[No. 3. See p. 26.]

SLAVES IN THE ARMY.

Compensation to Masters of Slaves employed in the Military Service of the United States.

The policy adopted by the government in relation to the use of slaves in the army is fully explained in a subsequent note upon the organization of persons of African descent as part of our military and naval forces.

The principles asserted in the text in relation to the right of our government to use slaves of loyal and of disloyal masters have been recognized and confirmed by several acts of Congress. The right of the masters to compensation has also been the subject of legislative discussion.

As the acts of April 16, 1862 (Chap. 54), and July 12, 1862, (Chap. 155), by which slavery in the District of Columbia was abolished, and by which compensation to slave masters was provided for, were not founded on the war powers of the government, they need not be especially noticed in this connection.

On the 22d of September, 1862, President Lincoln issued a proclamation in which he announced that it was his purpose to treat as free all slaves held in any State which should be declared in rebellion on the first day of the following January; and to propose, upon the next meeting of Congress, to grant pecuniary aid to all such slave States not then in rebellion, as would adopt measures for the gradual or immediate emancipation of slaves; and to recommend to Congress that all citizens of the United States who should be found to have remained loyal thereto throughout the rebellion (on restoration of peace) be compensated for all losses by acts of the United States, including the loss of slaves.

Claims to slaves employed for insurrectionary purposes, and claims of rebels to slaves however employed, were disallowed by acts of August 6, 1861 (Chap. 60), and April 16, 1862 (Chap. 54). By act of February 24, 1864 (Chap. 13), it is provided (Sec. 24) that, "When a slave of a loyal master shall be drafted and mustered into the service of the United States, his master shall have a certificate thereof, and thereupon such slave shall be free, and the bounty of one hundred dollars, now payable by law for each drafted man, shall be paid to the person to whom such drafted man was owing service or labor at the time of his muster into the service of the United States." The same bounty was also made payable to persons who had theretofore enlisted or volunteered in the service. The Secretary of War was requested to appoint a commission in each of the Slave States represented in Congress, charged to award to each loyal person to whom a colored volunteer may owe service a just compensation, not exceeding three hundred dollars, for each such volunteer, payable out of the fund derived from commutations; and every such colored volunteer, on being

mustered into service, was to be free. The provisions of this act were made retrospective, so as to cover bounties and compensation to masters for prior enlistments of slaves.

Under this act commissioners were appointed by the Secretary of War, and rules were drawn up, and forms of deeds of manumission were prepared at the request of the Secretary of War, by the Solicitor of the War Department; and such commissioners awarded bounties and compensation to numerous slave masters residing in the loyal slave States, all of whom were required to execute such deeds of manumission before receiving their money. On the 10th of February, 1864, Mr. Trumbull, Senator from Illinois, Chairman of the Committee on the Judiciary, reported a resolution that an article abolishing slavery be proposed to the legislatures of the several States, as an amendment to the Constitution. This resolution was taken up by the Senate as in committee of the whole, on the 28th of March, and it was debated from time to time until the 8th of April, when it was finally passed, by vote of 38 to 6. On the 31st of May it was taken up in the House, and, after long discussion, was subsequently passed and approved, February 1, 1865. During the pendency of these discussions it is probable that there was no undue zeal or activity on the part of the commissioners to award bounties and compensations to slave masters. After the amendment was ratified, no further allowances were made; and neither the amendment of the Constitution nor the laws of Congress have provided for any further indemnity to loyal or disloyal citizens for the loss of their slaves.

The Fourteenth Amendment of the Constitution, recommended by Congress in 1866, and finally ratified by the States in 1868, provides that, "Neither the United States nor any State shall assume or pay any debt or obligation, incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or the emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.”

[No. 4. See pp. 54 and 116.]

CONFISCATION.

The views of President Lincoln upon the Confiscation Act of July 17, 1862, were fully expressed by him in the following Message to Congress, dated on the same day on which he approved that act.

MESSAGE.

Fellow-citizens of the Senate and House of Representatives:

Considering the bill for an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, and the joint resolution explanatory of said act, as being substantially one, I have approved and signed both.

Before I was informed of the passage of the resolution, I had prepared

the draft of a message stating objections to the bill becoming a law, a copy of which draft is herewith transmitted.

July 17, 1862.

Fellow-citizens of the House of Representatives:

ABRAHAM LINCOLN.

I herewith return to your honorable body, in which it originated, the bill for an act entitled an act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, together with my objections to its becoming a law.

There is much in the bill to which I perceive no objection. It is wholly prospective, and it touches neither the person nor property of any loyal citizen in which particular it is just and proper.

The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and the persons who shall incite, set on foot, assist or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort to any such existing rcbellion or insurrection.

By fair construction the persons within these sections are not to be punished without regular trials in duly constituted courts, under the forms and all the substantial provisions of law, and of the Constitution applicable to their several cases. To this I perceive no objection, especially as such persons would be within the general pardoning power, and also within the special provision for pardon and amnesty contained in this act. It also provides that the slaves of persons confiscated under these sections shall be free. I think there is an unfortunate form of expression rather than a substantial objection in this. It is startling to say that Congress can free a slave within a State; and yet, were it said that the ownership of a slave had first been transferred to the nation, and that Congress had then liberated him, the difficulty would vanish; and this is the real case. The traitor against the general government forfeits his slave at least as justly as he does any other property, and he forfeits both to the government against which he offends. The government, so far as there can be ownership, owns the forfeited slaves, and the question for Congress in regard to them is, Shall they be made free, or sold to new masters? I see no objection to Congress deciding in advance that they shall be free. To the high honor of Kentucky, as I am informed, she has been the owner of some slaves by escheat, and has sold none, but liberated all. I hope the same is true of some other States. Indeed, I do not believe it would be physically possible for the general government to return persons so circumstanced to actual slavery. I believe there would be physical resistance to it, which would never be turned aside by argument, nor driven away by force. In this view of it, I have no objection to this feature of the bill.

Another matter involved in these two sections and running through other parts of the act, will be noticed hereafter.

I perceive no objection to the third and fourth sections. So far as I wish to notice the fifth and sixth sections, they may be considered together. That the enforcement of these sections would do no injustice to the persons embraced within them is clear. That those who make a causeless war should be compelled to pay the cost of it, is too obviously just to be called in question. To give government protection to the property of persons who have abandoned it and gone on a crusade to overthrow that same government is absurd, if considered in the mere light of justice. The severest justice may not always be the best policy. The principle of seizing and appropriating the property of the persons embraced within these sections is certainly not

very objectionable, but a justly indiscriminating application of it would be very difficult, and to a great extent impossible; and would it not be wise to place a power of remission somewhere, so that these persons may know that they have something to save by desisting?

I am not sure whether such power of remission is or is not within section thirteen without a special act of Congress. I think our military commanders, when, in military phrase, they are within the enemy's country, should in an orderly manner seize and keep whatever of real or personal property may be necessary or convenient for their commands, and at the same time preserve in some way the evidence of what they do.

What I have said in regard to slaves while commenting on the first and second sections, is applicable to the ninth, with the difference that no provision is made in the whole act for determining whether a particular individual slave does or does not fall within the class defined within that section. He is to be free upon certain conditions; but whether these conditions do or do not pertain to him, no mode of ascertaining is provided. This could be easily supplied.

To the tenth section I make no objection. The oath therein required seems to be proper, and the remainder of the section is substantially identical with a law already existing.

The eleventh section simply assumes to confer discretionary powers upon the Executive without the law. I have no hesitation to go as far in the direction indicated as I may at any time deem expedient, and I am ready to to say now I think it is proper for our military commanders to employ as laborers as many persons of African descent as can be used to advantage.

The twelfth and thirteenth sections are something better; they are unobjectionable, and the fourteenth is entirely proper if all other parts of the act shall stand.

That to which I chiefly object pervades most parts of the act, but more distinctly appears in the first, second, seventh, and eighth sections. It is the sum of those provisions which results in the divesting of title forever. For the causes of treason the ingredients of treason, but amounting to the full crime-it declares forfeiture extending beyond the lives of the guilty parties, whereas the Constitution of the United States declares that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. True, there is to be no formal attainder in this case; still I think the greater punishment cannot be constitutionally inflicted in a different form for the same offence. With great respect, I am constrained to say I think this feature of the act is unconstitutional. It would not be difficult to modify it.

I may remark that the provision of the Constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real estate.

Again, this act, by proceedings in rem, forfeits property for the ingredients of treason without a conviction of the supposed criminal, or a personal hearing given him in any proceeding. That we may not touch property lying within our reach because we cannot give personal notice to an owner who is absent endeavoring to destroy the government, is certainly not very satisfactory. Still the owner may not be thus engaged, and I think a reasonable time should be provided for such parties to appear and have personal hearings. Similar provisions are not uncommon in connection with proceedings in rem.

For the reasons stated I return the bill to the House, in which it originated.

President Lincoln, at this time, held the opinion that Congress had no power "to free a slave within a State," although he was satisfied that if slaves of rebels should by capture become the property of the government, it might and ought to restore such captives to freedom. He had also fallen into the error of supposing that Congress had no power to pass a law for confiscating the real estate of rebels in fee simple. After a subsequent and through examination of the subject, his opinion was changed; and with that frankness and sincerity for which he was so remarkable, he communicated to others the views he then entertained, and authorized the Hon. George W. Julian, a member of Congress from Indiana, one of his highly esteemed friends, to announce in public that he was ready to give his official support and sanction to a repeal of the declaratory resolution, which, as he understood it, limited forfeitures for treason to life estates of traitors. In 1863-4 both Houses of Congress passed a bill which contained a clause repealing that resolution; but the project of reconstrucion which it embodied was not, in some respects, satisfactory to the President, and it did not become a law. In 1864-5 bills passed each branch of Congress having the effect of abrogating this qualifying resolution, but neither of them became a law: nevertheless, these facts and proceedings show that the House, the Senate, and the President, after mature consideration, gave their practical sanction to the correctness of the constitutional doctrine stated in the text. The error of the President was of the gravest character; it resulted in paralyzing, if it did not wholly destroy, one of the most effective means of crushing the spirit of rebellion; for it left the rebel owners of large estates, at the end of the war, in full possession and control of their lands, and they managed to exclude from ownership of the soil the great body of freedmen and of the poorer classes of white men who were friendly to the Union. (See p. 230–239.) If these colossal plantations had been confiscated in fee, and broken up into small farms, and distributed among the loyal common people, the power of that class which caused the war would have terminated with the surrender of their armies. Estates for life, in a time of war, could hardly find purchasers, and were of so uncertain a tenure, that confiscation, so far as it applied to real estate, was as useless to the government as it was harmless to the enemy.

CONFEDERATE LAWS OF CONFISCATION.

The "Confederate States " passed a series of acts, from which we may learn the views entertained by strict constructionists in relation to the war powers of their own government, which had adopted the Constitution of the United States and the laws thereof, with few, if any alterations, excepting as regards slavery.

On the 8th of August, 1861, the Provisional Congress passed "An Act respecting alien enemies" (Chap. 19. See Stat. at Large of the Provisional Congress, page 174), as follows: