The Union defeat at the First Battle of Bull Run on July 1, 1861 jolted Congress into a realization that the Civil War might not be the swift, neat confrontation they hoped for – and that disunionists might need to be held legally liable for their actions. "The Northern armies ran against slavery immediately." Lincoln biographer Robert Morse wrote that "thousands of slaves at Manassas were doing the work of laborers and servants, and rendering all the whites of the Southern army available for fighting. The handicap was so severe and obvious, that it immediately provoked the introduction of a bill freeing slaves belonging to rebels and used for carrying on the war."1
"On July 22, a sleepy-eyed [Senator Lyman] Trumbull, tired from his trip to the Bull Run battlefield of the previous day, attended the day's Senate session. He had heard that during the recent battle, some Southerners had hired or given their slaves for menial tasks, helping the Confederate army. The judiciary committee had previously refused to accept an amendment to his bill striking at this practice, but now as a result of the reports he could relay almost from the battlefield, Trumbull successfully added such an amendment to the bill upon the Senate floor," wrote Trumbull biographer Ralph J. Roske.2 Historian Morse wrote: "The Democrats and the men of the Border States generally opposed the measure, with very strong feeling. No matter how plausible the reason, they did not wish slavery to be touched at all. They could not say that this especial bill was wrong, but they felt that it was dangerous."3
When slaves started escaping from their Southern owners and passing through Union lines at Fortress Monroe in Virginia, General Benjamin Butler decided that they were "contraband" of war. Historian James M. McPherson noted: "On August 6, 1861, Congress took a big step toward legitimizing this concept by passing a confiscation act that authorized the seizure of all property, including slaves, that had been used in aid of rebellion. Nearly all Republicans in Congress voted for this bill and almost all Democrats and border-state Unionists voted against it. Thus began a process where the emancipation issue defined the sharpest difference between parties."4 At the time, Congressman Thad Stevens prophesied that emancipation would eventually become "the doctrine of the whole free people of the North."5
The confiscation legislation was amended and revised with the final language written by Ohio Congressman John A. Bingham. Without using the word "slave," the new law said that slaves forced to work for the Confederate war effort should be entitled to freedom. The House passed the bill by 60-48 and the Senate by 24-11 and it was signed by President Lincoln on August 6 – the first legislative step down the long road to emancipation of all slaves.
Historian Henry G. Pearson wrote: "All slaves who had been employed by their disloyal masters in some form of work against the United States had been by the terms of the Confiscation Act of August, 1861, set free. According to the interpretation of this act permitted by the War Department, the fact of disloyalty on the part of the master was presumption that the slave had been so employed. "6 When James Wadsworth was appointed military governor of Washington in March 1862, he saw it as his duty to rigorously enforce the Act and protect contrabands within the city limits. In so doing he came into conflict with U.S. Marshal Ward Hill Lamon, a close friend of President Lincoln but no friend of emancipation.
Historian Kenneth M. Stampp wrote: "Month by month, with no end to the war in sight, the ranks of those who demanded the destruction of slavery increased, and the Republican majority in Congress began to act. In December 1861, the House of Representatives refused to renew its pledge of the previous July not to interfere with slavery."7 At the beginning of December 1861 session of Congress, Congressman Owen Lovejoy forced the issue of so-called contrabands.. Fellow Illinois Representative Isaac Arnold later wrote: "The House had scarcely completed its organization, when Lovejoy, indignant that loyal negroes should still be sent back to slavery from the camps of the Union army, on the 4th of December introduced a bill making it a penal offence for any officer to return a fugitive slave. Senator Wilson gave early notice of a bill in the Senate for the same purpose. The various propositions on the subject finally resulted in the enactment of an additional article of war, forbidding, on pain of dismissal from the service, the arrest of any fugitive, by any officer or person in the military or naval service of the United States. 8
Not every escaped slave was treated as Union contraband. Many Union officers instead returned them through Confederate lines. Historian Robert Morse wrote that "While [Benjmain] Butler, [John C.] Fremont, and [David] Hunter were thus befriending the poor runaways, [Don Carlos] Buell and [Joseph] Hooker were allowing slave-owners to reclaim fugitives from within their lines; [Henry W.] Halleck was ordering that no fugitive slave should be admitted within his lines or camp, and that those already there should be put out; and [George B.] McClellan was promising to crush 'with an iron hand' any attempt at slave insurrection."9
In March 1862, Congress passed legislation that forbade army and navy officers from return captured fugitive slaves to their owners – whatever their owners professed political loyalties. Congress also passed legislation forbidding these officers from hearing evidence concerning cases of runaway slaves. "Aimed especially at Democratic generals such as Alexander McCook, who was so obliging in returning runaways that he received praise from the Confederate press, and at Henry Halleck's recent order denying fugitives sanctuary within his lines, this law freed no slaves, but it was clear that this was its intent." wrote historian Richard H. Sewell. Sewell quoted Maryland Senator James A. Pearce: "It is not an act of emancipation in its terms; but...it leads directly to that result.'"10
Mark M. Krug, biographer of Senator Lyman Trumbull wrote: "Annoyed at the refusal of the administration and of the commanding Union generals to enforce his Confiscation Bill, Trumbull, immediately upon the opening of the regular session of Congress, introduced a tougher measure along the same line."11 The Second Confiscation Act was "introduced in December  by Senator Trumbull. Providing for heavy punishment for persons convicted of treason, the confiscation of property belonging to rebels, and the emancipation of slaves held by disloyal citizens, it was opposed by all conservatives – Democrats and Republicans alike," wrote historian Hans L. Trefousse.12
According to Lyman Trumbull's biographer Ralph J. Roske, "Trumbull's introduction of the confiscation bill drew wild applause from Radicals. Petitions favoring confiscation flowed into the Senate. Many were sent directly to Trumbull. Skillfully, Trumbull used these petitions to bludgeon judiciary committee opposition to confiscation. Meanwhile, several other senators had introduced their own confiscation measures. All were referred to the judiciary committee where Trumbull, at the controls as chairman, sidetracked all others in favor of his own proposal."13
Lincoln chronicler William K. Klingaman wrote "When Congress began debating the second Confiscation Act in March 1862, Radical legislators and their allies made it clear that they intended to use the bill to remake southern society by destroying the economic and political power of the plantation owners who provoked secession. 'Treason must be made odious, and traitors must be punished and impoverished,' insisted Senator Andrew Johnson of Tennessee, a long-time foe of southern aristocrats. 'Their great plantations must be seized, and divided into small farms, and sold to honest and industrious men.'"14 Historian Ralph Korngold wrote that President Lincoln "made two attempts to sidetrack the second Confiscation Act – by sending a bill to Congress embodying his compensated gradual emancipation proposal and recommending its adoption, and by making a moving appeal to the representatives of the border states. He must have felt none too sanguine about the success of either of these moves, for since the first of July he had been preparing a third move he meant to make if the two others failed. It was nothing less than a preliminary Emancipation Proclamation serving notice on the rebel states that if they did not lay down their arms by January 1, 18653, he would issue a final proclamation declaring their slaves free."15
For much of the spring, debate continued on the proposed legislation. Speaking on behalf the confiscation bill, Ohio Senator Benjamin Wade said: "You cannot escape from this war without the emancipation of your negroes. It will not be because I am going to preach it; it will not be because I am going to move anything in that direction; but it is because I see the hand of God taking hold of your own delinquency to overrule for good what your rules meant for evil. Pro-slavery men seem to suppose that the Ruler of the Universe is a pro-slavery Being; but if I have not mistaken Him greatly, He is at least a gradual emancipationist."
Kentucky Senator John J. Crittenden opposed the confiscation bill in a speech on April 23: "There is a niche in the temple of fame, a niche near to Washington, which should be occupied by the statue of him who shall save this country. Mr. Lincoln has a mighty destiny. It is for him, if he will, to step into that niche. It is for him to be but a President of the people of the United States, and there will his statue be. But if he choose to be, in these times, a mere sectarian and a party man, that niche will be reserved for some future and better patriot."16 One of the strongest abolitionists in the House and a steadfast friend of the President, Illinois Congressman Owen Lovejoy, replied the following day:
I, too, have a niche for Abraham Lincoln; but it is in Freedom's holy fane, and not in the blood-besmeared temple of human bondage; not surrounded by slave-fetters and chains, but with the symbols of freedom; not dark with bondage, but radiant with the light of Liberty. In that niche he shall stand proudly, nobly, gloriously, with shattered fetters and broken chains, and slavewhips beneath his feet. If Abraham Lincoln pursues the path evidently pointed out for him in the Providence of God, as I believe he will, then he will occupy the proud position I have indicated. That is a fame worth living for; aye, more; that is a fame worth dying for, though that death led through the blood of Gethsemane and the agony of the accursed tree....Let Abraham Lincoln make himself...the emancipator, the liberator...and his name shall not only be enrolled in this earthly temple, but it will be traced on the living stones of that temple which rears itself amid the thrones and hierarchies of Heaven.17
Senator Charles Sumner had offered an amendment to the bill, according to biographer Moorfield Storey, which "proposed that any person, who after the passage of the act should engage in or abet the rebellion, should forfeit all claim to his slaves, and that these should thereafter be free; further, that any claimant of a slave must establish his loyalty as a condition of recovery. Sumner dwelt upon the distinction between a law intended to punish treason, which must be passed in the exercise of sovereignty and must not violate constitutional limitations, and a law exercising those rights of war which international law gives to every belligerent. It was a legal argument, founded on the decisions of courts, the principles laid down by recognized authorities, and the well-established practice of all nations."18 A watered down version of Sumner's amendment was accepted into the law. Sumner argued:
If it be constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battles, – all without trial by jury, or any process of law, or judicial proceeding of any kind, – it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves....You may condemn confiscation and liberation as impolitic, but you cannot condemn them as unconstitutional unless, in the same breath, you condemn all other agencies of war, and resolve our present proceeding into the process of a criminal court, guarded at each step by the technicalities of the common law....I confess frankly that I look with more hope and confidence to liberation than to confiscation. To give freedom is nobler than to take property, and on this occasion it cannot fail to be more efficacious.19
According to Benjamin Wade biographer Trefousse, "On June 28, the Senate finally passed the confiscation bill. Wade, who had held out with an impassioned speech for a more radical measure almost to the end, finally voted yea. He disapproved of the safeguards which remained in the bill, but it was better than nothing at all. And it provided for the emancipation of Southern slaves."20 Under the Second Confiscation Act, slaves owned by slaveholders convicted of rebellion or treason were to be emancipated as were slaves whose owners had disappeared or who were found in locations where the Confederates had previously held.
Shortly after he assumed command of the Army of the Potomac in early summer, Union General John Pope issued orders that outlined a much harsher approach to civilian and military opponents than had previously been pursued by General George B. McClellan. In the series of orders, which began on July 18, Pope ordered his men to subsist by foraging. He also called for civilians to "be held responsible for any injury done to the track, line, or roads, or for any attacks upon trains or straggling soldiers by bands of guerrillas in their neighborhood." Furthermore, Pope issued an order which called for the arrest and expulsion through Union lines of disloyal civilians.21 Historian Bruce Tap wrote: "Pope's orders seemed the perfect complement to the Second Confiscation Act, passed on July 17, which authorized the seizure of property and slaves of known rebels. To many Republicans, it seemed that a new, harsher war had been inaugurated, one that would ultimately destroy the root of the rebellion and allow a reconstruction of southern society."22
Meanwhile, President Lincoln was trying to pressure Border State representatives in Congress to agree to a plan of compensated emancipation. He met with them on July 12 to make his plea – but most of those attending signed a detailed rejection of his plan. Lincoln chronicler William K. Klingaman wrote that Senator Charles "Sumner recalled that Lincoln's 'whole soul was occupied' with this plan. 'In familiar intercourse, with him, I remember nothing more touching than the earnestness and completeness with which he embraced this idea.'"23
Illinois Senator Orville H. Browning campaigned for the veto of the Confiscation Act. He wrote in his diary on July 1: "Immediately after breakfast went to the Presidents with Uri Manly. Saw the President alone, and had a talk with him in regard to the Confiscation bills before us. He read me a paper embodying his views of the objects of war, and the proper mode of conducting it in its relations to slavery. This, he told me, had sketched hastily with the intention of laying it before the Cabinet. His views coincided entirely with my own. No negroes necessarily taken and escaping during the war are ever to be returned to slavery – No inducement are to be held out to them to come into our lines for they come now faster than we can provide for them and are becoming an embarrassment to the government. At present none are to be armed. It would produce dangerous & fatal dissatisfaction in our army, and do more injury than good. Congress has no power over slavery in the states, and so much of it as remains after the war is over will be in precisely the same condition that it was before the war began, and must be left to the exclusive control of the states where it may exist."24
On July 13, Browning wrote his diary: ""After tea went to Mr [William H.] Sewards – Found Thurlow Weed there. After he left had a talk with Mr Seward about the Confiscation bill. His general views coincide with my own. Said he would see the president in the morning and have a conversation with him upon the propriety of vetoing it. I promised to furnish him a copy of the bill in the morning."25 Senator Browning wrote in his diary on July 14: "At the Presidents this morning. I gave him a copy of the Confiscation bill as it passed, and expressed to him very freely my opinion that it was a violation of the Constitution and ought to be vetoed. I said to him that he had reached the culminating point in his administration, and his course upon this bill was to determine whether he was to control the abolitionists and radicals, or whether they were to control him. That the tide in his affairs had come and he ought to take it at its flood. That if he vetoed it he would raise a storm of enthusiasm in support of the Administration in the border states which would be worth to us 100,000 muskets, whereas if he approved it I feared our friends could no longer sustain themselves there. That we could not succeed without unity of sentiment and purpose which would be secured by a veto as that would at once bring to his support every loyal Democrat in the free states, and consolidate all truly loyal men into one party – whereas if approved it would form the basis upon which the democratic party would again rally, and reorganize an opposition to the administration &c. He said he would give it his profound consideration."26
Browning's opposition had some effect. "Lincoln himself had objections to the bill as it came to him. On July 17 he prepared a veto message which he intended to send to Congress. The President objected to the forfeiture of property beyond the life of a person convicted of treason. This amounted to a corruption of blood, he pointed out, and therefore was not permissible. Another fault which he saw was the use of in rem proceedings in the courts which would authorize forfeiture. He suggested that additional time be allowed the accused in the judicial process for the preparation of an adequate defense," wrote Browning biographer Maurice Baxter. "Congressional leaders were aware of Lincoln's hesitancy about signing the bill as it had been given to him. As a result, on July 16, the Senate hurriedly passed a resolution which gave new meaning to some of the clauses. By this resolution the Senate sought to amend the Confiscation Act with the following words: '...nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.' This met one of the President's objections, but it did not cover the other one concerning in rem proceedings; nevertheless, he signed the bill," wrote Baxter.27
It was the last day of the congressional session when Congress passed and President Lincoln signed the Second Confiscation Act. Congressman Horace Maynard and Maine Senator William P. Fessenden played crucial roles in approval of the bill. Historian George H. Mayer wrote: "An outright breach between the President and Congress might have occurred had Fessenden not made a last-minute call at the White House and discovered Lincoln's objections. The radicals resented the meddling of the Maine senator, but sober counsels prevailed, and with the result that both Houses attached an explanatory resolution to the Confiscation bill, bringing it in line with the constitutional provision on forfeiture."28
But the threat of a veto was real – under advice from Secretary of War Edwin M. Stanton that the bill as written was unconstitutional because Congress "had no right to legislate respecting slavery in the States, and that no the property of rebels in fee but simply the offender's life estate therein could be forfeited to the United States," wrote Stanton biographer Frank A. Flower. "Stanton advised that this contention was erroneous in law, wrong in theory, and destructive in practise; but, as the President would not yield, a declaratory resolution was swiftly prepared and passed by Congress a few hours later, on the same day, explaining that the act was not intended to do more than forfeit the life estate of insurgents in their confiscated property."29 President Lincoln wrote in his draft veto message:
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.
Historian Edward A. Miller, Jr., wrote that the Second Confiscation Act "was not revolutionary and...did little more than confirm the already-existing power of the president to use freed slaves in any way he considered would aid the effort."31 However, the Confiscation Act authorized the government to recruit "persons of African descent" for the work in "constructing intrenchments, or performing camp duty, or any other labor, or any military or naval service..."32 President Lincoln approved the Confiscation act as well as a Militia Act passed which authorized use of black soldiers with pay at a rate $3 per month less than white soldiers. On July 19 a Senate delegation visited the President to advocate a vigorous policy of using slaves in the war effort.
The Confiscation Act had another impact on President Lincoln's action, according to Treasury Secretary Salmon P. Chase. He reported on a Cabinet meeting on July 21, 1862: "I went at the appointed hour, and found that the President had been profoundly concerned at the present aspect of affairs, and had determined to take some definitive steps in respect to military action and slavery. He had prepared several Orders, the first of which contemplated authority to Commanders to subsist their troops in the hostile territory – the second, authority to employ negroes as laborers – the third requiring that both in the case of property taken and of negroes employed, accounts should be kept with such degrees of certainty as would enable compensation to be made in proper cases – another provided for the colonization of negroes in some tropical country."33
Historian LaWanda Cox wrote: "In substance, as well as in timing, Lincoln's decision for emancipation compares favorably with that of Congress. The Confiscation Act was directed primarily at Slaves within Union lines belonging to persons in rebellion. The Emancipation Proclamation applied to Confederate-held areas, even those which might never be occupied by Union forces; and it applied to all slaves within Confederate lines whatever the allegiance of their masters. The congressional act would free slaves 'as captives of war,' the presidential proclamation as 'a fit and necessary war measure.' The omission of enemy areas under Union control from the force of Lincoln's proclamation represented not a concession to slavery, as often assumed, but a concern that freedom by presidential fiat be legally defensible." 34
Mark M. Krug, biographer of Senator Lyman Trumbull, wrote: "The fate of Trumbull's Second Confiscation Bill was like that of the first one. Lincoln, who did not believe that the bill was necessary, refused to enforce it. And Trumbull, whose main motive in pressing for the bill was his conviction that if properly executed, it could free many slaves and hurt the rebel cause, was bitter over Lincoln's attitude. Very little rebel property was confiscated and relatively few slaves were freed, but the Confiscation Bill marked the first step toward the emancipation of slaves."35
Massachusetts Senator Charles Sumner wrote English stateseman John Bright on August 5, 1862: "Congress has adjourned. After a few days in Washington, to see the Presdt & cabinet, I have come home – glad of a little rest, but find new cares here. Our session has been very busy; I doubt if any legislative body ever acted on so many important questions. You who follow our [fortunes?] so kindly, doubtless know what has been done for freedom – for reform generally, &, also in the way of organizing our forces & providing means. There have been differences of opinion on questions of policy – especially on Slavery. This was to be expected. But the Bill of Confiscation & Liberation, which was at last passed, under pressure from our reverses at Richmond, is a practical Act of Emancipation. It was only in this respect that I [valued] it. The Western men were earnest for reaching the property of the rebels. To this I was indifferent except so far as it was necessary to break up the strongholds of slavery."36
A few days later, Michigan Senator Zachariah Chandler wrote President Lincoln: "With a free circulation of my speech and a positive assurance that the evils therein set forth shall be promptly remedied. That the Confiscation Law shall be literally enforced, Slaves used for all menial service and our brave troops no longer used to guard the property of Rebels in Arms. Michigan has Nobly done her whole duty. We have already enlisted eight thousand men for the War under the 300,000 Call & shall fill Our quota within one week from today. Our pledges must be fulfilled & I know You will do it. Com pell your Generals to obey the Laws & the Country will Call blessed. You can form no conception of the public sentiment in the North West. I was called radical in Washington, but I find myself so far behind the people that I am almost ashamed of my laggardness."37
Orville H. Browning (Mr. Lincoln's White House)
Zachariah Chandler (Mr. Lincoln's White House)
Salmon P. Chase (Mr. Lincoln's White House)
William P. Fessenden (Mr. Lincoln's White House)
Edwin M. Stanton (Mr. Lincoln and Friends)
Edwin M. Stanton (Mr. Lincoln's White House)
Charles Sumner (Mr. Lincoln and Friends)
Charles Sumner (Mr. Lincoln's White House)
Lyman Trumbull (Mr. Lincoln and Friends)
Lyman Trumbull (Mr. Lincoln's White House)