The American Annual Cyclopaedia and Register of Important Events of the Year, 1861-1865, vols. 1-5. New York: Appleton & Co., 1868.

Congress of the United States, 1862 - Part 3

Mr. Sheffield, of Rhode Island, dissented entirely from the grounds urged by the preceding speakers on which to authorize emancipation, and said: "Now, gentlemen may ask me what I would do in Congress in reference to putting down this rebellion. I frankly tell these gentlemen what I would not do. I would not violate the Constitution I had sworn to support, and to maintain which my fellow citizens and friends were now endangering their lives upon the battle field. I would not spend the time of this House in trying to depreciate the efforts of the Administration and of the army in putting down the rebellion, or in making inflammatory appeals against the horrors of the institution of slavery, or against those men who are battling with us for the Union. Now, I will tell these gentlemen what I would do. I would direct the attention of Congress to providing the means and the men to put down the rebellion. We cannot otherwise legislate against it effectively. I would put it down in the only way in which it can be put down; I would fight it down. I would move on the army; and as the army went on, I would capture and send to the rear every disloyal person I could find. If slaves were found among those disloyal persons, I would capture them, and, by the laws of war, as I understand them as pertaining to captured property, the proprietorship of such slave would immediately vest in the United States. I would allow the slaves to remain the property of the United States, in the rear of the army, until treason had been put down, and until the rightful jurisdiction of the civil authorities was Page 315 extended over the whole Union; and then I would treat the slaves and their masters as I, in view of the light which then appeared, should deem to he just to those interested and to the country.

"Before they can be punished by any act of Congress, they must be convicted by a verdict of a jury from the State and district where the crime was committed. That, sir, is the form and mode of trial prescribed by the Constitution under which we live. How are you going to convict traitors before a jury of traitors? This is a practical difficulty which gentlemen do not seem to foresee."

In the House, on the 14th of February, the following joint resolution was considered:

Resolved, That the joint committee on the conduct of the present war be authorized to employ a stenographer, who shall be paid out of the contingent fund of the Senate at the same rate of compensation as that received by the reporters of the Congressional Globe.

Mr. Wickliffe, of Kentucky, said: "We have a Constitution which prescribes the duty of each department of the Government. The conduct of a war, when such exists, is specially confined to the executive department of the Government. But the Congress of the United States, not content with performing its legislative functions and furnishing the means which the requirements of the executive department demanded, has undertaken to take charge of the conduct of the war by means of a joint committee.

"I wanted to see why it was that the Congress of the United States committed this important power to a committee, which, of right, belongs to the President. I confess that when I saw what was done, I was struck very forcibly with an item of history, which I once read, connected with the French Revolution. The Chamber of Deputies was about to be overrun by the Paris mob. Minot, the commander of the army, was overpowered in that struggle. The members were alarmed, and some one suggested to call in a lieutenant—a young man called Napoleon Bonaparte—to consult him. He came, and was consulted. He was asked what was his opinion as to the cause of the defeat of Minot the day before. He answered,' because of the interference of the Deputies.' They appealed to Napoleon to take the command. He consented to it, on condition that the Chamber of Deputies were to mind their own business, and not to interfere with the military department of the Government. They had to agree to his terms; and he saved them.

"Well, sir, let us turn back to the motives and ends which it is said this committee have in view. Of all things upon God's earth, the most hazardous to us at this time is to create in the army, in the country, in this House, a distrust of the ability or capacity of the men who have charge of the movements of this army, by your operations through the committees of this House. Men will not fight if they have not confidence in their leaders. You have a Commander-in-Chief in whom the nation seems to have confidence, and I have seen nothing that should indicate that that confidence has been misplaced. You complain of want of action. Why, look at the condition of the country when this rebellion commenced. The former Secretary of War had gutted your arsenals and placed your arms within the reach of those who desired to destroy the Government. He had scattered your loyal army to the remotest frontiers, so that it was hardly possible to get a guard around this Capitol to maintain peace against the insurrectionary men who would, if they had the power, have prevented the inauguration of a President constitutionally elected by the people of the United States. And, sir, but for the patriotism in the States near at hand, and the promptness with which the people sprang to arms and Tallied to its defence, this Capitol would last spring have ceased to have been the Capitol of this Government; it would have been in the possession of the armed forces of the South. The Government had not left in its arsenals in the loyal States, or in its forts, arms enough to have placed in the hands of twenty-five thousand men at the time this invasion was threatened. But, sir, we did get some volunteers, and some of them fought very well."

Mr. Gooch, of Massachusetts, in reply said: "Now, sir, I desire to say a few words in reference to the manner in which the committee has performed its duties. The committee entered on the performance of its duties as soon as it came into existence. I know not on what authority the gentleman from Kentucky rests the allegations which he made, and I will yield to him most cheerfully that he may state his authority to the House."

Mr. Wickliffe replied: "The statement which I made was, that the commander-in-chief had been before the committee, and was questioned as to the manner in which he carried on the war, and that he made an answer which satisfied me. The gentleman from Massachusetts knows whether that is true or not.

Mr. Gooch, of Massachusetts, in continuation said: "I am perfectly free to say, because it is known of all men, that the general commanding the Army of the United States did appear before the committee, not by summons, but by invitation; and I am free to say still further, that I think this house has too much respect for the men who constitute that committee to suppose that they asked him any questions respecting the conduct of the war which he had the least objection to answer, or that they made a single inquiry of him in reference to his plans or purposes, or that they took his testimony in any form whatever. That they did have an interview with him—agreeable to both parties, I believe—is true; but that they called him before them as a witness, is not true.

"Now, sir, there was an allegation made here the other day against the committee, that it was a secret committee. So far as that Page 316 charge goes, we plead guilty. There have been present at investigations of the committee only the persons necessary for the carrying on of its business. The committee deemed it its duty to keep secret whatever was communicated to it by witnesses. They did not suppose that they should make revelations to individuals or to newspapers, or that the members of the House should be called upon to read the proceedings of one of its committees in the newspapers, in advance of their report to the body which constituted it.

"Now, sir, there is still another allegation against the committee, and also against the Senate and the House. It is, that the committee or Congress had usurped, or intended to usurp, the prerogatives of the Executive. I know of no such intent on the part of the committee or of Congress. Every man knows that while the different branches of this Government work together energetically and harmoniously, it is the strongest, most powerful form of government on earth. But, sir, when the legislative branch does not cordially and earnestly support the Executive, or when the Executive fails faithfully to execute and enforce the enactments of the Legislature, or when the Judiciary uses its power to defeat the legitimate action of the other branches, it becomes weak and impotent. Legislature, Judiciary, and Executive are each parts of the common whole; and while each is to a certain extent independent in its action, the concurrent action of all is requisite to the exercise of the powers of the Government."

Mr. Crittenden, of Kentucky, followed, saying: "I do not rise for the purpose of entering into any debate in connection with the policy or propriety of our constituting this committee, although I am entirely opposed, not on account of any objection to the gentlemen composing it, but on account of graver and higher objections, to the organization of any such committee, constituting a little imperium in our own body, whose proceedings are necessarily obliged to be secret, and contrary to the spirit of our Constitution. At best, I am totally opposed to the committee, and think it ought to be abolished as soon as the House can do it, and that for the very purpose of preserving that harmony and concurrence of action which the gentleman thinks is necessary to the efficiency of the Government."

Mr. Thomas, of Massachusetts, said: "I was among the members of the House who voted against the appointment of this committee. I should so vote again to-day. I think the appointment of the committee wrong in principle. I think it is useless for any wise purpose."

Mr. R. Conkling, of New York, said: "If the gentleman will allow me, I should like to indulge in one remark. I am one of those who voted to raise this joint committee, and I cannot agree that it is useless, as was said by the gentleman from Massachusetts (Mr. Thomas). On the contrary, I believe the action of Congress, and, among other things, the creation of this committee has been instrumental, with other kindred agencies, in bringing about valuable reforms—reforms which have inaugurated beneficial changes and a vitalizing policy, without which we might not have had even the victories which to-day millions applaud."

Mr. Crittenden, of Kentucky, observed: ''I have been under a great misapprehension, as it seems, as to whom our gratitude was properly due on this occasion. I believed it was generally supposed that we owed these victories to the valor of our army and the skill of our generals."

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In the House, on the 17th of June, the bill for the issue of Treasury notes was taken up.

Mr. Spaulding, of New York, the Chairman of the Finance Committee, upon introducing the resolution said: "The largest latitude is given to the President, Secretary of War, and Secretary of the Navy, in carrying on the war. They have full discretionary power to contract all the debts which they may deem necessary to amply supply the Army and Navy. All parties loyal to the Government are united in urging a vigorous prosecution of the war; all parties, therefore, ought to be willing to furnish all the means necessary for this purpose. We must, at any rate, pay all the debts contracted by the Executive in the progress of the war. If we knew how much this would amount to, we could easily figure up the amount of the bonds and notes which Congress must authorize the Secretary to issue. No man, not even the President, the Secretary of "War, the Secretary of the Navy, the Secretary of the Treasury, or the chairman of the Committee of Ways and Means, or all of them together, can give even an approximate estimate as to the whole cost of this war, because they do not know the number of years it will continue, nor what will be the final solution of the grave questions involved. We are working out a great problem, the result of which no man can know. Slavery was the cause of this war; and until the solution of the slavery question is arrived at, and the cause of the rebellion removed, we have no hope of permanent peace and tranquillity. This will take a long time; but how long no man is wise enough to determine."

Mr. Wickliffe, of Kentucky, followed, saying: "I came here pledged to my people, pledged to my conscience, and determined to vote all the men, means, and money necessary to defend the Constitution and Government from the assaults of its enemies; to do all that I could to put down this rebellion; to maintain the Constitution of our fathers as it was given to us, and to leave the State governments, when you have overcome the rebellion, in the possession of all their constitutional rights and privileges, and with all their constitutional obligations resting upon them. I was told by the secession party opposed to me, that this war would be waged and turned into a war for the subjugation and destruction of the State Page 317 governments, and for the emancipation of their slaves. I met that charge as best I could. I met it by an appeal to the vote of this House, and a two-third vote, too, by which you proposed to amend the Constitution of the United States, by declaring that Congress should not, in any shape or form, interfere with slavery in the States, and that the Constitution itself should not be changed so as to authorize Congress to interfere with the slave property of the South. You voted an amendment to the Constitution that it never should be changed on this subject. I quoted your own words and your own resolution, in which you declare that there is no party in the North worthy of consideration that has a purpose or design to interfere with the interests of the slave property of the South. We in the "West were not content with this vote alone, and in order to be able to quiet our people, we asked you to pass a resolution in July last, declaratory of the purposes, objects, and intentions of this war, and the time when it should cease. That resolution was passed unanimously.

"What do we find is to-day the temper and disposition of a majority of this House? I call upon the gentleman who seems to be the leader of this measure to tell mo if it is the purpose of the Secretary, and whether it is the intention of the Administration, to enter into a crusade by the power of the array; or whether you intend to force the Administration into a crusade, a John Brown raid, upon the negro property of the country? Is that your purpose? What does the gentleman mean by saying that we have 'a new problem to solve?' He says he cannot tell us how much money we owe, or how much it will require to develop the solution of this' now problem' —the problem, I suppose, which has been put upon your record to-day. Not content with letting those who incited this war take the consequences and incidents of war in reference to their property, you propose to send your army and commissions into that country for the purpose of inviting the slaves of the peaceable and non-combatants into your lines, and free them, arm them, and turn them loose upon defenceless women and children, to commit rapine, murder, and conflagrations of defenceless habitations. When money appropriated for the war has been misapplied, law disregarded in its expenditure, I am opposed to giving more to be thus misused. "What have you seen done here? The churches of the living God are taken for hospitals for the sick and wounded soldiers. I do not object to this if it is necessary. The Government is now occupying in the city, at high rent, a large tenement, in which are kept and supported four hundred (my friend says eight hundred) runaway negroes at the public expense. [A Voice: Eleven hundred.] Eleven hundred, I am told; I do not know. They are fed and clothed out of the money appropriated to feed and pay the soldiers."

Mr. Spaulding, of New York, replied, and then explained the power of Congress: "This bill is a necessary means of carrying into execution the powers granted in the Constitution ' to raise and support armies,' and ' to provide and maintain a navy.'

"In the present crisis of our national affairs it is necessary that the army should be 'supported,' and the navy 'maintained.' This necessity will not be questioned by any loyal member on this floor.

"The Constitution provides that 'all the laws necessary and proper for carrying into execution the foregoing powers' may be passed by Congress. "If the end be legitimate, and within the scope of the Constitution, all the means that are appropriate, which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.

"If a certain means to the exercise of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

"The Government of the United States is not prohibited by the Constitution from issuing Treasury notes on demand, and making them a legal tender in payment of all debts within its jurisdiction. The Constitution (article one, section ten) prohibits the States from making anything but gold and silver coin a legal tender in payment of debts; but this does not at all restrict the sovereign power of the United States. Congress has the power to coin money, 'regulate the value thereof, and of foreign coin.' Gold and silver by long practice —a practice that has continued for centuries among all nations—has become the legal money of the world in all commercial transactions. Its real intrinsic value is not as great as that fixed upon it by Governments. All Governments fix the value of gold and silver; and without their Government stamp gold and silver would be a simple commodity, like other things having intrinsic value. Some Governments fix the value of coin higher, and some lower; just as each for itself chooses to determine. Any other metal or thing that should be stamped, and its value regulated by all the Governments of the world, would pass equally well in all commercial transactions, as gold and silver, although not intrinsically as valuable. Exchequer bills or Treasury notes, whose value is fixed by Government, and stamped as money, would pass as money in the payment of debts within the jurisdiction of the Government fixing such value."

Mr. Pendleton, of Ohio, followed in opposition to the bill. He said: "I have examined, Mr. Chairman, with some care, every law authorizing the issue of Treasury notes which has been passed from the foundation of the Government Page 318 eminent up to this hour, and I find that this bill differs from all of them in several essential particulars. Every other law authorizing the issue of Treasury notes provided that they should bear some rate of interest, whereas these are to boar none; that they should be payable at a fixed time prescribed in the note, whereas these are only to be payable at the pleasure of the United States; that the notes thereby authorized should be receivable in payment of public debts only by those who were 'willing to receive them at par, while these notes are to be received by every public creditor who is not willing to forfeit his right to payment at all. These notes are to be made lawful money, and a legal tender in discharge of all pecuniary obligations, either by the Government or by individuals, a characteristic which has never been given to any note of the United States or any note of the Bank of the United States by any law ever passed. Not only, sir, was such a law never passed, but such a law was never voted on, never proposed, never introduced, never recommended by any Department of the Government; the measure was never seriously entertained in debate in either branch of Congress.

"The feature of this bill which first strikes every thinking man, even in these days of novelties, is the proposition that these notes shall be made a legal tender in discharge of all pecuniary obligations, as well those which have accrued in virtue of contracts already made as those which are yet to accrue in pursuance of contracts which shall hereafter be made. Do gentlemen appreciate the full import and meaning of that clause? Do they realize the full extent to which it will carry them? Every contract for the payment of money is in legal contemplation a contract for the payment of gold and silver coin. That is the measure of the obligation of the one party, and of the right of the other.

"The provisions of this bill contemplate impairing the obligation of every contract of that kind, and disturbing the basis upon which every judgment and decree and verdict has been entered. It proposes to say to a party who has entered into a contract, 'You shall be discharged from the obligations of that contract by doing something else than that which you have agreed to do.' It proposes to say to every party with whom a contract has been made, 'Though you are entitled to demand one thing, you shall, perforce, remain satisfied with the doing of another.' It proposes to say, 'Although you have agreed to pay gold and silver, you shall be discharged upon the payment of these notes; although you are entitled to demand gold and silver, you shall rest content with the reception of this paper.' It proposes, in one word, to release the one party from the obligation of his contract, and to divest the other party of the right which has been vested in him by that contract. Sir, I am sure I need only state the proposition to shock the mind of the legal profession of the country, so thoroughly has it been imbued with the idea of the sanctity of the obligation of contracts by those who have taught it the beneficent maxims of constitutional law.

"As for the rest, this bill provides that it shall be illegal to make a contract for dealing in gold and silver coin; or, to state it more exactly, it provides that whatever executory contracts parties may make concerning the gold and silver coin of the country, they shall be discharged upon the performance of another and different duty—by the delivery of an equivalent number of dollars in these notes. "Where, sir, does Congress get this power? Where is the grant to be found? One would suppose that a power like that—a power which involves the impairing of the obligations of such a vast class of contracts, which proposes to disturb vested rights to such an immense extent—would be worthy of a place in the express grants of the Constitution.

"Sir, it seems to me that if the language of the Constitution, and the weight of authority can settle any proposition, it is that Congress has not the power to do that which it is proposed shall be done by the provisions of this bill."

Mr. Hooper, of Massachusetts, stated that the financial plan of the Government embraced three measures: "The first of these measures is the one now before the House, by which the Secretary of the Treasury is authorized to issue United States notes, not to exceed $150,000,000 in amount (including those authorized by previous laws), of denominations not less than five dollars. They are not to bear interest, but are to be issued and received as money, convertible, at the option of the holder, into six per cent, stock of the United States, the principal and interest being payable either here or abroad; and these notes are to be a legal tender.

"The second measure consists of a tax bill, which shall, with the tariff on imports, insure an annual revenue of at least $150,000,000.

"The third is a national banking law, which will require the deposit of United States stock as security for the bank notes that are circulated as currency."

Mr. Morrill, of Vermont, opposed the bill, saying: "Tho subject of issuing $150,000,000 of paper currency and making it a legal tender by the Government at a single bound—the precursor, as I fear, of a prolific brood of promises, no one of which is to be redeemed in the constitutional standard of the country—could not but arrest my attention; and, having strong convictions of the impolicy of the measure, I should feel that I utterly failed to discharge my duty if I did not attempt to find a stronger prop for our country to lean upon than this bill—a measure not blessed by one sound precedent, and damned by all."

Mr. R. Conkling, of New York, argued against the necessity for the measure, and. alluding to the power conferred by the Constitution Page 319 for the issue of demand notes, said: "The proposition is a new one. No precedent can be urged in its favor; no suggestion of the existence of such a power can be found in the legislative history of the country; and I submit to my colleague, as a lawyer, the proposition that this amounts to affirmative authority of the highest kind against it. Had such a power lurked in the Constitution, as construed by those who ordained and administered it, we should find it so recorded. The occasion for resorting to it, or at least referring to it, has, we know, repeatedly arisen; and had such a power existed, it would have been recognized and acted on. It is hardly too much to say, therefore, that the uniform and universal judgment of statesmen, jurists, and lawyers has denied the constitutional right of Congress to make paper a legal tender for debts to any extent whatever. But more is claimed here than the right to create a legal tender heretofore unknown. The provision is not confined to transactions in future, but is retroactive in its scope. It reaches back and strikes at every existing pecuniary obligation. This was well put by the gentleman from Ohio (Mr. Pendleton), and I concur with him, that substituting anything for gold and silver in payment of debts, and still more of precedent debts, is of very doubtful constitutionality. But, in looking at the Federal Constitution, the question is: has the power been given; is it there? Can you put your finger upon it among the grants of the Constitution? If not, if it is not there at all, you have not the power, and there is an end of the whole matter."

Mr. Bingham, of Ohio, took the position that Congress had the power to declare what should be a legal tender, and said:

"In the first place, the Constitution has expressly provided that Congress shall have power to regulate commerce with all foreign nations, among the several States, and with the Indian tribes. This general provision of the Constitution has frequently undergone interpretation in our Supreme Court, and the effect of this language has been matter of deliberate consideration with every man who has ventured to issue a treatise upon the Constitution of the United States. Whoever takes the pains to look into either of these authorities—the decisions of the Supreme Court or the writers upon the true construction of the Constitution —will discover that they all agree in this, that this power to regulate commerce includes the exercise of all powers necessary to the existence of commerce among the several States, and extends even to its prohibition, when the public necessities require it. This, I undertake to say, is matter of agreement among all who have written upon the construction of the Constitution, and is substantially the ruling of the Supreme Court. Sir, if there were no limit in the Constitution upon this general power of Congress to regulate commerce, I would say at once that the Congress of the United States might make anything money which it pleased. But there are certain limitations in the Constitution. Money has a twofold office. It determines the standard of value on the one hand, and it discharges obligations on the other. There is a limitation, and I am free to admit it. That brings me to the very pith and marrow of this debate.

"What is that limitation? That is the important point. I desired to-day to ask the attention of my excellent friend from Vermont (Mr. Morrill) to the question whether the Constitution of the United States has declared what shall be a legal tender. He did not find it convenient to yield to me for that inquiry. I stand hero to assert that the Constitution of the United States has nowhere declared what, shall be a legal tender. I stand hero to assert further, that nothing has ever been made a legal tender in the United States at any time, in discharge of private obligations, or of public obligations, or of universal application in States and Territories alike, except that which was made so by act of Congress. Your Constitution, I repeat, never made gold and silver a legal tender. It never made anything a legal tender in the discharge of debts. The Constitution simply conferred the power on Congress by its general grants of power to declare by law what shall be a legal tender. Gold and silver and copper, if I recollect aright —and if I am wrong I hope the venerable chairman of the Committee of Ways and Means will correct me—have been all made alike legal tenders, at one time or other, by act of Congress."

Mr. Morrill, of Vermont, next rose and said: "I ask my friend from Ohio to point out as many words giving Congress the power to make paper money a legal tender. In relation to foreign coin, everybody who made a con-, tract did so with his eyes open to the fact that Congress might make a change in regard to that matter. But when it comes to making paper money a legal tender, there is not a word in the Constitution about it."

Mr. Bingham, of Ohio, immediately replied: "Says the gentleman from Vermont (Mr. Morrill), 'I ask my friend from Ohio to point out as many words giving Congress power to make paper money a legal tender.'

"Sir, the gentleman's question is answered by asking another of him: Point out the words in the Constitution giving to Congress the power to make gold or silver coin, either foreign or domestic, a legal tender. There are no such words. The gentleman seems to infer, because Congress is expressly authorized 'to regulate the value of foreign coin,' it is therefore in words authorized to declare foreign coin a legal tender. Such a conclusion is by no means self-evident. The Constitution declares that 'no State shall make anything but gold and silver coin a tender in payment of debts.' No one doubts, I presume, that any State of the Union may make the legalized gold and silver coin of Page 320 the United States 'a tender in payment of debts;' but does it thence result that a State may either regulate or change the established value of foreign or domestic coin? If any State could do this, the very purpose of the Constitution, to secure a uniform standard of value, would be defeated.

"The point I make is this: Congress has power, by the terms of the Constitution, to fix the standard value of foreign coin, and of domestic coin, and the power to declare a legal tender, and that these powers are distinct."

Mr. Vallandigham, of Ohio, rose to ask a question, saying: "Congress, is, by the Constitution, expressly empowered to regulate the value of coins. Now, I wish to ask my colleague whether the value thus regulated is. not the legal value of the coin; and if therefore it is not a legal tender, although the word 1 tender ' is not written in the Constitution?"

Mr. Bingham, of Ohio, replied: "I agree that what Congress declares and enacts shall be the value of coin, is the legal value of such coin; but, sir, an act declaring the legal value of coin does not make it a legal tender."

Mr. Hickman, of Pennsylvania, now rose to inquire: "I desire to ask the gentleman from Ohio (Mr. Vallandigham) a simple question, with his permission. Taking the standard of gold and silver as it is established by law today, a contract is entered into for the payment of a debt in gold and silver at the present standard, that being by law a legal tender; but suppose the gold and silver should before the debt becomes due, by act of Congress, be debased thirty-three per cent., can that coin so debased be made a legal tender for the payment of that debt?"

Mr. Vallandigham replied: "It may be made a legal tender if Congress has the power to debase coin; but I deny that the power conferred by the Constitution on Congress to coin money and regulate the value thereof, confers the power to debase the coin of the country. There is no such power in Congress; and I think that is a sufficient answer to the gentleman's question."

Mr. Hickman, of Pennsylvania, again said: "Congress has, from time to time, changed the alloy of gold and silver coin. Now if it may make coin so alloyed a legal tender in payment of a debt arising out of a contract, and in the mean time, before the debt becomes due, Congress again changes the alloy, debasing the coin to the extent of one third its value, can that coin so debased be made a legal tender in payment of that debt? "Would not that, by the argument of the opponents of this bill, be as much a violation of that clause of the Constitution as to make paper a legal tender?"

Mr. Vallandigham now made this reply: "I answer, that if the purpose of the act of Congress be simply to change the alloy in order to harden the metal and make it more serviceable for the purposes of a currency, not to change its value, Congress has certainly the right to do it; but because Congress has the implied right to do that under the power to coin money and regulate the value thereof, it does not follow that it may alloy the coin for the purpose of debasing it. The intent of the act makes the distinction." Mr. Morrill, of Vermont, next rose to ask Mr. Hickman a question, saying: "If Congress have the power to debase the coin of the country by mixing with the gold and silver, in the shape of alloy, other metals, I desire to ask the gentleman from Pennsylvania if he derives from that fact the power of Congress to debase it in any other way."

Mr. Hickman thus replied: "The question I asked the gentleman from Ohio was in answer to the argument which has been made here by the opponents of this bill, that Congress can pass no law impairing the obligations of contracts; yet if a contract is made to-day by which I am to be paid a certain amount in the present standard of gold and silver coin, and tomorrow Congress passes a law debasing that coin thirty-three per cent., I am required to take that debased coin in payment of the debt, and my contract is thus impaired to the extent of thirty-three per cent."

Mr. Morrill further said: "I admit the power of Congress to debase the coin; but how would the gentleman derive from that power the power of Congress to substitute as a legal tender something else than coin?"

Mr. Thomas, of Massachusetts, now asked a question of Mr. Hickman, saying: ""When the gentleman from Pennsylvania says the obligation of a contract is impaired, I want to ask him if in law this very essential provision of the Constitution does not enter into the contract, and if the contract must not conform to it? For instance, when a man agrees to take so much coin at a future day, he does it knowing that Congress has, by the Constitution, power to regulate and change the value of that coin."

Mr. Hickman, in answer, said: "Yes, sir, and for that reason, inasmuch as the Constitution allows us, as I contend, the power to issue paper money, the man who enters into a contract does it with .the Constitution before him. Now, allow me in turn to put a question to the gentleman from Massachusetts. Suppose gold and silver should be discovered in such quantities in California, or within the limits of the United States, as to make it as plentiful as iron, as to make it useless as a money standard, I wish to know whether it is not in the power of Congress to substitute some other metal which may be more desirable as a circulating medium than gold?"

Mr. Thomas: "That question does not now arise."

Mr. Hickman: "If that power be conceded, then why not substitute paper, if that shall be found more useful for that purpose?"

Mr. Crisfield, of Maryland, said: "The sum of the whole argument that has been made in favor Page 321 of the constitutionality of the power of Congress to declare the Treasury notes contemplated by this bill a legal tender in the payment of all debts, public and private, may be stated in these three propositions: first, Congress may declare these notes a legal tender because it is not inhibited; secondly, the Government must maintain itself, and Congress may exercise all the power and adopt any measure it judges necessary for that object; and thirdly, that the power to declare these notes a legal tender is a means necessary and proper to the full execution of the power to regulate commerce.

"The Constitution found gold and silver coin the medium in which all contracts were to be settled. It recognized, but did not seek to disturb it. It gave Congress no power to disturb it, and inhibited the States from making anything else a tender in payment of debts. And we have no power to alter what the Constitution chose to leave untouched. We have no constitutional power to pass this bill."

Mr. Pike, of Maine, followed, saying: "In my judgment, any measure of finance now assumes the highest character. The existence of the Government depends upon a successful administration of the finances. Crippled here, we are balked everywhere. Upon the consideration of every financial measure there might well present itself anew the same question so fitly put by President Lincoln, in his message to Congress in July: 'Is it better to assume powers, the exercise of which shall violate a portion of the Constitution, rather than allow the whole to be destroyed?' and the country come to the paradoxical conclusion that it was his duty, as President, to violate the Constitution in order to preserve it.

"I trust that I have as much respect for that instrument as any man in the House; and it is because I would not have its authority over any portion of the Union impaired that I am bold in the exercise of power under it. But I would construe it in the light of the rule authoritatively announced for our action: 'The Sabbath was made for man, and not man for the Sabbath.'

"I have a high respect for the motives of gentlemen who discover so many constitutional objections to contemplated action; but for myself, I have concluded that whatever has a tendency to furnish means to suppress this rebellion, and affords a reasonable probability of hastening the consummation of what all loyal men so much desire, is perfectly constitutional. Nothing but an absolute prohibition would prevent me from adopting a measure which answers these conditions. I will never render to my people as a reason why I voted against such a measure that I deemed, it unconstitutional, nor will I assist this Congress in proclaiming to the world and sending down to posterity the lack of constitutional power as a reason for failing to enact any law which will have a tendency to preserve this Union. This is no time for the exercise of thin constitutional pedantry. Let us act boldly and forcibly, and so discharge the high and solemn duty imposed upon us infinitely better than if we shrunk from action under fear of constitutional scruples."

Mr. Alley, of Massachusetts, expressed his view of the constitutionality of the bill in these words: "This question of its constitutionality is hardly worthy of consideration in the face of the overshadowing necessities of the Government, for the reason that at most it can only be claimed as doubtful; for, to say the least, we have the authority of legal eminence as much in favor as against it; and every intelligent man knows, and will admit, outside of the legal profession, that legal enactments and constitutional provisions themselves have always in this country, whenever occasion required, with courts as well as statesmen, proved as packthreads upon the arms of an unshorn Samson before the resistless will of the people.

"No, sir; not a man will oppose this bill, or vote against it, upon any constitutional grounds, unless he is opposed to it for other and satisfactory reasons. This question of making paper money legal tender has never before been seriously entertained or discussed in this country since the adoption of the Federal Constitution, because the emergency has never before arisen to make it necessary."

Mr. Wright, of Pennsylvania, rose in opposition to the bill; he said: "Mr. Chairman, I have never been more embarrassed in my life as to how I should cast my vote than I am in regard to the vote I am about to cast upon this bill; for, as I live, I have no object or desire to embarrass the Government in regard to any of its measures, or the measures of any of the committees of this House, which have in view the putting down the rebellion now upon our hands. I am willing to do anything I constitutionally can, to bring about that result which, of all others, is most desirable; but at the same time, Mr. Chairman, I have the obligations of a constitutional oath resting upon me. I do not desire, and it is not my intention, unless we arrive at a period when there are more difficulties surrounding us than there are now, to violate the obligations of that oath. If it is to be done; it must be done in a case of more extremity than we have now upon us.

"I was going on to state that I voted, during the extra session of Congress, to affirm the act of the President of the United States in the suspension of the writ of habeas corpus. I voted also to approve his act by which he declared certain of our seaports in a state of blockade. I also voted to approve his act declaring the establishment of military law. I did it for the sole reason that I regarded, at that time, that the exigency had arisen which justified us and the President of the United States himself in violating a constitutional provision. It was a vote in extremis. I voted the other day also to give the President of the United States the control of all the railroads in Page 322 the country for the transmission of troops. May, I went further than that, and voted for a clause in that hill which gave to the President the privilege of bringing into the public service the officers and employes of all the railroads of the country. I did that because it was an extreme case. And now we are called upon, according to the terms of this bill, to vote to declare it to be constitutional and legal to make paper itself money. Now, sir, I do not feel justified in going so far as to cast my vote for any such measure.

"It is said that this is among the great powers of the Government. "Why, sir, all the powers this Government has under the Constitution are the powers delegated to it by the several States which thus met in Convention. There is no such thing in construing the Constitution as inference. There is nothing to be implied. The States that met together in convention clothed Congress with all the powers, in express terms, that Congress can legitimately exercise under the Constitution. "Who doubts that? "Who can gainsay that proposition? Not one iota of power does this Congress possess save what it derives under the Constitution. In plain terms have the States written their charter. It is in language not to be misunderstood. The powers of the General Government are expressed in the debates and votes of the men who gave it existence; in the decisions of the Supreme Court of the United States, and of the supreme courts of the several States; and in the views and votes of our predecessors in the halls of Congress. It seems to me that it is vain on our part to attempt to override these conclusions and to set them at nought, in the delusive idea that we have a clearer view and a keener perception of the powers with which this Government is clothed than had these worthy men who have gone before us.

"I lay down the principle that we are to conform our action to the Constitution of the country as it is, and I call upon gentlemen to show me how, when, where, in what particular, we have power, under the Constitution, to make anything, except gold and silver, a legal tender? I think, Mr. Chairman, it cannot be done. If it can be done, then courts, members of conventions, and the statesmen who have gone before us, have committed an egregious error, and we are coming now to perforin the solemn act of condemning their judgment and of setting all their precedents at defiance."

Mr. Kellogg, of Illinois, said: "What is this legal tender? Is it found in the Constitution. Gentlemen seem to admit everywhere that gold and silver are a legal tender. I challenge any gentleman to put his finger upon the clause of the Constitution that expressly declares that anything shall be a legal tender, or that Congress shall have the power to make anything a legal tender. You cannot find it. Yet, sir, everybody seems to understand that gold and silver are a legal tender. What is it that the Constitution declares? That Congress shall have power to regulate commerce, to coin money, and regulate the value thereof. "What is this power of coining money and the regulation of the value thereof? Certainly the power to issue anything in the nature of coin that is to operate as a circulating medium. Gold and silver are not mentioned here, and there is not a gentleman who will not admit that the Government can coin and make money out of iron, or brass, or copper."

Mr. Thomas, of Massachusetts, followed on the other side. He said: "We look to the Constitution to see if the power is given. "We do not say the power is not denied, and therefore exists; but that it is not granted, and therefore does not exist. The powers granted are express or implied, are given in terms, or are the reasonable inferences from the express grants. Now it is conceded that there is no express power given to Congress to make the notes or bills of the Government legal tender. There is a power given to Congress upon the subject matter. It has, the power to coin money, regulate the value thereof and of foreign coins.

"These words, 'to coin money,' have a plain and obvious meaning. The only coinage is that of the metals, 'hard money.' To coin money and regulate the value thereof is to fix its legal value, the value for which it is to be received, as an equivalent in commerce and in discharge of obligations and contracts. This constitutional power of coinage was first executed by the statute of 1792; and that statute has a provision making the coins legal tender; but there can be no doubt that whenever money is coined by Government under the Constitution it becomes ipso facto legal tender. But whether legislation be necessary to carry the provision into effect or not, it is too plain for argument that the power to coin money and regulate its value is the power to say for what value it shall be received.

"There being no express power in the Constitution to make the notes a legal tender, is such a power to be reasonably inferred from any of the express powers? Before answering this question, two things are to be observed.

"The first is that there being an express grant of power upon this subject of the coining of money and fixing its legal value, we should not reasonably expect to find an additional power on the same subject given by implication. The expression of the one would ordinarily be the exclusion of the other. The second thing to be noted is that it appears by the debates of the convention, and by the note of Mr. Madison, that this subject was before the convention, and that a grant of power to emit bills of credit, with the apparent purpose of making them legal tender, was refused.

"It is said that the power to make these notes a legal tender is a reasonable implication from the power to regulate commerce with foreign nations, among the States, and with the Indian tribes. The argument is, and it is Page 323 entitled to consideration, that money is one of the great instruments of commerce—as much so as the ship—and that the power to regulate the principal thing is the power to regulate its instrumentalities. I confess that at first this view of the question deeply impressed me. But further reflection has satisfied me it is not sound. If the Constitution were otherwise silent upon the subject, the implication would doubtless be a strong one

"But the Constitution has spoken, has indicated what shall be money under its provisions, and the power of Congress over it.

"Again: the practical construction of the Constitution has been that no such power existed. Though the exigencies of the Government have heretofore been great, the experiment has never been tried, nor, so far as I know, ever before suggested."

Mr. Edwards, of New Hampshire, in reply, said: "Why, sir, where is the express authority for the legislation—to seize upon an illustration nearest to us—under which this Capitol and all the spacious and durable public buildings around us have been provided for the uses of the Government; where is the express power for most of the details of all the Departments of the Government, for all the interests and security of commerce, for all the organization of your army and navy; not to extend this summary, where, sir, is the express power for doing that in which now this whole House unhesitatingly concurs, in the very bills before us? Nowhere in the Constitution. The emission of bills of credit, which these notes are, is nowhere named except as associated with the provision to make them a lawful tender, and to prohibit the States from doing either; and yet the power to emit bills of credit, when the necessity for its exercise arose in the war of 1812, found its recognition as a constitutional power, and has been acted upon as such at various periods without question.

"So, sir, the power which is now attempted to be exercised and to be deduced from the express powers granted would, in my belief, have found, as have other latent powers, a clear recognition, if the imperative necessity which is now upon us had ever earlier occurred."

Mr. Blake, of Ohio, urged that the legal tender clause was constitutional because it was necessary, saying: "We say it is necessary to make Treasury notes a legal tender, and by it we intend to be understood to mean that the interests of the Government and the people require that it should be done. It is just in this sense the word necessary is used in the Constitution."

Mr. Campbell, of Pennsylvania, also believed the necessity of the case secured its constitutionality. He said: "I humbly conceive my duty to be a plain one. The path I have marked out for myself I will follow, let it lead where it may. Whatever measure is now or hereafter may become necessary to adopt in order to maintain the Union and perpetuate free government, that will I support. Speak not to me of 'objections' and' scruples' and ' dangers,' of' constitutional objections' and 'conservative influences.' Sophistry is ever plausible, and opposition to a just and necessary measure generally wears the mask of a' constitutional objection.' The highest duty of every member is to maintain the Union—to sustain the Constitution against this causeless and wicked rebellion; and in doing this, let us bear in mind that the Constitution was made for the people—to secure to them and their posterity the blessings of free government. Therefore with me the primary inquiry is, in this measure necessary to suppress the rebellion? If it is, here am I ready to sustain it. It will be found the Constitution gives ample power to sustain this view."

Mr. Stevens, of Pennsylvania, thus examined the constitutional objections: "Having, as I think, shown the impossibility of carrying on the Government in any other way, let us briefly notice some of the objections to it. First, is it constitutional?

"The power to emit bills of credit and make them a legal tender is nowhere expressly given in the Constitution; but it is known that but few of the acts which Government can perform are specified in that instrument. It would require a volume larger than the Pandects of Justinian or the Code of Napoleon to make such enumeration, whereas our Constitution has but a few pages. But everything necessary to carry out the granted powers of the Government is not only implied but expressly given to Congress. If nothing could be done by Congress except what is enumerated in the Constitution, the Government could not live a week.

"The States are prohibited from making anything but 'gold and silver coin a tender in the payment of debts;' but such prohibition does not extend to Congress. The Constitution is silent as to the power of Congress over that subject. The whole question of the right to emit bills of credit by Congress was considered in the convention that framed the Constitution. It was reported as a part of the power 'to borrow money.' It was objected to as tending to make paper a currency with legal tender, and a motion was made to strike it out and insert an express prohibition. That was resisted, because, as Mr. Mason said, 'it could not be foreseen what the necessities of the Government might at some time require.' 'The late war,' he said, 'could not have been carried on had such prohibition existed.' It was finally agreed to strike out the express power, and not to insert the prohibition, leaving it to the exigencies of the times to determine its necessity. The right to emit bills of credit, which the convention expressly refused to grant as a substantive power, has for fifty years, by the common consent of the nation, been practised, and is now conceded by every opponent of this bill. With what grace can the concomitant power to make them a legal tender be objected to? The Supreme Page 324 Court have settled certain principles with regard to the power of Congress over measures not expressly enumerated in the Constitution. The principle is, that where anything is necessary to carry into effect the granted power it is constitutional. The eighth section of the first article of the Constitution gives Congress power—

To make all laws which may be necessary and proper to carry into execution the foregoing powers, and all other powers rested by this Constitution in the United States or in any department or officer thereof.

"The Constitution nowhere gives Congress power to create corporations or to establish a hank of the United States. But as Congress had power to regulate commerce, and to regulate the value of coin, and it deemed the establishment of a bank necessary to effectuate those powers, the Supreme Court pronounced it constitutional. In short, whenever any Jaw is necessary and proper to carry into execution any delegated power, such law is valid. That necessity need not be absolute, inevitable, and overwhelming—if it be useful, expedient, profitable, the necessity is within the constitutional meaning. Whether such necessity exists is solely for the decision of Congress. Their judgment is absolute and conclusive. If Congress should decide this measure to be necessary to a granted power, no department of the Government can prejudge it. The Supreme Court might think the judgment of Congress erroneous, but they could not review it. Now, it is for Congress to determine whether this bill is necessary 'to raise and support armies and navies, to borrow money, and provide for the general welfare.' They are all granted powers. It is for those who think that it is not 'necessary, useful, proper,' to propose some better means, and vote against this; if a majority think otherwise, its constitutionality is established."

The bill subsequently passed the House by the following vote:

YEAS.—Messrs. Aldrich, Alley, Arnold, Ashley, Babbitt, Goldsmith F. Bailey, Joseph Baily, Baker, Beaman, Bingham, Francis P. Blair, Jacob B. Blair, Samuel S. Blair, Blake, Buffinton, Burnham. Campbell, Chamberlin, Clark, Colfax, Cutler, Davis, Delano, Delaplaine, Duell, Dunn, Edgerton, Edwards, Ely, Fenton, Fessenden, Fisher, Franchot, Frank, Gooch, Granger, Gurley, Haight, Hale, Hanchett, Harrison, Hickman, Hooper, Hutchins, Julian, Kelley, Francis W. Kellogg, William Kellogg, Killinger, Lansing, Leary, Loomis, McKean, McKnight, McPherson, Marston, Maynard, Mitchell, Moorhead, Anson P. Morrill, Nugen, Olin, Patton, Timothy G. Phelps, Pike, Price, Alexander H. Rice, John H. Rice, Riddle, James S. Rollins, Sargent, Shanks, Shellabarger, Sherman, Sloan, Spaulding, John B. Steele, Stevens, Trimble, Trowbridge, Upton, Van Horn, Van Valkenburg, Van Wyck, Verree, Wall, Wallace, Charles W. Walton, Whaley, Albert S. White, Wilson, Windom, and Worcester—98.

NAYS.—Messrs. Ancona, Baxter, Biddle, George H. Browne, Cobb, Frederick A. Conkling, Roscoe Conkling, Conway, Corning, Cox, Cravens, Crisfield, Diven, Dunlap, Eliot, English, Goodwin, Grider, Harding, Holman, Horton, Johnson, Knapp, Law, Lazear, Lovejoy, Mallory, May, Menzies, Justin S. Morrill, Morris, Nixon, Noble, Norton, Odell, Pendleton, Perry, Pomeroy, Porter, Richardson, Robinson, Edward H. Rollins, Sedgwick, Sheffield, Shiel, William G. Steele, Stratton, Benjamin F. Thomas, Francis Thomas, Train, Vallandigham, Voorhees, Wadsworth, E. P. Walton, Ward, Webster, Chilton A. White, Wickliffe, and Wright—59.

On the 12th of February the bill came up in the Senate.

Mr. Fessenden, of Maine, having explained its features, thus argued the constitutionality of the legal tender clause: "The ground upon which this clause making these notes a legal tender is put, I have already stated. It is put upon the ground of absolute, overwhelming necessity; that the Government has now arrived at that point when it must have funds, and those funds are not to be obtained from ordinary sources, or from any of the expedients to which we have heretofore had recourse, and therefore this new, anomalous, and remarkable provision must be resorted to in order to enable the Government to pay off the debt that it now owes, and afford circulation which will be available for other purposes. The question then is, Does the necessity exist? That is a question which I propose in some degree to discuss, because I admit fully and decidedly that the Government, or the country, rather, is to be sustained in its present undertaking, and that we are bound to obtain the means to effect that object. If the necessity exists, I have no hesitation upon the subject, and shall have none. If there is nothing left for us to do but that, and that will effect the object, I am perfectly willing to do that."

Mr. Collamer, of Vermont, replied: "If I understand him, he says that if there is a necessity for the issuing of this paper and making it a legal tender, he is ready to vote for it. I differ from the Senator there, to begin with. I do not know how other members of the Senate look upon the obligation of their oath to support the Constitution of the United States. To me it is an oath registered in heaven as well as upon earth, and there is no necessity that in my estimation will justify me in the breach of it. I think those men who are now risking their lives upon the high places of the field to support the Constitution, are not to be treated in this hall by us with the concession that we are ready, if the necessity calls for it, to break it. All that our rebel enemies are engaged in is the overthrow of the Constitution, and all that we are contending for is its maintenance and preservation. Let the necessity be what it may, I cannot disregard the obligation of my oath to support the Constitution; and it is mainly with a view to ascertain what is the true meaning of the Constitution upon this subject that my remarks are presented, though other things will run parallel with that tending to the same result.

"But, sir the more important feature to which I wish to call attention is that the bill proposes to make these notes a legal tender in payment of private debts between man and man, with which the Government has nothing Page 325 to do. Why is this "What is the object intended to be effected by making these notes thus a tender in payment of private debts? I have before me a letter addressed by the Secretary of the Treasury, Mr. Chase, to a Representative in the other House, and which was used in that body, from which I wish to read for the purpose of seeing what is the object to be effected, and why it is to be effected. Speaking of these notes, he says:

The making them a legal tender, however, might still be avoided, if the willingness manifested by the people generally, by railroad companies, and by many of the banking institutions, to receive and pay them as money in all transactions were absolutely or practically universal; but, unfortunately, there are some persons and some institutions which refuse to receive and pay them, and whose action tends not merely to the unnecessary depreciation of these notes, but to establish discrimination in business against those who, in this matter, give their cordial support to the Government, and in favor of those who do not make such discrimination. This, if possible, should be prevented, and a provision making notes a legal tender, in a great measure at least, prevents it, by putting all citizens in this respect on the same level, both of rights and duties.

"There is the statement. This feature of the bill is ingrafted on it for the purpose of making the thing precisely equal, and operating alike on all citizens of the community. Now, what does the word 'tender' mean? I do not speak of it as an adjective; I speak of it as a noun, a substantive. It means an attempt at payment, an offer of payment of a debt due. It applies to nothing else. Here comes a distinction which, it seems to me, has hardly been looked at, in the importance in which I view it, in all the discussions in the House of Representatives. Who, under this bill, is compelled to take this paper called money? Nobody but those who have debts due them. Nobody is compelled to take it for his property. Tender cannot be made to a man to obtain his horse from him. He has a horse to sell, he has flour to sell, merchandise to sell, work to perform, labor to do; you cannot make a tender to a man for any of these things. In all the great general affairs of life, this provision, made, as it is said, to make men equal, can never have any application to them. It applies to nobody except some man who has been so unfortunate as to incur the publio displeasure because he has saved a little money from his industry, and has it in the form of a debt due him. It is none but such an unfortunate man that can be reached by this provision, and that is called making things equal 1 I do not know what opinions other men may have about equality. I have heard that equality was equity. If they are convertible terms, I say that is not equality nor equity either. The number of people who owe debts in every community is very much larger than those who have debts due to them. To all those people you address yourself by this tender clause, saying, 'We engage all of you who owe debts to depreciate this paper as much as you can and get it as cheap as you can, to cheat your creditors with.' That is enlisting a very great aid, I take it, to the currency of this paper.

"Mr. President, where is the power to do this derived from? It is said to be an incidental power, falling within that provision of the Constitution giving Congress authority to make all the laws which are necessary and proper to carry into effect the granted powers. When gentlemen desire to get some latitude and elbow room for action, I know that they are generally exceedingly desirous to get a thing into that category. If you can only got the power into that incidental clause, you have plenty of elasticity. It has so much India rubber substance in it that you can take just as much elbow room as you want. There is, therefore, in those who desire to magnify their office and their power, a very strong inclination to resort to this clause.

"It is said to be incidental to a great variety of powers. It is said that Congress has power to raise and support armies, ergo the incidental power to raise money in this form or any other form for the purpose of supporting armies 1 So it is said that the Government has power to pay its debts, ergo we may raise money in this way I the most general packhorse for this incidental power, however, has been the authority given to Congress by the Constitution to regulate commerce, and this power is said to be derived from that. I have heard some considerable latitude of argument about that. But, sir, what is the power of Congress to regulate commerce? The Constitution says that Congress may 'regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Here is a bill authorizing the issue of Treasury notes and making them a tender in payment of debts. I want to know what that has to do with trade between the States? To my mind that, if it is doing anything, is regulating trade between me and my neighbor in the same State, not regulating trade between separate States, and not regulating foreign trade. It is merely regulating a shaving trade between debtor and creditor. The bill proposes to make these notes a tender to pass as the representative of value in trade between man and man. Under this clause of the Constitution, it might be proposed to adopt some measure for a commercial agency or commercial functionary; but if you make paper a tender, as I have before remarked, nobody will be bound to take it in exchange for property. Then it cannot be a measure of regulating commerce. It will not regulate it at all."

Mr. Wilson, of Massachusetts, thus expressed his views on this point: "It is not my purpose to say anything in regard to the constitutional question. Senators of eminent ability differ upon that question; men eminent in constitutional law, in and out of Congress, differ upon that question; and when the most eminent constitutional lawyers of the country Page 326 differ in regard to a question of that importance and of that character, it seems to me that those of tis who choose to do so may exercise our own judgments in regard to the constitutionality of the measure."

Mr. Sherman, of Ohio, followed. He said: "I agree that this measure can only be justified on the ground of necessity. I do believe there is a pressing necessity that these demand notes should be made a legal tender if we want to avoid the evils of a depreciated, dishonored paper currency. I do believe we have the constitutional power to pass such a provision, and that the public safety now demands its exercise. Is there such a necessity?"

Mr. Cowan, of Pennsylvania, followed, saying: "I had supposed, sir, that this question could never enter the American Senate; that the day had gone by when it was open to discussion, if it ever was open since the Constitution was formed. Surely, if anything in the world is settled—settled by the fathers, by contemporary history, painful experience, and the total absence of all precedent for the exercise of these powers—it is that they were not delegated nor intended to be delegated. I have never till now heard it doubted; and after the argument of the learned and venerable Senator from Vermont, I think no one of us, looking at it in the light of the oath he has taken, could doubt it. If this is not settled, then is nothing settled, and we are all at sea.

"It may be superfluous, Mr. President, but still I think proper to recur a moment to first principles upon this question—whether the United States Government can make its notes a legal tender in payment of debts—and in so doing, I think it will be found, if answered in the affirmative, that the power would be subversive of all our notions of government and the ends for which it is established, which are the protection and preservation of society."

Mr. Bayard, of Delaware, followed in opposition to the bill. He said: "I shall pass over the constitutional argument. I really do not think, from anything I ever heard on the subject, that it is worth an argument. The thing is to my mind so palpable a violation of the Federal Constitution, that I doubt whether in any court of justice in this country, having a decent regard to its own respectability, you can possibly expect that this bill which you now pass will not, whenever the question is presented judicially, receive its condemnation as unconstitutional and void in this clause."

Mr. Howard, of Michigan, on the other side of the question, thus expressed his views: "We have under the Constitution the power to borrow money. This no one disputes. If we have the power to borrow money, we have the right; and it is our duty to place in the hand of the lender an evidence of the fact that we have so borrowed it, and, further, that we intend to pay what we have borrowed. These two things are manifestly, in their very nature, inseparable; and the or.ly real question, it seems to me, which addresses itself to the Senate, is this: whether we have any power, after having issued this description of paper to the public creditors in payment of their debts, to protect the credit of the United States expressed upon the face of the paper, while it is in the hands of innocent and honest holders. I think we have. I think this is one of the most obvious means of extending protection to the public credit thus expressed upon the paper. If we have it not; if we cannot subject, so to speak, the entire property of the nation to something like an assistance to the public credit, then this power to borrow money at once ceases to be a power of any value, and it is a mere mockery upon the face of the Constitution. If we cannot declare that this paper shall in commercial transactions be of equal validity to transactions based upon gold and silver, then I say that the power to borrow money ceases in and of itself to be of any benefit to the Government or to the nation; and it is because I believe that we have this power thus to protect the public credit, expressed and pledged on the face of a Treasury note, that I shall vote to retain this clause in the bill. I think we have the constitutional power, and I am willing to use it on this occasion."

Mr. Sumner, of Massachusetts, argued that the measure was not unconstitutional, saying: "It is true that in the Constitution there are no words expressly giving to Congress the power to make Treasury notes a legal tender; but there are no words expressly giving to Congress the power to issue Treasury notes. If we consult the text of the Constitution, we shall find it as silent with regard to one as with regard to the other. But, on the other hand, the States are expressly prohibited to 'emit bills of credit, or make anything but gold and silver coin a tender in payment of debts.' Treasury notes are 'bills of credit;' and this prohibition is imperative on the States. But the inference is just that this prohibition, expressly addressed to the States, was not intended to embrace Congress indirectly, as it obviously does not embrace it directly. The presence of the prohibition, however, shows that the subject was in the minds of the framers of the Constitution. If they failed to extend it still further, it is reasonable to conclude that they left the whole subject in all its bearings to the sound discretion of Congress, under the ample powers intrusted to it.

"If the Constitution failed to speak, Congress has not failed; and the exercise of this power cannot now be questioned without unsettling our whole financial system. But we have seen that throughout our colonial history the legal tender was a constant, though not inseparable, incident to the bill of credit; that, indeed, it was so much a part of the bill of credit that the Imperial Parliament positively interfered to separate the two, and, while sanctioning the bill of credit, forbade the tender. And now, if this historical review is properly apprehended

Page 327—if it is not entirely out of place—it must conduct to the conclusion that, whatever may be the present question of policy, the power to make Treasury notes a legal tender has precisely the same origin in the Constitution with the power to create Treasury notes. It is true that you may exercise one power, and decline to exercise the other; but if you assume the power to issue bills of credit, I am at a loss to understand how you can deny the power to make them a legal tender. The two spring from the same fountain. You may refuse to exercise one or both; but you cannot insist upon one under the Constitution and reject the other."

A vote was then taken on a motion to strike out the legal tender clause, which resulted as follows:

YEAS.—Messrs. Anthony, Bayard, Collamer, Cowan, Fessenden, Foot, Foster, Kennedy, King, Latham, Nesmith, Pearce, Powell, Saulsbury, Simmons, Thomson, and Willey—17.

NAYS.—Messrs. Chandler, Clark, Davis, Dixon, Doolittle, Harlan, Harris, Henderson, Howard, Howe, Lane of Indiana, McDougall, Morrill, Pomeroy, Rice, Sherman, Sumner, Ten Eyck. Wade, Wilkinson, Wilson of Massachusetts, and Wilson of Missouri—22.

The bill was subsequently passed by the following vote:

YEAS.—Messrs. Anthony, Chandler, Clark, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Henderson, Howard, Howe, Lane of Indiana, Latham, McDougall, Morrill, Pomeroy, Rice, Sherman, Sumner, Ten Eyck, Trumbull. Wade, Wilkinson, Wilson of Massachusetts, and Wilson of Missouri—30.

NAYS.—Messrs. Collamer, Cowan, Kennedy, King, Pearce, Powell, and Saulsbury—7.

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In the senate, on the 28th of January, on motion of Mr. Wade, of Ohio, the bill to authorize the President of the United States in certain cases to take possession of railroad and telegraph lines was taken up. The bill proposed to authorize the President of the United States, when, in his judgment, the public safety might require it, to take possession of any or all the telegraph lines in the United States, their offices and appurtenances; to take possession of any or all the railroad lines in the United States, their rolling stock, their offices, shops, buildings, and all their appurtenances; to prescribe rules and regulations for the holding, using, and maintaining of the telegraph and railroad lines in the manner most conducive to the safety and interest of Government; to place under military control all the officers, agents, and employes belonging to the telegraph and railroad lines thus taken possession of, so that they should be considered a part of the military force of the United States, subject to all the restrictions imposed by the rules and articles of war. Any attempt, by any party or parties whomsoever, to resist or interfere with the unrestrained use by Government of the property thus taken possession of, or any attempt to injure or destroy it, was to be punished as a military offence by death or such other penalty as a court martial may impose. Three commissioners were to be appointed by the President, by and with the advice and consent of the Senate, to assess and determine the damages suffered, or the compensation to which any railroad or telegraph company might be entitled, by reason of the railroad or telegraph line being seized and used under the authority conferred by the act, and their award was to be final, and the amount was to be paid to the party entitled to it out of any money in the Treasury not otherwise appropriated.

The transportation of troops, munitions of war, equipments, military property and stores throughout the United States, was to be under the immediate control and supervision of the Secretary of War, and such agents as he might appoint.

The compensation of each of the commissioners was to be eight dollars per day while in actual service, and the provisions of the act were not to be in force any longer than was necessary to bring the war to an end.

Mr. Cowan, of Pennsylvania, said: "The bill contemplates that, tinder certain contingencies, the military force of the country may take possession of the railroads and telegraph lines of the country. This, I have no doubt, is roper, and, under the right of eminent domain, have no doubt the Government has power to authorize it; but who shall decide upon the contingency? The owners of these roads may be citizens having rights which are secured and guaranteed to them under the fifth amendment of the Constitution, and they have a right to appeal to the courts, I should think, in order to determine whether those rights wore or were not violated by the military officers in taking possession of their property at that time for public use.

"Why, it may be asked, are persons in the land and naval forces subjected to military punishment for offences? It is because they have waived their constitutional rights by subscribing at the time they entered this force to the rules and regulations laid down by Congress for the government of the land and naval forces; and I very much doubt whether a man could be subjected to the peculiar punishment there inflicted, unless he had first subscribed to those articles. Certainly, when a man enters the army, he is called upon and he does agree to those rules and regulations, which are outside of the course of the common law, and which do not proceed by due process of law, before he can be held answerable."

Mr. Trumbull, of Illinois, followed, saying: "The Senator from Ohio says that it would be impossible in districts where railroads would probably be taken possession of to impanel juries and try the parties resisting that possession. That is very true; it would be; and it is not necessary to do it there. Now, the distinction which I make, and the basis of the bill which has been introduced here to confiscate Page 328 the property of rebels goes upon this idea: that the Constitution of the United States, which guarantees a jury trial, and which declares that no man shall be deprived of life, liberty, or property without due process of law, has no application whatever to a district of country where the judicial tribunals are utterly overthrown, and where the military power is called in for the purpose of putting down an insurrection, just because the judicial authorities are overthrown. That is the very point where the military may begin to operate."

Mr. Pearce, of Maryland, expressed his astonishment at the bill, saying: "It seems to me that this bill is a very extraordinary one. It has taken me by surprise. I believe that it was only laid on our tables yesterday. If it were confined to the States in secession I should make no objection; but I confess I am appalled with the idea of giving the Executive such an enormous power as this over States which are not in insurrection, which may not be in insurrection, and in which there is not a fortieth part of the people who desired it ever should get into insurrection."

Mr. Pearce also said: "But further, sir— you authorize them to place under military control all the officers, agents, and employes belonging to the telegraphs and railroads thus taken possession of by the Government, so that they shall be considered a part of the military forces of the United States, subject to all the liabilities imposed by the rules and articles of war. Where do you get the authority to make these civil employes of these railroads subject to the rules and articles of war? They are only military men who are subject to them. These persons have not made themselves subject to them by enlisting in the military service of the United States, or by volunteering into its service, or by being drafted into the militia; and yet you take these poor civilians, the whole business of whose lives is railroad transportation for passengers and freight, and make them subjects of military law."

Mr. Davis, of Kentucky, was of the opinion that the exception taken to the bill by the Senator from Maryland was well taken. He said: "He objects to that portion of it which proposes 'to place under military control all the officers, agents, and employes belonging to the telegraph and railroad lines thus taken possession of by the President.' I say that that is wholly an unauthorized power. Congress, the law-making power of the United States, cannot invest the President with that authority. He has no right to assume that persons who are in civil employment, either in a State or in a State corporation, or in their own private and individual capacity, can be seized by authority of a law of Congress, and appropriated to and made a part of the military power of the United States, and subjected to the military law. I utterly deny that that is constitutional."

Mr. Trumbull, of Illinois, thus expressed his opinion: "I cm for punishing a man in the loyal States who interferes with a telegraph line or a railroad line as severely as in the loyal States. I am for punishing them all. The constitutional point is simply this: can you punish a citizen by military court martial in a loyal portion of the country?" Mr. Wilson, of Massachusetts, followed: "What is the whole object of this bill? What is the reason why it has been introduced here, and why does the new Secretary of War desire a measure of this kind! We have assembled large armies; it is expected that these armies are to move; the public voice demands action; they have to move over vast spaces of country; railways must be a great means of transportation for them. Now, the object is to have the control of the railway lines for the purpose of moving these masses of men. The object is to concentrate our forces, to move large masses of men without the knowledge or consent of anybody, without negotiating with railway directors as to how many men are to be moved, or where they are to be moved, or what rolling stock is wanted, or anything of the kind."

Mr. Hale, of New Hampshire, said: "It is unquestionably true that the power to do these things exists at the present time. Nobody can doubt—not even my friend from Maryland, who says that he is appalled by the principles enunciated by this bill—that, in a time of war, when the necessity exists, the Government may seize upon property; may seize upon men; may seize upon anything and everything which is necessary to accomplish its war purposes. In seizing private property your authorities do not stop to call a jury to estimate its value under that clause of the Constitution which provides that private property shall not be taken for public use without compensation. They take it when the necessity arises; take the man, the horse, the grain, the railroad, the large thing as well as the small. There is no doubt about the power."

Mr. Fessenden, of Maine, said: "If you mean only to give power to impress a certain class of your fellow citizens, under a given state of facts, into the military service of the country, I am willing to do it if it is recommended by the proper authorities, and it is thought advisable that it should be done by general law, instead of leaving the power to be exercised in each case where an emergency may present itself. We have just as much right to consider men who are employed for the purpose of this bill, in the military service, as to provide that men shall be drafted for our armies. That is a power that exists in the Government, undoubtedly. It is within the war-making power: and if that is the design, I do not know that I have any objection so far as that point goes."

Mr. Wade, of Ohio, argued in reply: "The Senator declared that the war power was vested in the President There is no such power as that in the President. It is in the Congress— in the representatives of the people and of the Page 329 States. To place it anywhere else would lead you directly to an irresponsible despotism. Sir, as a representative of a State of this Union, I will never consent to yield my right to declare upon this floor upon what principles any war shall he conducted. I deny the right of the President, without any interference of Congress, to conduct everything pertaining to war according to his own views. He has no right to do it. We have seen the trouble that has been occasioned by an attempt to exercise a power that he probably has, in a way not regulated by law, and it has greatly impaired his authority, if not his good name abroad. Look at the complaints against him because he has undertaken to suspend the habeas corpus, a power not regulated by law. Ought not that power to be regulated by law like every other? Would it not be better for your Executive that it should be so? Ought wo, the representatives of the people and of the States, to shrink from declaring upon what principles men may be deprived of their liberty? I do not say this in any sense of denunciation against what has been done, because there has been a necessity for it. We create and continue that necessity every hour that we fail to declare on what principles a man may be taken and deprived of his liberty.

"Now, sir, I am as anxious as any other man to defend the rights of the people, and to confer the proper authority upon the Executive to act; but I absolutely deny that without our assent he may exercise just what powers he pleases in respect to the conduct of this war. We, the representatives of the States and the representatives of the people, whose interests and whose persons are affected by the war, have the right here to limit the powers that he shall exercise upon just such subjects as we see fit, just as we please, and when we please; and because, in my judgment, he has not this unlimited power to exercise, except from necessity, when we fail to act, the duty is devolved upon us of prescribing the rules under which he shall act, and therefore I have brought forward this bill."

Mr. Doolittle, of Wisconsin, continuing the debate, said: "Mr. President, in the course of this discussion we have come up against the great question that divides the judicial minds of the country, whether the power of suspending the habeas corpus and of declaring martial law is in the President or in Congress. If it is in the President, no legislation whatever would be necessary, because the President can extend his martial law anywhere throughout the United States, over every railroad in it; and any man who commits an offence upon the railroad over which martial law is extended can be tried by martial law, and shot at a drum-head court martial. But inasmuch as there is a large and respectable portion of the judicial minds of the country who believe that it belongs to Congress to extend martial law in the United States, therefore I understand this committee, for greater security and caution, to have both the authority of the President and the authority of Congress, ask for the provisions of this bill, which are nothing more nor less than to extend martial law, or quasi martial law, over the railroads and telegraphs of the United States. "Why should we hesitate to give it? The Senator from Maine insists that the President has it now. What harm is it, then, if Congress says he shall have it?" Mr. Cowan, of Pennsylvania, followed in a lengthy speech. His view was thus expressed: "I do not think this bill is necessary. I think that all laws of this kind which are calculated to enlarge the power of the President as Commander-in-Chief of the Army, will in the end only be found to impede his march, and involve not merely himself but Congress and everybody else in trouble. He had better be left to the exercise of that absolute power with which he is clothed, within its limits free to act, free to do everything. I should be sorry if he had not done everything that was necessary and that he had a right to do; but I suppose, if not now, it will soon be found out.

"I am opposed to the whole scheme; but if there is to be a law of this kind at all, it ought to be so well considered as to at least keep us who legislate for the citizen, who has a right to have the laws administered through the medium of the judiciary, clearly within the limits of the Constitution. I would not throw a straw in the way of the President; and why? In what way am I to carry that out? By not passing laws—not by passing them. The men who are giving the President a full and fair opportunity with the military force of the nation to put down the rebellion are those men who do not restrain him, who do not fetter him, but who leave him as the commander-in-chief of an army ought to be left, to do that which in his own discretion and good judgment he ought to do, and let him take the responsibility."

Mr. Bayard, of Delaware, in opposition to the bill, said: "I do not rise for the purpose of opposing this bill. I shall vote against it. I consider it a plain and palpable violation of the Constitution of the United States. I know of no power, executive or legislative, to establish martial law within the United States. I therefore have no comments to make upon this bill. The provisions of it speak for themselves. It assumes the power to compel citizens of the United States to act under military law without their consent, and subjects them to the penalties of military law. Though the Constitution says that private property shall not be taken for public purposes without compensation, it assumes the power, not to seize private property, but the power to use it temporarily for Government purposes without compensation for the value of the property.

"Sir, in all these cases it is the first step which costs. Once accustom the people of this country—I do not care under what plea, whether of state necessity, or putting down of rebellion, or what you will—that within that portion Page 330 of the United States in which the laws are not suspended, in which civil remedies can be afforded, the civil power is subordinate to the military, and there is an end of civil liberty; there is an end to republican government. You may talk about fighting for the restoration of the Union; but if your restoration of the Union is merely for the acquisition of power, apart from the preservation of the Constitution and the principles of liberty on which that Constitution is founded, is it worth the struggle and the destruction of human life which will ensue in consequence? Is it for mero conquest that you are fighting, or is it to preserve the Union, because the Union is to save the great principles of civil liberty upon which that Union is based?

"I deny the principle on any possible ground of legal construction, consistent with the Constitution and the preservation of civil as opposed to military authority, where the laws of the United States can be executed by the civil power, that you have the right to interpose military power and to override the civil power, because you may think it more convenient.

"Mr. President, this doctrine of State necessity is at all times a dangerous doctrine. In truth, the whole question comes to this: There are in reality but two forms of government: one is a government of will, and the other a government of laws. The United States profess to have a government of laws. If you transfer that power, no matter under what plea, no matter under what necessity or what excuse, so that the mero will of the Executive or of his subordinate military commanders can, without the laws which secure the rights of individuals, trespass upon personal liberty, and upon the rights of private property, where those laws are enforced, there is an end of republican government; there is an end of a government of laws. There is the substitution of a government of will, and that is a despotism wherever it exists."

The bill was finally passed by the following vote:

YEAS.— Messrs. Carlile, Chandler, Clark, Dixon, Doolittle, Foot, Hale, Howard, Howe, Johnson, King, Lane of Indiana, Latham, Pomeroy, Bice, Sherman, Sumner, Ten Eyck, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wilson of Missouri—23.

NAYS.—Messrs. Browning, Cowan, Davis, Fessenden, Foster, Grimes, Harris, McDougall, Powell, Saulsbury, Trumbull, and Willey—12.

________

The expulsion of all members of the Senate who had either united with the Southern Confederacy, or who had said or done anything not strictly loyal, in the opinion of Senators, caused very extended debates during this session. The points embraced in each case are here shown. In this crisis of the country all measures were considered necessary which might remove some real or apprehended danger.

In the Senate, on the 10th of January, the resolution relative to the expulsion from the Senate of Waldo P. Johnson, Senator from Missouri, was taken up and the report of the committee made as follows:

The Committee on the Judiciary, to whom was referred a resolution for the expulsion from the Senate of Waldo P. Johnson, a Senator from the State of Missouri, submit the following report:

Previous to his election to the Senate, Mr. Johnson was known, in Missouri, as entertaining secession proclivities, and to sympathize and cooperate with the prominent citizens of that State who are now in open rebellion against the Government. He was elected to the Senate bv a Legislature which has since sought to array the State against the Union. Since his election he is reported to have made a speech evincing a spirit hostile to the Government, which speech was extensively published in the State of Missouri without public contradiction from him. He has not appeared in his seat in the Senate since the session began; and though the resolution for his expulsion was proposed in the Senate on the 10th day of December, and referred to this committee on the 12th day of December, 1861, and has been extensively published in Missouri and other parts of the Union, "the said Johnson has wholly failed to furnish any reason for his absence, or explanation of the charges of disloyalty urged against him.

The failure of said Johnson for so long a period to appear in his place to discharge the high duties incumbent upon him for the preservation of the Republic in this time of rebellion against its authority, and his silence under the imputations upon his loyally, which, from their publicity, could not have escaped his notice if within a loyal portion of the Union, of themselves furnish strong presumptive grounds against his fidelity to the Government.

His whereabouts at this time the committee have been unable, with actual certainty, to ascertain. They are satisfied that, had he been so disposed, there was nothing to prevent his attendance on the Senate at its commencement; and when last heard from, he was reported to have gone voluntarily within the lines of rebels in arms against the Government.

Under these circumstances, the committee ore of the opinion that he ought to be expelled from the body, and they accordingly report the resolution back to the Senate, with a recommendation that it do pass.

Mr. Bayard, of Delaware, said: "For my own part I have read too much of the past history of the world to condemn men merely for opinions, however widely they may differ from my own; but acts are another thing. The evidence in this case satisfied me that Mr. Johnson had left the United States clandestinely, and that every rational presumption was that he had gone to the Confederate States, who now arc at open war with the United States. Under these circumstances, I have no hesitation in giving aye vote for his expulsion as a member of this body."

The resolution was then adopted by a unanimous vote.

The resolution relative to the expulsion of Senator Trusten Polk was then taken up, and the committee submitted their report as follows:

The Committee on the Judiciary, to whom was referred the resolution of the Senate for the expulsion of Trusten Polk, a Senator from the State of Missouri, report:

That it appears, to the satisfaction of the committee, that Trusten Polk recently, and since the commencement of the present rebellion, in a letter transmitting pecuniary means to aid in the publication of a secession newspaper in Southwestern Missouri, among other Page 331 disloyal and treasonable expressions, used the following:

"Dissolution is now a fact; not only a fact accomplished but thrice repeated. Everything here looks like inevitable and final dissolution. Will Missouri hesitate a moment to go with her southern sisters? I hope not. Please let me hear from you. I would be glad to keep posted as to the condition of things in Southwest Missouri. I like Governor Jackson's position. It looks like adherence to the 'Jackson resolutions.'"

That a copy of this letter was published in full in the Congressional Globe of the 19th of December last, the day after the resolution of expulsion, in this case, was introduced in the Senate, and has, also, both before and since that time, been published and referred to in several other newspapers in Missouri and elsewhere, and widely circulated throughout the country, which publication could hardly have failed to come to the notice of Senator Polk; and yet neither he, nor any other person in his behalf, has appeared before the committee to deny the authenticity of the letter referred to, or attempted in any other way to deny or explain it, so far as the committee are aware—a course of conduct deemed to be wholly incompatible with the idea of his innocence, since an innocent man, in his position, according to the first impulses of a true and loyal heart, would not have suffered a moment to elapse without flying to his place to deny, if false, so grave and foul a charge.

That besides this, he has not only failed to appear in his seat during the whole time of the continuance of the present session, now a period of six weeks, to perform his duty to his State and to the Union, on an occasion of the greatest possible urgency, when the votes as well as counsel of every true and loyal Senator wore eminently needed in providing for the public welfare and putting down a fierce rebellion, threatening the very existence of the Union, but on the contrary, as the committee are fully satisfied on information derived from reliable official and other sources in Missouri, has left his home in St. Louis and gone clandestinely within the lines of the enemy now in open, armed rebellion against the United States, whose Constitution he, as Senator, has solemnly sworn to support.

The committee, under this state of facts, are of opinion that justice to the Senate, to rid its roll of his name, as well as the chamber of bis presence; justice to the Slate of Missouri, whose high commission he has dishonored ; and justice to the Union, which he has sought to betray, all require that he should no longer continue a member of this body.

They therefore respectfully report the resolution for the expulsion of Trusten Polk, a Senator from Missouri, back to the Senate, with the unanimous recommendation that the same do pass.

It was then unanimously passed.

The Committee of the Judiciary, to whom was referred a resolution to expel Jesse D. Bright, Senator from Indiana, reported on the 13th of January, as follows:

The Committee on the Judiciary, to which was referred a resolution to expel Hon. Jesse D. Bright from his seat in the United States Senate, respectfully report:

That they are of opinion that the facts charged against Mr. Bright are not sufficient to warrant bis expulsion from the Senate; and they therefore recommend that the resolution do not pass.

The further consideration of the subject was postponed.

On the 20th the subject was again taken up.

The resolution which was introduced by Mr. "Wilkinson, of Minnesota, upon which the "committee reported, was as follows:

Whereas Hon. Jesse D. Bright heretofore, on the 1st day of March, 1861, wrote a letter, of which the following is a copy:

                                             WASHINGTON, March 1, 1861.

MY DEAR SIR: Allow me to introduce to your acquaintance my friend Thomas B. Lincoln, of Texas, he visits your capital mainly to dispose of what he regards a great improvement in firearms. I recommend in to your favorable consideration as a gentleman of the first respectability, and reliable in every respect.

     Very truly, yours,                  JESSE D. BRIGHT.

To His Excellency Jefferson Davis,

     President of the Confederation of States.

And whereas we believe the said letter is evidence of disloyalty to the United States, and is calculated to give aid and comfort to the public enemies: therefore,

Be it resolved. That the said Jesse D. Bright is expelled from his seat in the Senate of the United States.

Mr. Wilkinson took the floor to support the resolution, and against the report of the committee. He said: "This is an hour, Mr. President, when men must stand up straight if they would serve their country; it is no time for faltering, for hesitation, or for doubt. And it is my deliberate opinion that, surrounded as we are with treason and with corruption in the high places of this Government, if the Senate fails to discharge its whole duty without any regard to fear or to favor, or without being moved from the right line of duty by personal considerations, this country will be lost. I believe that the firm, steady, and heroic action of Congress must save this nation, if it is saved at all; and I further believe that every other department of the Government has utterly failed to meet with sufficient heroism and virtue the demands which the crisis of the country has made upon them. I am overwhelmed with the revelations which are hourly made of the treason and corruption which surround and enter into every department of this Government; and strange as it may appear, startling as may be the announcement, there is scarcely a single act of treason or of fraud which surrounds, or is in any wise connected with this Government, but that finds an eager and ready apologist in Congress. If this course is not checked at once, then indeed may we bid farewell to all hope of saving the country and the institutions of freedom which our Constitution has guaranteed to the people."

He then considered the points of the case: that the Senator from Indiana did not deny that he wrote the letter,—the manner of its address,—the state of the country at the time when it was written,—tho object of the letter, —tho position of the writer, &c, and conclude! thus: "Mr. President, whilst I regard the letter of the 1st of March last, recommending an inventor of improved firearms to the especial notice of the leader of this wicked war, as giving the clearest and most perfect evidence of disloyalty in him who wrote it, still I think that the letter of the 7th of September last is still more objectionable than the other. At this last date, the war in defence of the Government had assumed the most gigantic proportions; five hundred thousand loyal men were then in the field in defence of our Government, to save it from being destroyed by the attacks of the most ruthless enemy that Page 332 ever blackened or disgraced the annals of civilized warfare. The whole nation was reeling to and fro, and staggering like a drunken man; commerce was destroyed; the ordinary business of the entire country had been suspended, and the good men and the loyal men and the true men all over the land thought of nothing, did nothing, cared for nothing but the success of our army and the maintenance of this Government. It was at this time that a Senator of the United States, bound by the most solemn of earthly obligations to sustain the Government in which he held an office of high dignity and honor, boldly declared to the country that he was opposed to the entire policy of the Government—that policy which is for maintaining its very existence!"

Mr. Bayard, of Delaware, replied: "Mr. President, I am not surprised at anything that occurs in times of high excitement; nor am I surprised at distortion of the human intellect by which the most ordinary actions or the simplest forms of expression are perverted from their purpose, and have attached to them a meaning (from emphasis and an imperfect statement of facts) which otherwise no rational man would attach to them. I had hoped, however, that when the resolution of the Senator from Minnesota was submitted to a committee of this body; when the whole matter was investigated and weighed by them, and the party accused heard, and they reported that the resolution ought not to pass, the honorable Senator would be content to submit to the determination of the committee, and without coming here with a written set speech for the purpose of aggression upon my friend from Indiana, would let the vote of the Senate be taken, if he desired it, without the necessity of any controversy on the subject."

A very extended debate followed, during which Mr. Bright said: "I have said repeatedly that I have no recollection of ever having written this letter. I have no doubt when the letter was asked for, Mr. Lincoln said he wanted to go there to dispose of an invention in firearms. I understand Mr. Lincoln says I gave him a letter to Mr. Floyd in the month of December, which was some time before I gave him the letter to Mr. Davis, recommending his improvement in firearms, whatever it was: I really do not know what it was, and never heard what it was. I went this morning to the War Department, and with the aid of the chief clerk searched its files for the purpose of ascertaining whether there was such a letter there. The chief clerk stated that if it was merely a letter of introduction, such a one as would be given in a case of that kind, the presumption was that Governor Floyd threw it in his basket, and so it had been destroyed, or he might have it among his private papers. Mr. Lincoln, I understand, says I gave him a letter first recommending his firearm to Mr. Floyd. If it was such a valuable improvement, and was likely to be so serviceable in the destruction of human life, and I was in collusion with the Southern States, I would hardly have recommended it first to Governor Floyd, then Secretary of War. I suppose I gave him a letter first to Mr. Floyd, and he, finding that like many of these Yankee inventions there was nothing in it, threw it overboard, and then Mr. Lincoln came and bored me for a second letter to Jefferson Davis, and I gave him that one. I have no doubt those are the facts." At the close of the debate the vote on the question of expulsion was taken and resulted as follows:

YEAS.—Messrs. Anthony, Browning, Chandler, Clark, Collamer, Davis, Dixon,' Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Henderson, Howard, Howe, Johnson, King, Lane of Indiana, McDougall, Morrill, Pomeroy, Sherman, Simmons, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wilson of Missouri—32.  

NAYS.—Messrs. Hayward, Carlile, Cowan, Harris, Kennedy, Latham, Nesmith, Pearce, Powell, Rice, Saulsbury, Ten Eyck, Thomson, and Willey—14.

__________

Mr. Lovejoy, of Illinois, offered a bill for the prohibition of slavery in the Territories of the United States, on which an extended debate took place. He subsequently proposed to modify the substitute as follows, which was agreed to:

To the end that freedom may be and remain forever the fundamental law of the land in all places whatsoever, so far as it lies within the powers or depends upon the action of the Government of the United States to make it so: therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That slavery or involuntary servitude, in all cases whatsoever (other than in the punishment of crime, whereof the party shall have been duly convicted), shall henceforth cease, and be prohibited forever in all the Territories of the United States, now existing, or hereafter to be formed or acquired in any way.

Mr. Lovejoy then moved to amend by striking out the preamble.

Mr. Cox, of Ohio, said: "I would like to amend that by inserting the words 1 to carry out the Chicago platform, and to dissolve the Union.' That is the idea."

The previous question was seconded, and the main question ordered, which was on the amendment striking out the preamble.

The amendment was agreed to.

The bill was subsequently passed—ayes, 85; noes, 50—in the following words: "That from and after the passage of this act there shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."

Thus, what was originally known as the "Wilmot Proviso" offered in the House about 1847, after fifteen years became a law. This was the arrow that had pierced the heart of the Union.

In the Senate, on the 13th of March, the bill Page 333 "for the release of certain persons held to service or labor in the district of Columbia" was taken up.

Mr. Davis, of Kentucky, offered the following amendment:

And be it further enacted, That all persons liberated under this act shall be colonized out of the limits of the United States; and the sum of $100,000, out of any money in the Treasury not otherwise appropriated, shall he expended, under the direction of the President of the Coiled States, for that purpose.

Mr. Davis, in support of his amendment, said: "Mr. President, whenever any power, constitutional or unconstitutional, assumes the responsibility of liberating slaves where slaves are numerous, it establishes as inexorably as fate a conflict between the races, that will result in the exile or the extermination of the one race or the other. I know it. We have now about two hundred and twenty-five thousand slaves in Kentucky. Think you, sir, that we should ever submit to have those slaves manumitted and left among us? No, sir; no, never; nor will any white people in the United States of America where the slaves are numerous. If by unconstitutional legislation you should, by laws which you shrink from submitting to the test of constitutionality in your courts of justice, liberate them, without the intervention of the courts, the moment you reorganize the white inhabitants of those States as States of the Union, they would reduce those slaves again to a state of slavery, or they would expel them and drive them upon you, or south of you, or they would hunt them like beasts and exterminate them. They would not do this from choice, but they would do it from necessity. It will produce such a conflict between the races as will render it inevitable, and there will be no escape from it.

"I maintain that it is a matter of humanity to the negro in this city, and of justice to the white population in this city, that when you turn three or four thousand negroes who are now in a state of slavery, free, you should relieve them from the curse of such a population, from its expense, from its burdens upon this community in every form; you ought to assume the philanthropy and the justice—the philanthropy to the negro race and the justice to the white race—to remove these people from the District. You may refuse to do it. If you do, a few years' experience will tell you what a mistake you made."

Mr. Hale, of New Hampshire, replied to the objection of the Senator from Kentucky in regard to the consequences that might ensue from the passage of the bill. He said: "I may remark that of all the forms scepticism ever assumed, the most insidious, the most dangerous, and the most fatal is that which suggests that it is unsafe to perform plain and simple duty for fear that disastrous consequences may result therefrom.

"This question of emancipation, wherever it has been raised in this country, so far as I know, has rarely ever been argued upon the great and fundamental principles of right; the inquiry is never put, certainly in legislative circles, what is right, what is just, what is due to the individuals that are to be affected by the measure, but what are to be the consequences? Men entirely forget to look at the objects that are to be affected by the bill, in view of the inherent rights of their manhood, in view of the great questions of humanity, of Christianity, and of duty; but what are to be the consequences, what is to be its effect upon the price of sugar, tobacco, cotton, and other necessaries and luxuries of life? The honorable Senator from Kentucky looks upon it in that point of view entirely."

The Senator then proceeded to examine the effects of emancipation in the British West Indies and St. Domingo, and concluded this portion of his argument by saying: "Now, sir, I do not question in the slightest degree the very strong convictions which the honorable Senator from Kentucky has upon this question; but I ask him, and I ask every man who hesitates upon it upon the grounds he has suggested, to take the trouble not to read the frothy speeches made upon the floor of the House of Representatives or the Senate during the last ten or twenty years, but to go to the facts as they are portrayed by the impartial pen of history. I ask them to look at the statistics which exist to-day as to the condition of the colored population in those islands in which emancipation has been tried. They will find that no such disastrous consequences have ensued. Sir, the account that was given of the final inauguration of emancipation in the British West Indies in 1838, ought to stand in all time to be read by every man that wishes to inform himself upon this subject as to the character of this much-abused population, and the effects of this much-abused measure."

The constitutional objection to the bill, he thus treated: "Sir, I do not ask that the Government of the United States should trample upon the Constitution in any one of its provisions. I believe that up to a very late period in our history, it was the conceded doctrine of this Republic, by Statesmen north and south, that the constitutional power to legislate upon the subject of slavery in this District existed in Congress. I know that in late years that has been questioned, and even denied. I know that within the last ten or twelve years this nation has been rent upon a new dogma, which denied the constitutional power of Congress to legislate for the Territories; and, while that question was rending the country, while it was tearing political parties in twain, dividing churches, bringing itself home to the hearts and consciences of this people, the Supreme Court of the United States undertook, with their puny efforts, to throw themselves in the way of the great question by the Dred Scott decision, and to say to the surging waves of humanity that, while washing out the stain of Page 334 oppression from our history, they should go thus far and no farther. The Supreme Court will find out ere long how much that has effected. Whether it has done more to wipe out the controversies that they wanted to crush out, or to obliterate whatever of respect there was remaining in the public heart for themselves, they will find out before the issue is settled.

"But, sir, while by this decision the Territories of the United States were taken theoretically from the management of the Federal Government, I believe, though I never read the Dred Scott decision in reference to that particular view of it, it did not go to the extent of saying that Congress had no constitutional power to legislate in the District of Columbia. But, sir, that is left to us. Over this little spot of ten miles square, or what there is left of it after the retrocession of the part ceded by Virginia, we have confessedly the right of legislation; and here in our midst, and by our laws, the system of human slavery exists, and we are called upon to-day to abolish it, to repeal the laws upon which it rests, and to the most limited extent to try what will be the effect of emancipation upon the few slaves that are in this District."

Mr. Doolittle, of Wisconsin, followed in support of the bill. He moved to amend the amendment, so as to make it read:

And be it further enacted. That the sum of $100,000, out of any money in the Treasury not otherwise appropriated, shall be expended under the direction of the President of the United States to aid in the colonization and settlement of such free people of African descent now residing in said District as may desire to emigrate to the republics of Hayti or Liberia, or such other country beyond the limits of the United States as the President may determine.

He said: "The negro question involves more than the question of voluntary or involuntary servitude. I am not satisfied without an answer to the whole question. Jefferson gives it in these words:

Nothing is more certainly written in the book of fate than that these people are to be free; nor is it less certain that the two races, equally free, cannot live in the same Government. Nature," habit, and opinion have drawn indelible lines of distinction between them. It is still in our power to direct the process of emancipation and deportation peaceably, and in such slow degree as that the evil will wear off insensibly, and their places be, pari passu, filled up with free white laborers. If, on the contrary, it is left to force itself on, human nature must shudder at the prospects held up.

"Mr. President, in the temperate zone, the Caucasian race has always been dominant, and always will be. In the torrid zone the colored man dominates, and will forever. No laws of Congress or any other legislative power can reverse this great law stamped upon the earth and upon the constitution of man. Poets may dream otherwise; unwise philanthropy may hope to make it otherwise; but it cannot be done. The Creator has written it upon the earth and upon the race."

Mr. Doolittle then examined the condition of the West India Islands—the relations of the white and black races—the solution of the negro question, and said: "Mr. President, while I would connect the action of this Government in emancipating the slaves in this District with the idea of colonization, I would make it, not compulsory, but voluntary emigration. I would embrace those only who by their own free consent are willing to go from this District to Hayti, Liberia, or elsewhere. I am not in favor of the amendment as proposed by the Senator from Kentucky (Mr. Davis), to compel the colonization of all who may be set free under this bill. Upon this point I desire not to be misunderstood. I would make this colonization voluntary; upon their own free consent. I would hold out inducements which might lead them to go, and not compel them by force of arms. For that purpose I have offered my amendment."

Mr. Willey, of Virginia, followed in opposition to the bill, saying: "Mr. President, the question which I wish to discuss is: Is it wise or expedient, under existing circumstances, and at this time, to pass this bill? Sir, this bill is a part of a series of measures, already initiated, all looking to the same ultimate result—the universal abolition of slavery by Congress. This bill and the bill of the Senator from Illinois (Mr. Trumbull), for the confiscation of property in the seceded States, and the resolutions introduced by the Senator from Massachusetts (Mr. Sumner) some weeks ago, contemplate the same purpose—unconditional, immediate, and universal emancipation. It is to the consequences which must inevitably result from these measures, if adopted, to which I solicit the attention of the Senate. These consequences, in my judgment, involve the lives of thousands of my fellow citizens, and the happiness of all the loyal people of all the border slaveholding States. Perhaps I should be justified in saying that they involved in most serious peril the restoration of the Union and the Constitution.

"Sir, the agitation of these questions under existing circumstances, must be positively mischievous. Will it not create strife and divisions here? Will it not disturb the country? Above all, will it not afford aid and comfort to the enemy? I am sure it will. It will be used by the leaders of the rebellion to 'fire the Southern heart.' The people of the South have been taught to believe that the object and design of the Republican party was to abolish slavery in all the States. These propositions will be seized upon as evidence of this intention. They will say, "Look at their unconstitutional confiscation laws, making no safe or practical discrimination between Union men and secessionists. Look at the bill to abolish slavery in the District of Columbia; it is a stepping stone to further encroachments.' Especially will they point to the sweeping resolutions of the great apostle of abolition, the Senator from Massachusetts (Mr. Sumner), which, by one dash of the pen, deprives every Southern man Page 335 of his slaves. This is what the rebel leaders will delight to say, and delight to have so much reason to say."

The amendments were rejected, and the original bill then considered.

Mr. Davis, of Kentucky, in opposition to the bill said: "I shall now assume the position that the Congress of the United States have no power to emancipate a slave anywhere in a State or in the District of Columbia. The great rights which are secured by the Constitution to the citizen and to the States, and the great restrictions upon the powers of Congress by the Constitution also limit and restrict the grant of legislative power to Congress in the District of Columbia. That is my proposition. It is one founded in the Constitution itself. It is immovably moored in that instrument, and no lawyer can tear it from its firm anchorage. It is upon that position that I now propose to draw my deduction, and it is this: I say that all the great rights secured by the Constitution to the citizen exist in the District of Columbia as they exist in all the States of the Union, notwithstanding the clause in the Constitution which gives Congress the exclusive power of legislation in the District. That exclusive power means necessarily in subordination to and within all the prohibitions and the rights made and secured by the Constitution itself. What is one of those rights secured universally in this District as well as in the States? It is the right of property. Is not the right to the writ of habeas corpus, the right to trial by jury, the right to freedom of conscience, the freedom of speech, and the liberty of the press guaranteed to the people of the District of Columbia as inalienably, as inviolably, as inextricably, as they are guaranteed to the citizens of any of the States? I say they are; and I say among other rights that are guaranteed to the people of the District of Columbia, and to every citizen of the United States, is the right of property. He cannot be deprived of his property except in the mode prescribed and authorized by the Constitution of the United States. I will now read that clause in the amendments to the Constitution:

No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

"I concede that whenever it is necessary, in the administration of the Government, in carrying forward the great business of the Government of the United States, that the Government should have private property for public use, it has the right to take that private property on the condition of making compensation for it, and upon no other condition. The point in that provision of the Constitution is this, and I ask the attention of my honorable friend from Maine to it: the Government of the United States cannot take the citizen's property capriciously; it cannot take it without a purpose, even by making just compensation for it; it cannot take it to burn it, if it may be consumed, or to destroy it; it may take it for public use. This is the simple and sole condition upon which the inviolability of private property can be broken by the Government itself; it must be necessary for public use. What is use? It is employment. To use is to employ. To employ is to apply as an instrument or an agent the thing that is taken for public use; and unless in good faith and in strict truth the thing or the property is taken for public use in the sense in which I have stated it, there is no constitutional right on the part of the Government to take the property at all.

"Even if Congress had the power to emancipate slaves, I ask if that is not taking from the owners of those slaves their private property? How is that private property to be taken from them? The Constitution provides that no citizen shall be compelled in any criminal case to be a witness against himself.

Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

"This is my position: that the Congress of the United States has not the right to declare arbitrarily a mode, and arbitrarily a limit of price, even if it has the power to emancipate slaves in this District, by which theso slaves will be taken from their owners and manumitted. If the slaves are taken for the purpose of being emancipated, of being liberated, they must be taken by due process of law. What is that due process of law? It is this: just as a citizen's property of any other class or description is taken from him for any purpose of the Government, so is the negro to be taken from his owner, even conceding that Congress has the power to liberate him. You must take that slave and you must have him appraised judicially, and by a modo that is quasi judicial; you must have a court to act in the matter; you must have a court to summon a jury; you must have a court to appoint commissioners, and under the supervision and sanction of this court, this matter of valuing the property in slaves is to proceed, as it does in relation to any other property of a citizen that may be taken by the exercise of the power of Congress or of the General Government over him."


Source: The American Annual Cyclopaedia and Register of Important Events of the Year, 1861-1865, vols. 1-5. New York: Appleton & Co., 1868.