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An Act to Confiscate Property Used for Insurrectionary Purposes

The 37th Congress wrote and passed this bill in order to change the pre-existing government policy towards escaped formerly enslaved persons. Early in the Civil War, the 37th Congress examined whether the pre-existing policy towards "fugitive slaves" would apply to enslaved persons forced to work for the Confederate armed forces who escaped to Union lines.
Author
37th U.S. Congress
Grade Level

This text is part of the Teaching Hard History Text Library and aligns with Key Concepts 3 and 7.

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.

Source
This text is in the public domain. Retrieved from http://www.freedmen.umd.edu/conact1.htm.
Text Dependent Questions
Question
What did the First Confiscation Act say about the property of rebels?
Answer
This act claimed all property used by or in support of the Confederate war effort was liable to seizure by the U.S. federal government. Section 1 of the act is dedicated to this purpose.
Question
What did the First Confiscation Act say about enslaved persons? Does it do this explicitly or implicitly?
Answer
The act says nothing directly about enslaved persons. But by claiming a right to seize all property used to aid the rebel war effort in Section 1, the act is opening the door for seizure of enslaved persons forced to work for the Confederate war effort. The act touches on this more directly in Section 4, when it declares that the federal government does not need to respect the labor or contract rights of any laborers supporting the Confederate war effort, whether “required or permitted.”
Question
In what ways was the First Confiscation Act a radical document?
Answer
One might emphasize the extent to which this new government policy deviated from the policy that had existed and grown since 1789 in regards to respecting the rights of enslavers towards the persons they enslaved or claimed as property. One might also emphasize that this was an important step towards the Emancipation Proclamation and Thirteenth Amendment, regardless of whether it was a big step or a small one.
Question
In what ways was it a conservative document?
Answer
One might point to the fact that it does not identify enslaved persons directly by using the terms “slavery” or “slave,” the same conservative ambiguity used by their predecessors who wrote the Constitution. One might also point out that the act does not promise freedom to these formerly enslaved persons but rather simply decrees that their former enslavers no longer had legal authority over them. One might also point to the fact that the act legalizes the confiscation only of those enslaved persons who were being used in the Confederate armed forces.
Question
Was the First Confiscation Act constitutional?
Answer
There are arguments to be made on both sides. Those that argue it was constitutional might point to the war powers of the executive outlined in Article II, Section 2. Those that argue it was unconstitutional might point to the long-standing precedent outlined in Article IV, Section 2 and then further established by the Fugitive Slave Laws of 1793 and 1850. Students might also get into a discussion of how to break from precedent, as well as other issues such as that of federalism or Fifth Amendment property rights.