Message to Congress
Fellow-Citizens of the Senate and House of Representatives:
Considering the bill for "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels and for other purposes," and the joint resolution explanatory of said act as being substantially one, I have approved and signed both.
Before I was informed of the passage of the resolution I had prepared the draft of a message stating objections to the bill becoming a law, a copy of which draft is herewith transmitted.
Fellow-Citizens of the House of Representativcs:
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 its becoming a law.
There is much in the bill to which I perceive no objection. It is wholly prospective, and touches neither person nor property of any loyal citizen, in which particulars it is 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 "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 and 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 puuished without regular trials in duly constituted courts, under the forms and all 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 the 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 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 by escheat and has sold none, but liberated all. I hope the same is true of some other States. Indeed I do not believe it would be 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 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 rein, 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.
Abraham Lincoln, Message to Congress Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/202212