The Harris bill declared that, before any order for the surrender of fugitives should be given, the claimant must establish not only his title to the slave, as was then provided by law, but also that he is and has been loyal to the United States during the Rebellion. Mr. Pomeroy objected to this because it would make it "obligatory on the government of the United States to surrender a person claimed to be indebted to another for service or labor, if the claimant proves that he is loyal to the government. Would not this re-enact the Fugitive Slave Law of 1850?"[325] An amendment was therefore adopted which so changed the law that any reference to the act of 1850 was avoided.[326] After several debates the proposition was recommitted, May 6.[327] Mr. Clark reported a bill, May 14, which retained the provision in regard to fugitives as at first offered.[328]
In the House, resolutions on confiscation and emancipation were offered on the first day of the session, but the final action was based upon one of several bills introduced by Mr. Eliot, May 14, 1862.[329] His first bill, upon the confiscation of the property of the rebels, need not be followed out here; but the second bill provided for the emancipation of the slaves of disloyal masters, and forbade their return as fugitives. After various recommitments[330] a bill was brought in, according to which, in any suit brought by a claimant to recover the possession of slaves to enforce such service or labor, it was to be a sufficient bar to allege and prove that the master was disloyal to the government.[331] The bill then passed the House by a vote of 82 to 54.[332]
When it came up in the Senate, June 23, 1862, Mr. Clark moved to strike out all after the enacting clause, and to insert a substitute which would again unite the confiscation and emancipation bills. This amendment was rejected by the House, and a conference committee was appointed which reported July 11 and 12. The fugitive from a disloyal master was by this compromise to be deemed a captive of war, and forever freed from servitude.[333] The report was adopted by both houses, and approved by the President, July 17, 1862.[334] From that date any slave of a disloyal master who could make his way into the territory occupied by the Northern troops was ipso facto free. The fugitive was to become a freeman.
§ 92. Effect of the Emancipation Proclamation (1863).—The complete emancipation of the negroes within the Confederate lines was the next logical step, and was demanded as a war measure. It deprived the Confederacy of the aid of these slaves, and at the same time made it possible to arm and employ the former slaves against their masters. September 22, 1862, President Lincoln issued his preliminary proclamation, by which he warned the South that, unless it should return to its allegiance, all persons held as slaves in the States in rebellion on the 1st of January, 1863, should be "thenceforth and forever free."
At the end of one hundred days the final and absolute Proclamation was put forth, January 1, 1863. It declared also that negroes might be received into the armed service of the United States; and henceforth throughout the war, the former slaves were enrolled as soldiers and did good service for the government.
The effect of this proclamation was to end slavery, and with it the return of fugitives, within the Confederate lines. But here the legal machinery of the government had no effect; the State laws relating to slavery might be considered suspended, but practically the laws and practices of the Confederacy prevailed. On the other hand, the Fugitive Slave Law yet existed upon the statute-book where the Union had power; the arrest and imprisonment of fugitives was yet legal, and many desired to see the law repealed as another step toward the final crushing out of the system.
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]