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Here Cary reminded the general about the Fugitive Slave Act: “Do you mean, then, to set aside your constitutional obligation to return them?”

Butler, dour though he usually seemed, must have found it hard to suppress a smile. This was, of course, a question he had expected. And he had prepared what he thought was a fairly clever—even a rather witty—answer.

“I mean to take Virginia at her word, as declared in the ordinance of secession passed yesterday,” 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.”

Ever the diligent scholar of jurisprudence, Butler had been reading up on his military law. In time of war, he knew, a commander had a right to seize and hold any enemy property that was being used for belligerent purposes. The three fugitive slaves, before their escape, had been helping build a Confederate gun emplacement. Very well, then—if the Southerners insisted on treating blacks as property, this Yankee lawyer would treat them as property, too. In that case, he had as much justification in confiscating Baker, Mallory, and Townsend as he would in intercepting a shipment of muskets or swords. Legally speaking, Butler’s position was unassailable.

There was, he admitted to Cary, one loophole: “If Colonel Mallory will come into the fort and take the oath of allegiance to the United States, he shall have his negroes.” The rebel officer was, to say the least, unlikely to do so.

If anything could have flustered the courtly headmaster-major, surely this conversation must have. Cary rode back to the Confederate lines having accomplished none of the aims of his errand. Butler, for his part, returned to Fortress Monroe feeling rather pleased with himself. Still, he knew that vanquishing the rebel officer with case law was only a minor victory, and perhaps a momentary one if his superiors in Washington frowned on what he had done.

The following day, a Saturday, Butler picked up his pen and resumed his twice-interrupted dispatch to General Scott. Certain questions had arisen, he began, “of very considerable importance both in a military and political aspect, and which I beg leave to hereby submit.”

But before this missive could even reach the general-in-chief’s desk up in Washington, matters at Fortress Monroe would become even more complicated. On Sunday morning, eight more fugitives turned up at Union lines outside the fort. On Monday, there were forty-seven, and not just young men now but women, old people, entire families. There was a mother with a three-month-old infant in her arms. There was an ancient Negro who had been born in the year of America’s independence.45

By Wednesday, a Massachusetts soldier would write home: “Slaves are brought in here hourly.”46

“WHAT’S TO BE DONE WITH THE BLACKS?” asked a headline in the Chicago Tribune. It was a question that more and more white Americans—in both the North and the South—were starting to pose.47

Before the attack on Sumter, the answer had seemed clear to many. The Tribune’s rival paper, the Chicago Times, expounded it in no uncertain terms:

Let the South have her negroes to her heart’s content, and in her own way—and let us go on getting rich and powerful by feeding and clothing them. Let the negroes alone!—let them ALONE!… ABOLITION IS DISUNION. It is the “vile cause and the most cursed effect.” It is the Alpha and Omega of our National woes. STRANGLE IT!48

For many Northerners, the outbreak of armed hostilities did little to change this—at least initially. In early May, the New York Herald praised Lincoln’s “humane war policy”—by which it meant “his respect … for the rights of ‘property’ ” as opposed to the “lawless disorganizers” within his own party who urged