The Rise and Fall of the Confederate Government, Volume 2

by Jefferson Davis

At this session of the Confederate Congress additional forces were provided to repel invasion, by authorizing the President to accept the services of any number of volunteers not exceeding four hundred thousand men. Authority was also given for suitable financial measures hereafter stated, and the levy of a tax. An act of sequestration was also adopted as a countervailing measure against the operations of the confiscation law enacted by the Congress of the United States on August 6, 1861.

This act of the United States Congress, with its complement passed in the ensuing year, will be considered further on in these pages. One of the most indicative of the sections, however, provided that, whenever any person, claimed to be held to labor or service under the laws of any State, shall be permitted, by the person to whom such labor or service is claimed to be due, to take up arms against the United States, or to work, or to be employed in or upon any fort, intrenchment, etc., or in any military or naval service whatever against the Government of the United States, the person to whom such labor is claimed to be due shall forfeit his claim, and, to any attempt to enforce it, a statement of the facts shall be a sufficient answer. The President of the United States, in his message of December 3, 1861, stated that numbers of persons held to service had been liberated and were dependent on the United States, and must be provided for in some way. He recommended that steps be taken for colonizing them at some places in a climate congenial to them.

As the President and the Congress of the United States had declared this to be a war for the preservation of the Constitution, it may not be out of place to see what course they now undertook to pursue under the pretext of preserving the Constitution of the United States. It had been conceded in all time that the Congress of the United States had no power to legislate on slavery in the States, and that this was a subject for State legislation. It was one of the powers not granted in the Constitution, but "reserved to the States respectively." [1] All the powers of the Federal Government were delegated to it by the States, and all which were reserved were withheld from the Federal Government, as well in time of war as in peace. The conditions of peace or war made no change in the powers granted in the Constitution. The attempt, therefore, by Congress, to exercise a power of confiscation, one not granted to it, was a mere usurpation. The argument of forfeiture for treason does not reach the case, because there could be no forfeiture until after conviction, and the Constitution says, "No attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." [2] The confiscation act of 1861 undertook to convict and sentence without a trial, and entirely to deprive the owner of slaves of his property by giving final freedom to the slaves. Still further to show how regardless the United States Government was of the limitations imposed upon it by the compact of Union, the reader is referred to the fifth article of the first amendment, being one of those cases in which the people of the several States, in an abundance of caution, threw additional protection around rights which the framers of the Constitution thought already sufficiently guarded. The last two clauses of the article read thus: No person "shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Here was a political indictment and conviction by the Congress and President, with total forfeitures inflicted in palpable violation of each and of all the cited clauses of the Constitution.

One can scarcely anticipate such effrontery as would argue that "due process of law" meant an act of Congress, that judicial power could thus be conferred upon the President, and private property be confiscated for party success, without violating the Constitution which the actors had sworn to support.

The unconstitutionality of the measure was so palpable that, when the bill was under consideration, Mr. Thaddeus Stevens, a member of Congress from Pennsylvania, said: "I thought the time had come when the laws of war were to govern our action; when constitutions, if they stood in the way of the laws of war in dealing with the enemy, had no right to intervene. Who pleads the Constitution against our proposed action?" [3] This subject is further considered in subsequent chapters on the measures of emancipation adopted by the United States Government.

It is to be remembered in this connection that pillage and the wanton destruction of private property are not permitted by the laws of war among civilized nations. When prosecuting the war with Mexico, we respected private property of the enemy; and when in 1781 Great Britain, attempting to reduce her revolted American colonies, took possession of the country round and about Point Comfort (Fortress Monroe), the homes quietly occupied by the rebellious people were spared by the armies of the self-asserting ruler of the land. At a later date, war existed between Great Britain and the independent States of the Union, during which Great Britain got possession of various points within the States. At the Treaty of Ghent, 1815, by which peace was restored to the two countries, it was stipulated in the first article that all captured places should be restored "without causing any destruction, or carrying away any of the artillery or other public property originally captured in the said forts or places, and which shall remain therein upon the exchange of the ratifications of this treaty; or any slaves or other private property." Persistent efforts were made to avoid the return of deported slaves, and it was attempted to put them in the category of artillery which had been removed before the exchange of ratification. Mr. John Quincy Adams, first as United States Minister to England, and subsequently as United States Secretary of State, conducted with great vigor and earnestness a long correspondence to maintain the true construction of the treaty as recognizing and guarding the right of private property in slaves. In his letter to Viscount Castlereagh, the British Secretary of State for Foreign Affairs, after explaining the distinction between "artillery or other public property" and "slaves or other private property," as used in the treaty, and why it might be impracticable, if they had been removed, to return the former, but that the reasons did not apply to the latter, for, he proceeds to say, "Private property, not having been subject to legitimate capture with the places, was not liable to the reason of limitation." In the same letter, Mr. Adams writes: "Merchant-vessels and effects captured on the high-seas are, by the laws of war between civilized nations, lawful prize, and by the capture become the property of the captors. . . . But, as by the same usages of civilized nations, private property is not the subject of lawful capture in war upon the land, it is perfectly clear that, in every stipulation, private property shall be respected; or that, upon the restoration of places taken during the war, it shall not be carried away." (See "American State Papers," vol. iv, pp. 122, 123.) Sectional hostility and party zeal had not then so far undermined the feeling of fraternity which generated the Union as to make a public officer construe the Constitution as it might favor or injure one section or another, and Great Britain was, from a sense of right, compelled to recognize the wrong done in deporting slaves, the private property of American citizens.

On the 4th of December, 1861, the President of the United States issued an order to the commander-in-chief relative to slaves as above mentioned, in which he said, "Their arrest as fugitives from service or labor should be immediately followed by the military arrest of the parties making the seizure." Had Congress and the President made new laws of war?

Although the Government of the United States did not boldly proclaim the immediate emancipation of all slaves, the tendency of all its actions was directly to that end. To use a favorite expression of its leaders, the Northern people were not at that time "educated up to the point." A revolt from too sudden a revelation of its entire policy was apprehended. Even as late as July 7, 1862, General McClellan wrote to the authorities at Washington from the vicinity of Richmond, "A declaration of radical views, especially upon slavery, will rapidly disintegrate our armies." Nevertheless, when policy indicated it, the declaration came, as will be seen hereafter. Meantime, General Fremont, in command in Missouri, issued a proclamation on August 31, 1861, declaring the property, real and personal, of all persons in arms against the United States, or taking an active part with their enemies, to be confiscated, and their slaves to be free men. This was subsequently modified to conform to the terms of the above-mentioned confiscation act. General Thomas W. Sherman, commanding at Port Royal, in South Carolina, was instructed, on October 14, 1861, to receive all persons, whether slaves or not, and give them employment, "assuring all loyal masters that Congress will provide just compensation to them for the loss of the services of the persons so employed." To others no relief was to be given. This was, by confiscation, to punish a class of citizens, in the emancipation of every slave whose owner rendered support to the Confederate States. Finally, General Halleck, who succeeded Fremont, and General Dix, commanding near Fortress Monroe, issued orders not to permit slaves to come within their lines. They were speedily condemned for this action, because it put a stop to the current of emancipation, which will be hereafter narrated.

Reference has been made to our want of a navy, and the efforts made to supply the deficiency. The usual resort under such circumstances to privateers was, in our case, without the ordinary incentive of gain, as all foreign ports were closed against our prizes, and, our own ports being soon blockaded, our vessels, public or private, had but the alternative of burning or bonding their captures. To those who, nevertheless, desired them, letters of marque were granted by us, and there was soon a small fleet of vessels composed of those which had taken out these letters, and others which had been purchased and fitted out by the Navy Department. They hovered on the coasts of the Northern States, capturing and destroying their vessels, and filling the enemy with consternation. The President of the United States had already declared in his proclamation of April 19th, as above stated, that "any person, who, under the pretended authority of the said (Confederate) States, should molest a vessel of the United States, or the persons or cargo on board," should be held amenable to the laws of the United States for the prevention of piracy. This was another violation of international law, another instance of arrogant disregard for universal opinion. The threat, if meant for intimidation, and to deprive the Confederacy of one of the usual weapons of war, was unbecoming the head of a Government. To have executed it upon a helpless prisoner, would have been a crime intensified by its cowardice. Happily for the United States, the threat was not executed, but the failure to carry out the declared purpose was coupled with humiliation, because it was the result of a notice to retaliate as fully as might need be to stop such a barbarous practice. To yield to the notice thus served, was a practical admission by the United States Government that the Confederacy had become a power among the nations.