Contraband of War

Brigadier General Benjamin F. Butler had earned the scorn of General-in-Chief Winfield Scott by seizing Baltimore without orders, and as such was removed as commander of the Department of Annapolis. This prompted Butler to go to Washington and discuss the matter with President Abraham Lincoln. Butler offered to resign, but Lincoln thought him too valuable to lose. Butler was a Democrat, and the president wanted him to set an example for his fellow party members by enforcing the administration’s war policies.

Lincoln offered to promote Butler to major general and give him command of the Department of Virginia and North Carolina. Butler later wrote that he told the president: “As a Democrat I opposed your election, and did all I could for your opponent, but I shall do no political act, and loyally support your administration as long as I hold your commission; and when I find any act that I cannot support I shall bring the commission back at once, and return it to you.”

Butler’s new department was headquartered at Fort Monroe, at the tip of the Virginia Peninsula between the York and James rivers. This encompassed the region around Hampton Roads and the Confederate-held Navy Yard at Norfolk. The Federal toehold on the Peninsula meant that the Confederates had to be especially vigilant to guard against a thrust toward either Norfolk or the new Confederate capital at Richmond.

Regarding Norfolk, Major General Robert E. Lee, commanding Confederate forces in Virginia, inspected the defenses and found them inadequate. He appointed Brigadier General Benjamin Huger to take command of the forces there. Huger replaced Brigadier General Walter Gwynn, who had not served actively for 29 years. Lee also consolidated Confederate forces near Fort Monroe into a Department of the Peninsula under Colonel John B. Magruder, with headquarters at Yorktown.

Federals and Confederates quickly began shifting troops to this region; in addition to the Federal garrison at Fort Monroe, Federal warships patrolled the waters off Hampton Roads. Magruder’s men, which included the crack 1st North Carolina under Colonel D.H. Hill, began preparing for a potential Federal landing at Newport News, a strategic point on the Peninsula where the James River flows into Chesapeake Bay. This would be a logical starting point for a Federal drive toward Richmond.

General Butler arrived at Fort Monroe and assumed command on the 22nd. His new garrison numbered just 2,000 men, mostly from New York, Vermont, and his home state of Massachusetts. But they were soon reinforced until Butler’s command totaled about 7,500. As the Confederates guessed, Butler’s first order of business was to capture Newport News. Meanwhile, Federal warships began blockading the James, Nansemond, and Elizabeth rivers.

On the 23rd, Troops from the 1st Vermont advanced a few miles northwest from Fort Monroe to the town of Hampton. Some locals saw them coming and tried to burn the bridge linking the fort to the mainland, but the Vermonters quickly put out the fire and crossed. Residents and the few nearby Confederate soldiers fled, leaving their slaves behind. That night, three of the slaves made their way through the Vermonters’ picket line to seek refuge among the Federals. Butler, thinking the slaves may have information about enemy positions, summoned them to his headquarters. They revealed that they belonged to Colonel Charles K. Mallory, who had them building a battery.

Mallory sent Major J.B. Cary of his staff to request that Butler return his “property” to him, in accordance with the Fugitive Slave Act. Butler refused because the slaves had been put to work for the Confederate war effort against the United States. According to Cary, Butler “indicated his determination to take possession of anything which he might deem necessary for his use.” As such, Butler announced: “I shall hold these Negroes as contraband of war.”

Butler reported to General-in-Chief Scott: “Major Cary demanded… to know if I did not feel myself bound by my constitutional obligations to deliver up fugitives under the fugitive-slave act. To this I replied that the fugitive-slave act did not affect a foreign country which Virginia claimed to be and that she must reckon it one of the infelicities of her position that in so far at least she was taken at her word.”

This marked the first time that a Federal commander had refused to return fugitive slaves to their masters. In March, slaves had tried to seek refuge within the Federal garrison at Fort Pickens, Florida. According to 1st Lieutenant Adam Slemmer, the slaves had been “entertaining the idea that we were placed here to protect them and grant them their freedom. I did what I could to teach them the contrary.” Unlike Butler, Slemmer had turned the slaves over to the local authorities under the terms of the Fugitive Slave Act.

After Major Cary was rebuffed, Colonel Mallory himself then came under a flag of truce to request the return of his slaves. Butler told him that the slaves would be returned only if the colonel swore allegiance to the United States and stopped using them to resist Federal authority by building defenses. Mallory refused and his slaves were forfeited. “Contraband of war” became a new expression in the American lexicon, as northern newspapers began applying the term to the increasing number of slaves whom Butler encouraged to risk harsh punishment to flee from their masters.

Nearly 70 slaves escaped to Fort Monroe within three days, and by month’s end about 1,000 slaves had gathered there, with hundreds more heading for Federal lines at other locales. This embarrassed the Lincoln administration because it did not yet have a policy for dealing with these refugees. Postmaster General Montgomery Blair informed Butler on the 29th that Lincoln was calling what the general did “Butler’s fugitive slave law.”

Blair supported Butler’s idea of putting the slaves to work for the Federal cause, but suggested that he leave “the Secessionists to take care of the non-working classes of these people.” Blair also told Butler that they could be employed as spies “because they are accustomed to travel in the night time, and can go where no one not accustomed to the sly tricks they practice from infancy to old age could penetrate.”

The president and his advisors discussed the matter at a cabinet meeting on the 30th, after which Secretary of War Simon Cameron wrote Butler:

“Your action in respect to the negroes who came in your lines from the service of the rebels is approved… You will employ such persons in the service to which they may be best adapted; keeping an account of the labor by them performed, of the value of it and of the expense of their maintenance. The question of their final disposition will be reserved for future determination.”

The Lincoln administration refused to recognize the Confederacy as its own nation, and therefore the fugitive slave laws in southern states still applied. But under this new policy, if southerners put their slaves to work against the Federal government, their “property” was eligible for forfeit. Those forfeited slaves would not be freed, but rather would be re-enslaved to work for the Federal military. This marked an important turning point in how the administration would handle slavery as its military operated in the South.

While the question of sheltering fugitives was being decided, Butler’s push toward Newport News continued. Around 7 a.m. on the 27th, Butler loaded a force onto transports and moved toward his objective, eight miles inland from Fort Monroe overlooking the mouth of the James River. The Federals landed and built defensive works that included a fortification named Camp Butler. Butler reported that the camp “will be able to hold itself against any force that may be brought against it.”

The Federals proved too strong for the Confederates to resist, and the next day they captured Newport News without opposition. This expanded Butler’s base of operations around Fort Monroe; it also poised the Federals to threaten Yorktown, the York River, or even Norfolk and Petersburg. This initiated the second of four proposed invasions of Virginia; the others being at Alexandria and Arlington, western Virginia, and Manassas.


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