Analysis: The Confiscation Acts

Date: August 16, 1861; July 17, 1862

Author Name: Thirty-Seventh US Congress

Genre: law

Summary Overview

The Confiscation Acts were laws passed by the Thirty-Seventh Congress of the United States that allowed Union soldiers to confiscate any property used by citizens or Confederate soldiers in furtherance of the war effort. In general, the Confiscation Acts were largely reformulations of standard wartime provisions calling for the confiscation of property used by opposing armies; however, the Confiscation Acts were controversial and unique in that they called for the removal of slaves from rebel citizens. The First Confiscation Act of 1861 gave Union generals and commanders the right to free slaves who had been used to aid the Confederate Army, though Abraham Lincoln and the US legislature had not committed to outlawing slavery as a whole throughout the South.

During the second session of the Thirty-Seventh Congress, a coalition of radical senators proposed a new version of the Confiscation Act that called for Union forces to confiscate—or, in essence, free—any slaves owned by rebels they encountered, even if these slaves were discovered away from any active arena of combat or were not used directly to aid the war effort. The more liberal, abolitionist version of the law was opposed by a conservative coalition in Congress that favored property rights and believed that slaves should be returned to their owners, as refusing to do so constituted theft of property. A group of moderate senators intervened to reformulate the Second Confiscation Act in 1862 to create a compromise between these two opposing legislative positions. Ultimately, the Second Confiscation Act was ineffective at countering the rebel use of slaves during combat and was not a powerful tool for those seeking abolition. The importance of the Second Confiscation Act lies partly in the debate it raised in Congress regarding the rights of freedom and property, which ultimately led to the adoption of laws declaring that humans could not be considered property.

Document Analysis

The text of the First Confiscation Act begins by announcing the purpose of the law, which is to “confiscate Property used for Insurrectionary Purposes.” According to the primary provision of the law, “any property” used directly or indirectly for insurrection, or purchased with the goal of aiding insurrection or in support of an individual who then supported insurrection, would be, upon the authority of the president, “seized, confiscated, and condemned.”

In legal terminology, the act of condemning property means to remove it from private ownership and place it within public use. In general, property that is condemned in this way is not transferred to public ownership but rather sold or converted so as to benefit the public. The Confiscation Act of 1861 gives state attorneys general the power to determine the method in which any seized property would be used but states that the use of such property must be for the good of the United States public.

Section 4 of the act specifically details that “any person claimed to be held to labor or service under the law” will be freed from these obligations, and the person claiming ownership of this labor or service will forfeit their rights. In essence, this section of the bill attacks labor contracts holding individuals in service to an employer who supports the insurrection; it calls for these contracts, however they came about, to be nullified by the use of labor to support rebellion.

At the time the First Confiscation Act was written, slaves were classified as property, and the provisions of the law calling for the confiscation of property were therefore considered to apply equally to slaves. The question remained of how the Union would handle the condemnation of the slaves, as the law called for property to be used to aid the public. The more liberal, abolitionist members of the Thirty-Seventh Congress, including Lyman Trumbull from Illinois, wanted slaves found aiding the Confederacy to be freed upon transfer to a state where slavery was prohibited. This aspect of the law was contrary to Lincoln’s inaugural promise not to interfere with the legality of slavery and frightened many of the conservative and moderate members of Congress, who wished to avoid any act that might influence other states with powerful slave-owning lobbies to join with the Confederate secession.

The Confiscation Act of 1861 passed with a strong majority in both houses, though Lincoln was initially reluctant to sign the bill into law. What convinced Lincoln, and many of the members of Congress who took a more moderate stance on slavery, was the fact that slave labor allowed Confederate forces to bolster their armies. The Union defeat at the First Battle of Bull Run made this imbalance clear and called for strong legislative provisions. Ultimately, the Confiscation Act of 1861 was ineffective, as Union commanders made few confiscations and officers serving in border states like Missouri continued to return captured slaves rather than confiscating or freeing them as the law required.

Immediately after passing the Confiscation Act of 1861, a coalition of more liberal members of Congress began lobbying for a stronger version of the law, one that specifically targeted the institution of slavery. Lyman Trumbull and Maine senator William Fessenden, both of whom had strong personal commitments to abolition, spearheaded a new version of the bill that called for slaves to be freed wherever Union soldiers encountered them, even if the slaves in question were not being used directly to support the insurrection.

By 1862, it was clear that the dispensation of slaves was becoming an increasing problem. Slaves fled from their owners across Union lines as the Union Army advanced, hoping to find freedom. Union commanders differed in their approach to the problem, with some providing refuge to the fugitive slaves and others returning them to Confederate forces to be returned to their owners. In addition, slaves were still being used to bolster both the labor force and the military on the Confederate side, and this advantage was a continuing concern for Union commanders.

Trumbull and Fessenden’s more radical version of the Confiscation Act was opposed by a coalition of members of Congress who believed that the act violated constitutional rights. Specifically, opponents of the law were concerned that it called for the confiscation of property without due process in the courts. The debate continued until moderate members of Congress assisted in formulating a version of the law that was seen as a compromise between the two positions. The Confiscation Act of 1862 was adopted into law on July 17, though the final version was still seen as too radical by some in Congress.

The Confiscation Act of 1862 begins with the declaration that the law was formulated “to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes.” The primary purpose of the law, provided in the next section, clearly states that “every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free.”

Orville Hickman Browning, who was strong supporter of abolition but took a moderate legislative stance on the issue, believed that the second act was unconstitutional because it allowed for the confiscation of property that legally belonged to individuals without first requiring that the individuals be found guilty by a court decision. In Browning’s assessment, the constitutional rights guaranteed to all citizens must still protect citizens of the Confederate states, though they were currently participating in an insurrection. The Supreme Court upheld the constitutionality of the Confiscation Act of 1892, stating that extreme provisions are necessary in wartime that may violate the rights extended to the populace in other circumstances. Specifically, the Supreme Court ruled that in the case of the Civil War, the United States government, as manifested through the Union Army, had the rights both of a governing body and of a “belligerent,” which is legally defined as a political party involved in warfare. As such, the Supreme Court ruled that the United States government was free to exercise its power in ways falling under either of these categories.

Sections 2 through 8 of the Confiscation Act of 1862 explain that the provisions of the law go into effect immediately but do not affect the prosecution or sentencing of any individuals arrested or convicted of treason before the passage of the law. In addition, these sections of the act state that the president of the United States has absolute discretion to command the seizure and condemnation of any and all property, items of value, or monetary holdings of any individual who takes part in rebellion against the United States. These sections had no direct bearing on the standing of slaves and were designed to send a message to any considering participating in the rebellion: the Union would consider their rights to property ownership forfeit and could, at any time thereafter, claim ownership of any properties and monetary holdings belonging to such individuals.

Sections 9 and 10 return to the issue of slaves directly and formally restate the position that all slaves confiscated will be freed and will not be, at any time, returned to slavery. Section 9 states that all slaves occupying areas utilized by rebel forces, even if not involved in assisting rebel armies, will be considered subject to confiscation and will be freed from slavery. Section 10 states that no Union commanders or soldiers will return escaped slaves to their former owners; it also states that slaves who escape their bondage and arrive in Union territory will also be freed from the conditions of slavery if commanding officers believe that the slaves were owned by soldiers or persons aiding the Confederate insurrection.

Sections 9 and 10 of the Confiscation Act are significant, in that they directly address the responsibilities of Union forces regarding escaped slaves and slaves owned by citizens engaged in the rebellion. In essence, these sections of the law are in keeping with the hopes of the abolitionists in Congress who wanted to use the Confiscation Acts to free slaves held by Confederate owners and provide a route through which slaves could earn their freedom by fleeing Confederate territories.

Section 11 of the Confiscation Act ascribes to the president the right to “employ” former slaves and all other persons of similar descent to serve in the military in furtherance of the Union cause. While this section of the law places limits on the freedom given to the former slaves, stating that they were required to serve in the Union Army at the president’s discretion, the wording of the section is significant in that the law refers to these individuals as “persons of African descent.” In her book From Property to Person (2005), historian Silvana Siddali sees this section as marking a turning point in the legal, legislative approach to slavery, in terms of viewing African Americans as people rather than property.

Section 12 of the Confiscation Act reflects differing opinions over what should be done with the former slave population after the conclusion of the war. While some envisioned former slaves as being integrated with the rest of the population, others, for various reasons, believed that this was not a tenable solution to the issue. Some felt that the slaves should be relocated, in a manner similar to that used to relocate Native Americans. Section 12 states that the president may “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… as may be willing to emigrate.” Some in the government envisioned the United States transporting former slaves to the tropical islands of the Caribbean or other locations where former slaves had previously established colonies. While resettlement was not widely utilized after the Civil War, the members of the Thirty-Seventh Congress included the provision in the bill, planning for one of several potential measures that might be used to handle relocation of the former slave population.

The Confiscation Act of 1862 did not result in a large number of confiscations, and President Lincoln did not aggressively enforce adherence to the law among his military commanders. Historians have largely dismissed the provisions of the Second Confiscation Act as ineffective in addressing either the practical interests of those hoping to prevent the escalation of the conflict or the more radical goals of the abolitionists in Congress. Lincoln, for his part, was reluctant to support the law, and provisions were included in section 13 of the bill that allowed him to grant pardons to any individual whose property or assets had been seized as a result of the Confiscation Act. The moderate and conservative members of Congress considered the Confiscation Act to be a temporary initiative that would be repealed when the war was over, but the ultimate significance of the legislation came in the debate it stimulated in the legislature. The provisions of the law extending the rights of former slaves and the provisions that protected the rights of escaped slaves were significant and opened the door to an increasing exodus of slaves from the South. Ultimately, the failure of the act was twofold, in that it was not adequately enforced and it only granted freedom to slaves who were owned by “rebels,” thus leaving considerable discretion to determine whether a slave should be freed.

What the Confiscation Act failed to achieve was ultimately accomplished by an executive order known as the Emancipation Proclamation, issued by President Lincoln in January of 1863. Utilizing his authority as commander in chief of the armed forces, Lincoln declared that all remaining slaves in Confederate territories were free in the eyes of the legitimate American government. What followed was a major exodus of slaves into Northern territories, weakening Confederate forces considerably. The achievements of the Emancipation Proclamation and the Thirteenth Amendment were largely the product of legislative and governmental debates that were initiated in the wake of the Confiscation Acts.

Bibliography

Hamilton, Daniel. The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War. Chicago: U of Chicago P, 2007. Print.

Siddali, Silvana R. From Property to Person: Slavery and the Confiscation Acts, 1861–1862. Baton Rouge: Louisiana State UP, 2005. Print.

Syrett, John. The Civil War Confiscation Acts: Failing to Reconstruct the South. New York: Fordham UP, 2005. Print.