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On July 30, 1861, Union General Benjamin Butler wrote to the War Department about the nine hundred runaway slaves that were now residing within his lines, specifically, "First. What shall be done with them? and, Second. What is their state and condition?"
On May 24, three runaway slaves who were working on nearby Confederate fortifications escaped and fled into Butler's lines at Fort Monroe, Virginia. Their owner, Colonel Charles Mallory, came to Butler to demand them back. The fugitive slave law obliged Butler to return them, but he refused, claiming that the property of those in rebellion to the United States could be seized as contraband of war. Butler put them to work on his own lines.
Butler then wrote to the War Department, telling them what he had done and asking for further instructions. Secretary Simon Cameron finally approved of Butler's contraband reasoning and told him to keep any that came into his lines, but to do nothing to encourage more slaves to run away.
Butler didn't have to do anything. Word spread quickly through slave camps, and now, just two months later, Butler had nine hundred within his lines, "three hundred of whom are able-bodied men, thirty of whom are men substantially past hard labor, one hundred and seventy-five women, two hundred and twenty-five children under the age of ten years, and one hundred and seventy between ten and eighteen years, and many more coming in."
Butler's report (after the jump) gives his reasons for withdrawing from the village of Hampton and explains how that aggravated the problem. After asking the questions "What shall be done with them?" and "What is their state and condition?" Butler, a lawyer by trade, gave his answers.
From General Butler
Headquarters, Department of Virginia, Fortress Monroe, July 30th, 1861
Hon. Simon Cameron, Secretary of War
Sir: By an order received on the morning of the 28th July from Major General Dix, by a telegraphic order from Lieutenant-General Scott, I was commanded to forward, of the troops of this department, four regiments, and a half, including Colonel Baker's California regiment, to Washington, via Baltimore. This order reached me at 2 o'clock a.m., by special boat from Baltimore. Believing that it emanated because of some pressing exigency for the defense of Washington, I issued my orders before daybreak for the embarkation of the troops, sending those who were among the very best regiments I had. In the course of the following day they were all embarked for Baltimore, with the exception of some four hundred for whom I had not transportation, although I had all the transport force in the hands of the quartermaster here to aid the Bay line of steamers, which, by the same order from the lieutenant-general, was directed to furnish transportation. Up to, and at the time of the order, I had been preparing for an advance movement, by which I hoped to cripple the resources of the enemy at Yorktown, and especially by seizing a large quantity of negroes who were being pressed into their service in building the intrenchments there. I had five days previously been enabled to mount, for the first time, the first company of light artillery, which I had been empowered to raise, and they had but a single rifled cannon, an iron six-pounder. Of course everything must and did yield to the supposed exigency and the orders. This ordering away the troops from this department, while it weakened the posts at Newport 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 marauding 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 subsistence 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 five thousand men outside the fort including the force at Newport 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 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, nine hundred negroes, three hundred of whom are able-bodied men, thirty of whom are men substantially past hard labor, one hundred and seventy-five women, two hundred and twenty-five children under the age of ten years, and one hundred and seventy between ten and eighteen years, and many more coming in. The questions which this state of facts present are very embarrassing.
First. What shall be done with them? and, Second. What is their state and condition? Upon these questions I desire the instructions of the department.
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 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 a 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 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 master's 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 normal 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 General 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 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 masters? Now, shall the commander of a 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 upon 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, besides 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 objection might not require much consideration.
Pardon me for addressing the secretary of war directly upon this question, as it involves some political considerations as well as propriety of military action.
(Benj. F. Butler)