Second Confiscation Act

Lincoln's Emancipation Proclamation in both its preliminary form as issued on September 17, 1862 and in its final form on January 1, 1863 are justly renowned.  What is less known is the relevance of the Second Confiscation Act passed by Congress and signed by the President on July 17, 1862.

At the time of his election in 1860, Abraham Lincoln believed his constitutional powers regarding slavery were limited.  The Federal government had no authority to do anything regarding slavery in the states were in already existed.  The point of contention with the existing slave states was on the Federal government's ability to restrict slavery in the territories and future states, which constituted half the land area of the republic.

Secession and civil war changed all that.  First, as a political matter, the withdrawal of Southern state representatives and senators from Congress left Republicans with an overwhelming majority.  Second, the Constitutional powers granted to the President in his role as commander in chief are broader than those of the President in peacetime.

Many in the Republican Congress were pushing the President to use that authority to end slavery.  It was a practical matter that finally forced some decisions to be made.  As Northern armies advanced into the South, they increasingly encountered runaway slaves who made their ways into Union lines seeking refuge.  Were the Federal armies to return the slaves to their owners?  Were they free now?

Military necessity led many commanders to calling the slaves "contraband" in order to allow them to be kept and used a laborers in building fortifications.  In turn this requiring the sheltering and feeding of entire families.

Congress passed two Confiscation Acts, the first in September 1861, the second in July 1862.  During the debate over the second Act, the President attempted to prod Congress in a different direction proposal a gradual emancipation bill with compensation to slave holders, rather than outright confiscation of slaves.  His proposal went nowhere.

The Act as passed applied to slaves who had taken refuge within Union army lines:

“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.”

Though Lincoln had threatened to veto the Act, he eventually signed it though he issued what we would today call a "signing statement" expressing his disagreement with certain aspects of the legislation, an excerpt of which follows: 

Considering the bill for “An act to suppress insurrection, to punish treason, and rebellion, to seize and confiscate the property of rebels, and for other purposes” and the Joint Resolution [explanatory of said act,] as being substantially one, I have approved and signed both.

Before I was informed of the passage of the Resolution, I had prepared the draft of a Message, stating objections to the bill becoming a law, a copy of which draft is herewith transmitted.

[Abraham Lincoln]

[July 17, 1862]
Fellow citizens of the House of Representatives

I herewith return to your honorable body, in which it originated, the bill for an act entitled “An act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes” together with my objections to it’s becoming a law.
There is much in the bill to which I perceive no objection. It is wholly prospective; and it touches neither person or property, of any loyal citizen; in which particulars, it just and proper. 

. . . 

That to which I chiefly object, pervades most parts of the act, but more distinctly appears in the first, second, seventh, and eighth sections. It is the sum of those provisions which results in the divesting of title forever. For the causes of treason, and the ingredients of treason, not amounting to the full crime, it 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 attainted.” True, there is to be no formal attainder in this case; still I think the greater punishment can not be constitutionally inflicted, in a different form, for the same offence. With great respect, I am constrained to say I think this feature of the act is unconstitutional. It would not be difficult to modify it.

I may remark that this provision of the constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real, or landed estate.

Again, this act, by proceedings in rem forfeits property, for the ingredients of treason, without a conviction of the supposed criminal, or a personal hearing given him in any proceeding. That we may not touch property lying within our reach, because we can not give personal notice to an owner who is absent endeavoring to destroy the govern[ment,] is certainly not very satisfactory; still the owner may not be thus engaged, and I think a reasonable time should be provided for such parties to appear and have personal hearings. Similar provisions are not uncommon in connection with proceedings in rem.

For the reasons stated I return the bill to the House in which it originated.

The Act gave those in rebellion 60 days to surrender or pledge allegiance to the Union or any of their slaves within Union lines would be declared free.

Lincoln's preliminary emancipation notice of September 17 went further, applying to any slaveowner in the Confederacy who did not cease insurrection by January 1, 1863.