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When slaves were contraband of war

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As we noted in our editorial last week, the Emancipation Proclamation 150 years ago did not free all the slaves, only those in secessionist states, for the Constitution protected slavery. The only basis President Lincoln found for freeing slaves in rebels states was as commander-in-chief — to protect Union forces against attack by slaves conscripted by the Confederate states.

The abolition of slavery was a step-by-step, pragmatic process, filled with moral ambiguities. The Emancipation Proclamation did not free slaves on the grounds that slavery was inhuman and universally abhorrent. No!

This pragmatic, moral half-way house found its origin in another little known fact about the Civil War.

Early on, after Virginia had elected to join the Confederacy (thus convincing native Virginian Robert E. Lee that he could not respond to Lincoln’s call to lead the Union forces), a strange thing happened at the tip of the peninsula in Virginia.

“One night,” as Doris Kearns Goodwin describes it in Team of Rivals, “three fugitive slaves arrived at [Fort Monroe] after escaping from the Confederate battery that their master had ordered them to help build.” An agent of the slaves’ owner came to Gen. Benjamin Butler, demanding the slaves’ return.

After all, slavery was legal under the Constitution, slaves were property, their property owner had the right to them, and Lincoln, at least at the time, objected to the extension of slavery into new territories but upheld the right of slave owners to reclaim their fugitive slaves. Gen. Butler, however, refused to return these three fugitives to their owners. He reasoned:

These slaves were exploited to endanger Union troops. They were contraband of war. They should no more be returned than captured enemy guns, mules or ordnance, for example. Thus began the first source of freedom for slaves, eventually leading thousands of fugitive slaves to join Union forces, prefiguring the Emancipation Proclamation itself.

Butler’s logic resonated in still another oddity of the Civil War: the great emancipator Lincoln’s decision to suspend the writ of habeas corpus in selected instances of harm wrought by Confederates. Here, too, the South demanded adherence to the Constitution, which forbade arbitrary arrest. Here, too, Lincoln sidestepped the great moral issue yet paradoxically advanced it. He reasoned:

The South, in seceding from the Union, has rejected the Constitution. Yet, in objecting to the suspension of the writ of habeas corpus, the South invoked and desired the protections of the Constitution! As Lincoln put it: An insurrection had subverted the “whole of the laws    . . . are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

This reminds us of Palestinians who reject Israel’s right to exist yet demand rights before Israel’s High Court. Lincoln saw through this “logic.” So should Israel.

Copyright © 2013 by the Intermountain Jewish News

Last Updated ( Thursday, 10 January 2013 03:13 )  

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