An Illegal Order

As if Lincoln's threat of emancipation in the Confederate States wasn't enough, the Commander-in-Chief further complicated the turmoil in McHenry's regiment by the issuance of a standing order to the effect that any fugitive slave should be granted refuge and the protection of the United States government if they arrived at a Union encampment.  

This order presented a legal and ethical conflict to Colonel McHenry as it was received while he was serving in Kentucky, where slaves were still considered the rightful property of their owners.  How could he respect the rights of property owners who had remained loyal to the Constitution, as was their policy even in occupied Tennessee, and yet give refuge to runaway slaves? He was forced to choose between following the laws of his state or the order from his Commander-in-Chief.  His legal training suggested that Lincoln's order was unlawful as it violated state law and was not supported by any Federal law or Supreme Court decision.  

The order also presented a practical problem, since the troops that were being ordered to provide refuge to runaway slaves were the same troops that had been ordered by the War Department to live off the land.  Remember the brilliant maxim that the movement of the army was hindered by an abundance of transportation? They obviously could not send the runaways out into the Kentucky countryside to forage for food and the soldiers could not even  find enough supplies to sustain themselves and their animals.  Additionally, when the army did provide rations of food and clothing, their issue was based on the number of soldiers in the regiment-  the refugees were not included. 

As the number of  runaways in the camp grew, providing for their care became an increasing strain on regimental supplies until finally, the colonel felt compelled to issue the following order.


Headquarters, 17th Regiment, Ky. Vols
In the Field, Near Mew Market, Kentucky
October 27, 1862

SPECIAL ORDER:

   No fugitive slave will hereafter be allowed in this regiment, and all officers and soldiers are forbidden from employing any other than slaves or Negroes known to be free.
   All fugitive slaves are hereby ordered to leave this regiment in two weeks from this date.
   All fugitive slaves within the limits of this regiment will be delivered to his owner or agent appointed, upon application whether the owner be loyal or rebel.

By command of John H. McHenry, Jr. 
Col., 17th Inf.

Geo. W. Gist, 
1st Lt., Adjutant*

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* Blackburn, John, A Hundred Miles - A Hundred Heartbreaks, 1972,  LOC 72-93774, pp. 106-107.