History of the Antislavery Measures of the Thirty-seventh and Thirty-eighth United States Congresses, 1861-65, by Henry Wilson, 1865.

CHAPTER I.

SLAVES USED FOR INSURRECTIONARY PURPOSES MADE FREE.

SLAVES USED IN THE REBEL. FORCES, — MR. TRUMBULL'S PEOPOSITION TO FREE SLAVES USED FOR MILITARY PURPOSES. — MR. TRUMBULL'S SPEECH. — MR. BRECKINRDGE'S SPEECH. — MR. WILSON'S SPEECH, — MR. BRECKINRIDGE'S REPLY. — MR. MCOUGALL'S SPEECH. — MR. TEN EYCK'S SPEECH. — MR. PEARCE'S SPEECH. — ADOPTION OF MR. TRUMBULL'S AMENDMENT FREEING SLAVES USED FOR MILITARY PURPOSES. SUBSTITUTE REPORTED BY THE JUDICIARY COMMITTEE OF THE HOUSE. — SUBSTITUTE REJECTED, — MR. BINGHAM'S SPEECH. — MR. BURNETT'S SPEECH. — MR. CRITTENDEN'S SPEECH. — MR. KELLOG'S SPEECH, — MR. COX'S MOTION TO LAY THE BILL ON THE TABLE, — MR. PENDLETON'S SPEECH, — MR. STEVENSS SPEECH. — MR. DIVEN'S SPEECH. - MR. PENDLETON'S MOTION TO RECOMMIT THE BILL CARRIED. — BILL REPORTED BACK WITH AN AMENDMENT, — MR. HOLMAN'S MOTION TO LAY- THE BILL ON THE TABLE. — PASSAGE OF THE BILL.

AT the opening of the Rebellion, slaves were used by their masters for insurrectionary purposes. Wherever armed rebels gathered, officers, and in many instances privates, brought their slaves with them as servants. Slaves were put at work on fortifications, and employed by thousands as laborers in various capacities in the rising forces of the insurgents. They were used in the erection of the works in the harbor of Charleston, on which were planted the batteries whose fires demolished Sumter, and kindled the devastating flames of civil war. In Virginia, where the rebel forces were massing for the contest, the labor of slaves lightened the toils of rebel soldiers, and augmented the powers of rebel armies.

In the Senate, on the 20th of July, 1861, Mr. Trumbull (Rep.) of Illinois, Chairman of the Committee on the Judiciary, reported, by order of that committee, a bill to confiscate the property used for insurrectionary purposes. The bill provided, that if during the present or any future insurrection against the Government of the United States, after the President shall have declared by proclamation that the laws of the United States are opposed, and the execution of structed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, any person or persons, his, her, or their agent, attorney, or employs, shall purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding, abetting, or promoting such insurrection, or any person or persons engaged therein ; or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ, or consent to the use or employment of, the same, — all such property is to be declared to be lawful subject of prize and capture wherever found.

Mr. Fessenden (Rep.) of Maine thought it a very important bill, that had better be postponed for consideration. Mr. Trumbull did not care to have the bill considered at that time; but he would like to offer an Page 3 amendment, not reported from the committee, with the view of having it before the Senate. He then proposed as an additional section, —

"That whenever any person claiming to be entitled to the service or labor of any other person, under the laws of any State, shall employ such person in .aiding or promoting any insurrection, or in resisting the laws of the United States, or shall permit or suffer him to be so employed, he shall forfeit all right to such service or labor ; and the person whose labor or service is thus claimed shall be henceforth discharged therefrom, any law to the contrary notwithstanding."

Mr. Ten Eyck (Rep.) of New Jersey did not understand the Chairman of the Committee on the Judiciary to offer the amendment from that committee. Mr. Trumbull replied, that he had already stated ,that he offered the amendment himself, not from the committee.

On the 22d of July, the day following the battle of Bull Run, the bill to confiscate property used for insurrectionary purposes was taken up for consideration ; the pending question being Mr. Trumbull's amendment freeing slaves used for military purposes. Mr. Breckinridge (Dem.) of Kentucky said, "This amendment strikes me as very objectionable. I do not propose to argue it, for I am aware it will probably command a decided majority in the Senate ; but I ask for the yeas and nays on the amendment." Mr. Trumbull, Chairman of the Judiciary Committee, in reply to Mr. Breckinridge, said, "As the yeas and nays are called for, I will state simply what it is, and all there is of it. The amendment provides, that if any person held to service or labor in any State, under the laws thereof (by which, of course, is meant a slave in any of these Page 4 States), if employed, in aid of this Rebellion, in digging ditches or intrenchments, or in any other way, or if used for carrying guns, or if used to destroy this Government, by the consent of his master, his master shall forfeit all right to him-, and he shall be for ever discharged ; and I am glad the yeas and nays are called to let us see who is willing to vote that the traitorous owner of a negro shall employ him to shoot down the Union men of the country, and yet insist upon restoring him to the traitor that owns him. I understand that negroes were in the fight which has recently occurred. I take it that negroes who are used to destroy the Union, and to shoot down the Union men by the con sent of traitorous masters, ought not to be restored to them. If the senator from Kentucky is in favor of restoring them, let him vote against the amendment. To these remarks of Mr. Trumbull, Mr. Breckinridge replied, with some warmth of manner, " The line of remarks made by the senator appears to me to be altogether uncalled for. I expect to do my duty here as a senator, upon my own conscience and upon my own judgment, according to the Constitution. I shall enter into no argument in reply. I showed my willingness to vote by asking for the yeas and nays. In my opinion, the amendment will be one of a series which will amount, before we are done with it, — if, unhappily, we have no settlement or adjustment soon, — to a general confiscation of all property, and a loosing of all bonds. The inferences the senator draws are not deducible from my motives and purpose in calling for the yeas and nays on this amendment, and the vote I shall give."

Page 5 "I shall vote," said Mr. Wilson (Rep.) of Massachusetts, "with more heart than I vote for ordinary measures, for this proposition. I hope the Senate and the House of Representatives will sustain it, and that this Government will carry it out with an inflexibility that knows no change. The idea that men who are in arms destroying their country shall be permitted to use others for that purpose, and that we shall stand by and issue orders to our commanders, that we should dis grace our cause and our country by returning such men to their traitorous masters, ought not longer to be entertained. The time has come for that to cease ; and by the blessing of God, as far as I am concerned, I mean it shall cease. If there is anybody in this Chamber that chooses to take the other path, let him do it : let him know what our purpose is. Our purpose is to save this Goverment and save this country, and to put down treason ; and, if traitors use bondmen to destroy this country, my doctrine is that the Government shall at once convert those bondmen into men that cannot be used to destroy our country. I have no apologies to make for this position. I take it proudly. I think the time has come, when this Government, and the men who are in arms under the Government, should cease to return to traitors their fugitive slaves, whom they are using to erect batteries, to murder brave men who are fighting under the flag of their country. The time has come when we should deal with the men who are organizing negro companies, and teaching them to shoot down loyal men for the only offence of upholding the flag of their country. I hope further, sir, that there is a public sentiment in this country that will Page 6 blast men who will rise in the Senate, or out of it, to make apologies for treason, or to defend or to maintain the doctrine that this Government is bound to protect traitors in converting their slaves into tools for the destruction of the Republic." "

One single word, sir," said Mr. Breckinridge in reply. " The senator from Massachusetts is a senator from that Commonwealth, and, I presume, discharges what he believes to be his duty. I am a senator from Kentucky, and I do the same thing ; and when the senator attempts to deter me from doing my duty in my place, by intimating to me that the public sentiment, here or elsewhere, will blast any man who votes as he believes in his conscience to be right, I tell him that he speaks to the wind. I will utter no unparliamentary language ; but I give that senator notice now, that it is perfectly idle to attempt to influence the conduct of senators, in the discharge of their public duties, by any such course of remark."

"I understand this amendment," said Mr. McDougall (Dem.) of California, "to be in the nature of a confiscation for treason. I am in favor of it ; but I ask the senator from Illinois to make one modification in it. As it now reads, it makes the confiscation where the masters ' permit or suffer ' the employment of these parties. ' Suffer ' may be something he is compelled to do, and therefore I object to that term." Mr. Trumbull would agree to that amendment.

Mr. Ten Eyck of New Jersey said, "No longer ago than Saturday last, I voted in the Judiciary Committee against this amendment, for two reasons : first, I did not believe that persons in rebellion against this Government Page 7 would make use of such means as the employment of persons held to labor or service in their armies ; secondly, because I did not know what was to become of these poor wretches if they were discharged. God knows, we do not want them in our section of the Union. But, sir, having learned, and believing, that these persons have been employed with arms in their hands to shed the blood of the Union-loving men of this country, I shall now vote in favor of that amendment, with less regard to what may become of these people than I had on Saturday. I will merely instance that there is a precedent for this. If I recollect history aright. Gen. Jackson, in the Seminole War, declared that every slave who was taken in arms against the United States should be set free."

"It will not be surprising to the Senate," said Mr. Pearce (Dem.) of Maryland, "if those who come from the section of the country in which I reside should be a little sensitive at any thing which proposes, as this amendment does, an act of emancipation, however limited and qualified. That is ray objection to it. Be sides, I think it will be brutum fulmen. Nothing will come of it but more of that irritation of which it is my earnest prayer there shall be as little as possible. I think it is the part of statesmen, in managing the concerns of the country at this dreadful crisis, to observe all possible toleration, all conciliation, all liberality; not looking merely at the events of the day, but at the great events that may crowd upon us for years, and upon which the fate of the country, for weal or for woe, may depend for a century. I am not insensible to the magnitude of this occasion. I look at all its Page 8 aspects, and at all the consequences which may result from that which is now in progress. No man deplores it more deeply than I do. No man sought more earnestly to shun it. I only ask now, that this measure, which cannot be of any very active force, may not be adopted ; because it will only add one more to the irritations which are already exasperating the country to far too great an extent. It will inflame suspicions which have had much to do with producing our present evils ; will disturb those who are now calm and quiet inflame those who are restless ; irritate numbers who would not be exasperated by any thing else ; and will, in all probability, produce no other real effect than these. Being, then, useless, unnecessary, and irritating, it is, in my opinion, unwise."

The question, being taken by yeas and nays, resulted — yeas 33, nays 6 — as follows : —
Yeas. — Messrs. Anthony, Bingham, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson of Tennessee, King, Lane of Kansas, McDougall, Morrill, Nesmith, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, and Wilson, — 83.

Nays, — Messrs. Breckinridge, of Missouri, Kennedy, Pearce, Polk, and Powell, — 6.

So the amendment was agreed to, the bill was reported to the Senate as amended, the amendments were concurred in, and the bill passed the Senate.

In the House of Representatives, on the 2d of August, Mr. Bingham (Rep.) of Ohio, from the Committee on the Judiciary, reported back, with an amendment in the nature of a substitute, the Senate bill to confiscate property used for insurrectionary purposes.

Page 9 It provided that whenever hereafter, during the existence of the present insurrection against the Government of the United States, any person held to labor or service under the laws of any State shall be required or per mitted, by the person to whom such labor or service is due, or his legal agent, to take up arms against the United States, or to work or be employed in or about any fort, navy-yard, armory, dock-yard, ship, or in any military or naval service, against the Government of the United States, or as the servant of any person engaged in active hostilities against the United States, then the person to whom such labor is due shall forfeit all claim to such service or labor, any law of any State or of the United States to the contrary notwithstanding; and, in case of a claim for such labor, such facts shall be a full and sufficient answer.

Mr. Bingham said, " The substitute is the instruction of a majority of the committee, from which I dissent." Mr. Sheffield (Dem.) of Rhode Island desired "to know to whom this right of property is to be forfeited." To this question Mr. Bingham replied, "The forfeiture is simply a forfeiture of all claim, under any State laws or under any laws of the United States, of the person so offending, to any person hitherto held to service by him."

Mr. Kellogg (Rep.) of Illinois proposed an amendment to the original bill, — to strike out, in the fourth section, all after the sixth line, as follows : "And the person whose labor or service is thus claimed shall be thenceforth discharged therefrom, any law to the contrary notwithstanding ; " and insert, in lieu thereof, as follows : "And such claim to service or labor shall be confiscated."

Page 10 Mr. Bingham demanded the previous question on the substitute reported by the Judiciary Committee, and the substitute was rejected. Mr. Bingham then remarked, that "the Senate bill is a sweeping declaration, that whenever any person claiming to be entitled to the service or labor of any other person, under the laws of any State, shall employ such person in aiding or promoting any insurrection, or in resisting the laws of the United States, or shall permit him to be so employed, he shall forfeit all right to such service or labor ; and the person whose labor or service is thus claimed shall be thenceforth discharged there from, any law to the contrary notwithstanding."

Mr. Burnett (Dem.) of Kentucky understood that "the use of a slave, by authority of the owner, in any mode which will tend to aid or promote this insurrection, will entitle that slave to his freedom." — "Certainly it will," replied Mr. Bingham. " Or with his consent," inquired Mr. Burnett, " or the consent of his agent, in any mode whatever, then the negro is entitled to his freedom ?"—" Yes, sir," replied Mr. Bingham. "Then," exclaimed Mr. Burnett, " that amounts to a wholesale emancipation of the slaves in the seceding or rebellious States." — "No just court in America," replied Mr. Bingham, "will ever construe this fourth section, if it becomes a law, to the effect, that because it happens that citizens of the United States, residing in a seceding State, hold slaves, this law amounts to an emancipation of their slaves. By the express words of the bill, it is limited in its effect to those persons, who themselves, by their own direct acts, for the purpose of overturning the powers of the Government, employ, or consent that Page 11 others shall employ, the services of their slaves to that end. I aver that a traitor should not only forfeit his slaves, but he should forfeit his life as well." — "It has been conceded," said Mr. Crittenden of Kentucky, " in all time, that the Congress of the United States had no power to legislate upon the subject of slavery within the States. Absence of all power of legislation in time of peace must be the absence of the same power at all times. You have no power, by your Constitution, to touch slavery at all."

Mr. M'Clernand (Dem.) of Illinois inquired "if it- would not be competent, according to the laws of war, for the Goverment to forfeit the ownership of a horse found in the use of the enemy in war, and if a law which would forfeit the ownership of a horse would not forfeit the title to a negro found engaged in military service." — "I am not inquiring," replied Mr. Crittenden, "nor am I prepared to make an argument, as to powers in a state of war, — as to national law, world-wide law. I am interposing a positive statute ; and I say, if there is no power to do this thing in time of peace, there is no such power at any time."

Mr. Kellogg (Rep.) of Illinois suggested to Mr. Crittenden, "whether it is not competent to forfeit the claim that a man has to his slaves, for treason in the master, in the same way that he would forfeit his claim to his horse, and yet not at all conflict with or abrogate the law that authorizes the holding of slaves." — " If you have no power," replied Mr. Crittenden, " there the question ends. Well, have you a power to legislate concerning a slave in Kentucky, as to his rights present or future? Have you a right to impose any terms or Page 12 conditions on the master, in time of peace, on which the slave shall be entitled to his liberty? "

Mr. Kellogg, in answer, said, "My idea on that point is simply this : that the citizen of Kentucky, like the citizen of any State, by an infraction of law, — of the highest law of the country, — is liable to penalties and forfeitures. It operates on the person to forfeit his right by his own crime, and does not at all attack or invalidate the right to hold slaves or abolish slavery in Kentucky.

Mr. Cox (Dem.) of Ohio moved that the bill be laid upon the table, and demanded the yeas and nays on his motion. The question was taken ; and it was decided in the negative, — yeas 57, nays 71. Mr. Pendleton (Dem.) of Ohio moved to recommit the bill to the Judiciary Committee. "I may be asked," said Mr. Diven (Rep.) of New York, "'What would you do with negroes taken in actual arms against the country? What would you do with negroes found employed in building ships-of-war, fighting battles against the country, rearing fortifications from which shots are to be fired on the soldiers of the Union?' Why, sir, I would treat them as men in arms against the country. I would treat them as prisoners of war. Then I admit that a question, entirely novel in the usages of war, at once occurs. You have then got a species of men as prisoners whom the usages of war, in no place that I have ever seen, treat as such. I proposed in committee, as a substitute for this bill, to relieve the Government and the war-power of the country from the attitude in which the seizure of these men thus employed against the Goverment would place them, by providing Page 13 the simple penalty, that any man taken in arms against the Government is taken as a prisoner of war, whether he be black or white or tawny, or whatever may be his complexion. Afterwards, when you come to determine on an exchange of prisoners, you can determine on what terms they should be released. I would have a law by which our generals, when they come to settle on the release as to prisoners, shall make the release of those black men thus employed dependent on the master's losing all right to them. For such a law, and such a bill, I will go most cordially."

Mr. Stevens (Rep.) of Pennsylvania said, "When a country is in open war with an enemy, every publicist agrees that you have the right to use every means which will weaken him. Vattel says, that in time of war, if it be a just war, and there be a people who have been oppressed by the enemy, and that enemy be conquered, the victorious party cannot return that oppressed people to the bondage from which they have rescued them. I wish gentlemen would read what Vattel says upon this subject. I wish the gentleman from New York, especially, would read the remark of Vattel, that one of the most glorious consequences of victory is giving freedom to those who are oppressed." — "I agree to it," replied Mr. Diven. "Then how is it," asked Mr. Stevens, "that if we are justified in taking property from the enemy in war, when you have rescued an oppressed people from the oppression of that enemy, by what principle of the law of nations, by what principle of philanthropy, can you return them to the bondage from which you have delivered them, and rivet again the chains you have once broken? It is a disgrace to Page 14 the party which advocates it. It is against the principle of the law of nations. It is against every principle of philanthropy. I, for one, shall never shrink from saying, when these slaves are once conquered by us, ' Go, and be free.' God forbid that I should ever agree that they should be restored again to their masters! I warn Southern gentlemen, that, if this war is to continue, there will be a time when my friend from New York (Mr. Diven) will see it declared by this free nation, that every bondman in the South — belonging to a rebel, recollect ; I confine it to them — shall be called upon to aid us in war against their masters, and to restore this Union."

On Mr. Pendleton's motion to recommit the bill to the Committee on the Judiciary, the House voted, — ayes 69, noes 48. Mr. Stevens moved to reconsider the vote by which the bill was recommitted. Mr. Kellogg moved that the motion be laid on the table. Mr. Burnett demanded the yeas and nays ; and they were ordered, — yeas 71, nays 61.

On the 3d of August, Mr. Bingham, from the Committee on the Judiciary, reported back the Senate bill to confiscate property used for insurrectionary purposes, with an amendment, and demanded the previous question on the third reading of the bill. The amendment proposed to strike out all of section four of the Senate bill after the enacting clause, and insert, —

" That whenever hereafter, during the insurrection against the Government of the United States, any person claimed to be held to labor or service under the laws of any State shall be required or permitted by the person to whom such labor 01 service is claimed to be due, or by the lawful agent of such Page 15 person, to take up arms against the United States, or shall be required or permitted by the person to whom such service or labor is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy-yard, dock, armory, ship, or intrenchment, or in any military or naval service whatever, against the Government and lawful authority of the United States, then, and in every such case, the person to whom such service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwithstanding ; and, whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim, that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States, contrary to the provisions of this act."

Mr. Vallandigham (Dem.) of Ohio called for tellers on ordering the previous question : they were ordered, the House divided, and the tellers reported, — ayes 53, nays 42. Mr. Holman (Dem.) of Indiana moved to lay the bill on the table. Mr. Sheffield of Rhode Island demanded the yeas and nays. Mr. M'Pherson (Rep.) of Pennsylvania asked Mr. Holman to withdraw the motion to lay on the table, to enable him to move to postpone the bill until December next. The question was taken on Mr. Holman's motion, and lost, — yeas 47, nays 66. The question recurring on the amendment of the Committee on the Judiciary, Mr. Mallory (Dem.) of Kentucky moved the House do now adjourn, and demanded the yeas and nays ; and they were ordered, — yeas 30, nays 75. Mr. Bingham de manded the previous question on the passage of the bill ; and it was ordered. Mr. Burnett demanded the yeas and nays on the passage of the bill ; and they were Page 16 ordered. The question was taken, and it was decided in the affirmative, — yeas 60, nays 48, — as follows : —

Yeas. — Messrs. Aldrich, Alley, Arnold, Ashley, Babbitt, Baxter, Beaman, Bingham, Francis P, Blair, Samuel S. Blair, Blake, Buffington, Chamberlain, Clark, Colfax, Frederick A. Conkling, Covode, Duell, Edwards, Elliot, Fenton, Fessenden, Franchot, Frank, Granger, Gurley, Hanchett, Harrison, Hutchins, Julian, Kelley, Francis W. Kellogg, William Kellogg, Lansing, Loomis, Lovejoy, M'Kean, Mitch ell, Justin S. Morrill, Olin, Potter, Alexander H. Rice, Edward H. Rollins, Sedgwick, Sheffield, Shellabarger, Sherman, Sloan, Spaulding, Stevens, Benjamin F, Thomas, Train, Van Horn, Verree, Wallace, Charles W. Walton, E. P. Walton, Wheeler, Albert S. White, and Windom, — 60,

Nays, — Messrs. Allen, Ancona, Joseph Baily, George H, Browne, Burnett, Calvert, Cox, Cravens, Crisfield, Crittenden, Diven, Dunlap, Dunn, English, Fouke, Grider, Haight, Hale, Harding, Holman, Horton, Jackson, Johnson, Law, May, M'Clernand, M'Pherson, Mallory, Menzies, Morris, Noble, Norton, Odell, Pendleton, Porter, Reid, Robinson, James S. Rollins, Shell, Smith, John B, Steele, Stratton, Francis Thomas, Vallandigham, Voorhees, Wadsworth, Webster, and Wickliffe, — 48.

So the Senate bill to confiscate the property used for insurrectionary purposes, with the provision moved by Mr. Trumbull, making free the slaves used by the rebel forces, amended by the amendment reported by Mr., Bingham from the Judiciary Committee, was passed. It received the approval of the President on the 6th of August, and became, in the words of Mr. Breckinridge, the first " of a series of acts loosing all bonds."

Source: Wilson, Henry. History of the Antislavery Measures of the Thirty-Seventh and Thirty-Eighth United States Congresses, 1861-1865, Boston: Walker, Fuller, & Co., 1865.