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 4

Mr. Davis then alluded to the statements of the Administration relative to the objects of the war, and read the following extract from the resolution passed at the preceding session in July, 1861:

That this war is not prosecuted upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor for the purpose of overthrowing or interfering with the rights or established institutions Page 336 of those States; bat to defend and maintain the supremacy of the Constitution and all laws made in pursuance thereof, and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; that as soon as these objects are accomplished the war ought to cease.

"Now, sir, here is my position: if yon intended to make and did make that pledge in good faith, you have no right now to enlarge the purposes of the war."

Mr. Clark: "Does the Senator understand this to be a purpose of war that we are now about?"

Mr. Davis: "Yes, sir; this is a purpose of war now. It is an entering wedge. You want to get the head in, and then you intend to push the monster through. That is what you are after. If there was to be no other movement upon slavery, we never should have heard of this bill to abolish slavery in the District of Columbia. It is extreme men that bring parties and nations to ruin. Men in a body will violate pledges that they would never dream of violating as single individuals. Here are your pledges, as strong and as emphatic as they can be made, denning the purpose for which you intended to wage the war. I say that you cannot with a due regard to your pledged word, to your faith, to your honor as men and as patriots, enlarge materially the purposes of the war. The object of such enlargement is not to limit and to spend the force of your action upon this downtrodden and oppressed District, but it is to extend your usurpations into the States. This is but a preliminary operation. You are endeavoring to experiment now how fan you can go, and how far the moderate men of your party will go with you."

Mr. Wilson, after stating the position of the slave in the District and the laws regulating his conduct, said: "Have not the American people the constitutional right to relieve themselves from the guilt and shame of upholding slavery in their national capital? Would not the exercise of that right be sanctioned by justice, humanity, and religion? Does the Senator suppose that wo, the representatives of American freemen, will cowardly shrink from the performance of the duties of the hour before these dogmatic avowals of what the men and the women of the slaveholding States will do? Sir, I tell the Senator from Kentucky that the day has passed by in the Senate of the United States for intimidation, threat, or menace, from the champions of slavery."

Mr. Kennedy, of Maryland, followed in opposition to the bill. He said: "I shall content myself with the simple purpose, in a very few words, of entering the most solemn protest, in the name of my State, against the adoption of this measure which I have ever yet made as one of the representatives of her sovereignty on this floor. The State of Maryland is most deeply interested in the result of this unhappy and unnatural war. All of her prosperity, present and to come; all of her historical renown in the past, connected with her bloody struggles for this Union, all of her dignity as a State, is involved in the policy by which this contest is to be conducted and finally settled.

"I earnestly hope I may be mistaken in the purposes and power of the majority to pass this measure; but if otherwise, then, sir, it no longer remains to her, either by argument or protest, to obtain her rights as a sovereign State, or just consideration for her dignity or interests as an equal in this Union under the Constitution. To show that the faith of this Government has long been pledged to the States of Maryland and Virginia not to interfere with slavery in this District, I will take the liberty of presenting to the Senate the views of an able committee of the House of Representatives presented in 1836, a committee composed of distinguished gentlemen from every section of the country."

From this report he read the following and other extracts:

Your committee must go further, and express their full conviction that any interference by Congress with the private interests or rights of the citizens of this District, without their consent, would be a breach of the faith reposed in the Federal Government by the States that made the cession, and as violent an infraction of private rights as it would have been if those States themselves, supposing their jurisdiction had remained unimpaired over their territory, had abolished slavery within those portions of their respective limits, and had continued its existence upon its present basis in every other portion of them. And surely there is no citizen in any quarter of the country, who has the smallest regard for our laws and institutions, State Slid national, or for equal justice, and an equality of rights and privileges among citizens entitled to it, who would attempt to justify such an outrage on the part of those States. The question then is, are the citizens of the District desirous of a change themselves? Has any request or movement been made by them that would justify an interference with their private rights on the part of Congress? None, whatever!

He also said: "In further support of these views, I beg to refer to the resolutions of Mr. Clay, which were adopted by the Senate in 1838:

Resolved, That when the District of Columbia was ceded by the States of Virginia and Maryland to the United States, domestic slavery existed in both of those States, including the ceded territory, and that, as it still continues in both of them, it could not be abolished within the District without a violation of that good faith which was implied in the session, and in the acceptance of the territory, nor, unless compensation were made to the proprietors of slaves, without a manifest infringement of an amendment to the Constitution of the United States, nor without exciting a degree of just alarm and apprehension in the States recognizing slavery, far transcending in mischievous tendency any possible benefit which could be accomplished by the abolition.

Resolved, therefore, That it is the deliberate judgment of the Senate, that the institution of domestic slavery ought not to be abolished within the District of Columbia; and it earnestly hopes that all sincere friends of the Union and of harmony and general tranquillity, will cease to agitate this disturbing question.

Mr. Saulsbury, of Delaware, offered the following amendment:

And he it further enacted. That the said persons liberated under this act shall, within thirty days after the passage of the same, be removed at the expense of the Federal Government into the States of Maine, New Page 337 Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New York, Pennsylvania, New Jersey, Ohio, Indiana, Illinois, Michigan, Iowa, Wisconsin, Minnesota, Kansas, Oregon, and California, and that said persons shall be distributed to and among the said States pro rata according to the population of the same.

He said: "While I speak in support of that amendment, I will simply say, to be frank with the Senate, that I intend to vote against the bill in any shape in which it can be presented. I offer this amendment, however, upon the principle adopted by the Senator from Kentucky (Mr. Davis) yesterday, of perfecting the bill, as far as I can, before the final vote; and I do think that if gentlemen who are not interested in this question will persist in freeing the slaves in this District or elsewhere, they ought to be willing to take them wrong themselves; and they ought not to throw this class of persons, idle and vicious and worthless, as we know they will be, upon this District, which already, I am told, has a population of eleven thousand free negroes. If they should persist in setting the additional number of three thousand free, the nineteen Free States ought certainly, having so few among themselves, to be willing to share the burden with the people of this District, by dividing the freed slaves among themselves, still leaving this District with the burden of eleven thousand free persons of color. It would be one of the most sublime examples of philanthropy I have ever seen. By your fruits you shall be known. If it is a spirit of philanthropy and a love of freedom that prompts you, gentlemen, to set these threo thousand slaves in the District of Columbia free; render that philanthropy and that love of freedom sublime in the sight of all human kind, by taking into your own embrace, in your own midst, the slaves thus liberated. Prove that you are sincere."

Mr. Wilkinson, of Minnesota, advocated the passage of the bill, saying: "Believing, as I do, that human slavery is the great sin of this country, that it is in violation of every principle of justice and of truth, that its influence upon this country, and upon the world, has a tendency alike to encourage everything that is evil, and to repress everything that is good in the State; that its evil influences are visited alike upon the master and the slave; that it affects us for evil in our political as well as in our social relations, and that it is the primary cause of the wicked rebellion which has risen up against the constitutional authorities of the Government, I feel bound, by every vote which I am called upon to give, and by every word which I may utter upon this question, to do everything in my power toward its final extinction; and, so far as my influence goes, to blot out the lost remains of slavery upon this continent.

"Thus believing, I cannot place expediency in the scales against justice, nor shall I fail to perform a simple duty for fear of the consequences which may result from such action."

Mr. Sumner, of Massachusetts, next took the floor, saying: "It is surely enough for the present to consider slavery at the national capital; and here we are met by two inquiries so frankly addressed to the Senate by the clearheaded Senator from Kansas (Mr. Pomeroy): first, has slavery any constitutional existence at the national capital? and, secondly, shall money be paid to secure its abolition? The answer to these two inquiries will make our duty clear. If slavery has no constitutional existence here, then more than ever is Congress bound to interfere, even with money; for the scandal must be peremptorily stopped, without any postponement or any consultation of the people on a point which is not within their power.

It may be said that, whether slavery be constitutional or not, nevertheless it exists, and therefore this inquiry is superfluous. True, it exists as a monstrous fact; but it is none the less important to consider its origin, that we may understand how, assuming the form of law, it was able to shelter itself beneath the protecting shield of the Constitution. And when we shall see clearly that it is without any such just protection, that the low which declares it is baseless, and that in all its pretensions it is essentially and utterly brutal and unnatural, we shall have less consideration for the slave tyranny, which, in satisfied pride, has thus far—not without compunction at different moments—ruled the national capital, reducing all things here—public opinion, social life, and even the administration of justice—to its own degraded standard, so as to fulfil the curious words of an old English poet:

      It serves, yet reignes as King;

It lives, yet ' s death: it pleases full of paine. Monster! ah, who, who can thy beeing faigne ? Thou shapelesse shape, live death, paine pleasing, servile reigne.

"It is true, there can be no such thing as property in man; and here I begin to answer the questions propounded by the Senator from Kentucky (Mr. Davis). If this pretension is recognized anywhere, it is only another instance of the influence of custom, which is so powerful as to render the idolater insensible to the wickedness of idolatry, and the cannibal insensible to the brutality of cannibalism. To argue against such a pretension seems to be vain; for the pretension exists in open defiance of reason as well as of humanity. It will ^not yield to argument; nor will it yield to persuasion. It must be encountered by authority. It was not the planters in the British islands or in the French islands who organized emancipation, but the distant Governments across the sea, for removed from the local prejudices, who at last forbade the outrage. Had these planters been left to themselves, they would have clung to this pretension as men among us still cling to it. Of course, in making this declaration against the idea of property in man, I say nothing new. An honored predecessor of the Senator from Maryland (Mr. Kennedy), whose fame as a statesman was eclipsed, perhaps, by Page 338 his more remarkable fame as a lawyer—I mean "William Pinkney, and it is among the recollections of my youth that I heard Chief Justice Marshall call him the undoubted head of the American bar—in a speech before the Maryland House of Delegates, spoke as statesman and lawyer when he said:

Sir, by the eternal principles of natural justice no master in the State has a right to hold his slaves in bondage for a single hour.

"And Henry Brougham spoke not only aa statesman and lawyer, but as orator also, when, in the British Parliament, he uttered these memorable words:

Tell me not of rights—talk not of the property of the planter in his slaves. I deny the right—1 acknowledge not the property. The principles, the feelings of our common nature, rise in rebellion against it. Be the appeal made to the understanding or to the heart, the sentence is the same that rejects it. In vain you tell me of laws that sanction such a claim. There is a law above all the enactments of human codes—the same throughout the world, the same in all times: it is the law written by the finger of God on the heart of man; and by that law, unchangeable and eternal, while men despise fraud and loathe rapine and abhor blood they will reject with indignation the wild and guilty phantasy that man can hold property in man.

"Slavery exists at the national capital absolutely without support of any kind in the Constitution; and here again I answer the Senator from Kentucky (Mr. Davis). Nor is this all. Situated within the exclusive jurisdiction of the Constitution, where State rights cannot prevail, it exists in open defiance of most cherished principles. Let the Constitution be rightly interpreted by a just tribunal, and slavery must cease here at once. The decision of a court would be as potent as an act of Congress."

Mr. Sumner then proceeded to consider " how completely slavery had installed itself here (in this District) in utter disregard of the Constitution, and compelled Congress ignobly to do its bidding."

A historical statement was made of the proceedings which led to the location of the capital, in illustration of this position, and he concluded this portion of his remarks by saying: "Bringing the argument together, the conclusion may be briefly stated. The five-headed barbarism of slavery, beginning in violence, can have no legal or constitutional existence, unless through positive words expressly authorizing it. As no such positive words can be found in the Constitution, all legislation by Congress supporting slavery must be unconstitutional and void, while it is made still further impossible by positive words of prohibition guarding the liberty of every person within the exclusive jurisdiction of Congress."

Advocating the appropriation of money for compensation to the owners, he said, in conclusion: "Amidst all present solicitudes, the future cannot be doubtful. At the national capital slavery will give way to freedom; but the good work will not stop here. It must proceed. What God and nature decree rebellion cannot arrest. And as the whole, widespread tyranny begins to tumble, then, above the din of battle, sounding from the sea and echoing along the land, above even the exultations of victory on well-fought fields, will ascend voices of gladness and benediction, swelling from generous hearts wherever civilization bears sway, to commemorate a sacred triumph, whose trophies, instead of tattered banners, will be ransomed slaves."

Mr. Davis, of Kentucky, followed and examined the entire constitutional question relative to the bill. As his remarks present the views and principles upon which the Government has been hitherto administered, they afford a criterion by which every one may judge of the extent of the great political change which the country and government are now undergoing.

"Mr. President, I will say a few words upon the subject of the power which Congress claims to exercise over this question. It seems to me that the reason why this power has been so uniformly and so generally conceded is that the question of power has never been carefully examined. I laid down a few days ago this proposition—and I defy the Senator from Maine or the Senator from New Hampshire to refute it—that there is no positive written law which establishes property in a slave or in land or in a horse or in any other subject of property; that the law upon that subject arises from the uniform custom and usage of the civilized world. And I laid down this further proposition; that my legal right to my slave was precisely of the same nature and character with my legal right to my land; and that if I were a citizen of the District of Columbia, Congress would have no more right to deprive me of the one subject of property than of the other.

"Both the gentlemen deny that property can exist in a human being. That is their broad proposition. Upon that point I am totally at issue with them, and I am sustained by the Constitution of the United States, and by the judgment of the Supreme Court and of all the circuit judges of the United States wherever the question has been mooted and decided. The Senator from New Hampshire now concedes explicitly that Congress has no power to take from the people of the District their houses or their lands, or any other property but their slaves, as I understand him. I ask the gentleman for the law or the provision of the Constitution which forms the interdict, and he explicitly gives it to me. It is the provision that no citizen's property shall be taken for public use except by due process of law and upon just compensation. I maintain that that prohibition on the power of Congress applies as legitimately and with as much truth and logic to slaves as it does to real estate.

"My proposition a few days ago was that slavery was general, that the abolition of slavery was local; and that proposition I sustained by reading from the opinion of Chief Justice Marshall in the case of the Antelope, and he Page 339 sustained the opinion which he rendered in that case by quoting from the decrees of Lord Stowell, of the admiralty court of England, who was a greater judge than ever Chief Justice Mansfield was. They both decide this principle broadly and without any sort of reservation or condition, that slavery and the slave trade existed by public national law."

Mr. Collamer: "The gentleman will permit me to say that I take issue with him on that point. It is acknowledged by international law only in such nations as recognize it."

Mr. Davis: "No, sir; my honorable friend is mistaken there, and I will tell him wherein, in my judgment, he is mistaken. The Supreme Court of the United States, in this decision rendered by Chief Justice Marshall, decided that slavery and the slave trade existed by national law, and that this national law may be repealed locally by the proper legislation of every country upon the earth; and that this national law, recognizing slavery and the slave trade, exists in every country save in those countries where, by positive enactment, it has been repealed."

Mr. Collamer: "That, to my mind, amounts to precisely the same proposition that I stated."

Mr. Davis: "No, sir. I will read from the opinion in the case of the Antelope again, and I will road from several other opinions. I know that gentlemen are becoming impatient for the sacrifice; but here, sir, I stand up in my place in the Senate Chamber of the United States, and I maintain the rights of a people who have no self-government, and who have no representation in this chamber; and although gentlemen may be restive under the exercise of this right of mine, which I claim, to appear here in defence of the rights of property of the people of this District, they will have to submit to that restiveness. In the case of the Antelope (10 Wheaton's Reports, 120), the court say:

The question whether the slave trade is prohibited by the laws of nations has been seriously propounded, and both the affirmative and negative of the proposition hare been maintained with equal earnestness.

That it is contrary to the law of nature, will scarcely be denied.

"I never denied it myself; but I say that the law created by the usages of mankind overrules the law of nature in relation to this subject. What is the law of nature? My honorable friend from Vermont might have one code of the law of nature, and other gentlemen might have other codes of the law of nature. "When this traffic was indulged in by the civilized world, and the States of Massachusetts and Rhode Island were inundating the colonies with slaves torn from Africa, and selling them for a price, what was the law of nature then in Massachusetts that indulged such a traffic; and what was the law of nature then in the civilized world? What is the law of nature now in Turkey and in China? What was the law of nature in Europe two centuries ago? What is the law of nature in Utah? The law of nature varies with the altered condition of civilization and the condition of the world; and what is the law of nature in one age and in one country and in one generation, is not the law of nature universally. It is because of this wont of uniformity in the law of nature, and because there is no common tribunal to ascertain and define and establish what the law of nature is, that it has been uniformly decreed to be subservient to the positive laws of any country, and to the laws of nations, as established upon the usages of the civilized world. But I will read:

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished.

"That was once a principle of the law of nations as recognized by the whole world. I admit that that principle has been exploded, and properly exploded, by the Christian civilization of this age.

This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all, must be the law of all.

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.

"What does Chief Justice Marshall here decide? That although slavery has its origin in force and is against the law of nature, yet as it has been universally recognized by the civilized world, it exists and is acknowledged by the laws of nations.

Throughout Christendom this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, fo far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who arc its victims? "Here is a principle to which the honorable Senator from Maine referred:

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favor of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries it was carried on without opposition and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished either personally or by deprivation of property.

Page 340 "Now, I ask the attention of the Senator from Vermont to this point in the decision:

In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right to be lost? Each may renounce it for its own people; but can this renunciation affect others? No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose Governments have not forbidden it.—10 Wheaton, pp. 120-122.

"There is the principle."

Mr. Collamer: "The gentleman has a peculiar way of reading that decision."

Mr. Davis: "I read it according to the letter."

Mr. Collamer: "Gentlemen who are tenacious about that particular form of reading, are utterly incapable of being answered to their satisfaction. I cannot, by any version I can give it, satisfy the gentleman; but every lawyer who reads that case and other cases cognate to the same subject in other books, understands it thus: when a question comes before a court in rotation to a prize of a vessel engaged in the slave trade, upon the broad law of nations they cannot declare it a prize if the nation to which the vessel belongs make that business legitimate. That is all there is in that decision. It is that the law of nations recognizes slavery as existing and lawful in those nations that make it so; and that is all."

Mr. Davis: "There is a little more, Mr. President, notwithstanding the gentleman's position. It decides that the slave trade was once practised by all the civilized nations of the world, and it decides, furthermore, that it cannot be restricted except by positive legislation of the countries that choose to restrict it."

Mr. Collamer: "Will the gentleman permit me one moment on that point? When it was universal, it was because it was made so by the acts of the several nations themselves. It was not a law of nations; it was the law of each nation, and therefore of all; but it was a law for each nation that made it, not an international law; and the very fact that some nations may repeal that law, and prevent its being operative on them, while others may retain it and have it operative on them, shows that it is not a part of the law of nations, for that law cannot be changed in that way. Another thing: it never was a law of nature. The laws of nature can never change, until nature and nature's God change."

Mr. Davis: "The gentleman is still mistaken. I admit that the law of nations was made by the practice of nations, and that is what this opinion says. I will read an opinion directly that will show it conclusively—an opinion of Judge McLean himself. Neither the Senator from Vermont nor any other Senator here can find any positive express law of any nation upon the earth sanctioning the slave trade, except the Constitution of the United States, which continued the traffic until the year 1808."

Mr. Collamer: "Allow me to say to the gentleman that on that point I take distinct issue with him. The Constitution never continued the slave trade one day. It merely said that Congress should not interfere with the importation or immigration of such persons as the States might think proper to admit until after a certain time."

Mr. Davis: "The Senator from Vermont has informed me that he cannot convince me. I agree with him in that proposition; and there is another proposition on which there is even less doubt than on that in my mind, and that is that I cannot convince him. Therefore I will proceed with my speech as though my honorable friend was not a hearer at all.

"The Supreme Court of the United States, in the case of the Antelope, laid down the doctrine and the principle that the law which regulates the slave trade and establishes it as a legal traffic arises from custom and usage alone, not from positive enactment; and further, that the law of nations recognizing the validity of the slave trade once existed among all the civilized nations of the world. France had colonies in the West India Islands; England had colonies there; so had Spain, Portugal, Denmark, Sweden, Holland; and each one of those nations was engaged in the slave trade. Their usage for two centuries, according to the language of this decision, established the slave trade as a legal traffic. It existed, not by positive law, but by usage and custom conformed to by all the civilized nations of the world; and having that authority and that extent of existence, the only way in which it ceased to exist anywhere in any of the countries of the earth, was by positive local prohibition. I believe that Brazil still continues the trade. By what authority? By the law of nations. So far as any nation has not by its own positive legislation, or by its treaty stipulations, prohibited the slave trade, it still exists in that nation, and with its people and subjects, as a legitimate trade sanctioned by the law of nations. The court say:

No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, con be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations, and this traffic remains lawful to those whose Governments have not forbidden it.

"Suppose the United States Government had never made the slave trade piracy, would it not still exist as a legitimate trade to the people of the United States, in which they might enter?

Page 341 More certainly. The Supreme Court have decided this principle again and again. It is true that where a nation, either by its positive enactments or by its treaty stipulations, proscribes the slave trade, it is not lawful for the subjects or people of that State or nation to enter into that trade; but that constitutes the exception. This cose just as explicitly and as undeniably establishes the position that if a single nation upon earth stands out, and fails or refuses by its legislation or by its treaty engagements to proscribe the slave trade, the slave trade still exists in relation to that nation as a legitimate traffic. So much for the decision in the case of the Antelope.

"Now, sir, I will read another authority, and it is the authority of the judge dwelt upon with so much pleasure and nigh approval by the honorable Senator from Massachusetts (Mr. Sumner) the other day—Judge McLean. In the case of Henry Miller w. George McQuerry (5th McLean's Reports, p. 472), he said:

No proof, it is contended, has been offered to show that Kentucky is a State in which slavery is authorized by law. And a discussion in the Senate of the United States is referred to, in which certain Senators declared there was no law in the South expressly establishing slavery. It is with regret that I hear this argument relied on in this case. It was used by gentlemen of the South to justify the introduction of slavery into our Territories without the authority of law. In Groves vs. Slaughter, a Mississippi case, reported in 15 Peter’s Reports, 450, the Supreme Court of the United States declared that slavery was local, and that it could not exist without the authority of law; that it was a municipal regulation.

"I observe that gentlemen smile at this quotation. Let them wait a moment and they will sec that it is explained, and it is shown that the position here quoted is not the true position. Slavery is not a municipal regulation, and the learned judge shows it in this very opinion, as you will see presently. What is a municipal regulation? It is a regulation that is made by local, civil law. Here is the slave trade, not founded, not created, not having its origin or sanction in local law at all, but by the universal custom and usages of the civilized world, as decided in the case of the Antelope, and as this learned judge himself recognizes:

Whether this law was founded upon usage, or express enactment, is of no importance. Usage of long continuance, so long that the memory of man runneth not to the contrary, has the force of law. It arises from nonrecognized rights, contravened by no legislative action.

"That is the whole case. Usage makes national law, usage makes public law; that establishes in what subjects property exists, and establishes what is legitimate trade among the nations of the earth. This opinion so decides, and it decides that when usage has established these principles they cannot be abolished or varied or modified, except by legislative enactment.

It arises from long-recognized rights, contravened bv no legislative action. This is the source of many of the principles of the common law. And this for a century or more may constitute slavery, though it be opposed as it is to all the principles of the common law of England. I speak of African slavery.

"The same opinion continues:

But such a law can only acquire potency by long usage. Now, it may be admitted that in some of the Southern States, perhaps in all of them, there cannot be found a statute which contains the words: "And be it enacted, that slavery shall exist."

"That is a historical and a legal fact. So far as I know or have read—and I admit that my reading has been very limited compared with that of the learned gentleman from Massachusetts—there is not a positive written law in any of the States of Europe that ever indulged in this traffic, sanctioning and legalizing it. That law which most directly comes up to the point of establishing the slave trade is found in the Constitution of the United States which permitted its continuance until 1808, and that at the instance of Massachusetts and other Northern States. They were sustained in that action by Georgia, South Carolina, and North Carolina; Virginia, Pennsylvania, and New Jersey went for the immediate abolition of the slave trade, and it would have been abolished at the time of the adoption of the Constitution by a provision to take immediate effect, if it had not been for the resistance and the opposition made to it by South Carolina, North Carolina, and Georgia, and Massachusetts and Connecticut and some of the other Northern States. Judge McLean in this decision says:

Now, it may be admitted that, in some of the Southern States, perhaps in all of them, there cannot be found a statute which contains the words: "And be it enacted that slavery shall exist:" and this was what was denied in the Senate. But this does not shake the decision of the Supreme Court above referred to. Usage of great antiquity acquires the force of law. The denial therefore that slavery existed by virtue of an express law, or by statute law, which was intended to be denied, was no denial at all.

"That is what Judge McLean decided. It was a case of this character: a slave had eloped from the State of Kentucky; there were certain citizens of the State of Ohio who gave aid to that slave in making his escape to Canada; they were sued under the law of Congress for giving that aid, and they were held to pay damages for having aided the slave to escape. The counsel for the defence assumed as one of the grounds of defence that there was no positive law, no statute enacted in Kentucky, at least none shown upon the trial, which established slavery. Judge McLean conceded that to be the fact; but instead of that being a denial that the right of property existed in the claimant, he expressly stated in words that it was no denial at all. In the case of Jones v. Vanzandt (2 McLean, 602) the same learned judge said:

In our colonial governments, and under the confederation, no general provision existed for the surrender of slaves. From our earliest history, it appears that slavery existed in all the colonies.

"How did it exist in all the colonies? Not by positive enactment, not by any positive law; it existed only by public, national law, based upon the usage of the civilized world, and the Page 342 engaging in the slave trade of the whole civilized world. That is the origin and foundation of the slave trade; that is the origin and foundation of the property of the owner of a slave to that slave; and Judge McLean decided in this case that, for the defence to assume that there was no statute, no positive law giving to the claimant of a slave a right of property in the slave, was no denial whatever of his right of property. In the case I last referred to—Jones v. Vanzandt—Judge McLean said:

From our earliest history it appears that slavery existed in all the colonies; at the adoption of the Federal Constitution it was tolerated in most of the States.

Property, real or personal, takes its designation from the laws of the States. It was not the object of the Federal Government to regulate property. A Federal Government was organized by conferring on it certain delegated powers, and by imposing certain restrictions on the States. Among these restrictions it is provided that no State shall impair the obligation of the contract, nor liberate a person who is held to labor in another State from which he escaped. In this form the Constitution protects contracts and the right of the master, but it originates neither.

"There is a decision in which the right of the master to his slave is expressly recognized, and it is recognized to the form and extent of giving a judgment for a large sum of money against a citizen of Ohio who had aided a slave to make his escape; and yet the honorable Senator from New Hampshire and the honorable Senator from Maine assume that there can be no property in slaves.

"Well, sir, I have got some more law upon that subject. We are all familiar with the provision of the Constitution that authorized the reclamation of fugitive slaves from the States. We are familiar with the provision that establishes the ratio of representation on the basis of three fifths of the slaves, including all the white population and the free population. We are all familiar with the provision that bases direct taxation on the same basis of population. We are all familiar with the provision that continued the slave trade up to 1808. What did Congress do? In 1793 it passed a fugitive slave law to authorize the owners of slaves to reclaim them. That law was decided by the Supreme Court to be constitutional. Now, sir, if property cannot exist in a slave when a slave escaped from the State of Kentucky and went to Ohio, a Free State, what principle of law, or of reason, or of common sense would authorize the courts of the country to render a judgment in favor of the claimant, the owner of that slave, who pursued him into the State, against a man who aided in his escape 1 In 1850 another and a more efficient fugitive slave law was passed. The constitutionality of the previous fugitive slave law of 1793 came up in the case of Prigg against the State of Pennsylvania, in which the opinion of the court was rendered by Justice Story, and the other judges gave their opinions seriatim. Every judge of the Supreme Court decided that law to be constitutional. It would be absurd and nonsensical for the court to decide that a law is constitutional for pursuing a subject of property in a State in which subject the right of property cannot possibly exist! I will read a clause from that decision. The provision of the Constitution is in these words:

No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

"I admit that the Legislatures may regulate the property of the owner of a slave in the slave. I admit that the Constitution treats slaves as persons as well as property; that it is murder, in my State, to kill a slave; that if a slave is treated with inhumanity, the laws provide a mode by which the slave may be taken from the inhuman owner and sold; but the law may make the same provisions in regard to horses and stock. If horses are treated with cruelty and brutality by the owners, the Legislatures of the State in which such owners live may regulate the Usage which the owner may make of his horse, and compel him to observe the laws of humanity and mercy in the use even of a dumb beast, as well as of a slave. That only proves that the law makes different regulations in relation to different subjects of property, according to their nature. The law may regulate the use which the owner of real estate may make of his real estate in towns, and does. He cannot establish a potter's field upon his lot; he cannot, I believe, in my State, treat his beasts, horses at least, with barbarity. If he does, he is subject to a penal law that fines him. He cannot murder his slave. He holds possession of the slave, and has the right to the service of the slave, and that is all the property that could exist practically in a slave. A man cannot kill a slave, and barbecue him, and eat him. He would not be disposed to do that. These laws do not interfere with the just use of slave property at all. They permit to the owner of the slave every free and proper use of the slave of which that slave is capable, notwithstanding their object is to preserve the laws of humanity and mercy in the ownership of the slave; and so of a horse. Bat because the law makes different regulations in relation to different species of property, according to the nature and essence of that property, it does not at all prove that the property in all the classes has the same origin. That origin, as I said before, is in universal usage and custom."

Mr. Howard: "I would ask the gentleman from Kentucky, with his permission, whether all property has its origin in force? Slavery certainly has."

Mr. Davis: "Property in a horse has its origin in force. The horse has to be subdued, broken, and reduced to obedience to the laws and usages of his owner; and so of many other things. There is property in wild beasts, in the lion that once prowled in the forest. In many Page 343 articles property can exist only by force, and does exist by force.

"But that is immaterial to the issue. Here is first the Constitution declaring, and then here are the courts in all their judgments in which the question came up, deciding that property does exist in slaves, although it has its origin in force and against natural law. Let me read from the decision in the case of Prigg vs. Pennsylvania. After quoting the clause of the Constitution for the rendition of fugitive slaves, the court say:

The last clause is that, the true interpretation whereof is directly in judgment before us. Historically, it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave holding States; ana, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of glares.— 16 Peter’s Reports, p. 611.

"Could anything be more clear or specific? Here the right of property of the owner in the slave is fully recognized bv the decision of the Supreme Court. That decision was rendered by Mr. Justice Story, and all the other members of the court sanctioned and approved the same principle. He states it as a matter of history that the incorporation of the article recognizing the full right of the owners of slaves to that property and providing that if they escaped and went into other States the laws of those other States should in no degree and to no extent interfere with the right of the owner to the slave, was the essential condition upon which the Constitution was formed and without which it never would have been formed. Any gentleman who reads Mr. Madison's Papers, in which he gives the propositions and debates of the convention upon the subject of slavery, will, if his mind is not wholly obfuscated "by prejudice, give immediate consent to the proposition here laid down by Judge Story. I could refer to a dozen cases decided by the Supreme Court of the United States and by the circuit court of Ohio, of which Judge McLean was presiding judge, recognizing in the most distinct and unqualified terms the right of property of the owner of a slave. There have been various cases tried in that State and in Indiana, and in Michigan, in which all these questions came up, and in every solitary case it was urged in the clearest and most conclusive legal logic that the right of the master to pursue his slave and take him wherever he found him without committing a breach of the 'peace, was secured to him by the Constitution and by the fugitive slave law; and that if any citizen interfered with that right and aided the slave in making his escape, that citizen should respond to the claimant of the slave in the amount of the damages which he sustained by such interference. The ordinance of 1787 has a peculiar provision in relation to the reclamation of slaves. There was a slave sought to be reclaimed from Indiana in contravention to that provision—I have the case here—and Judge McLean decided explicitly that the provision of the Constitution of the United States and the fugitive slave law controlled and overruled the provision in the ordinance of 1787, and authorized the reclamation of the slaves precisely according to the letter of the Constitution and of the fugitive slave law."

The question was subsequently taken on the bill, when it was passed by the following vote:

YEAS.—Messrs. Anthony, Browning, Chandler, Clark, Collamer, Dixon, Doolittle, Fessenden, Foote, Foster, Grimes, Hale, Harlan, Harris, Howard, Howe, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts —29.

NAYS.—Messrs. Bayard, Carlile, Davis, Henderson, Kennedy. Latham, McDougall, Nesmith, Powell, Saulsbury, Stoik, Willey, Wilson of Missouri, and Wright —14.

The debate in the House on this bill was brief. Mr. Nixon, of New Jersey, Mr. Blair, of Missouri, Mr. Bingham, Mr. Piddle, of Ohio, and Mr. Crittenden, of Kentucky, were the principal speakers.

Mr. Crittenden thus expressed his views of the measure: "The immediate question before us is the abolition of slavery in the District of Columbia. That is the object proposed in the bill under consideration. It has been a question for a long time agitating the country. For the first thirty or forty years of our existence as a nation, the records of Congress bear no evidence of any such motion ever having been made, of any measure having ever been proposed for the abolition of slavery here, or to change the condition in which the Government accepted and found it. It was only, sir, when a new spirit sprung up in the land, when a new agitation commenced for the abolition of slavery generally, that this feeling concentrated, in some degree, upon the District of Columbia, and from that time down to the present, with an always persevering purpose, this measure has been pressed. It has been rejected time and again. It has been judged impolitic by our predecessors, or beyond their power. For one reason or another, Congress has always refused to act upon the subject. These are the lessons of the past. In the earliest and purest and best and palmiest days of the Republic no attempt was ever made to pass such a measure; and for the last twenty-five or thirty years it has been presented only to be rejected. The Senate of the United States has now given its sanction to the measure, and it is before you for your final consideration.

"Of all inauspicious times, it seems to me Page 344 that this is the most inauspicious for the measure which we are called upon to adopt. We are not only engaged in this tremendous war, now, I trust, coming to its end, hut we are engaged in a war founded upon the apprehension of the people that it is the intention of Congress ultimately to violate the constitutional rights of the different States in adopting or rejecting slavery as they please. It is that apprehension which has kindled this war. No one will dispute that. "Whether it was the real motive with this or that leader, or whether they had other and more traitorous views, it is not necessary to determine.

"The masses of the people, so far as they were influenced by any political considerations, were, I say, influenced to unite in this rebellion by the apprehension of such an intention on the part of Congress. I believed then, and I believe now, that they are mistaken, and that the Congress of the United States will not exercise any such unconstitutional power over them. But that was their apprehension. They are now laboring under that apprehension. Under that apprehension they have fought with fury against us. Out of that apprehension has been attempted to be deduced by the leaders of the rebellion every motive to continued resistance and to everlasting hostility to us. That is our condition now, and it is under these circumstances that this bill is introduced, and we are asked to pass it. What will be the effect of it? Will it not, in the minds of the suspicious, and even of the unspicious, strengthen an opinion that that is the purpose of Congress? If it were entirely unconnected with any question of slavery in the States, it might be of less importance; but in principle and in character it is connected with it, and it will be so considered, at any rate, by those in rebellion. It will be considered as an evidence of the general purpose and intent of Congress. I do not say that you have not the power; but would not that power be, at such a time as this, most unwisely and indiscreetly exercised. That is the point. Of all the times when an attempt was ever made to carry this measure, is not this the most inauspicious? Is it not a time when the measure is most likely to produce danger and mischief to the country at large? So it seems to me. "But are the views of gentlemen limited merely to giving to the slaves of this District the benefit of the law? Those who urge it will have more candor than to say so. They do not limit their views merely to the locality of this District. No, sir, it is the commencement of a great system; it is the beginning, not the end. You try your power here. You execute it here. This thing done, it opens the prospect of further action, and of further disturbance of the community. Having done it here, where it involves, perhaps, in the judgment of men, nothing but a mere question of good faith, the measure can be effected elsewhere, where it will involve a question scarcely less vital—a question of constitutional power, You are trying your strength now. You are practising for the greater combat. From this ground, occupied as a sort of camp for the purpose, it is suspected you intend to make war on the same institution in the States.

"It seems to me, Mr. Chairman, that that apprehension will be increased by another tiling, by another consideration. This measure might be of itself of but little significance, if it could be entirely limited to the District of Columbia. If that was to be ' the be-all and the end-all' of it, it might not be a thing worth debating. But, sir, we cannot avoid connecting it with the whole system that has been presented to us here for the abolition of slavery elsewhere. There are now on our table from ten to twenty propositions of one sort or another, all contemplating the confiscation, or, in terms, the liberation of the slaves of the people of the United States. This is one of them. The public mind cannot avoid making the connection. This is but one link in the chain, and a small one; but it is a link in the mighty chain of measures which are in progress here now. It is that which gives it its most disastrous effect. Is there not, then, danger that we create a feeling of apprehension which will disturb our country—to what extent we cannot imagine? The weary rebels, who are now fainting under the defeats which our brave army has inflicted on them, will feel a new desperation with every new assurance that peace is to bring the spoliation of their property of all descriptions. It will inspire an instinctive spirit of hostility and desperation. That is the nature of man."

The vote was finally taken in the House on the bill with the following result:

YEAS.—Messrs. Aldrich, Alley, Arnold, S. Ashley, Babbitt, Baker, Baxter, Beaman, Bingham, Francis P. Blair, Samuel S. Blair, Blake, George H. Browne, Buffinton, Campbell, Chamberlin, Clark, Colfax, Frederick A. Conkling, Roscoe, Conkling, Covode, Davis, Dawes, Delano, Diven, Duell, Dunn, Edgerton, Edwards, Eliot, English, Fenton, Fessenden, Fisher, Franchot, Frank, Cooch, Goodwin, Granger, Haight, Hale, Hanchett, Harrison, Hickman, Hooker, Hutchins, Julian, Kelley, Francis W. Kellogg, Killinger, Lansing, Loomis, Lovejoy, McKnight, McPherson, Mitchell, Moot head, Anson P. Morrill, Justin S. Morrill, Nixon, Odell, Olin, Patton, Pike, Porter, Potter, Alexander H. Rice, John H. Rice, Riddle, Edward H. Rollins, Sargent, Sedgwick, Shanks, Sheffield, Shellabarger, Sloan, Spaulding, Stevens, Stratton, Benjamin F. Thomas, Train, Trowbridge, Van Horn, Van Valkenburg, Verree, Wallace, E. P. Walton, Washburne, Wheeler, Albert S. White, Wilson, and Windom—92.

NAYS.—Messrs. Allen, Joseph Baily, Riddle, Jacob B. Blair, William G. Brown, Casey, Crittenden, Delaplaine, Dunlap, Grider, Hall, Harding, Holman, Johnson, Knapp, Law, Lazear, Mallory, Menzies, Morris, Noble, Norton, Nugen, Pendleton, Perry, Price, James S. Rollins, Shiel, John B. Steele, William G. Steele, Francis Thomas, Vallandigham, Voorhees, Wadsworth, Ward, Chilton A. White, Wickliffe, and Wright—38.

After being signed by the President it was returned to the Senate with the following Message:

Fellow Citizens of the Senate and House of Representatives:

The act entitled " An art for the release of certain persons held to service or labor in this District of Columbia," has this day been approved and signed.

I have never doubted the constitutional authority of Congress to abolish slavery in this District; and I have ever desired to see the national capital freed from the institution in some satisfactory way. Hence there has never been in my mind any question upon the subject except the one of expediency, arising in view of all the circumstances. If there be matters within and about this act which might have taken a course or shape more satisfactory to my judgment, I do not attempt to specify them. I am gratified that the two principles of compensation and colonization are both recognized and practically applied in the act.

In the matter of compensation, it is provided that claims may be presented within ninety days from the passage of the act, " but not thereafter;" and there is no saving for minors, femmes covert, insane, or absent persons. I presume this, is an omission by mere oversight, and I recommend that it be supplied by an amendatory or supplemental act.

                                                       ABRAHAM LINCOLN.

            April 10, 1862.

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In the Senate, on the 11th of February, Mr. Sumner offered the following resolutions:

Resolutions declaratory of the relation between the United States and the territory once occupied by certain Mites, und now usurped by pretended Governments, without constitutional or legal rigid.

Whereas, certain States, rightfully belonging to the Union of the United States, have through their respective governments wickedly undertaken to abjure all those duties by which their connection with the Union was maintained; to renounce all allegiance to the Constitution; to levy war upon the national Government; and, for the consummation of this treason, have unconstitutionally and unlawfully confederated together, with the declared purpose of putting an end by force to the supremacy of the Constitution within their respective limits; and whereas this condition of insurrection, organized by pretended governments, openly exists in South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, Tennessee, and Virginia, except in Eastern Tennessee and Western Virginia, and has been declared by the President of the United States, in a proclamation duly made in conformity with an act of Congress, to exist throughout this territory, with the exceptions already named; and whereas the extensive territory, thus usurped by these pretended governments and organized into a hostile confederation, belongs to the United States, as an inseparable part thereof, under the sanctions of the Constitution, to be held in trust for the inhabitants in the present and future generations, and is so completely interlinked with the Union that it is forever dependent thereupon; and whereas the Constitution, which is the supreme law of the land, cannot be displaced in its rightful operation within this territory, but must ever continue the supreme law thereof, notwithstanding the doings of any pretended governments acting singly or in confederation, in order to put an end to its supremacy: therefore,

1. Resolved, That any vote of secession or other act by which any State may undertake to put an end to the supremacy of the Constitution within its territory is inoperative and void against the Constitution, and when sustained by force it becomes a practical abdication by the State of all rights under the Constitution, while the treason which it involves still further works an instant forfeiture of all those functions and powers essential to the continued existence of the State as a body politic, so that from that time forward the territory falls under the exclusive jurisdiction of Congress, as other territory, and the State being, according to the language of the law, felo-de-se, ceases to exist.

2. Resolved, That any combination of men assuming to act in the place of such State, and attempting to insnare or coerce the inhabitants thereof into a confederation hostile to the Union, is rebellious, treasonable, and destitute of all moral authority; and that such combination is a usurpation, incapable of any constitutional existence, and utterly lawless, so that everything dependent upon it is without constitutional or legal support.

3. Resolved, That the termination of a State under the Constitution necessarily causes the termination of those peculiar local institutions which, having no origin in the Constitution or in those natural rights which exist independent of the Constitution, are upheld by the sole and exclusive authority of the State.

4. Resolved, That slavery being a peculiar local institution, derived from local laws, without any origin in the Constitution or in natural rights, is upheld oy the sole and exclusive authority of the State, and must therefore cease to exist legally or constitutionally when the State on which it depends no longer exists; for the incident cannot survive the principal.

5. Resolved, That in the exercise of its exclusive jurisdiction over the territory once occupied by the States, it is the duty of Congress to see that the supremacy of the Constitution is maintained in its essential principles, so that everywhere in this extensive territory slavery shall cease to exist practically, as it has already ceased to exist constitutionally or legally.

6. Resolved, That any recognition of slavery in such territory, or any surrender of slaves under the pretended laws of the extinct States by any officer of the United States, civil or military, is a recognition of the pretended governments, to the exclusion of the jurisdiction of Congress under the Constitution, and is in the nature of aid and comfort to the rebellion that has been organized.

7. Resolved, That any such recognition of slavery or surrender of pretended slaves, besides being a recognition of the pretended governments, giving them aid and comfort, is a denial of the rights of persons who, by the extinction of the States, nave become free, so that, under the Constitution, they cannot again be enslaved.

8. Resolved, That allegiance from the inhabitants and protection from the Government, are corresponding obligations, dependent upon each other, so that while the allegiance of every inhabitant of this territory, without distinction of color or class, is due to the United States, and cannot in any way be defeated by the action of any pretended government, or by any pretence of property or claim to service, the corresponding obligation of protection is at the same time due by the United States to every such inhabitant, without distinction of color or class;. and it follows that inhabitants held as slaves, whose paramount allegiance is due to the United States, may justly look to the national Government for protection.

9. Resolved, That the duty directly cast upon Congress by the extinction of the States is reinforced by the positive prohibition of the Constitution that " no State shall enter into any confederation," or " without the consent of Congress keep troops or ships-of-war in time of peace or enter into any agreement or compact with another State," or "grant letters of marque and reprisal," or "coin money," or " emit bills of credit," or " without the consent of Congress lay any duties on imports and exports," all of which have been done by these pretender governments, and also by the positive injunction of the Constitution, addressed to the nation, that, " the United States shall guarantee to every State in this Union a republican form of government;" and that in pursuance of this duty cast upon Congress, and further enjoined by the Constitution, Congress will assume complete jurisdiction of such vacated territory where such unconstitutional and illegal things have been attempted, and will proceed to establish therein republican forms of government under the Constitution; and in the execution of this trust will provide carefully for the protection of all the inhabitants thereof, for the security of families, the organization of labor, Page 346 the encouragement of industry, and the welfare of society, and will in every war discharge the duties of a just, merciful, and paternal government.

Subsequently Mr. Davis, of Kentucky, submitted the following on the same subject:

1. Resolved, That the Constitution of the United States is the fundamental law of the Government, and the powers established and granted, and as pointed out and vested by it, the limitations and restrictions which it imposes upon the legislative, executive, and Judicial departments{ and the States, and the rights, privileges, and liberties which it assures to the people of the United States and the States, respectively, are fixed, permanent, and immutable through all the phases of peace and war, until changed by the power and in the mode prescribed by the Constitution itself; and they cannot be abrogated, restricted, enlarged, or differently apportioned or vested, by any other power or in any other mode.

2. Resolved, That between the Government and the citizen, the obligation of protection and obedience form mutual rights and obligations; and to enable every citizen to perform his obligations of obedience and loyalty to the Government, it should give him reasonable protection and security in such performance; and when the Government fails in that respect, for it to hold the citizen to be criminal in not performing the duties of loyalty and obedience, would be unjust, inhuman, and an outrage upon this age of Christian civilization.

3. Resolved, That if any powers of the Constitution or Government of the United States, or of the States, or any rights, privileges, immunities, and liberties of the people of the United States, or of the States, are or may hereafter be suspended by the existence of this war, or by any promulgation of martial law, or by the suspension of the writ of habeas corpus, immediately upon the termination of the war, such powers, rights, privileges, immunities, and liberties would be resumed, and would have force and effect as though they had not been suspended.

4. Resolved, That the duty of the Congress to guaranty to every State a republican form of government, to protect each of them against invasion, and, on the application of the Legislature or Executive thereof, against domestic violence; and to enforce the authority, Constitution, and laws of the United States in all the States, are constitutional obligations which abide all times and circumstances.

5. Resolved, That no State can, by any vote of secession, or by rebellion against the authority, Constitution, and laws of the United States, or by any other act, abdicate her rights and obligations under that Constitution or those laws, or absolve her people from their obedience to them, or the United States from their obligation to guaranty to such State a republican form of government, and to protect her people by causing the due enforcement within her territories of the authority, Constitution, and laws of the United States.

6. Resolved, That there cannot be any forfeiture or confiscation of the rights of person or property of any citizen of the United States who is loyal and obedient to the authority, Constitution, and laws thereof; or of any person whatsoever, unless for acts which the law has previously declared to be criminal, and for the punishment of which it has provided such forfeiture er confiscation.

7. Resolved, That it is the duty of the United States to subdue and punish the existing rebellion, by force of arms and civil trials, in the shortest possible time, and with the least cost to the people, but so decisively and thoroughly as to impress upon the present and future generations as a great truth that rebellion, except for grievous oppression of Government, will bring upon the rebels incomparably more of evil than obedience to the Constitution and the laws.

8. Resolved, That the United States Government should march their armies into all the insurgent States and promptly put down the military power which they have arrayed against it, and give protection and security to the loyal men thereof, to enable them to reconstruct their legitimate State governments, and bring them and the people back to the Union and to obedience and duty, under the Constitution and the laws of the United States, bearing the sword in one hand and the olive branch in the other; and whilst inflicting on the guilty leaders condign and exemplary punishment, granting amnesty and oblivion to the comparatively innocent masses. And if the people of any State cannot or will not reconstruct their State government and return to loyalty and duty, Congress should provide a government for such State as a territory of the United States, securing to the people thereof their appropriate constitutional rights.

No special debate took place on the first series of these resolutions. They did not meet with favor either in Congress or among the people.

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In the House, on the 10th of March, the following resolution was introduced by Mr. R. Conkling. The resolution was recommended by the President in his Message to Congress on the 6th of March. (See Public Documents.)

Resolved by the Senate and House of Representatives of the United States in Congress assembled, That the United States ought to cooperate with any State which may adopt gradual abolishment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.

A motion was made to postpone the consideration of the resolution, which was lost. Mr. "Wickliffe, of Kentucky, then took the floor. He asked: "Where, sir, do you find the power in the Constitution to appropriate the money of the people to carry out the purposes of this resolution? I made the same pertinent inquiry yesterday, and the response was that it was to be found in the preamble of the Constitution of the United States, in the words ' to provide for the general welfare.' It was alleged that it was competent for the legislative department of the Government, under these words in the preamble of the Constitution, 'to provide for the general welfare,' to do anything and everything which could be considered as promotive of the general welfare. I have spent some time in the practice of my profession; I have spent some portion of my life in the public service, especially in the halls of legislation, national and State, yet in all my life I have never before heard any lawyer or statesman claim the right or the power under the recitals in the preamble of the Constitution which is now so boldly asserted. Never before this present Congress have I heard that any such power was delegated under the phrase in the preamble in the Constitution, 'provide for the general welfare.' Under this pretence of power, Congress might think that it would be advancing the interests of the General Government to dot the whole country over with turnpikes, railroads, and bridges, or with schools and colleges, or to do anything or everything that n legislative body, unrestrained by a constitution, may do for the benefit of the people. I thought that this idea of a general-welfare power had long since been exploded by our statesmen and Page 347 jurists and courts whenever it was attempted to be asserted in the State or Federal tribunals. If you were to allow that to be taken as a granting power in the Constitution, then there is no limit to which the Federal Government or Congress may not go.

"But we are told that this measure is to be consummated under the war power. It is alleged that we are now in a state of war, and we are told that the Constitution is, therefore, to be disregarded. It is said that whatever is necessary to carry on this war to a successful conclusion, may be done with perfect freedom under the license and authority, not of the Constitution, but as a military necessity. I deny that a state of war, and especially the present state of war, enlarges the power of Congress. I believe that Congress is vested with no more power than the people have already given to it for the purpose of doing all that is necessary and proper to carry on this or any other war.

"Is it necessary and proper, while pretending to restore this Constitution all over the territory of the United States, that we should repudiate the authority and power of the Constitution? I greatly fear there are many who desire more the emancipation of the slaves of the South than the restoration of the Union of the States. If it had not been for that strong desire, I think that we would never have heard of this military-necessity power."

Mr. Diven, of New York, replied: "The distinguished gentleman from Kentucky (Mr. Wickliffe) inquired under what clause of the Constitution the power was derived by which we could enact a law providing for the payment of emancipated slaves. Sir, it seems to me it is too late to raise or discuss that question. It has long since been passed upon; and if the testimony of distinguished statesmen, lawyers, and jurors in times past will have weight with the gentleman, I can mention, I think, a number of cases in which the same question was involved and passed upon. I can remind him of an early day when a bill was introduced into this Congress, when Kentucky was represented on this floor by one of her sons of whom she is always proud, a bill was introduced making an appropriation for the establishment of an asylum for the deaf and dumb, when this very question of want of power to make such an appropriation was raised, and it was most eloquently and successfully answered by Henry Clay, in which the existence of the power in Congress to pass laws having reference to the amelioration of the condition of any portion of the people of the country was regarded as within the scope of the Constitution.

"Well, sir, from that time down to the present, the question has often been raised as to the appropriation of the money of the United States or the property of the United States for the benefit or amelioration of citizens of the United States, and it has always been acquiesced in, and appropriations have been made from time to time the purpose of which was the education or aid of the unfortunate. There are many instances which I could mention. I have not taken the pains to brief the cases; but I am reminded by my colleague of the expedition to the Dead Sea, an expedition for scientific purposes, for the increase of general knowledge. I place this resolution upon the ground that it is for the amelioration of a race of men, most unfortunately, as I think, placed upon this continent. Another gentleman mentions the case of affording relief to the starving poor of Ireland. Yes, sir, if I were to receive the suggestion of all the cases which could be mentioned in which this power has been exercised by Congress, I should occupy the time of the House for a long period. It is too late, in my judgment, to raise this question."

Mr. Fisher, of Delaware, said: "I rather view it as an olive branch of peace and harmony and good faith presented to the border States, and indeed to all the Southern States— even those which have seceded. I see in its adoption a settlement and a final settlement of all angry discussion and agitation upon this terrible question of slavery, which comes up here and in almost all public deliberative bodies in this country, like Satan among the sons of God, to afflict and destroy our happiness and prosperity. I hear, in its kindly invitation, the voice of the mighty North, composed of twenty millions of free white men—men who labor for themselves—having the power now to overrun and lay waste the entire southern country and liberate its slaves."

Mr. Hickman, of Pennsylvania, followed, saying :" It is, in my judgment, simply a declaration of opinion as to a policy, and nothing more. As I look at it, it is rather a compensation to the North for disappointed hopes, and a warning to the people of the border Slave States, who are most interested at the present moment in the subject to which it makes special reference. The President of the United States cannot be ignorant of the fact that he has, thus far, failed to meet the just expectation of the party which elected him to the office he holds; and his friends are to be comforted, not so much by the resolution itself as by the body of the Message, while the people of the border Slave States will not fail to observe that with the comfort to us is mingled an awful warning to them."

The vote was subsequently taken on the resolution and it was adopted. Ayes, 89; noes, 81.

In the Senate, on the 24th of March, this resolution as adopted by the House, was considered.

Mr. Saulsbury, of Delaware, took the floor, saying: "It is to my mind the most extraordinary resolution that was ever introduced into an American Congress; extraordinary in its origin; extraordinary in reference to the source from whence it proceeds; extraordinary in the object which it contemplates; mischievous in Page 348 its tendency; and I am not at all sure that it is anywise patriotic, even in its design. Sir, it is an ignoring of the policy which has always been proclaimed by the party now in power. I am not a member of that party, and I thank my God to-day that I never was and never expect to be, especially after the introduction of such a resolution as this into the Congress of the United States. What was the declaration made by that party before the recent presidential election? What have been, their declarations ever since they came into power? It was that they did not intend nor contemplate any interference with the subject of domestic slavery within the States.

"It is folly to say that this is not an interference with the domestic institution of slavery in the States. To be sure, it does not propose, by force and in terms, to liberate the slaves in the 6laveholding States. It does not say, "If you do not emancipate them, we will;" but it is an interference in this wise and to this extent: it is an attempt to awaken a controversy in those States, to initiate emancipation in those States, to commence the work of abolition in those States, by holding out pecuniary aid to the States, by holding out an inducement. That is virtually as much an interference as though they had proposed directly and by force to liberate the slaves in those States. It is not an interference of the same character and of the same kind; but still it is an interference with the subject of domestic slavery within the States.

"Now, sir, where is the propriety for the introduction of such a resolution as this? Has any one of those States asked your aid? Has anyone of them suggested that they would like to be relieved from this incubus of slavery, if incubus it be? Have they called upon you for advice? Have the persons interested in this question sent any petition here asking the Congress of the United States to aid them in the work of emancipation? If they have not asked your aid, I submit that your proffered aid is not very delicate, to say the least of it; and when I say this, I say it because, representing one of those States, the smallest slaveholding State in the Union, I have a right to say it, because my State has said it.

"But, sir, there is another consideration involved in this resolution. I should like some one of the members of the Judiciary Committee, who are presumed to be gentlemen learned in the law, to show me any authority in the Constitution of the United States for this Government to apply money in freeing the slaves in the States."

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

Although the whole subject of slavery in the States is exclusively within the jurisdiction and cognizance of the government and people of the States respectively having slaves, and cannot be interfered with directly or indirectly by the Government of the United States, yet when any of those States or their people may determine to emancipate their slaves, the United States will pay a reasonable price for the slaves they may emancipate, and the cost of their colonization in some other country.

Mr. Sherman, of Ohio, objected to the amendment. He thought the President's resolution carefully excluded the idea that Congress had any right to interfere with slavery in the States. It contained two or three simple propositions. One was that, whenever any State desired to relieve itself of the existence of slavery, the General Government would help that State to the extent of its ability, without pointing out the mode or manner. It was a simple proposition. It recognized the right of each State to regulate and control its domestic institutions in the broadest terms. The language was simple and plain. He hoped, therefore, that no amendment would be allowed to pass.

Mr. Davis, of Kentucky, admitted that the general principle both of the original resolution and of the substitute which he had offered was the same; but the substitute proceeded to define the nature and the extent of the assistance that the Congress of the United States was disposed to give to the States where slavery existed or to individual slaveholders in those States, provided they should proceed in the work of emancipation. He wanted Congress to express its will and its purpose in relation to that particular view of this subject. The. original resolution on that point was wholly indefinite.

Mr. Doolittle, of Wisconsin, desired to say that he understood the resolution suggested by the President covered two ideas: first, emancipation by the States at their own pleasure, in their own way, either immediately or gradual; and, second, the idea of colonization, a thing believed to be necessary to go along side by side with emancipation by nine tenths of the people of the States interested, and without which they declare emancipation impossible. The resolution did not mention compensation or colonization either, but implied and looked to both.

Mr. Saulsbury, of Delaware, said: "It is all folly to say that the proposition made by the President is the same as that made by the Senator from Kentucky. The Senator from Kentucky proposes, in plain words, to pledge the faith of this Government that the value of the slaves shall be paid upon emancipation. the proposition of the President promises nothing. It does not say that slaveholders, when the slaves are liberated, shall ever receive a dollar. It is a vague, unmeaning proposition, saying that Congress ought to cooperate; not saying that Congress will, not saying how Congress shall cooperate, not saying that Congress shall pay the value of the slaves, as is said by the proposition of the Senator from Kentucky."

Mr. Browning, of Illinois, insisted that the joint resolution did not propose any interference whatever on the part of the General Government with the question of slavery in the States or elsewhere. It was simply a declaration Page 349 that, in the event of any State hereafter choosing to enter upon a system of gradual emancipation of slaves, or gradual abolishment of slavery, the United States ought to cooperate with that State by giving it pecuniary aid, to be used by the State, in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.

Mr. McDougall, of California, expressed his views thus: "I have learned in the school wherein I studied the Constitution of my country, that this Federal Government was one of limited powers, contained and defined in the grant of powers, and that nothing was granted to this Federal Government but for the purposes of administration and government—for public and general purposes. Is there or is there not any limitation upon the Federal Government in disposing of the moneys assessed upon the people, and brought into the Federal Treasury? May it or may it not be expended for any and for every purpose? If they can be expended for all purposes or for any purpose in the will of Congress, then there can be no objection to this measure, so far as the question of power is concerned. But if there be a limitation, I would ask what limitation? And then, if I were to answer the question I asked, I would for its resolution look to the Constitution. It is not at this time denied but that the Federal power is power granted by the terms, express or implied, in the Constitution. The power granted is the limit of power. The question then is, is this a power granted? That is, the power to take money from the Federal Treasury, not for the purposes of government, not for any purpose indicated in that instrument, but as a charity to any one of the States of the Union who may come and ask a particular charity at its hands. I do not myself, with the instructions I have had, understand that we have the constitutional right to make ourselves almoners for the States of this Union any more than we have for the States of Europe."

The amendment of Mr. Davis was lost—ayes 4, noes 34—and the resolution was subsequently passed, as follows:

YEAS. —Messrs. Anthony, Browning, Chandler, Clark, Collamer. Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Henderson, Howard, Howe, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner, Ten Eyck, Thomson, Trumbull, Wade, Wilkinson, Willey, Wilmot, and Wilson of Massachusetts—32.

NAYS. —Messrs. Bayard, Carlile, Kennedy, Latham, Nesmith, Powell, Saulsbury, Stark, Wilson of Missouri, and Wright—10.

The resolution, as adopted, was as follows:

That the United States ought to cooperate with any State which may adopt gradual abolishment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system. (See PUBLIC DOCUMENTS.)

In the Senate, on the 25th of February, the bill "to confiscate the property of rebels," &c., was taken up.

The confiscation of the property of the people of the seceded States became a subject of great interest at this session of Congress. It was anticipated by those members who introduced the proposition before Congress, that by an act of this nature the slaves could be reached and emancipated. The views presented in favor of, and against this measure, possess the highest importance.

Mr. Trumbull, of Illinois, took the floor to explain the bill. He said: "The bill is intended to operate upon property, and not to affect the person of the rebel or traitor; and it only operates upon the property belonging to such rebels as are beyond the jurisdiction of the courts in the ordinary course of judicial proceeding. Where the rebel can be reached by judicial process, the punishment for his crimes can be visited upon him personally, and this bill does not propose to interfere with his property at all. It does not touch that class of oases; and one reason why it does not was to steer clear of any difficulty growing out of this clause in the Constitution of the United States:

The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.

"Under that clause of the Constitution, I have, been inclined to the opinion that it was not competent for Congress to forfeit the real property of a convicted traitor, except during life; and as the punishment for treason by our law is death, the forfeiture of his realty for life would amount, of course, to very little. But I understand that it is competent for the Congress of the United States to prescribe a punishment for those persons who, though aiding and abetting the rebellion, cannot be reached and prosecuted for treason ; and this bill applies to that class of persons. They may be non-residents; they may be foreigners; for instance, an Englishman owning property in the city of New York may be contributing to this rebellion—may be aiding it. I do not understand that Congress is without power to punish such a person, by confiscating his property. He may aid the rebellion by contributing the very means derived from his property in New York to the support of the army which is now arrayed against the Government. I wish to put this question to those who doubt the constitutionality of this bill, if there are such: I wish to ask them if it is not competent for Congress to reach that class of cases?

"This bill also provides for reaching the property of all rebels in States where the judicial authorities are overborne. It is manifestly impossible to try a man for treason in South Carolina. You cannot practically carry out the provisions of the Constitution which guarantee to a man a jury trial, and also make it necessary that he should be indicted before he is put on his trial, where you have no courts. It is because these persons are beyond the Page 350 reach of judicial process that I suppose their property may be reached in this way. As our armies advance into the South, if this bill becomes a law, all the property belonging to these rebels, as fast as we get possession of it, will be appropriated to the use of the Government: it is forfeited by the act.

"I know that some have objected that this bill amounts to nothing; that we have not possession of this property. "Why declare, they say, the slaves of rebels free, and why forfeit and confiscate the property of rebels when, for want of possession of the property and slaves, the law can have no practical effect? But if you pass such a law as this, and it goes into effect immediately, you may take possession of this property next year or any time hereafter; the forfeiture is effected; the title is divested in these military districts; and in the other districts of the United States where there is property belonging to non-resident rebels the forfeiture is to be perfected through the courts. Perhaps I had better read two sections of the bill in order to show the mode of forfeiting property. The fourth section provides for the mode of doing this where judicial authority is overborne. It declares

That it shall be the further duty of the President of the United States, as often as in his opinion the military necessities of the army, or the safety, interest, and welfare of the United States, in regard to the suppression of the rebellion, shall require, to order the seizure and appropriation, by such officers, military or civil, as he may designate for the purpose, of any and all property confiscated and forfeited under and by virtue of this act, situated and being in any district of the United States beyond the reach of civil process in the ordinary course of judicial proceedings by reason of such rebellion, and the sale or other disposition of said property, or so much of it as he shall deem advisable.

"Under that provision it will be perceived that the President may appoint persons to take possession of this property as our armies advance, and he may order the sale of it. Under this section of the bill, we go through no judicial proceeding whatever for the purpose of condemning this property. Confiscation is not a judicial matter in regard to this property. You cannot condemn the property by a judicial proceeding, because you have no court there to do it. The very fact of the existence of the rebellion and of the necessity to call out the army for the purpose of putting it down, presupposes that your judicial tribunals are overborne, and this confiscation of the property is to be made effective through the military tribunals. I think this may be done.

"We have toward these people in the rebellions States a twofold right. There would be no difficulty in determining our rights as against them if they were an independent nation; but what makes the difficulty is the relation which the persons in arms against the Government bear to it, that is, as enemies, and at the same time as citizens. That is what seems to embarrass some minds. That is the precise condition that persons now in arms against the United States in the rebel States are in. We may treat them as traitors, and we may treat them as enemies, and we have the right of both, belligerent and sovereign, so far as they are concerned.

"When an insurrection assumes such formidable proportions as the present, and when armies are arrayed against each other and the power of the nation called forth to put it down, the international law writers all agree that the rebels are entitled to be treated as belligerents or as enemies. We have been treating the rebels in the South as belligerents during this present war. We have sent flags of truce to them. We have taken them as prisoners of war. Whenever a rebellion becomes of such magnitude ns to be entitled to be called a civil war, then the rights of the parties are to be governed by the ordinary rules of war between independent nations; but that does not prevent the Government, after the war is over, from trying as a traitor any person that may be in its hands. That is the way, I take it, that this rebellion is to be finally put down. Nobody expects to try for treason the two or three hundred thousand men now in arms against the Government, every one of whom is a legal traitor; but we will give them the rights of belligerents; we will take them as prisoners of war; and when those who have been seduced from their loyalty to the Union shall have returned to their allegiance, we will release them again. But the ringleaders of this rebellion—the instigators of it, the conspirators who set it on foot—will, I trust, be brought to trial for treason,' and, if found guilty, be executed as traitors. These are our rights as against rebels.

"One of the rights as against an enemy is the right of confiscation. We have the right to take the persons and the property of our enemy and destroy them both if necessary.

"I desire to call attention for a moment to the second and third sections of this bill, which I regard as among the most important in it. The second section forfeits the right or the claim of any person to the service or labor of any other person, when the person claiming the service has been engaged in any manner in this rebellion, and makes the person owing the service forever afterward free. I take it there can be no doubt of the power of Congress to pass this provision. Congress has authority to raise armies, and it may draft soldiers. It may take the hired man of my friend from Kentucky (Mr. Davis), whom he has engaged at a stipulated price to work upon his farm for the next year, and in the middle of his contract, in the midst of his harvest, the Government of the United States may come along and draft that man into the service of the United States, and what becomes of the contract? Can you enforce it as against the United States? Can you plead that you are entitled to the service for which you had, perhaps, paid in advance? The paramount authority Page 351 of the Government of the United States may, if necessary, take into its service the employee of any person, and the employer has no remedy.

"The power to do this cannot be questioned; and does the master hold his slave by any stronger tenure? You cannot draw a contract so strong by which one person shall give his time and services to another, that the paramount authority of the Government cannot abrogate that contract, and take from your control the person and bring him into the service of the country. If this can be done in reference to a hired man, or in reference to your own child, why not in reference to a slave? By the laws of nearly all the States of the Union, every parent has the control of his child until he is twenty-one years of age; and yet, notwithstanding, if the necessity requires it, if the public safety demands it, the Government of the United States may take your son at eighteen years of age, or even younger, from under your control, and bring him into the army of the United States and into the battlefield in defence of the honor and integrity of the United States. And does a master hold his slave by any stronger tenure than this? Why, sir, the persons, all the property, everything connected with your enemy, may be taken and condemned and destroyed, if it be necessary to preserve the country; and not only of your enemy, but you may take the property of your friend. We are now taxing the loyal men of this country to the furthest limit, and sacrificing thousands of valuable lives in support of this war. While all this is being done, can it be pretended that we cannot touch the negro of a man who is fighting against the Government?

"The second section of the bill declares that hereafter whenever any person claiming to be entitled to the service or labor of any other person, shall seek to enforce such claim, he shall, in the first instance, and before any order for the surrender of the person whose service is claimed, establish not only his title to such slave as now provided by law, but also that he is and has been during the existing rebellion loyal to the Government of the United States. Is there any hardship in that provision? Will it not be a very easy matter for the owner of any slave, when he sends his agent to reclaim him, to send along the evidence that he himself is loyal to the Government of the United States?

"Another portion of the section prohibits the rendering of fugitives by our military and naval officers, and forbids their undertaking to pass upon the freedom or slavery of any person. Now we have various policies pursued by different commanders. One commander in the West, General Halleck, forbids all fugitive slaves to come within his lines. Now, I want it upon the statute-book that he shall not determine anything about fugitive slaves, that he shall not inquire whether a man is a fugitive slave or not; and if he knows him to be so, that he shall not surrender him, but shall treat him as a person, as he is, and make no distinction between him and other persons whom he may meet in the country.

"The third section makes provision for the colonization of negroes who may be freed by the act, and are willing to emigrate. There is a very great aversion in the West—I know it to be so in my State—against having free negroes come among us. Our people want nothing to do with the negro. When we tell them that slavery has been the cause of this rebellion, and that the traitors who are fighting us are supported by their slaves, they admit it; but they say: 'What will you do with them; we do not want them set free to come in among us; we know it is wrong that the rebels should have the benefit of their services to fight us; but what do you propose to do with them?' This bill proposes—and it is in harmony with the recommendation of the President of the United States—to colonize them, and it authorizes the President to provide for their settlement in some country beyond the limits of the United States."

Mr. Willey, of Virginia, said: " I should like to have heard the Senator's opinion as to where and how he derives the constitutional power to vest authority in the President of the United States to make provision for the transportation, colonization, and settlement of emancipated negroes; and moreover, if there be such power and we shall be satisfied of its existence, in what manner should the President exercise it? Here is a general duty prescribed, a general authority vested in the President, without any limitation, without any prescription of the manner in which he shall exercise it. Where is he to get the funds? How are they to be raised?"

Mr. Ten Eyck, of New Jersey, also said: "We cannot close our eyes to the state of things which must necessarily exist in the Southern States, where they have this institution of human slavery, by setting at liberty all the slaves that have heretofore belonged or that the rebels have claimed to belong to themselves, and leaving them there in that locality to roam at large under the circumstances in which they will be placed in their ignorance, destitution, want of knowledge, and want of care and providence. What is to become of them, and what is to become, under such a state of things, of the loyal Union men of the South, with millions of freed slaves left to roam the country at large, to go and come when and where they will? I may be mistaken in the view which I take of this case; but it seems to me that if we were by an enactment to declare all the slaves of rebels in the South free, without making provision of some kind for their removal to a district where they may be safe, and where the community may be safe, where they themselves may be taken care of, we may have ruin and destruction and even all the horrors which have been witnessed in some of the West India Islands Page 352 reenacted within the borders of the Southern States. It seems to me to be entirely inconsistent with the safety of those communities that such a large body of freed slaves should be kept there uncontrolled and unrestrained except by the power which may exist within those States."

Mr. McDougall, of California, said: "Sir, as far as I am able to read of the wisdom taught by the history and counselling’s of the past, the measure now proposed can never secure peace. The policy involved in it will continue an angry, remorseless, relentless war, which, if it do not involve subjugation, will involve extirpation. I fear that the country, and not only the country but the Senate have been led wild with anger; that they have caught some of the angry spirit of their adversaries, and instead of taking lessons from the great states of the world, and the great teachers of ancient and modern times, have taken their advice from Richmond and Montgomery."

Mr. Cowan, of Pennsylvania, followed, in opposition to the bill, saying: "Mr. President, I agree with the honorable Senator from California, and look upon the bill now under consideration as the most important, by far, upon our calendar, involving the gravest questions and most momentous issues. If it passes, I think it will be the great historic event of the times—times which are as fruitful of events as any the world has ever witnessed. Upon the disposition we may make of it, perhaps the fate of the American Republic may depend; and no one surely can overrate the magnitude of anything which may be attended with such consequences.

"We are standing now squarely face to face with questions of most pregnant significance. Shall we stand or fall by the Constitution, or shall we leave it and adventure ourselves upon the wide sea of revolution? Shall we attempt to liberate the slaves of the people of the rebellious States, or shall we leave them to regulate (heir domestic institutions the same as before the rebellion? Shall we go back to the doctrine of forfeitures which marked the middle ages, and introduce feuds which intervening centuries have not yet sufficed to quiet? These are great questions, and they are in this bill, every one of them. If, for one moment, we can suppose the scheme consummated which it contemplates, we shall have the following results:

"I suppose it is reasonable and moderate to estimate the number of people engaged in the rebellion to be equal to one-half of the whole white population of the confederate States—say four millions. If so, this bill proposes, at a single stroke, to strip all this vast number of people of all their property, real, personal, and mixed, of every kind whatsoever, and reduce them at once to absolute poverty; and that, too, at a time when we are at war with them, when they have arms in their hands, with four hundred thousand of them in the field opposing us desperately.

"Now, sir, it does seem to me that if there was anything in the world calculated to make that four millions of people and their four hundred thousand soldiers in the field now and forever hostile to us and our Government, it would be the promulgation of a law such as this. "Will they yield to us sooner in view of such a result to them? "What would we be likely to do if they were to threaten us with a similar law? Would we ever, under any circumstances, yield on terms like those? I need hardly ask that question to men descended from sires who refused to pay the tax on teas, and from grandsires who rose in rebellion and overturned a monarchy rather than pay twenty shillings ship money.

"Again: the forfeitures of William the Conqueror, decreed upon the property of the Saxons who followed Harold to the field of Hastings, sink into utter insignificance compared with those enacted in the bill before us. The proud Norman and his rapacious barons were content with the castles and fiefs of the Saxon leaders whom they had overcome; but they did not dare to strip the people, or, indeed, even much to increase their burdens. They knew, victorious and all-powerful as they were, that would have involved them in a new and far more dangerous struggle, in which every peasant would have been a principal combatant, with his all at stake.

"Neither did the English conquerors of Ireland, in their long series of forfeitures and confiscations, from the time of Strongbow down to the rebellion of 1798, ever, at any time, venture upon such a sweeping measure as this; their attainders exhausted themselves upon the Irish nobility, and they never were rash enough to strip the Irish people. I do not know the value of the property forfeited by this bill; I cannot even approximate it, except to say that it is enormous—to be computed by billions. But, sir, the bill goes further, and forfeits a vast amount of property of the rebels which, when forfeited, cannot be confiscated or put into the coffers of the conquerors—I mean their property in negro slaves.

"Now, I do not mean to stop here to discuss their right to this species of property; it is enough for me to say that all the people of the Slave States, loyal and rebellions, seem to agree as to this with a wonderful unanimity, and to resent with an excessive sensibility any interference with it whatever. And, although in the bitterness of the feuds engendered by the civil war now raging among them, the loyalists there would be glad to join in inflicting upon the rebels even the severest punishments, yet this one they abhor and refuse, because they aver that it would be equally injurious to them as to their enemies; and it makes no manner of difference whether that view is correct or not, if they believe it—and this their representatives can tell us. What I mean to say is, that this bill would liberate, perhaps, three millions of slaves; surely the most stupendous stroke Page 353 for universal emancipation ever before attempted in the world; nay, I think it equivalent, if carried out, to a virtual liberation of the whole four millions of slaves in the Union.

"But what is to be the effect of it upon the war? Will we be stronger after it than before; or will we find we have doubled the number of those in arms against us? They have now no cause of war; will not this measure furnish them one, and one they think more just and holy than any other? Let the loyal men who know them also answer this question. I will abide their answer, and submit again that no deliberative assembly in the world ever before sat in judgment upon an issue of such magnitude.

"Not content, however, with this, those who favor this bill seem determined to bewilder and blind us still more by an additional project of greater magnificence and, if possible, of greater difficulty; and that is, in the duty it imposes upon the President, in the third section, of procuring a home for these emancipated millions in some tropical country, and of transporting, colonizing, and settling them there, if they desire to go, with guarantees for their rights as freemen; and this is all provided for in a section of a single sentence of nine lines! Surely, sir, we must have been recently transported away from the sober domain of practical fact, and set down in the regions of eastern fiction, if we can for a moment entertain this proposition seriously. Do the advocates of the scheme propose to confer upon the President the gold making touch of Midas? One would think the universal menstruum of the philosopher's stone had been at last discovered. Certainly, nothing short of the ring and lamp of Aladdin, with their attendant genius, would enable us in our present condition to assure the President of his ability to enter upon such a task, unless, indeed, it is conceived the Treasury note is of equal potency in this behalf. If so, the sovereign of the tropical country and the transportation companies ought to be consulted in regard to the legal tender clause. I suppose it is not expected that the exodus can be supported on the way by quails and manna; and yet, I am free to say, it will need the miraculous interposition of Heaven quite as much as did that of the Israelites of old.

"But to return: At a time when every energy of the country is put in requisition to suppress the rebellion, when we are in debt equal to our resources of payment, is it not strange that this scheme, which would involve us in a cost more heavy than even the present war, should be so coolly presented for our consideration, and urged to its final consummation with a kind of surprise that any one should oppose it? It is certainly due to ourselves, if not to the country, that we should not be in haste about engaging in such gigantic schemes.

"Then there is a further consideration involved in this bill, of still greater moment than even those I have already glanced at; and that is, its direct conflict with the Constitution of the United States, requiring us, indeed, should we pass it, to set aside and ignore that instrument in all its most valuable and fundamental provisions; those which guarantee the life, liberty, and property of the citizen, and those which define the boundaries between the powers delegated to the several departments of the Government. "Pass this bill, sir, and all that is loft of the Constitution is not worth much. Certainly it is not worth a terrible and destructive war, such as we now wage for it. And it must be remembered that that war is waged solely for the Constitution, and for the ends, aims, and purposes sanctioned by it, and for no others. "I am aware, however, that some think the Constitution is a restraint upon the free action of the nation in the conduct of the war, which they suppose could be carried on a great deal better without it, &c. Now, sir, I have no hesitation in saying that no greater mistake ever was made in the world than is made by such people.

"I am, therefore, opposed to this bill, to all and every part of it, except the last two sections, which, although not free from objections, yet these are not of such a serious character but that I could give my assent to them."

Mr. Morrill, of Maine, followed. He thus expressed his views of the power of Congress: "Assuming now the state of the nation to be that of general internal hostility; and that, being so involved, it possesses the power of self-defence, it is still important to inquire in what department of the Government this authority is lodged. Happily this is no longer an open question. The supreme power of making and conducting war is expressly placed in Congress by the Constitution. 'The whole powers of war,' says the Supreme Court of the United States, in Brown vs. The United States (1 Cranch), 'are vested in Congress.' Surely all will agree there is no such power in the judiciary, and the Executive is simply Commander-in-Chief of the Army and Navy;' all other powers and duties, not necessarily implied in the command of the military and naval forces, are expressly given to Congress. Congress declares war; grants letters of marque and reprisal; makes rules for captures on land and water; raises and supports armies; provides and maintains a navy; makes rules for the government of land and naval forces; provides for organizing, arming, and disciplining the militia, and for governing them in actual service; and is thus invested, in the language of the court, ' with the whole powers of war.'

"In the contingency of actual hostilities the nation assumes a new and extraordinary character, involving new relations and conferring new rights, imposing extraordinary obligations on the citizens, and subjecting them to extraordinary penalties.

"There is then, sir, no limit on the power of Congress; but it is invested with the absolute Page 354 powers of war—the civil functions of the Government are, for the time being, in abeyance when in conflict, and all State and national authority subordinated to the extreme authority of Congress, as the supreme power, in the peril of external or internal hostilities. The ordinary provisions of the Constitution, peculiar to a state of peace, and all laws and municipal regulations must yield to the force of martial law, as resolved by Congress."

Mr. Browning, of Illinois, followed in opposition to the bill, the object of which he thought could be easily accomplished under the "war powers" of the Government. He said: "This bill has no reference whatever to captured property, but to that which neither has been nor is expected to be captured. Nor is it restricted to property which, by its character and uses, is adapted to aid the rebellion, but strikes at all the property of every kind and character of all the citizens of the seceded States with scarcely an exception. It sweeps away everything, even the most ordinary comforts and necessaries of domestic life, and reduces all to absolute poverty and nakedness. It leaves them the ownership of nothing, and when executed will leave them the possession and enjoyment of nothing. If the bill is constitutional, the instant it passes millions of people in the private walks of life will be stripped of the ownership of everything, and, the moment the strong arm of power can reach them to execute the law, will also be stripped of the possession of everything. They may repent of their past rebellion and return to their allegiance the next day or the next month, but they return bankrupts and beggars, with nothing on earth to make government desirable.

"But if this bill passes, would they return? What possible inducement would they have to do so? What could they hope or expect from a Government which had shown itself so stern and remorseless in the execution of vengeance, not upon the guilty few, whose vaulting ambition conceived the treason and hatched the rebellion, but upon the deluded masses, who are fitter subjects of commiseration than of vengeance? The sure and certain effect of this bill would be to make peace and reunion an impossible thing. It would fill the hearts of the entire people with despair, and nerve their arms with the energy and desperation which despair inspires. It would turn to the blackness of night the last glimmering hope of future fraternity between now alienated and exasperated brethren.

"A simple statement of the case will, I think, demonstrate our want of power to legislate as proposed. If we recognize the existing state of things as war, then we must also recognize the rebels as public enemies, and deal with them according to the rules of war established by the law of nations, which we cannot change. We must deal with them precisely as we would deal with a foreign nation with which we were at war. And if at war with a foreign nation, the law of nations would forbid us to pass a law to confiscate the property of the private citizens of that nation, or even to plunder them when our victorious army had invaded their country. I think it will not be contended that we could do either. Our Constitution, I concede, would not restrain us. We would be restrained by the law of nations. We could confiscate all the property which we captured during the progress of the war; but we would do it under the war power, and not by legislation. "If we do not recognize the rebellion as war and the rebels as public enemies, but as insurgent citizens only, and deal with them and treat them as citizens, then we cannot pass the law proposed, because the Constitution forbids the enactment of bills of attainder, and this is, in the meaning of the Constitution, a bill of attainder.

"When our arms have triumphed and the rebellion is suppressed and the rebels reduced to obedience, the Government will be restored to its authority over them as citizens, and may pass laws of amnesty, embracing all or any part of them, or elect to treat them as traitors, and indict, convict, and punish them for treason. But this must be done in accordance with constitutional provisions and guarantees, and within constitutional limitations; and we could not even then, in the case of a convicted traitor, confiscate to the extent proposed by this bill.

"Thus, Mr. President, whether we regard the rebels as public enemies with whom we are at war, or only as insurgent citizens, we are, in either case, without power to pass the bill under consideration. But in renouncing this power of legislation we renounce no power necessary to the defence of the Government and the maintenance of its authority—the suppression of the rebellion and the condign punishment of the traitors. The powers of the Government for these purposes arc ample and plenary. But they are war powers, and not powers of legislation. The inexpediency of this bill is as manifest as its unconstitutionality. Let it pass, and its provisions be heralded in advance of the army as it marches south, and what other effect can it have than to consolidate the entire people for one last despairing struggle against those whom they might then justly regard as enemies and oppressors instead of friends and benefactors? What possible inducement could they have to prefer submission to death? For one, I do not wish to waste the fortunes and devastate the homes of all. Leave something to make the guardianship of Government and the protection of law desirable. Surely it is most desirable, if we can, to win back our erring brethren to their allegiance to and love for the good old Government of our fathers; and if we cannot do this, the success of our effort to put down the rebellion will be almost as disastrous as failure."

Mr. Carlile, of Virginia, followed in opposition to the bill. He said: "The bill denies to the citizen the constitutional right of testing Page 355 the constitutionality of the act before the tribunal created by the Constitution. It would seem as if the authors of the bill, conscious of the unconstitutionality of the proposed measure, purposely framed it so that its constitutionality could not be pronounced upon by the Supreme Court.

"The bill proposes to confiscate to the use of the Government all the property, real and personal, belonging to the citizens of the seceded States who are or may be in the service of the so-called Confederate States, or who in any way give aid and comfort to the rebellion. When it is remembered that the authors of the rebellion were in possession of the various State governments, and used the power and machinery of their respective State governments to compel the people to acquiesce in their unconstitutional acts, and to recognize their usurped authority, it will be seen that all the property of each and every citizen in the seceded States would be forfeited under this bill. Such a sweeping proposition, so unjust and cruel a measure, one better calculated to continue the war forever and exhaust the whole country, never has been in the history of the world, and I predict never will be again, proposed to any legislative assembly representing a civilized community.

"By the bill all the property, except slaves, is to be sold, and the proceeds put into the public treasury. The slaves are to be emancipated in violation of the Constitution and in disregard of the acknowledged constitutional rights of their owners and of the States wherein they reside. The want of power in Congress to interfere with slavery in the States where it exists has always heretofore been admitted; the most ultra abolitionists admit that Congress cannot interfere with slavery in the States, and because this is so they denounce the Constitution as a covenant with death and a league with hell."

Mr. Henderson, of Missouri, argued that such measures would not increase the Union feeling at the South or strengthen the hands of the Government. He said: "I have no objection to confiscating the property of the rebel, including his slave; but let it only be done when guilt has been established under the forms of judicial investigation.

"I crave this, not for the sake of the traitor, but for our own sake and in behalf of constitutional liberty. If we cling to the Constitution, whatever is right will yet be accomplished; if we depart from its just restraints no man can tell the excesses of the future. In the midst of storms upon ocean's wilderness, the mariner's only trust is upon his unerring compass. In the midst of a revolution so vast and terrible as the present, with armies in the field even greater than those with which Napoleon brought the nations of Europe to his feet, our only trust is in the Constitution. In the plenitude of power to-day, we may deny mercy to others; to-morrow we may ourselves cling in vain to the horns of the altar. To-day we may insolently disregard the settled convictions of the people, by gross perversions of the charter of their liberties; to-morrow the dangerous precedents may be urged to our own ruin. The inventor of the guillotine, we are told, was soon forced to test the merits of his own invention, and Haman, by sudden change of fortune, met the fate he had prepared for the offending Jew.

"Pass this bill, by which the owner is stripped of his real and personal property wherever your armies march, then enact the measure proposed by the able and excellent Senator from New York (Mr. Harris), by which he is outlawed and driven from the courts of the land, and I have no promises to make in regard to future exhibitions of loyal sentiment in the Southern States. Let Congress adopt the course pursued by that practical statesman and distinguished soldier who commands the department of the Mississippi, pledging the power of the Government to the protection of life, liberty, and property, and our battles like his will be victories—victories beneficial alike to the victor and the vanquished, removing prejudice, reforming sentiment, and regenerating the public mind."

Mr. Harris, of New York, offered a substitute to the bill, and expressed his views in these words: "Ours should not be a revengeful policy. On the contrary, by adopting measures of mildness and mercy, our effort should be to extinguish the fires of hate which now burn so fiercely. Exile and the gallows for leaders. Confiscation and outlawry for those who have, with 'malice aforethought,' conceived and planned and brought into hideous maturity this monstrous iniquity; but pity and pardon for their deluded followers—those whose greatest crime has been that they have loved the bones of their fathers more than they loved their country, who have from their childhood been educated in the heresy that their first and highest allegiance is due to their State, even if it requires them to take up arms against the Union. Such, in my judgment, is an outline of the policy which a great, magnanimous, and Christian people should adopt in dealing with conquered treason."

Mr. Howard, of Michigan, thus argued that Congress had the power to enact such a law: "I come now to the question of power, the great question whether under our written Constitution we as a Government have in law the right to declare and enforce the forfeitures and confiscations contemplated by the bill.

"I admit that if we have not this power under the Constitution, we cannot forfeit and confiscate the property of rebels, real or personal, and that any title we might assume to give would be void in law.

"There is no clause in the instrument expressly conferring the power, and unless it is implied as a means of carrying into execution some one of the powers expressly granted and Page 356 enumerated, or some other power not so expressed and enumerated, but nevertheless' vested (to use the terms of the instrument) by this Constitution in the Government of the United States, or in any department thereof,' we are unable to exercise it. .1 need not say to candid and reflecting men that the dangers arising from too broad an interpretation of the Constitution are by no means less to be dreaded and avoided than those proceeding from one too narrow and illiberal. The instrument must be construed with reference to the state of things existing at its formation, and the purposes had in view by its framers. Those purposes are plainly announced in the comprehensive language of the preamble, and no one can misunderstand them. They were 'to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.' The insuring of domestic tranquillity is thus expressly indicated as one of the prominent objects of the Constitution, and nothing can be plainer than that it means, not mere family or neighborhood tranquillity, not the tranquillity of the fireside, but the internal tranquillity of the nation as a nation, and of the States as political bodies and constituent parts of the nation. It was political tranquillity, as opposed to political disturbance, as opposed to anarchical and insurrectionary movements of classes, districts, or communities, tending to disturb the internal peace of the nation, and to overthrow low and order.

"Such is one of the ends for which the Constitution was made—an important end; one without which the Government itself would have been but vanity and vexation of spirit, and the liberties it was to secure a chimera."


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