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.
Public-domain text, read in full here on John Shaqi.
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