The Life of Lyman Trumbull

by Horace White

Trumbull had been the pioneer, at the July session, in the way of legislation for freeing the slaves. On the first day of the regular session he took another step forward, by introducing a bill for the confiscation of the property of the rebels and for giving freedom to persons held as slaves by them. This came to be known as the Confiscation Act.

On the 5th of December, 1861, he reported the bill from the Committee on the Judiciary and made a brief speech on it. It provided that all the property, real and personal, situated within the limits of the United States, belonging to persons who should bear arms against the Government, or give aid and comfort to those in rebellion, which persons should not be reachable by the ordinary process of law, should be forfeited and confiscated to the United States and that the forfeiture should take immediate effect; and that the slaves of all such persons should be free. Also that no slaves escaping from servitude should be delivered up unless the person claiming them should prove that he had been at all times loyal to the Government. Also that no officer in the military or naval service should assume to decide whether a claim made by a master to an escaping slave was valid or not.

This bill was the pièce de résistance of senatorial debate for the whole session. Its confiscatory features were attacked on the 4th of March by Senator Cowan, in a speech of great force. Cowan was a new Senator from Pennsylvania, a Republican of conservative leanings, and a great debater. He opposed the bill on grounds of both constitutionality and expediency. On the 24th of April, Collamer, of Vermont, expressed the sound opinions that private property could not be confiscated except by judicial process, and that even if it could be done it would be bad policy, since it would tend to prolong the war and would constitute a barrier against future peace.

The Confederate Government had led the way by passing a law (May 21, 1861) sequestrating all debts due to Northern individuals or corporations and authorizing the payment of the same to the Confederate Treasury. The whole subject was extremely complex. "There was commonly," says a recent writer in the American Historical Review, "a failure in the debates to discriminate between a general confiscation of property within the jurisdiction of the confiscating government and the treatment accorded by victorious armies to private property found within the limits of military occupation. Thus the general rule exempting private property on land from the sort of capture property must suffer at sea, was erroneously appealed to as an inhibition upon the right of judicial confiscation. That a military capture on land analogous to prize at sea was not regarded as a legitimate war measure was so obvious and well recognized a principle that it would hardly require a continual reaffirmation. It was a very different matter, however, so far as the law and practice of nations was concerned, for a belligerent to attack through its courts whatever enemy's property might be available within its limits."[55]

Collamer offered an amendment to strike out the first section of the bill and insert a clause providing that every person adjudged guilty of the crime of treason should suffer death, or, at the discretion of the court, be imprisoned not less than five years and fined not less than ten thousand dollars, which fine should be levied on any property, real or personal, of which he might be possessed. The fine was to be in lieu of confiscation. The aim of the amendment was to substitute due process of law in place of legislative forfeiture. Various other amendments were offered. On the 6th of May, the Senate voted by 24 to 14 to refer the bill and amendments to a select committee of nine. The House, which had been waiting for the Senate bill, decided on the 14th of May to take up a measure of its own, which it passed on the 26th. The select committee of the Senate framed a measure regarding the emancipation of escaping slaves. This and the House bill were sent to a conference committee, which reported the bill which became a law July 17, 1862.

This was not the end of it, however. Provision had been made in the bill for the forfeiture, by judicial process, of the property, both real and personal, of rebels, regardless of the clause of the Constitution which declares that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." No such exception was made in the bill. The President considered it unconstitutional in this particular, and he wrote a short message giving his reasons for withholding his approval of the measure. A rumor of his intention reached Senator Fessenden, who called at the White House to inquire whether it was true. He had a frank conversation with the President, the result of which was that both houses passed a joint resolution providing that no punishment or proceedings under the Confiscation Act should be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. Lincoln's intended veto of the Confiscation Bill is printed on page 3406 of the Congressional Globe. Touching confiscation in general he expressed the golden opinion that "the severest justice may not always be the best policy." But he would not have vetoed the bill on grounds of expediency merely. The forfeiture of real estate in perpetuity was the insuperable objection in his mind. And he here seems to me to have been entirely right. Yet Trumbull had the support of Judge Harris, Seward's successor in the Senate, than whom nobody stood higher as a lawyer at that day.

The President then signed both the bill and the joint resolution. The Confiscation Act remained, however, practically a dead letter, except as to the freeing of the slaves. In the latter particular it was the first great step toward complete emancipation, since it took effect upon slaves within our lines, who could be reached and made free de facto. It provided that all slaves of persons who should be thereafter engaged in rebellion, escaping and taking refuge in the lines of the Union forces, and all such slaves found in places captured by such forces, should be declared free; that no slaves escaping should be delivered up unless the owner should swear that he had not aided the rebellion; that no officer of the United States should assume to decide on the validity of the claim of any person to an escaping slave; that the President should be authorized to employ negroes for the suppression of the rebellion in any capacity he saw fit; and that he might colonize negroes with their own consent and the consent of the foreign Government receiving them.

According to a report of the Solicitor of the Treasury dated Dec. 27, 1867, the total proceeds of confiscation actually paid into the Treasury up to that time amounted to the insignificant sum of $129,680.

The enforcement of the confiscation act was placed under the charge of the Attorney-General. Practically, however, it was performed by officers of the army, so far as it was enforced at all. General Lew Wallace, while in command of the Middle Department at Baltimore, in 1864, issued two orders declaring his intention to confiscate the property of certain persons who were either serving in the rebel army or giving aid to the Confederate cause. These orders, which were published in the newspapers, came to the notice of Attorney-General Bates, who at once wrote to Wallace to remind him that the execution of the confiscation act devolved upon the Attorney-General, and that he (Bates) had not given any orders which would warrant the Commander of the Middle Department in seizing private property, and requesting him to withdraw the orders. Wallace replied that his construction of the law differed from that of the Attorney-General and that he should execute it according to his own understanding of it. Thereupon Bates took the orders, and the correspondence, to the President and declared his intention to resign his office if his functions were usurped by military men in the field, or by the War Department. Lincoln took the papers, and directed Secretary Stanton to require Wallace to withdraw the two orders and to desist from confiscation altogether. This was done by Stanton, but the orders were never publicly withdrawn although action under them was discontinued.