Was the 1862 Confiscation Act Really the First Emancipation Proclamation?

July 17, 1862 (Thursday)

Georgia slaves preparing cotton for the gin.

There was little doubt at the time that slavery was the root cause of the Civil War. All of the seceding states that gave reasons for their egress from the Union prominently focused upon slavery as the dividing issue. The fear that the northern states would free the slaves and, as Mississippi’s declaration put it, promote “negro equality,” were their main reasons for leaving the Union. As for the few states that declined to give official reasons, government officials, such as Tennessee’s Governor Isham Harris, were very outspoken in defense of human chattel. The Federal government, according to Harris, “asserted the equality of the black with the white race.”1

Though the barrages of rhetoric exhausted through the mouths and pens of the Southern state governments was melodramatic and dripping with indignation, they weren’t completely misguided. The Republican Party was, at least unofficially, the party of the more center-leaning abolitionists. If slavery was to be curtailed, it was the Republican Party, more so than the Democratic Party, that would be doing the curtailing. And though Abraham Lincoln had repeatedly said that he would not interfere with the institution of slavery, he was, in fact, interfering with the institution of slavery.

The first major wartime interference in the right to own human beings came in the form of the Confiscation Act of 1861. Passed in August of that year, it confiscated the slaves (and other property) that were used to aid the Confederate war effort. The slaves were freed, but the Act provided no definition of that freedom. In practice, the “freed” slaves were put to work aiding the Union war effort.

1859 depiction of slavery, softened just a bit.

Throughout the spring session of 1862’s Congress, a second Confiscation Act was debated. Finally, on this date, it passed.2

This second act was very clear. The law against treasonous persons, which was originally written in 1790, advocated the death penalty as the only punishment. 1862’s Confiscation Act reiterated that law (obviously targeting those currently in rebellion), and tacked “and all his slaves, if any, shall be declared and made free” onto the end of it. However, it allowed the courts to issue lesser sentences, such as a five year prison term. But even that included the phrase: “and all his slaves, if any, shall be declared and made free.” A harsher sentence of ten years in prison was also required for the more fervent Rebels.

The crux of the Act fell in the ninth section:

That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.

Virginia slaves fleeing their former owners, near Rappahannock River, July-August of 1862.

The 1790 law against treason was issued during a much simpler time; a time when entire sections of the country weren’t in rebellion against the Federal government. While treason was still, technically, a capital offense, Congress was acknowledging that maybe things were presently not so black and white.

Mostly, however, it was enacted as a strike against the Southern slaver-owning society. This Act freed the slaves of anyone supporting the Confederate cause. Any escaped slaves (of rebellious owners) that came into Union lines were likewise freed.

The act also allowed the President “to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion, and for this purpose he may organize and use them in such manner as he may judge best for the public welfare.” This was not quite an allowance to arm the slaves, but it was edging ever closer.

Of course the Confiscation Act of 1862 was not in favor of equal rights. In one of its closing paragraphs, it gave the President the right to colonize “in some tropical country beyond the limits of the United States, … such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen.”3

Slaves in Georgia

Even for the philosophy of colonizing freed blacks, this was a step in a more radical direction. Prior support of colonization leaned more towards the mandatory than the voluntary.

Despite its relative leniency towards those in rebellion, and despite the suggestion of colonization, most people immediately saw the act as an emancipation proclamation. But they also must have realized that it would be impossible to enforce. Typically, confiscation acts were put into place to seize enemy crops, supplies and other property that could aid in the war effort. While slaves were technically property, the Confiscation Act of 1862 seemed barely concerned with much aside from freeing the slaves. Their freedom might hinder the Southern war effort, but, unless they were funneled directly into the Union lines as laborers, they did little to aid the Northern war effort.

Almost ensuring its failure was the Act’s complete lack of detail concerning who would enforce the confiscations. Who would do the confiscating? Who would determine whether a Southern slave owner was a Rebel or Unionist? Though the military was moving through the South, and though the Act was a military measure, these decisions were civil decisions, and they were left unanswered, rendering the Confiscation Act of 1862 only slightly more specific than its predecessor.4

  1. Quotes taken from The Confederate and Neo-Confederate Reader edited by James W. Loewen and Edward H. Sebesta, University Press of Mississippi, 2010. This book, consisting mostly of primary documents in defense of slavery, secession, and the supremacy of the white race is absolutely essential reading to anyone with an interest in the Civil War. []
  2. From Property to Person: Slavery and the Confiscation Acts, 1861-1862 by Silvana R. Siddali, LSU Press, 2005. []
  3. Confiscation Act of 1862, July 17, 1862. []
  4. From Property to Person: Slavery and the Confiscation Acts, 1861-1862 by Silvana R. Siddali, LSU Press, 2005. []
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Was the 1862 Confiscation Act Really the First Emancipation Proclamation? by CW DG is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International


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