General Lee's Constitutional Outlook
It was mid October of 1864 when the Confederate War Department instructed General Robert E. Lee to open correspondence with Lieutenant General Ulysses S. Grant regarding the rules of war pertaining to certain unorthodox decisions his subordinate, Major General Benjamin F. Butler had made in regards to labor in the canal at Dutch Gap.
By news of Confederate deserters, the Commander of the Army of the James was inclined to believe that a certain number of Negro soldiers were being returned to slavery upon their capture. One such claim of an officer in command of a camp outside of Richmond had a number of these men in his custody and invited slave owners to come forward and reclaim their property. As a result, Dutch Gap became a labor camp for an equal number of Confederate prisoners to those being wrongfully treated in and around Richmond.
General Lee reminded the General in Chief of the Federal Armies, the Confederate Government's policy toward this particular class of people when captured by his forces. All Negroes in the military service or Naval service of the United States who are not identified as property of the citizens or residents of any Confederate States are certainly regarded as prisoners of war and are proper subjects for exchange. No labor would be exacted from such prisoners from the Confederate authorities. Those Negroes, who owe service to citizens or residents of the Confederate States and who through compulsion, persuasion or of their own accord leave their owners and are placed in the service of the United States military or Naval service, occupy a completely different position.
Nothing had changed constitutionally since the Southern States stepped out of the Union. Black slavery was a guaranteed right to the citizens when the Federal Union was remained one country, through the signing of the Declaration of Independence and into the ratification of the United States Constitution. Those escaping their servitude and enjoining the federal military in the field, if captured, are still property of the Confederate States by constitutional right, which establishes the organic law of the land.
General Lee further pointed out that during the Revolutionary War against Britain, the Continental Army likewise employed slaves as soldiers; those captured by the British Forces, when exchanged were likewise returned to their masters. Bound by the same constitutional obligations, the obtaining or abduction of the Negro slave into the services of the United States Army does not preclude that individual being returned to his rightful owner when captured.
The Negroes that Major General Benjamin Butler was referring to, fifty nine in all were discovered to be former slaves. It was these former slaves that had been sent to work upon the fortifications about Richmond. The affidavits of James F. Knight, Company F, Fifty ninth Virginia Regiment and Chapman Dinking of the Thirty eighth North Carolina, two deserters, were forwarded along as proof that the Negroes viewed by them were obtained from Libby Prison and put to work on the fortifications at Fort Gilmer. As a result of these things, the commanding general approved of the retaliatory orders proposed by his army commander.
In the employment of these slaves, the Commander, Army of Northern Virginia felt obligated to inform his federal counterpart that these Negroes were not in any way exposed to any shelling or small arms fire between the hostile lines. Yet, the employment of his soldiers as laborers in Dutch Gap left them well within range of the Confederate guns.
By receipt of General Lee's correspondence, Lieutenant General Grant became convinced that the federal soldiers captured would be withdrawn from the entrenchments at Fort Gilmer and respectfully ordered Major General Benjamin Butler to withdraw the Confederate prisoners from Dutch Gap. The slavery question was a political issue of which the General in Chief would not comment on. In regards to the right of the Confederate citizen having their property returned to them, General Grant informed General Lee that he refused to argue the facts in that case, therefore he left it alone.
Until the conflict came to a termination, the federals would not dispute constitutional issues in territory held by a belligerent force still obligated to defend what the law itself had guaranteed them over the past seventy seven years. These black prisoners, positively identified as property belonging to Southern citizens were fair game to be returned from hence they came. Although trained to wear the federal blue, pending their status prior, the Negro soldier would have to content himself with rolling the dice and taking the chance, was he to be treated with the honor of a combatant, or languished to submit once again to that from which he escaped.
Editors Note: Mr.Moran is a feature writer on the US-Civilwar.com writers staff. He may be contacted with your questions, ideas and requests at firstname.lastname@example.org