General Benjamin Butler took command at Fortress Monroe in Virginia on May 22, 1861. No doubt upon his arrival Butler believed his biggest problem would be the Virginia forces building fortifications across Hampton Roads. The state’s voters ratified secession on May 23, so the general soon controlled a military post deep in now officially hostile territory. Yet he quickly discovered his most pressing problem was not the rebels, but their slaves. In his report to Winfield Scott, dated May 25, 1861, he wrote:
On Thursday night [May 23, 1861] three negroes, field hands belonging to Col. Chas. Mallory, now in command of the Secession forces in this District, delivered themselves up to my picketguard in the morning and had been detained by him. I immediately gave personal attention to the matter and found satisfactory evidence that these men were about to be taken to for the purpose of aiding the secession forces there; that two of them left wives and children, one of them a free woman here; that the other had left his master from fear that he would be called upon to take part in the Rebel armies. Satisfied of these facts from cautious examination of each of the negroes apart from the others, I determined for the present and until better advised, as these men were very serviceable and I had great need of labor in my Quartermaster’s Department, to avail myself of their services. I determined also that I would send a receipt to Col. Mallory that I had so taken them, as I would for any other property of a private citizen which the exigencies of the service seemed to require to be taken by me, and especially property that was designed, adapted, and about to be used by the United States. As this is but an individual instance in a course of policy which may be required to be pursued with regard to this species of property, I have detailed to the Lieut. General this case, and ask his direction. I am credibly informed that the negroes in this neighborhood are employed in the erection of batteries and other works by the rebels, which it would be nearly or quite impossible to construct without their labor. Shall they be allowed the use of this property against the United States, and we not be allowed its use in aid of the United States?
So it is readily apparent that Benjamin Butler’s main motive for giving the three slaves sanctuary was military advantage–to acquire laborers to support his own operations while simultaneously denying such to the enemy. Yet clearly, Butler also entertained humanitarian considerations as well. Otherwise, why else mention in his report to Scott that two of three slaves were family men?
Still, Butler not only had to justify his decision to his superiors in Washington, D.C., but also to the enemy. He soon received a communication from the Confederates requesting to meet with him under flag of truce. The parlay took place on the Hampton side of the Mill Creek Bridge, with Benjamin Butler confronting Major John B. Cary, representing the Virginia militia at Hampton Roads. It soon became apparent that Cary was there to seek the return of the three slaves. According to Butler in his May 25 report to Winfield Scott:
Major Cary demanded to know, with regard to the negroes, what course I intended to pursue. I answered him substantially as I have written above, when he desired 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; that in Maryland, a loyal State, a fugitive from service had been returned, and that even now, although so much pressed by my necessities for the use of these men of Col. Mallory’s, yet if their master would come to the Fortress and take the oath of allegiance to the constitution of the United States I would deliver the men up to him, and endeavor to hire their services of him, if he desired to part with them. To this Major Cary responded that Col. Mallory was absent.
Benjamin Butler’s reply to Cary showed his background as a clever lawyer and politician. He managed to justify keeping the slaves without attacking slavery’s legality itself, something anathema to northern leaders in Spring 1861. U.S. forces could now lawfully under the rules and customs of war give sanctuary to slaves, as long as their owners were disloyal. Butler’s reasoning would quickly catch on in the North under the legal term “contraband of war.” By using their slaves against the United States, rebel slaveholders justified their seizure by federal forces. It was legal formulation of which Benjamin Butler clearly became very proud, in essence his great contribution to Union victory. He did not use the phrase in his report to Winfield Scott, but he would contact John B. Cary in 1891, years after the end of the war, seeking Cary’s testimony that he indeed had originated the phrase (interestingly, Cary obliged).
Yet Benjamin Butler on May 25, 1861 was still not reckoning with the will of the slaves. Unknowingly, by giving sanctuary to three African Americans he had opened up the flood gates of the desire of the millions of slaves in the American South to be free. He would very shortly be forced to deal with the consequences.
Source: Private and Official Correspondence of Gen. Benjamin F. Butler During the Period of the Civil War, Vol 1. (Norwood, Mass.: The Plimpton Press, 1917), 102-07.