Anyone who knows me well or knows me simply through my writings in this blog over the past few years, knows that two of my loves are the Civil War and exploring often forgotten or untaught aspects of American history. Research and reading lie at the heart of much of what I do on a regular basis.
On May 23, 1861 - six weeks after the first shots of the Civil War were fired at Fort Sumter - Virginia voters ratified the state’s secession ordinance. Virginia no longer considered itself part of the United States of America.
That very night, three men - Frank Baker, Shepard Mallory and James Townsend, who had been put to work building fortifications in Sewell’s point as slaves of Col. Charles K. Mallory - escaped and made their way to Fort Monroe, which was still flying the U.S. flag in Hampton, Virginia.
It was a big risk. They could not be certain what would happen when (and if) they reached their destination. At the time, the Fugitive Slave Act of 1850 was still in force. It stated in part that any slaves who escaped across state lines into free states were still legally considered the property of their slaveholders and must be returned. Escaped slaves had shown up at Fort Monroe before and been denied asylum. When Baker, Mallory and Townsend set out that night, they could only hope that political shifts in the country had changed something in their favor. If they were caught or returned, they could expect harsh punishment.
The next day, Maj John Cary of the 115th Virginia Militia arrived at the fort under a white flag, speaking on behalf of Col. Mallory. Cary asked that the slaves be returned under the provisions of the Fugitive Slave Act.
The man in charge of Fort Monroe - who was ultimately responsible for responding to Cary - was Maj. Gen. Benjamin F. Butler. A Massachusetts lawyer and politician with little military experience, Butler had assumed command of the fort only a day before Baker, Mallory and Townsend arrived.
At the time, Butler was no abolitionist - he had, in fact, supported Jefferson Davis as the Democratic Party presidential candidate in 1860 - but he understood that most of the men under his command opposed slavery. Returning the escapees to bondage would certainly sow discontent and discourage loyalty among his men. He faced a dilemma: Abide by his Constitutional duty and abandon the principles of his men, or grant asylum and give his enemies legal ground to retaliate.
Luckily, Butler’s legal experience led him to a third possibility.
When Cary asked what Butler intended to do with the escaped slaves, he responded that he intended to hold them, deciding to set aside, as Cary said, his Constitutional obligation to return them.
Butler pointed out that the Fugitive Slave Act only applied between states in the Union and said he was under no obligation to a foreign country, which Virginia claimed to be under the ordinance of secession, so the Constitutional obligation no longer applied.
Furthermore, he said he would keep the men as contraband of war, since they were engaged in the construction of the battery and were claimed as property. As a lawyer, he claimed the question was whether they would be used for or against the government of the United States.
But he did ostensibly offer a loophole: Since he greatly needed the laborers, if Col. Mallory would arrive at the fort and take the oath of allegiance to the United States, he would be given his negroes and Butler would then hire them from him.
He knew Mallory would never switch sides, and so Cary returned empty-handed.
Legally speaking, Butler’s maneuver did not free these three men but made them property of the federal government. That word - contraband - was, until this time, primarily used in maritime law to describe smuggled goods. Butler’s argument treated these three “confiscated” men as “enemy property that was being used for hostile purposes,” on the same level as cannons or muskets seized from an enemy combatant. A military company was under no legal or ethical obligation to return war-making apparatus to the enemy.
Here at the beginning of the war, many in the North were more concerned with holding the Union together than with abolishing slavery. For abolitionists, though, The end of slavery was front and center. But on that morning, Butler provided a solid rationale that brought the two outlooks together while sidestepping long-standing debates about the morality of slavery.
His action quickly became known as Butler’s “Contraband Decision.” ironically, it is unlikely that Butler actually used the word contraband when speaking to Cary on that May morning. But that word appeared when the story was reported in The New York Tribune, was reported elsewhere, and ultimately caught the public’s attention.
The word found a new life in the North, and contraband quickly became a widespread slang term for an escaped slave. And the word was everywhere: in news reports, political cartoons, and popular culture. Philadelphia composer Septimus Winner composed a piano solo called “Contraband” and dedicated it to Butler. Louisa May Alcott in 1863 published the short story “My Contraband,” about a white nurse and a freed save in the Union Army. Painters like Vincent Colyer, Thomas Waterman Wood and Winslow Homer crafted artistic depictions of freed slaves and named the works Contraband.
Why did the word (a meme by today's standards) become so popular? To some in the North, referring to escaped slaves as contrabands was a way of thumbing their collective noses at Southern slaveholding rebels. But it served a more important social role as well: Northerners who were reluctant to call former slaves freemen found a more palatable alternative in contrabands - people who were not quite free, but not enslaved either.
Some objected to the term, rightly claiming that calling men and women contrabands was dehumanizing and demeaning - Frederick Douglass, for example, was not a fan. But contraband certainly was a step up from slave.
Word of the “Contraband Decision” spread as quickly through the Confederacy as the Union, especially among the whispered voices of the enslaved working the plantations. Within 24 hours of Baker, Mallory and Townsend finding safety at Fort Monroe, half a dozen more slaves escaped their captors and trekked to Fort Monroe’s gate. They, too, were given refuge as contraband of war.
Soon, to those in bondage in the South, the word contraband became synonymous with freedom. And knowing that a life outside of slavery was possible, slaves were emboldened to pursue their own emancipation.
Though it stood on a peninsula entirely within the Confederate State of Virginia, Fort Monroe and the surrounding village of Hampton remained under Union control throughout the Civil War. It became an outpost of freedom. To thousands of men, women and children, escaping to Fort Monroe to become contraband was a huge step toward - ultimately - freedom and American citizenship.
Within only three months of the “Contraband Decision,” nearly 1,000 men, women and children had fled bondage and reached the fortress. There, they found shelter, food, some education, and - for the first time - wages for their hard work (though often enough they did not receive them).
Capt. Charles B. Wilder was Fort Monroe’s assistant quartermaster and superintendent of the contrabands, and it is through his records that we know that, by war’s end, more than 10,000 self-emancipated people had found their first true taste of liberty and began new lives there.
Since then, Fort Monroe has been called “Freedom’s Fortress” and “Ellis Island for African Americans” - millions of African Americans today can trace their family’s history through this single location. In 1997, one of those descendants, Gerri Hollins, spearheaded the effort to create the non-profit Contraband Historical Society, whose mission is to “research, preserve and promote the history, legacy and contributions of the formerly enslaved, who were considered ‘Contraband’ of war.” Through the organization's Contraband Descendants’ Connection, it helps people research and share their ancestors' stories through the gates of Fort Monroe.
Fort Monroe was decommissioned in September 2011, and a proclamation by President Barack Obama in November of that year designated it a national monument.
Though laud for the “Contraband Decision” usually falls to Maj. Gen. Butler, the credit should be shared with those three enslaved men who escaped from a plantation in the hope that someone with more political clout would support their bid for freedom: Frank Baker, Sheperd Mallory, and James Townsend.
Though they likely gave little thought to what achieving their own freedom might mean for the enslaved throughout the country, their trek, and Butler’s legal interpretation, caused a ripple that would reach to the highest echelons of society.
Butler’s argument became the official stance of the U.S. government, a stance later codified in the First (1861) and Second (1862) Confiscation Acts, which authorized the seizure of Confederate property, including slaves. Soon, contraband camps began appearing wherever Union forces set down.
According to historian James McPherson, the “Contraband Decision” “turned out to be the thin edge of a wedge driven into the heart of slavery.” Ultimately it led to the Emancipation Proclamation and the 13th Amendment, abolishing slavery in America.
But, the spark, the catalyst, was those three men. Those men had names.
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