Fugitives from Loyal Slave States.
§ 93. Fugitives in loyal slave States.—From the beginning of the war one of the most embarrassing questions which had come before Congress was, How shall the slaves of loyal owners be treated? The necessity of holding the Border States firm for the Union disposed many to support only the most conciliatory measures; but these States were a part of the theatre of war. Northern armies now occupied parts of the Confederacy as well, and among the great numbers of blacks who flocked to the Union camp it was impossible to separate the slaves of the loyal from the disloyal. Moreover, it was necessary that there should be some uniformity of method. Without specific law, the reception given to fugitives from loyal masters must vary with the views of each commanding officer with whom they sought refuge.
§ 94. Typical cases.—Cases began to occur very early in the struggle. In 1861 a slave called Wisdom ran away from Georgetown, and was taken in by some wagoners belonging to the Northern army. He soon found work, but his master succeeded in tracing him, and came to camp to claim him. He demanded the slave of Captain Swan, officer of the day. Captain Swan hoped the man might be smuggled away, and so delayed the search as long as possible. The master then went to Colonel Cowden, who immediately ordered the slave to be surrendered, without the form of proceedings prescribed by the act of 1850, and in disregard of the fact that the master was not provided with the necessary certificate. When the facts became known in Massachusetts and elsewhere, there was great indignation. The Colonel was hung in effigy in Boston, with the following inscription: "Colonel Cowden, of Burns rendition notoriety, is now practising his tricks at kidnapping in Washington."[335]
Major Sherwood of the 11th West Virginia Regiment had, in 1861, employed a colored refugee as his servant. The owner sent a United States marshal to Brigadier General Boyle, who gave an order for his rendition. Major Sherwood sent a message that he would give up his sword, but, while he was in command, no fugitive should be returned. He was placed under arrest for disobedience, to await court-martial; but General Staunton ordered General Boyle's order revoked, and Major Sherwood was never tried. In the mean time the boy had been sent away concealed under the seat of an ambulance, and reached Canada in safety.[336]
§ 95. Question discussed in Congress.—As early in the war as 1861, a number of resolutions were brought into Congress, designed to meet this difficulty,[337] and Mr. Lovejoy introduced a bill making it a penal offence "for any officer or private of the army or navy to capture or return, or aid in the capture or return" of fugitive slaves.[338] The bill was referred to the Committee on the Judiciary, which reported adversely upon it, April 16, 1862.[339] December 16, 1861, Mr. Hale had offered a resolution, which was adopted, looking toward a uniform method of dealing with the slaves of rebels.[340] Mr. Sumner brought in another on December 17, which forbade the employment of the armies in the surrender of fugitives.[341] "I ask, sir," said the writer of a letter read by Mr. Sumner, "shall our sons, who are offering their lives for the preservation of our institutions, be degraded to slave catchers for any persons loyal or disloyal? If such is the policy of the government, I shall urge my son to shed no more blood for its preservation."[342] Another protest came from two German companies in one of the Massachusetts regiments, who, when they enlisted, entered the service with the understanding that they should not be put to any such discreditable service. They complained, and with them the German population generally throughout the country.[343]
Some proof that the owner of the slave was at least loyal to the government seemed necessary, if rendition were to be made at all; though antislavery men were determined to admit no return of fugitives under any circumstances. December 20, 1861, a resolution of Mr. Wilson's was adopted, for an additional article of war forbidding officers from returning fugitives under any consideration.[344] A bill was introduced, discussed, and somewhat amended, but never passed.[345]
Mr. Blair's bill, of February 25, 1862, from the Committee on Military Affairs in the House, was to the same purpose.[346] This, however, was successfully carried in both houses, and signed by the President, May 14, 1862. In the discussion, Mr. Mallory opposed the bill, because it seemed to him that it would prevent the President of the United States from sending a military force into a State to aid the authorities in enforcing a national law which stands upon the statute-book.[347] Mr. Bingham answered this objection by saying that it simply determined that for the future, as in the past, the army and navy should not exercise functions which belong solely to the civil magistrates.[348]
§ 96. Arrests by civil officers.—The act of May 14, 1862, applied only to army officers. Notwithstanding the opportunities then offered for escape, wandering negroes were still liable to be seized by civil authorities and placed in jail. In this way numbers of negroes, many of them really free, were arrested, on the supposition of being runaways, and were imprisoned without trial for an indefinite length of time. An advertisement in 1863 shows the method then in use.
"There was committed to the jail of Warren County, Kentucky, as a runaway slave, on the 29th September, 1862, a negro man calling himself Jo Miner. He says he is free, but has nothing to show to establish the fact. He is about thirty-five years of age, very dark copper color, about five feet eight inches high, and will weigh about one hundred and fifty pounds. The owner can come forward, prove property, and pay charges, or he will be dealt with as the law requires.
"R. J. Potter, J. W. C.
"March 16, 1863. 1 m."[349]