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offenses against the sovereignty of the United States, i. e., if they had been criminal statutes enacted under the municipal power of Congress, there would have been force in the objection that Congress had disregarded its constitutional restrictions. Since however the acts were passed in exercise of the war powers of the government, they were held to be unaffected by the limitations fixed by the fifth and sixth amendments.

Three of the judges, Field, Clifford, and Davis, dissented from this opinion. Their grounds of disagreement were that the forfeitures in question were punitive in their nature, being based on the municipal not the war power of Congress, that condemnations must depend on the personal guilt of the owner, that judgments against the property should only result from proceedings in rem to ascertain the guilt or innocence of the supposed offender, and that therefore a judgment based on mere default in such cases would amount to a denial of "due process of law". These words of the dissenting judges not only agree exactly with one of the important points in Lincoln's objections, but they harmonize very well with the position of the Supreme Court itself when dealing with the problem whether a "rebel" should have a hearing. We noticed in connection with the McVeigh case that the court insisted upon the necessity of a hearing to determine the question of the owner's alleged rebellion. The dissenting judges in the Miller case were merely applying this same principle to the case of default. It was not even necessary, said the majority of the court, to conduct an ex parte hearing after the default. The entry of the default in due form was to be regarded as establishing all the facts averred in the information, as in the case of confession, or of actual conviction on evidence. It was this principle which, according to the minority view, would involve serious judicial usurpation, and “work a complete revolution in our criminal jurisprudence". To the thoughtful student this view of the minority judges seems but a natural protest against an extreme and unjust claim. The dissenting position appears still stronger when it is remembered that the majority judges admitted the incompetency of Congress to allow such judgments as the confiscation acts permitted on the basis of municipal law, and that the "war power" theory was the convenient door of escape from this constitutional difficulty.

The above survey will perhaps be insufficient to convey a complete impression, omitting as it does all reference to the restoration. of property, and to the various forms of virtual confiscation which

were quite apart from the confiscation acts.46 It may however sug gest the difficulty and uncertainty with which the courts labored in executing these unusual measures. It is often the case with mooted points of law that the period of the greatest diversity of opinion is also the period when the number of cases involved is greatest, and when therefore the pressure upon the judicial authorities is heaviest. In the case of these legal difficulties regarding confiscation their final settlement did not occur until after the war; in some cases so long afterward that the issue was practically dead, and little benefit could be secured from the decisions as guides to the lower tribunals. When during the war we find doubt on such fundamental points as the constitutionality of the law itself, and the question as to whether a rebel could be heard in his own defense, we need no longer wonder that judicial action in these cases was so often unsatisfactory. When in addition to this we remember that during the war both Congress and the courts did their work under heavy pressure, and sometimes in haste and confusion, we can better understand such mistakes and shortcomings as appear in connection with the execution of the confiscation policy. To carry out a war measure by peaceful process is a rather anomalous undertaking, yet this is what the strict judicial enforcement of the confiscation policy amounted to. We must remember, too, that these measures were exceptional, that they could be justified only on extreme grounds, and that they touched human nature in a very weak place.


10 Forfeitures under the direct tax levy, for instance, were so conducted as to amount, virtually, to confiscation. For the laws, see: Stat. at Large, XII. 294, 422; for a report of the extent of these seizures see: Cong. Globe, 42 Cong., 2 sess., p. 3387; for the confiscation of Robert E. Lee's estate at Arlington, Virginia, after the form of a tax sale", see: Sen. Misc. Doc. 96, 43 Cong., I sess.; Cong. Rec., 43 Cong., 1 sess., vol. II., pt. 3, p. 2812; 47 Cong., 2 sess., vol. XIV., pt. 3, p. 2680; ibid., pt. 4, p. 3361; case of U. S. v. Lee, 106 U. S. 196; U. S. Stat., 47 Cong., 2 sess., ch. 141, p. 584.



Diary of Thomas Ewing, August and September, 1841

AFTER the dramatic breach between President Tyler and his Cabinet in September, 1841, its members justified themselves by public letters. That of Thomas Ewing, secretary of the treasury, first printed in the National Intelligencer, is now most easily found in Niles' Register, LXI. 33-34. It appears that it did not rest on memory alone, but that Secretary Ewing, as soon as he scented danger to the relations between President Tyler and the executive advisers inherited from Harrison, in the course which the President was pursuing in regard to the bank act, began to keep a diary of the transactions relative to that and other measures. script of this diary now belongs to his grandson, Mr. Thomas Ewing of New York City, but a copy of it is possessed by the library of Ohio University at Marietta. To Mr. Ewing and to Mr. C. L. Martzolff of that university we are indebted for the opportunity to print this valuable record, which, as will be seen, contains much information that is not to be found in the letter in Niles.

The manu

Not all parts of the manuscript printed below are of the same date. The first three paragraphs were prefixed to the diary proper. The grandson of Secretary Ewing states however that, judging from the handwriting, they are of about the same date. The next three paragraphs are in his handwriting of much later date. The essential portion, beginning with the words "On the morning of the 16th August ", are plainly contemporary. The last paragraph under September 1 is shown by the handwriting to be a later insertion. Such is also the character of the final three paragraphs.

A full discussion of the whole crisis from the point of view of the President may be found in Dr. Lyon G. Tyler's Letters and Times of the Tylers, II. 39-123.

Thomas Ewing (1789-1871) was graduated from the Ohio University in 1815, practised law for several years at Lancaster, Ohio, was a Whig senator from that state 1831-1837, secretary of the treasury March 5-September 13, 1841, secretary of the interior 1849-1850, senator again 1850-1851, and in 1861 a delegate to the Peace Conference, of which Ex-President Tyler was president. AM. HIST. REV., VOL. XVIII.-7. (97)

As soon as the election of Genl. Harrison to the Presidency was informally known to him, he addressed me a letter inviting me to take a place in his Cabinet and signifying that the situation of P. M. G. was the one he proposed to offer me.

I had been long aware that public opinion had designated me for this, or some other place in the Cabinet, and though Genl. Harrison had never in the most remote manner hinted at such a thing I had no doubt that it was his purpose to make me the offer. My mind being made up on the subject I accepted, with all due acknowledgments for the honor proposed to be conferred and the frank and generous promptness with which it had been offered me. I communicated this for the present to no one but my wife and my eldest son in whose secrecy I had full confidence, as I deemed it by no means proper that the fact should first transpire through me. In the same letter Genl. Harrison named Mr. Webster as his proposed Secretary of State and public opinion had definitively settled on Mr. Crittenden as Attorney General. Mr. Bell had been much spoken of for the War Department and several other gentlemen were named for other Departments but no one distinctly pointed to by general public opinion.

The Legislature of Ohio met in Columbus on the first Monday in December. The Court in Bank sat at the same time and the Circuit Court shortly after. I was engaged as counsel in many important cases in these courts and necessarily spent several weeks in that city about their trial. Having disposed of them and arranged my private business as well as I was able in so short a time, I set out for Washington and arrived in the City early in February. By this time it was pretty well understood that I was to be a member of the Cabinet, but it was by no means so well settled what particular post I was to fill. The impression became strong and was constantly gathering strength that I should be placed at the head of the Treasury. But in the midst of this uncertainty I was overwhelmed with applications for office in both Departments especially in the Genl. Post Office which had by far the largest share of patronage. For so completely had it become a settled political axiom within the last twelve years, "to the victors belong the spoils", that all men of both parties seemed to suppose that there would be an immediate and universal sweep of all the officers then in place. There was also another reason and a more just one for this opinion of the public and I may say mandate of the popular will. It had been the policy of the party just thrust from power, to retain in office none but their active political adherents, those who would go for them thorough in all things; and the performance of official duty, was far less requisite to a tenure of office, than electioneering services. Hence the offices had become for the most part filled with brawling offensive political partisans, of a very low moral standard-their official duties performed by substitutes, or not performed at all. Many defalcations and gross peculation constantly occurring among them, it was thought wise and prudent to make many changes and by so doing, to elevate, as far as possible, the official standard and ensure a more faithful execution of official duties.

General Harrison consulted much with Mr. Webster and myself before announcing his Cabinet. Mr. Webster was made Secretary of State, Ewing Secretary of the Treasury, Bell Secretary of War, Badger

of the Navy, Frank Granger Post Master General and John J. Crittenden Attorney General. There was perfect harmony and good feeling of the members of the Cabinet, with each other, and between them and the leading members of the Whig party generally-but the quiet of the Administration and of the country was greatly disturbed by the sudden death of General Harrison.

Immediately on his demise Mr. Webster dispatched a special messenger to John Tyler the Vice President with the intelligence who in a few days came to Washington and was inaugurated as President. The Cabinet convened to receive him, and he very promptly and courteously requested us all to continue in our then present position as his Council. An extra session of Congress had been called which met in May. One of their first acts, under the lead of Mr. Clay, was to pass an act to recharter the Bank of the United States, and restore to it the public deposits and fiscal agency, and therein was for the first time disclosed a serious difference between the President and the party who had elected him, including nearly all the members of his Cabinet. The Bank bill was passed early in August, and the President against the advice of his Cabinet determined to veto it. I saw clearly that the Administration was approaching a catastrophe, and on the 16" commenced and kept a diary for the month preceding its dissolution. I give it in full as it was then written.

On the morning of the 16" August I called to see the President and found him putting together the Veto Message on the Bank Bill, in order to send it to the Senate. We had some conversation on the subject, and he read to me certain parts of the message, especially that which contained his strictures on the 16" fundamental article. While thus engaged Mr. Bell, Secretary of War, came in and joined us in the conversation. It was observed by Mr. Bell, that although the Veto would create a great sensation in Congress yet he thought the minds of our friends much better prepared for it than they were some days ago, and he hoped it would be calmly received, especially as it did not shut out the hope of some Bank. The President replied yes, he thought so-his mind had been made up from the first, and he had delayed his message until now that theirs might become quieted-that really they ought to make no difficulty about it, he had sufficiently indicated in his message what kind of Bank he would approve and they might if they saw fit, pass such a one (which would be more acceptable to the country than this) in three days.

The next day (17) I called and found the President in conversation with Mr. Sergeant of the House and Mr. Berrien of the Senate.' I was about to retire but he invited me to sit, observing that the conversation was one to which I should be a party. Those gentlemen had come informally from the Whigs of the two Houses to confer with the President on the subject of a Baak or Fiscal Agent such as might be acceptable to him, and meet the wishes and wants of the Treasury and the country-much was said upon the subject. Mr. Sergeant stated his understanding of that part of the message which recommends agencies, with power to deal in Exchange etc. and wished to have a clear avowal from the President on that subject. The President in reply said that he considered the message sufficiently explicit on that point. That he John Sergeant of Pennsylvania and Senator John M. Berrien of Georgia.

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