During the Civil War’s first important battle at First Bull Run in July 1861, Union observers saw thousands of slaves doing supportive work for the Confederate army. Since the Union force was defeated at the battle, Northerners concluded that they were not going to end the war as quickly as previously supposed. Consequently, a property confiscation bill targeted at Southerners was passed and signed by Lincoln the following month. It permitted the Union army to confiscate property, including slaves, used in the service the Confederate government. Generally court proceedings were required before property could be condemned. In the case of slaves, however, no legal proceedings were required.
Before the end of the year Radical Republicans wanted to strengthen the act so that the private property of disloyal citizens could be seized even if such property was not directly used to support the Confederacy. They also wanted to impose potentially mortal penalties for disloyalty. Democrats and moderate Republicans, including President Lincoln, were concerned about the impact of such measures on the loyalties of the border-states where slavery was still legal and many families had members serving under Confederate arms. They also questioned the constitutionality of a more liberal seizure policy.
The result was the Second Confiscation Act, which was adopted on July 17, 1862 partly in response to the reverses of McClellan’s army on the York-James peninsula. It essentially declared that any Southerner who served in the Confederate government or military could be convicted of treason, punishable by death. Other persons who merely aided the rebellion could be imprisoned for up to ten years. The property, including slaves, of both guilty categories was subject to confiscation. Before signing the bill, however, Lincoln stipulated that confiscation of real property could only be temporary as implied by the Constitution. It could not extend beyond the life of the offender. Thus, the property rights of a Confederate soldier’s wife and children would be restored upon the soldier’s death. A plantation, for example, would revert back to the owner’s heirs, even if he died years after the war. The U.S. Congress passed a joint resolution agreeing to Lincoln’s limitations.
After the Union won the war, the Act might have radically transformed Southern society by creating an opportunity for the general redistribution of land. Since Lincoln nearly vetoed the bill, however, he did little to enforce the law. Southerners were not arrested for treason. Land confiscations were modest although about a million acres was seized for non-payment of federal taxes under a different act. Perhaps most importantly, Article 13 of the law permitted the President to exempt Southerners from the consequences of the Act by granting them pardon or amnesty on whatever terms he felt appropriate. Equally important, the Article would be available to his White House successors.
Modern historians commonly applaud the Second Confiscation Act as a precursor to the Emancipation Proclamation and an example of the Northern commitment to racial equality. But the Act itself, together with eventual Northern reaction to it, reveals that those who were against slavery were not necessarily for racial equality. First, Article 12 authorized the President to colonize willing African-Americans to Central America. Lincoln himself told a delegation of blacks that he believed the white and black races should live separately and therefore favored colonization. Second, even in the North confiscation was regarded as revolutionary. If permitted in the South many Northern property owners worried that the concept could take root across the country. Thus any aggrieved sector of voters might encourage government confiscation of properties owned by anyone accused of abusing their property rights.
Ultimately the provisions of Article 13—specifically endorsed by President Lincoln—would determine whether the Second Confiscation Act would be the tool to create a Southern economy populated mostly by yeomen white and black farmers, instead of plantations or tenant and sharecropped farms. Bills to strengthen the power of the federal government to confiscate Southern lands were introduced by Congressman Thaddeus Stevens as late as 1867 but had no chance for passage even though the Republican Party held near veto-proof control of Congress. As noted in my post on the Fourteenth Amendment, Northerners with a professedly unalloyed interest in the welfare of freedmen more often used the Amendment to protect property rights than civil rights.
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