fugitives to enter federal lines from the Virginia side of the camp because not even a sheriff and his posse could secure the return of a fugitive from a seceded state. Over time fewer and fewer sheriffs succeeded, especially after Lincoln issued the Emancipation Proclamation. In one incident in late 1863, slaveholders in Eastville, Maryland, arrived at a Union gunboat, sheriff and official papers in tow, claiming their slaves who had escaped the night before. Rather than obey the sheriff, the Union troops roughed him up and sailed away with the fugitives untouched.60

  The new federal policy put enormous pressure on the Border States, which was probably the point. The December 9, 1861, congressional resolution asking Lincoln to overturn General Orders No. 3 noted that Halleck’s policy was inconsistent with military practice in the seceded states, where fugitive slaves were being admitted to Union lines. Republicans were implicitly demanding that the antislavery policy already in place in disloyal states be applied as well to the loyal slave states. Senator Wilson implied the same thing when he said that Union soldiers could not legally protect slavery “for loyal or disloyal masters.” By the spring of 1862, Republicans from the president on down were becoming more and more frustrated by the resistance to abolition in states like Delaware and Kentucky. By making it all but impossible for the army to enforce the fugitive slave clause even in the loyal slave states, Republicans were ensuring that “the incidents of war” would be felt within the loyal slave states.

  6 “SELF-EMANCIPATION”

  Whether the Cotton States are permitted to secede, or whether they return to their allegiance, the doom of Slavery will be equally sure. If they insist upon independence . . . Slaves by the scores and the hundreds, from Georgia and Alabama, would soon tread a highway through the vallies, in their exodus. Not to speak of the terrible danger of Slave Insurrections, and of “Mean White” rebellions, the destiny of Slave Institutions in the “Confederate States” would be quickly settled by the process of self-emancipation.1

  Success in war was the jubilee of emancipation, and the captives returned to their normal state of freedom. And no divine ordinance was enacted covering the assumed right of the master to recover his fugitive slave in such a case. Self-emancipation by such recognized means was the right of the slave.2

  IN EARLY AUGUST OF 1861, three Virginia slaves who lived on the shore of Chesapeake Bay escaped by canoe, hoping to make their way to freedom in Baltimore. Intercepted by Union soldiers in Maryland, the slaves came to the attention of General John Dix. “I take it for granted they are fugitives,” Dix wrote. As such he proposed to treat them like other escaping slaves in Maryland. “We would not meddle with the slaves even of secessionists,” the general explained in a letter to the Secretary of War, “we are neither negro-stealers nor negro-catchers.” It made no difference to Dix that the slaves had run from a state that had seceded from the Union. “[W]e should send them away if they came to us,” he wrote. But on September 3, the War Department corrected General Dix. The fact that the fugitives had escaped from a disloyal state made all the difference. The secretary of war referred Dix to his August 8 instructions to General Benjamin Butler at Fortress Monroe, also in Virginia. Citing the First Confiscation Act, the War Department had authorized Butler to treat as free all slaves voluntarily entering Union lines. The secretary forwarded a copy of his instructions along with his reply to Dix, effectively ordering him to apply the same standard to the three Virginia slaves who had rowed their way to Maryland. Whatever rules applied to the Border States, they did not alter the fate of slaves escaping from seceded states. The three refugees would not be turned away but allowed to remain within Union lines, where they could work for wages. Dix’s fugitives were to be treated as free.3

  The War Department’s instructions also specified the limits that defined the contours of the Union’s initial emancipation policy. Although they were to treat as free all fugitives from rebel states voluntarily entering Union lines, U.S. soldiers could not go onto farms and plantations and “disturb” the normal workings of slavery, nor could they “entice” slaves into their lines, even from states that had seceded from the Union. This restriction remained in place until Lincoln issued the Emancipation Proclamation on January 1, 1863. Until then the Union army was a paradoxically passive agent of emancipation. Because enticement was prohibited, the slaves themselves would have to take action—they would have to run away from their owners or refuse to accompany their owners in flight from invading Union troops.4 This was known as “self-emancipation.”

  For decades after the American Revolution, “self-emancipation” almost always referred to slaves who managed to purchase their own freedom from their masters. Sometime around 1840, however, abolitionists began referring to a second type of self-emancipation in which slaves freed themselves by claiming their liberty in areas where slavery had no legal existence. In the absence of “positive” or “municipal” laws creating slavery, the natural right of freedom prevailed. Slaves who escaped to “free soil” or who rebelled against their captors on the high seas were said to have “recovered” their natural right to freedom. An antislavery sermon from 1846 described the annual escape of hundreds of slaves to the North as “a very harmless way of self-emancipation.”5

  The slave rebellions on board the Creole and the Amistad inspired opponents of slavery to develop the case for this new form of self-emancipation. The abolitionist William Jay repeatedly described the rebels on the Creole as “self-emancipated slaves.” Arguing before the Supreme Court on behalf of the Africans who had rebelled on the Amistad, John Quincy Adams referred to his clients as “self-emancipated.” In his published analysis of the case, the abolitionist Samuel May likewise referred to the Amistad rebels as “self-emancipated.” The terminology was neither an accident nor a coincidence. In his own response to the Amistad rebellion, Representative Joshua Giddings explained the concept of self-emancipation on the floor of Congress. Before the revolution, he said, the thirteen colonies adhered to the common-law rule that “if a slave should escape to a free state, he would thereby gain his freedom.” But the slaveholders, suspicious of what Giddings called “this species of self-emancipation,” demanded the insertion of a fugiti
ve slave clause into the Constitution. This made the status of fugitives in the North legally anomalous: the natural right of freedom prevailed in the absence of “positive” local laws creating slavery, yet the Constitution gave masters the right to recapture slaves who escaped to the northern states where slavery had been abolished.6 Slaves who made their way to “free soil” were self-emancipated, but was the North truly free soil?

  The question became urgent in the wake of the Fugitive Slave Act of 1850. Opponents of slavery not only objected to the law but also claimed that growing numbers of northerners were revolted by the thought of “returning self-emancipated slaves into bondage.” In a Thanksgiving sermon delivered in late November of 1850, the Reverend William Marsh declared that “the man who would deliberately, with his eyes open to the character of slavery, send back the self-emancipated slave, would underbid Judas in selling his Lord.” When southerners responded to northern complaints by threatening to withdraw from the Union, Congressman Horace Mann of Massachusetts dismissed the likelihood of secession for the simple reason that the “dissolution of the Union repeals the accursed act of 1850.” As of 1852, Mann argued, Canada was “the only free soil . . . on the northeastern part of this continent.” But if the South seceded, the Canadian border would move “down to Mason and Dixon’s line,” instantly transforming the northern states into free soil. “The knowledge of a North star is penetrating further and further into the southern interior,” Mann declared, “and arousing new hearts to the effort of self-emancipation.” Secession dramatically increased the prospects for self-emancipation because, in effect, it did move the Canadian border down to the Ohio River. The Confederate nation created a new “strategic line” that runaway slaves could cross and thereby emancipate themselves merely by coming into the North. Under these circumstances, the radical William Channing asked, “[H]ow long can the ‘Confederates’ retain their cherished institution? There will be no ‘Fugitive-Slave Law’ then, no ‘Dred Scott’ Judges of the Supreme Court, no District Marshals and pliant Commissioners ready to intercept the followers of the North Star.” Slavery’s destruction would then proceed quickly, Channing explained, “by the process of self-emancipation.”7