How the Laws of War Helped to End American Slavery

by Roger Alford

There’s a great article by Professor Adam Goodheart in the New York Times describing how Union Major General Benjamin Butler, a lawyer by training, used the laws of war to help end slavery in America. When three fugitive slaves presented themselves to Butler at Fort Monroe, he had to quickly decide what to do with them. The Confederate soldiers had been using the slaves to construct a battery aimed directly at his fort. No sooner had the slaves sought refuge when a rebel officer, John Baytop Cary, approached Fort Monroe under a flag of truce to demand the return of his property. Here’s how Goodheart describes the incident:

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….

Butler didn’t think of the three fugitives as property, but he was willing to describe them as such in response to his enemy’s demands. It was a clever use of the laws of war, one that mocked the absurdity of the Confederate’s position. As Goodheart puts it:

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….

[I]n its very absurdity, reflecting the Alice-in-Wonderland legal reasoning behind Butler’s decision, the term also mocked the absurdity of slavery — and the willful stupidity of federal laws that, for nearly a century, had acknowledged no meaningful difference between a bushel of corn and a human being with dark skin. Eventually, even black leaders adopted it.

The article is a great read, and it only whets my appetite for the book.

http://opiniojuris.org/2011/04/06/how-the-laws-of-war-helped-to-end-american-slavery/

4 Responses

  1. Response…
    Note the Francis Lieber (guided preparation of the Lieber Code) was an abolitionist.  See also articles 57-58.

  2. Agreed – a very interesting way in which the vote with their feet of the slaves forced the issue for all concerned as a forerunner to the Emancipation Proclamation.  Puts a new light on the Emancipation Proclamation doesn’t it?  I also love the way we created a euphemism – the contrabands -to create a term that helped us avoid as long as possible the issue at hand of freedom for the slaves.
    Best,
    Ben

  3. Lawfare.  How ’bout that?

  4. Response… The various confiscation acts, Congress using its power over the military to block return etc.  also provide added material to a quite interesting issue.

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