Act of Justice: Lincoln's Emancipation Proclamation and the Law of War

6. Congress Acts and the Confederacy Responds

83 6 Congress Acts and the Confederacy Responds By the spring of 1862, the Lincoln administration had, as a matter of policy, accorded Confederate forces all the rights of legitimate belligerents under the laws of war. Through military commissions, the administration was enforcing the laws of war against unlawful combatants for the Confederacy. The administration was not, however, asserting the full belligerent right to seize enemy property or free enemy slaves. To senators Orville Browning and Charles Sumner, it appeared obvious that the laws of war should apply to enemy property, including “slave property.” From where the president sat, the problem was more complex. For one thing, his was not the only voice speaking for the Federal government on this issue. Congress had enacted legislation on Confederate property, and both the scope and constitutional basis of this legislation was less than clear. As the president had pointed out to General John C. Frémont, for the military to declare the slaves of the rebels to be free would go beyond the terms of existing legislation, and might even violate those laws. The restrictive policy on enemy slaves that President Lincoln required General Frémont to respect arose from precedents established by the War Department early in the Civil War in response to correspondence with General Benjamin Butler, a political general who owed his rank to his position as a prominent Massachusetts Democrat. In May 1861, Butler had been placed in command of Fortress Monroe, the Federally controlled enclave on the Chesapeake coast of Virginia. Shortly after assuming command, Butler reported to army headquarters that he had just been faced with questions “of very considerable importance both in a military and political aspect,” and requested the 84 Act of Justice government’s approval for the course he had taken. On May 23, three fugitives from slavery had approached the sentries at Fortress Monroe to seek refuge from their master, Colonel Charles Mallory. General Butler reported that he questioned them personally and “found satisfactory evidence that these men were about to be taken to Carolina for the purpose of aiding the secession forces there.” One of the men also claimed he “had left his master from fear that he would be called upon to take part in the rebel armies.” Furthermore, General Butler had been “credibly informed that the negroes in this neighborhood are now being 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.” Because he found the three fugitives to be “very serviceable,” and he “had great need of labor in [the] quartermaster’s department,” Butler decided to use them in the service of the U.S. Army. Finally, he reported his intention to “send a receipt to Colonel Mallory that [he] had so taken them,” as would be done “for any other property of a private citizen which the exigencies of the service seemed to require to be taken by [the army], and especially property that was designed, adapted, and about to be used against the United States.”1 Had he, General Butler asked, acted properly under the circumstances ? In other words, should the secessionists “be allowed the use of this property against the United States, and we not be allowed its use in aid of the United States?” Butler, with a lawyer’s skill, had set out the strongest possible case for keeping these fugitives in U.S. custody. Retaining them would both hurt the enemy—by making it harder to fortify their positions near Fortress Monroe—and benefit the United States—by using the fugitives’ labor in support of the fort’s quartermaster . Under nineteenth-century American law, these facts suggested at least two legal justifications for keeping the fugitives. First, property used in the commission of a crime could be seized and forfeited to the government. Slaves constructing Confederate fortifications might be considered property that was being used to help commit treason. Second , the Fifth Amendment to the Constitution allowed the Federal government to take private property for public purposes, if just compensation were paid. Working for the army quartermaster department would be a public purpose, and General Butler had reported that he was prepared to issue documentation to the slaves’ owners to allow them to claim compensation for the labor “taken” from them. Congress Acts and the Confederacy Responds 85 Winfield Scott, the Commanding General of the...