BULL RUN—THE CONFISCATION ACT

In company with other Senators, Trumbull went to the battle of Bull Run, July 21, 1861. His experience there he communicated to his wife, first by a brief telegram, and afterwards by letter. The telegram was suppressed by the authorities in charge of the telegraph office, who substituted one of their own in place of it and appended his name to it. The letter follows:

Washington, July 22nd, 1861.

We started over into Virginia about 9 o'clock A.M., and drove to Centreville, which is a high commanding position and a village of perhaps fifty houses. Bull Run, where the battle occurred, is South about 3 miles and the creek on the main road, looking West, is about 4-1/2 miles distant. The country is timbered for perhaps a mile West of the creek, between which and Centreville there are a good many cleared fields. At Centreville, Grimes and I got saddles and rode horseback down the main road towards the creek about three miles toward a hospital where were some few wounded soldiers and a few prisoners who had been sent back. This was about half-past three o'clock P.M. Here we met with Col. Vandever of Iowa, who gave us a very clear account of the battle. He had been with Gen. McDowell and Gen. Hunter, who with the strongest part of the army, had gone early in the morning a few miles north of the main road and crossed the creek to take the enemy in the flank. His division had very serious fighting, but had driven the enemy back and taken three of his batteries. At the hospital we were about one and a half miles from Generals Tyler and Schenck, Col. Sherman, etc., who were down the road in the woods and out of sight, with several regiments and a number of guns. Their troops, Vandever told us, were a good deal demoralized, and he feared an attack from the South towards Bull Run where the battle of a few days ago was fought. About this time a battery, apparently not more than a mile and a half distant and from the South, fired on the battery where Sherman and Schenck were. The firing was not rapid. On the hill at Centreville we could see quite beyond the timber of the creek off towards Manassas and see the smoke and hear the report of the artillery, but not very rapid as I thought. This we observed before leaving Centreville, and were told it was our main army driving the enemy back, but slowly and with great difficulty.

While at the hospital McDougall of California came up from the neighborhood of Gen. Schenck and said he was going back towards Centreville to a convenient place where he could get water and take lunch. As Grimes and myself had got separated from Messrs. Wade and Chandler and Brown, who had with them our supplies, we concluded to go back with McD. and partake with him. We returned on the road towards Centreville and turned up towards a house fifty or a hundred yards from the road, where we quietly took our lunch, the firing continuing about as before. Just as we were putting away the things we heard a great noise, and looking up towards the road saw it filled with wagons, horsemen and footmen in full run towards Centreville. We immediately mounted our horses and galloped to the road, by which time it was crowded, hundreds being in advance on the way to Centreville and two guns of the Sherman battery having already passed in full retreat. We kept on with the crowd, not knowing what else to do. On the way to Centreville many soldiers threw away their guns, knapsacks, etc. Gov. Grimes and I each picked up a gun. I soon came up to Senator Lane of Indiana, and the gun being heavy to carry and he better able to manage it, I gave it to him. Efforts were made to rally the men by civilians and others on their way to Centreville, but all to no purpose. Literally, three could have chased ten thousand. All this stampede was occasioned, as I understand, by a charge of not exceeding two hundred cavalry upon Schenck's column down in the woods, which, instead of repulsing as they could easily have done (having before become disordered and having lost some of their officers), broke and ran, communicating the panic to everybody they met. The rebel cavalry, or about one hundred of them, charged up past the hospital where we had been and took there some prisoners, as I am told, and released those we had. It was the most shameful rout you can conceive of. I suppose two thousand soldiers came rushing into Centreville in this disorganized condition. The cavalry which made the charge I did not see, but suppose they disappeared in double-quick time, not dreaming that they had put a whole division to flight. Several guns were left down in the woods, though I believe two were brought off. What became of Schenck I do not know. Tyler, I understand, was at Centreville when I got back there. Whether other portions of our army were shamefully routed just at the close of the day, after we had really won the battle, it seems impossible for me to learn, though I was told that McDowell was at Centreville when we were there and that his column had also been driven back. If this be so it is a terrible defeat. At Centreville there was a reserve of 8000 or 10,000 men under Col. Miles who had not been in the action and they were formed in line of battle when we left there, but the enemy did not, I presume, advance to that point last night, as we heard no firing. We fed our horses at Centreville and left there at six o'clock last evening. Came on to Fairfax Court House, where we got supper, and leaving there at ten o'clock reached home at half-past two this morning, having had a sad day and witnessed scenes I hope never to see again. Not very many baggage wagons, perhaps not more than fifty, were advanced beyond Centreville. From them the horses were mostly unhitched and the wagons left standing in the road when the stampede took place. This side of Centreville there were a great many wagons, and the alarm if possible was greater than on the other. Thousands of shovels were thrown out upon the road, also axes, boxes of provisions, etc. In some instances wagons were upset to get them out of the road, and the road was full of four-horse wagons retreating as fast as possible, and also of flying soldiers who could not be made to stop at Centreville. The officers stopped the wagons and a good many of the retreating soldiers by putting a file of men across the road and not allowing them to pass. In this way all the teams were stopped, but a good many stragglers climbed the fences and got by. I fear that a great, and, of course, a terrible slaughter has overtaken the Union forces—God's ways are inscrutable. I am dreadfully disappointed and mortified.

Copy of telegram sent to Mrs. Lyman Trumbull, July 22, 1861:

The battle resulted unfavorably to our cause.

Lyman T.

When received by Mrs. Trumbull, it read:

I came from near the battlefield last night. It was a desperately bloody fight.

The only bill of importance passed at the July session of Congress at Trumbull's instance was one to declare free all slaves who might be employed by their owners, or with their owners' consent, on any military or naval work against the Government, and who might fall into our hands. It was called a Confiscation Act, but it did not confiscate any other than slave property. It was an entering wedge, however, for complete emancipation which came by successive steps later.

At the beginning of the regular session (December, 1861), I was sent to Washington City as correspondent of the Chicago Tribune, and was, for the first time, brought into close relations with Trumbull. He had rented a house on G Street, near the Post-Office Department.

Very few Senators at that period kept house in Washington. At Mrs. Shipman's boarding-house on Seventh Street, lived Senators Fessenden, Grimes, Foot, and Representatives Morrill, of Vermont, and Washburne, of Illinois; and there I also found quarters. As this was only a block distant from the Trumbulls', and as I had received a cordial welcome from them, I was soon on terms of intimacy with the family. Mr. Trumbull was then forty-eight-years of age, five feet ten and one half inches in height, straight as an arrow, weighing one hundred and sixty-seven pounds, of faultless physique, in perfect health, and in manners a cultivated gentleman. Mrs. Trumbull was thirty-seven years old, of winning features, gracious manners, and noble presence. Five children had been born to them, all sons. Walter, fifteen years of age, the eldest then living, had recently returned from an ocean voyage on the warship Vandalia, under Commander S. Phillips Lee. A more attractive family group, or one more charming in a social way or more kindly affectioned one to another, I have never known. Civilization could show no finer type.

The Thirty-seventh Congress met in a state of great depression. Disaster had befallen the armies of the Union, but the defeat at Bull Run was not so disheartening as the subsequent inaction both east and west. McClellan on the Potomac had done nothing but organize and parade. FrÉmont on the Mississippi had done worse than nothing. He had surrounded himself with a gang of thieves whose plundering threatened to bankrupt the treasury, and when he saw exposure threatening he issued a military order emancipating slaves, the revocation of which by the President very nearly upset the Government. The popular demand for a blow at slavery as the cause of the rebellion had increased in proportion as the military operations had been disappointing. Lincoln believed that the time had not yet come for using that weapon. He revoked FrÉmont's order. He thereby saved Kentucky to the Union, and he still held emancipation in reserve for a later day; but he incurred the risk of alienating the radical element of the Republican party—an honest, fiery, valiant, indispensable wing of the forces supporting the Union. The explosion which took place in this division of the party was almost but not quite fatal. Many letters received by Trumbull at this juncture were angry and some mournful in the extreme. The following written by Mr. M. Carey Lea, of Philadelphia, touches upon a danger threatening the national finances, in consequence of this episode:

Philadelphia, Nov. 1, 1861.

Dear Sir: The ability of our Government to carry on this war depends upon its being able to continue to obtain the enormous amounts of money requisite. Of late, within a week or so, an alarming falling off in the bond subscriptions has taken place. Now it is upon these private subscriptions that the ability of the banks to continue to lend the Government money depends, and unless a change takes place they will be unable to take the fifty millions remaining of the one hundred and fifty millions loan. A member of the committee informed me lately that the banks had positively declined to pledge themselves before the 1st of December, notwithstanding Mr. Chase's desire that they should do so.

This sudden diminution of subscriptions arises from the course taken by some of our friends in the West. Even suppose that Gen. FrÉmont is treated unfairly by the Government (and I think he is fairly termed incapable)—but suppose there should be injustice done him—you might disapprove it, but the moment there is any serious idea of resisting the act of the President, this war is ended. For the bare suggestion of such a thing has almost stopped subscriptions, and the serious discussion, much more the attempt, would instantly put an end to them.

I beg to remind you that in what I say I have no prejudice against FrÉmont. I voted for him and have always concurred in opinions with the Republican party, but we have now reached a point where, if we look to men and not to principles, we are shipwrecked. FrÉmont is not more anti-slavery in his views than Lincoln and Seward, and if he were in their place would adopt the same cautious policy. The state of affairs must be my excuse for intruding upon you these views. We all have all at stake and such a crisis leads those to speak who are ordinarily silent. I remain, my dear Sir,

Yours respectfully,
M. Carey Lea.

To this weighty communication Trumbull made the following reply:

Washington, Nov. 5th, 1861.

My dear Sir: Thanks for your kind letter just received. I was not aware of a disposition in the West to resist the act of the President in regard to Gen. FrÉmont; though I was aware that there was very great dissatisfaction in that part of the country at the want of enterprise and energy on that part of our Grand Army of the Potomac. We are fighting to sustain constitutional government and regulated liberty, and, of course, to set up any military leader in opposition to the constituted authorities would be utterly destructive of the very purpose for which the people of the loyal states are now so liberally contributing their blood and treasure, and could only be justified in case those charged with the administration of affairs were betraying their trusts or had shown themselves utterly incompetent and unable to maintain the Government. In my opinion this rebellion ought to and might have been crushed before this.

I have entire confidence in the integrity and patriotism of the President. He means well and in ordinary times would have made one of the best of Presidents, but he lacks confidence in himself and the will necessary in this great emergency, and he is most miserably surrounded. Now that Gen. Scott has retired, I hope for more activity and should confidently expect it did I not know that there is still remaining an influence almost if not quite controlling, which I fear is looking more to some grand diplomatic move for the settlement of our troubles than to the strengthening of our arms. It is only by making this war terrible to traitors that our difficulties can be permanently settled. War means desolation, and they who have brought it on must be made to feel all its horrors, and our armies must go forth using all the means which God and nature have put in their hands to put down this wicked rebellion. This in the end will be done, and if our armies are vigorously and actively led will soon give us peace. I trust that Gen. McClellan will now drive the enemy from the vicinity of the Capital—that he has the means to do it, I have no doubt. If the case were reversed and the South had our means and our arms and men, and we theirs, they would before this have driven us to the St. Lawrence. If our army should go into winter quarters with the Capital besieged, I very much fear the result would be a recognition of the Confederates by foreign Governments, the demoralization of our own people, and of course an inability to raise either men or money another season. Such must not be. Action, action is what we want and must have. God grant that McClellan may prove equal to the emergency.

Yours very truly,
Lyman Trumbull.

The "influence almost if not quite controlling" meant Seward. Secretary Cameron went to St. Louis to investigate FrÉmont and found him guilty. Two months later he followed FrÉmont's example.[54] In his report as Secretary of War he inserted an argument in favor of the emancipation and arming of slaves. This he sent to the newspapers in advance of its delivery to the President and without his knowledge. The latter discovered it in time to expunge the objectionable part and to prevent its delivery to Congress, but not soon enough to recall it from the press. The expunged part was published by some of the newspapers that had received it and was reproduced in the Congressional Globe (December 12), by Representative Eliot, of Massachusetts.

The next man to take upon himself the responsibility of declaring the nation's policy on this momentous question was General David Hunter, who then held sway over a small strip of ground on the coast of South Carolina. In the month of May, 1862, he issued an order granting freedom to all slaves in South Carolina, Georgia, and Florida. Hunter's order was promptly revoked by the President.

Trumbull had been the pioneer, at the July session, in the way of legislation for freeing the slaves. On the first day of the regular session he took another step forward, by introducing a bill for the confiscation of the property of the rebels and for giving freedom to persons held as slaves by them. This came to be known as the Confiscation Act.

On the 5th of December, 1861, he reported the bill from the Committee on the Judiciary and made a brief speech on it. It provided that all the property, real and personal, situated within the limits of the United States, belonging to persons who should bear arms against the Government, or give aid and comfort to those in rebellion, which persons should not be reachable by the ordinary process of law, should be forfeited and confiscated to the United States and that the forfeiture should take immediate effect; and that the slaves of all such persons should be free. Also that no slaves escaping from servitude should be delivered up unless the person claiming them should prove that he had been at all times loyal to the Government. Also that no officer in the military or naval service should assume to decide whether a claim made by a master to an escaping slave was valid or not.

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.

This was not the end of it, however. Provision had been made in the bill for the forfeiture, by judicial process, of the property, both real and personal, of rebels, regardless of the clause of the Constitution which declares that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." No such exception was made in the bill. The President considered it unconstitutional in this particular, and he wrote a short message giving his reasons for withholding his approval of the measure. A rumor of his intention reached Senator Fessenden, who called at the White House to inquire whether it was true. He had a frank conversation with the President, the result of which was that both houses passed a joint resolution providing that no punishment or proceedings under the Confiscation Act should be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. Lincoln's intended veto of the Confiscation Bill is printed on page 3406 of the Congressional Globe. Touching confiscation in general he expressed the golden opinion that "the severest justice may not always be the best policy." But he would not have vetoed the bill on grounds of expediency merely. The forfeiture of real estate in perpetuity was the insuperable objection in his mind. And he here seems to me to have been entirely right. Yet Trumbull had the support of Judge Harris, Seward's successor in the Senate, than whom nobody stood higher as a lawyer at that day.

The President then signed both the bill and the joint resolution. The Confiscation Act remained, however, practically a dead letter, except as to the freeing of the slaves. In the latter particular it was the first great step toward complete emancipation, since it took effect upon slaves within our lines, who could be reached and made free de facto. It provided that all slaves of persons who should be thereafter engaged in rebellion, escaping and taking refuge in the lines of the Union forces, and all such slaves found in places captured by such forces, should be declared free; that no slaves escaping should be delivered up unless the owner should swear that he had not aided the rebellion; that no officer of the United States should assume to decide on the validity of the claim of any person to an escaping slave; that the President should be authorized to employ negroes for the suppression of the rebellion in any capacity he saw fit; and that he might colonize negroes with their own consent and the consent of the foreign Government receiving them.

According to a report of the Solicitor of the Treasury dated Dec. 27, 1867, the total proceeds of confiscation actually paid into the Treasury up to that time amounted to the insignificant sum of $129,680.

The enforcement of the confiscation act was placed under the charge of the Attorney-General. Practically, however, it was performed by officers of the army, so far as it was enforced at all. General Lew Wallace, while in command of the Middle Department at Baltimore, in 1864, issued two orders declaring his intention to confiscate the property of certain persons who were either serving in the rebel army or giving aid to the Confederate cause. These orders, which were published in the newspapers, came to the notice of Attorney-General Bates, who at once wrote to Wallace to remind him that the execution of the confiscation act devolved upon the Attorney-General, and that he (Bates) had not given any orders which would warrant the Commander of the Middle Department in seizing private property, and requesting him to withdraw the orders. Wallace replied that his construction of the law differed from that of the Attorney-General and that he should execute it according to his own understanding of it. Thereupon Bates took the orders, and the correspondence, to the President and declared his intention to resign his office if his functions were usurped by military men in the field, or by the War Department. Lincoln took the papers, and directed Secretary Stanton to require Wallace to withdraw the two orders and to desist from confiscation altogether. This was done by Stanton, but the orders were never publicly withdrawn although action under them was discontinued.