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 13.
Without any special act of Congress, I think our military commanders,
when, in military phrase, "they are within the enemy's 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 a law already existing.
The eleventh section simply assumes to confer discretionary powers upon
the Executive. Without the 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 descent as can be used to
advantage.
The twelfth and thirteenth sections are somewhat 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 seems 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 offense. 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 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 Government is
certainly not very satisfactory. Still, the owner may not be thus
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.