by James Oakes
Lincoln can hardly have been surprised by this turn of events. In an 1859 speech in Cincinnati, he had looked across the Ohio River to the slave state of Kentucky and warned southerners that if they seceded from the Union the federal government would no longer capture escaping slaves. What will you do then? Lincoln had asked. Do you really believe you would be better off “by leaving us here under no obligation whatever to return those specimens of your moveable property that come hither?”37 In his inaugural address Lincoln had warned that if the slave states seceded from the Union, “fugitive slaves, now only partially surrendered, would not be surrendered at all.”38 A few months later, President Lincoln was passing along jokes about “Butler’s fugitive slave law” and scheduling cabinet meetings to discuss the matter. The cabinet met on May 30, less than a week after the first slaves had taken their boat from Sewall’s Point to Fortress Monroe. There are no transcripts or diary accounts of what went on at the meeting, but when it was over Simon Cameron, the secretary of war, telegraphed Butler to inform him that his contraband policy “is approved.”
The May 30 instructions were the first of two major statements guiding administration policy toward slavery in the seceded states for the next year.39 Union troops were not permitted to interfere with the ordinary operations of slavery in the rebellious states, Cameron wrote. But if a state declared itself in rebellion against the laws of the United States, and if any slaves in those states “come within your lines,” Butler was to “refrain from surrendering” such slaves to their “alleged masters.” In the meantime, Butler was to employ able-bodied slaves as he saw fit, keeping careful records and charging the expenses for the care of their families against the wages of the refugees. Postmaster General Blair had not succeeded in restricting the contraband policy only to able-bodied men. Instead, the cabinet endorsed Butler’s broader decision to allow “able-bodied” men and women to work for wages for the Union army and to remain, along with their children, at the fortress.40 It was a swift, unambiguous endorsement of Butler’s decision.
The War Department’s May 30 instructions introduced a distinction that would guide federal emancipation policy until Lincoln issued the Emancipation Proclamation sixteen months later. Slaves from the seceded states who entered Union lines voluntarily would not be returned to their owners, but Union soldiers were not to entice slaves away from peacefully functioning farms and plantations. This was understood almost immediately. “The slaves are running away from their masters in troops,” the New York Times reported on May 31. “The soldiers have orders not to interfere with the rights of persons or property, and when the negroes run away they do it without solicitation from any of our forces.”41 Within months Union authorities would decide that slaves who escaped “without solicitation” would be emancipated, and what counted as “voluntary” arrival would expand dramatically, but the formal ban on enticement remained in place until January 1, 1863.
The administration’s policy was soon expanded to the navy. In mid-July, Union naval squadrons on the Virginia coast picked up “six Negroes who had deserted from the shore during the night.” The runaways claimed that their masters onshore, secessionists all, were preparing to put their slaves “in the front of the Battle,” that is, to support the Confederate war. The slaves wanted no part of it and began scrambling to escape. They commandeered a small craft and rowed it out to a lighthouse, where they set the boat adrift and waited. Hearing their story, Commander O. S. Glisson decided not to return the runaways to their owners. Instead, like Butler, he wrote his superiors and asked for instructions. Flag Officer Silas Stringham endorsed Glisson’s decision to retain the fugitives. “If negroes are to be used in this contest,” he wrote, “I have no hesitation in saying, they should be used to preserve the Government not to destroy it.” Stringham forwarded his endorsement, along with Glisson’s note, to Lincoln’s secretary of the navy, Gideon Welles, who in turn gave both officers his own endorsement. Under the circumstances, Welles wrote in late July, “no other course than that pursued by Commander Glisson could be adopted without violating every principle of humanity.” To return the fugitives to their owners, Welles added, “would be impolitic as well as cruel.”42 Thus by mid-July of 1861 the administration’s position was clear. Army and navy officers were under no obligation to return slaves escaping from any state that had seceded from the Union.
The decision to retain runaways did not mean that the slaves had been emancipated. The Welles and Cameron endorsements were enthusiastic, but they were also limited. “The question of their final disposition,” Cameron wrote, “will be reserved for further determination.”43 Lincoln had already called a special session of Congress to convene on July 4, at which time the Republican majority would make that determination. For the next two months the final status of the fugitives would remain uncertain. Yet the direction of Union policy was already clear. Butler had justified his refusal to return escaping slaves as a matter of both policy and “humanity.” Welles said that to return escaping slaves to their owners would be both “impolitic” and “cruel.” This was the language Republicans would use throughout the war: emancipation, they said, was a matter of both justice and humanity. Butler’s own language also foreshadowed the distinction Republicans would maintain between the status of slaves as “persons” and the confiscation of rebel property. The general was nothing if not respectful of property rights. “The rights of private property and of peaceable citizens must be respected,” he wrote on May 26. Even when “the exigencies of service require that private property be taken for public use,” Butler explained, “it must be done by proper officers, giving suitable vouchers therefore.”44 But did these rules apply to slaves? To be a slave was to be “property” under the laws of the slave states, but opponents of slavery objected to the very idea of “property in man” and believed that the Constitution recognized slaves only as “persons.” The distinction put the opponents of slavery in something of a linguistic bind. Being property is what made slaves slaves. Even those who believed that “property in man” was both immoral and unconstitutional could not help speaking of slaves as “property” because, legally, that’s what slaves were under the laws of the southern states. But this hardly meant that slavery’s opponents thought of blacks as less than human. The dilemma was perfectly captured in the phrase contraband of war.
Butler did not refer to slaves as “contraband of war” in his earliest letters to Washington explaining his decision, but he probably used the phrase when he spoke to reporters on the scene because they began using it in their stories. It was instantly popular. Yet policymakers in Washington carefully avoided the term contraband. Over the entire course of the Civil War, none of the important laws, resolutions, or proclamations related to slavery used the term contrabands, possibly because the basic premise of antislavery politics was that slaves were not property, either morally or constitutionally. Yet contrabands quickly became the popular term of choice among civilians and within the military. This did not necessarily mean that those who referred to fugitive slaves as contraband thought of them as property. The first time Butler used the phrase contraband of war was in a July 30 letter to his superiors in Washington asking for clarification of the status of the runaways he had been authorized to hold. Yet in the very same paragraph in which he first used the phrase, Butler explicitly rejected the idea that they were property. No doubt the contrabands had previously been held as “property” under the laws of the slave states, Butler explained, but “we do not need and will not hold such property, and will assume no such ownership: has not, therefore, all proprietary relation ceased? Have they not become, thereupon, men, women, and children?” In Butler’s mind, the moment the slaves became “contrabands” was the moment they ceased to be “property.”45
OFFICIALS IN WASHINGTON WERE AWARE that the implications of the fugitive slave policy were broader than its immediate consequences, that there was more at stake than the fate of the runaways at Fortress Monroe. The same day that Secretary
of War Cameron sent word that the administration had endorsed Butler’s decision, he and Lincoln attended a military review at which Cameron gave a speech. “One remark made by Gen. Cameron had peculiar significance,” the New York Times reported. “He said that the war would not close until the causes which produced the contest had been entirely removed.”46 He was talking about slavery, and the contraband policy was the first step in its removal.
A tacit alliance between escaping slaves and the Union army was being created with the approval of officials in Washington. Butler clearly took some delight in the situation and was happy to rely on runaway slaves to drive the opening wedge into Union policy. A different Union general, one less willing to attack the social basis of the southern rebellion, would have returned Colonel Mallory’s slaves without hesitation. A different administration, one less hostile to slavery, might have overruled Butler and ordered him to return the runaways. In the states that seceded from the Union, slavery was already losing the protection it once had under the Constitution.
The policy did not necessarily apply to Delaware, Maryland, Kentucky, and Missouri—the four slave states that remained within the Union. There the federal government was still obliged by the Constitution to recognize slavery’s legality. As Butler himself pointed out, once Virginia had claimed to be “a foreign country,” it could no longer demand the return of fugitive slaves under the U.S. Constitution, whereas “in Maryland, a loyal state,” Butler explained, “fugitives from service had been returned.”47 At the same time, the union commander in the Department of the West, General William S. Harney, declared that the Union army would no more contemplate the overthrow of slavery in another loyal slave state, Missouri, than it would imagine “the overthrow of any other kind of property.”48 For the moment, slavery in the Border States was still being protected by the federal government, although this would soon change.
Nor did all the officers in the Union army follow Butler’s lead in the rebellious states. The administration had endorsed Butler’s decision, but not until Congress spoke up in August would Union officials begin instructing their officers in the seceded states to implement the same policy. As Butler and the Lincoln administration were formulating his fugitive slave policy in eastern Virginia, George McClellan was promising the residents of western Virginia that he would not interfere with the “property” of local citizens, including their slaves, and vowed as well to “crush any attempt at insurrection” among the slaves. Strictly speaking, Butler and McClellan were not taking different positions—everyone was still promising not to “interfere” with the peaceful operation of slavery even in the seceded states. Yet William Howard Russell detected a significant difference. “The first step taken by McClellan in western Virginia was atrocious—he talked of slaves in a public document as property. Butler, at Monroe, had dealt with them in a very different spirit and had used them for State purposes under the name of contraband.”49 Like Butler, Russell understood that treating fugitive slaves as “contraband” was very different from treating them as “property.”
Northerners had been watching to see what the slaves would do, and the slaves had been watching as well. A few days after the contraband policy was announced, a New Yorker visiting Fortress Monroe struck up a conversation with several of those who had recently escaped. The slaves had clearly been paying attention to national politics, at least since the elections of the previous November. One of them had heard that “the Northern gen’lmen were favorable to the colored population,” and so “I thought I’d come over here.” Another explained that his friends had “been expecting the Northern gentlemen down here ever since Massa Lincoln was elected.”50 When the “northern gentlemen” arrived, the slaves around Hampton Roads did exactly what antislavery northerners predicted they would do: they ran to Union lines to claim their freedom. As the New York Times declared, Butler’s decision “is but the fulfillment of the prophecies of loss which would be entailed upon the Southern states, and especially Virginia, if secession was carried to a bloody issue.”51
But prophecies are notoriously vague. Butler and Lincoln were not acting out their parts in a script that had already been written. The slaves of Hampton village guessed—hoped, really—that they would be protected if they ran to Union lines, and it was a reasonable hope. They were certainly not going to run to Confederate lines. And given their constitutional premises and their antislavery biases, it’s hardly surprising that the Union general and the Republican president made the decisions they made. They were making those decisions as they went along, however, as the arrival of the runaway slaves demanded, and none of them knew what would happen next.
4 AUGUST 8, 1861: EMANCIPATION BEGINS
THE “THREE PIONEER NEGROES” who had run to Fortress Monroe in search of freedom left behind an African American community anxious to learn of how they had been received by the Union army. “[I]f they were not sent back,” those at home “would understand that they were among friends, and more would come the next day.” Two days after the first contrabands had been welcomed, eight more slaves showed up at the fortress asking to speak to General Butler. The next day forty-seven more “came in one squad,” including half a dozen families, followed later on by “a dozen good field hands.” They kept coming, now in groups of twenty, thirty, or more. Word was spreading so rapidly among the slaves of Hampton that Union soldiers could only marvel at “the mysterious spiritual telegraph which runs through the slave population.”1
By the end of July in 1861, some nine hundred slaves had come within Benjamin Butler’s lines in and around Fortress Monroe. One-third of them were adult men. There were 175 women and thirty seniors. The rest were children and teenagers. Most of them lived across the harbor in the village of Hampton. They had escaped, according to Butler, “from marauding parties of rebels, who had been gathering up able-bodied blacks to aid them in constructing their batteries.” Butler in turn put the men to work “throwing up intrenchments,” working “zealously . . . under the gleam of the mid-day sun.” The women also worked, “earning substantially their own subsistence,” by taking in washing, marketing, and mending the clothing for Butler’s own soldiers. The refugees made their homes in Hampton, and all seemed to be going well until late July, when most of Butler’s troops were called away to defend Washington after the Union defeat at Bull Run. Without those troops Butler could no longer guarantee the safety of the blacks in Hampton. Confederate soldiers made it clear that they would shoot to kill any of the men who had given their services to the Union army; recaptured women would be sent back into a form of slavery “worse than Egyptian bondage.”2
Butler explained all of this on July 30 in another one of his remarkable and, one suspects, faux naive letters to Secretary of War Simon Cameron. What, Butler asked, should he do with these people? More to the point, what was their “state and condition”? He was not a man to mince words. “Are these men, women, and children slaves?” Butler asked pointedly. “Are they free?” Are they persons, he wondered, “or are they property?” If they were property, they were abandoned property and he had, in effect, salvaged them. “But we, their salvors, do not need and will not hold such property.” And if they are no longer property, have they not become “free, manumitted, sent forth from the hand that held them?” What difference does it make, Butler wondered, if these people fled from or were abandoned by their owners? More to the point, what difference did it make whether or not an escaped slave “had labored upon the rebel intrenchments?” A fugitive slave was still a fugitive slave. If they come into Union lines, no matter how and no matter what they had been doing, shouldn’t they be emancipated?3
This wasn’t a letter; it was a pamphlet. In the guise of a request to his superiors for instructions, Butler had written a defense of emancipation on the ground that the Union did not recognize slaves as “property” under the Constitution. Butler had to know that at the moment he wrote his request for instructions Congress was embroiled in a debate over a proposed confiscation bill
that might, if passed, endorse the emancipation of slaves who had been used by their owners to support the rebellion. Butler was raising the same fundamental questions that Republicans in Congress were grappling with. Were fugitives to be recognized as persons, as the Constitution did and as all those opposed to slavery believed they should be, or as property, the way the laws of the slave states defined them? And if they were persons, could anyone in good conscience send them back into slavery? Before anyone in Washington could answer Butler’s questions, Congress would have to clarify its policy.
That clarification would come after a protracted debate in the Senate and the House of Representatives recapitulating many of the themes of the secession-winter dispute over the fate of slavery and the purpose of the war. The divisions among the lawmakers were sharp and clear. There were radical and moderate factions within the Republican Party, but they were nearly uniform in their hatred of secession, their unshakable conviction that slavery was the cause of the war, and their willingness to undermine slavery to save the Union. Conservatives fell into two distinct groups—proslavery representatives mostly from the Border States, and northern Democrats—but they, too, shared certain premises. They were repelled by the war, but not because they were the party of peace. Rather, conservatives were held together by the conviction that the war had been caused by antislavery fanaticism rather than slavery itself. They were determined to leave slavery alone. Conservative opposition intensified as Republicans edged closer to “interfering” with slavery within the Confederacy. In the first congressional debates over confiscation, the sharpest lines were drawn between the antislavery Republicans and the proslavery conservatives.
