Unconstitutional Acts
During the Civil War, Republicans in the 37th Congress managed to
navigate two major pieces of legislation through Capitol Hill that
helped free certain types of Confederate slaves. These “confiscation”
acts have since become mostly forgotten, however, because their impact
on the struggle to abolish slavery was overwhelmed by Lincoln’s
emancipation policy. Nonetheless, those acts remained in force
throughout the war and arguably triggered Lincoln’s pivotal decision to
emancipate slaves by military decree beginning on January 1, 1863.
The
First Confiscation Act (
August 6, 1861)
was not an explicit freedom statute, but it authorized Union army
officials to seize any slaves employed by the Confederate army. The
fourth section of the statute read:
“That whenever hereafter, during the present insurrection against the
Government of the United States, any person claimed to be held to labor
or service under the law of any State, shall be required or permitted
by the person to whom such labor or service is claimed to be due, or by
the lawful agent of such person, to take up arms against the United
States, or shall be required or permitted by the person to whom such
labor or service is claimed to be due, or his lawful agent, to work or
to be employed in or upon any fort, navy yard, dock, armory, ship,
entrenchment, or in any military or naval service whatsoever, against
the Government and lawful authority of the United States, then, and in
every such case, the person to whom such labor or service is claimed to
be due shall forfeit his claim to such labor, any law of the State or of
the United States to the contrary notwithstanding. And whenever
thereafter the person claiming such labor or service shall seek to
enforce his claim, it shall be a full and sufficient answer to such
claim that the person whose service or labor is claimed had been
employed in hostile service against the Government of the United States,
contrary to the provisions of this act.”
Although the First Confiscation Act was not an explicit freedom
statute, by neither attempting to define the legal status of the
“forfeited” slaves, nor by fully addressing the concerns of the
so-called contrabands, it nonetheless had the effect of increasing the
spread of freedom almost immediately because of instructions from
Secretary of War Simon Cameron (
August 8, 1861) that directed army officers to receive and protect fugitives from both disloyal
and loyal
masters, suggesting that it was the only practical way to proceed and
that Congress would ultimately have to figure out a way to provide “just
compensation to loyal masters.”
Cameron’s instructions were not uniformly followed, however, and a
number of Union officers continued to return fugitive slaves or to deny
runaways protection. Over the next several months, this situation
provoked repeated clashes between Republican politicians and certain
Union generals over what the law required and what military necessity
demanded. One notable exchange occurred between Secretary of State
William Seward and General George B. McClellan in
December 1861.
Arguments such as these eventually provoked the Congress to debate and pass a
Second Confiscation Act (
July 17, 1862),
which went far beyond the first statute in declaring confiscation as
punishment for treason and in labeling Confederate slaves as “captives
of war” who were to be “forever free.” The Congress also extended their
confiscation policy to include any slaves employed by disloyal master
anywhere –not just those employed by the rebel armies or navies. The key section of the statute regarding emancipation was Section 9:
“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.”
Abraham Lincoln signed the new confiscation statute on Thursday, July
17, 1862, but did so reluctantly, convinced that it was both
unconstitutional and impractical. He actually drafted a veto message
earlier that week, but after some last-minute negotiations, the
president and Congress managed to avoid a dramatic confrontation.
Nonetheless, President Lincoln
issued his veto message with his signature
(something that today is called a presidential signing statement) and
proceeded to make plans to supersede congressional confiscation with his
own emancipation policy, presented in its first draft form to his
Cabinet on Tuesday, July 22, 1862.
Congressional confiscation policy had many “authors” and provoked
numerous arguments in House and Senate debates. No figure, however, was
more important to the development of the policy than Senator
Lyman Trumbull,
a Republican from Illinois, who chaired the Senate Judiciary
Committee. Under these circumstances, he might also be considered a
“Great Emancipator” from Illinois. You can browse or search the
congressional confiscation debates online through
“A Century of Lawmaking,” a massive collection of congressional documents courtesy of the Library of Congress.
http://housedivided.dickinson.edu/sites/emancipation/2012/07/14/congressional-confiscation-acts/
Confiscation Act of 1862
The Second Confiscation Act, approved by Congress 16 July
1862, contained the first definite provisions for emancipating
slaves in the rebellious states.
Under the act, Confederates who did not surrender within 60
days of the acts passage were to be punished by having their
slaves freed. The act also dealt with a problem that plagued
field commanders occupying Southern territory. As troops
advanced, slaves sought refuge in Union camps, and Federal
commanders were confused over their obligations to the refugees.
Some freed the slaves, others sent them hack to their masters for
lack of means to care for them. The Confiscation Act of 1862
declared all slaves taking refuge behind Union lines captives of
war who were to be set free.
Though the act implied a willingness to emancipate, at the
convenience of the government, it offered blacks no guarantee of
civil rights. Instead, it incorporated provisions for
transporting and colonizing any black consenting to emigrate to
some tropical country that was prepared to guarantee them the
rights and privileges of free men. A clause requiring the consent
of the freedmen to be colonized was approved after much controversy in Congress.
Radical Republicans, who envisioned distributing confiscated
lands to former slaves succeeded in passing the bill only after
agreeing to President Lincolns demand to limit seizure of
Confederate estates to the lifetime of the offender.
Lincolns limited emancipation gesture applied only to
states in open rebellion. The same act granting freedom to
Confederate slaves guaranteed the return of fugitives from the
border states to any owner who could prove loyalty to the Union.
Lincoln could not risk alienating these states, and he hoped that
one part of the bill, calling for gradual, compensated
emancipation, would draw Virginia and Tennessee back into the
Union.
Essentially, the Confiscation Act of 1862 prepared the way
for the Emancipation Proclamation and solved the immediate
dilemma facing the army concerning the status of slaves within
its Jurisdiction.
http://civilwarhome.com/confiscationact1862.htm
Was Abraham Lincoln considered an Unconstitutional President?
