- Reluctant to Emancipate?Another Look at the First Confiscation Act
On August 30, 1861, Gen. John C. Frémont issued an order that would, among other things, emancipate the slaves of all rebels in Missouri.1 On September 2, President Abraham Lincoln sent a friendly telegram urging the general to “modify” his order “so as to conform to the first and fourth sections” of the First Confiscation Act recently passed by Congress and signed by Lincoln on August 6.2 Lincoln’s letter to Frémont, like his later order revoking Gen. David Hunter’s proclamation abolishing slavery in three states, are among the most familiar items in a very familiar narrative of events that historians cobble together to demonstrate that in the first year of the Civil War Lincoln and the Republicans were “reluctant” emancipators. Not until January 1, 1863—some twenty months after the war began—did Lincoln finally accept emancipation as a legitimate goal of the war.
Strictly speaking, of course, Lincoln did not tell Frémont he could not free slaves; he told him to “modify” his order to conform to the first and fourth sections of the First Confiscation Act. But this is a mere technicality, because in standard accounts of the Civil War, the First Confiscation Act did not free slaves either. Indeed, by passing a law that effectively did nothing, the Republican majority in Congress demonstrated it was just as reluctant to emancipate slaves as was President Lincoln. The most important source for this claim is J. G. Randall’s classic account of the constitutional history of the Civil War, published almost ninety years ago. Randall dismissed the First Confiscation Act as a legal mess, so incoherent that the attorney general never even bothered issuing the instructions for implementing it.3
Randall’s name ought to have been enough to raise cautionary flags among historians who came later. A founding father of Civil War revisionism, Randall coined the phrase “The Blundering Generation” to describe the policymakers who in 1861 irresponsibly hurled the nation into a brutal war for which there was no substantial cause. It would not have suited [End Page 458] Randall’s purposes to have Congress rushing back to Washington in the first summer of the war, for a special session five months ahead of schedule, and swiftly commencing to emancipate slaves. That would have suggested the war might have had something to do with slavery after all. Instead, Randall went out of his way to suppress all evidence that antislavery sentiment was strong among Republicans at the very outset of the war. Yet Randall’s revisionism did not stop later historians—even those with very different inclinations—from accepting his account of the First Confiscation Act. It didn’t free any slaves. How could it? The statute was a mess, so legally incoherent that the attorney general didn’t even bother to issue the instructions for implementing it. Randall’s account has had a remarkable shelf-life. Recent historians who would firmly dispute Randall’s larger interpretation of the Civil War have continued to accept his reading of the First Confiscation Act.
What, then, was Abraham Lincoln saying when he instructed General Frémont to modify his emancipation edict to conform to the first and fourth sections of the First Confiscation Act? Section one concerned the confiscation of rebel property, and I leave it to others to explain its significance. My concern is with the fourth section, which has its own distinctive history within the larger legislative history of the bill. Sections one through three were designed to confiscate property, but section four was designed to free slaves. It was added to the bill as an amendment after it was reported out of the Senate Judiciary Committee. It was endorsed by overwhelming Republican majorities in both houses. But its wording was changed at the last minute. What was going on?
Lincoln had called Congress into a special session to convene on July 4 to meet the national emergency caused by the outbreak of Civil War. Several confiscation bills were quickly introduced, prompting a contentious debate over emancipation and the war, pitting antislavery Republicans against Democrats and Border...