July 16, 2012, 8:30 PM
By SEAN WILENTZ
On July 17, 1862, the last day of the congressional session, President Lincoln signed into law “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes,” commonly known as the Second Confiscation Act. That same day, Lincoln also signed a Militia Act, which authorized the enlistment of “persons of African descent” to serve in the Union military as laborers “or any other military or naval service for which they may be found competent.” Together, the measures were important markers in the fitful transformation of the war for the Union into a war of emancipation — a war in which ex-slaves and free blacks would play important roles. Both acts also signified the important role congressional Republicans played in advancing that transformation.
With so much historical attention fixed on Lincoln and his generals, it is easy to overlook the contributions of the peculiar but forceful 37th Congress. Elected alongside Lincoln in 1860, the Congress’s size was diminished by Southern secession even before it had assembled. A handful of Unionists from Virginia, Tennessee and Louisiana would serve in the House beyond its first brief special session, called by Lincoln to open on July 4, 1861; otherwise, both chambers were composed entirely of Northern and Border States representatives. Of these, about one-quarter of both the House and Senate were Democrats, a considerably smaller portion were independent Unionists, while roughly three in five were Republicans.
Under Republican leadership, the Congress quickly passed a series of bold measures, some directly related to the war and some not. First, during the opening special session in the summer of 1861, came the Revenue Act, which included the first provision for a federal income tax in the United States. Thereafter, during the ensuing regular session, came the Legal Tender Act (authorizing the issuing of paper money, or “greenbacks”), the act abolishing slavery in the District of Columbia, the Homestead Act, a second Revenue Act, the Pacific Railway Act and the Morrill Land Grant Colleges Act, among other measures.
As in the case of abolition of slavery in the capital, the Republican legislators were making good on their campaign vows to curtail or abolish slavery wherever the Congress had, in their view, the clear constitutional authority to do so. (The secessionists, far from being deluded hotheads, had sound reason to believe that, with a Republican in the White House, a Republican-controlled Congress — which would have existed even if the South had stayed in the Union — would do everything in its power to put slavery on the road to extinction.) Much of the rest of the legislation concerned funding the war effort. But by opening the way for building a transcontinental railroad, providing inexpensive homesteads to prospective western settlers, and expanding opportunities for higher education, the Republican Congress was also acting on the impulse, most closely identified with the old Whig Party, to deploy the federal government’s power vigorously in pursuit of the public welfare.
During its opening months, the Congress displayed bipartisan unity in supporting war measures. But the question of what to do with slaves who had escaped to Union lines, which appeared when three slaves turned up at the Union-held Fortress Monroe in Virginia in May 1861, caused division. The administration approved General Benjamin Butler’s policy of treating the escapees as “contrabands of war,” just as Congress was wrestling with the same problem while debating a bill to confiscate all property — including, presumably, slave labor — used to aid the rebellion.
Some Border State representatives objected to any form of confiscation. The Constitution’s prohibition of Congress’s legislating against slavery in the states, they claimed — a prohibition almost universally recognized and honored — was no less intact during wartime than in peacetime. Northern Republicans replied by, in effect, drawing a distinction between abolition and emancipation: although Congress was powerless to abolish slavery in the states, they asserted, it could certainly confiscate and, some believed, emancipate the slaves of traitors. With remarkable accord, erasing factional lines that divided the so-called Radicals from more moderate Republicans, the Republican majority pushed forward with confiscation.
Over the strenuous objections of Border unionists and Democrats — the 37th Congress’s first serious partisan breach — both houses passed a bill that confiscated all slaves utilized in the Confederate war effort and declared that their masters would “forfeit” their claims to ownership. Despite the controversy it stirred, though, the act was extremely limited, confiscating only that minority of refugee slaves who had actually worked for the Confederate military while leaving it unclear whether those slaves were emancipated.
Nevertheless, the constitutional experts who designed the bill made subtle but portentous changes to the federal government’s relations to slavery. By treating the confiscated slaves not as chattel property but as persons “held to labor,” the bill implicitly endorsed the argument, long advanced by Republican political leaders, that there could be no legitimate property in human beings. (As a result, confiscation of slaves, unlike other property, would require no further legal proceedings.) The law also applied to owners in loyal Border States as well as seceded states that permitted the Confederates to employ their slaves’ labor. President Lincoln, saying that he feared the bill would anger the Border States and doubted its constitutionality, approached signing the measure, according to The New York Times, “with great reluctance,” yet he signed it anyway, ostensibly bowing to the political reality that, as virtually every Republican in both the House and Senate had voted for the bill, he had no choice.
The ensuing bloody year pushed the White House as well as the Congress to take more forceful steps toward emancipation. A minority of abolitionists and Radical Republicans had held to the idea from the war’s commencement that secession and war empowered the federal government to abolish slavery. But by early 1862, in the face of military setbacks, moderates and even conservatives in Congress were coming around to the idea that military necessity required freeing the slaves in order to rob the rebellion of the bondsmen’s labor. Something of a revolution in thought ensued. “You can form no conception of the change of opinion here as to the Negro question,” the conservative Senator John Sherman wrote to his brother, General William Tecumseh Sherman, in August. “I am prepared for one to meet the broad issue of universal emancipation.” The Second Confiscation Act, far more drastic than the first, was the great signal of Congress’s shift.
Unlike the First Confiscation Act, passed swiftly under the immediate pressure of the contraband question, winning approval for the second act required nearly the entire regular first session of the 37th Congress. On Dec. 5, 1861, three days after the session opened, Senator Lyman Trumbull of Illinois introduced a bill that would free the slaves of all who had participated in or abetted what Trumbull called “this wicked Rebellion.” Also in December, the House took up a similar bill. The proposals then languished for months in congressional committees. A separate, similar Senate resolution came up for debate the following February, after which various senators offered amendments and alternative proposals. Only in the late spring of 1862 did the Congress begin considering the bill in earnest.
A tall and nervously animated lawyer who squinted behind gold-framed spectacles, Trumbull had joined the Republican Party at its inception in the mid-1850s after serving for eight years as a Democrat in the Illinois State Legislature and for five years as an associate justice on the state supreme court. Selected in 1855 by the state legislature to serve in the United States Senate — in preference to Abraham Lincoln — Trumbull gravitated to the ranks of the Radicals in 1861, badly underestimating the newly elected President Lincoln as an expedient opportunist, and perceiving himself and his allies as a necessary force to goad the supposedly ineffectual president into action. In rising to explain his new confiscation bill, Trumbull left little doubt that he intended to help make emancipation not simply an effect but an aim of the Union cause. The bill, he announced, would not only compel the rebels and their abettors to forfeit “the persons they hold in slavery,” it would declare the slaves thus forfeited free.
Trumbull explained the underlying logic: “The right to free the slaves of rebels would be equally clear with that to confiscate their property generally; for it is as property that they profess to hold them: but, as one of the most efficient means for attaining the end for which the armies of the Union have been called forth, the right to restore to them the God-given liberty of which they have been unjustly deprived is doubly clear.” Emancipation, in short, was a matter of military necessity that would also end the oppressive fiction that slaves actually were the property their masters claimed they were.
When they finally turned to the confiscation question, congressional Republicans argued over numerous details, most important whether the bill ought to compel or permit the president to put its terms into effect. The complicated bill that finally passed authorized severe penalties for all rebels, especially high-ranking Confederate officials. It also authorized, although it did not require, the president to warn the Confederacy’s supporters to cease their rebellion or face confiscation. The army would be forbidden to return fugitive slaves to disloyal owners, and Lincoln would be permitted to enlist blacks in any capacity he thought necessary to suppress the rebellion. Above all, the bill’s ninth section declared “forever free of their servitude” all rebel-owned slaves who had escaped to Union lines or who lived in all territories currently or subsequently held by Union troops. As with the First Confiscation Act, the confiscation of slaves would be self-executing and require no further legal proceedings. In sum, the bill turned the Union army into an army of liberation not just for refugee slaves, but for the vast preponderance of those slaves who lived in conquered portions of the South.
While the debate over the Second Confiscation Bill reached its climax, Congress also considered a new bill concerning the raising of black troops. Radical Republicans had vainly advocated such a measure from the very beginning of the regular congressional session, but by July, more moderate Republicans, alarmed by heavy Union military losses, began moving to support an amendment to the Militia Act of 1795. The amendment would authorize the president to open service to blacks for manual labor jobs or (much as the new confiscation bill would stipulate) any other task they could handle — which presumably might include combat duties. Rebel-owned slaves who enlisted would, along with their immediate families, be declared free. Although it opened up the possibility of blacks serving in combat, the proposal presumed that they would serve mainly as laborers, their value being in freeing up white soldiers for combat duty.
As they did in response to any proposal that even touched on emancipation, Border State representatives howled in opposition. It was thus all the more remarkable when the conservative and highly influential Republican Senator William Pitt Fessenden of Maine delivered a long speech supporting the amendment, challenging those representatives who grow “so sensitive the moment that you speak of employing negroes, the slaves of rebels, in the service of the country.” As he finished mulling over the Second Confiscation Act, passed less than a week earlier, Lincoln signed the Militia Act, secure in the knowledge that it would go into effect only following a presidential order.
The new confiscation act caused Lincoln more difficulty, as he had hoped the Congress would not pass any legislation touching on confiscation that might complicate his own efforts to hold together the disparate pro-Union alliance. Craftily, he drafted a veto message that criticized the bill for, among other things, failing to provide the means for distinguishing fugitive slaves owned by Confederates from those owned by loyal Unionists. But he also consulted with several members of Congress and obtained a resolution specifying that no forfeiture of rebel real estate would last beyond the life of the owner, in line with the Constitution’s prohibition of bills of attainder. Congress stayed in session one extra day to get the resolution approved — and that same day, along with the Militia Act, Lincoln signed the confiscation bill, even as he released his draft veto message.
Lincoln’s seemingly ambivalent actions irritated and even incensed some Radical Republicans, in and out of Congress. So did, thereafter, what his critics unfairly took to be his slowness to enforce the Second Confiscation Act — in deference to what Horace Greeley called the “fossil politicians” of the Border States — as well as public statements that seemed to hedge on emancipation. As usual, though, the Radicals were underestimating Lincoln, who was heeding his own counsel — and quietly following his own course on emancipation.
Exactly how and when Lincoln devised his new approach remains unclear, though he had plainly been pondering it, as was his wont, for some time before July 17. On July 21, only four days after he signed the Second Confiscation Act and the Militia Act, Lincoln informed his cabinet he had resolved to implement provisions of the acts. And the following day, he delivered to the cabinet a new draft order—what would later be known as the draft of the Emancipation Proclamation. It began by warning Confederates, under the stipulations of the new confiscation act, to cease their rebellion in 60 days or face the confiscation of their property, including slaves. The order then reaffirmed Lincoln’s longtime support for gradual emancipation with compensation to the slaveholders. The last sentence contained Lincoln’s bombshell: under his authority as commander in chief, he would declare that on Jan. 1, 1863, “all persons held as slaves” in states still controlled by the rebels “shall then, thenceforward, and forever, be free.”
The congressional Republicans had labored hard, and on July 17, 1862, their pursuit of emancipation, as well as black military enlistment, brought the enactment of legislation that, as one Illinois congressman would later remark “has not been fully appreciated.” What they did not know was that President Lincoln, whom a number of them distrusted, was silently hard at work on his own, preparing the way for a proclamation beyond anything Congress had yet envisaged.
Sources: Congressional Globe, 37th Congress, first and second sessions; Henry Wilson, “History of the Anti-Slavery Measures of the Thirty-seventh and Thirty-eighth Congresses, 1861-65″ (Boston, 1865); Allan G. Bogue, “The Earnest Men: Republicans of the Civil War Senate” (Ithaca, NY, 1981); James M. McPherson, “Battle Cry of Freedom: The Civil War Era” (New York, 1988); Eric Foner, “The Fiery Trial: Abraham Lincoln and American Slavery” (New York, 2010).