Contraband of War
During wartime, it is generally considered acceptable that any supplies or goods delivered to the enemy are subject to seizure and forfeiture. Contraband of war is the phrase most often used to refer to the seized goods. Absolute contraband can refer to any goods that could be converted into instruments of war, while more benign goods, especially those intended for civilian use only, are sometimes referred to as conditional contraband.
The most famous use of the term, contraband of war, happened during the American Civil War, when slaves who had escaped from the south were accepted as contraband of war in the north. A historic documents form 1861 details the exact circumstances under which this occurred. A correspondent of the Boston Journal wrote of the incident while he was at Fort Monroe in Virginia.
The unnamed correspondent relates: “Yesterday morning three negroes came to the picket-guard and gave themselves up.” Frank Baker, James Townsend and Sheppard Mallory were slaves owned by one Colonel Mallory, a rebel officer. Mallory was about to force the slaves into the defense of the South when they escaped. Union General Butler reasoned that the slaves constituted contraband of war, and could therefore be kept by the Union forces.
Mallory sent a representative, Major Cary, to request return of the slaves, stating that under the Fugitive Slave Act, Butler had no right to keep them. The correspondent relates Butler’s pithy response:
“Answer was made that the slave act was not of force, as to a foreign country, which Virginia claimed to be, and she must count it among the infelicities of her position, that so far, at least, she was taken at her word.”
In August of the same year, the US Congress made the practice legal with the passage of the Confiscation Act of 1861.
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