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Friend or Foe: Treason and the Second Confiscation Act
- The University of North Carolina Press
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Friend or Foe Treason and the Second Confiscation Act WILLIAM BLAIR During the American Civil War, many northerners had no problem with considering the Rebels as traitors to the Union.The betrayal of the government by the southern Confederates was one of the most common refrains sounded in newspapers, speeches, private correspondence, and essays. Yet nothing was more complicated than arriving at a practical application of treason. A civil war made it difficult to define the relationship of the Rebels to the U.S. government or to know what to do with the traitors when you got your hands on them. Were they still citizens—insurrectionists who were eligible for the death penalty as prescribed by U.S. statute? Or were they public enemies—the equivalent of foreigners making war with the Union? Could you execute the noncombatants who supported the Confederacy , or did you have to treat them as belligerents, subject to the international rules of war without the possibility of prosecution for treason? More to the point, the conservative nature of the law made treason a tricky thing to employ: it contained legal restrictions that made it difficult to gain a conviction. Plus, the war threw up practical obstacles against prosecution . Ultimately, the best way to use treason might be as the rationale for punishment outside of the civil courts, through the seizing of property by executive authority on the basis of a military necessity. These practical problems of treason come into focus in the debates over the Second Confiscation Act of July 1862. In fact, approaching this act through the lens of treason law and the debate over including this crime reinforces the recent trend among scholars to see the legislation as more moderate or conservative, rather than radical. Congress granted the bill the title of an act to punish treason, yet this vigorous declaration against disloyalty has clouded the complicated intentions behind its creation. It is easy to be misled into thinking that lawmakers intended only to visit a harsher war on the Confederate traitors. It also has been popular to as- 28 William Blair sume several things: that the act signaled a harder turn in the prosecution of the war and punishment of traitors; that it represented the efforts primarily of Radicals; and that it helped push Lincoln toward sterner policies against the enemy. Even studies that acknowledge the strong influence of moderate Republicans tend to privilege the radical perspective and goals whenever assessing the bill’s failure. Consequently, criticism of the measure ’s limitations often falls on Lincoln and the executive department, while overlooking the framers of the law.1 The Second Confiscation Act was, in fact, a bill that was not intended to accomplish very much—at least from the standpoint of treason. Admittedly , its provisions did attempt to help the military free slaves of Rebels who fell into the Union’s hands. But it was also such a messy and complicated piece of lawmaking, and contained such contradictory passages, that it had little or no chance of punishing traitors. Treason was added to the bill to make it clumsy and hard to implement.The point that has been underappreciated until recently bya few scholars is that it was deliberately constructed that way, with moderate Republicans and like-minded Democrats —not Radicals—dictating its final form. Men who hoped to prevent more revolutionary measures, or at least refused to abandon due process in the courts when dealing with the Confederates, guided the clauses on treason into adoption. Blame for the law failing to achieve radical goals lies foremost with moderate Republican senators such as Orville H. Browning, Daniel Clark, Jacob Collamer, and Edgar Cowan, along with key congressmen from the border region. For a long time, historians have expounded on the impact of the border states in causing Lincoln to move cautiously toward emancipation. It should come as little surprise that the same dynamic held true in the Congress in the summer of 1862.2 Why the act has received more attention for its construction by Radicals among general works is difficult to say. Specialists who study the act have exposed the complex and multiple agendas behind the legislation. If anything has masked the deeper story for more general works it is perhaps that most studies have approached the bill from the perspective of the Radicals and the goal to achieve emancipation as a war aim. By coming at the legislation from a different direction—one that begins with the consideration of adding...