From Property to Person: Slavery and the Confiscation Acts, 1861-1862 (review)

The Civil War Confiscation Acts promised much but accomplished little. Designed to deprive the South of war resources, under their purview few properties passed into Northern hands. Conceived by radicals as vehicles for abolition, the acts' emancipation measures were virtually unenforceable. But the significance of the Confiscation Acts transcends their direct impact. As Silvana Siddali shows in her important new book, From Property to Person, the debates these acts engendered changed the way Northerners viewed the Constitution's competing claims of individual liberty, on the one hand, and property rights, on the other, and "helped destroy the belief that human beings were property" (250). The discourse surrounding confiscation, driven by the Northern public and shaped in part by the slaves themselves, paved the way for emancipation and ultimately for the Reconstruction amendments.

The antebellum Constitution embodied an essential contradiction in American self-government: individuals were free to do as they pleased with their property, but they were also guaranteed freedom from despotism. In a society that institutionalized slavery, the contradiction was clear. The Civil War forced a reconsideration of this contradiction. With secession came the theft of federal property: Southerners seized federal forts and refused to pay debts. Jefferson Davis authorized privateering against Union ships. Such property seizures angered Northerners and informed a widespread willingness to suspend protection of Southerners' property rights. The Northern public began calling for the seizure of Confederate land and slaves. These calls raised a number of questions: What were the rights of rebellious citizens? What would an assault on Confederate property do to property rights at home? What would it do to the Constitution?

The Battle of Bull Run was a turning point in the North's consideration of these issues. A punitive sentiment replaced concerns for constitutional "niceties" and an increasingly impatient North called on its representatives to conduct a hard war—one that included confiscation of slaves. Concern for the slaves themselves was not a part of this call: slaves were a Southern war resource. But could slaves be considered normal property? What was to be done with them once confiscated? If the Union government claimed ownership of the slaves as it did other Confederate properties, would it not legitimate the ownership of humans and itself become a massive slaveholder?

In response to these concerns, the First Confiscation Act, passed in August 1861, authorized the Union to lay claim to a slave's labor, not to his or her person. Although the act left the postwar fate of both the slaves and their labor entirely unclear, the recognition that slaves and their labor were separate carried enormous implications: once confiscated, a slave's status changed from property to person. In the midst of these debates, thousands of slaves fled to Union lines and forced the issue. Slaves had free will and thus could not be considered normal property; moreover, it was clear that they would not submit to reenslavement by the Union government or any other party. If the North were to confiscate slaves, it would ultimately have to consider emancipation on some level.

Siddali's book examines these and other debates surrounding the Confiscation Acts. Throughout she finds that the Northern public, motivated not by abolitionist sentiment but by a desire to punish the South and recoup the spiraling cost of the war, urged its representatives toward ever more radical measures. With the North unable to unite on the fate of the confiscated slaves and politicians still divided on constitutional issues, in the end Congress produced legislation that aimed to please everyone but pleased almost no one: the Second Confiscation Act, passed in July 1862 and designed to threaten future punishment, was weak and unenforceable.

But the legacy of the Confiscation Acts is not confined to their legal effects. As Siddali convincingly shows, the debates around these acts forced Northerners to reconsider their commitment to property rights, the boundaries of state power, and the nature of slavery...