July 17, 1862
Congress is preparing to adjourn in the early afternoon so President Lincoln travels down Pennsylvania Avenue to sign recently-passed legislation such as the Second Confiscation Act and a Militia Act authorizing recruitment of black soldiers and their emancipation. Illinois Senator Orville H. Browning writes: “At President early this morning. Senate met at 9 A.M. President came down to the capitol about 10, and remained in his room for the convenience of communication with the Senate.”
The most controversial legislation confronting the President is the Second Confiscation Act, which authorized the government to seize property and seize slaves belonging to supporters of the Confederacy. Historian Maurice Baxter wrote: “Lincoln himself had objections to the bill as it came to him. On July 17 he prepared a veto message which he intended to send to Congress. The President objected to the forfeiture of property beyond the life of a person convicted of treason. This amounted to a corruption of blood, he pointed out, and therefore was not permissible. Another fault which he saw was the use of in rem proceedings in the courts which would authorize forfeiture. He suggested that additional time be allowed the accused in the judicial process for the preparation of an adequate defense.” Baxter noted:
Congressional leaders were aware of Lincoln’s hesitancy about signing the bill as it had been given to him. As a result, on July 16, the Senate hurriedly passed a resolution which gave new meaning to some of the clauses. By this resolution the Senate sought to amend the Confiscation Act with the following words: ‘…nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.’ This met one of the President’s objections, but it did not cover the other one concerning in rem proceedings; nevertheless, he signed the bill. .”
Thus, Congress, avoided a veto. In addition to signing the legislation, President Lincoln sent a message to Congress outlining his concerns that he had drafted before the bill was passed:
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 it’s becoming a law.
There is much in the bill to which I perceive no objection. It is wholly prospective; and it touches neither person or property, of any loyal citizen; in which particulars, it just and proper. The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and persons who shall be guilty of treason, and 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 thereto, or shall engage in, or give aid and comfort to any such existing rebellion, or insurrection” By fair construction, persons within these sections are not to be punished without regular trials, in duly constituted courts, under the forms, and 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 the special provision for pardon and amnesty, contained in this act. It is also provided, that the slaves of persons convicted 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 if it were said the ownership of the slave had first been transferred to the nation, and that congress had then liberated, him, the difficulty would at once vanish. And this is this 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, thus owns the the [sic] forfeited slaves; and the question for Congress, in regard to them is, “Shall they be made free, or be sold to new masters?” I perceive 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 of escheat, and that she sold none, but liberated all. I hope the same is true of some other states. Indeed, I do not believe it would physically possible, for the General government, to return persons, so circumstanced, to actual slavery. I believe there would be physical resistance to it, which could neither be turned aside by argument, nor driven away by force. In this view 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 governmental 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 discriminating 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 they have something to lose by persisting, and something to save by desisting? I am not sure whether such power of remission is or is not within section Thirteen.
Without any special act of congress, I think our military commanders, when, in military phrase, “they are within the enemies country” should in an orderly manner, seize and use whatever of real or personal property may be necessary or convenient for their commands; at the same time, preserving, 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 classes defined in that section. He is to be free upon certain conditions; but whether those 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 an already existing law.
The eleventh section simply assumes to confer discretionary powers upon the executive. Without this 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 say now I think it is proper for our military commanders to employ, as laborers, as many persons of African de[s]cent, as can be used to advantage.
The twelfth and thirteenth sections are something better than objectionable; 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, and the ingredients of treason, not 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 can not 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 this provision of the constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real, or landed 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 can not give personal notice to an owner who is absent endeavoring to destroy the govern[ment,] is certainly not very satisfactory; still the owner may not be tush 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.
General George B. McClellan writes President Lincoln: “I have consulted fully with Genl Burnside & would commend to your favorable consideration the General’s plan for bringing (7) seven additional regiments from North Carolina by leaving Newburn to the care of the gun boats.”
It appears manifestly to be our policy to concentrate here everything we can possibly spare from less important points to make sure of crushing the enemy at Richmond, which seems clearly to be the most important point in rebeldom. Nothing should be left to chance here. I would recommend that Genl Burnside with all his troops be ordered to this Army to enable it to assume the offensive as soon as possible.
More colorfully, McClellan writes home: “Am quite well today — a little disgusted at the stupidity of people in Washington. You need not be at all alarmed as to my being deceived by them. I know that they are ready to sacrifice me at any moment & are only restrained by fear of the people. I shall not be at all surprised to have some other Genl made Comdr of the whole army, or even to be superseded here — & to tell you the truth I don’t care how soon they do it. I have lost confidence in the Govt, & would be glad to be out of the scrape — keep this to yourself…
So you like my letter to the Presdt? I feel that I did my duty in writing it tho’ I apprehend it will do no good whatever — but it clears my conscience to have spoken plainly at such a time. You do not feel one bit more bitterly toward those people than I do; I do not say much about it — but I fear they have done all that cowardice, folly & rascality can do to ruin our poor country — & the blind people seem not to see it, but to submit like serfs to the lash….
In response to a petition presented from a Committee of Reformed Presbyterian Synod, President replies, according to a report in the Washington Star: “As to the moral character of the institution of Slavery, and as to its political bearing on the institutions of this or any other Nation, he said there was, between him and the committee, no difference of sentiment. He went on to say, using one of his favorite analogies:
Had Slavery no existence among us, and were the question asked shall we adopt such an institution? we should agree as to the reply which should be made. If there be any diversity in our views it is not as to whether we should receive Slavery when free from it, but as to how we may best get rid of it already amongst us. Were an individual asked whether he would wish to have a wen on his neck, he could not hesitate as to the reply; but were it asked whether a man who has such a wen should at once be relieved of it by the application of the surgeon’s knife, there might be diversity of opinion, perhaps the man might bleed to death, as the result of such an operation.
Feeling deeply my responsibility, to my country and to that God to whom we all owe allegiance, I assure you I will try to do my best, and so may God help me.