“Only a Question of Time” — The First Confiscation Act

August 5, 1861/2011
Volume 2, Issue 33 (43 Issues Since 15 October 2010)

“Only a Question of Time”
The First Confiscation Act and the Road to Emancipation

August 6, 1861. In the months prior to the outbreak of the war, escaped slaves seeking sanctuary inside the handful of coastal forts in the South that defiantly remained in Union hands were either returned to their owners or remanded to local authorities; that is, the garrisons continued to enforce the federal Fugitive Slave Act. As the war began, the irony of this situation was not lost on many in Washington, including Francis E. Spinner, a former New York congressman recently appointed to the Lincoln Administration, who made a remarkably prescient prediction:

“Thus far, our army has been but an armed police, whose duty has seemed to be to arrest and return runaway slaves to their rebel masters . . . this will work itself out. There can be but one result to this contest, and it is only a question of time, and the manner of its being done.”[1]

Not very much time, as it turned out. On the night of May 23, 1861 less than 24 hours after Virginia ratified its ordinance of secession, Frank Baker, Sheppard Mallory, and James Townsend, determined to cast off their bonds of enslavement, crossed the wide James River in a rowboat to Fortress Monroe, which was still flying the flag of the United States.

A sheet music cover with a scene of escaping slaves, produced around the time of Union general Benjamin F. Butler's declaration of such fugitives as contraband of war. The song was composed by Septimus Winner, and dedicated to Butler. Published in: American political prints, 1766-1876 / Bernard F. Reilly. Boston : G.K. Hall, 1991, entry 1861-38. Click on the image to see it larger.

A sheet music cover with a scene of escaping slaves, produced around the time of Union general Benjamin F. Butler’s declaration of such fugitives as contraband of war. The song was composed by Septimus Winner, and dedicated to Butler. Published in: American political prints, 1766-1876 / Bernard F. Reilly. Boston : G.K. Hall, 1991, entry 1861-38. Click on the image to see it larger.

The fugitives were met at the fort by a sentry from the 1st Vermont Regiment. As luck would have it the First Vermont was commanded by Colonel John Wolcott Phelps, a career army officer from Guilford, Vermont, who held unusually strong anti-slavery views.[2]  (In 1862, Phelps, by then a Union general serving in Louisiana, would stake his career on bringing African-Americans into the ranks of the US Army.)

The fugitives were passed up the chain of command to the Fortress’s commander, Major General Benjamin Butler. Upon learning that Baker, Mallory, and Townsend had been laboring on nearby Confederate fortifications, Butler declared the fugitives to be “contraband of war” and flatly refused to return them to bondage. Historian Eric Foner describes the ensuing confrontation:

“Shortly thereafter, an agent of Colonel Charles K. Mallory, their owner and the Confederate commander in the area, arrived under a flag of truce asking for the return of his human property. Butler replied that the Fugitive Slave Act ‘did not affect a foreign country, which Virginia claimed to be.’ But if Mallory took an oath of allegiance to the United States, Butler would return the men. This offer Mallory declined. . . .”[3]

Within weeks hundreds of fugitive slaves would find their way to Fortress Monroe — “freedom’s fortress.” Though no friend of abolition, Butler correctly perceived that the political winds in Washington were beginning to shift. News of his contraband policy spread quickly, and by July “an act to confiscate property used for insurrectionary purposes” was introduced in Congress, essentially codifying Butler’s actions.

Still reeling from the Union defeat at Bull Run and determined to raise the ante for “insurrection,” an increasingly war-hardened Congress overcame reservations about swelling ranks of “contraband” and passed the Confiscation Act on August 6, 1861. President Lincoln signed the bill the same day.

“In this small way,” wrote historian Silvanna Siddali, “Republicans in Congress were attempting to change slaves’ identity from chattel property to that of the individual. Historians usually claim that the Confiscation Act freed no slaves because it did not explicitly emancipate them.

In fact, however, the law interfered radically with the status of slaves as property because it proposed to discharge them from their labor — thus recognizing not only the slaves’ innate right to be free of coerced labor, but also affirming the federal government’s authority to make decisions about their status.”[4]

A first tentative step down the long and circuitous road to emancipation had been taken.

Fugitive slaves entering Fortress Monroe seeking the protection of Gen. Benj. Butler, Va. June 1861. Printed in Frank Leslie's illustrated newspaper, Library of Congress

Fugitive slaves entering Fortress Monroe seeking the protection of Gen. Benj. Butler, Va. June 1861. Printed in Frank Leslie’s illustrated newspaper, Library of Congress

SOURCE AND INTERESTING LINKS:

[1] Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (Norton, 2010), 176

[2] Adam Goodheart, 1861: The Civil War Awakening, (Knopf, 2011), 302

[3] Foner, 169

[4] Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 1861-1862 (Louisiana State University Press, 2005), 61

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