Were African Americans drafted under the 1863 Militia Act?

Peter Knupfer's picture

Were African Americans drafted into the Union Army under the procedures detailed in the Militia Act of 1863?  (I don't consider substitutes to be draftees.)  That is, were they included in the enrollment of able-bodied male citizens declared eligible for conscription?

In Freedom National, James Oakes argues that blacks were eligible (because in the aftermath of the Emancipation Proclamation, the Second Confiscation Act, and Attorney General Bates's opinion that free blacks were citizens and Dred Scott was not legally binding, Congress changed the definition of the militia from "free able-bodied white male citizens" to "able-bodied male citizens") but he doesn't point to any instances of their actually being called up by local draft boards under the act.  In an unsourced statement, he says (361), "Within weeks [of passage of the draft law] the Union army began sporadically 'impressing' slaves directly into the army, for with freedom they became citizens and with citizenship came the obligation to military service."  But the cart-before-the-horse thinking behind "impressing" slaves into the army to free them in order to draft them sounds to me like the action of a local commander who considered forced labor to be the lot of the black man, whether citizen or slave, and did not constitute implementation of the Militia Act.  Certainly it is not how conscripts were enrolled and entered the service, and there still were tens of thousands of free black males between the ages of 20 and 45 in the loyal states who were "eligible."  Were any of them drafted?

Thank you,

Peter Knupfer, Michigan State University

Peter,
I did a close study of an area in western Kentucky on the Ohio River and the slave population there was not entered into the Union draft until early 1864. I suspect that was the same scenario for the rest of the Bluegrass State. Local whites were irate that their names were literally mixed in the same box with their slave's names.
Mike Crane, UAFS

This legislative language looks like the Enrollment Act of March, 1863. This addressed federal conscription and was passed after the problems of the Militia Act of 1862, which passed around June or so. This earlier act specified a state operated draft for militia units to meet any call-ups by the President. In August, 1862, Lincoln called up 300,000 nine month state militia. Partly this call up was to goad more men to volunteer for the previous call for 300,000 3-year service men for the volunteer regiments. The problems associated with this 1862 effort led to the Enrollment Act with the War Department running the enrolling and drafting. I seem to remember that Henry Wilson put language in the Militia Act opening the door to future military roles for freed blacks. The legislative creation of these two conscription laws can be found in Geary's We Need Men. Forgive me if my memory has betrayed me.

I discuss the issue of slaves drafted into the Union army later in the same chapter cited by Prof. Kupfer The evidence I present extends over two or three pages and is fully sourced, beginning in note 60.

Briefly:. Congress, knowing that the slaves states would never draft blacks by the usual route of local boards, empowered the war department to raise black troops on its own. Mostly this involved setting up recruitment centers, but sometimesindividual Union soldiers--white officers and black troops alike--"drafted" or "impressed" blacks into the army. The sources I quote are quite unambiguous that blacks were being "drafted" into the army. The specific duties to which they were assigned is irrelevant, though it's worth noting that the practice was controversial in part because the men were being PULLED from plantation labor.

None of this could have happened until the Lincoln administration clarified that blacks were citizens, because the Militia Act of 1862 made citizenship a prerequisite for military service in the army.

When historians claim that black men earned their citizenship by serving in the Union army, it is they who are putting the cart before the horse.

I have done a little research on this in Kansas. To my knowledge, no, there were no black draftees in 1863.

Though, in Kansas and Missouri, some who served in USCI regiments had been impressed into service and many in the 1st and 2nd Kansas Colored had previously served in Lane's Brigade. James Lane recruited black regiments under the Militia Act of 1862 (despite protests from higher ups that this was illegal). They were not formally mustered into service until 1863. This was not a draft, however.

I have also found evidence of freedmen serving in state militias. When word spread of Sterling Price's raid in 1864, General Samuel Curtis, head of the Department of Kansas, gained permission from Kansas governor Thomas Carney to call up the Kansas State Militia. This militia was, according to Kansas’s 1864 militia act, to be populated only with white men; General Curtis sidestepped this mandate and called up male residents between the ages of eighteen and sixty, including African Americans.

I really appreciate the contributions so far and will dig into the references that are coming in.

I'm grateful to Prof. Oakes for his clarification about the discussion of "drafting" blacks into the Union Army.  But I fear he misunderstands me, so I'll try to be a little clearer, if possible.

"Draft" has several applications.  One of them is simple coerced labor: blacks were taken from, say, the plantations or off the streets and forced to serve. Throughout his discussion, Oakes uses "conscription," "draft,"impressment" almost interchangeably alongside "recruitment" and "enlistment" -- all of which are euphemisms for "entering the army" -- and in their generic meaning that works fine for a book analyzing the demise of slavery: evidence is overwhelming that blacks were being forced to serve through procedures outside those detailed in the Militia Acts.  Thus, on p. 384 he points out that "official Union policy" was that "blacks were encouraged but not forced to enlist."  He then enumerates many incidents entirely in occupied territory or loyal slave states where blacks were forced to enlist -- taken from plantations and other daily duties and forced into the service.  It's very obvious that many blacks were "recruited" through various methods, such as enticement as well as coercion, as well as the majority who volunteered.  But was that the same as conscription under the Militia Act?  (The outcome was the same, in that they all ended up on the army.)  Had they been enrolled and selected according to the procedures outlined in the Act, which were intended (in spirit at least -- the New York rioters surely had a different perspective) to provide some element of due process?  It doesn't look like it to me, and that may be irrelevant to Oakes's points about citizenship preceding and not following upon enlistment, so the distinction may not matter to him as well.  But "citizens" of the United States were not normally seized on the streets or yanked from the plough and forced into the army.  It's one thing to say that the Lincoln administration and Congress were formalizing black citizenship through a number of executive actions and opinions prior to authorizing the enlistment of blacks; the evidence there is persuasive.  It's another to figure out whether that had any meaning in its application in the streets of the North (and not just in occupied territory).

My query refers to the formal process of enrollment and conscription carried on through local enrollment boards established under the Militia Act.  For those interested in this procedure, it is outlined in Secs. 8-10 and 12 of the Act, which detailed how to identify eligible males, prepare lists of them, and notify them they were being called.  If I have the number correct, there were four such call-ups during the war under this Act.

My question simply refers to those call-ups, and not the activities of USCT recruiters, agents, and rogue officers who in various and often nefarious ways dragged slaves and free blacks into the service.  Mike Crane's reply points to the first instance I've seen of the formal conscription of free blacks through the process detailed in the law for the April 15, 1864 call-up, which he discusses in a splendid article about the demise of slavery in western Kentucky.  There he also quotes Lincoln's admonishment to local officers that "you must not force negroes any more than white men" when enlisting them. If I correctly understand his and Kristen Epps's replies, the formal and official drafting of free blacks might have proceeded under one of the 1864 call-ups; I'd be interested in any estimates of numbers that readers might have, and whether instances of free blacks drafted in the North, outside of slave country, can be identified before the last call-up in September 1864.

In short were any of the 36,000 northern blacks in the Union Army drafted under the call-ups of the various Militia and conscription acts?

Good wishes,

Peter

Prof. Knupfer's has helpfully clarified his original intervention. Prompted by my discussion in "Freedom National" of the way slaves were recruited into the Union army in the southern states, Prof. Knupfer asked whether in fact any blacks were ever drafted. I replied by pointing out that recruitment in the slave states was organized very differently than the way it was organized in the northern states. I was arguing the very point that Prof. Knupfer now makes: that conscription and impressment were hard to distinguish in the South, and that it was controversial for just that reason. As I wrote, most slaves who entered the Union army enlisted voluntarily, often as a result of Union recruitment efforts. But as I also wrote, there were were "sporadic" reports of slaves being "drafted," or "impressed" into military service. Because I was writing about slave recruitment, my observations did not apply to the free states.

In his most recent post, Prof. Kupfner narrows the question to whether free blacks in the northern states were ever drafted under the procedures spelled out in the Militia Act of July 1862. My answer to that is: I don't know. I can't say that no northern state (Massachusetts?) or local draft board EVER conscripted free blacks, but my impression has always been that most northern blacks who served in the Union army, like most southern slaves, were volunteers.

Because his original question was prompted by my examination of slave recruitment in the southern states, I'm sure Professor Kupfner will forgive me for misunderstanding him.

Finally, I take my hat off to Mike Crane for his discovery of the conscription of free blacks in Kentucky in 1864. That I did not know.

Excellent discussion of conscription! In early October 1863 the Lincoln administration, over the strong objection of some border state Unionists, instituted a remarkable and little-known policy of compulsory emancipation of enslaved men, with compensation to their previous owners, in most of the border states, and of their enrollment in the army, effectively extending the draft to slaves and providing the essential foundation for the extension of full citizenship. The policy was kept secret for a time and not applied in Kentucky at first because it was so potentially explosive. General Order 329 enforced compulsory compensated emancipation on all slave owners, loyal or rebel, if local draft quotas were not met: See: The War of the Rebellion: The Official Records of the Union and Confederate Armies, series 3, 5 vols. (Washington, D.C.: GPO, 1899), 3: 860; William C. Harris notes that the policy was not always implemented as written; Harris, Lincoln and the Border States: Preserving the Union (Lawrence: University of Kansas Press, 2011), 274. James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (New York: Norton, 2013), 464. Local application varied, but it appears that this is the general policy statement that applied conscription to all adult males in practice, when the militia and conscription acts had been unclear up to that point in regards to enslaved persons.

A little preliminary information from the OR, series 3, volume 3 (general correspondence of US authorities for 1863):

BG Boyle at Camp Nelson, KY, writes to Col. Fry, Provost Marshall General (in charge of enrollment, draft, and apprehending deserters) on 25 June 1863 (p.416): "General Finnell has just informed me that you have ordered the enrollment of free negroes for military service in Kentucky. There are only 4,130 free male negroes in the State. ... If you gain these, you will lose more than 10,000 [whites]. You will revolutionize the State and do infinite and inconceivable harm, and I am sure this is all wrong and there is not an honest, loyal man in the State in favor of it, and it will meet with decided opposition. For the peace and quiet of the country I beg you will change your order on the subject. I request that you confer with President Lincoln on the subject and show him this telegram."

Fry responded from Washington DC the next day (p. 418-419): "The enrollment is simply taking the census of persons between the ages of twenty and forty-five. I don't see why infinite and inconceivable harm, as you state, should be done by my ascertaining and informing the Government how many free negroes there are between those ages in the different States, and their names, and I have a better opinion of Kentucky than to think she would be revolutionized if such information is sought for by me as it has been by the Census Bureau without revolution. I shall endeavor to get this information in Kentucky, as in other States, unless the Government orders otherwise, and to use your language, I do not see how any honest, loyal man in the State can oppose it. I will show your dispatch to the Government to-day."

On June 26th Burnside (commanding in Kentucky and adjoining states) wrote Lincoln in a similar vein asking that the enrollment be in Kentucky be stopped (p.418). Lincoln replied the next day (p.419): "There is nothing going on in Kentucky on the subject of which you telegraph except an enrollment. Before anything is done beyond this I will take care to understand the case better than I now do. "

From this we can conclude that all Free Negroes in the North were enrolled for the draft from the commencement of the implementation of the 1863 Militia Act. Resistance was met with insouciance in regards to the implication that the enrollment of Free Blacks carried - the idea that they could be drafted into the US army just like whites.

On 25 December 1863 Fry responded to a US Senate inquiry relayed to him by Secretary of War Stanton (p.1191-1192): "I have the honor to give below a resolution adopted by the U. S. Senate, and to report on the same for your information:

THE ENROLLMENT OF NEGROES IN SLAVE STATES. Mr. Wilson offered the following, which was agreed to: Resolved, That the Secretary of War be directed to inform the Senate whether persons held to service or labor by the laws of Delaware, Maryland, West Virginia, Kentucky, and Missouri have been enrolled according to the provisions of the act for calling out the national forces, and for other purposes, approved March 3, 1863, and if not, why such enrollment has not been made.

The resolution is understood to refer to negroes held as slaves. In answer to the two inquiries, whether they have been enrolled according to the provisions of the act for calling out the national forces, and for other purposes, approved March 3, 1863, and if not, why such enrollment has not been made, I would respectfully state as follows: First. They have not been enrolled under the act referred to. Second. The act directs only the enrollment of able-bodied male citizens of the United States and persons of foreign birth who have declared on oath their intention of becoming citizens. When the subject was officially brought to your notice you directed that slaves should not be enrolled, considering, I suppose, that the law did not intend to include slaves among the persons to be enrolled. Difficulty and bloodshed attended the enrollment of white men in some of the free States, and the enrollment of free negroes in the border (slave) States was conducted in some instances at the imminent risk of local civil war. To have attempted the enrollment of slaves under a law which did not authorize it would, at the time when it must have been done, probably have produced evils which cannot now be calculated, and could not under any circumstances have added materially to the strength of the Army."

So here is an authoritative statement that slaves were not enrolled for the draft in 1863 but that Free Negroes were.

Were Free Negroes actually drafted in 1863? I don't have evidence one way or another on that question yet, but I think the assumption should be that they were, they being enrolled and therefore included in the pool from which draftees were selected.

Peter Lysy
University of Notre Dame Archives

My sincere thanks to contributors for the care and attention they've given to my query which, contra Oakes, never "narrowed."  This thread got to the current point by dealing with the same question it started with: whether African Americans were drafted "under the procedures detailed in the Militia Act of 1863."  Oakes points out in his first reply that Congress knew that slave states would not draft free blacks via local draft boards and therefore "empowered the War Department to raise black troops on its own."  As we've seen in Crane's and Oakes's research, "raising" troops covered a lot of procedural territory outside the normal process of enumeration, enrollment and formal conscription.  And we do have evidence that regardless of Congress's anticipation that local draft boards would not operate in "slave states," Johnson's discussion of General Order 329 suggests that the War Department assumed that draft quotas applied to loyal slave states and that slaves were to be emancipated and drafted; there appears to be some evidence from Crane that formal enumeration of the draft-eligible population did occur in loyal areas of Kentucky, and that Lincoln admonished officers there not to use any different means of recruitment for blacks than for whites.  Alongside this we have overwhelming evidence of local officers' extralegal compulsion and impressment of blacks off the plantation and elsewhere.  Lysy's extracts from OR suggest that in border slave states, enumeration was expected but not necessarily followed by specific call-ups of blacks in those areas for fear of local white resistance.

Oakes is right that the vast majority of northern black soldiers were volunteers, as was the case with white soldiers; until now, that fact had always made the question of their being drafted rather moot: they enlisted in such large numbers in proportion to their population that forcing the remainder into the service seemed counterproductive.  And of course, one would expect that blacks in Massachusetts would enlist in large numbers, given that state's long record of black citizenship and a modicum of civil rights.  It's the lower North that would seem more illuminating on that question, places like Illinois and Indiana, with their long traditions of excluding blacks from the public square.

But then Oakes's discussion in Freedom National of citizenship prior to service got me thinking about enumeration in the draft rolls as an indicator of citizenship, and whether local draft boards would just as readily count free blacks as whites on the draft registries.  If national citizenship doesn't vary by jurisdiction (if "freedom" is "national"), then inclusion of newly-recognized black citizens on the draft rolls would tell us something about the public's general acceptance of such a change.

Ancestry.com has digitized and indexed the War Department's draft enrollment registries.  One of my off-network correspondents has looked at these records (over 3,000,000 names), and has suggested that perhaps 77,000 blacks were enumerated for the draft (~2% of the total).  According to Glatthaar, Forged in Battle (71, sourced at n27) 34,000 northern blacks served in the Union army, over 15% of the free black population in 1860.  How many of those enumerated in the draft registries were among that 34,000 isn't known so far; the margin for error is likely very high in such calculations given the variance in entering names and descriptive information on the rolls.  But a quick look at some of the entries on a page for a Michigan congressional district shows several males indicated as "black" and "drafted."  So, barring some more convincing evidence to the contrary, it seems safe to say that the answer to the original query is "yes."  And, as with any good "answer" in history, more questions emerge: how many? what was the proportion of black draftees to free blacks, and what would that proportion tell us about black support for the war effort?  Our impression of the leadership of the free black community is that it uniformly supported the war and enlistment of black troops.  Was there such a thing as a black draft resister?

Thank you,

Peter

This has been an extremely enlightening exchange, one that has forced me to think more clearly about the crucial distinctions that need to be kept in mind.

Regional distinctions were clearly important. Were blacks drafted in the North? In the Border States? In the Confederate States? The procedures, formal and informal, varied from place to place. What was true of Massachusetts may not have been true of Maryland, and what was true of Maryland may not have been true of Mississippi.

Some distinctions are temporal: Was the conscription policy that was being implemented in 1863 still in place in 1864? Peter Lysy cites a communication from Speed Smith Fry, operating in Kentucky in December, 1863, but Mike Crane finds that free blacks were drafted in areas of Kentucky beginning in early 1864. Were Kentucky slaves likewise drafted beginning in early 1864?

Not all Union commanders did the same thing, or even did what they were told. Throughout the war, from the Spring of 1861 until the Spring of 1865, the Union Army was internally divided, with some officers and soldiers aggressively implementing Union emancipation and (later) black enlistment policy, while others firmly resisted both emancipation and black enlistment. Fry, for example, was the notorious Union officer who in 1864 expelled the families of black soldiers from Camp Nelson, Kentucky, only to have his order reversed after being reprimanded by his superiors. A year earlier Fry was denying that slaves could be safely conscripted, but was that Fry or was that Union policy? Officers under Fry’s command strenuously objected to his expulsion policy. Had any of them objected to his refusal to enlist slaves? Were any of the black soldiers who families he subsequently expelled originally conscripted as slaves in the year after Fry denied that they could be?

Prof. Knupfer's postings highlight the important distinction between free blacks and slaves. His first communication opened by asking “Were African Americans drafted into the Union Army under the procedures detailed in the Militia Act of 1863[memory.loc.gov]? (I don't consider substitutes to be draftees.) That is, were they included in the enrollment of able-bodied male citizens declared eligible for conscription?” This seems to apply to slaves and free blacks, especially since the springboard for the question was a passage in Freedom National that referred to the “impressment” of slaves. But Knupfer's second posting ended by asking, “were any of the 36,000 northern blacks in the Union Army drafted under the call-ups of the various Militia and conscription acts?”

Like Prof. Knupfer, I am persuaded that the answer to the latter question is “yes,” but like him I still wonder how widespread the drafting of free blacks in the North actually was. But as to the broader question, “Were African Americans drafted into the Union Army,” we need to be clear about distinctions of time, place, who is doing the conscripting, and which groups of African Americans were or were not conscripted.

There’s a legal distinction hovering here as well: What law are we talking about, the Militia Act of July 17, 1862, or the Enrolling Act of March 3, 1863? The Militia Act removed the racial barrier to enlistment and authorized the president to establish federal procedures for enlistment should the states be unable or unwilling to execute the law. The latter established the draft.

One of the things this illuminating thread suggests is that there is a good deal of research still to be done on the implementation of the Emancipation Proclamation. Altogether too much ink has been spilled on the geographic limits of the emancipation provisions of Lincoln’s decree, thereby obscuring the fact that paragraph opening the Union army to black soldiers was not restricted to “areas in rebellion.” This leaves open the question I mistakenly assumed Prof. Kupfner was asking at the outset: How were slaves enrolled in the Army? Were they ever drafted? If so, how was that done? In the Border States the war department set up dozens of recruitment centers, but how were slaves enlisted as the Union army moved deeper into the Confederate states. I tried to suggest some of the answers in Freedom National, but they barely scratch the surface.

I have been reading the diaries of Emilie Davis, a free African American woman in Philadelphia. The diaries indicate that her brother Alfred was drafted in 1864. (He seems to have fled to Canada for a while before reporting.)

There are two new editions of Davis's diaries, one edited by Karsonya Wise Whitehead and another by Judith Giesberg and her students.

Prof Oakes writes: "Peter Lysy cites a communication from Speed Smith Fry, operating in Kentucky in December, 1863, but Mike Crane finds that free blacks were drafted in areas of Kentucky beginning in early 1864. Were Kentucky slaves likewise drafted beginning in early 1864?"

Prof. Oakes misidentifies Col. Fry here and consequently misunderstands the importance of what Fry wrote. I had indicated that Col. Fry was the Provost Marshal General of the US Army. Perhaps I was unclear and I should have looked up his full name - it was Col. (later General) James B. Fry. Fry was the head of the Provost Marshal General's Bureau in Washington DC and in charge of implementing the draft throughout the Northern and Border States. I quoted his official response to a resolution of Congress inquiring as to whether slaves had been enrolled and drafted in the border states. Fry answered that they had not been because of the turmoil it would have caused. Fry reported that implementing the draft among the white population was difficult but successful, and that implementing it among the free black population was more difficult but had also been accomplished. Fry chose not to try implementing the draft among the slave population in any of the border states because he felt he would not be able to do it successfully. This is an important and authoritative statement indicating that as of December 1863, Free Negroes were being drafted in both the Northern and Border States but that slaves were not.

That changed two months later. Congress passed Public Act 11 on 24 February 1864 (see OR ser 3, vol 4, p.128-133). This act modified the 3 March 1863 Enrollment Act. Section 24 reads, in part, "all able-bodied male colored persons between the ages of twenty and forty-five years, resident in the United States, shall be enrolled according to the provisions of this act, and of the act to which this is an amendment, and form part of the national forces; and when a slave of a loyal master shall be drafted and mustered into the service of the United States, his master shall have a certificate thereof; and thereupon such slave shall be free, and the bounty of one hundred dollars, now payable by law for each drafted man, shall be paid to the person to whom such drafted person was owing service or labor at the time of his muster into the service of the United States."

So after 24 February 1864, the official policy of the US government was to draft slaves in the border states, grant them their freedom, and give their former masters some modest compensation. Later correspondence in this volume indicates that slaves were indeed drafted.

To what extent were free blacks and slaves actually drafted? The records of the Provost Marshall General in the National Archives in DC (Record Group 110) includes lists of drafted men by Congressional District. The definitive answer to this question lies in those records.

But we can find some snippets of information online that might suggest an order of magnitude answer. For example, the Pittsburgh Gazette, 3 August 1863, page 3, has a report from its correspondent in DC which includes "The number of negroes drafted [in DC] up to this time is 1,273. Georgetown and the remaining wards of Washington will nearly give us two full drafted negro regiments from this district, in addition to the two of volunteers." Thirteen hundred black draftees is a substantial number - but one always has a little gnawing doubt about anything reported in Civil War era newspapers. So we look for more references.

We can have full confidence in an official report published by local draft authorities in 1865. This document lists all the men drafted in 1863 and 1864 who deserted or otherwise did not report for duty in the 16th Congressional District of Pennsylvania (Adams, Bedford, Franklin, Fulton, and Somerset Counties). This document is available at http://hdl.handle.net/2027/loc.ark:/13960/t4cn7hg6w . It lists a little over 1,000 men by name, and reports their age, occupation, residence, and remarks. Certain of these men are identified as "colored", 84 by my count (I might be off by one or two, but by not more than that).

So 84 (8%) of the draft dodgers in the 16th PA CD were African American. How many didn't dodge the draft? Certainly many more than 84. True, this CD probably had a relatively high number of contrabands, but the take-away is, free blacks and former slaves were being drafted in this Northern state in numbers that were not insignificant.

Finally, I looked at some of the muster rolls for the 54th Massachusetts Regiment that are available on Fold3.com. That is the only regiment for which these sorts of records are available online. I looked at the rolls for Companies C-D-E-F for January-February 1864, after they had been recruited back up to strength after the disaster at Fort Wagner. Company C had 95 enlisted men on the rolls, of whom 9 were draftees; D had 97 and 8, E had 98 and 7, and F had 97 and 7 - or 31 draftees out of 387 men in the four companies. So a significant number of draftees were already with the unit at the conclusion of the first (1863) draft. Three more drafts were conducted in 1864.

So considering the newspaper report and draft dodger list mentioned above, some of the enrollment lists on Ancestry.com that also show draftees, reports in the OR that show the draft was being applied to both the free and enslaved Black populations, and the draftees on the muster rolls of the 54th MA, we should be convinced that blacks were drafted during the war, and drafted in substantial numbers (given the size of their population). I think we can feel safe in saying that thousands of blacks were drafted during the war - I wouldn't be surprised if the actual number surpassed ten thousand.

Peter Lysy
Archives of the University of Notre Dame

Thank you all for a very interesting and enlightening conversation. For what it's worth, one of the men in our study of USCT soldiers from Albemarle County, VA, a man named James T. S. Taylor, was drafted into the army in 1863 while living in Washington, DC, and served in the 2nd USCT. He wrote a very interesting letter to President Lincoln (http://naucenter.as.virginia.edu/blog-page/311) during the war and went on to have an important career in Charlottesville, VA, politics after the conflict. Regarding Peter Lysy's message today where he speculates about the number of drafted African American men in the army, I agree that it was probably in the thousands. There's a wonderful database at a site called civilwardata.com that has a lot of useful information about every soldier, North or South, who served during the war. I have found a number of mistakes on this site in my research, but still I think it is a useful starting place. According to this database, there were 4,562 men serving in USCT regiments who were drafted into the service. I did some random checking of these men and it appears that the some of them were actually substitutes that probably shouldn't be counted as draftees. Still, most of the men I checked this morning were listed as "drafted" on their compiled service records digitized at Fold3.com. Of particular note, civilwardata.com claims that 70% of the men in the 8th USCT were draftees, the largest percentage for any USCT unit during the war. In short, I would take this resource's 4,562 figured with a big grain of salt, but at least it's a starting point.

Many thanks to Prof Lysy for his excellent detective work. It confirms my suspicion that the policy JAMES Fry (not Speed--sorry about that) enunciated in December 1863 changed in early 1864.

I have another suspicion that I can't document just now. I wonder if the original request for information about Fry's policy was driven by Congress's dissatisfaction with the fact that slaves were not being drafted in Kentucky. If so, Fry's response may have led Congress to be more explicit. This would mean that the February 1864 law was less a change in federal policy than a clarification designed to compel enforcement of the policy that was supposed to be in place.

That's how I read March 1862 revision of the articles of war. Republicans went on record in July 1861 with a resolution declaring that Union soldiers were not supposed to participate in slave renditions. Continued reports that some soldiers and officers were still turning slaves out of Union camps irked Republican lawmakers. They were particularly annoyed by Halleck's resistance to emancipation policy. In frustration Congress finally revised the articles of war making it a crime for soldiers to help return slaves to their owners.

Does Prof. Lysy know if something like that was going on in late 1863 and early 1864 with regard to drafting slaves?

For what it's worth, I just came across a letter that may be relevant to this discussion. One black Philadelphian wrote in April 1863 that he "was enrolled for the draft which will take place in about a month." He further noted that "Many colored people are alarmed and others declare if they have to go they will enlist in the Mass. Reg. as there is no provision made by this State for the families of colored soldiers." "Letters of Negroes, Largely Personal and Private [Part 1]," The Journal of Negro History, Vol. 11, No. 1 (January 1926), p. 84.

I tried to make this point earlier. As far as I can determine there was no Militia Act of 1863. On March 3, 1863, Lincoln signed the Enrollment Act of 1863, which entirely bypassed the militia system. This law established a federally managed system of enrollment of draft eligible men, held the drawings, and chose the draftees. The confusions and failures of the Militia Draft Act of 1862 had left northern governors with little appetite for attempting to enforce a militia draft. This latter act did contain provisions allowing for the emancipation of slaves for military service and opened the door for the employment of blacks in military occupations including armed service. Several states in 1862, like NY, refused to accept black black recruits in 1862, whether as volunteers or draftees. The same restriction applied to the volunteer regiments.

Professor Oakes writes: "I have another suspicion that I can't document just now. I wonder if the original request for information about Fry's policy was driven by Congress's dissatisfaction with the fact that slaves were not being drafted in Kentucky. If so, Fry's response may have led Congress to be more explicit. "

Based on two letters found in OR ser 3, vol 3, I think Prof. Oakes is exactly right.

On 20 July 1863, Provost Marshal general Fry issued a circular clarifying procedures around the acceptance of substitutes. The circular reads: "Existing laws make a distinction in the matter of pay, bounty, and other allowances between soldiers of African descent and other soldiers in the service of the United States. Men of African descent can, therefore, only be accepted as substitutes for each other under the enrollment act." (p.548)

Six days later, Senator Charles Sumner wrote to Col. Fry from Boston: "DEAR SIR: It is reported that colored persons are not received as substitutes for white persons under the conscript act. If this be so I am at a loss to understand by what authority. It was a part of the glory of this act that it made no distinction of color. If any such distinction be made under it, I cannot consider it otherwise than an interpretation utterly without sanction. It would follow therefore, first, that a colored substitute can be taken as well as a white substitute. Indeed, a substitute is a substitute whether black or white. Second, that all persons drafted must have the same pay. Here again there can be no distinction of color. On ground of policy, it seems to be obvious that colored substitutes should be encouraged. Give me the slave as soldier rather than his master. If not too late, I hope this matter will be carefully examined; but it never can be too late to give a proper interpretation to a most important statute." (p.574-575)

This is pretty good evidence of legislative intent, not about substitutes but about the insistence that whites and Blacks had identical obligations to serve in the army. And at the next session of Congress, when refinements were being made to the March 1863 Enrollment Act, Congress made sure to stipulate, clearly and unambiguously, the Act's intention to make all men liable for the draft, be they white or Black, slave or free.

Peter Lysy
Archives of the University of Notre Dame

M. Stephen is entirely correct, in my initial query I mistakenly labeled the Enrollment Act as the Militia Act, and I appreciate the correction there and elsewhere in this engaging thread.  I have duly changed the subject header from "Militia Act" to "Enrollment Act."  Indeed, the entire conversation has revamped my understanding of the basic workings of the draft and the complicated nature of black citizenship.  Years ago I shifted the treatment of emancipation in my civil war course away from emancipation as an edict and onto a more proper understanding of it as a process.  I have asked students to imagine emancipation without a Lincoln, which gets them to peel away the layers and see very complicated and often contradictory forces in play.  I suspect the same holds true with citizenship and the draft.  In some corners, we see the Sumners and others pressing a color-blind agenda, and in others we see local commanders and civilians warping the concept out of shape under the influence of military necessity and longstanding customs and prejudices.

good wishes

Peter

To follow up on William Kurtz's reference to civil war data: I've found uadata.org to be a more reliable source than civilwardata.com. 16% of the black troops in the uadata "extended" sample are listed as drafted, whilst the majority (54%) in that sample are listed as substitutes. If we combine the "extended" and "original" samples then only 7% of all black troops were drafted and 24% were substitutes, the majority being volunteers.

The majority of the draftees came from Maryland, Delaware or Pennsylvania. It should be noted however that these samples are not truly random and appear to be somewhat biased towards northern recruits.

Along with colleagues at the Universities of Minnesota and Chicago I am about to launch a crowd-sourcing project to transcribe all the USCT's compiled military services records. We will certainly include any information on whether a soldier was drafted, so we will hopefully be able to produce a more reliable count.

Best,

John Clegg

jjclegg@nyu.edu

Great discussion. I think, too, that we need to make a distinction between drafted and pressed into service. My research on the Civil War on the lower Mississippi (Louisiana in particular) indicates a great deal of pushing liberated slaves into the ranks, willingly, unwillingly, or perhaps unwittingly. Research using original muster rolls and even the WPA slave narratives indicates the when officers had a need to fill the ranks (desertion rates were very high) they went shopping at local plantations. Need a farrier? There is one over on the Labadie place! Need some stout lads for infantry service, take those two working on the levee.

Pretty brutal stuff. My book, Blood on the Bayou: Vicksburg, Port Hudson, and the Trans-Mississippi, installment three in the five-book Louisiana Quadrille series with State House Press, lays out what I found.  With a huge "tip of the hat" to James Oakes.

I didn't respond to this string when it first appeared, but was really intrigued me because the entwined matter of slave impressment and black recruitment overlapped with a couple of books I had just published on the border states. I knew I had plenty of evidence that would help, but which wouldn't fully answer the questions being asked. The responses have been really helpful. Mike Crane is right, of course, and his excellent work on western Kentucky tells us a lot about the complexities and uncertainties of impressment and enlistment in both Kentucky and Missouri, and the many delays on the way to emancipation.

Impressment certainly was a springboard to emancipation and black enlistment, neither of which were authorized in border states like Kentucky or Missouri until late 1863 and 1864, respectively. But the path was not so direct.

Kentucky’s and Missouri's exemptions from the Emancipation Proclamation prevented the outright enlistment of black soldiers in these states, and military confiscation of slaves was fully contested among military personnel and civilians. Despite the military’s growing need of labor for defensive works and construction of railroads or repair of public works damaged or destroyed by Confederates, partisans, and guerrillas, and with contrabands flowing into Kentucky only to be held in Louisville’s crowded military prison and slave pens, lower grade antislavery officers began impressing slaves of local owners in counties surrounding Louisville and Lexington months before Jeremiah T. Boyle authorized it contingently in central and southern Kentucky. Boyle, a slaveowning emancipationist, attempted to walk a fine line, knowing that the preponderance of white Kentuckians extended the exemption from the Emancipation Proclamation to wartime confiscation of slave property. Boyle did assess (or levy) disloyal residents for damage to public property but not, as far as I can tell, by use of slave property. In August 1863, he reluctantly ordered impressments of slaves of disloyal owners as laborers on railroads, bridges, and fortifications. He did not intend to free slaves—indeed most slaves returned to their owners after their terms of service—and set up Camp Nelson, south of Lexington, for what would become fourteen thousand slaves, to house them while they served the army. Many Kentucky fugitives often crossed the rivers to recruiting camps in neighboring free states.

In Kentucky, wartime emancipation found systemic opposition. The state’s elected leaders refused to consider it, and a state legislative committee issued a report vilifying congressional Republicans for being “bent on the destruction of the Constitution and the Union” and intending to “elevate [blacks] to an equality with the white man.” Following the instructions of the governor, James F. Robinson, the legislature resolved that the proclamation was “unwise, unconstitutional, and void.” Kentucky’s States’ Rights Party saw a rapid infusion of unionist slaveholders, and in a state election that Lincoln followed closely Conservatives won outright. Former federal colonel Thomas E. Bramlette, an anti-emancipation Union Democrat, garnered nearly 80 percent of the vote, then warned against any “uncalled for and needless experiment” of black enlistment.

Enlistment brokers offered bounties for slaves to serve as substitutes for white soldiers from other states to fill local quotas. Recruiting stations operating just outside Kentucky’s borders offered ample opportunity for escaping slaves, estimated at hundreds per day in two southern Kentucky counties, to cross the border and enlist. By one officer’s estimate, by January 1864 seven thousand slaves had fled Kentucky to recruiting camps and other military installations in neighboring states. Four hundred black recruits at Cairo in early 1864, according to one report, were “escaped negroes from this State. . . . Governor Yates would have no objections to their being enlisted.” Recruiters for what would be known as U.S. Colored Troops (USCT) regiments from outside the state were enlisting freedmen in Louisville and Lexington, and began to enlist impressed and escaped slaves ostensibly from Tennessee and Arkansas.

As these political conflicts raged, seeking to solve his border state problem Lincoln more overtly facilitated the Radicals’ advocacy of black enlistment to accomplish universal emancipation as military necessity. Suspending the recruitment of slaves of disloyal masters in Missouri and Maryland, he quietly ordered the army to conduct a census of free black male Kentuckians between the ages of eighteen and forty-five—precisely the age of military enrollment. In November 1863, after he quietly ordered black enlistment commenced in Maryland and Tennessee, “whether [recruits] be free or not,” with additional stipulation that loyal owners be compensated $300 for each male slave enlisted in the army, he briefly upheld the ban on recruiting in Missouri and Kentucky. In November he authorized Schofield to issue General Orders No. 135 authorizing the recruitment of black volunteers—slaves, contrabands, and free blacks—in Missouri for federal military service. Compensation was available, provided loyal owners file deeds of manumission. Most refused to apply.

With Missouri enlisting black men and Kentucky’s enlistment quotas unmet, in February 1864 Lincoln signed a bill to amend the Second Confiscation Act by authorizing black enrollment in all states, despite opposition from five of Kentucky’s eight congressmen. With a provision for compensation to loyal owners of slave recruits, enlistment in Kentucky was slated to begin on March 7. Confusion reigned about whether owners’ permission was required, as per Kentucky’s state laws against enticing slaves to escape. Provost marshals, often assigned squads of black soldiers to enroll slaves, resigned in protest or claimed they could find no officers in their districts willing to carry it out. Stephen G. Burbridge, the new department commander in the central counties, devised a nightmarish system of paperwork requiring prospective slave recruits to fill out and sign witnessed declarations that included their owners’ names and county of origin in order to get a pass to travel to the nearest provost marshal’s office. The stalemate paralyzed enrollment for several months. In May 1864, the War Department removed all restrictions on slave enlistments. More than 24,000 of Kentucky’s African Americans, overwhelmingly slaves and constituting 57 percent of the state’s black men of military age, enlisted in the federal armies, exceeding all other states save Louisiana.

A few documents I found helps to provide evidence of the process by which impressment led to enlistment, the latter being the linchpin to emancipation in the border states. Prof. Oakes's argument about emancipationism - whether Lincoln's, the Republicans', or the federal military's - providing the causative thread from one to the other is definitely complicated, and no one has fully told the story of impressment.

[Printed Letterhead]

Office Post Commandant.
Lexington, Ky. May 27th, 1863.

Sir:

You will furnish Two (2) hands to the Military Authorities of the City, for public work, or in lieu thereof will pay at the rate of Thirty (30) dollars a month for each hand.
You will furnish them on or before the 1st day of June next, or report at this Office by that time your acceptance of the Alternative.

By order of
Col. J. K. Sigfried, Comdg Post
D. D. McGinnis, Post Adg’t.

Mr. D. Runyon

[Handwritten Receipt attached]

Rec’d Lexington May 29, 1863

Of D. Runyon Thirty dollars bring the amt. in lieu of 1 servant required by an order for government use for one month.

J. K. Sigfried Col, Comdg Post

Runyon Family Papers, Mss. A R943, folder 3, Filson Historical Society, Louisville

General Orders No. 37, Dist of KY
July 25, 63, LV
p. 190

I. It is ordered that no forage or other property belonging to loyal citizens in the State of Kentucky be seized or impressed except in cases of absolute necessity, and then only on the written authority from the Headquarters of the Twenty-Third Army Corps, or from these Headquarters.

II. Whenever it becomes necessary to seize or impress private property for military purposes, the property of sympathizers with the rebellion and of those opposed to furnishing any more men or any more money to maintain the Federal Government and suppress the rebellion, will be first seized and impressed.

III. The negroes of loyal citizens will not be impressed on the public works and military roads unless absolutely necessary. The negroes of citizens who are for no more men and no more money such, will be first impressed, and officers detailed for the purpose are required strictly to observe this order in the execution of their duties
IV. All horses of the enemy captured or subject to capture will be taken possession of by Quartermasters and reported to Capt Jenkins, Chief Quartermaster, Louisville, who is ordered to allow loyal citizens to retain horses to supply the place of those taken by the enemy; but disloyal persons mentioned in paragraph 2 and 3, who encourage raids by the enemy, will not in any case be allowed to retain captured horses or horses justly subject to capture.

V. For all property seized or impressed proper and regular vouchers will be given, with endorsement as to the loyalty or disloyalty of the owners of the property.

By command of BG Boyle

General Orders No. 41, Dist of KY
August 10, 1863, Louisville

The construction of military roads in the State being a necessity, by the order of the Major General commanding the Department six thousand laborers from the negro population of the county through which the road pass will be impressed.
The negro laborers will be impressed first from the following counties: Harrison, Scott, Clarke, Fayette, Woodford, Jessamine, Mercer, Boyle, Garrard, Lincoln, Marion, Washington, and Nelson.
Male negroes from the ages of sixteen to forty-five both inclusive, are subject to this impressment.
In order that the impressment may not hinder and materially injure the cultivation of and the harvesting and gathering the crops for the subsistence of the country, it is ordered that when a citizen has but one male negro laborer he will not be impressed under this order. In case a person has more than one and less than four, one is to be impressed. In case a person has four male laborers and over one-third of them are impressed by this order.
Brig. Gen. S. S. Fry is charged with the execution of this order, and is directed to appoint officers from the 1st Division of the 23d Army Corps to assist him, and to employ citizens to take charge of said negro laborers.
The negroes hereby impressed are required to be delivered by the owners at the points to be designated by the 20th August inst., or at such time thereafter as Brig. Gen. S. S. Fry shall appoint officers of persons to take charge of them. Persons failing to comply with this order will have taken all their negroes of the ages designated.
We will concentrate the negroes impressed by this order at Camp Nelson, or such other place as may be directed, and have them subsisted as laborers in the Quartermaster=s Department; requiring complete rolls to be kept, with the names of the negroes, their owners, and place of residence.
All owners will be paid for the services of the laborers, and at the expiration of each month proper vouchers will be furnished to the persons entitled thereto. The negroes taken under this order will be delivered to their owners after the expiration of the time for which they are impressed.
Brig. Gen. Fry is ordered to take immediate action for the execution of this order, and report to these Head Quarters the number of laborers collected, for information, that further orders may be issued to secure the quota of laborer required, and to distribute the impressment as equitably as practicable over the country to be mainly benefitted by the proposed improvement.

By order of Brig. Gen. Boyle

Records of the U.S. Army Continental Commands 1821-1920, Record Group 393, Part I, Ser. 2177: General Orders Issued, Dept of Kentucky, 1862-64, 1866, vol. 1 of 3, pp. 206-207, National Archives and Records Administration, Washington, D.C.

[Printed form]
Head Quarters District of Kentucky,
Louisville, Nov. 13 1863.

It is hereby ordered that two negroes, belonging to Isaac Clark of Jefferson County, and subject to work on military roads, under General Order No. 210, from these Head Quarters, issued Sept. 2, 1863, shall work for Jeff. Williams of the County of Jefferson in getting out firewood for the Louisville and Nashville Railroad Co. Said Williams shall fully compensate the owner of the negroes for the services thus rendered, and the negroes thus employed shall be considered as impressed under Order 210, above named, and therefore exempted from work on military roads while thus employed.
But should it appear to the authorities of the Railroad Company, or to the military authorities, that said Jeff. Williams does not furnish the quantity of wood in the time specified as per contract with the Railroad Company, this Order shall be revoked, and the negroes will be ordered for duty on other roads.
Officers charged with the drafting of negroes under Order No 210 will respect this order when presented to them by the owner of negroes.

By Command of Brig. Gen. Boyle.
A. C. Semple, Asst Adj Gen

You are hereby directed to report three (3) able bodied male negroes between the ages of Sixteen and Forty Five years at the Office of Albert Fink, Supt. L and W R. R. in the City of Louisville on Monday the 19th inst. at 10 o’clock A. M.

This impressment is made in conformity with Special order No 210, and General Order No. 41, Head Quarters, Dist. of Ky. and a failure to comply with this notice will Subject you to the penalties imposed by said order

Recd two Negroes, Jeff. Williams

J. N. Stiles to Isaac Clark, October 14, 1863, Isaac Clark Letters, Mss. A/C593a 4, Filson Historical Society, Louisville.