Prelude
When the American Civil War began in April 1861, many believed that the conflict, like other early American rebellions (e.g., Shays’ Rebellion, the Whiskey Rebellion, Fries’s Rebellion, and the Dorr Rebellion) would be short-lived. As a result, neither Congress nor the war department had crafted a policy regarding the disposition of fugitive and captured slaves when the fighting began.
The Confiscation Act of 1861
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, national leaders soon became concerned about the advantage that the use of forced labor yielded the Confederacy. Just a few weeks later, on August 6, 1861, Congress enacted legislation entitled An Act to Confiscate Property Used for Insurrectionary Purposes. Despite reservations about the constitutionality of the law and concerns about upsetting residents of border states, President Abraham Lincoln signed the bill on the same day. More commonly known as the Confiscation Act of 1861, and later as the First Confiscation Act, the law declared fugitive slaves used or employed 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.
Stepped-up Enforcement
As the war dragged on, federal officials stepped up their attempts to deprive the Confederacy of services being rendered by slaves. Led by Illinois Representative Owen Lovejoy and Illinois Senator Lyman Trumbull, members of both houses of Congress began exploring options to strengthen the First Confiscation Act as early as December 1861. Their efforts resulted in the enactment of an article of war on March 13, 1862 that prohibited all officers or persons in the military or naval service of the United States from returning fugitive slaves to their owners, under threat of being “dismissed from the service.”
Confiscation Act of 1862
Beyond beefing-up enforcement of the first act, Congressmen were also exploring ways to expand its scope. Throughout the spring of 1862, lawmakers crafted a more expansive bill. On June 28, the Senate approved An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes. More commonly known as the Confiscation Act of 1862, and later the Second Confiscation Act, the legislation prescribed harsher punishments for southern insurrectionists. Senators revised the bill in July after President Lincoln threatened a veto because of concerns about its constitutionality. The full Congress enacted the revised legislation on July 16, and the president approved the bill on the same day.
The first few sections of the Second Confiscation Act specifically targeted Confederate officeholders, military officers, persons who had taken an oath of allegiance to the Confederacy, or any citizen of a loyal Union state who had given aid or support to traitors to the United States. Specifically, the law declared that people convicted of these acts were subject to punishment up to, and including death and imprisonment, besides the seizure of their property, and the liberation of their slaves.
Section 5 instructed “the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of” Confederate officials, military officers, and persons who had taken an oath of allegiance to the Confederacy. Further, it directed the president “to apply and use the same and the proceeds thereof for the support of the army of the United States.”
Section 6 provided people in rebellion against the United States, or aiding the rebellion (other than those mentioned earlier in the act), with a grace period of sixty days to “cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States. All of “the estate and property, moneys, stocks, and credits” of people failing to comply were subject to seizure by the president.
Section nine of the act cleared up the ambiguity created in the First Confiscation Act regarding the status of fugitive or captured slaves. It declared that slaves captured by Union forces or escaping from Rebel forces while being used to aid the rebellion “shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.” (emphasis added).
Beyond clarifying the status of so-called contrabands, this section of the legislation was another significant step toward universal emancipation. While it did not free slaves of owners who remained loyal to the government, it emancipated those owned by people who remained enemies of the state if or when they escaped or were captured.
Section 10 insured the newly created status of former slaves freed under section 9 by stating that “no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service.”
Section 11 struck a blow for human rights, and the Union war effort, by asserting “That the President of the United States is authorized to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion, and for this purpose he may organize and use them in such manner as he may judge best for the public welfare.” This section opened the door for the enlistment of African-Americans as soldiers, as opposed to their former roles as menial laborers for the military. As the Civil War’s goals extended to encompass the abolition of slavery, African-Americans enthusiastically responded to this section, helping to shape their own destiny.
The final section of the legislation was a testament to the racist attitudes that existed in 19th Century America, even amongst those willing to fight for the abolition of slavery, including President Lincoln. This section authorized the president “to make provision for the transportation, colonization, and settlement, in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen.” While several thousand of the millions of slaves liberated by the Civil War eventually opted for some form of colonization, the vast majority chose to stay in their adopted homeland.
Aftermath
Much like its predecessor, the Second Confiscation Act was only marginally successful. Federal forces confiscated minimal Confederate property, and President Lincoln’s Emancipation Proclamation soon rendered the act superfluous. Lincoln’s executive order, first issued five days after the Battle of Antietam was much more expansive because it liberated all slaves within Confederate states regardless of the allegiance of their owners. Still, the Confiscation Act of 1862 remains a significant, if underappreciated, advancement toward the abolition of slavery in the United States.