The Legal Weapon
No topic in American history is as controversial, or more hotly debated, than the issue of slavery before and during the American Civil War. After Confederate forces fired on Union held Fort Sumter in April 1861, the Union army did not consider confiscating, or even liberating, slaves to be a war goal. The war was to be waged with as little destruction of personal property as possible, and besides, several slave holding states remained loyal to the Union, including Kentucky, Missouri, Maryland, and Delaware. In order to retain the loyalty of these crucial states, which provided much needed manpower and launching points for invasion into rebel territory, President Lincoln and the Congress had to tread carefully. If the aims of the war moved too quickly towards emancipation, it was possible that the loyalty of these states could be lost.
Few legal actions carried out in the field by the army did more to cripple the Confederacy’s ability to wage war than several acts concerning those held in bondage. Fewer legal actions prompted such public clamor of support and opposition. The acts gradually grew in scope and power to release people held in involuntary servitude, and the law became the weapon that initiated the slow death of the Confederacy, but wielding these weapons required caution. These laws known as the First and Second Confiscation Acts, and the Act Prohibiting the Return of Slaves, all passed through Congress in 1861 and 1862. Clearly, the Union government, and many of the army officers in the field, realized the effect of destroying the South’s system of labor. Though confusing and irregularly enforced, the acts still managed to cripple the economic backbone of the Confederacy wherever the army went, and without having to fire a shot.
What ensued was a gradual peeling away of the ability of the South to use slavery to aid its ability to wage war against the United States. Bit by bit, the layers of slavery eroded, exposing the weak underbelly of a society that was supported by the institution. If this institution could be destroyed, then the war would also come to a speedy end. Yet, in a nation that was divided over this issue, north and south of the Mason-Dixon Line, the task would not be an easy one, even if it would most likely mean the quickest end to hostilities. The Acts also caused dissension within the ranks of the Union army, and the Northern public. The Union army and Federal government successfully used the Acts to give the institution of slavery a mortal wound, yet it is important to see the reaction of the public to the Acts, and how the Acts were carried out in the field. Though one would believe that the orders were explicit, they were not always enforced correctly in the field.
On August 1, 1861, the House of Representatives passed An Act to confiscate Property used for Insurrectionary Purposes, later known as the First Confiscation Act. This act allowed the federal government, through the Union army, to confiscate property of rebels who willingly used their property to support the rebellion. Though it did not distinguish between human and non-human property, many perceived the act as including enslaved persons. In the act, the property rights that belonged to the original owners transferred to the United States. So in essence, the United States government technically owned confiscated slaves, though it was understood that the slaves were free from their previous obligations. The Senate passed the measure four days later on August 5 with a vote of 24-11, with the noted absence of senators from southern states. President Lincoln signed it into law on August 6, 1861.
This act may never have passed had it not been for two events. The lesser known of the two involved several runaway slaves near Fortress Monroe, Virginia in May 1861. General Benjamin Butler, who would go on to put into effect different emancipation policies while in command of New Orleans later in the war, refused to return certain slaves that had sought refuge within the fort. Butler realized they had been used to prepare the Confederate defenses just a short distance away from his post and that they belonged to Confederate officers, specifically to one Colonel Charles Mallory. Butler wrote his superiors in Washington, “as a military question, it would seem to be a measure of necessity to deprive their masters of their services.” Butler was putting into effect what would eventually lead to the crippling of the Southern war machine- its labor. The articles of war already on the books allowed the army to confiscate anything that could help the enemy’s war effort, and slaves digging fortifications to repel a Union advance aided the enemy.
To help the populace understand that the army only confiscated property of those in rebellion, Butler invited Mallory to Fortress Monroe to swear allegiance to the United States, after which he would have his slaves returned. Mallory, not surprisingly, declined to make an appearance at the fort. Now the question became what to do with these quasi-liberated men inside Butler’s lines, who he now called “contraband.” Butler put them to work for the Union army. This seemingly insignificant event became the cornerstone for Union military policy towards slavery through the rest of 1861 and 1862.
On July 21, 1861, the Union army suffered a humiliating defeat at the Battle of Bull Run. Over confident, and assured that only one smashing victory over the rebels would end the insurrection against the United States, several politicians followed the army to picnic and hopefully catch a glimpse of the end of the rebellion. One of those picnic goers was US Senator Lyman Trumbull of Illinois. After witnessing the route of the Union army and himself caught up in the retreat back to Washington, Trumbull realized what needed to be done to break the back of the Confederacy, without having to even use bullets: confiscate their enslaved laborers. In the Senate chambers, the very day after the defeat at Bull Run, the Republican senator argued for an amendment to the Confiscation Bill to include slaves as property that could be confiscated. Trumbull reported that slaves performed menial tasks, freeing up soldiers to fight for the Confederate army, before and during the Battle of Bull Run, as he had correctly heard. Depriving the Confederates use of their slaves would deprive them of some of their war waging ability. James McPherson writes, “Slavery gave the Confederacy one advantage…the slaves constituted a large percentage of the labor force in the Confederate states, and by staying on the job they freed white men for the army.”
Senator Charles Sumner, another advocate of the bill, informed a confidant of how he explained the matter to a reluctant President Lincoln. In a letter to abolitionist Wendell Phillips, Sumner wrote, “The battle and defeat have done much for the slave...I told the Presdt that our defeat was the worst event and the best event in our history; the worst, as it was the greatest present calamity & shame,—the best, as it made the extinction of Slavery inevitable.” The amendment was added, though the slave holding Border States objected as did many of the Senate’s Democrats.
General John C. Fremont, known more for his prewar celebrity and adventures than military abilities, shocked the nation when he declared all slaves in Missouri to be free on August 30, 1861, a mere few weeks after the Confiscation Act had been signed by the President. No one had ordered Fremont to make such a declaration, and he certainly did not have the backing of the United States government to do so. Fremont acted according to his own will, and sent President Lincoln’s administration into a frenzy. Angry that such a declaration could upset the slave holding Unionists who were vital in keeping Missouri in Union hands, and fearful that loyal Kentuckians could view the move as a sign of things to come, Lincoln ordered Fremont to rescind the proclamation, and instead adhere to the Confiscation Act. Fremont obeyed.
It was evident in the following months that the act was rather lenient. Instead of targeting property of all rebels, the act restrained the army to only confiscate the property actually “misused” against the government. Chambers argues that the act provided two incentives, one direct and one indirect. The direct incentive was to convince Confederates to merely stop using their slaves in ways that helped the Confederacy wage war. Indirectly, it encouraged slaves who learned of it to seek refuge in Union lines. As it advanced south, the Union army attracted contraband slaves like a magnet. This indirect incentive was the flurry that eventually produced an avalanche the following year.
As the Union army began to see success in the Western Theater, slaves by the hundreds, if not thousands, flocked to Union lines in Tennessee and Kentucky. Union army commanders knew they could confiscate the property and slaves of rebels, but what about the slaves that ventured into the lines, whose owners were not obvious rebels or Unionists? This was especially difficult in Kentucky, and President Lincoln’s administration was still careful not to offend the loyal Border States.
Some commanders attempted to keep slaves from entering their lines all together. General William T. Sherman, while commanding in Kentucky in the fall of 1861, ordered several slaves returned to their owners after it was discovered that an Illinois regiment gave them shelter. This effectively turned Union soldiers into slave catchers, much to the chagrin of many northern abolitionists.
On October 26, 1861, Union soldiers in Henderson, Kentucky reportedly captured two runaway slaves. General Thomas L. Crittenden, a Kentuckian and son of the famous Senator John J. Crittenden, ordered the runaways committed to jail until returned to their owners. The Louisville Daily Courier commented, “This does not look as if the Federal troops intended to free the negroes, or in any manner disturb the relation between master and slave.”
The divide on the issue, even among Unionists was evident. In the same article, The Louisville Daily Courier commented, “Just wait till Generals Sherman, McCook, and Mitchell, all Ohio abolitionists, get a fair chance and feel strong enough, and you will see what will become of the negroes that fall into their possession.” To prevent a catastrophe of inconsistencies, where some Union commanders returned slaves while others liberated, a new, and more precise act would be necessary.
As the slaves continued to seek shelter within Union lines, sometimes welcomed and put to work that freed up soldiers, and sometimes turned away at the point of the bayonet, a new problem arose. How was the army to feed several hundred or thousand new mouths, along with the women, children, and elderly? Newly promoted theater commander, General Henry Halleck issued General Orders No. 3 as a remedy. On November 20, 1861, Halleck ordered all fugitive slaves barred from entering his lines, an explanation being that some were acting as rebel spies. Up to this point, the army’s orders were to confiscate property used by rebels only, and so this military order was not in violation of the Confiscation Act of August 1861.
Illinois Congressman Owen Lovejoy introduced a resolution to the House of Representatives that called for General Halleck to revoke General Orders No. 3, as it was viewed as inhumane to the slaves who ran away at the belief that they would be welcomed and safeguarded in Union lines. Lovejoy, a strong supporter of the Confiscation Act and who believed the best way to defeat the rebellion was through the destruction of slavery, detested the idea of the army being essential slave catchers. Halleck, refusing to back down, and argued that it was not for the military to determine the relationship between a salve and their master.
General Ulysses S. Grant, who was subordinate to Halleck and his orders, carefully towed the line between the Confiscation Act and General Orders No. 3. Grant, loathed by Halleck, had to be extremely careful as Halleck searched for any reason to have him removed and overcame the matter with great skill and precision to the wording of the law. In February 1862, Grant’s army had captured the critical southern bastions at Forts Henry and Donelson, Tennessee. After the Confederate surrender of the forts, scores of slaves were on site who had been busy constructing and repairing earthen fortifications. Since these slaves had participated in the Confederate war effort, Grant allowed them to remain in Union lines. He ordered them moved to, and employed in, the supply department “for the benefit of the government.” Grant skillfully navigated the murky waters of army politics and the law of the land.
It was obvious to many that the Confiscation Act was beginning to have its desired effect upon the war making capabilities of the states in rebellion, such as the case at Fort Donelson. However, was the mere confiscation of property, particularly slaves, which had been employed in the Confederate war effort enough to truly drive a stake into the heart of Southern labor? To many, and even to President Lincoln, stronger action was necessary. Many believed only full emancipation of all persons in bondage would bring an end to the war. Others believed such irrevocable acts to be extreme, especially to the large slave holding population of Unionists in the Border States. To some, more conservative approaches would eventually lead to slavery’s destruction through acts that slowly peeled away slavery’s effectiveness in the south. The Act Prohibiting the Return of Slaves (also known as the Additional Articles of War of March 1862) and the Second Confiscation Act would eventually do just that.
In March 1862, Congress passed yet another act, An Act to make an additional Article of War, also known as the Act Prohibiting the Return of Slaves. It read:
“All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service.”
The language of the act was clear. If any officer returned a fugitive slave was sheltered within Union lines, that officer was to be dismissed. To Congress, it did not matter if the slave in question belonged to a rebel or Unionist, or whether that slave had been used in helping the Confederacy wage war against the Union or not. In the seceded states, this was not a difficult issue, as nearly all the slave owners were at least sympathetic to the Confederate cause. It would be in the Borders States, especially in Kentucky, where this issue would reach a boiling point.
This act served as a huge obstacle to those officers serving in Halleck’s armies in the west, who were still under obligation to follow General Orders No. 3. How could they possibly obey both at the same time? For many officers, the answer was still the core of Halleck’s order. Deny the slaves entry into the lines. If they cannot enter the lines, they cannot come under the control of Union soldiers who would then be obligated to shelter them.
In July 1862, Congress passed An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes, otherwise known as the Second Confiscation Act. This law expanded on the First Confiscation Act, and helped lay the groundwork for the Emancipation Proclamation. In this act, the federal government gained the authority to confiscate property and slaves of rebels, whether they were used in service of the Confederacy or not. Most importantly, slaves entering Union lines were not just “contraband of war” but forever free. Different from the First Confiscation Act, the Second clearly set the stage for the emancipation of slaves.
A key section of the Second Confiscation Act declared the type of person who was to have their property confiscated. The list began with Confederate States of America President Jefferson Davis all the way to local government officials acting in accordance with the Confederate States. It also included officers of the Confederate army and navy. However, some Unionists thought this did not extend far enough. Acting Indiana Senator, Joseph A. Wright argued in a speech, “I will remind them that the bill does not even touch the slave property or any other property…of a single individual in the South, with the exception of five classes of persons…” Even before it was fully passed, the editors of The Evansville Daily Journal implored for an amendment to the bill to include bankers. In June 1862, their argument appeared which said, “We trust the House of Representatives will amend the confiscation act so as to specify the bankers…Let them pay a penalty for their crimes…at least their property. Without their co-operation, the Southern Confederacy would have died in its birth.”
It is evident that the act was confusing to many people, whether in the army or in the general public. It is important to understand the basic tenants of the act. First, the five classes of people mentioned above would have their property confiscated, if in the area of control by the Union army. Secondly, any runaway slave that made it to Union lines would be forever free, no matter the loyalties of the owner. If the Union army made its way to a plantation owned by a Unionist, and the slaves did not try to leave, those slaves would remain the property of the plantation owner.
While Congress continued to debate the Second Confiscation Act in June, Judge James Hughes who had a seat on the United States Court of Claims, argued in a speech given in Indianapolis that taking property from rebels was a Constitutional violation. Reminiscent of Chief Justice Roger Taney in the Dred Scott case, Hughes explained, “But this punishment of confiscation, so far as it is a civil punishment, must be meted out in the same manner as other punishments are, by general laws for trial, conviction and judgement.” Hughes continued in his argument that a trial was always necessary, even for those obviously committing treason against the government. He also pointed out that because there had been no trials, and the slaves had been emancipated by reason of military necessity, then emancipation was temporary, and those freed from bondage should be returned to their masters if their masters could provide for them once hostilities ceased. Additionally he made the claim that under the Constitution, neither Congress nor the president had the power to free slaves under the power of the Confiscation Acts.
Hughes made some interesting arguments against the acts, arguments echoed by others throughout the Union. As in any crime, every accused person has the right to a criminal trial, which these accused rebels and southern sympathizers had not been granted. Illinois Senator Orville Browning believed a “total revolution” would be brought to criminal jurisprudence, and all the protections granted in the Constitution would be totally ignored.
Ardent abolitionist, and victim of a severe beating in the Senate chambers in 1856 by Representative Preston Brooks, Senator Charles Sumner passionately retorted similar accusations. He argued, “If it be constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battles, all without trial by jury, or any process of law, or judicial proceeding of any kind, it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves.” Others made the argument, “…if the United States were at war with a foreign nation on its border in which there were millions of slaves, there would be...,” essentially no problem if the army were to free them.
President Lincoln recognized the potential legal upheaval of this new Confiscation Act, and that it was very close to the goals of his soon to be released Emancipation Proclamation. Initially, Lincoln thought of vetoing the bill as he had serious doubts to its constitutionality, but thought better of it as the war necessity was great. After signing the bill, Lincoln sent his original veto message, or presidential signing statement, to the House of Representatives in a long letter, outlining his agreements and objections to each individual point in the bill. His advisors also convinced him that he should wait to issue the Emancipation Proclamation until the Union won a great battlefield victory to back up its authority.
Before signing the bill into law, Lincoln met with the Congressional representatives of the Border States, pleading with them to accept compensated emancipation. The meeting was five days before he signed the bill, clearly a last attempt to persuade these crucial Unionists before putting the knife into slavery. The Border State delegation rejected the deal, ensuring moments of intense confusion among populace and officers, especially as the war unexpectedly shifted to Kentucky in the fall of 1862.
Though enforcement of this act was meant for the field and in the areas occupied by the Union army, many of the recently liberated made their way to Northern cities. The acts were bringing great success in slowly killing the Confederate war machine as slaves continued to flock to the Union army including the scores that attempted to reach General Don Carlos Buell’s army in northern Alabama, Benjamin Butler’s army in New Orleans, and General McLellan in Virginia.
Northern populations did not always appreciate the effects of the acts outside of the conflict areas. Not all cities north of the Mason-Dixon Line were of the abolition persuasion as is evident in several newspaper reports. The editors of the Evansville Daily Journal voiced opinion with, “The negroes are beginning to arrive in Indiana. The New Albany Ledger demands that the laws of the State be executed, to stop the influx.” In October 1862, Illinois passed several anti-black resolutions, including the prohibition of settlement of any person of African descent in the state. In Salem, Illinois, The Salem Weekly Advocate, opposing the migration of liberated freedmen to Illinois wrote several scathing articles. One author wrote, “There is no question about the prohibition of negroes; there is no question about the Governor’s sworn duty. Negroes are coming into the state, in violation of the Constitution and laws, and to the injury of laboring white men. The people are taxed to feed these negroes, and to pay their railroad transportation from one end of the state to the other.”
There was also confusion among the civil population as to the new act’s interpretation. Pike County, Indiana held its Union Convention in September 1862, and the Convention passed several resolutions with some pertaining to the Confiscation Acts. The resolutions included, “Resolved, That we do not regard the confiscation act as an act for the indiscriminate abolition of slavery, and that this act does not reach, or in any way effect, the property of loyal citizens of the United States; and that we regard the property of all traitors as being forfeited to the Government of the United States.” They also pressed the belief that the Union should seize and use any human property of rebels to aid in putting down the rebellion.
Though the Pike County Union Convention passed several of these resolutions, they should not be taken as a firm understanding or contemporary commentary of the day. Though the convention was correct in that property of rebels could and would be taken, it was also true that slaves of loyal Unionists who sought refuge in Union lines would also not be returned. If a slave ventured to make it to Union lines, he would first have to be allowed in. Barring runaways from entering the lines saved many officers from the dilemma of judging whether rebels or Unionists owned them. Some Midwestern troops pelted fugitive slaves with stones as they tried to enter Union lines. Others used the bayonet to drive runaway slaves from the outskirts of camp before they could officially enter safety. In some extreme cases, some were even shot by Union pickets.
During the Kentucky Campaign of 1862, all of the previous acts would be put to the test, as the armies vied for control of the Bluegrass State. One event that has since become notorious from that autumn, included slaves of Unionists seeking shelter within Union lines, which nearly resulted in bloodshed among Union soldiers. In October 1862, two fugitive slaves sought refuge in the camp of the 21st Wisconsin while the regiment bivouacked near Bloomfield, Kentucky. The men of Wisconsin, whose homes were farther removed from slavery than nearly every other regiment in the army, naturally leaned toward abolition as a wartime goal. Shortly after the arrival of the slaves, their owners entered the camp, brandishing long whips and demanding the return of their property. Under the current acts, the men were not obliged to acquiesce their forceful requests, though the regiment’s colonel allowed the men to search the camp. The slaves’ owners badgered the Wisconsin soldiers, calling them “damned blackguards, abolitionists, thiefs and beggars.” Angered at not finding the slaves, the owners threatened to appeal to high command, which brought flying corncobs and threats from the soldiers to lynch the Kentucky men. The owners quickly left the camp for General Lovell Rousseau’s headquarters.
Rousseau, a Kentucky Democrat, was by no means an abolitionist, but generally adhered to the laws when his command was not in Kentucky. The Kentucky situation made it more confusing, even for generals. However, in this instance, he perhaps acted hastily and without restraint. Rousseau, angered by the behavior of one of his regiments, ordered the 21stWisconsin to stack arms and march several feet away, and then ordered the other regiments of the brigade to form an open square around the men, muskets loaded, pointed at the men. Included in this square was a battery of Kentucky artillery. Rousseau is reported to have then asked, “Now 21st Wisconsin, will you obey my orders or not?”
A voice from the regiment rang out that orders would be followed, if only “consistent with our duty and our Conscience, but no slave catching.” Enraged, the general demanded the man who spoke to step forward. Five men total stepped out of line and admitted to pelting the Kentuckians with the corncobs. The effusion of blood was averted, and perhaps not coincidentally, the homes of the slave owners in question burned to the ground that same night. Their slaves, were nowhere to be found as they had been smuggled out of camp in an army ambulance, but returned to work in the regiment as servants.
Colonel John H. McHenry of the 17th Kentucky Volunteer Infantry, had up to the fall of 1862, built an impressive military resume. He helped achieve victory at what is considered the first battle in Kentucky involving Kentucky soldiers at the Battle of Woodbury on October 29, 1861. Shortly thereafter, he helped hold the collapsing Union flank at the Battle of Fort Donelson, Tennessee on February 15, 1862, and again at the Battle of Shiloh on April 6 and 7, 1862, where McHenry received a serious wound in the arm. By December, this “gallant and patriotic” officer would find himself dismissed from the service by the order of President Lincoln. Col. McHenry issued an order that, “All negroes, not slaves or freemen,” were barred from entering the lines or camp of the 17th Kentucky, and that all fugitive slaves must leave the camp within two weeks. Additionally, he ordered all slaves that entered the 17th’s lines returned to their masters no matter the owner’s loyalty.
Considering that this order came a mere few weeks after the averted bloodbath in General Lovell Rousseau’s command, perhaps this order was issued to prevent a repeat of such inter-army conflict. Whatever the cause, The Evansville Daily Journal was quick to question the legality of McHenry’s order, citing the previous Act Prohibiting the Return of Slaves and the Second Confiscation Act. “Does Kentucky belong in the United States or is she independent?” and, “If Kentucky is subject to the laws of the United States it occurs to us that Col. McHenry is incurring a little risk in carrying out this order, unless he is tired of the service.” The Evansville Daily Journal was prophetic with McHenry’s dismissal. If Presiden Lincoln relieved McHenry of command, The Owensboro Monitor issued a terse threat that read, “Let him dare to it and the commission of every Kentucky officer would be tendered to him.”
The order from President Lincoln arrived via the War Department on December 4, 1862. The order read, “Colonel John H. McHenry…having issued an order…to his regiment, which order is in violation of the Additional Articles of War, approved March 13, 1862, is, by direction of the President, hereby dismissed from the service of the United States.” There was no room for argument, as McHenry had clearly violated the previously mentioned act of Congress.
But had McHenry deliberately violated the law? If Colonel McHenry would only admit fault, The Evansville Daily Journal wondered and suggested that, “If Col. McHenry acted thoughtlessly in the matter, and would so express himself to the Government, we should heartily rejoice in, not only in his restoration to command, but also in his promotion, to which his gallant services have entitled him.” One also must speculate if the recent events in the camp of the 21st Wisconsin, prompted him to issue such an order. McHenry’s regiment, the 17th Kentucky, was a part of the same brigade as the 21st Wisconsin, and so the events that unfolded in that camp had a strong chance of influencing his own command. The Owensboro Monitor reported that McHenry was the officer that gave shelter to the slave owners involved in the incident, though their version of events wildly disagree with what has become the official version of the story.
The Louisville Journal strongly admonished and denounced the administration of President Lincoln over this dismissal of such a “brave, gallant, intelligent” officer such as McHenry. In response, and in perhaps part state rivalry, the Indiana publication The Evansville Daily Journal accused the Louisville paper of giving “aid and comfort to the rebels” for its fiery articles against Lincoln’s decision. The Daily Journal reiterated their past argument based on the acts passed by Congress, “The question is simply whether officers in the army…shall obey the articles of war or be dismissed from the service for disobeying them. We regret the necessity of dismissing Col. McHenry, but we should have regretted more the want of nerve which should have suffered him to violate an article of war without prompt dismissal.” In a Christmas day article, the Evansville paper asked again, “Is there no danger that other officers would follow this example in other respects? Or does the [Louisville] Journal consider that Kentucky officers are exempt from obedience to the articles or war?” If this necessary question proved true, the ability of the Confiscation Acts to cripple slavery would be severely limited.
In McHenry’s hometown of Owensboro, Kentucky, the news publication there also took a stance against the President’s decision. The Owensboro Monitor was Unionist in the extremebut also anti-abolitionist, which is evident when they wrote,“Because he refused to be the instrument and carry out the mad schemes of a fanatical party, a brave and gallant soldier is subjected to the humiliation of a dismissal.” Even The New York Times argued for McHenry’s return to command with more elegance. The Times suggested that McHenry, “…being only 26 years of age, and this fact inclines those who feel an interest in him to hope that inadvertence, not willful insubordination, led to the offence for which he is so severely punished. The War Department, we are sure, delights more in mercy than in judgement…” and also, “…truly more deserving the generous consideration of the President in his present painful position.”
Colonel McHenry’s story is unique, in that it involved a Kentucky officer violating the law regarding the Prohibition of the Return of Slaves during the time of the Second Confiscation Act, while in the Border State of Kentucky. Other officers had been similarly punished for lesser sins, but it should come as no surprise that the administration was following up with its enforcement of the acts, dismissing any officer that disobeyed. The Union used the acts to cripple slavery, and the full force of the army was needed to do so. Disobedience of these acts would ensure slavery’s continued existence.
Seasoned veteran of several wars and West Point graduate, Brigadier General Thomas Williams had likewise ordered the regiments of his command to allow the owners of slaves into their camps to retrieve their runaway slaves near Baton Rouge, Louisiana. He also ordered his officers to drive slaves out of his camps. One Wisconsin colonel refused to follow Williams’ directive, as the officer believed it to be in violation of the act of Congress. Williams had the officer arrested. Word of the scandal reached the chamber of the US Senate, where Wisconsin Senator Timothy Howe vehemently assaulted Williams’ actions, and compared slaves to his service, “He [a slave] is worth more to the service…more to the government…more to mankind.”Michigan Senator Jacob Howard remarked that Williams’ actions were “illegal, harsh, unfeeling and cruel…” Williams did not receive a dismissal from the service, nor will it ever be known if one was even considered. He was killed while leading the successful defense of Baton Rouge on August 5, 1862.
Why is Colonel McHenry and General Williams’ story so important to the narrative of the effect of the acts in crippling slavery and the Confederacy? McHenry’s refusal to follow the law and the orders of the commander in chief threatened to undermine the entire effort of destroying slavery. The situation in Kentucky was different, but one junior officer’s very public disobedience could have set off a chain reaction in other theaters of the war. Lincoln used McHenry as an example that all Union officers must obey the orders concerning the acts. Had Williams lived, it is probable that he likewise would have received some sort of punishment for not only blatantly refusing to follow the law, but also arresting those who objected to his insubordination. Bruce Catton writes, “Yet in the end all of the army went along with the program; became, indeed, the sharp cutting edge that cut slavery down. This happened…because the Federal armies realized that the most accessible and most useful property of all was the negro slave.”
However, not all Union soldiers agreed with the eviction of recently liberated slaves, or the prohibition of keeping them out of their home states. While the 134th Illinois Infantry was stationed in Columbus, Kentucky in the summer of 1864, Lieutenant Andrew Lucas Hunt wrote his brother in Chicago about the possibility of sending a recently freed slave to their residence to work as a servant. His brother replied, “You spoke in your last letter about trying to get a negro boy to be your servant and I think of trying to bring him up to Chicago with you. Now what would we do with him if we had him? Where would we have him sleep? If we could get over these difficulties, I would like it very much, only be sure he is smart, active and intelligent, smart & neat in his looks, and intelligent. If you can get one such as I describe you had better confer with mother about bringing him up here with you. I would like it very much.” Even if Union soldiers and officers discovered that they could make personal gain due to the effects of the acts, the idea of a paying job in the north was enough for some slaves to make for Union lines.
Another Union officer, Captain John W. Tuttle, a lawyer serving in the 3rd Kentucky Volunteer Infantry, took several runaway slaves seeking refuge in his regiment as personal servants. In his diary he wrote, “A few miles beyond McMinnville I obtained ‘a loyal black’ for a cook and body servant.” Five days later, Tuttle obtained another runaway as a waiter. Two days after that, Tuttle lamented, “Lost my Murfreesboro ‘loyal black.’”
In the summer of 1862, General Halleck was promoted to General in Chief of the Union armies, and General Ulysses S. Grant filled Halleck’s former position. He quickly discontinued General Orders No. 3, as he saw the usefulness of intentional emancipation and energetically enforced the Second Confiscation Act. In a near reversal of Halleck’s General Orders No. 3, Grant issued General Orders No. 72. It read:
“Recent Acts of Congress prohibit the Army from returning fugitive from labor to their claimants, and authorize the employment of such persons in the service of the Government …Fugitive slaves may be employed as laborers in the Quartermaster’s Dept. Subsistence and Engineers Depts. And wherever by such employment a soldier may be saved to the ranks. They may be employed as Teamsters, as Company Cooks, (not exceeding four to a Company) or as Hospital attendants and nurses…Officers and Soldiers are positively prohibited from enticing Slaves to leave their masters.”
Grant also confided to his father that if the Lincoln signed a law passed by Congress, then he would do his duty to enforce it. Grant took note of the effect that the acts were having on the South’s ability to wage war. In a letter to his sister Grant remarks, “The war is evidently growing oppressive to the Southern people. Their institution [slavery] are beginning to have ideas of their own…[the slaves] follow in the wake of the army and come into camp. I am using them...it is weakening the enemy to take them from them. If the new levies are sent in soon the rebels will have a good time getting in their crops this fall.”
Most importantly, many of the slaves liberated through the acts willingly helped in fortifying Union supply depots inrecently captured cities, such as Memphis and Nashville, Tennessee. Many also took up jobs as cooks, teamsters, tending to army horses and mules, and digging rifle pits, as directed through Grant’s orders. The Union, already having the advantage of a larger population, was able to capitalize further on this advantage by allowing soldiers detached to such work to rejoin their regiments to fight.
Colonel Charles Wainwright, a New Yorker serving in the Army of the Potomac a no friend of abolition, confided in his diary on the huge numbers of slaves pouring into the Union camps. Shortly after the issuance of the Act Prohibiting the Return of Slaves he lamented that the army was not taking many Rebel prisoners but, “lots of ‘contrabands’ as the runaway negroes are now called, come back with our men almost every day.” In August 1863, he mentions the many runaways who formerly toiled in the fields, but now, “there are some 15 to 20 of them properly belonging to our corps headquarters.” Later in the war, when the United States Colored Troops were established, many of them former slaves, Wainwright mentioned their success. In June 1864 he wrote, “Burnside’s negroes, I hear, carried on work, capturing four guns and some prisoners; this I believe is the first time that they have been put in.” Through the experiences of just one officer, one can see the evolution of the runaway slaves from merely contraband of war to soldiers fighting to defeat the Confederacy.
Other runaway slaves helped the Union army in other ways. Private Wilbur Fisk of the 2nd Vermont Infantry wrote to his local newspaper, “From a negro it was found that some ‘horse troops’ had gone in a certain direction…” Fisk and his comrades pursued these Confederate cavalrymen, and would not have been able to had it not been for the information provided by the former slave. Some of the best ways these runaway and confiscated slaves helped the Union army was providing information, just as Fisk experienced. Everywhere the Union army marched, runaway slaves passed on valuable intelligence on Confederate troop numbers and locations, even the location of valuables hidden by their masters.
Like Wainwright, Fisk also had commented on the Colored Troops, and interacted with them in the field and in camp. Fisk related the story of one former slave turned soldier,
“One man said he had been a slave in Richmond, and had a wife there now. A son and daughter had been sold south nearly twenty years ago, one was sixteen and the other eighteen years of age. The man came into our lines on the Peninsula two years ago. He was an old man, and to me looked hardly fit to shoulder a musket. I asked him if would know his children if he should see them now. ‘O yes sah,’ he said, ‘I’d know ‘em, ‘deed I should,’ as if there could be no doubt about it.”
This particular story is not the only instance of slave turned soldier, fighting to end slavery. To this soldier, defeating the Confederacy meant destroying slavery. This man entered Union lines because of the acts, and without them, he never would have been able to fight to see his family again.
Charles Cooke, a sixteen year old Wisconsin private, wrote home of his astonishment at the hundreds of runaway slaves entering Union lines at Columbus, Kentucky in 1863. In a letter to his family he wrote, “The slaves, contrabands we call them, are flocking in to Columbus by the hundred…” There were 15,000 recently freed slaves along the Atlantic coastal islands alone. These thousands of ex slaves deprived themselves of the work the Confederacy desperately needed to wage war.
Not only had the acts deprived the Confederacy of much needed manpower and labor, but that same labor was now working against it. The Confederate states, smaller in population and supported by slave labor, could ill afford the slow hemorrhage of thousands of laborers to Union lines. Some plantations were abandoned for want of workers, the few industrial centers in the South would also feel the sting of disappearing labor, and the Confederate army, who needed the slave labor the most, was relying on its soldiers to do the manual labor, usually reserved for slaves, and fight the war at the same time. Proof of this can be found again through the interactions of Wilbur Fisk. He relates during the Petersburg Campaign, that recently freed slaves aided the Union army in other ways besides fighting. He wrote of his regiment’s transportation to the front, and upon their arrival at the rail station that, “The platform is crowded with railroad men, and they are all negroes, but we don’t mind that.” A few weeks after the end of the war, Fisk was still in Virginia. He met a former slave who found himself unemployed now that the army was leaving. He told Fisk that before he escaped, over 130 slaves worked his master’s plantation, and that most of the male slaves ran away. The once wealthy slave owner could not produce raw materials, leaving him nearly destitute. But had the acts not been passed, this plantation owner would have been free to aid in the war by producing goods and paying taxes to the Confederacy.
Interestingly, as the Confiscation Acts provided an avenue for emancipation, it also helped birth the recruitment of African-Americans, both free and former slaves, to the Union army. This provision, possible through the Militia Act, was signed by President Lincoln on the same day as the Second Confiscation Act. By war’s end, 179,000 black soldiers would fill the ranks of the Union army, roughly 10% of overall force from 1861-1865. These soldiers were instrumental in delivering the final blow to a Confederacy that was barely staying alive as its labor force melted away. One of the heaviest locations of recruitment was the crucial Border State of Kentucky.
Before the Second Confiscation bill was brought to President Lincoln for approval, he had been mulling over his broad and sweeping Emancipation Proclamation, but only his close advisers had any knowledge of the idea. Lincoln, wanted to issue it soon, as the liberation of all slaves would surely bring the war to an end, or at least give the South the chance to end the war and keep what slaves they had left. He recognized that doing so would “subtract from its labor, and add to our army quite a number of good fighting men.” His cabinet convinced him to wait for the much needed victory in the Eastern Theater. On September 17, 1862, the Battle of Antietam, though not a decisive victory, at least turned back the Confederate Invasion of Maryland, and gave President Lincoln the conditions he needed to issue the preliminary Emancipation Proclamation.
The preliminary Emancipation Proclamation was issued just five days after the smoke of the Battle of Antietam cleared, in what had been the bloodiest single day in American history. The blood of the Union soldiers slain there brought the essential partner for the Second Confiscation Act and the freedom of millions held in bondage. Lincoln commented, “I made a solemn vow with God that if General Lee was driven back . . . I would crown the result with a declaration of freedom for the slaves.”His Proclamation declared, “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free.”
Though sweeping and revolutionary, this preliminary document offered the seceded states the ability to keep their slaves. All that was required was they return to the Union by January 1, 1863. If they failed to do so, then their slaves would be forever free. Seeing as none of the states took the offer, the official Emancipation Proclamation went into effect on January 1.
Lincoln was also careful to note that this was being executed through his powers as Commander in Chief of the United States military. But not only was he using his Executive powers, he was officially making the abolition of slavery a wartime goal of the Union war machine. “…the war will be prosecuted for the object of practically restoring the constitutional relation between the United States, and each of the States, and the people thereof, in which States that relation is, or may be, suspended or disturbed.” Not everyone agreed. Several Unionists decried Lincoln for issuing such a sweeping proclamation, just as they decried Congress for the Confiscation Acts. He responded to one such critic,
“You dislike the Emancipation Proclamation…You say it is unconstitutional, I think differently. I think the Constitution invests its commander-in-chief with the law of war in time of war…Armies the world over destroy enemies’ property when they cannot use it…I issued the proclamation on purpose to aid you in saving the Union…I thought that in your struggle for the Union, to whatever extent the negroes should cease helping the enemy, to that extent it weakened the enemy in his resistance to you. Do you think differently? I thought that whatever negroes can be got to do as soldiers leaves just so much less for white soldiers to do, in saving the Union. Does it appear otherwise to you?”
As the perfect partners, the Second Confiscation Act and the Emancipation Proclamation complemented each other in ways that actually aided the Union war effort. Much has been written and said about the areas of the nation that were omitted from the Emancipation Proclamation, notably the areas already under the control of the Union army. Realistically, with the Confiscation Act already in place there, the Emancipation Proclamation would be redundant. It also protected the legality of the executive order, as it did not end slavery everywhere, which eventually needed a constitutional amendment. In short, the Confiscation Acts dealt with slavery within Union lines, while the Emancipation Proclamation attempted to eliminate slavery within Confederate territory.
The years 1861-1862 provided the crucial weapons that were the First and Second Confiscation Acts and the Prohibition of the Return of Slaves that inflicted the mortal wounds to slavery in the Southern states. The acts, not always understood by the public and not always enforced properly in the field, proved the legal weapon the Union needed. Though originally intended to cripple the South’s ability to wage war, the acts ushered in the Emancipation Proclamation that delivered the fatal blow to slavery.
“Black Soldiers in the US Military During the Civil War.” Educator Resources. National Archives, September 1, 2017. https://www.archives.gov/education/lessons/blacks-civil-war.
Catton, Bruce. The Civil War. New York, NY: The Fairfax Press, 1980.
Chambers, Henry L., “Lincoln, the Emancipation Proclamation, and Executive Power,” Maryland Law Review Volume 73, Issue 1 (2013): 100-130. https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3599&context=mlr
“Confiscation Acts.” Mr. Lincoln and Freedom. Lehrman Institute. Accessed September 27, 2019. http://www.mrlincolnandfreedom.org/civil-war/congressional-action-inaction/confiscation-acts/.
Compiled service record, John H. McHenry, Colonel., Commanding, 17th Kentucky Infantry.; Carded Records Showing Military Service of Soldiers Who Fought in Volunteer Organizations During the American Civil War, compiled 1890–1912, documenting the period 1861–1866, Record Group 94; National Archives, Washington, D.C., accessed via Fold3.com.
“Escaped Slaves and the Union Army.” Understanding the War through Imagery: The Civil War in American Memory. US Army Heritage and Education Center. Accessed October 1, 2019. https://ahec.armywarcollege.edu/exhibits/CivilWarImagery/index.cfm.
Gallagher, Gary W. “The Worst First Year.” First Year Project. Miller Center at the University of Virginia, July 14, 2016. https://millercenter.org/issues-policy/governance/the-worst-first-year.
Grimsley, Mark. The Heavy Hand of War: Union Military Policy Toward Southern Civilians, 1861-1865. Cambridge University Press, 1997.
Herndon, William H., and Jesse W. Weik. Herndon's Life of Lincoln: The History and Personal Recollections of Abraham Lincoln. Cleveland, OH: The World Publishing Company, 1942.
Hollingsworth, Biff. “15 July, 1864 Letter from William Hunt to Andrew Lucas Hunt.” The Civil War Day by Day. Louis Round Wilson Special Collections Library University of North Carolina at Chapel Hill, July 15, 2014.
Kochan, Donald J. “The Confiscation Act of 1862 and Civil War Forfeitures.” Mackinac Center for Public Policy, July 1, 1998. https://www.mackinac.org/1278.
Lincoln, Abraham. Preliminary Emancipation Proclamation . September 22,1862. Pdf. https://www.loc.gov/item/scsm000950/.
Lincoln, Abraham. “Transcript of Emancipation Proclamation (1863).” Our Documents. National Archives and Records Administration, n.d. https://www.ourdocuments.gov/doc.php?flash=false&doc=34&page=transcript.
Masor, Louis. “The Emancipation Proclamation.” Essential Civil War Curriculum. Virginia Center for Civil War Studies at Virginia Tech. Accessed September 27, 2019. https://www.essentialcivilwarcurriculum.com/the-emancipation-proclamation.html.
McPherson, James M. Embattled Rebel: Jefferson Davis as Commander in Chief. New York, NY: Penguin Press, 2014.
Miller, Steven F. “The First Confiscation Act.” Freedman and Southern Society Project. History Department of the University of Maryland, August 26, 2019. http://www.freedmen.umd.edu/conact1.htm.
Neely, Mark E. Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War. Chapel Hill, NC: The University of North Carolina Press, 2011.
Nevins, Allan, ed. A Diary of Battle: The Personal Journals of Colonel Charles S. Wainwright 1861-1865. Reprint, 1998ed. New York, NY: Harcourt, 1962.
Noe, Kenneth W. Perryville: This Grand Havoc of Battle. Lexington, KY: University Press of Kentucky, 2010.
Pinsker, Matthew. “Congressional Confiscation Acts.” Emancipation Digital Classroom. House Divided Project at Dickinson College, July 14, 2012. http://housedivided.dickinson.edu/sites/emancipation/2012/07/14/congressional-confiscation-acts/.
“Preliminary Emancipation Proclamation, 1862.” American Originals. National Archives and Records Administration, n.d. https://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_proclamation.html.
Rosenblatt, Emil, and Ruth Rosenblatt, eds. Hard Marching Everyday: The Civil War Letters of Private Wilbur Fisk, 1861-1865. Lawrence, KS: University Press of Kansas, 1992.
Simon, John Y., ed. The Papers of Ulysses S. Grant. Vol. 5. Southern Illinois University Press, 1973. Accessed via Mississippi State University Libraries (electronic).
Teeters, Kristopher A. Practical Liberators: Union Officers in the Western Theater during the Civil War. Chapel Hill, NC: The University of North Carolina Press, 2018.
“The Emancipation Proclamation's Other Anniversary.” Interactive Constitution. National Constitution Center, September 22, 2019. https://constitutioncenter.org/interactive-constitution/blog/the-emancipation-proclamations-other-anniversary.
Tuttle, John W. Diary of John W. Tuttle: 1860-1867. September 1862. University of Kentucky Special Collections Research Center. https://exploreuk.uky.edu/catalog/xt7g7940t98k_1_1#page/1/mode/1up
Weigley, Russell F. A Great Civil War: A Military and Political History, 1861-1865. Bloomington, IN: Indiana University Press, 2000.
Wiley, Bell Irvin. The Life of Billy Yank: The Common Soldier of the Union. Baton Rouge, LA: Louisiana State University Press, 1952.