The Confederate Retaliatory Act

Late last year, this blog discussed Jefferson Davis’ proclamation in late 1862 denying black Union soldiers the traditional protections of prisoners of war should they ever fall into Confederate hands. Instead, Davis indicated they and their white officers would be treated under relevant state law for inciting “servile insurrection.” That is, they would be treated as if, like John Brown, they were fomenting a slave revolt, and subject to capital punishment, and in the case of African Americans, re-enslavement or worse.

With little fanfare, on May 1, 1863, the Confederate Congress basically ratified President Davis’ proclamation with the Retaliatory Act. The only substantive difference was that under this legislation, the Confederate Army was empowered to punish white officers of black Union soldiers instead of transferring them to state authorities for this purpose, as envisioned in Jefferson Davis’ proclamation. In essence, the law more-or-less empowered army leaders to deal as they wanted with African Americans in federal uniform and their officers.

The legislation in practice gave license to the ad hoc way which the Confederate Army would treat black Union prisoners and their white officers. On some occasions, such as the infamous incident at Fort Pillow in April 1864, African Americans in federal uniform would be massacred. In other cases, they would be taken as forced laborers for the Confederate Army, or diverted by southern soldiers as personal servants or even sent to family plantations. Some were treated more-or-less as other Union POWs, and sent to prisons like Andersonville and elsewhere. About the only thing that apparently never happened to black Union prisoners was that they were paroled or exchanged for Confederate prisoners in Union custody. Indeed, the Union-Confederate prisoner exchange cartel broke down in April 1864 over the Confederate refusal to return black Union prisoners. Although the cartel resumed in January 1865, when the Confederates agreed to return black prisoners, no African Americans seem to have been exchanged before the war ended.

Indeed, the Confederates also refused to release African American servants and laborers attached to the Union Army that fell into their hands, even a handful of free born blacks from the North that fell into their hands.

An earlier edition, Civil War Emancipation explored the case of John A. Emery, a free black man from Salem, Massachusetts, who was enslaved after being captured by Confederate troops during the Peninsula Campaign. He was a servant of an officer in the 16th Massachusetts Infantry and had to be left behind as Union troops evacuated the Peninsula in Virginia in Summer 1862 because he was too sick to be moved. His ultimate fate is unknown.

Two other free-born northern blacks, boys really, captured by Confederate troops in Texas, Charles Amos and his cousin, Charles Revaleon, also were enslaved. The two teenagers had signed on with the 42nd Massachusetts Infantry as officers’ servants and had fallen into rebel hands when Confederate forces had recaptured Galveston in January 1863. They were taken to Houston and sold in the city’s slave market. The commanding officer of the 42nd later wrote:

The chance that I feared and warned poor Charley against has been his fate. He was sold into slavery at Houston, Tex., the second or third day of his captivity. My brother said all that man could to save him without avail, as well as the other officers who liked the boy very much. His cousin shared a like fate. His aunt will remember that I tried to discourage the boy in every way that I could from going with us but without avail. Charley is smart and if he can only keep his tongue within bounds he will make his escape before any length of time elapses.

Our officers are all in close confinement and of course can do nothing for him. Tell his aunt to keep up her courage and hope as we all do for the best. The chances of war we all have to run and the end always follows the beginning. I will keep your address and if I learn anything of the boys I will write you.

One item may give his relations some little comfort in their trouble. Our men that were taken received very good treatment and the disposition seems to be to use Federals well that fall in their hands.

The families of the teenagers, evidently employed by prominent Bostonians, and with deep roots in the city (one of the boy’s grandfathers had served as a soldier in the Revolutionary War) had sought the help of Governor Andrew of Massachusetts, who in turn directed his staff to contact the War Department in Washington, D.C., to see if anything could be done. Major General E. A. Hitchcock, Commissioner for Prisoner of War Exchange for the War Department, reported frankly “it seems impossible to do anything in this case except as a result of success in the war.

Andrew F. Lang and W. Caleb McDaniel, in their February 2013 piece in Disunion in the New York Times provide important insight into the disposition of Charles Amos, Charles Revaleon, and other free blacks (mostly sailors) captured in the Confederate assault on Galveston on New Years’ Day 1863. They write:

These black sailors and runaways had far more reason than [Alexander] Hobbs [a private in the 42nd Massachusetts, and the main source for Lang and McDaniel’s piece] to fear capture in Texas, a state with around 200,000 slaves. Confederates may have treated Hobbs kindly, but their views on slavery were diametrically opposed to his. The Texas Declaration of Causes for Secession asserted that “the servitude of the African race” was the “will of the Almighty Creator,” and white Texans intended that it “should exist in all future time.” Hobbs recorded his opposite view on Jan. 4: “I honestly believe thare will be more slaves found in Heaven than Southerners.”

Hobbs’s “hatred to the institution of slavery” deepened later that month, when he wrote that “six coulered men have been taken away to prison, four of them belonging to the Harriet Lane” and two of them connected to his regiment. All “but one or two were free born,” he reported, but now, he believed, they were all “to be sold.”

A letter preserved in the Texas State Library and Archives confirms the gist of Hobbs’s story. In February 1863, a state agent named Henry Perkins wrote the legislature that he had taken the “negroes” who “were captured … in Galveston” to the penitentiary at Huntsville, where they were “now at work for the state.” By that time, Hobbs was about to be paroled and already traveling to Union lines – illustrating the stark contrast between his captivity and that of the “six coulered men.” While Hobbs rejoiced in the “prospect of speedy deliverance,” these less fortunate men disappeared into the penitentiary, despite Perkins’s admission that all six were “claiming to be free.”

These claims meant little under Texas laws that virtually equated being black with being enslaved. Still, Perkins’s letter acknowledged that the state’s laws governing runaway slaves “never contemplated” dealing with men like these. The law, which stated that captured runaways were to be held for six months after arrest and then taken to the penitentiary, needed to be “so altered as to the meet the exigency of the times. For we know not how soon we may have a Brigade of Negroes of like character.” Indeed, 22 other recently captured “negroes” were “slaves … claiming to be free,” according to Perkins. When should they go to the penitentiary in Huntsville? Perkins wanted the legislature to clarify the matter.

Austin obliged the next month with a new law. It declared that any person of color who entered the state “with any armed force of the enemy” would thereby “have forfeited his freedom, if he be free,” and would labor in the penitentiary until one year after any peace treaty. After that, any prisoner of color who had not been claimed as a runaway would be sold at auction “to the highest bidder.”

Unlike John A. Emery, there was happy end to the case of Amos and Revaleon. In July 1865, military authorities in Massachusetts reported to Hitchcock, “I have the honor to inform you that the two colored boys attached to the Forty-second Massachusetts, and sold in Texas, have returned in safety to Massachusetts.” But it is equally clear the cousins would have remained slaves in Texas had not the Union prevailed in the war. Such was the sobering reality that men born free could be enslaved in the Civil War even as others of their race were claiming their freedom.

Sources: 1); 2) 3)

About Donald R. Shaffer

Donald R. Shaffer is the author of _After the Glory: The Struggles of Black Civil War Veterans_ (Kansas, 2004), which won the Peter Seaborg Award for Civil War Scholarship in 2005. More recently he published (with Elizabeth Regosin), _Voices of Emancipation: Understanding Slavery, the Civil War, and Reconstruction through the U.S. Pension Bureau Files_ (2008). Dr. Shaffer teaches online exclusively (i.e., a virtual professor). He lives in Arizona and can be contacted at
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3 Responses to The Confederate Retaliatory Act

  1. Ron Franklin says:

    It still amazes me that no sense of human decency or fair play was allowed to intrude into many Southerners’ calculations of how to deal with the African Americans who fell into their power. Thanks for a disturbing but enlightening post.

  2. Pingback: The Confederate Retaliatory Act | African American Soldiers and Sailors

  3. The Battle of the Crater at Petersburg had so many black Union soldiers massacred as to make Ft. Pillow to seem a tantrum instead. Even white Union soldiers killed black soldiers so as to not be captured and also killed with them.

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