I'm not arguing, Combat Vet, just think if she were considered contraband, someone would have taken note of this?
I agree. This was big legal news right then, if attempted as a precedent in the open.
My guess is he means they just kept her (him) without pay, unofficially, illegally. Even if she were hired, she may not have gotten any pay other than rations in the maximum of a couple weeks that she was there--the time between the Ohio troops arriving and her owner putting her in jail.
But the question is, did the soldier(s) she was working for consider her an escaped slave they had confiscated from the enemy (contraband of war), or a free black laborer?
The problem with the contraband idea is 1) she was the slave of a man in a Union area and 2) the idea was brand new. May 23-26 was when all that started going down, and it was happening with Virginia slaves at Fortress Monroe under Butler and was based legally on the fact they were escaping from a seceded state, which wouldn't apply to Washington DC slaves.
So there would be no legal or practical basis to confiscate Union men's slaves found in Union territory, meaning it would be outright slave stealing--which of course is why the colonel returned her as soon as her owner identified her.
So then the question comes, would these Ohio soldiers have been the type to try to steal a slave, either because they were underground railroad advocates who took pity or because they thought they could get away with stealing free help? It's hard to say. Ohioans had staged some famous slave rescues but the majority of course weren't taking risks to help slaves, whatever their personal feelings. These men were mostly new recruits, so they may have been trying to do things by the book, but on the other hand, they may have been testing the limits of what they could get away with.
Here's a brief summary of the Ohio soldiers' arrival in Washington under McCook in May, a few days or a week or so at most before Hortense escaped:
http://books.google.com/books?id=iVVyFgyw9uYC&pg=PA31 Emotionally speaking, it looks like they might have had a quarrel with Maryland slaveowners and be glad to get revenge on one of them, but not so much with Washington ones.
The other question is, did they even know she was a slave or did she present herself as a free black? I'd think it would be more logical for her to present herself as a free black, because then there would be no possibility of looking for her master and returning her, and no one would need to fear charges of theft for keeping her with the regiment. In other words, as a runaway slave, she'd need to find someone willing to break the law for her, but as a free black, she'd just need to find someone willing to pay what she asked, which might have been no more than rations and shelter.
The fact that she disguised herself as a man shows she probably wasn't trying to openly ask for asylum, as the first true contrabands did at Fortress Monroe, because if she believed she would be openly and legally kept from her master, there would be no need for disguise. She certainly may have heard what was going on down at Fortress Monroe and used it for inspiration, though.
So that's my take on the "contraband" issue, but I'd be curious to read 101combatvet's theory about it.