In 1864 Maryland, Confusion Over Emancipaton Made Slaves Interpreters of Law

In the midst of the Civil War, who was a slave and who was free? When African Americans in Maryland asked this question 150 years ago, in August 1864, they engaged in a sophisticated analysis.
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In the midst of the Civil War, who was a slave and who was free? When African Americans in Maryland asked this question 150 years ago, in August 1864, they engaged in a sophisticated analysis. The answer was to be found in the confrontations between African Americans, slaveholders, and soldiers. Understanding emancipation required the careful reading of orders, statutes, and presidential edicts. The result was sometimes confusion, even for lawmakers. Judges, congress members, and the President differed over who had the authority to end slavery. Legal pundits suggested that the Constitution might not allow for abolition at all. Enslaved people had a great deal at stake: their liberty. They studied emancipation's complex legal contours. They interpreted the law. Then, they acted.

Congress set in place a patchwork of acts that liberated some enslaved people, mostly those with a connection to the Union military effort. The First Confiscation Act of August 1861 was used to free those slaves who made their way to Union lines. One year later, the Second Confiscation Act freed enslaved people in Union-occupied areas whose owners failed to demonstrate what Treasury Secretary Salmon Chase called "continuous loyalty" to the Union. That same day, the President signed into law a Militia Act that provided for the emancipation of rebel-held slaves along with their mothers, wives, and children, when employed against the Union. These were striking interventions that signaled the transformation of a war for union into a war for emancipation. Making sense of these Acts and determining their applicability was another matter, one that left room for competing interpretations.

In January 1863, Lincoln's Emancipation Proclamation became the most sweeping acts of abolition to date. It too was a partial measure, providing for the liberation of some but not all of the nation's four million slaves. The Proclamation freed only those slaves in Confederate-held territories. Areas already under Union control were exempt, allowing slavery to persist. In states such as Louisiana and Virginia, this required the President to carefully delineate where enslaved people could claim freedom: parish by parish; county by county; city by city. Also exempt from the Proclamation were the border states of Delaware, Kentucky, Maryland, and Missouri. Lincoln's edict was celebrated by some for its sweeping terms. But a careful review of the text made clear that for many enslaved people their day of liberation had not arrived.

Freedom did not only hinge upon law, of course. Since the war's outset, enslaved people had defined the process of emancipation by claiming their own liberty: walking away from plantations, escaping to Union military lines, and making the long trek to camps that filled beyond capacity with black refugees. Freedom in this sense was defined by traveling without a pass, exchanging labor for wages, and exercising autonomy over family. Still, these manifestations of freedom were framed by law's formal terms. When acts of self-emancipation conflicted with legal pronouncements, enslaved people began to interpret the law for themselves.

Before they set out, slaves took stock of the law. This required learning the particulars of acts emanating from Washington, and then conferring with friends, neighbors, and even slaveholders to understand their meaning. Such was the case for Annie Smith, who later recounted the day when news of Lincoln's Emancipation Proclamation reached her plantation in Kentucky. She was uncertain. Did the Proclamation apply to her? Smith went to her owner asking whether she was free. When he advised yes, Smith did not hesitate. The young woman immediately set out, headed for another plantation where she expected to be reunited with her parents. The outcome of Smith's story is unexpected. Kentucky was exempt from the Proclamation's provisions. But, formal edicts enacted by Washington law makers relied upon people like Smith and her owner for interpretation. They gave the Emancipation Proclamation meaning beyond that which the President intended.

Even in Confederate-controlled territory, confusion about the status of those said to be slaves surfaced. Confrontations with African Americans travelling without passes left soldiers in the field unsure. In an example from Mississippi, a former slave in the vicinity of Corinth encountered a Confederate patrol just one week after the Emancipation Proclamation was issued. A fight ensued leaving two military dogs dead and the former slave injured. When questioned about how he came to be alone on the road, the man offered a rather specific answer: "He was free as of the 1st." He then went on to explain: "He has been sent out to act as a missionary to free others." During a January first meeting Union officers had advised "they were free." The pistol he carried underscored the veracity of his claim. Confederate scouts were uncertain about how to regard a former slave, especially one armed with a gun and the law. They went on to seek clarification from officers, who took another view. This man, and others like him, were to be turned over to civil authorities.

Confusion in the days and weeks following the Emancipation Proclamation was to be expected. It provisions were complex and news of its particulars spread unevenly. Still, more than one year later, uncertainty persisted. On August 25, 1864, in the border state of Maryland, doubts continued to frame confrontations over emancipation. Annie Davis thought she might be free and wrote from her home in Belair, Maryland directly to Lincoln. Her query: "Mr President: It is my Desire to be free, to go to see my people on the eastern shore my mistress wont let me you will please let me know if we are free and what i can do. I write to you for advice." Davis and her "mistress" disagreed. Davis "desired" to be reunited with her family, and thought she might be free. In the face of an unyielding owner, she appealed to a higher authority. There is no evidence that Lincoln replied to Davis. But, had he done so his answer would have been a bit convoluted. Davis was not free by the terms of the Emancipation Proclamation, but perhaps one or another of Congress's Acts applied in her case.

In Davis's letter is a reflection of enslaved people's growing legal consciousness. Though held as a slave in a border state, Davis expected she might be free, no doubt having gleaned news of various emancipatory edicts issued in Washington. Unsure about her status, Davis sought counsel. Who better to turn to than the lawyer-turned-president who had issued a proclamation of emancipation. "Please send me word this week," she implored Lincoln. Davis, though still held as a slave, had joined the body politic. And when troubled by confusion about her status, she sought the intervention of the Commander in Chief. Emancipation promised to transform the status of millions. It also opened the door to critical thinking about law for enslaved people like Annie Davis.

By November 1864, Davis and the thousands of others still held as slaves in Maryland had another answer to their questions about emancipation. Lawmakers in the capital of Annapolis ratified a new constitution, one that provided for slavery's demise in the border state. Article 24 declared: "Hereafter, in this State, there shall be neither slavery nor involuntary servitude, except in punishment of crime, whereof the party shall have been duly convicted; and all persons held to service or labor as slaves, are hereby declared free." This language foreshadowed the terms of the U.S. Constitution's Thirteenth Amendment, which would be enacted the following year by Congress. Those held as slaves in Maryland were free, and slavery as a legal institution was abolished.

Even after such a sweeping declaration, people in Maryland were left to interpret the law for themselves. The accumulation of formal edicts appears to have emboldened some who had been watching for their chance at liberty. On November 14, 1864, Harriet Anne Maria Banks wrote from Baltimore, Maryland to denounce those who had held her in bondage until just recently. She had been enslaved in the eastern shore town of Vienna where local whites had advised her that "Abraham Lincoln could not free me that he had no right to do so." There was arguable merit to this view. Commentators continued to doubt that the President had authority to end slavery by proclamation. And Lincoln himself had exempted Maryland from his edict. Still, by November 1864, Maryland's own lawmakers had abolished slavery, leaving those who hoped to hold Banks in bondage on shaky legal ground. She weighed competing understandings and then set out, later recounting how she headed for Baltimore, eager to "go into the service of the United States."

Enslaved people knew that slavery's demise was not straightforward. It began with their acts of self-emancipation, which took advantage of the disruptions of war. Slavery's end was more difficult to pinpoint. Many war-time edicts were partial measures leaving those in the field, including enslaved people, to sort through legal pronouncements. Those texts were never the final word, however. The stories of Annie Davis, Harriet Banks, and others demonstrate how, even when word of emancipation reached the ears of enslaved people, room for debate remained. The laws of emancipation began their transformation from slaves into citizens, while their interpretations of those edicts changed them from the subjects of law into agents of its implementation.

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