The Emancipation Proclamation.
§ 91. Confiscation provisions extended.—Propositions more far reaching were introduced into the Senate in the session of 1861-62.[322] January 15, 1862, Mr. Trumbull, from the Committee on the Judiciary, to whom the various propositions had been referred, reported an original bill, and asked that the committee be discharged from the consideration of others.[323] March 14, 1862, Mr. Harris introduced into the Senate a bill to confiscate the property of rebels and for other purposes.[324] These propositions were considered at length, but never came to a vote. It is not necessary to enter here into the discussion of confiscations and of the constitutional right of Congress to free the slaves; in most of the bills there was a provision against the return of slaves to disloyal masters.
The Harris bill declared that, before any order for the surrender of fugitives should be given, the claimant must establish not only his title to the slave, as was then provided by law, but also that he is and has been loyal to the United States during the Rebellion. Mr. Pomeroy objected to this because it would make it "obligatory on the government of the United States to surrender a person claimed to be indebted to another for service or labor, if the claimant proves that he is loyal to the government. Would not this re-enact the Fugitive Slave Law of 1850?"[325] An amendment was therefore adopted which so changed the law that any reference to the act of 1850 was avoided.[326] After several debates the proposition was recommitted, May 6.[327] Mr. Clark reported a bill, May 14, which retained the provision in regard to fugitives as at first offered.[328]
In the House, resolutions on confiscation and emancipation were offered on the first day of the session, but the final action was based upon one of several bills introduced by Mr. Eliot, May 14, 1862.[329] His first bill, upon the confiscation of the property of the rebels, need not be followed out here; but the second bill provided for the emancipation of the slaves of disloyal masters, and forbade their return as fugitives. After various recommitments[330] a bill was brought in, according to which, in any suit brought by a claimant to recover the possession of slaves to enforce such service or labor, it was to be a sufficient bar to allege and prove that the master was disloyal to the government.[331] The bill then passed the House by a vote of 82 to 54.[332]
When it came up in the Senate, June 23, 1862, Mr. Clark moved to strike out all after the enacting clause, and to insert a substitute which would again unite the confiscation and emancipation bills. This amendment was rejected by the House, and a conference committee was appointed which reported July 11 and 12. The fugitive from a disloyal master was by this compromise to be deemed a captive of war, and forever freed from servitude.[333] The report was adopted by both houses, and approved by the President, July 17, 1862.[334] From that date any slave of a disloyal master who could make his way into the territory occupied by the Northern troops was ipso facto free. The fugitive was to become a freeman.
§ 92. Effect of the Emancipation Proclamation (1863).—The complete emancipation of the negroes within the Confederate lines was the next logical step, and was demanded as a war measure. It deprived the Confederacy of the aid of these slaves, and at the same time made it possible to arm and employ the former slaves against their masters. September 22, 1862, President Lincoln issued his preliminary proclamation, by which he warned the South that, unless it should return to its allegiance, all persons held as slaves in the States in rebellion on the 1st of January, 1863, should be "thenceforth and forever free."
At the end of one hundred days the final and absolute Proclamation was put forth, January 1, 1863. It declared also that negroes might be received into the armed service of the United States; and henceforth throughout the war, the former slaves were enrolled as soldiers and did good service for the government.
The effect of this proclamation was to end slavery, and with it the return of fugitives, within the Confederate lines. But here the legal machinery of the government had no effect; the State laws relating to slavery might be considered suspended, but practically the laws and practices of the Confederacy prevailed. On the other hand, the Fugitive Slave Law yet existed upon the statute-book where the Union had power; the arrest and imprisonment of fugitives was yet legal, and many desired to see the law repealed as another step toward the final crushing out of the system.