An Act proposing to the State of Texas the Establishment of her Northern and Western Boundaries, the Relinquishment by the said State of all Territory claimed by her exterior to said boundaries, and of all her Claims upon the United States, and to establish a territorial Government for New Mexico, September 9, 1850

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled:

That the following propositions shall be, and the same hereby are, offered to the State of Texas, which, when agreed to by the said State, in an act passed by the general assembly, shall be binding and obligatory upon the United States, and upon the said State of Texas: Provided, The said agreement by the said general assembly shall be given on or before the first day of December, eighteen hundred and fifty:

FIRST. The State of Texas will agree that her boundary on the north shall commence at the point at which the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and shall run from said point due west to the meridian of one hundred and three degrees west from Greenwich; thence her boundary shall run due south to the thirty-second degree of north latitude; thence on the said parallel of thirty-two degrees of north latitude to the Rio Bravo del Norte, and thence with the channel of said river to the Gulf of Mexico.

SECOND. The State of Texas cedes to the United States all her claim to territory exterior to the limits and boundaries which she agrees to establish by the first article of this agreement.

THIRD. The State of Texas relinquishes all claim upon the United States for liability of the debts of Texas, and for compensation or indemnity for the surrender to the United States of her ships, forts, arsenals, custom-houses, custom-house revenue, arms and munitions of war, and public buildings with their sites, which became the property of the United States at the time of the annexation.

FOURTH. The United States, in consideration of said establishment of boundaries, cession of claim, to territory, and relinquishment of claims, will pay to the State of Texas the sum of ten millions of dollars in a stock bearing five per cent. interest, and redeemable at the end of fourteen years, the interest payable half-yearly at the treasury of the United States.

FIFTH. Immediately after the President of the United States shall have been furnished with an authentic copy of the act of the general assembly of Texas accepting these propositions, he shall cause the stock to be issued in favor of the State of Texas, as provided for in the fourth article of this agreement: Provided, also, That no more than five millions of said stock shall be issued until the creditors of the State holding bonds and other certificates of stock of Texas for which duties on imports were specially pledged, shall first file at the treasury of the United States releases of all claim against the United States for or on account of said bonds or certificates in such form as shall be prescribed by the Secretary of the Treasury and approved by the president of the United States: Provided, That nothing herein contained. shall be construed to impair or qualify any thing contained in the third article of the second section of the “ joint resolution for annexing Texas to the United States,” approved March first, eighteen hundred and forty-five; either as regards the number of States that may here- after be formed out of the State of Texas, or otherwise.

SEC. 2. And be it further enacted, That all that portion of the Territory of the United States bounded as follows: Beginning at a point in the Colorado River where the boundary line with the republic of Mexico crosses the same; thence eastwardly with the said boundary line to the Rio Grande; thence following the main channel of said river the parallel of the thirty-second degree of north latitude ; thence east with said degree to its intersection with the one hundred and third degree of longitude west of Greenwich; thence north with said degree of longitude to the parallel of thirty-eighth degree of north latitude; thence west with said parallel to the summit of the Sierra Madre; thence south with the crest of said mountains to the thirty-seventh parallel of north latitude; thence west with said parallel to its intersection with the boundary line of the State of California; thence with said boundary line to the place of beginning — be, and the same is hereby, erected into a temporary government, by the name of the Territory of New Mexico: Provided, That nothing in this act contained shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such times as Congress shall deem convenient and proper, or from attaching any portion thereof to any other Territory or State: And provided, further, That, when admitted as a State, the said Territory, or any portion of the same, shall be received into the Union, with or without slavery, as their constitution may prescribe at the time of their admission.

SEC. 3. And be it further enacted, That the executive power and authority in and over said Territory of New Mexico shall be vested in, a governor, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The governor shall reside within said Territory, shall be commander-in-chief of the militia thereof, shall perform the duties and receive the emoluments of superintendent of Indian affairs, and shall approve all laws passed by the legislative assembly before they shall take effect; he may grant pardons for offences against the laws of said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon. He shall commission all officers who shall be appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed.

SEC. 4. And be it further enacted, That there shall be a secretary of said Territory, who shall reside therein, and hold his office for four years, unless sooner removed by the President of the United States ; .he shall record and preserve all the laws and proceedings of the legislative assembly hereinafter constituted and all the acts and proceedings of the governor in his executive department; he shall transmit one copy of the laws and one copy of the executive proceedings, on or before the first day of December in each year, to the President of the United States, and, at the same time, two copies of the laws to the Speaker of the House of Representatives and the President of the Senate, for the use of Congress. And, in case of the death, removal, resignation, or other necessary absence of the governor from the Territory, the secretary shall have, and he is hereby authorized and required to execute and perform all the powers and duties of the governor during such vacancy or necessary absence, or until another governor shall be duly appointed to fill such vacancy.

SEC. 5. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the governor and a legislative assembly. The legislative assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall consist of twenty-six members, possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the Council and House of Representatives, giving to each section of the Territory representation in the ratio of its population, (Indians excepted,) as nearly as may be. And the members of the Council and of the House of Representatives shall reside in, and be inhabitants of, the district for which they may be elected respectively. Previous to the first election, the governor shall cause a census or enumeration of the inhabitants of the several counties and districts of the Territory to be taken, and the first election shall be held at such time and places, and be conducted in such manner, as the governor shall appoint and direct; and he shall, at the same time, declare the number of the members of the Council and House of Representatives to which each of the counties or districts shall be entitled under this act. The number of persons authorized to be elected having the highest number of votes in each of said Council districts, for members of the Council, shall be declared by the governor to be duly elected to the Council; and the person or persons authorized to be elected having the greatest number of votes for the House of Representatives, equal to the number to which each county or district shall be entitled, shall be declared by the governor to be duly elected members of the House of Representatives: Provided, That in case of a tie between two or more persons voted for, the governor shall order a new election to supply the vacancy made by such tie. And the persons thus elected to the legislative assembly shall meet at such place and on such day as the governor shall appoint; but thereafter, the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts to the Council and House of Representatives according to the population, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the legislative assembly: Provided, That no one session shall exceed the term of forty days.

SEC. 6. And be it further enacted, That every free white male inhabitant, above the age of twenty-one years, who shall have been a resident of said Territory at the time of the passage of this act, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly: Provided, That the right of suffrage, and of holding office, shall be exercised only by citizens of the United States, including those recognized as citizens by the treaty with the republic of Mexico, concluded February second, eighteen hundred and forty-eight.

SEC. 7. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect.

SEC. 8. And be it further enacted, That all township, district, and county officers, not herein otherwise provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislative assembly of the Territory of New Mexico. The governor shall nominate, and, by and with the advice and consent of the legislative Council, appoint, an officers not herein otherwise provided for; and in the first instance the governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the legislative assembly, and shall lay off the necessary districts for members of the Council and House of Representatives, and all other officers.

SEC. 9. And be it further enacted, That no member of the legislative assembly shall hold, or be appointed to, any office which shall have been created, or the salary or emoluments of which shall have been increased while he was a member, during the term for which he was elected, and for one year after the expiration of such term; and no person holding a commission or appointment under the United States, except postmasters, shall be a member of the legislative assembly, or shall hold any office under the government of said Territory.

SEC. 10. And be it further enacted, That the judicial power of said Territory shall be vested in a Supreme Court, District Courts, Probate Courts, and in justices of the peace. The Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory annually, and they shall hold their offices during the period of four years. The said Territory shall be divided into three judicial districts, and a District Court shall be held in each of said districts by one of the justices of the Supreme Court, at such time and place as may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the Probate Courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said Supreme and District Courts, respectively, shall possess chancery as well as common law jurisdiction. Each District Court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said District Courts to the Supreme Court, under such regulations as may be pre- scribed by law, but in no case removed to the Supreme Court shall trial by jury be allowed in said court. The Supreme Court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been ap- pointed. Writs of error and appeals from the final decisions of said Supreme Court shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed one thousand dollars; except only that in all cases involving title to slaves, the said writs of error or appeals shall be allowed and decided by the said Supreme Court without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States from the decision of the said Supreme Court created by this act, or of any judge thereof, or of the District Courts created by this act, or of any judge thereof, upon any writ of habeas corpus involving the question of personal freedom; and each of the said District Courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the Circuit and District Courts of the United States; and the said Supreme and District Courts of the said Territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are grantable by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws; and writs of error and appeals in all such cases shall be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive in all such cases the same fees which the clerks of the District Courts of Oregon Territory now receive for similar services.

SEC. 11. And be it further enacted, That there shall be appointed an attorney for said Territory, who shall continue in office for four years, unless sooner removed by the President, and who shall receive the same fees and salary as the attorney of the United States for the present Territory of Oregon. There shall also be a marshal for the Territory appointed, who shall hold his office for four years, unless sooner removed by the president, and who shall execute all processes issuing from the said courts when exercising their jurisdiction as Circuit and District Courts of the United States: he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees as the marshal of the District Court of the United States for the present Territory of Oregon, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services.

SEC. 12. And be it further enacted, That the governor secretary, chief justice and associate justices, attorney and marshal shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States. The governor and secretary, to be appointed as aforesaid, shall, before they act as such, respectively take an oath or affirmation, before the district judge, or some justice of the peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the chief justice or some associate justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices; which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken, and such certificates shall be received and recorded by the said secretary among the executive proceedings; and the chief justice and associate justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation, before the said governor or secretary, or some judge or justice of the peace of the Territory, who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted, by the person taking the same, to the secretary, to be by him recorded as aforesaid; and afterwards, the like oath or affirmation shall be taken, certified, and recorded, in such manner and form as may be prescribed by law. The governor shall receive an annual salary of fifteen hundred dollars as governor, and one thousand dollars as superintendent of Indian affairs. The chief justice and associate justices shall each receive an annual salary of eighteen hundred dollars. The secretary shall receive an annual salary of eighteen hundred dollars. The said salaries shall be paid quarter-yearly, at the treasury of the United States. The members of the legislative assembly shall be entitled to receive three dollars each per day during their attendance at the sessions thereof, and three dollars each for every twenty miles' travel in going to and returning from the said sessions, estimated according to the nearest usually travelled route. There shall be appropriated annually the sum of one thousand dollars, to be expended by the governor, to defray the contingent expenses of the Territory; there shall also be appropriated annually a sufficient sum to be expended by the secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the legislative assembly, the printing of the laws, and other incidental expenses; and the secretary of the Territory shall annually account to the Secretary of the Treasury of the United States for the manner in which the aforesaid sum shall have been expended.

SEC. 13. And be it further enacted, That the legislative assembly of the Territory of New Mexico shall hold its first session at such time and place in said Territory as the Governor thereof shall appoint and direct; and at said first session, or as soon thereafter as they shall deem expedient, the governor and legislative assembly shall proceed to locate and establish the seat of government for said Territory at such place as they may deem eligible; which place, however, shall thereafter be subject to be changed by the said governor and legislative assembly.

SEC. 14. And be it further enacted, That a delegate to the House of Representatives of the United States, to serve during each Congress of the United States, may be elected by the voters qualified to elect members of the legislative assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives. The first election shall be held at such time and places, and be conducted in such manner, as the governor shall appoint and direct; and at all subsequent elections, the times, places, and manner of holding the elections shall be prescribed by law. The person having the greatest number of votes shall be declared by the governor to be duly elected, and a certificate thereof shall be given accordingly: Provided, That such delegate shall receive no higher sum for mileage than is allowed by law to the delegate from Oregon.

SEC. 15. And be it further enacted, That when the lands in said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same.

SEC. 16. And be it further enacted, That temporarily and until otherwise provided by law, the governor of said Territory may define the judicial districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts, and also appoint the times and places for holding courts in the several counties or subdivisions in each of said judicial districts, by proclamation to be issued by him; but the legislative assembly, at their first or any subsequent session, may organize, alter, or modify such judicial districts, and assign the judges, and alter the times and places of holding the courts, as to them shall seem proper and convenient.

SEC. 17. And be it further enacted, That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States.

SEC. 18. And be it further enacted, That the provisions of this act be, and they are hereby, suspended until the boundary between the United States and the State of Texas shall be adjusted; and when such adjustment shall have been effected, the President of the United States shall issue his proclamation, declaring this act to be in full force and operation, and shall proceed to appoint the officers herein provided to be appointed in and for said Territory.

SEC. 19. And be it further enacted, That no citizen of the United States shall be deprived of his life, liberty, or property, in said Territory, except by the judgment of his peers and the laws of the land.

APPROVED, September 9, 1850.

SOURCES: George Minot, Editor, The Public Statutes at Large of the United States of America from December 1, 1845 to March 3, 1851, Volume 9, p. 446-52 Acts, Resolutions and Memorials Adopted by the Second Legislative Assembly of the Territory of Arizona: Session Begun on the Sixth Day and Ended on the Thirtieth Day of December, A. D. 1865 at Prescott, p. 87-94

Gideon Welles to William H. Seward, August 26, 1863

Navy Department,

26 Aug. 1863.

Sir,

I have had the honor to receive your communication of the 4th Ins't. & 14th Ins't., in relation to the case of the British schooner "Mont Blanc," captured by the U. S. Steamer “Octorara,” Commander Collins, and released by the Prize Court at Key West.

In your letter of the 4th Ins't., which gives a summary of the correspondence in relation to this case, you refer to the order of the prize court, in which “it is declared that the cause of the U. S. against the schooner ‘Mont Blanc’ and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be released to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel and that each party pay his own costs.”

And in the same letter you state that “so far as relates to damages, the ground was expressly taken in the correspondence with Lord Lyons that the master and owner had waived damages by accepting the decree and restitution of his vessel. But there still remained a party and rights which the prize court did not foreclose. That party was the Government of Great Britain, and its claim was one for redress for injuries to its sovereignty and dignity by a violation of her territory. No prize court of our country can try and decide a National claim of this sort."

Your letter of the 14th Ins't. encloses a copy of a note from Lord Lyons, in which he says that on being informed by you that directions to proceed to the assessment of damages in this case would be given to Rear Admiral Bailey, he would on his part take care that proper directions should be sent to Mr. Vice Consul Butterfield and that he, Lord Lyons, is waiting for this information before taking any further steps.

It appears, therefore, that this Depar't is expected to give directions for the assessment of damages in a case where it has repeatedly stated it would be improper for the Department to interfere, where the Judicial tribunal, which had cognizance, had decided that no damages are due, and where it is admitted that the master and owner have renounced all claim to damages.

The Department has been placed in this unfortunate and somewhat anomalous position, partly by its own fault in too readily acquiescing in the proffered reparation by the State Department, and an arrangement that had been made by that Department with Her Majesty's representative, to ascertain and agree upon the damages to be paid, and to consider and dispose of the whole subject.

In consequence of the representations communicated in your letter of the 7th of May, the Department has conveyed to the Commander of the Octorara the Executive censure for doing what the Court has decided he was excusable in doing. Although in this case of the “Mont Blanc,” as on repeated occasions, the impropriety of interfering in matters of prize, which belong legitimately to the courts, was freely expressed, yet under the urgent appeals that were made, an assurance that the amount was small, and the case could be more speedily and satisfactorily disposed of, by referring it to some person at or near Key West to consider and dispose of the whole subject without an appeal to the Court, the Department, without fully considering the effect, and the legal power to afford reparation, was induced, in accordance with your request that some suitable person should be designated to take part in a conference as to damages, to name Acting Rear Admiral Bailey, for it knew no other in that locality unconnected with the Court.

No instructions, however, have yet been given Acting Rear Admiral Bailey, and the case, as it now stands, is such that the Department doubts its power to give the instructions which seem to be required and expected. The powers of the Department are limited by law, and I am aware of no law which authorizes it to decide what you represent as a political claim only to be tried and adjudicated by the two Governments concerned, — “a national claim of this sort.” The authority of the Department extends only to legal, individual claims, in cases where it is clearly responsible in law for the acts of its agents. But in this case the law, or the tribunal which had authority to expound and administer the law, has exonerated the agent of the Department from any responsibility. It is admitted that there is no claim in law — only a political claim: no individual claim, but “a national claim.”

In such a case the Depar't would be perplexed in attempting to assess the damages, or in instructing others how to assess them. If it admits in this case that the legal renunciation of damages was of no effect, and that the claimant retained a legal claim for damages, it must make the same admission in every case, and ignore a well settled rule of admiralty and international law.

If it undertakes to estimate a pecuniary equivalent for an aggression upon the dignity of a foreign government, its action might seem offensive, while it had every disposition to avoid giving offense. An apology for an injury to “sovereignty and dignity” may be more or less earnest, but how can such injuries be estimated in dollars and cents, or pounds, shillings and pence? It is to be presumed that the British Government does not desire the claim to be considered in this light.

It may be said the amount of damages in this case would be the amount which the Court at Key West would have awarded, had its decision been what a foreign government claims would have been righteous. But the Department cannot assent to this, for it has no authority to repudiate or set aside the decision of a Court of the United States. That can be done only by a Superior Court or by Congress. It is the duty of this Department to respect and obey the decisions of the Courts of the United States.

It is said that the decree “did not foreclose” the rights of the Government of Great Britain to claim redress in this case. In one sense — to a certain extent — this is true. The decision of the highest court in the land would not be conclusive on a foreign government. But if a claimant voluntarily renounces his claim, or right to appeal, can his government claim that justice has been denied him? Does not ordinary comity “foreclose” any government from taking it for granted that it cannot obtain justice from the tribunals of another, until it has at least made the attempt? In this case of the “Mont Blanc” there was an appeal open to the Supreme Court of the United States. Had it been taken, the result might possibly have been that the decree of the lower court would have been set aside and the case remanded with directions to grant ample damages; or, on the other hand, the decree of the lower court might have been confirmed, for reasons so clear and convincing that the claimant himself would have acquiesced, and his government have been foreclosed by its own sense of justice.

Viewing the matter in this light, it appears to me that the right of the British Government to claim damages in this particular case has been foreclosed, not by the decision of the Prize Court at Key West, but by the acquiescence of the claimants in that decision. The question of damages for injuries to “sovereignty and dignity” is one which this Department has no authority to investigate or settle, and should pecuniary amends be required, it has no fund at its disposal to which the disbursement could be charged.

Acting Rear Admiral Bailey having been designated as a suitable person to confer on the subject of damages, before it was known that the Court had adjudicated the case, I have the honor to enclose herewith a copy of the order which has been sent to that officer, directing him to attend to the duty, should it be further prosecuted, whenever he shall receive instructions from the Secretary of State in the premises.

Very respectfully,

Gideon Welles,

Secty. of Navy.

Hon. Wm. H. Seward,

Secty. of State.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 423-6

Amos Bronson Alcott, October 23, 1859

Read with sympathy and a sense of the impossibility of any justice being done him by South or North, by partisans or people, — by the general mankind, — the newspaper accounts of Captain Brown's endeavor at Harper's Ferry, now coming to us and exciting politicians and everybody everywhere. This man I heard speak early in the season at our town hall, and had the pleasure of grasping his firm hand and of speaking with him after his lecture. This deed of his, so surprising, so mixed, so confounding to most persons, will give an impulse to freedom and humanity, whatever becomes of its victim and of the States that howl over it. There should be enough of courage and intrepidity in the North, — in Massachusetts men, — to steal South, since they cannot march openly there, rescue him from the slaveholders, the State and United States courts, and save him for the impending crisis. Captain Higginson would be good for that leadership, and No. 64¹ will be ready to march with the rest. Captain Brown is of Puritan stock, and comes from Connecticut. He was born at Torrington, in Litchfield County, May 9, 1800, about fifteen miles from the place of my nativity.

_______________

¹ Mr. Alcott himself.

SOURCE: Franklin B. Sanborn, The Life and Letters of John Brown, p. 505-6

Diary of Gideon Welles: Friday, May 15, 1863

The President called on me this morning with the basis of a dispatch which Lord Lyons proposed to send home. He had submitted it to Mr. Seward, who handed it to the President, and he brought it to me. The President read it to me, and when he concluded, I remarked the whole question of the mails belonged properly to the courts and I thought unless we proposed some new treaty arrangement it would be best the subject should continue with the courts as law and usage directed. “But,” he inquired, “have the courts ever opened the mails of a neutral government?” I replied, “Always, when the captured vessels on which mails were found were considered good prize.” “Why, then,” said he, “do you not furnish me with the fact? It is what I want, but you furnish me with no report that any neutral has ever been searched.” I said I was not aware that the right had ever been questioned. The courts made no reports to me whether they opened or did not open mail. The courts are independent of the Departments, to which they are not amenable. In the mails was often the best and only evidence that could insure condemnation. [I said] that I should as soon have expected an inquiry whether evidence was taken, witnesses sworn, and the cargoes examined as whether mails were examined. “But if mails ever are examined,” said he, “the fact must be known and recorded. What vessels,” he asked, “have we captured, where we have examined the mails?” “All, doubtless, that have had mails on board,” I replied. Probably most of them were not intrusted with mails. “What,'” asked he, '”was the first vessel taken?” “I do not recollect the name, a small blockade-runner, I think; I presume she had no mail. If she had, I have no doubt the court searched it and examined all letters and papers.” He was extremely anxious to ascertain if I recollected, or knew that any captured mail had been searched. I told him I remembered no specific mention, doubted if the courts ever reported to the Navy Department. Foreign governments, knowing of the blockade, would not be likely to make up mails for the ports blockaded. The Peterhoff had a mail ostensibly for Matamoras, which was her destination, but with a cargo and mails which we knew were intended for the Rebels, though the proof might be difficult since the mail had been given up. I sent for Watkins, who has charge of prize matters, to know if there was any record or mention of mails in any of the papers sent the Navy Department, but he could not call to mind anything conclusive. Some mention was made of mails or dispatches in the mail on board the Bermuda, which we captured, but it was incidental. Perhaps the facts might be got from the district attorneys, though he thought, as I did, that but few regular mails were given to blockade-runners. The President said he would frame a letter to the district attorneys, and in the afternoon he brought in a form to be sent to the attorneys in Philadelphia, New York, and Boston.

Read Chase the principal points in the Peterhoff case. He approved of my views, concurred in them fully, and said there was no getting around them.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 302-4

Diary of Gideon Welles: Tuesday, May 12, 1863

We have information that Stonewall Jackson, one of the best generals in the Rebel, and, in some respects, perhaps in either, service, is dead. One cannot but lament the death of such a man, in such a cause too. He was fanatically earnest, and a Christian but bigoted soldier.

A Mr. Prentiss has presented a long document to the President for the relief of certain parties who owned the John Gilpin, a vessel loaded with cotton, and captured and condemned as good prize. There has been a good deal of outside engineering in this case. Chase thought if the parties were loyal it was a hard case. I said all such losses were hard, and asked whether it was hardest for the wealthy, loyal owners, who undertook to run the blockade with their cotton, or the brave and loyal sailors who made the capture and were by law entitled to the avails, to be deprived. I requested him to say which of these parties should be the losers. He did not answer. I added this was another of those cases that belonged to the courts exclusively, with which the Executive ought not to interfere. All finally acquiesced in this view.

This case has once before been pressed upon the President. Senator Foot of Vermont appeared with Mr. Prentiss, and the President then sent for me to ascertain its merits. I believe I fully satisfied him at that time, but his sympathies have again been appealed to by one side.

Mr. Seward came to my house last evening and read a confidential dispatch from Earl Russell to Lord Lyons, relative to threatened difficulties with England and the unpleasant condition of affairs between the two countries. He asked if anything could be done with Wilkes, whom he has hitherto favored, but against whom the Englishmen, without any sufficient cause, are highly incensed. I told him he might be transferred to the Pacific, which is as honorable but a less active command; that he had favored Wilkes, who was not one of the most comfortable officers for the Navy Department. I was free to say, however, I had seen nothing in his conduct thus far, in his present command, towards the English deserving of censure, and that the irritation and prejudice against him were unworthy, yet under the peculiar condition of things, it would perhaps be well to make this concession. I read to him an extract from a confidential letter of J. M. Forbes, now in England, a most earnest and sincere Union man, urging that W. should be withdrawn, and quoting the private remarks of Mr. Cobden to that effect. I had read the same extract to the President last Friday evening, Mr. Sumner being present. He (Sumner) remarked it was singular, but that he had called on the President to read to him a letter which he had just received from the Duke of Argyle, in which he advised that very change. This letter Sumner has since read to me. It is replete with good sense and good feeling.

I have to-day taken preliminary steps to transfer Wilkes and to give Bell command in the West Indies. It will not surprise me if this, besides angering Wilkes, gives public discontent. His strange course in taking Slidell and Mason from the Trent was popular, and is remembered with gratitude by the people, who are not aware his work was but half done, and that, by not bringing in the Trent as prize, he put himself and the country in the wrong. Seward at first approved the course of Wilkes in capturing Slidell and Mason, and added to my embarrassment in so disposing of the question as not to create discontent by rebuking Wilkes for what the country approved. But when, under British menace, Seward changed his position, he took my position, and the country gave him great credit for what was really my act and the undoubted law of the case. My letter congratulating Wilkes on the capture of the Rebel enemies was particularly guarded and warned him and naval officers against a similar offense. The letter was acceptable to all parties, — the Administration, the country, and even Wilkes was contented.

It is best under the circumstances that Wilkes should be withdrawn from the West Indies, where he was sent by Seward's special request, unless, as he says, we are ready for a war with England. I sometimes think that is not the worst alternative, she behaves so badly.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 297-9

Diary of Gideon Welles: Monday, May 11, 1863

The President sent a note to my house early this morning, requesting me to call at the Executive Mansion on my way to the Department. When there he took from a drawer two dispatches written by the Secretary of State to Lord Lyons, in relation to prize captures. As they had reference to naval matters, he wished my views in regard to them and the subject-matter generally. I told him these dispatches were not particularly objectionable, but that Mr. Seward in these matters seemed not to have a correct apprehension of the duties and rights of the Executive and other Departments of the Government. There were, however, in this correspondence allusions to violations of international law and of instructions which were within his province, and which it might be well to correct; but as a general thing it would be better that the Secretary of State and the Executive should not, unless necessary, interfere in these matters, but leave them where they properly and legally belonged, with the judiciary. [I said] that Lord Lyons would present these demands or claims as long as the Executive would give them consideration, — acquiesced, responded, and assumed to grant relief, — but that it was wholly improper, and would, besides being irregular, cause him and also the State and Navy Departments great labor which does not belong to either. The President said he could see I was right, but that in this instance, perhaps, it would be best, if I did not seriously object, that these dispatches should go on; but he wished me to see them.

When I got to the Department, I found a letter from Mr. Seward, inclosing one from Lord Lyons stating that complaint had been made to his Government that passengers on the Peterhoff had been imprisoned and detained, and were entitled to damages. As the opportunity was a good one, I improved it to communicate to him in writing, what I have repeatedly done in conversation, that in the present state of the proceedings there should be no interference on his part, that these are matters for adjudication by the courts rather than for diplomacy or Executive action, and until the judicial power is exhausted, it is not advisable for the Departments to interfere, etc. The letter was not finished in season to be copied to-day, but I will get it to him to-morrow, I hope in season for him to read before getting off his dispatches.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 296-7

Diary of Gideon Welles: Friday, March 6, 1863

Appointments considered yesterday and to-day. Generally conceded that Field of California was the man for the Supreme Court. The Court of Claims seems a peace court. The Court for the District is more important, and unfortunately the hearts and sympathies of the present judges are with the Rebels.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 245

The Confiscation Act of 1862: July 17, 1862

AN ACT to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free; or, at the discretion of the court, he shall be imprisoned for not less than five years and fined not less than $10,000, and all his slaves, if any, shall be declared and made free; said fine shall be levied and collected on any or all of the property, real and personal, excluding slaves, of which the said person so convicted was the owner at the time of committing the said crime, any sale or conveyance to the contrary notwithstanding.

SEC. 2. And be it further enacted, That if any person shall hereafter 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 or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.

SEC. 3. And be it further enacted, That every person guilty of either of the offenses described in this act shall be forever incapable and disqualified to hold any office under the United States.

SEC. 4. And be it further enacted, That this act shall not be construed in any way to affect or alter the prosecution, conviction, or punishment of any person or persons guilty of treason against the United States before the passage of this act, unless such person is convicted under this act.

SEC. 5. And be it further enacted, That, to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the Army of the United States – that is to say:

First. Of any person hereafter acting as an officer of the army or navy of the rebels in arms against the Government of the United States.

Secondly. Of any person hereafter acting as President, Vice-President, member of Congress, judge of any court, cabinet officer, foreign minister, commissioner or consul of the so-called Confederate States of America.

Thirdly. Of any person acting as Governor of a State, member of a convention or Legislature, or judge of any court of any of the so-called Confederate States of America.

Fourthly. Of any person who, having held an office of honor, trust, or profit in the United States, shall hereafter hold an office in the so-called Confederate States of America.

Fifthly. Of any person hereafter holding any office or agency under the government of the so-called Confederate States of America, or under any of the several States of the said Confederacy, or the laws thereof, whether such office or agency be national, state, or municipal in its name or character: Provided, That the persons thirdly, fourthly, and fifthly above described shall have accepted their appointment or election since the date of the pretended ordinance of secession of the State, or shall have taken an oath of allegiance to, or to support the Constitution of, the so-called Confederate States.

Sixthly. Of any person who, owning property in any loyal State or Territory of the United States, or in the District of Columbia, shall hereafter assist and give aid and comfort to such rebellion ; and all sales, transfers, or conveyances of any such property shall he null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.

SEC. 6. And be it further enacted, That if any person within any State or Territory of the United States, other than those named, as aforesaid, after the passage of this act, being engaged in armed rebellion against the Government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, money, stocks, and credits of such person shall be liable to seizure, as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof. And all sales, transfers, or conveyances of any such property after the expiration of the said sixty days from the date of such warning and proclamation shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.

SEC. 7. And be it further enacted, That to secure the condemnation and sale of any of such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rein shall be instituted in the name of the United States in any district court thereof, or in any Territorial court or in the United States district court for the District of Columbia, within which the property above described, or any part thereof, may be found, or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases; and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies' property and become the property of the United States, and may be disposed of as the court shall decree, and the proceeds thereof paid into the Treasury of the United States for the purposes aforesaid.

SEC. 8. And be it further enacted, That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto. And the said courts shall have power to allow such fees and charges of their officers as shall be reasonable and proper in the premises.

SEC. 9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the Army; and all slaves captured from such persons or deserted by them and coming under the control of the Government of the United States, and all slaves of such persons found on [or] being within any place occupied by rebel forces and afterward occupied by the forces of the United States shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.

SEC. 10. And be it further enacted, That no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offense against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretense whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service.

SEC. 11. And be it further enacted, That the President of the United States is authorized to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion, and for this purpose he may organize and use them in such manner as he may judge best for the public welfare.

SEC. 12. And be it further enacted, That the President of the United States is hereby authorized to make provision for the transportation, colonization, and settlement, in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen.

SEC. 13. And be it further enacted, That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare.

SEC. 14. And be it further enacted, That the courts of the United States shall have full power to institute proceedings, make orders and decrees, issue process, and do all other things necessary to carry this act into effect.

Approved July 17, 1862.

SOURCE: SOURCE: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series III, Volume 2 (Serial No. 123), p. 275-6

Abraham Lincoln’s First Annual Message to Congress: December 3, 1861

Fellow citizens Of The Senate And House Of Representatives:

In the midst of unprecedented political troubles, we have cause of great gratitude to God for unusual good health and most abundant harvests.

You will not be surprised to learn that, in the peculiar exigencies of the times, our intercourse with foreign nations has been attended with profound solicitude, chiefly turning upon our own domestic affairs.

A disloyal portion of the American people have, during the whole year, been engaged in an attempt to divide and destroy the Union. A nation which endures factious domestic division is exposed to disrespect abroad, and one party, if not both, is sure, sooner or later, to invoke foreign intervention.

Nations thus tempted to interfere are not always able to resist the counsels of seeming expediency and ungenerous ambition, although measures adopted under such influences seldom fail to be unfortunate and injurious to those adopting them.

The disloyal citizens of the United States who have offered the ruin of our country in return for the aid and comfort which they have invoked abroad have received less patronage and encouragement than they probably expected. If it were just to suppose, as the insurgents have seemed to assume, that foreign nations, in this case, discarding all moral, social, and treaty obligations, would act solely and selfishly for the most speedy restoration of commerce, including especially the acquisition of cotton, those nations appear as yet not to have seen their way to their object more directly or clearly through the destruction than through the preservation of the Union. If we could dare to believe that foreign nations are actuated by no higher principle than this, I am quite sure a sound argument could be made to show them that they can reach their aim more readily and easily by aiding to crush this rebellion than by giving encouragement to it.

The principal lever relied on by the insurgents for exciting foreign nations to hostility against us, as already intimated, is the embarrassment of commerce. Those nations, however, not improbably saw from the first that it was the Union which made as well our foreign as our domestic commerce. They can scarcely have failed to perceive that the effort for disunion produces the existing difficulty, and that one strong nation promises more durable peace and a more extensive, valuable, and reliable commerce than can the same nation broken into hostile fragments.

It is not my purpose to review our discussions with foreign States, because whatever might be their wishes or dispositions the integrity of our country and the stability of our Government mainly depend, not upon them, but on the loyalty, virtue, patriotism, and intelligence of the American people. The correspondence itself, with the usual reservations, is herewith submitted.

I venture to hope it will appear that we have practiced prudence and liberality toward foreign powers, averting causes of irritation, and with firmness maintaining our own rights and honor.

Since, however, it is apparent that here, as in every other State, foreign dangers necessarily attend domestic difficulties, I recommend that adequate and ample measures be adopted for maintaining the public defenses on every side. While under this general recommendation provision for defending our sea-coast line readily occurs to the mind, I also, in the same connection, ask the attention of Congress to our great lakes and rivers. It is believed that some fortifications and depots of arms and munitions, with harbor and navigation improvements, all at well selected points upon these, would be of great importance to the national defense and preservation. I ask attention to the views of the Secretary of War, expressed in his report, upon the same general subject.

I deem it of importance that the loyal regions of East Tennessee and Western North Carolina should be connected with Kentucky and other faithful parts of the Union by railroad. I therefore recommend, as a military measure, that Congress provide for the construction of such road as speedily as possible. Kentucky no doubt will co-operate, and, through her Legislature, make the most judicious selection of a line. The northern terminus must connect with some existing railroad, and whether the route shall be from Lexington or Nicholasville to the Cumberland Gap, or from Lebanon to the Tennessee line in the direction of Knoxville, or on some still different line, can easily be determined. Kentucky and the General Government co-operating the work can be completed in a very short time, and when done it will be not only of vast present usefulness but also a valuable permanent improvement, worth its cost in all the future.

Some treaties, designed chiefly for the interests of commerce, and having no grave political importance, have been negotiated and will be submitted to the Senate for their consideration.

Although we have failed to induce some of the commercial powers to adopt a desirable melioration of the rigor of maritime war, we have removed all obstructions from the way of this humane reform, except such as are merely of temporary and accidental occurrence.

I invite your attention to the correspondence between Her Britannic Majesty's minister accredited to this Government and the Secretary of State relative to the detention of the British ship Perthshire, in June last, by the U. S. steamer Massachusetts, for a supposed breach of the blockade. As this detention was occasioned by an obvious misapprehension of the facts, and as justice requires that we should commit no belligerent act not founded in strict right, as sanctioned by public law, I recommend that an appropriation be made to satisfy the reasonable demand of the owners of the vessel for her detention.

I repeat the recommendation of my predecessor, in his annual message to Congress in December last, in regard to the disposition of the surplus which will probably remain after satisfying the claims of American citizens against China, pursuant to the awards of the commissioners under the act of the 3d of March, 1859. If, however, it should not be deemed advisable to carry that recommendation into effect, I would suggest that authority be given for investing the principal, over the proceeds of the surplus referred to, in good securities, with a view to the satisfaction of such other just claims of our citizens against China as are not unlikely to arise hereafter in the course of our extensive trade with that Empire.

By the act of the 5th of August last Congress authorized the President to instruct the commanders of suitable vessels to defend themselves against and to capture pirates. This authority has been exercised in a single instance only. For the more effectual protection of our extensive and valuable commerce, in the Eastern seas especially, it seems to me that it would also be advisable to authorize the commanders of sailing vessels to recapture any prizes which pirates may make of U. S. vessels and their cargoes, and the consular courts, now established by law in Eastern countries, to adjudicate the cases, in the event that this should not be objected to by the local authorities.

If any good reason exists why we should persevere longer in withholding our recognition of the independence and sovereignty of Hayti and Liberia, I am unable to discern it. Unwilling, however, to inaugurate a novel policy in regard to them without the approbation of Congress, I submit for your consideration the expediency of an appropriation for maintaining a charge d'affaires near each of those new States. It does not admit of doubt that important commercial advantages might be secured by favorable treaties with them.

The operations of the Treasury during the period which has elapsed since your adjournment have been conducted with signal success. The patriotism of the people has placed at the disposal of the Government the large means demanded by the public exigencies. Much of the national loan has been taken by citizens of the industrial classes, whose confidence in their country's faith and zeal for their country's deliverance from present peril have induced them to contribute to the support of the Government the whole of their limited acquisitions. This fact imposes peculiar obligations to economy in disbursement and energy in action.

The revenue from all sources, including loans, for the financial year ending on the 30th of June, 1861, was $86,835,900.27, and the expenditures for the same period, including payments on account of the public debt, were $84,578,834.47, leaving a balance in the Treasury on the 1st of July of $2,257,005.80. For the first quarter of the financial year, ending on the 30th of September, 1861, the receipts from all sources, including the balance of 1st of July, were $102,532,509.27, and the expenses $98,239,733.09, leaving a balance on the 1st of October, 1861, of $4,292,770.18.

Estimates for the remaining three quarters of the year, and for the financial year 1863, together with his views of ways and means for meeting the demands contemplated by them, will be submitted to Congress by the Secretary of the Treasury. It is gratifying to know that the expenditures made necessary by the rebellion are not beyond the resources of the loyal people, and to believe that the same patriotism which has thus far sustained the Government will continue to sustain it till peace and union shall again bless the land.

I respectfully refer to the report of the Secretary of War for information respecting the numerical strength of the Army, and for recommendations having in view an increase of its efficiency and the wellbeing of the various branches of the service intrusted to his care.  It is gratifying to know that the patriotism of the people has proved equal to the occasion and that the number of troops tendered greatly exceeds the force which Congress authorized me to call into the field.

I refer with pleasure to those portions of his report which make allusion to the creditable degree of discipline already attained by our troops, and to the excellent sanitary condition of the entire Army.

The recommendation of the Secretary for an organization of the militia upon a uniform basis is a subject of vital importance to the future safety of the country, and is commended to the serious attention of Congress.

The large addition to the Regular Army, in connection with the defection that has so considerably diminished the number of its officers, gives peculiar importance to his recommendation for increasing the corps of cadets to the greatest capacity of the Military Academy.

By mere omission, I presume, Congress has failed to provide chaplains for hospitals occupied by volunteers. This subject was brought to my notice, and I was induced to draw up the form of a letter, one copy of which, properly addressed, has been delivered to each of the persons, and at the dates respectively named and stated, in a schedule containing also the form of the letter, marked A, and herewith transmitted.

These gentlemen, I understand, entered upon the duties designated at the times respectively stated in the schedule and have labored faithfully therein ever since. I therefore recommend that they be compensated at the same rate as chaplains in the Army. I further suggest that general provision be made for chaplains to serve at hospitals, as well as with regiments.

The report of the Secretary of the Navy presents in detail the operations of that branch of the service, the activity and energy which have characterized its administration and the results of measures to increase its efficiency and power. Such have been the additions, by construction and purchase, that it may almost be said a navy has been created and brought into service since our difficulties commenced.

Besides blockading our extensive coast, squadrons larger than ever before assembled under our flag have been put afloat and performed deeds which have increased our naval renown.

I would invite special attention to the recommendation of the Secretary for a more perfect organization of the Navy by introducing additional grades in the service.

The present organization is defective and unsatisfactory, and the suggestions submitted by the Department will, it is believed, if adopted, obviate the difficulties alluded to, promote harmony, and increase the efficiency of the Navy.

There are three vacancies on the bench of the Supreme Court — two by the decease of Justices Daniel and McLean and one by the resignation of Justice Campbell. I have so far forborne making nominations to fill these vacancies for reasons which I will now state. Two of the outgoing judges resided within the States now overrun by revolt; so that if successors were appointed in the same localities they could not now serve upon their circuits; and many of the most competent men there probably would not take the personal hazard of accepting to serve, even here, upon the supreme bench. I have been unwilling to throw all the appointments northward, thus disabling myself from doing justice to the South on the return of peace; although I may remark that to transfer to the North one which has heretofore been in the South, would not, with reference to territory and population, be unjust.

During the long and brilliant judicial career of Judge McLean his circuit grew into an empire — altogether too large for any one judge to give the courts therein more than a nominal attendance — rising in population from 1,470,018 in 1830 to 6,151,405 in I860.

Besides this, the country generally has outgrown our present judicial system. If uniformity was at all intended, the system requires that all the States shall be accommodated with circuit courts, attended by supreme judges, while, in fact, Wisconsin, Minnesota, Iowa, Kansas, Florida, Texas, California, and Oregon have never had any such courts. Nor can this well be remedied without a change of the system; because the adding of judges to the Supreme Court, enough for the accommodation of all parts of the country with circuit courts, would create a court altogether too numerous for a judicial body of any sort. And the evil, if it be one, will increase as new States come into the Union. Circuit courts are useful, or they are not useful. If useful, no State should be denied them; if not useful, no State should have them. Let them be provided for all or abolished as to all.

Three modifications occur to me, either of which, I think, would be an improvement upon our present system. Let the Supreme Court be of convenient number in every event. Then, first, let the whole country be divided into circuits of convenient size, the supreme judges to serve in a number of them corresponding to their own number, and independent circuit judges be provided for all the rest; or, secondly, let the supreme judges be relieved from circuit duties, and circuit judges provided for all the circuits; or, thirdly, dispense with circuit courts altogether, leaving the judicial functions wholly to the district courts and an independent Supreme Court.

I respectfully recommend to the consideration of Congress the present condition of the statute laws, with the hope that Congress will be able to find an easy remedy for many of the inconveniences and evils which constantly embarrass those engaged in the practical administration of them. Since the organization of the Government Congress has enacted some 5,000 acts and joint resolutions, which fill more than 6,000 closely printed pages and are scattered through many volumes. Many of these acts have been drawn in haste and without sufficient caution, so that their provisions are often obscure in themselves or in conflict with each other, or at least so doubtful as to render it very difficult for even the best informed persons to ascertain precisely what the statute law really is.

It seems to me very important that the statute laws should be made as plain and intelligible as possible, and be reduced to as small a compass as may consist with the fullness and precision of the will of the Legislature and the perspicuity of its language. This, well done, would, I think, greatly facilitate the labors of those whose duty it is to assist in the administration of the laws, and would be a lasting benefit to the people, by placing before them, in a more accessible and intelligible form, the laws which so deeply concern their interests and their duties.

I am informed by some whose opinions I respect that all the acts of Congress now in force, and of a permanent and general nature, might be revised and rewritten so as to be embraced in one volume (or at most, two volumes) of ordinary and convenient size; and I respectfully recommend to Congress to consider of the subject, and if my suggestion be approved, to devise such plan as to their wisdom shall seem most proper for the attainment of the end proposed.

One of the unavoidable consequences of the present insurrection is the entire suppression, in many places, of all the ordinary means of administering civil justice by the officers and in the forms of existing law. This is the case, in whole or in part, in all the insurgent States; and as our armies advance upon and take possession of parts of those States the practical evil becomes more apparent. There are no courts nor officers to whom the citizens of other States may apply for the enforcement of their lawful claims against citizens of the insurgent States, and there is a vast amount of debt constituting such claims. Some have estimated it as high as $200,000,000, due in large part from insurgents, in open rebellion, to loyal citizens, who are even now making great sacrifices in the discharge of their patriotic duty to support the Government.

Under these circumstances, I have been urgently solicited to establish, by military power, courts to administer summary justice in such cases. I have thus far declined to do it, not because I had any doubt that the end proposed — the collection of the debts — was just and right in itself, but because I have been unwilling to go beyond the pressure of necessity in the unusual exercise of power; but the powers of Congress, I suppose, are equal to the anomalous occasion, and therefore I refer the whole matter to Congress, with the hope that a plan may be devised for the administration of justice in all such parts of the insurgent States and Territories as may be under the control of this Government, whether by a voluntary return to allegiance and order or by the power of our arms; this, however, not to be a permanent institution, but a temporary substitute, and to cease as soon as the ordinary courts can be re-established in peace.

It is important that some more convenient means should be provided, if possible, for the adjustment of claims against the Government, especially in view of their increased number by reason of the war. It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals. The investigation and adjudication of claims in their nature belong to the judicial department; besides, it is apparent that the attention of Congress will be more than usually engaged for some time to come with great national questions. It was intended by the organization of the Court of Claims mainly to remove this branch of business from the halls of Congress; but while the court has proved to be an effective and valuable means of investigation, it in great degree fails to effect the object of its creation for want of power to make its judgments final.

Fully aware of the delicacy, not to say the danger, of the subject, I commend to your careful consideration whether this power of making judgments final may not properly be given to the court, reserving the right of appeal on questions of law to the Supreme Court, with such other provisions as experience may have shown to be necessary.

I ask attention to the report of the Postmaster-General, the following being a summary statement of the condition of the Department:

The revenue from all sources during the fiscal year ending June 30, 1861, including the annual permanent appropriation of $700,000 for the transportation of “free mail matter,” was $9,049,296.40, being about 2 per cent, less than the revenue for 1860.

The expenditures were $13,606,759.11, showing a decrease of more than 8 per cent, as compared with those of the previous year, and leaving an excess of expenditure over the revenue for the last fiscal year of 81,557,462.71.

The gross revenue for the year ending June 30,1863, is estimated at an increase of 4 per cent, on that of 1861, making $8,683,000, to which should be added the earnings of the Department in carrying free matter, viz, $700,000, making $9,383,000.

The total expenditures for 1863 are estimated at $12,528,000, leaving an estimated deficiency of $3,145,000 to be supplied from the Treasury, in addition to the permanent appropriation.

The present insurrection shows, I think, that the extension of this District across the Potomac River at the time of establishing the capital here was eminently wise, and consequently that the relinquishment of that portion of it which lies within the State of Virginia was unwise and dangerous. I submit for your consideration the expediency of regaining that part of the District, and the restoration of the original boundaries thereof, through negotiations with the State of Virginia.

The report of the Secretary of the Interior, with the accompanying documents, exhibits the condition of the several branches of the public business pertaining to that Department. The depressing influences of the insurrection have been especially felt in the operations of the Patent and General Land Offices. The cash receipts from the sales of public lands during the past year have exceeded the expenses of our land system only about $200,000. The sales have been entirely suspended in the Southern States, while the interruptions to the business of the country and the diversion of large numbers of men from labor to military service have obstructed settlements in the new States and Territories of the Northwest.

The receipts of the Patent Office have declined in nine months about $100,000, rendering a large reduction of the force employed necessary to make it self sustaining.

The demands upon the Pension Office will be largely increased by the insurrection. Numerous applications for pensions, based upon the casualties of the existing war, have already been made. There is reason to believe that many who are now upon the pension rolls and in receipt of the bounty of the Government are in the ranks of the insurgent army or giving them aid and comfort. The Secretary of the Interior has directed a suspension of the payment of the pensions of such persons upon proof of their disloyalty. I recommend that Congress authorize that officer to cause the names of such persons to be stricken from the pension rolls.

The relations of the Government with the Indian tribes have been greatly disturbed by the insurrection, especially in the Southern superintendency and in that of New Mexico. The Indian country south of Kansas is in the possession of insurgents from Texas and Arkansas. The agents of the United States appointed since the 4th of March for this superintendency have been unable to reach their posts, while the most of those who were in office before that time have espoused the insurrectionary cause and assume to exercise the powers of agents by virtue of commissions from the insurrectionists. It has been stated in the public press that a portion of those Indians have been organized as a military force and are attached to the army of the insurgents. Although the Government has no official information upon this subject, letters have been written to the Commissioner of Indian Affairs by several prominent chiefs giving assurance of their loyalty to the United States and expressing a wish for the presence of Federal troops to protect them. It is believed that upon the repossession of the country by the Federal forces the Indians will readily cease all hostile demonstrations and resume their former relations to the Government.

Agriculture, confessedly the largest interest of the nation, has not a department nor a bureau, but a clerkship only, assigned to it in the Government. While it is fortunate that this great interest is so independent in its nature as to not have demanded and extorted more from the Government I respectfully ask Congress to consider whether something more cannot be given voluntarily with general advantage.

Annual reports exhibiting the condition of our agriculture, commerce, and manufactures would present a fund of information of great practical value to the country. While I make no suggestion as to details, I venture the opinion that an agricultural and statistical bureau might profitably be organized.

The execution of the laws for the suppression of the African slave trade has been confided to the Department of the Interior. It is a subject of gratulation that the efforts which have been made for the suppression of this inhuman traffic have been recently attended with unusual success. Five vessels being fitted out for the slave trade have been seized and condemned. Two mates of vessels engaged in the trade, and one person in equipping a vessel as a slaver, have been convicted and subjected to the penalty of fine and imprisonment, and one captain, taken with a cargo of Africans on board his vessel, has been convicted of the highest grade of offense under our laws, the punishment of which is death.

The Territories of Colorado, Dakota, and Nevada, created by the last Congress, have been organized, and civil administration has been inaugurated therein under auspices especially gratifying, when it is considered that the leaven of treason was found existing in some of these new countries when the Federal officers arrived there.

The abundant natural resources of these Territories, with the security and protection afforded by organized government, will doubtless invite to them a large immigration when peace shall restore the business of the country to its accustomed channels. I submit the resolutions of the Legislature of Colorado, which evidence the patriotic spirit of the people of the Territory. So far the authority of the United States has been upheld in all the Territories, as it is hoped it will be in the future. I commend their interests and defense to the enlightened and generous care of Congress.

I recommend to the favorable consideration of Congress the interests of the District of Columbia. The insurrection has been the cause of much suffering and sacrifice to its inhabitants, and as they have no representative in Congress, that body should not overlook their just claims upon the Government.

At your late session a joint resolution was adopted authorizing the President to take measures for facilitating a proper representation of the industrial interests of the United States at the exhibition of the industry of all nations to be holden at London in the year 1862. I regret to say I have been unable to give personal attention to this subject — a subject at once so interesting in itself and so extensively and intimately connected with the material prosperity of the world. Through the Secretaries of State and of the Interior a plan, or system, has been devised and partly matured, and which will be laid before you.

Under and by virtue of the act of Congress entitled “An act to confiscate property used for insurrectionary purposes,” approved August 6, 1861, the legal claims of certain persons to the labor and service of certain other persons have become forfeited, and numbers of the latter thus liberated are already dependent on the United States and must be provided for in some way. Besides this, it is not impossible that some of the States will pass similar enactments for their own benefit, respectively, and by operation of which persons of the same class will be thrown upon them for disposal. In such case I recommend that Congress provide for accepting such persons from such States according to some mode of valuation in lieu, pro tanto, of direct taxes, or upon some other plan to be agreed on with such States, respectively; that such persons on such acceptance by the General Government be at once deemed free; and that in any event steps be taken for colonizing both classes (or the one first mentioned if the other shall not be brought into existence) at some place or places in a climate congenial to them. It might be well to consider, too, whether the free colored people already in the United States could not, so far as individuals may desire, be included in such colonization.

To carry out the plan of colonization may involve the acquiring of territory, and also the appropriation of money beyond that to be expended in the territorial acquisition. Having practiced the acquisition of territory for nearly sixty years, the question of constitutional power to do so is no longer an open one with us. The power was questioned at first by Mr. Jefferson, who, however, in the purchase of Louisiana, yielded his scruples on the plea of great expediency. If it be said that the only legitimate object of acquiring territory is to furnish homes for white men, this measure effects that object; for the emigration of colored men leaves additional room for white men remaining or coming here. Mr. Jefferson, however, placed the importance of procuring Louisiana more on political and commercial grounds than on providing room for population.

On this whole proposition, including the appropriation of money with the acquisition of territory, does not the expediency amount to absolute necessity — that, without which the Government itself cannot be perpetuated!

The war continues. In considering the policy to be adopted for suppressing the insurrection, I have been anxious and careful that the inevitable conflict for this purpose shall not degenerate into a violent and remorseless revolutionary struggle. I have, therefore, in every case, thought it proper to keep the integrity of the Union prominent as the primary object of the contest on our part, leaving all questions which are not of vital military importance to the more deliberate action of the Legislature.

In the exercise of my best discretion I have adhered to the blockade of the ports held by the insurgents, instead of putting in force, by proclamation, the law of Congress enacted at the late session for closing those ports.

So, also, obeying the dictates of prudence, as well as the obligations of law, instead of transcending, I have adhered to the act of Congress to confiscate property used for insurrectionary purposes. If a new law upon the same subject shall be proposed, its propriety will be duly considered. The Union must be preserved; and hence, all indispensable means must be employed. We should not be in haste to determine that radical and extreme measures, which may reach the loyal as well as the disloyal, are indispensable.

The inaugural address at the beginning of the Administration and the message to Congress at the late special session were both mainly devoted to the domestic controversy out of which the insurrection and consequent war have sprung. Nothing now occurs to add or subtract, to or from, the principles, or general purposes, stated and expressed in those documents.

The last ray of hope for preserving the Union peaceably expired at the assault upon Fort Sumter; and a general review of what has occurred since may not be unprofitable. What was painfully uncertain then is much better defined and more distinct now; and the progress of events is plainly in the right direction. The insurgents confidently claimed a strong support from north of Mason and Dixon's line; and the friends of the Union were not free from apprehension on the point. This, however, was soon settled definitely, and on the right side. South of the line, noble little Delaware led off right from the first. Maryland was made to seem against the Union. Our soldiers were assaulted, bridges were burned, and railroads torn up within her limits; and we were many days, at one time, without the ability to bring a single regiment over her soil to the capital. Now her bridges and railroads are repaired and open to the Government; she already gives seven regiments to the cause of the Union and none to the enemy; and her people, at a regular election, have sustained the Union by a larger majority and a larger aggregate vote than they ever before gave to any candidate or any question. Kentucky, too, for some time in doubt, is now decidedly, and, I think, unchangeably, ranged on the side of the Union. Missouri is comparatively quiet; and I believe cannot again be overrun by the insurrectionists. These three States of Maryland, Kentucky, and Missouri, neither of which would promise a single soldier at first, have now an aggregate of not less than 40,000 in the field for the Union; while, of their citizens, certainly not more than a third of that number, and they of doubtful whereabouts, and doubtful existence, are in arms against it. After a somewhat bloody struggle of months, winter closes on the Union people of Western Virginia, leaving them masters of their own country.

An insurgent force of about 1,500, for months dominating the narrow peninsular region constituting the counties of Accomuc and Northampton, and known as Eastern Shore of Virginia, together with some contiguous parts of Maryland, have laid down their arms; and the people there have renewed their allegiance to and accepted the protection of the old flag. This leaves no armed insurrectionist north of the Potomac or east of the Chesapeake.

Also we have obtained a footing at each of the isolated points on the Southern coast, of Hatteras, Port Royal, Tybee Island, near Savannah, and Ship Island; and we likewise have some general accounts of popular movements in behalf of the Union in North Carolina and Tennessee.

These things demonstrate that the cause of the Union is advancing steadily and certainly southward.

Since your last adjournment Lieutenant General Scott has retired from the head of the Army. During his long life the nation has not been unmindful of his merits; yet, on calling to mind how faithfully, ably, and brilliantly he has served the country, from a time far back in our history, when few of the now living had been born, and thenceforward continually, 1 cannot but think we are still his debtors. I submit, therefore, for your consideration, what further mark of recognition is due to him, and to ourselves, as a grateful people.

With the retirement of General Scott came the executive duty of appointing, in his stead, a general-in-chief of the army. It is a fortunate circumstance that neither in council nor country was there, so far as I know, any difference of opinion as to the proper person to be selected. The retiring chief repeatedly expressed his judgment in favor of General McClellan for the position; and in this the nation seemed to give a unanimous concurrence. The designation of General McClellan is, therefore, in considerable degree, the selection of the country, as well as of the Executive; and hence there is better reason to hope there will be given him the confidence and cordial support thus, by fair implication, promised, and without which he cannot, with so full efficiency, serve the country.

It has been said that one bad general is better than two good ones; and the saying is true, if taken to mean no more than that an army is better directed by a single mind, though inferior, than by two superior ones at variance and cross-purposes with each other.

And the same is true in all joint operations wherein those engaged can have none but a common end in view, and can differ only as to the choice of means. In a storm at sea no one on board can wish the ship to sink; and yet, not unfrequently, all go down together, because too many will direct, and no single mind can be allowed to control.

It continues to develop that the insurrection is largely, if not exclusively, a war upon the first principle of popular government — the rights of the people. Conclusive evidence of this is found in the most grave and maturely considered public documents, as well as in the general tone of the insurgents. In those documents we find the abridgment of the existing right of suffrage, and the denial to the people of all right to participate in the selection of public officers, except the legislative, boldly advocated, with labored arguments to prove that large control of the people in government is the source of all political evil. Monarchy itself is sometimes hinted at as a possible refuge from the power of the people.

In my present position I could scarcely be justified were I to omit raising a warning voice against this approach of returning despotism.

It is not needed, nor fitting here, that a general argument should be made in favor of popular institutions; but there is one point, with its connections, not so hackneyed as most others, to which I ask a brief attention. It is the effort to place capital on an equal footing with, if not above, labor in the structure of government. It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor. This assumed, it is next considered whether it is best that capital shall hire laborers, and thus induce them to work by their own consent, or buy them, and drive them to it without their consent. Having proceeded so far, it is naturally concluded that all laborers are either hired laborers, or what we call slaves. And further, it is assumed that whoever is once a hired laborer is fixed in that condition for life.

Now, there is no such relation between capital and labor as assumed; nor is there any such thing as a free man being fixed for life in the condition of a hired laborer. Both these assumptions are false, and all inferences from them are groundless.

Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration. Capital has its rights, which are as worthy of protection as any other rights. Nor is it denied that there is, and probably always will be, a relation between labor and capital, producing mutual benefits. The error is in assuming that the whole labor of community exists within that relation. A few men own capital, and that few avoid labor themselves, and, with their capital, hire or buy another few to labor for them. A large majority belong to neither class — neither work for others nor have others working for them. In most of the Southern States a majority of the whole people of all colors are neither slaves nor masters; while in the Northern a large majority are neither hirers nor hired. Men with their families — wives, sons, and daughters — work for themselves, on their farms, in their houses, and in their shops, taking the whole product to themselves, and asking no favors of capital on the one hand nor of hired laborers or slaves on the other. It is not forgotten that a considerable number of persons mingle their own labor with capital — that is, they labor with their own hands, and also buy or hire others to labor for them; but this is only a mixed, and not a distinct class. No principle stated is disturbed by the existence of this mixed class.

Again, as has already been said, there is not, of necessity, any such thing as the free hired laborer being fixed to that condition for life. Many independent men everywhere in these States, a few years back in their lives, were hired laborers. The prudent, penniless beginner in the world labors for wages awhile, saves a surplus with which to buy tools or land for himself, then labors on his own account another while, and at length hires another new beginner to help him. This is the just and generous and prosperous system which opens the way to all — gives hope to all, and consequent energy and progress and improvement of condition to all. No men living are more worthy to be trusted than those who toil up from poverty—none less inclined to take, or touch, aught which they have not honestly earned. Let them beware of surrendering a political power which they already possess, and which, if surrendered, will surely be used to close the door of advancement against such as they, and to fix new disabilities and burdens upon them, till all of liberty shall be lost.

From the first taking of our national census to the last are seventy years; and we find our population, at the end of the period, eight times as great as it was at the beginning. The increase of those other things which men deem desirable has been even greater. We thus have, at one view, what the popular principle, applied to government through the machinery of the States and the Union, has produced in a given time; and also what, if firmly maintained, it promises for the future. There are already among us those who, if the Union be preserved, will live to see it contain two hundred and fifty millions. The struggle of to-day is not altogether for to-day — it is for a vast future also. With a reliance on Providence all the more firm and earnest, let us proceed in the great task which events have devolved upon us.

ABRAHAM LINCOLN.

Washington, December 3, 1861.

SOURCES: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series III, Volume 1 (Serial No. 122), p. 709-21; Basler, Roy P. Editor, The Collected Works of Abraham Lincoln, Vol. 5, p. 35-53;