Freedom National: The Destruction of Slavery in the United States, 1861-1865

by James Oakes

  As the scope of emancipation expanded, both Congress and the president made bolder claims of authority under the war powers clause of the Constitution. In the First Confiscation Act, Congress declared the forfeiture of slaves used in rebellion, but it ceded to the president, as commander in chief, the power to emancipate forfeited slaves. In the Second Confiscation Act, Congress itself would directly emancipate rebel-owned slaves within Union lines in the seceded states, affecting thousands of slaves in the Union-occupied parts of the Mississippi Valley. But what about the unoccupied parts of the Confederacy? In those areas Republicans once again ceded the power to proclaim a general emancipation to the commander in chief. By clearing two distinct legal paths for the emancipation of slaves in both the occupied and the unoccupied areas of the Confederacy, the Republicans believed they had set in motion the complete destruction of slavery in all the seceded states.

  THE SECOND CONFISCATION ACT

  The First Confiscation Act zoomed through the legislative process at breakneck speed in July of 1861. Its successor moved at the slowest-possible pace for a single session; having been introduced in the opening days of Congress, it was not passed until the very last day of an unusually long session. Preliminary versions of the Second Confiscation Act were introduced into both houses in December of 1861, disappeared into the dark recesses of congressional committees, reemerged haltingly as winter gave way to spring, but did not occupy the full attention of either house until May and June of 1862. It was not until mid-July, more than six months after the process began, that the Senate and House passed the bill into law, to be signed by the president on July 17, 1862. This Second Confiscation Act was far more complicated, but also more comprehensive, than its predecessor.2

  Less than a week after Trumbull introduced his bill, Republican Senator Lot Morrill of Maine proposed a resolution “to provide for the confiscation of the property of rebels” nullifying “all claim or right” by traitors and abettors of treason “to the labor of any person under the laws of any State or Territory.”3 Morrill’s resolution was referred to Trumbull’s Judiciary Committee, which reported it back to the Senate on January 15. It was not until late February, however, that Trumbull moved “consideration” of the resolution. Debate proceeded on and off for weeks, during which time various bills, amendments, and alternatives piled up. On April 29, Pennsylvania Senator Edgar Cowan proposed sorting them all out by referring everything to a select committee. At first a number of Republicans objected to Cowan’s motion, but when a substantive disagreement arose between two versions of the bill—one proposed by Senator Jacob Collamer of Vermont and the other by Senator Henry Wilson of Massachusetts—they handed the controversy off to a committee to sort out the differences.

  At issue between the two senators was how much latitude to give the president in enforcing the “prospective” clause of the statute, the clause designed to emancipate slaves in unoccupied areas of the Confederacy by means of a presidential proclamation. Collamer’s proposal authorized the president, at his discretion, to free the slaves in any state that had been in rebellion for at least six months. Wilson proposed an alternative amendment that “authorized and required” the president to proclaim the emancipation of slaves owned by rebels in any area still in “a state of insurrection” within thirty days of the bill’s passage. Wilson’s amendment would force the president’s hand; Collamer’s gave the president more leeway.4 Both versions authorized the emancipation of slaves of any person “engaged in rebellion” in the areas the president proclaimed to be in a state of insurrection. But where Collamer’s version empowered the president to issue a proclamation “if he deems it necessary for the suppression of the Rebellion,” Wilson’s took the decision away from the commander in chief. Collamer believed that “the existence of an actual military necessity in military operations must be judged by those who conduct those operations.” If the president finds that “such a necessity has come, he shall issue his proclamation” stating “that after a certain day, if they then continue in arms against the United States, their slaves shall be free.”5 To resolve the difference between Collamer and Wilson, the Senate on May 6 created a special committee, chaired by New Hampshire Senator Daniel Clark, with instructions to report a bill back to the floor.

  On May 16, Clark’s Select Committee reported a bill that gave the president substantial discretion, thus sustaining Senator Collamer’s proposal.6 At stake, it seems, was the constitutional legitimacy of emancipation in unoccupied areas of the Confederacy. By taking the decision away from the president, Wilson’s amendment seemed to make emancipation a legislative rather than a military act, something most Republicans still thought was unconstitutional. Though Wilson was a radical, this was not an issue that clearly divided radicals from moderates. New Hampshire’s Senator John Hale aligned himself with the radicals on emancipation, for example, but he worried that by stripping the president of his discretion, Wilson’s amendment was “not in accordance with the Constitution.” Hale was “as anxious and as earnest as anybody to advance the cause of free principles,” he said, “so far as might be done consistently with the rights we owe under the Constitution.” On that principle he was in complete agreement with Senator Wilson. The problem was that Wilson’s amendment “does not look like a war measure.” Instead, it made emancipation seem like punishment for a crime and thereby vested the president with judicial rather than military power. For Hale, that contradicted the Republicans’ long-standing declarations of “fidelity to the Constitution.”7 Nor was Hale alone; Wilson could not attract any significant support among his fellow Republicans. From mid-May onward, Senator Clark’s committee report—giving the president discretion to issue an emancipation proclamation as a military necessity—was the focus of senatorial debate. But before the Senate got around to voting on the Clark bill, it was forced to consider a somewhat different version that passed the House on June 18.

  The legislative history of the Second Confiscation Act was similar in the House, though it resulted in two bills, separating confiscation from emancipation. On December 2, 1861, Republican Congressman Thomas Eliot of Massachusetts introduced a resolution that became the basis of subsequent debate. He began by reaffirming his commitment to the federal consensus. We “disclaim all power under the Constitution to interfere by ordinary legislation with the institutions of the several States,” Eliot began. Yet “the war now existing must be conducted according to the ordinary usages and rights of military service.” Congress could not legally abolish slavery in any state, but under the laws of war “the commander-in-chief of our Army, and the officers in command under him, have the right to emancipate all persons held as slaves in any military district in a state of insurrection against the national government.” Eliot was thus careful to reiterate the military justification of emancipation, as well as the president’s prerogative in enforcing it. The Eliot resolution would free not merely the slaves owned by rebels but all slaves “in any military district in a state of insurrection.”8 Congressman Roscoe Conkling, a Republican from New York, immediately moved to amend it to apply instead to the slaves of disloyal owners. Several other resolutions were introduced that day and the next, but consideration of them all was postponed until December 10. Meanwhile, on December 3, Republican Congressman John Bingham of Ohio introduced a bill to “forfeit the property and slaves of persons who shall engage in or aid and abet rebellion against the United States.”9 On December 17 the House voted to refer the Eliot resolution, and all others like it, to the Judiciary Committee. It was not until several months later, on March 20, that the committee finally reported back to the House, recommending against passage of any of the emancipation bills and resolutions. But Bingham, a member of the committee, issued a minority report consisting of a bill freeing the slaves of all persons engaged in or supporting the rebellion.10 Bingham’s minority report became the focus of discussion in the House. Various amendments and alternatives were proposed, and the House decided on April 23 to resolve matters by
sending everything to a special select committee of its own, chaired by Congressman Eliot, author of the December 2 resolution.

  On April 30, Eliot separated the issues of confiscation and emancipation by putting them into two different pieces of legislation. The first was “[a] bill to confiscate the property of rebels for the payment of the expenses of the present rebellion, and for other purposes.” The second was “[a] bill to free from servitude the slaves of rebels engaged in abetting the existing rebellion against the Government of the United States.” Rather than confiscate slaves, it emancipated them, not as a military necessity but as punishment for the crime of rebellion. It was legislative rather than military emancipation; hence, no presidential proclamation was required.11 Eliot reported both bills out of committee on May 14, debate began on May 20, and after six days of heated discussion, the House passed the confiscation bill but narrowly defeated the emancipation bill by a vote of 74 to 78.

  It is hardly surprising that the House rejected such a radical emancipation measure; what is truly remarkable is that so many Republican congressmen supported it. Like Wilson in the Senate, a growing number of representatives in the House were coming to believe that the Constitution allowed Congress, as a war measure, to legislatively abolish slavery in a state. This conclusion divided congressional Republicans. Eliot led off the ensuing debate. He justified congressional emancipation on the ground that the Constitution vested the war powers in the legislature as well as in the commander in chief. He even claimed that Congress could free all the slaves in a state because, in this instance, entire states had committed the crime of treason. When Eliot finished his lengthy address, he was followed to the podium by a long line of Republicans defending the radical emancipation bill. The Constitution no longer applied to the seceded states, they said. And even if it did, surely the Constitution required the federal government to protect the slaves who had proved their loyalty to the Union rather than the slaveholders who had rebelled against it. In a state of war, another Republican declared, we may take the enemy’s property, “burn his cities, devastate his fields, deprive him of his life, all of which are great intrinsic evils, but it is said that we may not perform that intrinsically righteous act—emancipate his slaves.”12 The upsurge of radicalism among House Republicans was impressive, but it was not enough to get the Eliot bill passed.

  The bill went back to committee with instructions to specify more clearly the classes of persons whose slaves could be confiscated, and to restore the president’s discretion—and with it the “military” character of emancipation—by requiring a proclamation from the commander in chief for the law to take effect. The substitute bill was a labyrinth of classifications and jargon, but it did specify six classes of persons whose slaves would be emancipated, including those still in armed rebellion sixty days after a presidential proclamation. It also authorized the president to “appoint commissioners to carry the act into effect.” Thus amended, the emancipation bill sailed through the House on June 17 by a vote of 82 to 54.13

  When the two House bills arrived in the Senate on June 23, they were rejected in favor of the single bill that had been hammered out by Senator Clark as chair of the Senate’s Select Committee. On June 28, the Senate approved its own bill by a typically lopsided vote (28 to 13) in which nearly every Republican approved and nearly everyone else opposed. The House, in no mood to be snubbed, took up consideration of the amended Senate bill on July 3 and quickly rejected it by an overwhelming vote of 124 to 8. Eliot and his colleagues clearly preferred to put confiscation and emancipation into two separate bills. Back in the Senate, Clark insisted on a single bill. All of this meant that the legislation would have to go to a conference committee. On July 11, Congressman Eliot caved, and the Conference Committee reported the Senate version to both Houses. As Senator Wilson later put it, the Conference Committee’s report “combined confiscation and emancipation in one bill.”14 That same day, the House voted, 82 to 42, to accept the report. The next day, July 12, the Senate approved it by an even more lopsided vote of 27 to 12. Only two Republican senators—Browning and Cowan—voted against it.

  The differences among Republicans over emancipation were largely strategic. The most troublesome issue—presidential discretion—did not arise from any fundamental disagreement among Republicans over the desirability of emancipation. To be sure, senators sometimes expressed concerns over the wording of different clauses in the bills under consideration. Senators Samuel Pomeroy and Charles Sumner, for example, wanted Trumbull’s bill to make absolutely clear that the U.S. government would in no way be involved in the capture and return of fugitive slaves. Trumbull assured them that it would not. Occasionally an errant conservative, like Republican Senator Cowan of Pennsylvania, complained that an emancipation bill would “extinguish” all hope of sectional reconciliation, but hardly any other Republicans agreed with him. Cowan also took the position, expressed most forcefully by Illinois Senator Orville Browning, that an emancipation statute was superfluous because “the war powers of the Government were fully adequate to the needs of the occasion.” Cowan insisted that authorizing the president to emancipate the slaves of rebels was “utterly valueless” since “the President and his generals, under the war power” were already “clothed with ample authority.” In the House, Pennsylvania Congressman John Hickman took a similar position and opposed the bill “because the President had all the power now.”15 Senators Sherman and Collamer wanted the bill to specify the “classes of rebels” whose slaves would be freed, as did several Republicans in the House, and the final bill did so. But no Republican denied that emancipation was legally sound, militarily necessarily, or morally just.

  Notwithstanding the Senate’s decision to combine the two House bills into one, the distinction between emancipation of slaves and the confiscation of other property was clearly understood at the time. Slaves could be emancipated because the constitutional restriction on permanent confiscation—the ban on attainder—applied only to real estate. “It was the realty, and the realty only, that the attainder acted on,” Senator Browning explained. The “words of the Constitution,” Sumner argued, applied to real estate but “do not forbid the forfeiture of personal estate.” The ban on attainder, Lincoln agreed, “applies only in this country, as I understand, to real, or landed estate.” This distinction meant, among other things, that court proceedings were unnecessary to emancipate slaves whose owners were “in rebellion.” In loyal slave states like Kentucky and Missouri, where the courts were functioning but where numerous slaveholders supported the Confederacy, “the property of the traitor” could be forfeited upon conviction, Trumbull explained, “the personalty [slaves] forever, and the real estate, under the Constitution, for life only.” For more than a generation, antislavery lawyers had carefully worked out the distinction between slaves and other forms of property, arguing that “property in man” was not constitutionally protected. Here, in the careful construction of the Second Confiscation Act—more than anywhere else during the long process of slavery’s destruction—the seeds sown by the antislavery movement were bearing fruit. Thanks to abolitionist lawyers and politicians, it was easier for Republicans to free a slave than to confiscate a house.16

  Lincoln had only a few minor concerns about the emancipation provisions of the bill. It was “startling,” he said, to claim “that congress can free a slave within a state.” It is unclear what Lincoln was concerned about here. He may have wanted Congress to indicate that it was emancipating slaves not in “states” but in areas “in rebellion.” He might have wanted to clarify that Congress could emancipate only in areas occupied by the Union army, thus preserving its military character. Or he may have been thinking of the Border States, where the law specified emancipation as a punishment for rebellion or treason. But whatever Lincoln was referring to, he considered it a minor problem—“an unfortunate form of expression, rather than a substantial objection,” Lincoln explained. Lincoln’s second minor concern pertained to a technical procedu
re, which was easily met by the addition of a simple sentence. Under the bill there were six classes of rebels whose slaves could be forfeited, but the bill did not state who had the authority to determine whether the owner of any given slave fell within one of those six classes. Finally, Lincoln wanted to ensure that emancipation as a punishment for crime—as opposed to military emancipation—could apply only prospectively, to activities that were deemed criminal after the bill’s passage.

  Lincoln’s major objection to the Second Confiscation Act had nothing to do with emancipation. He was worried that the provisions for confiscating real estate in rebellious areas violated the constitutional ban on attainder. When he introduced the bill in December, Senator Trumbull had proposed “the absolute and complete forfeiture forever to the United States of every species of property, real and personal” owned by rebels in any areas that were “beyond the reach of civil process in the ordinary mode of judicial proceeding in consequence of the present rebellion.” That is, in the seceded states there was no distinction between real estate and slaves—all the property was forfeited “forever,” without court proceedings. Only in the loyal states were courts required, and only in those cases was the real estate of convicted traitors protected by the constitutional ban on attainder. Lincoln objected to this. He did not believe real estate anywhere could be confiscated “forever.” To be sure, under the laws of war, belligerents had the right to occupy territory and confiscate homes for military purposes, but the confiscation of real estate lasted only as long as the war persisted. Lincoln worried that the bill Congress was about to pass did not make this clear enough, that it might therefore violate the Constitution’s ban on the confiscation of real estate beyond the life of the convicted traitor. Lincoln asked Congress to remain in session an extra day to remedy the legal defect. His concerns were so serious that he was prepared to veto the entire bill if the problems were not corrected.17