4/15/11 - the slaves are freed

In today's excerpt - in the earliest days of the Civil War, well over a year before the Emancipation Proclamation, lawyer-turned-general Benjamin Franklin Butler used a brilliant bit of legal improvisation to begin the end of slavery in America. The artifice he crafted -- to consider the slaves contraband of war -- was troubling in its ultimate implications, but at a time when most in the North were still not prepared to view the conflict as a war against slavery, it served as a unexpectedly powerful first step towards emancipation:

"On May 23,1861, little more than a month into the Civil War, three young black men rowed across the James River in Virginia and claimed asylum in a Union-held citadel. Fort Monroe, Va., a fishhook-shaped spit of land near the mouth of the Chesapeake Bay, had been a military post since the time of the first Jamestown settlers. This spot where the slaves took refuge was also, by remarkable coincidence, the spot where slavery first took root, one summer day in 1619, when a Dutch ship landed with some 20 African captives for the fledgling Virginia Colony. ...

"Frank Baker, Shepard Mallory and James Townsend were field hands who -- like hundreds of other local slaves -- had been pressed into service by the Confederates, compelled to build an artillery emplacement amid the dunes across the harbor. ... After a week or so of this, they learned some deeply unsettling news. Their master, a rebel colonel named Charles Mallory, was planning to send them even farther from home, to help build fortifications in North Carolina. That was when the three slaves decided to leave the Confederacy and try their luck, just across the water, with the Union. ...

"[To] Fort Monroe's new Union commander, [Major General Benjamin Franklin Butler], the fugitives who turned up at his own front gate seemed like a novel case. The enemy had been deploying them to construct a battery aimed directly at his fort -- and no doubt would put them straight back to work if recaptured, with time off only for a sound beating. They had just offered him some highly useful military intelligence. And Virginia, as of 12 or so hours ago, was officially in rebellion against the federal government, having just ratified the secession ordinance passed a month before.

"Butler had not invited the fugitives in or engineered their escape, but here they were, literally at his doorstep: a conundrum with political and military implications, at the very least. He could not have known -- not yet -- that his response that day might change the course of the national drama that was then just beginning. Yet it was not the first time, nor would it be the last, that an unanticipated bureaucratic dilemma would force the hand of history. ...

"Whatever Butler's decision on the three fugitives fate, he would have to reach it quickly. ... Waiting before the front gate was a man on horseback: Maj. John Baytop Cary of the 115th. With his silver gray whiskers and haughtily tilted chin, he appeared every inch the Southern cavalier.

"Butler, also on horseback, went out to meet him. The men rode, side by side, off federal property and into rebel Virginia. They must have seemed an odd pair: the dumpy Yankee, unaccustomed to the saddle, slouching along like a sack of potatoes; the trim, upright Virginian, in perfect control of himself and his mount.

"Cary got down to business. 'I am informed,' he said, 'that three Negroes belonging to Colonel Mallory have escaped within your lines. I am Colonel Mallory's agent and have charge of his property. What do you mean to do with those Negroes?"

" 'I intend to hold them,' Butler said.

" 'Do you mean, then, to set aside your constitutional obligation to return them?'

"Even the dour Butler must have found it hard to suppress a smile. This was, of course, a question he had expected. And he had prepared what he thought was a fairly clever answer.

" 'I mean to take Virginia at her word,' he said. 'I am under no constitutional obligations to a foreign country, which Virginia now claims to be.'

" 'But you say we cannot secede,' Cary retorted, 'and so you cannot consistently detain the Negroes.'

" 'But you say you have seceded,' Butler said, 'so you cannot consistently claim them. I shall hold these Negroes as contraband of war, since they are engaged in the construction of your battery and are claimed as your property.'

"Ever the diligent litigator, Butler had been reading up on his military law. In time of war, he knew, a commander had a right to seize any enemy property that was being used for hostile purposes. The three fugitive slaves, before their escape, were helping build a Confederate gun emplacement. Very well, then -- if the Southerners insisted on treating blacks as property, this Yankee lawyer would treat them as property, too. Legally speaking, he had as much justification to confiscate Baker, Mallory, and Townsend as to intercept a shipment of muskets or swords. ...

"[As this practice rapidly caught on,] journalists throughout the Union quipped relentlessly about the 'shipments of contraband goods' or, in the words of The Times, 'contraband property having legs to run away with, and intelligence to guide flight' -- until, within a week or two after Butler's initial decision, the fugitives had a new name: contrabands. It was a perfectly composed bit slang, a minor triumph of Yankee ingenuity.

"Were these blacks people or property? Free or slave? Such questions were, as yet, unanswerable -- for answering them would have raised a host of other questions that few white Americans were ready to address. Contrabands let the speaker or writer off the hook by letting the escapees be all those things at once. 'Never was a word so speedily adopted by so many people in so short a time,' one Union officer wrote. Within a few weeks, the average Northern newspaper reader could scan, without blinking, a sentence like this one: 'Several contrabands came into the camp of the First Connecticut Regiment today.' "


Adam Goodheart


"The Shrug That Made History"


The New York Times Magazine


April 3, 2011


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