Chapter One Hundred and Thirty Five
Acts of Attainder - Reconstruction and the Lame Duck Congress
Part II
From “Thundering Voices – Congress & Reconstruction” edited by William Clancy
Buffalo 2000
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I hold, that in contemplation of the Constitution, the Union of these States is and always shall be perpetual…it follows that no State, upon its own mere motion, can lawfully secede from the Union…resolves and ordinances to that effect are legally void…Nonetheless I recognize that everyman has the inherent and inalienable right to change his home and allegiance…for all the good or ill it may do him…The question before us, before the whole nation, is not whether millions of our southern citizens have exercised this right. They undoubtedly have. Rather it is what responsibility we have as a nation to them as an expatriated and stateless people…True repentance must be rewarded as the prodigal son’s contrition was rewarded…To those who remain steadfast to an unjust and unlawful case…there can be no place at the table of American brotherhood, of American prosperity, of American union…”
Extracts from Abraham Lincoln’s speech in support of the Proclamation of Abandonment
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The general right, in one word, of expatriation, is incontestable.”
Attorney General Jeremiah Black, Democrat, in 1859 and oft quoted in Congress in 1865
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The right of expatriation is a natural and inherent right of all people, indispensible to the enjoyment of the rights of life, liberty and the pursuit of happiness”
Vice-President Elect Joseph Holt, December 1863
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The power to forcibly expatriate is an inherent federal power, as a necessary attribute of sovereignty…and derives out of the power to manage foreign affairs…”
Secretary of War Edwin Stanton to cabinet, January 1865
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By virtue of its express power to establish an uniform Rule of Naturalization, USC I, 8, clause 4 Congress has an implied power to set the terms of United States citizenship, including the power to expatriate”
Attorney General James Speed to cabinet, January 1865
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The use of this…denationalization as a punishment is barred by the Eight Amendment as every one of you in this House knows…”
Fernando Wood, Democrat, House debate January 1865
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The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as a punishment for a crime”
George H. Pendleton, Democrat, House debate January 1865
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We here must agree that this nation stands by a definition of citizenship that means it can be relinquished only voluntarily and not by legislative fiat”
Thaddeus Stevens, Republican, House debate January 1865
Thaddeus Stevens was opposed to many of the Acts of Reconstruction except those relating to Civil Rights
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It simply does not make good constitutional sense, or comport with logic, to say, on the one hand Congress [in exercising its authority under the Naturalization Clause] may impose a conditions precedent, with no constitutional complication, and yet be powerless to impose precisely the same condition subsequent…”
John P. Hale, Republican, Senate debate January 1865
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Voluntary relinquishment of citizenship can never be confined only to a written renunciation…By his deeds shall a man be known…”
Charles Sumner, Republican, Senate debate January 1865
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This notion of voluntary expatriation must by necessity raise the question of thousands of conscripted men…men forced into service under threat of physical punishment, of imprisonment, or of deprivation…”
Thomas A. Hendricks, Democrat, Senate debate January 1865
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Can it be justice for a man to renege on every oath he has ever taken, before God and man, to betray his friends, his neighbors, his fellow countrymen…and to use the lawyer’s trick of expatriation to save him from a traitor’s fate?”
Benjamin Wade, Republican, Senate debate January 1865
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I fear we are, in our righteous but ill-directed anger, embarked upon a course which the coming generation will sore regret”
James A. Bayard, Democrat, in a letter to his son following resolutions in both the Senate and House
From “The Lame Duck Legislators – The Last Days of the 38th Congress” by Chelsea Henderson
Georgetown 2001
“In 1810 Congress had proposed the Titles of Nobility Amendment which would have forcibly expatriated any American citizen accepting a foreign title. In 1818 Congress had proposed an act which would have provided a way for citizens to voluntarily relinquish their citizenship but there was argument from one opposed faction that the right already existed, while other opponents had argued that Congress had no authority to provide for expatriation at all…
The fact that the 1810 proposal had been framed as a constitutional amendment, rather than an ordinary act of Congress, was seen by some Democrats as showing that the Congress of the day did not believe that it had the power to revoke anyone's citizenship…
In the end resolutions supporting the President’s Proclamation of Abandonment and his interpretation of the laws on expatriation, were passed in both houses of Congress after prolonged and heated debate. In the Senate it passed 36 to 12 with 2 abstentions and in the House 100 to 71 with 12 abstentions. In both Houses Republicans and Democrats broke party lines and voted conscience and principle…
The Southern rebels had failed to break the Union but it was now acknowledged by both the Executive and Legislative Branches of the United States Government that they had voluntarily surrendered their American citizenship…”
In the midst of the debate on Confiscation the news came that Texas, and thus the Confederacy, had surrendered. The war was over!
From “The Rivals – Lincoln and his Cabinet” by Amelia Doggett
Grosvenor 2008
“Surprisingly it was the Confiscation Act of 1865 that caused Lincoln the most difficultly. Initially nothing more than a draft bill amalgamating the previous two bills (of 1861 and 1862) it began by declaring that the government, through the agency of the army, had the “
right to take any and all personal property from a rebellious person”. Both Attorney General Speed and Secretary Chase opposed this formulation for a variety of legal reasons, but in truth both (especially Chase) wished to see confiscated property administered by their own departments…
Lincoln himself, in cabinet, raised the taxing conundrum of whether expatriated individuals could be said to be “
a rebellious person”. In the end the definition was changed to refer to “
enemy aliens and stateless persons…actively engaged in hostilities with the Government of the United States”…
Lincoln’s humanity was never more obvious than his own personal and direct intervention with the sponsor of the bill to include a proviso that the bill should allow sufficient personal property to remain with the individual or compensation to be provided by the Government that would “
assist in the individual's relocation beyond the boundaries and territories of the United States” and “
such as is necessary to avoid suffering by dependents of the individual”. By Lincoln’s own hand no Confederate would be condemned to starve and all would have sufficient resources to relocate to Mexico, Brazil or other safe haven…
Many former rebels went into exile destitute
Ultimately it was Chase who won the conflict over “
condemned” property. The Treasury Department would have responsibility for the administration of confiscated property…”
From “The Lame Duck Legislators – The Last Days of the 38th Congress” by Chelsea Henderson
Georgetown 2001
“With the passage of the Confiscation Act (House: 112 to 64 with 7 abstentions. Senate 30 to 16 with 4 abstentions) the final action of the 38th Congress would be the debate on and prompt passage of an updated Naturalization Act…
The revised Naturalization Act would allow Federal Courts to administer the oath of allegiance to expatriated citizens. However it would also imbue the President with the power to imprison or deport aliens who were considered "
dangerous to the peace and safety of the United States"…
Not since the Alien and Seditious Acts during the Presidency of John Adams had such sweeping powers been granted to the office of the President. During the presidency of John Adams the powers were rarely used, widely condemned, and brought ridicule upon the Federalist Government. Not so in 1865…
These “
proscribed persons” were aliens (primarily expatriated persons) who would be subject to a permanent ban from the territory of the United States. The primary change wrought by Congress in debating the legislation was to introduce a Joint Committee of both Houses who could both suggest persons for “
proscription” to the President and recommend names for removal from the list. Congress would have the power, on a vote of a two third majority, to override the President on either a decision to proscribe or remove proscription from an individual…
The Naturalization Act of 1865 passed the Senate 28 to 6 with 6 abstentions and the House by 115 to 66 with only 2 abstentions…
The fundamental understanding of American citizenship had been radically altered… and the Government’s powers to deal with rebellion and enemy aliens had been enthusiastically strengthened by Congress…
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My only consolation is that Congress has passed both acts in less than two months…As bad as they most assuredly are, we are, god willing, at least spared the legislative wisdom of the Radical 39th Congress on these subjects "(James A. Bayard)…”
From "The Great Constitutional Crisis" by Dr. Lee M. King
Carlotta 1962
"It was with good reason that the exilados grise would shake the dust from their feet as they left the United States...The hurried legislation of Lincoln's Lame Duck Congress would trample on their beloved Constitution like a herd of buffalo...panicked, unthinking, stampeding over the rights of American citizens and they did so with the overwhelming support of the Northern citizenry..."
