The Confiscation Act of 1861 — the First Confiscation Act

August 6, 1861

The Confiscation Act of 1861 was signed by President Lincoln on August 6, 1861. It declared fugitive slaves used or employed in aiding, abetting, or promoting war against the United States to be contraband and it stripped the proprietors of such slaves of their rights to ownership.

John Armour Bingham, Ohio, Congressman, Portrait

Ohio Congressman John Armour Bingham wrote the final version of the Confiscation Act of 1861. Image Source: Library of Congress.

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Summary of the Confiscation Act of 1861

The Confiscation Act of 1861 was a law that declared fugitive slaves who were used to aid the Confederate war effort were contraband — illegal goods — and could be confiscated by Union forces. The owners of contraband slaves also lost all rights to ownership. The act only applied to slaves who were captured by Union forces or who escaped the South and crossed behind Union lines. Although it was an early step toward the emancipation of slaves in the southern states, the law was difficult to enforce and was eventually strengthened by additional legislation, including the Confiscation Act of 1862.

Confiscation Act of 1861 Quick Facts

  • Long Title: An Act to Confiscate Property Used for Insurrectionary Purposes.
  • Also Known As: The Confiscation Act of 1861 is also known as the First Confiscation Act.
  • Written By: The final version of the act was written by John A. Bingham.
  • Purpose: The purpose of the law was to keep the South from using slave labor in the war effort.

Confiscation Act of 1861 Dates

  • Date Passed by the House: The act passed the House of Representatives on August 3, 1861, by a vote of 60-48.
  • Date Passed by the Senate: The act passed the Senate on August 5, 1861, by a vote of 24-11.
  • Date Signed by the President: The act was signed into law by President Abraham Lincoln on August 6, 1681.

History of the Confiscation Act of 1861

On May 23, 1861, three slaves, Frank Baker, Sheppard Mallory, and James Townsend, commandeered a rowboat and escaped during the night to federally controlled Fortress Monroe near Hampton, Virginia. The Fortress was garrisoned by Union forces, under the command of Major General Benjamin Butler.

Benjamin F Butler, Fugitive Slaves, Fortress Monroe
This illustration depicts the escaped slaves with General Benjamin Butler. Butler is seated at the table with the sword in his hand. Image Source: New York Public Library Digital Collections.

When Major Cary, an agent for the owner of the three slaves, Colonel Charles K. Mallory, appeared at the fort and demanded their return as mandated by the Fugitive Slave Act of 1850, Butler refused. A distinguished lawyer before the war, Butler argued that the Fugitive Slave Act “did not affect a foreign country, which Virginia claimed to be.” Butler also declared that because the Confederacy had used the three slaves to support their war effort, he considered them to be “contraband of war” as provided by international law. In effect, the three men became the property of the United States government. Butler’s stance is often referred to as the “Fort Monroe Doctrine.”

Butler’s predicament and subsequent solution illustrate the ambiguity that existed regarding the status of captured or escaped slaves after the Civil War began. Like other early American insurrections — such as Shays’ Rebellion, the Whiskey Rebellion, Fries’s Rebellion, and the Dorr Rebellion —  many people expected southern secession to be short-lived. As a result, neither Congress nor the war department had developed a policy regarding fugitive and captured slaves by the time the three escapees landed at Butler’s doorstep.

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Passage of the Confiscation Act of 1861

As the war progressed, and other Union officers faced similar situations, the war department endorsed Butler’s “contraband” solution. When the Confederate victory at the First Battle of Bull Run signaled that the Southern insurrection might be more prolonged than first expected, Congress soon became concerned about the advantage that the use of forced labor yielded to the Confederacy. 

In July 1861, Illinois Senator Lyman Trumbull spearheaded an effort in Congress to deprive the Confederacy of the use of slave labor in support of the rebellion. Trumbull introduced his bill to the Senate on July 15, 1861. Despite opposition from Democrats and border state politicians, legislation codifying Butler’s actions at Fort Monroe quickly moved through both houses.

Lyman Trumbull, Congressman, Illinois, Portrait
Illinois Congressman Lyman Trumbull. Image Source: Library of Congress.

Ohio Congressman John A. Bingham crafted the language of the completed bill entitled “An Act to Confiscate Property Used for Insurrectionary Purposes.” More commonly known as the Confiscation Act of 1861, and later as the First Confiscation Act. 

The Senate passed the bill on July 22, 1861, by a vote of 33-6. The bill was passed on August 3, 1861, by the House of Representatives — with an amendment — which sent it back to the Senate. The Senate quickly approved the House version of the bill on August 5, 1861, by a vote of 24-11.

Despite reservations about the constitutionality of the law and concerns about upsetting residents of border states, President Abraham Lincoln signed the bill on August 6, 1861.

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Provisions of the Confiscation Act of 1681

The Confiscation Act of 1861 stipulated that all property — including slaves — “used or employed, in aiding, abetting, or promoting…insurrection or resistance to the laws” of the United States “to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned.”

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The legislation further specified that “during the present insurrection against the Government of the United States,” any slave owner who “required or permitted” his chattel “to take up arms against the United States, or to work…in any military or naval service whatsoever, against the Government and lawful authority of the United States…shall forfeit his claim to such labor.”

In simple terms, the law declared fugitive slaves used in aiding, abetting, or promoting war against the United States to be contraband and, therefore, subject to seizure by the federal government. In addition, the legislation stripped the proprietors of such slaves of their rights to ownership.

Effects of the Confiscation Act of 1861

The Confiscation Act of 1861 was a significant first step toward universal emancipation, but it was extremely limited in scope and had several shortcomings. The act affected only slaves captured by federal forces or who escaped behind Union lines. Of that group, it considered only slaves whose labor directly aided or abetted the Confederate war effort to be contrabands.

Some Union military commanders were hesitant to enforce the law, due to the difficulty of proving in court whether or not fugitive slaves contributed to the Confederate war effort. 

General Benjamin F Butler, Portrait
Major General Benjamin Butler. Image Source: Library of Congress.

Other officers ignored the law because they were not sympathetic to emancipation, or because they did not welcome the added burden of caring for hordes of contrabands while trying to wage war.

The final and perhaps greatest shortcoming of the legislation was that it left the legal status of the contraband slaves in limbo. The act divested the slave owners of their property, but it stopped short of explicit emancipation. 

It would take a succession of further legislation, executive orders, and constitutional amendments during the next few years to emancipate and legally cement the rights of all former slaves in the United States.

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Significance of the Confiscation Act of 1861

The Confiscation Act of 1861 was an important step in the emancipation of enslaved people in the United States of America. Although it did not provide complete freedom to escaped or captured slaves, it did, under certain circumstances, release them from their owners.

Frequently Asked Questions About the Confiscation Act of 1861

What did the Confiscation Act of 1861 do?

The Confiscation Act of 1861 authorized the federal government to confiscate escaped or captured sales from Southern slave owners. The law classified the slaves as contraband — illegal property — if they were involved in the Confederate war effort against the United States.

Why did President Abraham Lincoln hesitate to sign the Confiscation Act of 1861?

President Abraham Lincoln was hesitant to sign the Confiscation Act of 1861 for two main reasons. First, he was concerned about the constitutionality of the law. Second, he was concerned some of the border states — especially Kentucky and Missouri — would respond by seceding from the Union and joining the Confederacy.

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Citation Information

The following information is provided for citations.

  • Article Title The Confiscation Act of 1861 — the First Confiscation Act
  • Coverage August 6, 1861
  • Author
  • Keywords Confiscation Act of 1861, Benjamin F. Butler, John A. Bingham, Lyman Trumbull, Fortress Monroe, Contraband Slaves
  • Website Name American History Central
  • Access Date December 8, 2022
  • Publisher R.Squared Communications, LLC
  • Original Published Date
  • Date of Last Update December 7, 2022

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