One of the most consistently contentious issues during the first year of the Civil War was the relationship of the Union army with fugitive slaves. While the status of slaves of disloyal owners had been settled more-or-less with General Benjamin Butler “contraband-of-war” decision in May 1861, which was given legislative sanction by the first Confiscation Act in early August, the status slaves of loyal owners who sought sanctuary with the army proved more controversial. That is, there existed a clear military justification for offering protection to the slaves of rebel owners, to deny their labor to the Confederacy while gaining it for the Union. By seceding, these slaveholders had forfeited the legal high ground of the Fugitive Slave Act of 1850. However, loyal slave owners still formally enjoyed the law’s protection and felt it should control the fate of slaves that fled into Union army camps.
The problem for the loyal slaveholders was that members of the Union army, even if they had no love for African Americans, often found it distasteful returning slaves to their owners. For many Union soldiers, the war provided their first direct contact in their lives with slavery and many recoiled both at the suffering of the slaves they met and their owners’ arrogance. For example, some Union soldiers near Fort Scott, Kansas, in March 1862 proved so appalled when they came across a white man whipping a female slave, they seized the man, tied him to a tree, and proceeded to give him a whipping with his slaves looking on. Few Union soldiers went as far the group in Kansas, but it was common for enlisted men informally to take fugitive slaves into their camps, regardless of their owner’s status, and offer them jobs around camp to justify their presence there. The soldiers also resisted the attempts of loyal slaveholders when they came to reclaim their human property. By their actions, ordinary Union soldiers became some of the most effective abolitionists of the Civil War. Their activities, although often tolerated by their company and regimental officers, who frequently found slavery as loathsome as they did, it put them at odds with high-ranking Union officers whose priority was preventing the loyal slave states from seceding, and believed the army must return loyal slaveholders their slaves so as not to alienate them from the Union and harm the military position of federal forces in the border states. Some commanders, led by Henry Halleck, sought to exclude fugitive slaves from their lines entirely, so as not to tempt their men to give them protection and not alienate Unionist slaveholders.
In an army of citizens, however, soldiers had the right to communicate with their members of Congress on this issue, and it was not long into the Civil War that this issue began to receive formal consideration on Capitol Hill. For example, in July 1861 during its special session, members of the House of Representatives passed a resolution absolving federal forces from helping to capture slaves. This resolution did not have the force of law, but it gave moral support to Union soldiers that provided refuge to slaves regardless of the loyalty of their owners. By the time Congress returned to Washington, D.C., for its regular session in December 1861, anti-slavery Representatives and Senators resumed their assault on the peculiar institution, introducing several bills that while they did not seek the general abolition of slavery sought to undermine it in serious ways. The first of these bills to become law did so on March 13, 1861. It made it a violation of the Articles of War for federal forces to return slaves and promised to cashier any Union officer that did so. The law read:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war for the government of the army of the United States, and shall be obeyed and observed as such:
Article –. 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.
While the new Article of War did not quickly cow members of the Union army sympathetic to slaveholders, it gave their subordinates a legal basis to resist their orders to return fugitive slaves and set the stage for conflict within federal forces on this issue. These conflicts will be dealt with in future editions of Civil War Emancipation.