Enacted by Congress and signed by President Lincoln on August 6, 1861, the Confiscation Act of 1861 declared fugitive slaves used or employed in aiding, abetting, or promoting war against the United States to be contraband and stripped the proprietors of such slaves to their rights to ownership.
On May 23, 1861, three slaves, Frank Baker, Sheppard Mallory, and James Townsend, commandeered a rowboat and escaped during the night to federally controlled Fort Monroe near Hampton, Virginia. When Major Cary, an agent for their owner, Colonel Charles K. Mallory, later appeared at the fort and demanded their return as mandated by the Fugitive Slave Act of 1850, Major General Benjamin Butler refused. A distinguished lawyer before the war, Butler argued that the Fugitive Slave Act "did not affect a foreign country, which Virginia claimed to be." Butler went on to declare that, because the three slaves had been used to support the Confederate war effort, he considered them to be "contraband of war" as provided by international law. In effect, the three men became property of the United States government.
Butler's predicament and subsequent solution illustrate the ambiguity that existed regarding the status of captured or escaped slaves after the American Civil War began. Like other early American insurrections (such as Shays' Rebellion, the Whiskey Rebellion, Fries's Rebellion, and the Dorr Rebellion) many people expected Southern secession to be short-lived. As a consequence, neither Congress nor the War Department had formulated a policy regarding fugitive and captured slaves by the time the three escapees landed at Fort Monroe.
As the war progressed, and other Union officers faced similar situations, the War Department endorsed Butler's "contraband" solution. When the Confederate victory at the Battle of Bull Run I (July 21, 1861) signaled that the Southern insurrection might be more prolonged than first expected, an increasingly disquieted Congress soon became concerned about the advantage that the use of forced labor yielded the Confederacy. In late July, Illinois Senator Lyman Trumbull spearheaded an effort in Congress to deprive the Confederacy of the use of slave labor to bolster the rebellion. Despite opposition from Democrats and border state politicos, legislation codifying Butler's actions quickly moved through both houses. Ohio Congressman John A. Bingham crafted the language of the completed bill entitled An Act to Confiscate Property Used for Insurrectionary Purposes. More commonly known as the Confiscation Act of 1861 and later as the First Confiscation Act, the legislation was approved by the Senate (twenty-four to eleven) and by the House (sixty to forty-eight) on August 6, 1861. Despite reservations about the constitutionality of the law and concerns about upsetting residents of borders states, President Abraham Lincoln signed the bill on the same day.
The Confiscation Act of 1861 stipulated that all property (including slaves) "used or employed, in aiding, abetting, or promoting . . . insurrection or resistance to the laws" of the United States "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." The legislation further specified that "during the present insurrection against the Government of the United States," any slave owner who "required or permitted" his chattel "to take up arms against the United States, or to work . . . in any military or naval service whatsoever, against the Government and lawful authority of the United States . . . shall forfeit his claim to such labor."
In plainer language, the law declared fugitive slaves used or employed in aiding, abetting, or promoting war against the United States to be contraband and, therefore, subject to seizure by the federal government. In addition, the legislation stripped the proprietors of such slaves of their rights to ownership.
The Confiscation Act of 1861 was a significant first step towards universal emancipation, but it was extremely limited in scope and was rife with numerous shortcomings. The act affected only slaves who were captured by federal forces or who escaped behind Union lines. Of that group, only slaves whose labor directly aided or abetted the Confederate war effort were considered contrabands. Legal hassles inherent in determining whether fugitive slaves had or had not directly aided or abetted the Confederate cause discouraged some Union military commanders from trying to enforce the law. Other officers chose to ignore the law because they were not sympathetic to emancipation or because they did not welcome the added burden of caring for thousands of contrabands while trying to wage war. The final and perhaps greatest deficiency in the legislation was that the act left the status of the contrabands in limbo. The act clearly divested the owners of contrabands of their property rights, but the legislation stopped short of explicit emancipation. A succession of further legislation, executive orders, and constitutional amendments during the next few years would emancipate and legally cement the rights of all former slaves in the United States.