First and Second Confiscation Acts (1861, 1862)

Daniel W. Hamilton

In the first summer of the Civil War, Abraham Lincoln called the thirty-seventh Congress into special session on July 4, 1861. On August 6, the last day of this short first session, Congress passed and Lincoln signed the First Confiscation Act. This law authorized the federal government to seize the property of all those participating directly in rebellion. Enacted in the wake of the first battle of Bull Run, this hurriedly passed law did not break much new ground. It was essentially a restatement of internationally recognized laws of war and authorized the seizure of any property, including slave property, used by the Confederacy to directly aid the war effort.

When the second session of the Thirty-seventh Congress convened in December 1861, public pressure was mounting in the North for another, more vigorous confiscation bill. Senator Lyman Trumbull, a Republican from Illinois and the chairman of the Judiciary Committee, quickly emerged as the most important figure on confiscation. On December 2, 1861, Trumbull took the floor to introduce a new confiscation bill. This bill envisioned the seizure of all rebel property, whether used directly to support the war, or owned by a rebel a thousand miles away from any battlefield.

After several months of debate, Congress came to a stalemate over the confiscation of rebel property. This paralysis was not the result of incompetence, or because confiscation was considered relatively unimportant; it was instead an issue of ideological differences debated by a country in the midst of war. The debate, to the surprise and ultimate frustration of the legislators themselves, reflected deep-seated, nearly intractable divisions over the social role of property and the extent of sovereign power over property in American law and the Constitution.

Within a few weeks of the introduction of Trumbull's bill, different ideological coalitions emerged. Trumbull took the lead of a group of radicals sponsoring a vigorous confiscation bill, joined by Charles Sumner of Massachusetts and Benjamin Wade of Ohio in the Senate and George Julian of Indiana in the House. To their amazement these confiscation radicals soon faced bitter opposition both from outside and from within their own Republican Party. A group of conservatives soon began to condemn the radical bill as a violation of the Fifth Amendment and the Constitution's prohibition of bills of attainder. Republican senator Orville Browning of Illinois, a powerful friend of President Lincoln, led these conservatives in condemning the radical confiscation plan. As winter turned to spring and spring to summer, Congress argued endlessly over confiscation. Was property confiscation a legitimate power of the national legislature? Was confiscation in violation of the Constitution? Were slaves a type of property subject to confiscation? These basic questions drew intense scrutiny and the congressional debates were remarkable for their sustained consideration, in the midst of war, of the power of government and the rights of property.

Between these two warring camps, a group of confiscation moderates brokered a compromise bill that, unfortunately, proved mostly unworkable. These moderates were led by John Sherman of Ohio, Daniel Clark of New Hampshire, and Henry Wilson of Massachusetts in the Senate, and Republican Thomas Eliot of Massachusetts in the House. The moderates sent Trumbull's bill to a select committee, where they reworked it into a much less radical bill providing a much greater role for the judiciary than the radicals wanted. On July 17, President Lincoln signed the Second Confiscation Act into law, after first insisting that Congress pass an "explanatory resolution" to the act. This resolution reflected President Lincoln's concern that permanent property confiscation was a "corruption of blood" prohibited by the Constitution and provided that property seized from individual offenders under the act could not be seized beyond the lifetime of the offender. President Lincoln had fully intended to veto the bill if Congress did not pass his resolution, and in an effort to ensure his objections were an official part of the congressional record, after signing the bill he also sent the veto message he had prepared to Congress.

On paper, the Second Confiscation Act permitted the Union government to seize all the real and personal property of anyone taking up arms against the government, anyone aiding the rebellion directly, or anyone offering aid or comfort to the rebellion. In practice though, the act did not really work. From the summer of 1862 to the end of the war, only a small amount of rebel property was ever confiscated. President Lincoln's ambivalence about confiscation soon led to reluctant enforcement of the Second Confiscation Act by the attorney general. Even more importantly, the Confiscation Act provided little by way of instructions on its enforcement. The act simply asserted, "it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits and effects."

On the slavery question, the act was also confusing. The last part of the act, section 9, was mostly radical and provided for the immediate liberation of all slaves who escaped to Union lines. This section pleased radicals, however, even as it avoided resolution of the debate over the legitimacy of slave property. In particular, the act made no attempt to explicitly remove slaves from provisions dealing with the seizure of property. As a result, both sides of the slavery question claimed victory, radicals asserting that the bill freed slaves who came in contact with the Union Army, and conservatives asserting that judges could treat slaves as property.

The Lincoln administration's lackluster enforcement of confiscation drew considerable criticism from Congress and from the Northern public. Perhaps most famously, on August 19, Horace Greeley, editor of the New York Tribune, published an open letter to the president, "The Prayer of Twenty Millions." The Tribune was the most widely read Republican newspaper in the country and was sure to grab President Lincoln's attention. Greeley seized upon the sections of the law freeing slaves that came within Union lines and demanded the President enforce them: "We think you are strangely and disastrously remiss in the discharge of your official and imperative duty with regard to the emancipating provisions of the new Confiscation Act."

Lincoln received pressure not just from the press but also from his own cabinet. In his 1863 Report to Congress, Treasury Secretary Salmon P. Chase urged Lincoln to move quickly against property located in the North and owned by those aiding the rebellion. "Property of great value in loyal states is held by proprietors who are actually or virtually engaged in that guilty attempt to break up the Union," he wrote. Such property "should be subjected by sure and speedy processes to confiscation."

This is not to suggest Lincoln blocked any and all property confiscation. After the passage of the first act in August 1861, U.S. attorneys were given wide discretion to instigate proceedings and began to seize Confederate property located in the North. For proponents of confiscation the prospects for enforcement were made considerably worse when Andrew Johnson became president in April 1865. The Johnson administration began to radically restrict the enforcement of the Confiscation Acts, as part of his administration's drive to placate white Southerners and restore the Union. In the summer and fall of 1865 Johnson began to issue special pardons that restored the property rights of former rebels.

Johnson's attorney general, James Speed, took a narrow view of confiscation and by June of 1866 he ordered a halt to any more seizures. President Johnson ordered that land seized by the federal government under the Confiscation Acts, land to which the United States had title, should be returned to its owners, unless it had already been sold to a third party. All told, total proceeds from confiscation by 1867 amounted to roughly $300,000.

Congress failed to pass an effective confiscation law not because property confiscation was not important, but because property confiscation was too important. The confiscation debates were significant for the amount of ideological agonizing and self-reflection they produced. They show the Thirty-seventh Congress torn between competing ideas of property. The Congress in Civil War confiscation legislation, attempted—ultimately unsuccessfully—to occupy an ideological middle ground recognizing both the power of legislature and the expanding conceptions of individual property rights.

See also: Freedman's Bureau Acts; Militia Act.