On August 6, 1861, Abraham Lincoln signed into law what became known to history as the First Confiscation Act. This piece of legislation was a major milestone on the path to emancipation in the United States. It basically transformed into law Benjamin Butler’s contraband of war policy.
The law read as follows:
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.
While it did not formally free the slaves, this law allowed the federal government to confiscate any property being used to aid the Confederacy. In practice, the First Confiscation Act divested disloyal owners of their slaves. While the slaves would technically become federal property when they came into Union hands, as a practical matter the government had no interest in owning slaves. Hence, the First Confiscation Act effectively freed the slaves of any disloyal owner that came into government custody because federal officials tended to treat contrabands as if they were free, paying them for their work, and increasingly giving them access to other badges of freedom, such as education, legal marriage, etc.
The First Confiscation Act also lent further legitimacy to the Union army and other federal representatives giving sanctuary to slaves as they moved into Confederate territory. In addition, it tended to undermine slavery even in the loyal border states because it was difficult to differentiate between slaves of loyal and disloyal owners when they fled into federal custody.
While it is true that President Lincoln signed this law reluctantly (concerned how it would be perceived by loyal slaveholders) and did not utilize the formal condemnation provisions entailed in the law, Lincoln later would cite it and the Second Confiscation Act (passed in July 1862, which did formally free the slaves of disloyal owners) for authority in the Emancipation Proclamation. Hence, the First Confiscation Act shows yet again how Congress early in the Civil War took the lead in pushing for emancipation, while Abraham Lincoln, concerned with maintaining the loyalty of the slaveholding border states, lagged behind.