Freedom National: The Destruction of Slavery in the United States, 1861-1865

by James Oakes

  Aware of the significance of Lincoln’s election, it did not take long before slaves realized that Union military installations in the Confederate states represented a kind of counter-state within the southern states, an alternative government inside the South but beyond the reach of the police powers of southern slave society. When the war began, Minerva Boyd recalled, “I thought & said the Union Armies would make us free.”20 Barely a week after Lincoln’s inauguration, four runaway slaves, “entertaining the idea” that U.S. troops “were placed here to protect them and grant them their freedom,” showed up at Fort Pickens in Florida, which was still under Union control. The war had not yet started, though, and there could be no “military emancipation” until there was a military conflict, so the officer in charge quickly returned the fugitives to the Pensacola city marshal to be sent back to their owners. “That same night four more made their appearance,” but these runaways “were also turned over to the authority the next morning.”21 Union soldiers had long assumed that as agents of the federal government they were obliged to return runaway slaves to their owners. That policy was still in effect in the loyal Border States when the war began.

  During the earliest months of fighting, many Union generals in the four slave states that remained loyal to the Union—Delaware, Maryland, Kentucky, and Missouri—took the position that the laws of those states, including the fugitive slave laws, were in full force and that the Union army was obliged to enforce them. On April 23, 1861, General Benjamin F. Butler, invoking the familiar understanding of slavery as a state institution, assured slaveholders in Maryland that “the forces under my command are not here in any way to interfere with or countenance any interference with the laws of the State.” On the contrary, Butler declared, he stood ready to assist state authorities “in suppressing most promptly and effectively any insurrection against the laws of Maryland.”22

  Yet Butler’s announcement that he would enforce state laws was ingeniously double-edged. When he arrived in Maryland there was an insurrection under way, but it was a secessionist insurrection. Confederate supporters had recently rioted in the streets of Baltimore, cutting the rail lines into Washington to prevent Union troops from protecting the capital and intimidating unionists into silence. Butler’s promise to suppress “any” insurrection turned out to be more of a threat to disloyal whites than a reassurance to nervous slaveholders. Even so, Butler believed that slaveholders in loyal states were still protected by the Constitution. Not so in the seceded states.

  Butler had arrived in Maryland with meager credentials as an opponent of slavery. Born and raised in New England, trained as a lawyer, he should have been a Whig. Instead, he was a lifelong Jackson Democrat who hated snobbery and viewed Whigs as the party of aristocracy. Unable to secure an appointment to West Point, Butler opted instead for a legal and political career. In his hometown of Lowell, Massachusetts, Butler fused his politics with his law practice by defending workers’ rights against the local mill owners. Smart, energetic, and sarcastic—implacable in debate—Butler presented himself to voters as the enemy of corporations and the friend of working people. Butler was a Free Soil Democrat in 1848, and in the early 1850s he joined the new Free Soil political coalition of Massachusetts “Conscience Whigs” and independent Democrats. It was a fusion of convenience, however, embraced by Democrats as the only way of dislodging the entrenched Whig oligarchy of Massachusetts. Butler’s own campaigns bore little of the imprint of the antislavery movement. In 1851 he ran for local office as a candidate of the new antislavery coalition on a “Ben Butler Ten Hour Ticket” that had nothing to say about slavery. It worked, in a manner of speaking. The Whig oligarchy was overthrown, and the Democrats in the legislature paid their dues by throwing their support to Charles Sumner, the fiery antislavery radical, who thereby became the junior senator from Massachusetts. That was as far as the fusion Democrats were willing to go, however. They passed a raft of legislation for the relief of debtors and workers, but they refused to support personal liberty laws and other antislavery measures. Predictably, the Free Soil–Democratic coalition in Massachusetts fell apart.23

  Rather than embrace the new antislavery Republican Party, Butler went back to the Democrats. He campaigned for James Buchanan in 1856, endorsed the proslavery Lecompton Constitution for Kansas, supported the Dred Scott decision, and appealed to white workers with racial demagoguery. At his party’s tumultuous 1860 presidential nominating convention in Charleston, South Carolina, Butler voted more than fifty times for Jefferson Davis and ended up supporting John Breckinridge, the proslavery Democrat. Butler even apologized for having once flirted with the Free Soil Party. The best that can be said of Butler’s antislavery record is that it was unimpressive. Certainly there was little in it that foreshadowed the role Butler was soon to play in the history of slavery’s destruction.24

  Butler was outraged by a secession movement whose leaders included many of the same southerners he had recently worked with and supported. There is no treachery like the treachery of friends. By January of 1861, Butler was denouncing southern “traitors” and urging Massachusetts’s antislavery Governor John Andrew to hasten military preparations for the coming war against southern rebellion. Butler had always attacked Republicans as the party of disunion, so he could claim a modicum of consistency in his sudden call to arms in defense of the Union. He swore his devotion to the Lincoln administration. But it was the attack on Fort Sumter that truly galvanized Butler. Ever since he was a young man he dreamt of a military career. Disappointed that that wasn’t an option, he nevertheless became active in the local militia, and with the outbreak of war he pulled every political string he could grab to gain command of the Massachusetts militia. Governor Andrew obliged, and General Benjamin Butler was soon on his way to Washington to relieve the endangered capital.

  Upon reaching his destination, Butler was given command of the new “Department of Annapolis” and sent to Maryland with vague instructions to secure the state against secessionist conspiracies. There he issued his bombastic decrees vowing to suppress any evidence of insurrection. Anxious for glory, Butler—against what he knew to be the wishes of the army’s general-in-chief, Winfield Scott—decided to occupy the city of Baltimore and sweep out its nest of secessionists. By the time he got to the city the rioters had dispersed, but Butler declared victory and was hailed in the northern press as a general who got things done. Scott disliked political generals like Butler to begin with, and he was particularly infuriated by Butler’s penchant for dramatic, unauthorized moves. Scott wanted to fire Butler but he was too popular for that. Instead, the unruly politico was kicked upstairs, promoted to major general and transferred to Fortress Monroe in the harbor we know as Hampton Roads, Virginia. Butler considered the transfer a “censure” and later recalled that he did not want to accept the commission, but Lincoln persuaded him to.25 It turned out to be one of the most consequential military assignments of the war.

  THE AREA AROUND FORTRESS MONROE was steeped in the history of American slavery. In 1619 a Dutch trading ship sailed through the channel separating Chesapeake Bay and Hampton Roads, then continued across the harbor and upriver to Jamestown, where the captain sold twenty slaves to the English settlers—the first of the half-million slaves that would be sold over the next two centuries in the colonies that eventually became the United States. By a fateful coincidence of American history, slavery began in 1619 at the same place it began to end in 1861.26 In May of that year, in the same channel separating Chesapeake Bay from Hampton Roads, three slaves fled from their owner to the Union troops stationed at Fortress Monroe at the entrance to the harbor. They were the first of many slaves who over the next four years would help bring slavery down by running to Union lines and securing their freedom. Since the nation was founded, the laws of the United States, indeed the Constitution itself, mandated the return of fugitive slaves. But what did the Constitution mandate in a state that seceded from the Union? At Fortress Monroe, Benjamin Butler would answer t
hat question.

  Hampton village sat at the southern tip of the peninsula bounded by the York and James Rivers. It was linked by Hampton Bridge to Old Point Comfort, where Fortress Monroe stood guard over a strategically vital entrance to the harbor. By 1860 Hampton itself no longer thrived, but the impressive natural harbor sustained the economically and militarily important towns of Newport News, Norfolk, and Portsmouth. Seventy-five miles up the James River—which empties into Hampton Roads—stood the city of Richmond, the venerable old capital of the Commonwealth of Virginia, which in the spring of 1861 became the new capital of the recently established Confederate States of America.

  Whoever occupied Fortress Monroe dominated one of the lifelines of the Confederacy. “The Fort occupies a commanding position,” one Union private wrote in late April. “It controls the commerce of Norfolk, Richmond, Washington, and Baltimore. It is the key to Virginia and the border States.” At the start of the war, northern forces had scrambled to ensure that the Union maintained control of the fortress along with the harbor and the town of Hampton. The South desperately wanted them back. But unlike Fort Sumter, farther south at the entrance to Charleston Harbor, southern forces were in no position to grab Fortress Monroe from the Yankees. By May there were twelve thousand Union troops stationed at the fortress, and the Confederate officer in charge of the peninsula, Colonel Benjamin Ewell, realized that he was powerless to control much less protect the nearby village of Hampton. “It is difficult to manage Hampton,” Ewell confessed to his superiors in Richmond.28 He would build the fortifications to protect the peninsula from Yankee invasion, but he could not save the town itself. The white citizens of Hampton had to either flee with their furniture and slaves or make their own peace with the Union army. Most whites fled.

  Their slaves, however, balked. By 1860 there were nearly twenty-five hundred slaves in Elizabeth City County, and their distinctive history made them especially attentive to the prospect of freedom now dangling before them by a war over slavery. The tobacco economy had long since declined in the depleted sandy soil at the lower end of the peninsula. There were few large plantations. Instead, the slaves worked at a variety of occupations. Nearly one thousand of them were hired out by their owners to work as fishermen, oystermen, craftsmen, or laborers on the small farms that supplied the more prosperous towns around Hampton Roads. Compared to the relatively restricted experience of slaves living on isolated rice, sugar, and cotton plantations across much of the South, the slaves in and around Hampton lived more varied lives, they were freer to move about, they were subjected to fewer constraints by local whites, and they had close ties to Elizabeth City County’s two hundred free blacks. The free blacks were in turn unusually literate, prosperous, and resourceful. More than most African Americans in the South, the slaves of Hampton were in a position to grasp at the possibility of freedom very early in the war.29

  On Thursday evening, May 23, 1861, three slaves—Shepard Mallory, Frank Baker, and James Townsend—decided to take their chances by running for their freedom to the Union forces stationed at Fortress Monroe. Their owner, Charles Mallory—a Hampton lawyer from a distinguished Virginia family and now a Confederate colonel—had decided to take the three slaves to North Carolina “for the purpose of aiding the secession forces there.” Two of the slaves had wives living in Hampton, one of them a free black woman, and between them they had several children in the area. Unwilling to leave their families behind, and fearful of being put to service for the Confederate army, the slaves commandeered a small boat and rowed from Sewall’s Point to the fortress, where they asked for asylum.

  General Butler arrived at Fortress Monroe the day before the fugitive slaves did. On Friday, the day after their arrival, Major John Cary of the Virginia Artillery showed up and demanded the return of Colonel Mallory’s three runaways. By then Butler had investigated the matter and interviewed the three men. He had learned that the Confederates were employing blacks in the area to construct their batteries at Sewall’s Point, “which it would be nearly or quite impossible to construct without their labor.” He could hardly send the slaves back to assist the rebel cause. And besides, Butler concluded, he could use these able-bodied men in his own quartermaster department. So instead of sending the slaves back to their owner, Butler issued receipts for them that Colonel Mallory could redeem once the hostilities between the North and South had ended.

  Butler was acting on impulse—the war had just begun and there was no formal antislavery policy in place. But if he was feeling his way, he was not flailing about blindly. On the contrary, Butler was guided by the familiar Republican warning that any state seceding from the Union would forfeit the protection slavery was afforded under the Constitution. Major Cary claimed that Butler was obliged by the Fugitive Slave Act of 1850 to return the slaves to their owners. That may or may not have been true in Maryland, where only weeks before Butler had offered to put down any insurrections—by secessionists as well as by slaves. But Maryland had not seceded, and it was still under the protection of the U.S. government. Virginia was different. On May 24, the day after the slaves escaped, Virginia voters ratified the ordinance of secession. As far as Butler was concerned, they had thereby forfeited federal protection of slavery. So when Cary insisted that the general was under a constitutional obligation to return the slaves to their rightful owner, Butler refused on the ground that “the fugitive-slave act did not affect a foreign country which,” as Butler pointed out to Cary, “Virginia claimed to be.” If, on the other hand, Colonel Mallory presented himself at Fortress Monroe and swore an oath of allegiance to the Union, Butler would “deliver the men up to him and endeavor to hire their services of him.” Butler knew that Mallory would do no such thing.30 The slaves, therefore, would remain with the Union army, Butler told Cary, their fate to be determined by policymakers in Washington.

  In refusing to return the runaway slaves, Butler was following familiar precedents under the laws of war. Even if slaves were legally “property” according to the state laws of Virginia, one of Butler’s soldiers explained, it was nonetheless true that under the law of nations “all the property of the enemy may be seized.”31 As Butler explained it, “[P]roperty of whatever nature, used or capable of being used for warlike purposes, and especially when being so used, may be captured and held either on sea or on shore as property contraband of war.” But were slaves property, or were they persons? Butler doubted “whether there may be a property in human beings,” but it hardly mattered because under the laws of war it was also legitimate to deprive enemies of their slaves’ labor.32 If the slaves were property, they could be confiscated. If they were “persons held in service,” as most Republicans believed, their services could be appropriated. Either way, Butler felt justified in denying Mallory’s request for the return of his slaves.

  Major Cary reported the results of his interview with Butler to his superior officer, Colonel J. B. Magruder, on the evening of May 24. Butler, Cary wrote, “indicated his determination to take possession of anything which he might deem necessary for his use,” and for that reason he has “refused to give up” Colonel Mallory’s three slaves.33 The next day, May 25, Butler sent a report of the incident to Washington asking for approval of his decision to retain the fugitives. He fully understood that this was “but an individual instance in a course of policy which may be required with regard to this species of property.” Butler was asking for more than specific approval of an individual decision; he was also urging the government to issue a broader policy statement regarding slaves coming into Union lines from rebel owners. Should the Confederates “be allowed the use of this property against the United States,” Butler asked, “and we not allowed its use in aid of the United States?”

  On May 27, Butler wrote a second letter to General Winfield Scott, who commanded all the Union forces from Washington. This morning, Butler explained, Confederate batteries at Sewall’s Point fired on some of Butler’s troops. Those were the batteries recently constructed by slaves
, a dozen of whom had by then escaped to Fortress Monroe. The number of runaway slaves was rapidly increasing, Butler noted, and he was happy to put the able-bodied men to work. But in the past few days a number of women and children had arrived, and this raised a serious question that had to be addressed. Butler could plausibly retain adult men on the grounds of military necessity: it deprived the Confederates of labor used to advance their own military needs while it enhanced the labor power of the Union army. Butler could likewise use the services of able-bodied women, who could earn their keep by sewing, cooking, and washing clothes for his men. But what about the children? Butler asked. “As a political question and a question of humanity can I receive the services of a father and mother and not take the children?” The humanitarian question was easy to answer: he could not break up slave families by returning children to their masters. But this was also a political question, Butler shrewdly pointed out, and the answer to that would have to come from Washington.34

  Without waiting for a reply, Butler ordered one of his officers to see to it that “all able-bodied negroes within your lines” should be “taken” and put to work “in the trenches and on the works.” Rations were to be provided for the workers as well as their families. He also ordered his officer to keep an accurate record of the slaves, the work they performed, the rations they received, as well as the names of their owners. The records were “for future use.” At that point nobody knew what that future use might be.35

  News of the events at Fortress Monroe spread quickly. On May 28, only one day after Butler sent his second request to Washington, reporters were publishing their own dispatches from Fortress Monroe telling of slaves running unsolicited to Union lines. On May 29, Lincoln’s postmaster general, Montgomery Blair, wrote Butler a letter endorsing the general’s decision not to return runaway slaves to their owners. But Blair was concerned that Butler’s order reached too far. Only able-bodied men who had been used on Confederate fortifications should be held by Union forces, Blair argued. He was inclined to doubt the stories the slaves told, about the threat of being moved farther South. Blair was a fierce unionist who was eager to punish the secessionists, but he was also among the least inclined of Lincoln’s cabinet members to push a rapid emancipation. By his own account, other officials in Washington—including General Scott—were a good deal more enthusiastic. President Lincoln, Blair reported, had never seen Scott so excited as he was by Butler’s decision. “He called it Butler’s fugitive slave law.”36