Enacted by Congress and signed by President Lincoln on August 6, the Confiscation Act of 1861 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.
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. When Major Cary, an agent for their owner, Colonel Charles K. Mallory, later appeared at the fort and demanded their return as mandated by the Fugitive Slave Act of 1850, Major General Benjamin 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 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 drafted a policy regarding fugitive and captured slaves by the time the three escapees landed at Butler’s doorstep.
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 (July 21, 1861) 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 the Confederacy. In late July, Illinois Senator Lyman Trumbull spearheaded an effort in Congress to deprive the Confederacy of the use of slave labor to bolster the rebellion. Despite opposition from Democrats and border state politicos, legislation codifying Butler’s actions quickly moved through both houses.
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 approved the legislation (24–11) and the House followed suit (60–48) on August 6, 1861. Despite reservations about the constitutionality of the law and concerns about upsetting residents of borders states, President Abraham Lincoln signed the bill on the same day.
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.”
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 plainer language, 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.
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.
Legal hassles inherent in determining whether fugitive slaves had or had not directly aided or abetted the Confederate cause discouraged some Union military commanders from trying to enforce the law. 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 status of the contrabands 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.