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The Contraband Question

By Marc G. DeSantis
3/8/2016 • MHQ Departments, MHQ Laws of War

IN THE FIRST WEEKS of the American Civil War, a lawyer turned general waged a bloodless legal battle for the North that altered the nature of the war. Major General Benjamin F. Butler was a Massachusetts lawyer, abolitionist, former state senator, and Democrat. In the spring of 1861 Lincoln had put Butler in charge of Fort Monroe, at the tip of the Virginia Peninsula, even though Butler was no fan of the president.

Soon after he took command, three fugitive slaves made their way to the fort and were taken in. Their owner, a Confederate colonel, came after them under a flag of truce, demanding that his “property” be given back to him, citing the Fugitive Slave Act of 1850. Butler refused, saying that since Virginia claimed to have seceded from the Union, the law was no longer applicable. Butler also discovered that the three men had been laboring for the Confederate army, thereby aiding the Rebel war effort. “I am credibly informed,” he reported to Winfield Scott, commanding general of the Union army, “that the negroes of this neighborhood are employed in the erection of batteries and other works by the Rebels, which it would be nearly or quite impossible to construct without their labor.”

Butler declared the slaves “contraband of war”—enemy property that was liable to seizure in wartime, just as weapons, ammunition, and food were. He wrote General Scott a few days later that the “question in regard to Slave property is becoming of very serious magnitude” and that “as a military question, it would seem to be a measure of necessity to deprive their masters of their services.”

In Butler’s estimation, the slaves were seized property, not to be returned, and he set them to work building a bakery for his troops. When other slaves learned of Butler’s stance on escaped slaves, they too made their way to his lines at Fort Monroe. Soon some 900 former slaves had fled their masters to shelter under Butler’s protection. Butler turned no one away, including women and children. He sent word of his action to the War Department in Washington and asked for approval.

The permanent legal status of the contraband was not defined. Were these men, women, and children now permanently free or would they be returned to their masters when the war ended?

The Northern public was captivated by press reports of Butler’s stance and his use of the term “contraband.” Lincoln’s cabinet endorsed the contraband policy as well but left open important questions, knowing that the answers to those questions could well hamper the war effort. Most critically, the permanent legal status of the contraband was not defined. Were these men, women, and children now permanently free or would they be returned to their masters when the war ended? Also not answered was the question of what the contraband policy meant for slaves in states that had not seceded, such as Maryland. If these slaves were “seized”—allowed to escape from their masters and sheltered by Union forces—then the slaveholding states still loyal to the Union might switch their allegiance, as might pro-Union Southerners in the Rebel states.

In private, Lincoln said that, “the government neither should nor would” return the escaped slaves to bondage. But in public, he had to walk a careful line. He had maintained from the first that no state had the legal right to secede from the Union. So if the rebellious states had not in fact seceded, then as their president, he was still bound under the Constitution to uphold the legal rights of citizens who remained loyal to the Union in those states. And one of those rights was the right to own slaves.

 

AFTER THE FEDERAL DISASTER at First Bull Run in July 1861, reports emerged of Confederate soldiers using their slaves to do menial chores, which allowed the soldiers to devote themselves to combat. Illinois senator Lyman Trumbull, an eyewitness to the battle, proclaimed that the slaves were indeed helping the Rebel war effort. Prior to Bull Run, he had introduced a bill to allow for the seizure of enemy property, but after the battle he introduced an amendment that stated if a slave owner used his slaves to aid the Confederacy, those slaves would be forfeit. The Senate voted 24 to 11 in favor of the bill, the House approved it by a vote of 60 to 46, and Lincoln signed the Confiscation Act into law on August 6, 1861. What had been a military measure taken by a general during wartime had become law.

 

OTHER UNION OFFICERS would move even more decisively in favor of emancipation. Major General John C. Frémont, the famed western explorer, imposed martial law in Missouri in August 1861. His order instituted the death penalty for Confederate guerrillas and confiscated the property and slaves of Confederate sympathizers. Lincoln, however, made Frémont refrain from any executions without his presidential consent. But the section of Frémont’s order on confiscating slaves worried the president even more: While Republicans might favor abolition, there were many Democrats in the North and Unionists in the Border States who did not. The slave states of Missouri and Kentucky had not seceded, and the president could not afford for them to do so. Frémont’s order, Lincoln wrote, “will alarm our Southern Union friends and turn them against us.” He ordered Frémont to amend his order and bring it back within the limits of the Confiscation Act.

Another Union officer who took matters into his own hands was the fiercely abolitionist Major General David Hunter. On May 9, 1862, as head of the Union’s Department of the South—Georgia, South Carolina, and Florida—he issued General Order No. 11, which proclaimed all slaves in the department to be “forever free,” including those whose owners were loyal to the Union. Once again Lincoln, still wary of pressing ahead too rapidly on emancipation, intervened, revoking Hunter’s order.

In July 1862 Congress passed the Second Confiscation Act, which went much further than the original act. The first section declared that “every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free.” That was effectively everyone fighting against the Union on behalf of the Confederacy. The new law also cleared up confusion about what exactly Union officers were required to do with contraband fugitive slaves. Section 9 set forth that they “shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.”

That September Lincoln at last issued the Emancipation Proclamation, declaring that “on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” In his memoir Butler wrote that his 1861 contraband interpretation had “paved the way for the Emancipation Proclamation”—and that, in turn, led in 1865 to the 13th Amendment, which put an end to slavery in all the United States. But over the four years in between, thousands of humans found their way to a kind of freedom as “contraband” of war.

 

Attorney Marc G. DeSantis is a frequent contributor to MHQ. His book, Rome Seizes the Trident, will be published by Pen & Sword in December 2015.

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