In December, 1859, when John Brown, for his rash though courageous attempt to liberate slaves, was hanged by the authorities of Virginia a great majority of even Northern people looked on with indifference or with approval. The inhabitants of the free States, however, were rather law-abiding than pitiless and came in time to revere the memory of that stern old Puritan. Ideas in those times matured with amazing rapidity, and fourteen months had scarcely elapsed when James B. McKean, a Representative from New York, introduced into Congress, three days before the Confederate government was organized, the following resolution:
Whereas the “Gulf States” have assumed to secede from the Union, and it is deemed important to prevent the “border slave States” from following their example; and whereas it is believed that those who are inflexibly opposed to any measure of compromise or concession that involves, or may involve, a sacrifice of principle or the extension of slavery, would nevertheless cheerfully concur in any lawful measure for the emancipation of slaves: Therefore,
Resolved, That the select committee of five be instructed to inquire whether, by the consent of the people, or of the State governments, or by compensating the slaveholders, it be practicable for the General Government to procure the emancipation of the slaves in some, or all, of the “border States”; and if so, to report a bill for that purpose.[[213]]
Mr. Burnett, of Kentucky, desiring to discuss the proposition, it was laid on the table and received no further consideration. Whether Mr. Lincoln had much reflected upon the principle of this resolution or the reasoning in its preamble, he had not become on March 4 a convert to its essential idea, for in his inaugural address he was content, in expressing his sentiments on the institution of slavery, to re-affirm a declaration which he had formerly made. “I have no purpose,” said he, “directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”[[214]] Even if the occasion had not demanded the language of conciliation we might easily credit this solemn assurance. Indeed, for an entire year after this announcement he refrained in his public utterances from taking any attitude hostile to the continuance of slavery. The influences which forced him to adopt other opinions may be briefly related.
On May 22, 1861, General Butler arrived at Fortress Monroe and at once took command of the Department of Virginia; next day he sent a reconnoitering party to Hampton, and in the terror and confusion occasioned by the presence of Yankee soldiers three slaves of Colonel Mallory, a Confederate officer, effected their escape; during the afternoon they remained in concealment and at night reached the Union pickets. The following morning they were brought before the Federal commander, whom they informed of their master’s purpose to employ them in military operations in North Carolina. On the next day Major John B. Cary, also of the Confederate army, and a former delegate with Butler in the Baltimore Convention, came to the fort with a flag of truce, and as a representative of Colonel Mallory demanded the surrender of these runaways pursuant to the provisions of the Federal Constitution under which the Union commander claimed to act. With characteristic readiness came the reply that the Fugitive Slave Law could not be invoked in this case; Virginia assumed to be a foreign State and she must count it among the disadvantages of her position if, so far at least, she was taken at her word. These negroes further informed General Butler or his officers that if they were not returned others would come next day. On the 26th eight slaves were before him awaiting an audience; one squad of forty-seven came early on the 27th and another lot of a dozen arrived during the same day. Then they came by twenties, thirties and forties both to Fortress Monroe and Newport News.[[215]]
Thus arose an important question on which the Government had yet developed no policy. As the acts for the rendition of fugitive slaves were not repealed till June, 1864, the views of individual commanders temporarily prevailed. Without precedent or instructions General McDowell by an order entirely excluded them from his lines. Caprice, too, entered into a settlement of the problem, and even a whimsical solution was sometimes attempted. A felicitous invention for determining these controversies between master and bondman is ascribed to the colonel of a Massachusetts regiment. Both the claimant and the claimed were put outside his tent for a trial of speed; the negro, proving the fleeter, was never heard of again.[[216]] An institution which had practically determined both the foreign and domestic policy of the United States for an entire generation was suddenly become the sport of a subordinate officer of volunteers! The wise should have heeded these signs.
While the Federal commander in Virginia was exchanging arguments with Confederate officers, General McClellan at his headquarters in Cincinnati was considering a proclamation which on May 26 he issued to the Union men of western Virginia. This document, among other things, says: “All your rights shall be religiously respected, notwithstanding all that has been said by the traitors to induce you to believe our advent among you will be signalized by an interference with your slaves. Understand one thing clearly: not only will we abstain from all such interference, but we will, on the contrary, with an iron hand crush any attempt at insurrection on their part.”[[217]]
Scarcely less explicit in its announcement concerning slavery was General Patterson’s proclamation of June 3, 1861, to troops of the Department of Pennsylvania. “You must bear in mind,” says its concluding paragraph, that “you are going for the good of the whole country, and that, while it is your duty to punish sedition, you must protect the loyal, and, should the occasion offer, at once suppress servile insurrection.”[[218]]
Butler’s interview with Major Cary had been promptly communicated to the War Department, whose chief, Mr. Cameron, expressed in his reply of May 30 approval of the General’s action. The Secretary, however, endeavored to distinguish between interference with slave property and the surrender of negroes that came voluntarily within Federal lines. The commander was further directed to “employ such persons in the services to which they may be best adapted, keeping an account of the labor by them performed, of the value of it, and the expenses of their maintenance,”[[219]] the question of their final disposition to be reserved for future determination.
In defence of his attitude toward masters of fugitives who had been employed in the batteries or on the fortifications of the enemy, international law supplied General Butler with an analogy that he skillfully applied to the novel conditions which had arisen. Articles of assistance in military operations cannot in time of war be imported by neutrals into an enemy’s country, and the attempt to introduce such goods renders them liable to seizure as lawful prize. It did not greatly embarrass this versatile lawyer that the term contraband applies exclusively to relations between a belligerent and a neutral, or that the decision of a prize court might be necessary to determine whether a particular article had been so designated. No doubt he believed firmly in the doctrine that the wants of war are contraband of war. In his correspondence with General Scott he had observed that “as a military question, it would seem to be a measure of necessity” to deprive disloyal masters of the services of their slaves, and this, on the pretext that they were contraband of war, he proceeded to do by refusing to surrender any negroes coming inside his lines.[[220]] This method of settling the difficulty was what Secretary Cameron had approved. But this phase presented the question in its extreme simplicity. A refusal to return the slaves of Confederate officers or of Confederate sympathizers was one thing; similar treatment of loyal slaveholders would not be so readily overlooked by authority. Though such cases were more likely to occur in Maryland, Kentucky or Missouri, that fact did not prevent the subject from assuming very great importance even in Virginia. Whole families escaped from their masters, and General Butler soon had on his hands negroes from three months to almost fourscore years of age.