The Confiscation Act

Senator Lyman Trumbull of Illinois, a Radical Republican who supported slave emancipation as a possible means to win the war, introduced a bill on July 20 under which slaves being used for labor to aid the Confederacy would be confiscated by the Federal military. Trumbull’s fellow Radicals urged support for this measure after the Federal defeat at Bull Run.

Senators from the border states opposed this measure because they feared that it was the first step toward the Federal government forcing them to free their own slaves. James Pearce of Maryland called the bill an “act of emancipation, however limited and qualified.” John C. Breckinridge, former U.S. vice president and current Kentucky senator, warned that it would lead to “a general confiscation of all property, and a loosing of all bonds.” Despite the objections, no border state support was needed for the bill to easily pass the Republican-dominated Senate, 33 to 6.

Debate in the House of Representatives was more heated. Henry Burnett of Kentucky argued that if “the use of a slave, by the authority of the owners, in any mode which will tend to aid or promote this insurrection, will entitle that slave to his freedom, then that amounts to a wholesale emancipation of the slaves in the seceding or rebellious states.” John A. Bingham of Ohio, a Radical, expressed confidence that no U.S. court would ever interpret this law as granting “an emancipation of their slaves.”

John J. Crittenden of Kentucky did not believe it. He reminded his colleagues that if secession was impossible, as the Republicans maintained, then the South was still part of the United States. And ever since the nation’s founding, “the Congress of the United States had no power to legislate upon the subject of slavery within the United States… Does war change the powers of Congress in this respect?” If not, “Absence of all power of legislation in time of peace must be the absence of the same power at all times. You have no power, by your Constitution, to touch slavery at all.” After several heated exchanges and failed motions, the bill finally passed by a much narrower margin than in the Senate, 60 to 48.

John J. Crittenden of Kentucky | Image Credit:

President Abraham Lincoln came to the Capitol on the August 6 to sign bills into law before this special congressional session ended, and the Confiscation Act was presented to him. This would authorize Federal military commanders to seize all property, including slaves, from those “aiding, abetting, or promoting” rebellion against the U.S. It decreed in carefully worded language that “all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the (president) to cause the same to be seized, confiscated, and condemned.” The confiscated property “shall be condemned in the district or circuit court of the United States having jurisdiction.”

District attorneys would be empowered to “institute proceedings of condemnation,” and any revenue gained from the confiscated property would be given to the Federal government. If a citizen brought a case for confiscation to the district attorney, that citizen would be eligible to receive half the confiscated property’s value (this incentivized informers). Property subject to seizure included land, homes, livestock, farm equipment, businesses, cash, stocks, bonds, and most importantly, slaves (although not referred to directly as such).

Every slave owner aiding the Confederate military “shall forfeit his claim to such labor.” While this empowered Federal authorities to seize slaves as prizes of war, the law provided no explanation of what would be done to care for the slaves once confiscated. The law also did not provide for freeing those slaves; it only provided for taking them from disloyal masters.

Since this law mostly applied to slaves working in the Confederate armies as laborers, many assumed that those confiscated would be put to work at the same jobs for the Federal armies. This seemed to indicate that they would stay slaves, except now working for the Federal government rather than the Confederacy. Nevertheless, this law adopted the policy initiated by Major General Benjamin F. Butler at Fort Monroe, where he considered fugitive slaves to be “contraband of war” and refused to return them to their masters.

Supporters argued that confiscating property was an appropriate action to take against traitors. Opponents noted that it contradicted not only the recently-approved Crittenden-Johnson Resolution (stating that the war was being fought to preserve the Union and not to end slavery), but also the pledge Lincoln had made in his inaugural address not to interfere with slavery where it already existed. It was also asserted that the logic of seizing property from traitors had no merit because under the Constitution, property could not be seized until the owner was convicted in court. Thus, property would be confiscated without constitutionally guaranteed due process. This law could also pave the way towards Federal military forces waging war on civilians.

Lincoln hesitated to sign this bill because the Federal defeat at Bull Run had just demonstrated how difficult it would be to enforce a law that people would fight to the death to resist. According to Treasury Secretary Salmon P. Chase, “The President had some difficulty in consenting to approve the act of Congress. The Military situation was so discouraging that in the President’s view it would have been wiser for Congress to refrain from enacting laws which, without success in the field, would be null and void.”

Lincoln also had concerns that Federal courts would rule such a law unconstitutional. Also, the partisan nature in which the bill passed troubled many because it indicated that if the conflict became a war against slavery, Republicans could expect no support from any other political factions to fight it. But, as reported in the New York Times, the president “finally consented only upon the most urgent entreaties of prominent members of the Senate.”

Due to Lincoln’s qualms about the bill, and partly to keep up bipartisanship in the struggle, he gave little direction to its enforcement. Attorney General Edward Bates was a Missourian who favored freeing slaves only if they were immediately deported, and he sent no instructions to U.S. attorneys on how to proceed.

Radicals were disappointed with the result. James G. Blaine of Maine said, “It cannot be said that the results flowing from the measure, either in restraining the action of Southern men or in securing to the National Treasury money derived from confiscated property, were at all in proportion to the importance ascribed to it in the discussions of both branches of Congress.” George Julian of Indiana lamented that the first step toward slave emancipation was “regarded as a child of the same sickly ancestry” as the Crittenden-Johnson Resolution. But the first step toward abolishing slavery had been taken, and more would follow as the war dictated.


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