From the foregoing facts it is seen that whether President Lincoln was or was not authorized to enlist colored soldiers, under the provisions of the confiscation act, as contended by some, he did not in fact make any such enlistments. The claim of certain colored soldiers for payment on the ground that they were enlisted under that act is also shown by this fact to be absolutely without foundation. To support such a claim, the President must have been so misled as to assume or assert facts which he personally knew had no existence. The only use the President ever made of the power of employing persons of African descent, conferred on him by the confiscation act (Chap. 195), was to employ them as laborers for wages, as stated in his general order above cited; while, under the power conferred on him by the militia act, as in the case of General Lane's regiments, he caused colored persons to be enrolled, and employed, and paid ten dollars per month as militia. By reason of his honest and faithful administration of the laws on this subject, he was temporarily subjected to unjust cen

sure.

The records of the Adjutant General's office, in the War Department, show that no colored persons were admitted into the military service as soldiers until after the passage of the act of July 17, 1862 (Chap. 201). No enlistments of colored soldiers had been made prior to that date, under the provisions of either of the preceding acts of Congress for the volunteer or regular army. Yet, at one time during the war, the question was raised by some of the friends of colored troops, whether persons of African descent, who enlisted as volunteers subsequently to the passage of the act of July, 1862, which provided for paying them ten dollars per month and rations, might not in some way escape from this limitation of their pay, and entitle themselves to the same pay, rations, and bounty as white volunteers? There was then no law of Congress by which such persons could enter the service of the United States as soldiers in the army except under one of the two acts of July 17, 1862 (Chap. 195 or Chap. 201). If colored persons were employed under the power conferred in Chap. 201, the amount to be paid soldiers for military service was, in express language, limited to ten dollars per month and rations. The only way of avoiding the effect of this statute was to claim that colored men had enlisted as soldiers under the confiscation act of July 17, 1862 (Chap. 195). Unfortunately this claim was not founded in fact, but quite the contrary, as was well known to those who had access to the records of the Adjutant General's office in the War Department. If that claim had been founded in fact, there was no law of Congress which provided for pay or bounty to persons employed by the President under that act; and the Treasury Department could not, and the author had reason to believe did not, deem itself authorized to pay any money out of the public funds for such service, no appropriation having been made for that purpose. If the colored soldiers had not enlisted under the act of 1862 (Chap. 201), they would have had no claim,

under any statute, against the government for payment for their services, nor would they have had a claim to the freedom of themselves and of their families, as provided for in this act. It was the denial of the unfounded claim, set up in behalf of the colored soldiers, and the recognition of their real claims against the government (under Chap. 201), that enabled the colored soldiers to secure by law the amount of pay allowed them by that statute, and the freedom of themselves and of their families.

Some of the friends of the colored volunteers entertained at one time an idea that if the President had employed persons of African descent under the authority conferred on him by the confiscation act of 1862 (Chap. 195), they might be supposed or assumed to have enlisted under one of the prior acts for calling out volunteers; but no such idea is sanctioned by those who are acquainted with the military statutes of the United States; and if there were nothing in the law against such a supposition or assumption, the fact, as recorded in the Adjutant General's office, is, that no such enlistments were ever made, and therefore no money could be lawfully paid out of the treasury upon an assumption of a fact known by every officer in the War Department to be without foundation.

An opinion of the late Attorney General Bates is not in accordance with the views here expressed in relation to the true meaning of the two acts of July 17, 1862. He argues to show that the confiscation act was intended to authorize the raising of volunteer militia; and the militia act was to authorize the enrolment, organization, and use of laborers and servants. He also assumes the fact that soldiers were enlisted under the authority of the confiscation act. The first of these propositions has been shown to be not in accordance with the true meaning of Congress in passing the act, and the second is not in accordance with the truth. He also states, as the foundation of his opinion, that there was nothing in the laws of the United States prior to the acts of July 17, 1862, which prevented colored persons from enlisting in the military service of the United States, and as confirmation of this statement has cited what he supposed were all the statutes of importance on that subject. Unfortunately he has overlooked, in his researches, the act of Congress of April 24, 1816 (Chap. 69, Sect. 9), which gives the rules and regulations of the War Department the force of law, as decided by the Supreme Court (4 How. 117), and the army regulations of August 10, 1861 (Art. 929), and the act of Congress of May 8, 1792 (1 United States Statutes, 271),* well known as "the foundation of the military system of the United States," † all of which have been cited in this note. His opinion shows that he was not aware of the facts as to enlistments recorded in the War Department, nor the general orders of President Lincoln above quoted. If these facts and these acts of Congress, the decisions of the Supreme Court and the President's orders, had

* Brightly's Digest of the laws of the United States, p. 619.

† Speeches of Senators Sumner, Grimes, Collamer, and others, pp. 494–507.

been called to his attention, or if he had attended the debates in Congress while the two acts of July 17, 1862, were under discussion (quoted in the Appendix, pp. 494–507), it is believed that no one would have seen, more readily than himself, the error in law and the mistake of facts on which his opinion was founded.

On the 25th of August, 1862, the Secretary of War wrote a letter of instructions to Brigadier General Saxton, which authorized him to organize in South Carolina a number of laboring forces not exceeding fifty thousand, to be paid from five to eight dollars per month; also to receive into the service of the United States such number of volunteers of African descent as he might deem expedient, not exceeding five thousand in all; to detail officers to instruct them in military drill, discipline, and duty, and to command them. "The persons so received into service, and their officers, to be entitled to and receive the same pay and rations as are allowed by law to volunteers in the service." Under these instructions the First South Carolina Volunteers were recruited, Colonel T. W. Higginson, of Massachusetts, commanding; but the payment therein promised was for a long time withheld, the Secretary of War having found that he had exceeded his lawful authority in making the promise. But it was held by the author, who was then Solicitor of the War Department, that this letter was a pledge of the Secretary, on which these volunteers had relied, and that the Department was bound in good faith either to discharge them from service, or to pay them according to promise. The Secretary did not discharge these soldiers, but the Solicitor made an immediate and urgent application to Congress for such legislation as would enable the Treasury Department to redeem that pledge. On the 3d of March, 1865, an act was passed, which (Chap. 79, Sect. 5) provides that colored soldiers enlisted, by Generals Hunter and Saxton, under authority of the Secretary of War, dated August 25, 1862, and which declared that the persons so received into the service, and their officers were to be entitled to and receive the same pay and rations as are allowed by law to other volunteers in the service," and in all other cases where it should be made to appear to the satisfaction of the Secretary of War, that any regiment of colored troops had been mustered into the service of the United States under any assurance by the President or Secretary of War, that the non-commissioned officers and privates of such regiment should be paid the same as other troops of the same arm of the service, shall from the date of their enlistment receive the same pay and allowances as are allowed by law to other volunteers in the military service." Under this law, the troops raised by General Saxton, including the First South Carolina Volunteers, were paid, and thus the pledge of Secretary Stanton was faithfully, even though tardily, redeemed.

Of all the officers connected with the War Department, none made, from the beginning of the rebellion, more energetic and effectual efforts to introduce

colored troops into the military service than the Assistant Secretary of War, Hon. Peter H. Watson. His disinterested, patriotic, and invaluable services to the country are none the less honorable because his extreme modesty has prevented their becoming generally known to the public. Whenever a history of the War Department, during President Lincoln's administration, shall be truthfully written, no name will be recorded of purer lustre than that of him who was the fearless mentor and the trusted friend of Secretary Stanton.

DEBATES IN CONGRESS ON THE MILITIA AND CONFISCATION ACTS OF JULY 17, 1862.

The debates in Congress upon the confiscation act and the militia act; the explanations of their respective authors; the various amendments which were proposed, and accepted or rejected; the language finally adopted, defining the character of the service to which colored men were to be introduced; and the discussion, in the speeches of several leading senators, upon the phraseology finally adopted, will place the true meaning of Congress, in passing both of these acts, beyond any question or doubt, and will show that the militia act was intended to provide for raising militia-mcn.

A review of the remarks made by the members of the Senate and House, including those of the persons who introduced and proposed these acts above cited, will show how earnest was the contest which resulted in introducing colored soldiers into our military service, and will also make it clear that the confiscation act, July 17, 1862 (Chap. 195), so far as it related to the use of colored persons and slaves, was not intended to make them a part of the organized military forces of the United States, for the purpose of fighting the enemy, nor will any person who reads these debates be likely to doubt that the act to amend the militia act of 1795, so far as it relates to slaves and negroes, was designed to introduce negro soldiers into the military service as part of the national forces.

It is not to be supposed that Congress passed two acts (a confiscation act and a militia act) on the same day, for the same purpose, and it must be presumed that each act has its proper object, and that each sought to accomplish something not accomplished by the other. Which, then, of these two acts was intended to raise soldiers to fight battles, and which was intended to employ laborers to hold forts in hot climates, carry burdens, dig trenches, groom horses, cook, wash, black boots, and wait on tables? Was the confiscation act intended to make soldiers; and the militia act to enroll and discipline waiters, servants, &c.? or was the militia act intended to make militia-men of colored volunteers?

A review of the history of these two bills in Congress, of their objects as explained by their authors, of the objections made and amendments offered, will remove all doubt, if any has existed, as to the true meaning of these

acts, and will show conclusively, as understood by the members of the legislature generally, when these acts were passed, viz., July 17, 1862,

1. That no colored men were then in the military service of the United States as enlisted soldiers.

2. That they had been excluded by law from the militia and from the army.

3. That one of these acts (Chap. 195) was to empower the President to employ laborers.

4. That the other of these acts (Chap. 201) was to empower him to make colored men soldiers, providing for their pay ten dollars per month.

THE DEBATES IN CONGRESS ON THE ACTS OF JULY, 1862.

In 1861 no attempt appears to have been made to legalize the employment of negroes as soldiers. The first bill which gave power to the President to make use of colored persons, in any way, for the suppression of the rebellion, was that which was reported by Mr. Senator Clarke, May 14, 1862, from the select committee on confiscation. (S., No. 310.) The title of this bill was "to suppress insurrection, punish treason and rebellion, and for other purposes." (Globe, p. 2112.) On the 16th of May it was taken up for consideration in committee of the whole (Globe, p. 2165), and it contained, in the identical words as passed in the statute July 17, 1862 (Chap. 195), the clause relating to the "employment of persons of African descent." The discussion was continued on the 19th of May, when a motion was made by Senator Powell to strike out that section relating to the employment of persons of African descent; and the motion was lost by a vote of yeas 11, nays 25. During the discussion, Senator Henderson expressed an objection to arming or to employing negroes, and charged that the use of them was an act of cruelty. Senator Clarke, in explaining the meaning and intent of this clause of the proposed statute, said,

The committee did not adopt that provision hastily and without consideration, nor unadvisedly. They adopted it deliberately. They considered it carefully. They amended the proposition first proposed, and endeavored to put it in such a shape as would be satisfactory to the country, if they could do it; and I beg the senator to consider the position in which we are. The summer is coming; our troops are in a hot climate; they are in a warm latitude. It is reported that already one or two cases of yellow fever have appeared in New Orleans. Our men are to die here like sheep and dogs, and that is what the rebels are aiming at. Are your prejudices to stand in our way, when we see our sons and brothers rotting there, to prevent us employing Africans, who can stand that climate, in order to preserve the lives of our kindred? and are we then to be accused of barbarity? Our humanity is such that we want the white man out of that climate, where he cannot stay without certain death, and put in a man who can stay, and who will be loyal; and I hope it is no offence to humanity, nor to Christianity either, to do it. We do not desire to arm the negro universally. We desire to take as