Attorney-General Bates, writing July 23, 1861, to United States Marshal J. L. McDowell, of Kansas, who had asked whether he should give his official service in executing the fugitive slave law, said in response to the inquiry:
It is the President’s constitutional duty to “take care that the laws be faithfully executed.” That means all the laws. He has no right to discriminate, no right to execute the laws he likes, and leave unexecuted those he dislikes. And of course you and I, his subordinates, can have no wider latitude of discretion than he has. Missouri is a State in the Union. The insurrectionary disorders in Missouri are but individual crimes, and do not change the legal status of the State, nor change its rights and obligations as a member of the Union.
A refusal by a ministerial officer to execute any law which properly belongs to his office, is an official misdemeanor, of which I have no doubt the President would take notice.[[221]]
The Attorney-General in this instance merely amplified a suggestion contained in the inaugural.
Toward the close of July, 1861, the number of “contrabands” had increased to nine hundred, and the Union commander again requested instructions.[[222]] Secretary Cameron’s reply on the 8th of August following merely authorized, what General Butler had all along been doing, employing them at such labor as they were adapted to and keeping a complete record, so that when peace was restored the essential facts of each case could easily be ascertained.[[223]] His tact in dealing with this question appears from an act of Congress approved August 6 in which his extension of meaning to the word contraband is adopted. This declared that if persons held to labor or service were employed in hostility to the United States, the right to their services should be forfeited and such persons be discharged therefrom.[[224]]
Exclusion of fugitive slaves from the quarters and camps of troops serving in the Department of Washington was provided by a general order of July 17, 1861, and a few weeks later, August 10, the departure by railway of negroes from the District of Columbia was prevented unless evidence of freedom could be adduced.[[225]]
Far more important, however, than these prudent regulations of the Adjutant-General was the celebrated proclamation of Fremont, dated St. Louis, August 31, 1861, which declared martial law throughout the entire State of Missouri and expressed a purpose both to confiscate the property and free the negroes of all persons in the State who should take up arms against the United States or who were shown to have taken an active part with their enemy in the field.[[226]] The President, in a communication of September 2 following, wrote General Fremont expressing anxiety concerning the effects of this proclamation: “I think there is great danger,” said Mr. Lincoln, “that the closing paragraph, in relation to the confiscation of property and the liberating slaves of traitorous owners, will alarm our Southern Union friends and turn them against us; perhaps ruin our rather fair prospect for Kentucky.[[227]]
“Allow me therefore to ask that you will, as of your own motion, modify that paragraph so as to conform to the first and fourth sections of the act of Congress entitled, ‘An act to confiscate property used for insurrectionary purposes,’ approved August 6, 1861, and a copy of which act I herewith send you.
“This letter is written in a spirit of caution, and not of censure.”[[228]]
Though General Fremont had acted wholly on his own responsibility he refused so to modify that portion of his proclamation relative to emancipating slaves as to conform to the act of Congress referred to, and in a letter requested the President “openly to direct” him “to make the correction.” Referring to this part of his communication Mr. Lincoln replied on the 11th: “Your answer, just received, expresses the preference on your part that I should make an open order for the modification, which I very cheerfully do. It is therefore ordered that the said clause of said proclamation be so modified, held, and construed, as to conform to, and not to transcend, the provisions on the same subject contained in the act of Congress” approved August 6, 1861.[[229]]