Confiscation Act of 1861
Encyclopedia
The Confiscation Act of 1861 was an act of Congress
during the early months of the American Civil War
permitting the confiscation of any of property
, including slaves, being used to support the Confederate
insurrection.
The bill
passed the House of Representatives
60-48 and in the Senate
24-11. Abraham Lincoln
was reluctant to sign the act; he felt that, in light of the Confederacy's recent battlefield victories, the bill would have no practical effect and might be seen as a desperate move. He was also worried that it could be struck down as unconstitutional
, which would set a precedent that might derail future attempts at emancipation. Only personal lobbying by several powerful Senators persuaded Lincoln to sign the legislation, which he did on August 6, 1861. Lincoln gave Attorney General
Edward Bates
no instructions on enforcing the bill; as a result, few such confiscations occurred.
With respect to slaves, the act stripped their owners of any claim to them but did not clarify whether the slaves were free. As a result of this ambiguity, these slaves became the property of the U.S. government
. To remedy this bizarre situation, General David Hunter
, the Union Army
military commander of Georgia, South Carolina, and Florida, issued General Order No. 11 on May 9, 1862 freeing all slaves in areas under his command. Upon hearing of Hunter's action one week later, Lincoln immediately countermanded the order, thus returning the slaves to their former status as property of the federal government.
Before the act was passed, Benjamin Franklin Butler
had been the first Union general to declare slaves as contraband; some other Northern commanders followed this precedent, while officers from the border states
were more likely to return escaped slaves to their masters. The Confiscation Act was an attempt to set a consistent policy throughout the army.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if, during the present or any future insurrection against the Government of the United States, after the President of the United States shall have declared, by proclamation, that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person or persons, his, her, or their agent, attorney, or employé, shall purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein; or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ, or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned.
SEC. 2. And be it further enacted, That such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be seized, or into which they may be taken and proceedings first instituted.
SEC. 3. And be it further enacted, That the Attorney-General, or any district attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.
SEC. 4. And be it further enacted, That whenever hereafter, during the present insurrection against the Government of the United States, any person claimed to be held to labor or service under the law of any State, shall be required or permitted by the person to whom such labor or service is claimed to be due, or by the lawful agent of such person, to take up arms against the United States, or shall be required or permitted by the person to whom such labor or service is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy yard, dock, armory, ship, entrenchment, or in any military or naval service whatsoever, against the Government and lawful authority of the United States, then, and in every such case, the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwithstanding. And whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States, contrary to the provisions of this act.
APPROVED, August 6, 1861
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
during the early months of the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
permitting the confiscation of any of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, including slaves, being used to support the Confederate
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
insurrection.
The bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
passed the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
60-48 and in the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
24-11. Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
was reluctant to sign the act; he felt that, in light of the Confederacy's recent battlefield victories, the bill would have no practical effect and might be seen as a desperate move. He was also worried that it could be struck down as unconstitutional
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
, which would set a precedent that might derail future attempts at emancipation. Only personal lobbying by several powerful Senators persuaded Lincoln to sign the legislation, which he did on August 6, 1861. Lincoln gave Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Edward Bates
Edward Bates
Edward Bates was a U.S. lawyer and statesman. He served as United States Attorney General under Abraham Lincoln from 1861 to 1864...
no instructions on enforcing the bill; as a result, few such confiscations occurred.
With respect to slaves, the act stripped their owners of any claim to them but did not clarify whether the slaves were free. As a result of this ambiguity, these slaves became the property of the U.S. government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
. To remedy this bizarre situation, General David Hunter
David Hunter
David Hunter was a Union general in the American Civil War. He achieved fame by his unauthorized 1862 order emancipating slaves in three Southern states and as the president of the military commission trying the conspirators involved with the assassination of President Abraham Lincoln.-Early...
, the Union Army
Union Army
The Union Army was the land force that fought for the Union during the American Civil War. It was also known as the Federal Army, the U.S. Army, the Northern Army and the National Army...
military commander of Georgia, South Carolina, and Florida, issued General Order No. 11 on May 9, 1862 freeing all slaves in areas under his command. Upon hearing of Hunter's action one week later, Lincoln immediately countermanded the order, thus returning the slaves to their former status as property of the federal government.
Before the act was passed, Benjamin Franklin Butler
Benjamin Franklin Butler (politician)
Benjamin Franklin Butler was an American lawyer and politician who represented Massachusetts in the United States House of Representatives and later served as the 33rd Governor of Massachusetts....
had been the first Union general to declare slaves as contraband; some other Northern commanders followed this precedent, while officers from the border states
Border states (Civil War)
In the context of the American Civil War, the border states were slave states that did not declare their secession from the United States before April 1861...
were more likely to return escaped slaves to their masters. The Confiscation Act was an attempt to set a consistent policy throughout the army.
Text of the act
An Act to confiscate Property used for Insurrectionary Purposes.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if, during the present or any future insurrection against the Government of the United States, after the President of the United States shall have declared, by proclamation, that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person or persons, his, her, or their agent, attorney, or employé, shall purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein; or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ, or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned.
SEC. 2. And be it further enacted, That such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be seized, or into which they may be taken and proceedings first instituted.
SEC. 3. And be it further enacted, That the Attorney-General, or any district attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.
SEC. 4. And be it further enacted, That whenever hereafter, during the present insurrection against the Government of the United States, any person claimed to be held to labor or service under the law of any State, shall be required or permitted by the person to whom such labor or service is claimed to be due, or by the lawful agent of such person, to take up arms against the United States, or shall be required or permitted by the person to whom such labor or service is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy yard, dock, armory, ship, entrenchment, or in any military or naval service whatsoever, against the Government and lawful authority of the United States, then, and in every such case, the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwithstanding. And whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States, contrary to the provisions of this act.
APPROVED, August 6, 1861