If anyone was at the epicenter of emancipation in the late spring and summer of 1861, it was Gen. Benjamin Butler, commanding federal forces in and around Fortress Monroe, Virginia. It was he who made the fateful decision in late May not to return three fugitives to their rebel owners. It was he who dealt with the hundreds of other escaped slaves that subsequently sought sanctuary at Fortress Monroe and devised a crafty justification for keeping them without challenging slavery’s legality. By the end of July though his situation had reached a crisis point. In the wake of the Union defeat at Bull Run/Manassas part of his command was withdrawn to bolster the defenses of Washington, D.C. against a possible Confederate attack. The general was obliged to consolidate his own lines to maintain a defensible position, requiring Butler to abandon the nearby town of Hampton, which he had been fortifying as a refuge for the slaves. The predicament forced Butler to confront the future and to ask his superiors in the federal capital what would become of the “contraband of war.”
Ben Butler’s thoughts on this subject appear in a letter to Simon Cameron, Secretary of War, dated July 30, 1861. He wrote:
This ordering away the troops from this department, while it weakened the posts at Newport’s News, necessitated the withdrawal of the troops from Hampton, where I was then throwing up intrenched works, to enable me to hold the town with a small force, while I advanced up the York or James River. In the village of Hampton there were a large number of negroes, composed, in a great measure, of women and children of the men who had fled thither within my lines for protection, who had escaped from maurauding parties of rebels who had been gathering up able-bodied blacks to aid them in constructing their batteries on the James and York Rivers. I had employed the men in Hampton in throwing up intrenchments, and they were working zealously and efficiently at that duty, saving our soldiers from that labor, under the gleam of the mid-day sun. The women were earning substantially their own subsistance in washing, marketing, and taking care of the clothes of the soldiers, and rations were being served out to the men who worked for the support of the children. But by the evacuation of Hampton, rendered necessary by the withdrawal of troops, leaving me scarcely 5,000 men outside the Fort, including the force at Newport’s News, all these black people were obliged to break up their homes at Hampton, fleeing across the creek within my lines for protection and support. Indeed it was a most distressing sight to see these poor creatures, who had trusted to the protection of the arms of the United States, and who aided the troops of the United States in their enterprise, to be thus obliged to flee from their homes, and the homes of their masters, who had deserted them, and become not fugitives from fear of the return of the rebel soldiery, who had threatened to shoot the men who had wrought for us, and to carry off the women who had served us to a worse than Egyptian bondage. I have therefore now within the Peninsula, this side of Hampton Creek, 900 negroes, 300 of whom are able-bodied men, 30 of whom are men substantially past hard labor, 175 women, 225 children under the age of 10 years, and 170 between 10 and 18 years, and many more coming in. The questions which this state of facts present are very embarrassing.
An interesting aspect of the letter is the genuine concern Butler displays for the escaped slaves within his lines. While he might have given them sanctuary initially in a calculated act of self-interest to deny their labor to his enemies, the July 30 letter demonstrates that he had grown to care for them as people and was loath to have them fall back into Confederate hands “to a worse than Egyptian bondage.”
In that context, the question Benjamin Butler asked Cameron next makes not only military sense, but also further shows his humanitarian feelings. Butler wrote:
The first question, however, may perhaps be answered by considering the last. Are these men, women, and children, slaves? Are they free? Is their condition that of men, women, and children, or that of property, or is it a mixed relation? What their status was under the Constitution and laws, we all know. What has been the effect of rebellion and a state of war upon that status? When I adopted the theory of treating the able-bodied negro fit to work in the trenches, as property liable to be used in aid of rebellion, and so contraband of war, that condition of things was in so far met as I then and still believe, on a legal and constitutional basis. But now a new series of questions arise. Passing by women, the children certainly cannot be treated on that basis; if property, they must be considered the incumbrance, rather than the auxiliary of an army, and of course, in no possible legal relation, could be treated as contraband. Are they property? If they were so they have been left by their masters and owners, deserted, thrown away, abandoned, like the wrecked vessel upon the ocean. Their former possessors and owners have causelessly, traitorously, rebelliously, and, to carry out the figure practically abandoned them to be swallowed up by the Winter storm of starvation. If property, do they not become the property of the salvors? But we, their salvors, 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? No longer under ownership of any kind, the fearful relicts of fugitive masters, have they not by their masters’ acts and the state of war assumed the condition, which we hold to be the normal one, of those made in God’s image? Is not every constitutional, legal and moral requirement, as well to the runaway master as their relinquished slaves, thus answered? I confess that my own mind is compelled by this reasoning to look upon them as men and women. If not free born, yet free, manumitted, sent forth from the hand that held them never to be reclaimed.
Of course, if this reasoning thus imperfectly set forth is correct, my duty as a humane man is very plain. I should take the same care of these men, women and children, houseless, homeless and unprovided for, as I would of the same number of men, women and children who, for their attachment to the Union, had been driven or allowed to flee from the Confederate States. I should have no doubt on this question, had I not seen it stated that an order had been issued by Gen. MCDOWELL, in his department, substantially forbidding all fugitive slaves from coming within his lines or being harbored there. Is that order to be enforced in all Military Departments? If so, who are to be considered fugitive slaves? Is a slave to be considered fugitive whose master runs away and leaves him? Is it forbidden to the troops to aid or harbor within their lines the negro children who are found therein, or is the soldier, when his march has destroyed their means of subsistence, to allow them to starve because he has driven off the rebel master? Now, shall the commander of regiment or battalion sit in judgment upon the question, whether any given black man has fled from his master, or his master fled from him? Indeed, how are the free born to be distinguished? Is one any more or less a fugitive slave because he has labored on the rebel intrenchments? If he has so labored, if I understand it, he is to be harbored. By the reception of which are the rebels most to be distressed, by taking those who have wrought all their rebel masters desired, masked their battery, or those who have refused to labor, and left the battery unmasked?
I have very decided opinions upon the subject of this order. It does not become me to criticise it, and I write in no spirit of criticism, but simply to explain the full difficulties that surround the enforcing it. If the enforcement of that order becomes the policy of the Government, I, as a soldier, shall be bound to enforce it steadfastly, if not cheerfully. But if left to my own discretion, as you may have gathered from my reasoning, I should take a widely different course from that which it indicates.
In a loyal State I would put down a servile insurrection. In a state of rebellion I would confiscate that which was used to oppose my arms, and take all that property, which constituted the wealth of that State, and furnished the means by which the war is prosecuted, beside being the cause of the war; and if, in so doing, it should be objected that human beings were brought to the free enjoyment of life, liberty and the pursuit of happiness, such objections might not require much consideration.
In essence, Ben Butler asked what was to become of the contraband slaves. Ultimately, would they be freed or in some fashion be returned to bondage? Butler clearly alluded to his preference (freedom) but also made clear he was ready to return the slaves to slavery if this became the policy enacted by government leaders. But the crisis prompted by the withdrawal of part of his army forced him to face the future of slavery. In the coming year, like Gen. Benjamin Butler, other Union leaders would be forced to confront the same question, in the end leading to the Confiscation Acts, the Emancipation Proclamation, and ultimately the 13th Amendment.
Source: Private and Official Correspondence of Gen. Benjamin F. Butler During the Period of the Civil War, Vol 1. (Norwood, Mass.: The Plimpton Press, 1917), 185-88 and http://www.nytimes.com/1861/08/06/news/slave-question-letter-major-gen-butler-treatment-fugitive-slaves.html.