How Slavery Really Ended in America: A Year and a Half before Lincoln Issued the Emancipation Proclamation, Three Slaves Rowed across a Virginia River to a Union Fort-And Unwittingly Set in Motion the Demise of Slavery

By Goodheart, Adam | New York Times Upfront, October 3, 2011 | Go to article overview

How Slavery Really Ended in America: A Year and a Half before Lincoln Issued the Emancipation Proclamation, Three Slaves Rowed across a Virginia River to a Union Fort-And Unwittingly Set in Motion the Demise of Slavery


Goodheart, Adam, New York Times Upfront


On May 23, 1861, a little more than a month after the Civil War had begun at Fort Sumter, three young black men rowed across the James River in Virginia and asked for asylum at a Union-held citadel called Fort Monroe.

Frank Baker, Shepard Mallory, and James Townsend were field hands who--like hundreds of other slaves--had been pressed into service by the Confederates and compelled by their master, Colonel Charles Mallory, to build an artillery emplacement amid the dunes across the harbor.

After a week or so, the three slaves decided to try their luck, just across the water, with the Union.

When they made it to the fort, they were summoned to see the commanding general. He began asking them questions: Who was their master? Was he a rebel or a Union man? 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.

For Major General Benjamin Butler, who wasn't an abolitionist, the three slaves presented a problem. The laws of the United States were clear: In 1850, Congress had passed the Fugitive Slave Act, which said all fugitive slaves must be returned to their masters. It was still the law of the land--including in the states of the Confederacy, which, as far as the federal government was concerned, were still part of the United States.

More important, noninterference with slavery was the cornerstone of the Union's war policy. President Abraham Lincoln made this clear in his inaugural address: "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists," he said.

Butler's Response

Yet to Fort Monroe's commander, the fugitives seemed like a novel case. The enemy had been using them to construct a battery aimed directly at his fort--and no doubt would put them right back to work if he returned them. They had offered him some highly useful military intelligence. And Virginia was officially in rebellion against the federal government, having seceded along with several other Southern states--a total of 11 by that summer.

General Butler, who had been a lawyer in Massachusetts, could not have known that his response that day would change the course of American history.

Butler had barely begun writing a report before he was interrupted by another message: A Confederate officer, under flag of truce, had approached the causeway of Fort Monroe. The Virginians wanted their slaves back. Butler rode out to meet Major John Baytop Cary of the Virginia Militia.

"I am informed," Cary said, "that three Negroes belonging to Colonel Mallory have escaped within your lines.... What do you mean to do with those Negroes?"

"I intend to hold them," Butler said.

"Do you mean, then, to set aside your constitutional obligation to return them?"

Butler had prepared what he thought was a fairly clever answer. "I mean to take Virginia at her word," he said. "I

am under no constitutional obligations to a foreign country, which Virginia now claims to be."

"But you say we cannot secede," Cary retorted, "and so you cannot consistently detain the Negroes."

"But you say you have seceded," Butler said, "so you cannot consistently claim them. I shall hold these Negroes as contraband of war, since they are engaged in the construction of your battery and are claimed as your property."

Butler had been reading up on military law. In time of war, he knew, a commander had a right to seize any enemy property that was being used for hostile purposes. The three fugitive slaves, before their escape, had been helping to build a Confederate gun emplacement. If the Southerners insisted on treating blacks as property, this Yankee lawyer would treat them as property too.

Cary, frustrated, rode back to the Confederate lines. …

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