The common belief is that the Emancipation Proclamation ended slavery in the US. That is not actually true, as chattel slavery didn’t completely end until after the Civil War. However, based on a Major General’s decision, 12 days into the conflict – slaves were actually defacto gaining their freedom as “confiscated property” or “contraband”, even if all of the legal niceties weren’t exactly being observed. Many of these ex-slaves would go to work for, and eventually fight as soldiers in the Union Army.
On May 23, 1861, little more than a month into the Civil War, three young black men rowed across the James River in Virginia and claimed asylum in a Union-held citadel. Fort Monroe, Va., a fishhook-shaped spit of land near the mouth of the Chesapeake Bay, had been a military post since the time of the first Jamestown settlers. This spot where the slaves took refuge was also, by remarkable coincidence, the spot where slavery first took root, one summer day in 1619, when a Dutch ship landed with some 20 African captives for the fledgling Virginia Colony.
Two and half centuries later, in the first spring of the Civil War, Fort Monroe was a lonely Union redoubt in the heart of newly Confederate territory. Its defenders stood on constant guard. Frigates and armed steamers crowded the nearby waters known as Hampton Roads, one of the world’s great natural harbors. Perspiring squads of soldiers hauled giant columbiad cannons from the fort’s wharf up to its stone parapets. Yet history would come to Fort Monroe not amid the thunder of guns and the clash of fleets, but stealthily, under cover of darkness, in a stolen boat.
Frank Baker, Shepard Mallory and James Townsend were field hands who — like hundreds of other local slaves — had been pressed into service by the Confederates, compelled to build an artillery emplacement amid the dunes across the harbor. They labored beneath the banner of the 115th Virginia Militia, a blue flag bearing a motto in golden letters: “Give me liberty or give me death.”
After a week or so of this, they learned some deeply unsettling news. Their master, a rebel colonel named Charles Mallory, was planning to send them even farther from home, to help build fortifications in North Carolina. That was when the three slaves decided to leave the Confederacy and try their luck, just across the water, with the Union.
It cannot have been an easy decision for the men. What kind of treatment would they meet with at the fort? If the federal officers sent them back, would they be punished as runaways — perhaps even as traitors? But they took their chances. Rowing toward the wharf that night in May, they hailed a guard and were admitted to the fort.
The next morning they were summoned to see the commanding general. The fugitives could not have taken this as an encouraging sign. Having lived their whole lives near the fort, they probably knew many of its peacetime officers by sight, but the man who awaited them behind a cluttered desk was someone whose face they had never seen. Worse still, as far as faces went, his was not — to put it mildly — a pleasant one. It was the face of a man whom many people, in the years ahead, would call a brute, a beast, a cold-blooded murderer. It was a face that could easily make you believe such things: a low, balding forehead, slack jowls and a tight, mean little mouth beneath a drooping mustache. It would have seemed a face of almost animal-like stupidity had it not been for the eyes. These glittered shrewdly, almost hidden amid crinkled folds of flesh. One of them had an odd sideways cast, as if its owner were always considering something else besides the thing in front of him. These were the eyes that now surveyed Baker, Mallory and Townsend.
The general began asking them questions: Who was their master? Was he a rebel or a Union man? Were they field hands or house servants? Did they have families? Why had they run away? Could they tell him anything about the Confederate fortifications they had been working on? Their response to this last question — that the battery was still far from completion — seemed to please him. At last he dismissed the three brusquely, offering no indication of their fate.
Maj. Gen. Benjamin Franklin Butler arrived at the fort only a day ahead of the fugitive slaves, greeted at the esplanade by a 13-gun salute. That morning, Butler sat down to compose an important initial report. When an adjutant interrupted to inform him of the fugitives, Butler set down his pen. The War Department could wait. The three ragged black men waiting outside were a more pressing matter.
Butler was no abolitionist, but the three slaves presented a problem. True, the laws of the United States were clear: all fugitives must be returned to their masters. The founding fathers enshrined this in the Constitution; Congress reinforced it in 1850 with the Fugitive Slave Act; and it was still the law of the land — including, as far as the federal government was concerned, within the so-called Confederate states. The war had done nothing to change it. Most important, noninterference with slavery was the very cornerstone of the Union’s war policy. President Abraham Lincoln had begun his inaugural address by making this clear, pointedly and repeatedly. “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” the president said. “I believe I have no lawful right to do so, and I have no inclination to do so.”
Yet to Fort Monroe’s new commander, the fugitives who turned up at his own front gate seemed like a novel case. The enemy had been deploying them to construct a battery aimed directly at his fort — and no doubt would put them straight back to work if recaptured, with time off only for a sound beating. They had just offered him some highly useful military intelligence. And Virginia, as of 12 or so hours ago, was officially in rebellion against the federal government, having just ratified the secession ordinance passed a month before. Butler had not invited the fugitives in or engineered their escape, but here they were, literally at his doorstep: a conundrum with political and military implications, at the very least. He could not have known — not yet — that his response that day might change the course of the national drama that was then just beginning. Yet it was not the first time, nor would it be the last, that an unanticipated bureaucratic dilemma would force the hand of history…