§ 88. The question of slaves of rebels.—With the beginning of the Civil War in 1861 the last period in the study of fugitive slaves opens, to close only with the repeal of the Fugitive Slave Law and the abolition of slavery.
New conditions now surrounded the slaves. Their masters were away in the army; many homes were broken up, and confusion reigned instead of law; the strict discipline and oversight necessary for the maintenance of the slave system was impossible. Opportunities for escape occurred everywhere and at all times. Since war had brought the Northern people down into their own land, the slave no longer needed to travel hundreds of miles to find friends; the Northern camps were perhaps but a few miles from his own plantation. In this way negroes began to gather around the Federal camps in such numbers that the question of disposing of them became serious. If the Fugitive Slave Law of 1850 were considered as still binding, their apprehension and return were necessary; but many of the masters were in arms against the government; should they still be protected in their property? The belligerent position of the South seemed to preclude any right on the part of disloyal owners to ask for the benefit of the law.
To meet the changed conditions no policy had as yet been developed by the government. The first solution of the problem was made at Fortress Monroe by General Butler. He drew an analogy from international law, which makes material of war imported into the country of a belligerent lawful prize to the army or navy of the other belligerent. Regarded as property, the slaves of rebels could be of great service to them, and of equal help to the government in suppressing rebellion. Regarded as persons, they had escaped from communities where rebellion was in progress, and they asked protection from the government to which they were still loyal. In May, 1861, General Butler therefore replied to all demands for fugitives that he should retain them as "contraband of war." The answer was widely spread, and "contraband" became the name by which such negroes were known.[313]
§ 89. Slavery attacked in Congress.—A series of attacks upon slavery now began in Congress. To many persons the fact that the institution was recognized in the Constitution seemed sufficient ground for protecting it. No doubt was entertained of the power of Congress to confiscate the ordinary property of rebels; but such persons deprecated all interference with slaves, who were supposed to possess a kind of constitutional immunity, wholly unknown to and above all other property.[314] In the minds of antislavery men, "no greater fallacy was ever asserted than this attempt thus to link 'the institution' and the Constitution indissolubly together, to engraft the former upon the latter, to make slavery the corner stone of the nation, to be guarded and protected by the government."[315] Nevertheless, the existence of slavery in the Border States which had remained loyal made Congress very cautious as to general enactments. On the other hand, no form of property held by rebels was so vulnerable; slaves could not only be seized as the lines of the Northern troops extended, they could, by actual law or by kindly reception, be invited across the lines. Both the passions aroused by civil war and a humane pity for the slave urged the government to deprive the master engaged in secession of the services of his slave.
Confiscation Bills.
§ 90. Confiscation bills.—July 18, 1861, Mr. Chandler and Mr. Trumbull introduced general confiscation bills in the Senate; they were both referred to the Committee on the Judiciary. In the discussion Mr. Trumbull offered as an amendment "that whenever any person claiming to be entitled to the service or labor of any other person, under the laws of any State, shall employ such person in aiding or promoting any insurrection, or in resisting the laws of the United States, or shall permit or suffer him to be so employed, he shall forfeit all right to such service or labor, and the person whose service or labor is thus claimed shall be thenceforth discharged therefrom, any law to the contrary notwithstanding."[316]
The proposition aroused considerable opposition, since it was a step far in advance of anything which had yet been done against the interests of slavery, and any proposition which advocated "an act of emancipation," however limited and qualified, was the signal for hot discussion. The opposing party announced that "nothing will come of it but more irritation,"[317] and in each crisis statesmen should "observe all possible toleration, all conciliation, all liberality."[318] Mr. Wilson upheld the opposite opinion, and thought that the time had come when this government, and the men who are in arms under the government, should cease to return their fugitive slaves to traitors.
The bill passed the Senate July 22, 1861. In the House it was amended so as to limit the negroes to be freed more strictly to those employed in military service.[319] The bill went back to the Senate, which concurred in the amendment,[320] and it received the signature of the President, August 6, 1861.[321]
The Emancipation Proclamation.
§ 91. Confiscation provisions extended.—Propositions more far reaching were introduced into the Senate in the session of 1861-62.[322] January 15, 1862, Mr. Trumbull, from the Committee on the Judiciary, to whom the various propositions had been referred, reported an original bill, and asked that the committee be discharged from the consideration of others.[323] March 14, 1862, Mr. Harris introduced into the Senate a bill to confiscate the property of rebels and for other purposes.[324] These propositions were considered at length, but never came to a vote. It is not necessary to enter here into the discussion of confiscations and of the constitutional right of Congress to free the slaves; in most of the bills there was a provision against the return of slaves to disloyal masters.