Law, Politics, and Race in the Struggle for Equal Pay during the Civil War

LAW, POLITICS, AND RACE IN THE STRUGGLE FOR EQUAL PAY DURING THE CIVIL WAR Herman BeIz The enrollment of emancipated slaves and free blacks in the Union army signified a major advance toward citizenship and equality before the law for American Negroes. Despite its longrange egalitarian tendency, however, at its inception the policy was beset with internal contradiction in the form of lower pay and allowances for black soldiers in comparison with whites. After vigorous protest against this discrimination, which saw at least one black soldier court-martialed and sentenced to death for mutiny, Congress in June, 1864 legislated equal pay for Negro troops. In the accomplishment of this goal, however, law, politics, and race —the essential elements in Union policy toward emancipated slaves during the Civil War—interacted in an unusual way. A decisive stand on behalf of equal pay for blacks was taken by conservative legalist Attorney General Edward Bates, who on this issue adopted an uncharacteristically radical political approach, while Secretary of War Edwin M. Stanton, who usually took the radical side of issues concerning slavery and emancipation, adopted a conservative legalist position. He did so moreover in accordance with the advice of the Solicitor of the War Department, William Whiting, who was also radical in outlook. What follows is an analysis of the issues which led to this reversal of radical and conservative roles within the Lincoln administration, and the manner in which they were resolved in the equal pay act of 1864. Employment of black manpower in the Union cause was the principal corollary of the policy of military emancipation toward which President Lincoln and Congress moved in 1862. In different ways the Confiscation and Militia Acts of July 17, 1862 were directed to this end. The former measure, after declaring that slaves of rebels who entered Union lines were free, authorized the President to organize and use as many persons of African descent as he thought best for the public welfare. The Militia Act, in a specific and pointed way, authorized the President to receive Negroes into the service of the United States for the purpose of constructing trenches, laboring in camps, and performing any other military or 197 198CIVIL WAR HISTORY naval service for which they might be found competent. Furthermore , unlike the Confiscation Act, the militia law directed that blacks employed in military labor or service be paid a definite wage, $10 per month of which $3 could be in clothing.1 Lincoln did not hesitate to use the Confiscation Act to organize blacks for military labor. On July 22, 1862 he instructed Secretary of War Stanton to prepare an executive order authorizing the seizure of rebel property and the employment as laborers of as many colored persons as could be used for military or naval purposes.2 Stanton's ensuing order required military commanders to employ Negroes as laborers, pay them reasonable wages, and keep accounts of their property and labor in order that fair settlement might subsequently be made.3 At the same time Lincoln publicly stated that he was not prepared to use the contrabands as soldiers.4 This policy soon changed, however, for at the end of August Stanton , presumably with the President's approval, directed General Rufus Saxton in South Carolina to raise five thousand colored volunteers and authorized them to receive the same pay and rations allowed by law to volunteers in the service.5 The Emancipation Proclamation, in which Lincoln announced that freed slaves would be received into the armed service for garrison duty, reflected growing pressure to use Negroes in the army and augured more widespread recruitment of both contrabands and free blacks. In January, 1863, under War Department authorization, Governor John A. Andrew of Massachusetts raised the first colored regiment from a northern state, and by April eight black regiments had been approved and six were in existence. In May the War Department created the Bureau for Colored Troops and put into operation the enlistment effort that by the end of the war brought 186,000 blacks into the national service.6 Although Stanton had authorized Saxton to pay Negroes equally with whites, this action did not establish a settled, uniform policy. Many...