Illinois Senator Lyman Trumbull, a prominent Radical Republican, sponsored an amended version of the 1861 Confiscation Act that came up for debate just before Congress adjourned. Unlike the original law, which only provided for freeing slaves who were actively employed in the Confederate military, this version included provisions for freeing all slaves who belonged to anyone with Confederate sympathies.
The bill classified all Confederates as traitors in accordance with a 1790 statute. Each “traitor” had 60 days to stop “aid, countenance, and abet such rebellion, and return to his allegiance to the United States.” The president would be required to issue a “public warning and proclamation” explaining this provision, at which time the 60-day countdown would begin. For those who failed to comply:
“That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on (or) being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.”
This would potentially affect 90 percent of the slaves in the Confederate states and, to many southerners, it validated their accusation that the Republicans had sought to free their slaves all along. This bill would also finally resolve the issue of whether Federal army commanders should allow fugitive slaves to come into their camps.
The freed slaves received no guarantees that their rights would be protected; rather, the president was authorized to deport them to “some tropical country beyond the limits of the United States… 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.”
Furthermore, if a Confederate did not submit to Federal authority, “the estate and property, moneys, stocks, and credits of such person shall be liable to seizure” by the Federal government for the rest of his life in what was called a “bill of attainder.” Radical Republicans pushed for taking the land “beyond the lives of the guilty parties,” but Lincoln made it known that such a provision would be unconstitutional and spiteful, and he would veto the entire bill if this provision was not removed.
Slaves escaping from bondage in the loyal slave states (i.e., Delaware, Maryland, Kentucky, and Missouri) would continue to be returned to their masters (if those masters could prove their loyalty to the U.S.) in accordance with the Fugitive Slave Act. Lincoln hoped this assurance would keep these states in the Union, and that a promise of gradual, compensated emancipation might persuade Virginia and Tennessee to return to the Union.
The House of Representatives estimated that this law could affect six million people and result in the confiscation of $5 billion in property. But it had no effective enforcement mechanism, and its conflicting references to the Confederacy as both a region rebelling against the Federal government (i.e., Confederates were “traitors”) and an independent nation (i.e., slaves were “captives of war”) made its constitutionality extremely dubious. Moreover, Lincoln was in the process of formulating his own emancipation plan under his wartime powers as commander-in-chief, which he believed to be more constitutional than a congressional decree and would do less to hinder Republicans’ chances in the midterm elections.
The bill passed both houses of Congress on July 12, and it was presented for the president to sign into law two days later. Many congressmen speculated that Lincoln would veto the bill, which is what Secretary of State William H. Seward advised. Illinois Senator Orville Browning told Lincoln “that it was a violation of the Constitution and ought to be vetoed… whereas if approved it would form the basis upon which the democratic party would again rally, and reorganize an opposition to the administration.” Some feared that the measure would drive the loyal slave states out of the Union.
Lincoln asked Congress to delay its adjournment so that “I may return (the bill) with objections; and if I should, I wish Congress to have the opportunity of obviating the objections or of passing it into a law notwithstanding them.” He spent the following day drafting a memorandum of objections, writing that “the severest justice may not always be the best policy.”
The president remained opposed to the provision that “declares forfeiture, extending beyond the lives of the guilty parties; whereas the Constitution of the United States declares that ‘no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.’” Lincoln also questioned the provision freeing slaves of non-repentant Confederates after 60 days. He wrote:
“It is startling to say that Congress can free a slave within a State, and yet, if it were said the ownership of the slave had first been transferred to the nation, and Congress had then liberated him, the difficulty would at once vanish. And this is the real case. The traitor against the General Government forfeits his slave at least as justly as he does any other property; and he forfeits both to the Government against which he offends. The Government, so far as there can be ownership, thus owns the forfeited slaves, and the question for Congress in regard to them is, ‘Shall they be made free or sold to new masters?’”
Lincoln argued that freeing slaves within the states contradicted the Republican Party platform to which Lincoln and the Republicans owed their election.
Secretary John Hay submitted Lincoln’s memo to Congress on the 17th. A group of senators, led by William P. Fessenden of Maine, worked to pass a resolution revoking the “forfeiture of the real estate of the offender beyond his natural life.” This declared that the law was not a bill of attainder, which was prohibited by the Constitution, even though it clearly was. Still, it was enough for Lincoln to approve the bill, despite his objections.
Members of Congress, particularly the Radical Republicans, laughed at the message, confident that Lincoln did not have the nerve to oppose them any longer. The bill was strongly opposed by Democrats and some moderate Republicans, but they could not overcome the majority of other moderate and Radical Republicans in favor.
The 60-day countdown began on the 25th, when Lincoln issued his warning for southerners to cease and desist their rebellion. The language was derived from the first draft of Lincoln’s emancipation proclamation, which he had agreed not to release in its entirety until the Federal military gained a victory. It read:
“In pursuance of the sixth section of the act of congress entitled ‘An act to suppress insurrection and to punish treason and rebellion, to seize and confiscate property of rebels, and for other purposes’ Approved July 17, 1862, and which act, and the Joint Resolution explanatory thereof, are herewith published. I, Abraham Lincoln, President of the United States, do hereby proclaim to, and warn all persons within the contemplation of said sixth section to cease participating in, aiding, countenancing, or abetting the existing rebellion, or any rebellion against the government of the United States, and to return to their proper allegiance to the United States, on pain of the forfeitures and seizures, as within and by said sixth section provided.”
The Second Confiscation Act highlighted the growing political rift between Lincoln and the Radical Republicans in Congress. Several of this law’s provisions went unenforced, but it built upon the foundation that had been created when the war began that would eventually destroy slavery in America.
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