Gen. Benjamin Franklin Butler

I had never heard of Gen. Benjamin Franlin Butler till reading “How Slavery Really Ended in America”. I’m inspired by the ingenuity and courage he exhibited just weeks into his military career (he had previously been a successful lawyer), after three slaves turned up at his fort seeking asylum:

[T]he laws of the United States were clear: all fugitive [slaves] must be returned to their masters. The founding fathers enshrined this in the Constitution; Congress reinforced it in 1850 with the Fugitive Slave Act; and it was still the law of the land — including, as far as the federal government was concerned, within the so-called Confederate states. The war had done nothing to change it. Most important, noninterference with slavery was the very cornerstone of the Union’s war policy. President Abraham Lincoln had begun his inaugural address by making this clear, pointedly and repeatedly. “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” the president said. “I believe I have no lawful right to do so, and I have no inclination to do so.” …

“I am informed,” [Confederate Army Maj. John Baytop Cary] 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,” [Federal/Union General] 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.

[Two days later], eight more fugitives turned up at Union lines outside the fort. On Monday, there were 47 — and not just young men now, but women, old people, entire families. There was a mother with a 3-month-old infant in her arms. There was an aged slave who had been born in the year of America’s independence.

[Another two days later], a Massachusetts soldier would write home: “Slaves are brought in here hourly.”

Posted by James on Sunday, April 03, 2011