Congress Continues to Lead on Emancipation

The July 8 edition of Civil War Emancipation dealt with Congress taking the lead with emancipation early in the Civil War, while the Lincoln hung back and concentrated on appeasing loyal slaveholders in the border states to forestall secession there. Congress met in special session from July 4 to August 6, 1861, to deal with pressing legislative business created by outbreak of the war (normally in the 19th century, Congress only met annually from December through March). During the special session, opponents of slavery in the House of Representatives pushed through a resolution absolving the Union army of hunting for fugitive slaves. Although they were unable to stop a different resolution affirming the war was not about slavery, Congress passed the First Confiscation Act in August 1861 legalizing the federal seizure of the property of disloyal persons, including slaves. Although leaving slaves liberated by Union forces in an uncertain state, effectively no longer slaves but also not free, it proved a powerful blow to the peculiar institution since it called into question the human property rights of most slaveholders, something that heretofore had been sacrosanct under federal law.

On December 2, 1861, the U.S. Congress returned for a regular session in an atmosphere more hostile to slavery in the North than at its last meeting. With the realization after the initial battles that the war would be not be quick, increasingly many white Northerners came to believe that only the end of slavery would make the conflict worth it and forestall a further war over slavery in the future. Gen. John C. Frémont’s martial law proclamation in Missouri, freeing the slaves of disloyal owners, although rescinded by President Lincoln, also further galvanized support for emancipation in the North and energized abolitionists in Congress to renew their assault on slavery.

In launching their attack, the Radicals cleverly chose to humanize the issue by initially targeting Washington, D.C.’s jail, which in December 1861 held about sixty alleged slaves. As described by Kate Masur in her recent piece in Disunion in the New York Times:

Rising to speak to the Senate on Dec. 4, 1861, the third day of the Congressional session, Henry Wilson of Massachusetts brandished a report on the sordid conditions in the Washington jail and, in particular, on 60 African-American prisoners held within it. Wilson had been to the jail to witness the stunning “scene of degradation and inhumanity.”

Male and female prisoners were poorly clothed and fed, he said, crowded into a crumbling building and suffering from myriad diseases. Most were slaves “brought by our armies into the city, having run away from disloyal masters” or sent to the jail by their owners “for safekeeping.” Some were free blacks unjustly imprisoned under antiquated “black codes.” Wilson wanted them all released immediately, and he proposed a resolution ordering the District of Columbia marshal to do just that.

Making an issue of the treatment of African-American prisoners in the D.C. jail, besides demonizing slaveholders and creating sympathy for the slaves, had the added benefit of being one that Congress could act on with its legislative control over Washington, D.C. Also forcing the issue was the fact that the city’s police force in Fall 1861 still vigorously enforced city laws dealing with slavery and the black codes restricting the lives of free blacks there. Congressional efforts to help the imprisoned slaves would culminate the following April in the passage of a law abolishing slavery in the District of Columbia and the city’s black codes.

More generally, starting in December 1861, Congress attacked slavery in two other ways. First, by making it illegal for Union forces to aid in capturing fugitive slaves. The fruit of this effort was a law passed in March 1862, directing that the army no longer enforce the Fugitive Slave Act. Second, Congress worked on legislation to free formally the slaves confiscated from disloyal owners. Lyman Trumbull of Illinois threw down the gauntlet in this effort by announcing as the first piece of substantive business before the U.S. Senate on December 2, 1861, his intention “to introduce a bill for the confiscation of the property of rebels and giving freedom to the persons they hold in slavery.” The efforts of Trumbull and other abolitionists in Congress would result in July 1862 in the passage of the Second Confiscation Act, freeing the slaves of disloyal owners.

Abraham Lincoln, of course, would spend the first half of 1862 trying to coax the Border states to embrace the idea of gradual compensated emancipation. So it is not fair to Lincoln to assert that he opposed the efforts of Congress toward emancipation, especially as he signed into law the bills they passed in this regard. But his efforts were more geared toward getting loyal slaveholders voluntarily to agree to end slavery in return for compensation and the gradual implementation of emancipation. Repeatedly rebuffed in his efforts and in response to serious Union reverses on the battlefield in the first half of 1862, the President quietly accepted the congressional approach and drafted the preliminary Emancipation Proclamation, waiting for a major military victory to provide political cover to announce it (so it would not appear a desperate move). But as 1861 ended, that shift of approach was still half of year in the future and Congress clearly was still in the lead on the issue of emancipation. But Lincoln, although remaining solicitous to the interests of loyal slaveholders, was beginning to move in Congress’ direction on the issue.

Source: Congressional Globe, 37th Congress, 2nd Session.