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 The Second Act: Divided Republican Support and Flawed Result R epublican differences over the Second Confiscation Act reveal the limits of the radicals’ influence in the Thirty-seventh Congress, at least on confiscation. The ineffective provisions of the second act also demonstrate the distaste for special legislation, as Michael Les Benedict has termed it, in mid-nineteenth century. If Senators Sumner, Wade, and Trumbull and Representatives Stevens, Ashley, and Julian had possessed a coherent plan and been able to orchestrate wartime measures, it would not have taken seven months to produce a measure as imperfect as the second act. The Senate Judiciary Committee, dominated by Republicans, circumscribed Trumbull’s original proposal from its inception. And from the start of debate in both houses the moderates prevailed in both rhetoric and legislative compromises. In July, following more discussion than Congress had had on any other measure, a confused law that failed to achieve much confiscation and almost no change to the South emerged. The bill encouraged many, especially freed slaves, to expect land reform even as it scared others, particularly in the South, about the potential of confiscation and reconstruction and helped create a false reputation for radicals. It also increased partisanship between the parties and created alarm about a predicted migration of ex-slaves to the North. In addition, the debates and the law pushed Lincoln to a more direct assault upon slavery. Ironically, then, the Second Confiscation Act accomplished the most before becoming law and far less than expected or feared once enacted.1 For confiscation’s true believers, among them Sumner and Trumbull, the power of Congress was wide indeed. Most who wrote to the two senators argued that Congress should now assert itself in the war since Lincoln appeared conciliatory to the South and unwilling to fight vigorously. The Massachusetts senator declared, ‘‘there can be nothing essential to its [the war’s] success, which is not positively within the province of Congress. There is not one of the rights of war which Congress may not invoke.’’ Congress, argued Trumbull, could employ whatever it thought ‘‘necessary and proper for the attainment of the end of the war, which is the suppression of rebellion.’’ Trumbull maintained that there ‘‘is not a syllable in the Constitution conferring on the President war powers.’’ Congress, therefore, could instruct the president to do as it wished. The president, as commander in chief of the armies and navies, Trumbull said, PAGE 35 ................. 11265$ $CH3 03-11-05 11:39:01 PS  T C W C A could ‘‘only govern and regulate them as Congress’’ instructed. The Constitution clearly stated that Congress ‘‘shall have the power to make rules for the government and regulation of the land and naval forces.’’2 But both men realized that few in the party shared their expansive views about congressional power. Trumbull designed his bill to meet those Republicans who opposed vigorous confiscation halfway on the question of emancipation. For senators such as Cowan, Browning, Doolittle, and Foster, who were doubtful about confiscation , emancipation if carried out by the executive for military necessity was tolerable .3 To satisfy them, Trumbull said that his bill allowed masters who supported the rebellion to choose whether their slaves went free or not. Congress , he argued, by its war powers, could create a penalty for certain behavior in order to restore the Union. If the masters’ support of the Confederacy continued after the act passed, their slaves would be freed through confiscation. The bill would therefore not be ex post facto and emancipation would only occur following a ‘‘voluntary act’’ of the ‘‘rebel master’’ to continue war upon the United States. Thus, Trumbull suggested, Congress would not violate its previous refusal to interfere with slavery. ‘‘I am not aware that the Republican party ever pledged itself not to allow the owners of slaves to make them free,’’ he said. Trumbull’s logic held that masters could retain their slaves by swearing an oath to support the Union before the act passed. Perhaps seeking to calm worried Republican colleagues, Trumbull predicted that his bill would confiscate the property of only one in ten rebels. By moving against slavery so indirectly in placing the onus on the unrepentant rebel owners, Trumbull revealed just how hesitant he was to advocate abolition in the midst of war. Even so, Browning and others opposed emancipation if it entailed transferring title and violating state laws on slavery. The issues were the same as for landed property. These senators also...

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