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 5

Mr. Davis, of Kentucky, in opposition to the bill, said: "It will be observed from the reading of the bill that it creates two classes of persons whose property shall be forfeited. One class is composed of those who are out of the United States, or who are within the States now in rebellion, and in such position that the ordinary process of the courts cannot be served upon them. It then provides by different modes of proceeding for all that class of persons in arms in the rebellion, or giving it aid and comfort, who can be found within the loyal States, or in such position in the United States that the ordinary process of law can be served upon them. The white population of the disloyal States amounts to 5,450,831. The slaves in the same States amount to a fraction above the number of 3,500,000. By the last census, there are 3,953,587 slaves in the United States. There are 3,500,000 in the disloyal States—in the States that have seceded—and about 450,000 in the States that are yet loyal, including the western portion of the State of Virginia. 1 assume that there are as many disloyal men in the loyal States as there are loyal men in the seceding States; and I have no doubt that the number of disloyal men in the loyal States is larger than the number of the Union men in the seceding States. The result, then, is; that the hill takes from a number of white people equivalent to the entire white population of the loyal Slave States a slave population equivalent to the entire slave population of the disloyal States. It not only takes their slave property, but it takes all the property that they own. What is the aggregate amount of the property of the disloyal States, according to the census tables? It is $6,792,585,742 in amount. The property of the loyal Slave States amounts to $1,983,702,055; so that the aggregate amount of property in the Southern States that is subject to be acted upon by the provisions of this bill, if it becomes a law, will affect upward of six millions of people, and will deprive them of property of the value of $4,808,883,687— nearly five thousand millions of dollars. Now, sir, I ask if this measure in its proportions is not as gigantic as the insurrection and the war itself? Was there ever in any country that God's sun ever beamed upon a legislative measure involving such an amount of property, and such numbers of property holders?

"I will take another view of this subject. The surplus production of the States that have seceded, amounts annually to between five hundred and six hundred millions of dollars. Of this large surplus, at least one hundred and fifty millions are distributed to the loyal and Free States for cereal grains, for meats, for stock, for mules, horses, and manufactured articles of various kinds. My own State of Kentucky finds a market annually in the Southern States, growing out of the productions of their slave labor, to the amount of eight or ten millions of dollars, and the Free States in the same market find a sale for their articles of natural or artificial productions to the amount of at least one hundred and fifty millions of dollars. Look at the great grain-growing regions of the West, the Egypt of America in fertility and production. Where do they find their principal markets for their corn and their meats? Where do Indiana, Missouri, Ohio, Kentucky, and every other portion of the United States that produces and sells stock find a market for their stock? They find it in the same sunny South, producing cotton and sugar. Where do Chicago, Cincinnati, and the other manufacturing points of plows, agricultural implements, and all the machinery by which crops are produced and harvested, find their market for the sale of their manufactured articles? It is in the South. Where does New England, where does Massachusetts, find the principal market for her boots and her shoes, her coarse woollens, her coarse cottons, and her ice even? It is in the South.

"I intend to maintain and shall endeavor to show that this great and enriching market for the loyal and Free States will be cut off by this iniquitous measure—for I so denominate it—if it should become a law. The great devotees Page 357 to labor and industrial pursuits in the field of agriculture, and in the workshops, who find their markets and the rewards of their toil and of their labor and of their skill in the South, will rise up in earnest protest against any such measure as this. Their voice will be heard before long in this chamber. It will be heard resounding throughout this nation; and it will be heard in a majesty and strength that will command obedience to it, and it will repress and put down such wholesale measures of confiscation, of injustice, of oppression, and iniquity."

Mr. Collamer, of Vermont, followed in opposition to the bill in its present form, saying: "I come now, Mr. President, to talk more particularly in relation to another branch of this bill, which is not so obvious perhaps. It seems to me that there is another purpose that is covered up by this pretence of forfeiture or confiscation and proceedings in rem, which have really nothing to do with it. When we are communing together, and talking freely, we may as well tell the truth as not. I cannot exactly recommend my example in that respect, as the old gentleman did who told his sons that honesty was the best policy, because,' says he, 'I have tried it both ways.' Now, the truth is, that there is a large provision in this hill for the liberation of slaves, and I am strongly apprehensive that the more particular friends of this bill regard that as the bill. Without that, they would care nothing about it. Many of them, I have no doubt, are exactly in that condition. Are you going to have these slaves seized as prize of war? There is no provision of that kind, because you know that what you declare prize of war must be seized during the war; and if it is not, when the peace comes it escapes, and you cannot take it at all. No; this provision is made to declare all slaves free without ever taking them. There is no caption of them required. They are not declared prize of war, or required to be proceeded with as such. How is it, then? They are regarded as property. I do not mean to fall into any objectionable point on that. I do not believe in having property in man any more than anybody else; but certain it is that the master, as he is called, is acknowledged by the Constitution to have an interest in the labor and service of his slave. There is an acknowledged pecuniary interest there recognized. It is a pecuniary interest. You propose to get rid of that interest, clear it out, discharge it. Can you do that by a proceeding in rem? I know we made a law at the last session declaring that where slaves were made the instruments of wrong by using them for military purposes in aid of the rebellion, they should be free, and that falls within the doctrine, within the principle, I have stated. But nothing of that kind is here. It was not put here purposely, because a proceeding in rem implies that you have possession of the thing, and brought it into court to be adjudicated upon. It is not provided that these slaves are to be taken or brought into any court, or in any way adjudicated upon. There is not any proceeding in rem required upon them, nor any other proceeding. If that is not depriving a man of his interest in a slave without any conviction of himself, and without any process of law, and operating as a punishment on him, and yet leaving him to be hanged, I do not understand it. It seems to me to be all that, every particle of it.

"Again, Mr. President, we have individually, and the Republican party as a party, thrown our creed and articles of political faith before the world. We have subscribed to them, most of us personally, individually at different stages, and I believe it is not necessary for mo to make any personal professions about that. I am still very much inclined to abide by a plighted public faith, and by private faith too. I cannot but observe that those gentlemen who certainly have been distinguished as much or more for their activity in relation to the subject of slavery as for anything else, are committed to the creed of the Republican party on this point, Take, for instance, the honorable Senator from Massachusetts (Mr. Sumner). I will read his words. On offering a certain memorial, on the 25th of February, 1861, he said:

I offer this memorial, sir, because I deem it my duty to offer all memorials that are respectful in form, when sent to me; but in offering it, I take this occasion to declare, most explicitly, that I do not think that Congress has any right to interfere with slavery in a State.

"I do not know that the gentleman has over spoken in any other way."

Mr. Sumner: "Never."

Mr. Collamer: "I have never heard him speak otherwise, and I have generally heard what he had to say. I have been glad to find that this somewhat early and uniform doctrine of our party had not become outlawed by war, and hence I was pleased to hear some Senators who sit near me, and whom I always hear with very great pleasure and respect, make use of the expressions which I am about to read. I will use their language as better expressing the idea than any language I could employ. The honorable Senator from Maine (Mr. Fessenden), in the course of the debate upon the bill for the abolition of slavery in this District, said:

Mr. President, that the Republican party would rejoice to see slavery abolished everywhere, that they would rejoice if it no longer existed, that they feel it to be a blot upon our fair institutions, and a curse to the country, there is no doubt. I can answer, for one, that has been my opinion always, and I have expressed it here and elsewhere; but, sir, 1 have held, and 1 hold to-day, and I say to-day, what I have said in my place before, that the Congress of the United States, or the people of the United States through the Congress, under the Constitution as it exists now, have no right whatever to touch, by legislation, the institution of slavery in the States where it exists by law, I have said that, and I say it again, boldly; for my position never has been misunderstood on this subject. "The honorable Senator from Ohio (Mr. Sherman), on the same occasion, said:

We ought now to abolish slavery in this District.

We have the right, and it is our duty to do it; and if we bad wasted less time in doing it, it would probably be just as well. We ought, then, religiously to adhere to the promises we made to the people of this country when Mr. Lincoln was elected President. We ought religiously to abstain from all interference with the domestic institutions of the Slave or the Free States. We ought to stand by the Constitution as it is, by the Union us it is. Whether rebels are in arms or not, our duty is to stand by our pledges, to stand by our manhood; and I, for one, will do it.

"If we make a law, intending it to be operative, by which we declare that the slaves of all engaged in this rebellion, or of all the officers and classes mentioned in the amendment of the Senator from Ohio are free, and all right over them abolished, do you believe, does any man of common sense believe, that you can make the world understand that we have not interfered with slavery in the States, and not to a very limited extent either, but to about the whole extent to which it exists? All remarks, however ingenious, and all sophistry, however plausible, which can make this look any otherwise, is but a delusion. It cannot be seen in any other light. This is not put on the ground that it is a military operation, not ou the ground of proceedings in rem, not that it deprives a man of his property and yet leaves him to be hung, not upon any conviction, not upon any process of law whatever, except this law which we now make.

"It seems to me, obtuse as I am, perhaps, in my perceptions, that that is directly interfering with this plighted faith; and it seems to me, further, that it is in direct violation of the provisions, prohibitions, and securities which the Constitution enacts. I, for one, will not do it. I do not regard myself ns needing any apology for not doing it. I do not think my people wish me to contribute to breaking any provision of the Constitution, and they know I would not do it if they did wish it; nor do they need any apologies from me for regarding the oath I have taken."

Mr. Collamer then submitted an amendment, or bill of his own, which with several other amendments were referred to a select committee of nine Senators.

The following committee was afterward appointed: Mr. Clark chairman, Mr. Collamer, Mr. Harlan, Mr. Cowan, Mr. Wilson of Massachusetts, Mr. Harris, Mr. Sherman, Mr. Henderson, and Mr. Willey.

This committee subsequently reported a bill, the first section of which provided that every person who should hereafter commit the crime of treason against the United States and be adjudged guilty thereof, should suffer death, and all his slaves, if any, be declared and made free, or he should be imprisoned not less than five years, and fined not less than ten thousand dollars and all his slaves, if any, be declared and made free.

Mr. Clark, of New Hampshire, said: "The desire of the committee was.to harmonize the various shades of opinion and the various plans, and to present something to the Senate which they thought might be passed.

Mr. Trumbull, of Illinois, moved to strike out the first section of the bill. He said: "If any unconstitutional bill has been offered to the Senate, this bill in its first section is unconstitutional. Beyond that, the section is a provision simply to make treason easy. It is a provision to lighten the punishment for treason. I doubt whether this is the best time to do that. Our fathers prescribed the penalty for treason. They regarded it as the most atrocious crime that man could commit."

Mr. Clark, of New Hampshire, replied: "I expected an assault to be made upon the bill by those who wanted to take property without any trial. I did not suppose a trial would suit such persons: it is not quick enough. But I hope, notwithstanding, the Senate will not consent to strike out this section. By the old law, the punishment of treason was death, and is death by the law now. In the circumstances of this rebellion, where there is a great variety of shades of guilt, where there is the man who leads on and incites the rebellion, and the man who is drawn into it, the committee thought there should be a difference in punishment; that in some cases death would not be too severe, and in other cases death would he too severe, where some punishment should be inflicted. If the law should be permitted to stand as it now stands, if you try a person for treason he must be executed unless pardoned. You cannot imprison him; you cannot fine him; but you must take his life, or pardon him. "We desired to give discretion to the court."

Mr. Davis, of Kentucky, moved to amend by striking out the words " and all his slaves, if any, shall be declared and made free."

Mr. Clark, of New Hampshire, said: "I want to inquire of the Senator why, when he has taken away the life for treason, or when he has incarcerated the body and shaved the head and made the man sit in sackcloth, he objects to taking away his negro also? Take his life, or shave his head, put manacles on him, set him down in sackcloth and ashes, but do not touch his negro!"

Mr. Davis: "I have no objection to taking his negro, or any property whatever, if you just confiscate it bona fide. The Congress of the United States have no power to liberate a slave in a State, or to authorize it to be done. I have no objection to slaves being treated like lands, or any other property. I think myself they ought to be subjected to the same law and to the same course of appropriation that other property is. I do not think there ought to be any distinction. The reason that I do not give in to the view of the gentleman is, that I believe it is not competent for Congress to liberate or to authorize the liberation of a negro anywhere, and particularly in the States."

Mr. Clark: "Let the Senator give me his attention a moment, and I think he will agree with me that it is not competent for Congress Page 359 to go into the State of Virginia or Kentucky and pass a law taking away $10,000 of property from a man; but it can impose a punishment that shall take it from him. It may not be competent directly to take the slave from him, but it can impose a punishment which shall take it from him. I have not any doubt about it, and that is what this bill socks to do."

Mr. Davis: "Will the gentleman permit me to answer that?"

Mr. Clark: "Certainly."

Mr. Davis: "I admit that Congress may authorize the punishment of treason, and I admit that it may authorize the punishment of treason prospectively by a forfeiture of property for the lifetime of the criminal; but I deny that to take property and not appropriate the proceeds to the public treasury is a forfeiture at all. Every definition of confiscation and forfeiture is to this effect, that a party charged with the commission of a crime or some legal default of duty, loses his interest and estate in the property, and the property is transferred to the nation or to individuals to remunerate them for the real or supposed loss by the default of the person who is charged with the default. That is forfeiture or confiscation."

Mr. Clark: "Then as I understand it, the objection is not that we take the negro from the master by way of punishment, but that we do not give him to somebody else, or put him into the public treasury."

Mr. Davis: "Yes, sir; that is the objection; that you do not sell the negro, do not appropriate the negro as you would other property." Mr. Clark: "Now, I want to submit this question to my honorable friend: suppose we had forfeited a horse or a mule, could we not turn it free?"

Mr. Davis: "I think not."

Mr. Clark: "Could we not turn a horse loose if he was expensive to keep?"

Mr. Davis: "You might refuse to appropriate him, but your duty and the execution of the idea of forfeiture would require you to appropriate that property, to sell that property, and put the protocol) into the public treasury."

Mr. Clark: "Very well. Suppose Congress thought that its duty required him to go free: what then? Who is to judge of the duty!"

Mr. Davis: "I will answer that, with the gentleman's permission. the term ' forfeiture' is a legal phrase. It is a term of art. It has as precise a legal significance, and had at the time of the adoption of the Constitution, as the term 'ex post facto,' or the term 'bill of attainder,' or any other technical legal term of art. My position is that the term ‘forfeiture' necessarily imports, as the principal and essential idea, that the property is to be disposed of for the benefit of the party that is injured in fact, or supposed to be injured, whether that party be the United States or individuals. I ask the Senator from New Hampshire to bring mo a definition of confiscation or forfeiture, or a decision of a court where the proceeds of the property confiscated or forfeited were not appropriated. Give me a single example. I say that the essence of forfeiture, the main idea of forfeiture, is not so much to deprive the person in default and charged with crime of property as it is to transfer that property to the public or to individuals who are supposed to be injured by the act of the criminal."

Mr. Clark: "Will the honorable Senator permit me to ask him if he has read this section?"

Mr. Davis: "Yes, I have."

Mr. Clark: "Is the word 'forfeiture' in it?"

Mr. Davis: "Certainly not."

Mr. Clark: "Then I do not understand the necessity of a definition of forfeiture. It simply provides that his slaves shall go free. Suppose it provided that he should stand in the pillory?"

Mr. Davis: "If you wore to present a rose and were not to name it, would it not be a rose still? I suppose that a thing is a thing, whether you give it a designation or not. I was very much impressed with the objections of the Senator from Illinois, but I do not propose to go into that question. I plant myself upon this ground: that Congress has no power to emancipate a slave under the pretence of forfeiture or of punishing a traitor, or under any other pretence whatever; that the act of emancipating a slave in a State is not within the powers of Congress."

Mr. Clark: "There the Senator and I entirely disagree. He says Congress has no power to do it. I assert the power of Congress to do it; but this section does not attempt to forfeit a slave. It sets him free. It declares, as a punishment of the master's offence, that the slave shall go free, and that the owner shall not hold him. That, I think, we have a right to do."

Mr. Davis: "I think not." The motions to amend and strike out were both lost.

Mr. Sumner, of Massachusetts, offered a substitute to the bill, which he sustained in a speech of much length, and concluded by saying relative to the liberation of slaves, thus:

"The slaves of rebels cannot be regarded as property, real or personal. Though claimed as property of their masters, and though too often recognized as such by individuals in the Government, it is the glory of our Constitution that it treats slaves always as 'persons.' At home, beneath the lash and local laws, they may be chattels; but they are known to our Constitution only as men. In this simple and indisputable fact there is a distinction, clear as justice itself, between the pretended property in slaves and all other property, real or personal. Being men, they are bound to allegiance and entitled to reciprocal protection. It only remains that a proper appeal should be made to their natural and instinctive loyalty; nor can any pretended property of their ancestors supersede Page 360 this claim, I will not say of eminent domain, but of eminent power, inherent in the national Government, which at nil times has a right to the services of all. In declaring the slaves free, you will at once do more than in any other way, whether to conquer, to pacify, to punish, or to bless. You will take from the rebellion its mainspring of activity and strength; you will stop its chief source of provisions and supplies; you will remove a motive and temptation to prolonged resistance, and you will destroy forever that disturbing influence which, so long as it is allowed to exist, will keep this land a volcano ever ready to break forth anew. But while accomplishing this work, you will at the same time do an act of wise economy, giving new value to all the lands of slavery, and opening untold springs of wealth; and you will also do an act of justice destined to raise our national name more than any triumph of war or any skill in peace. God, in His beneficence, offers to nations as to individuals, opportunity, opportunity, opportunity, which, of all things, is most to be desired. Never before in history has He offered such as is now ours. Do not fail to seize it. The blow with which we smite an accursed rebellion will at the same time enrich and bless; nor is there any prosperity or happiness which it will not scatter abundantly throughout the land. And such an act will be an epoch marking the change from barbarism to civilization. By the old rights of war, still prevalent in Africa, freemen were made slaves; but by the rights of War which I ask you to declare, slaves will be made freemen."

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

Provided, That all the property owned by any person convicted of any crime under this act shall be first subject to the payment of all his debts and liabilities due and subsisting at the time thereof to loyal creditors.

This was rejected—yeas 12, nays 26. Mr. Powell, of Kentucky, moved to strike out the following section:

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

The question, being taken by yeas and nays resulted—yeas 11, nays 25; as follows:

YEAS.—Messrs. Carlile, Davis .Henderson. Latham, Powell, Saulsbury, Stark, Wilier, Wilson of Missouri, and Wright—11.

NAYS.—Messrs. Anthony, Browning, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Howard, Howe. Lane of Kansas, Pomeroy, Sherman, Stunner. Ten Eyck. Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts—25.

Mr. Henderson, of Missouri, offered the following amendment:

the testimony of two witnesses to the same overt act of treason whereof he shall stand indicted, such person shall suffer death, or be punished by imprisonment, with or without bard labor, not less than five years; and all judgments on convictions of treason under this act shall have the effect to forfeit to the United States all the property, real and personal, rights, credits, and effects of the party be convicted for and during his natural life.

The yeas and nays were ordered; and being taken, resulted—yeas 12, nays 25; as follows:

YEAS.—Messrs. Carlile, Cowan, Davis. Henderson, Latham, Powell, Saulsbury, Sherman, Stark, Willey, Wilson of Missouri, and Wright—12.

NAYS.—Messrs. Anthony, Browning, Chandler, Clark, Collamer, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Howard, Howe, King, Lane of Kansas, Pomeroy, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts—25.

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

Provided, That no state shall be emancipated under this act until such slave shall be token into the possession of some agent of the United States, and be in transit to be colonized without the United States of America.

The yeas and nays were ordered; and being taken, resulted—

yeas 6, nays 30; as follows:

YEAS.—Messrs. Davis, Powell, Saulsbury, Stark, Wilson of Missouri, and Wright—C.

NAYS.—Messrs. Anthony, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Henderson, Howard, Howe, King, Lane of Kansas, Latham, Pomeroy, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, Wilmot, Wilson of Massachusetts —30.

Mr. Saulsbury, of Delaware, moved to strike out the following section:

SEC. 9. And be it further enacted, That at any time after the passage of this act, whenever the President of the United States shall deem it necessary for the suppression of this rebellion, he shall issue his proclamation commanding all persons immediately to lay down their arms and to return to their allegiance to the United States; proclaiming that if any person within any State or district declared by him in a stale, of insurrection, shall be found in arms against the Government of the United States thirty days after the date of such proclamation, or giving aid and comfort to the present rebellion, the slaves of all such persons, within such State or district, shall be made free, and thereupon the slaves of all such persons, at the expiration of said thirty days, shall be free and forever discharged from any and all claim to their labor or service, any law or custom of any State notwithstanding Very person. who hereafter commit the United States, as defined by he first section of the act of April  Will be convicted on confession in open court, or on

Mr. Saulsbury said: "The only intention of the section, as a whole, is to attempt to confer on the President a power which this Congress cannot confer on him, and that is to liberate slaves in the States by proclamation. If any benefit could result to the country from any 6uch proceeding, certainly some benefit would have been experienced heretofore, for we have had two or three generals attempting that game."

Mr. Trumbull, of Illinois, followed in favor of a still stronger section, saying: "I shall vote with the Senator from Delaware to strike out this ninth section; and I hope that all the friends of a really efficient measure will vote with me. Let us strike it out, and put in a Page 361 section that will be effective. Let us strike out this section, and then afterward we can supply its place with a section making it the duty of the President to issue this proclamation, if you propose to give the thirty days' notice. I would free the slaves of all who shall continue in arms after the passage of the act. That would be my proposition; and I cannot conceive how it is, when these men are with arms in their hands, as the Senator from New Hampshire said, shooting our brothers and our sons, that we can insist upon holding their negroes in their possession to enable them to shoot our sons and our brothers. I think we ought to make that section imperative."

Mr. Cowan, of Pennsylvania, objected to the bill on grounds of expediency: "I suppose there is no gentleman upon this floor who is not now of opinion that the President may, if he chooses, under the pressure of a military necessity, make such proclamation as is contemplated in this section; and I suppose further that there is no one here who believes that tinder any circumstances other than a pressing necessity he would order and direct such a proclamation to be made.

"I may say further, Mr. President, that I am exceedingly sorry that at this stage of the business we seem to be tending toward a rock upon which, in my opinion, we shall inevitably and fatally split, and that very soon, for I think if there is one truth well established in the world it is that our guide in constitutional legislation is the will of the people—I mean of the majority. What are we doing here to-day f Laws are proposed, the operation of which is to be confined to the Slave States. A number of those States are represented in this Chamber by loyal men, men of approved loyalty and patriotism. What are they here for? They are here to lot us know what the will of the people is in those States where these laws are to operate.

"Now, Mr. President, it is not a question whether the opinions and beliefs of that people are in accordance with our views. Suppose thorn to be erroneous opinions and erroneous beliefs, and having for their end, aim, object, and purpose to sustain a mischievous and dangerous system, yet, sir, we cannot disguise the fact that they do exist there, and for my own part, I cannot relieve myself from the obligation to respect them. How is it in the North? We of the majority forget here that we do not represent the whole people of the North. We do not represent the opinions and the beliefs of all the people of the Free States upon this subject. We forget that there is another and a powerful party all through the North everywhere who are utterly and totally hostile, if we are to be allowed to take the ordinary indications of public opinion, to this system of legislation, this system of congressional emancipation and liberation, no matter under what shape or form you disguise it. Well, how are we to maintain ourselves with ono half of the people of the Free States against it; and I think the gentlemen who represent the border States will say to us that their people are unanimously opposed to it. Under these circumstances, it does not matter to me a particle what my opinions may be, what my belief may be. We are hero to legislate for the people. We are here, in the first place, to stand upon the Constitution, because the Constitution is paramount, and no matter what the will of the people might be, if the will of the whole people were in favor of any particular project which is unconstitutional, it is our duty to throw out that project and discard it; but where the legislation is constitutional, and within the purview of that instrument, then our next guide is the will of the people. Now, I ask Senators who come from the Free States, do you believe, do you suppose that you can get along here and suppress this rebellion by disregarding what these gentlemen from the border States tell us?"

Mr. Wilson, of Massachusetts: "We have so far." Mr. Cowan: "Tho Senator from Massachusetts says we have so far; and where are we now; how far have we got? We have gotten so far that oftentimes the heart of the patriot despairs. And do we strengthen ourselves by violating the opinions and the beliefs and feelings of these men? Are we making them friends? I think it is exceedingly unkind to the representatives from those States here. What right have we to drive away from the Senators from Virginia the friends who have stood about them in these dark hours? What right have we to do the same with the Senators from Missouri, or the Senators from any border State? Is that proper treatment? I would defer to those gentlemen as to all things relating to their own States, and as to all laws which are to operate on their own people Upon what presumption do we decide that they are not interested in putting down this rebellion—ay, even more than we are? I should like to know from the honorable Senator from Massachusetts how he comes to know better than they do how to put down this rebellion."

Mr. Wilson, of Massachusetts, replied: "I take it that some of us have studied this question quite as long as the Senator from Pennsylvania, or gentlemen of the border States; that we have looked into it quite as minutely, and that we have a right to our opinions. I see no reason why I should give up my opinions to those of any gentleman from the border States. I do not know anything in the history of this contest, from the time it opened in the attack on Fort Sumter up to this time, in the advice we have received from gentlemen of the border States, whether we have followed it or not, that entitles their opinions to any more weight than the advice received from any other portion of the country. I think the history of this war shows that if we have failed anywhere, it has been because too much deference has been paid by the Government, and by Congress, to Page 362 those opinions. As we look back over the history of the past, we see it. It marks every furlong of this contest. Our own feebleness of purpose, our own deference to fears and anxieties, have prolonged the contest, and have cost us hundreds of millions of dollars, and thousands of lives. That is my judgment."

A contest, as indicated in the preceding remarks, had arisen in the Senate upon the bill reported by the committee. Some Senators wanted a more stringent bill, whilst others were satisfied with the report.

Mr. Sumner, of Massachusetts, one of those who desired a more stringent measure, spoke of the report thus: Mr. President, there is a character in one of Dickens's novels, who says to another, 'Take a glass of water, put into it a little piece of orange peel, and then make believe very hard and you will have a strong drink.' Now, sir, I would apply these words to the bill of the committee. It is like a glass of water with a bit of orange peel in it, and if you make believe very hard you may have a strong bill. To my mind, it amounts to nothing. It only plays with the subject. At a moment when the life of our Republic is struck at, Senators propose to proceed as if by an indictment in a criminal court. I have, therefore, no sympathy with the bill. It is inadequate to the occasion. It is a perfect nonentity. And yet, sir, I took part in raising the committee which has reported the bill. I remember well that my friend from Ohio (Mr. Wade) said, when we wore considering whether that committee should be raised, that confiscation would be lost by it, and I replied to him at once that he was mistaken, that confiscation would be saved by it. Such was my opinion."

Mr. Collamer, of Vermont, was brought to his feet by this speech. He said: "I have been perfectly silent upon this particular bill, willing that the subject should be treated by all men in their own way, according to their own tastes; but when I am appealed to by name, personally, I suppose I am not at liberty to sit still. Common courtesy to the honorable Senator will not admit it, though he thinks that I am one of a committee that helped to concoct a measure like putting a piece of orange peel into a tumbler of water, for the purpose of deceiving and duping Senators: addressing myself to their faith to make them believe there was great virtue in it, when I knew there was nothing in it—a sort of bread pill. He accuses me of that, and calls that courtesy."

Mr. Sumner replied: "Tho Senator misunderstands me when he says I attribute any such motive to him."

Mr. Collamer thus described the course taken in the debate: "At almost every step in the consideration of this subject, Senators have indulged in terms of reproach to those who differ with them in opinion—terms of contumely— terms which impute to them all sorts of bad motives; more than intimating that they are leagued with the enemies of the country to get votes, and that that is their purpose. Now, sir, I am aware that the history of the world is full of that sort of spirit. I have long experienced it here. It has sometimes been called the crack of the plantation whip. No matter in whose hands it is wielded, the music of that whip is the same, the sound is the same, and the effect is the same. It is totally immaterial whether that spirit is indulged in relation to one subject or another. Whether, by the bigotry of religious sentiment, it sends a man to the auto date, or whether it sends a man to the guillotine under political excitement, it is all the same the world over." The discussion became somewhat of a personal nature, and was continued at considerable length between the Senators of extreme and those of conservative views.

Meantime the subject had been taken up in the House of Representatives, and extensively debated, with nearly similar arguments to those advanced in the Senate. Mr. Thomas, of Massachusetts, among other speakers, in opposition to the bill, thus spoke: "Mr. Speaker, no man can desire more earnestly than I do the suppression of this rebellion, and the restoration of order, unity, and peace. But there are two things I cannot, I will not do. I will not. trample beneath my feet the Constitution I have sworn before God to support. I will not violate even against these rebels the law of nations as recognized and upheld by all civilized and Christian states. I believe I must do both, to vote for these bills, and at the same time do an act unwise and especially adapted to defeat the end in view, if that end be the restoration of the Union and the salvation of the Republic.

"I propose very briefly to examine the bills before the House (and especially that as to confiscation of property) under the law of nations and under the Constitution of the United States, and then to say a word upon their policy.

"The positions assumed by the friends of these measures are, that we may deal with those engaged in this rebellion as public enemies and as traitors; that regarding them as enemies, we may use against them all the powers granted by the law of nations; and viewing them as rebels or traitors, we may use against them all the powers granted by the Constitution; and that in either view, these bills can be sustained.

"Dealing with them as public enemies, it is said that under the existing law of nations we have a clear right to confiscate the entire property on the land as well as the Bea, real and personal, of those in arms, and of non-combatants who may in any way give aid and comfort to the rebellion. This first bill sweeps over the whole ground. I deny the proposition, Mr. Speaker. In the name of that public law whoso every humane sentiment it violates; in the name of that civilization whose amenities it forgets and whose progress it overlooks; in the name of human nature itself, whose better instincts Page 363 it outrages, I deny it. Such is not the law of nations.

"To give a plausible aspect to the proposition, the advocates of this bill have gone back to Grotius and to Bynkershoek for the rules of war, and even then have omitted to give what Grotius calls the temperaments, or restraints upon the rules. You might as well attempt to substitute the code of Moses for the beatitudes of the gospel. Anything can be established by such resort to the authorities.

"But what then, Mr. Speaker? Does any man suppose that these writers give us the laws of war as upheld, sanctioned, and used by the Christian and civilized states of to-day? Nothing would be further from the fact. Commerce, civilization, Christian culture, have tempered and softened the rigor of the ancient rules; and the state which should to-day assume to put them in practice would be an outcast from the society of nations. Nay, more, they would combine, and rightfully combine, to stay its hand. For the modern law of war, you must look to the usages of civilized states, and to the publicists who have explained and enforced them. Those usages constitute themselves the laws of war.

"In relation to the capture and confiscation of private property on the land, I venture to say, with great confidence, and after careful examination, that the result of the whole matter has never been better stated than by our own great publicist, Mr. Wheaton:

But by the modern usages of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country.—Elements of International Law, p. 421.

"It is not too much to say that no careful student of international law will deny that this passage from Mr. Wheaton fairly expresses the modern usage and law upon the subject; but you will permit me to refer for a moment to the doctrine stated by my illustrious predecessor, whose name has been so often invoked in this debate, John Quincy Adams. 'Our object,' he says, in a letter to the Secretary of State, 'is the restoration of all the property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.' 'All private property on shore was of that description. It was entitled by the laws of war to exemption from capture.' (Mr. Adams to the Secretary of State, August 22, 1815.)

"Again, he says, in a letter to Lord Castlereagh, February 17, 1816:

But as by the same usages of civilized nations private property is not the subject of lawful capture in war upon the land, it is perfectly clear that in every stipulation private property shall be respected, or that upon the restoration of places during the war, it shall not be carried away.—4 American State Reports, pp. 116, 117, 122, 123. "

A volume might be filled with like citations from modern writers. I will content myself with perhaps the latest expression, and from a great statesman, a native of Massachusetts, and of my own county of Worcester:

The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities. * * * It is a generally received rule of modern warfare, so far at least as operations upon land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual property by an army even in possession of an enemy's country, is against the usage of modern times. Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circumstances. Every consideration which upholds this conduct in regard to a war on land favors the application of the same rule to the persons and property of citizens of the belligerents found upon the ocean.—Mr. Marcy to the Count de Sartiges, July 28, 1856.

"Such I believe to be the settled law and usage of nations. A careful examination of the arguments made on this subject has served but to strengthen and deepen this conviction.

"I do not forget, Mr. Speaker, that the case of Brown vs. The United States (8 Cranch, 110), has been often referred to in this debate as affirming the contrary rule. The points decided in that case I have before stated to the House. The points, the only points, decided were that British property found in the United States on land, at the commencement of hostilities (war of 1812), could not be condemned as enemy's property without an act of Congress for that purpose, and that the declaration of war was not sufficient. Gentlemen have referred to the obiter dicta, the discussions of the judges, as the decision of the court. The distinction is familiar and vital, but has been lost sight of in this debate. Only the points necessarily involved in the result constitute the decision.

"But I return from this digression to say, Mr. Speaker, that the distinction sought to 1)3 established by the passages cited from the discussions, in the case of Brown vs. The United States, between the law of war and the mitigations of that law which the usages of modern nations have introduced, has no foundation in principle. It is in the usages of civilized and Christian nations that we are to seek the law of nations. As the law merchant has grown up from the usages of trade and commerce, so has the modern law of nations grown up from the usages of enlightened states. The ancient barbarous rules of war have been tempered and softened by commerce, by the arts, by diffused culture, and, more than all, by the spirit of the gospel; and all Christian states recognize with joy and with obedience the milder law. In the jurisprudence of nations, as in our own, there is one law felt above all others, the law of progress. Apparently at rest, it is ever evidently Page 364 moving onward, quickened, purified, and illumined by the inspiration of that higher law, 1 whose seat is the bosom of God, and its voice the harmony of the world.' The great, prophetic thought of Pascal may yet be realized— 'Deux low wffisent pour regler la repuhlique ehretienm, mieux que toutes leg lots politiques: Vamour de Dieu, et eelui du proehain.''

"I do not know that I can more fitly conclude what I can say, in the brief time allotted to me, on the capture and confiscation of the private property of rebels, viewed in the light of international law, than in the words of John Marshall, near the close of his judicial life:

It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law—

mark the words, Mr. Speaker, 'the modern usage of nations, which has become law'—

would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change, their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of on amicable cession of territory?—United States vs. Percheman, 7 Peters, 51.

"It is against the light of these considerations and authorities, and against the prevailing law and judgment of the Christian world, that it has been so often confidently, I will not say flippantly, asserted on this floor that there could be no doubt of our power, under the law of nations, to seize and confiscate the entire property of the rebels, as public enemies.

"I pass to the second branch of the subject, our power under the Constitution to pass these bills. It has been often said, in the course of this debate, and in terms without qualification, that the rebels hold to us the twofold relation of enemies and traitors, and that we may use against them all the appliances of war and all the penalties of municipal law. To a certain limited extent the proposition is sound. Treason consists in levying war against the United States. The act of treason is an act of war, and you use the powers of war to meet and subdue traitors in arms against the Government.

"It is also true that, in the relations between the Government and its subjects, the rightful power of punishment does not necessarily cease with the war; but is it also true that you can exercise both powers at the same time? And is not here the utter fallacy of this whole argument? Take an example. You have been accustomed to exchange flags of truce; you have recognized, to a certain extent, belligerent powers. An officer of the rebel army comes to you under a flag of truce: can you take him from under that flag and hang him for treason? He stands to you in the double relation of enemy and traitor, but you cannot touch a hair of his head while he is under that white flag. Take another case. You have stipulated for an exchange of prisoners of war. The cartel has been sent, and the prisoner of war is on his way to make the exchange. Does any man on this floor say that you can take him on his way and try and hang him? And if not, why not? The plain answer is, because having recognized him as under the law of nations, while he is subject to its power, he is entitled to its protection.

"Pass what bills we may, Mr. Speaker, when the war is ended these questions will come up to be settled. I hope I may be pardoned for saying, with great respect, to my friends on all sides of the House, that they will be as difficult questions as statesmen or jurists were ever called upon to decide, and that it is wise to reserve, as far as possible, our judgment. No thoughtful man will content himself with the declaration that belligerent rebels have no rights. Passion may say that, reason never. Passion, sooner or later, subsides, and reason reascends the judgment seat, and these questions must be answered there and to that august tribunal before which the conduct of men and nations passes in review—the enlightened opinion of the Christian world. Such questions are, how far, flagrante bello (while war was raging), with respect to prisoners of war the civil power was restrained; how far the treating with rebels and exchanging them as prisoners of war may affect their punishment as traitors, either in person or property. I express no opinion, except to say they must be calmly met and answered.

"But assuming, for the sake of argument, that during the war even, and while recognizing their belligerent rights, you may visit upon the rebels the full force and weight of the municipal law, I proceed to inquire whether the mode proposed by these bills is in conformity to tlfo organic and supreme law, the Constitution of the United States. I am not to be deterred from this discussion by any suggestions from weak or wicked men—none other can make them—of leniency to rebels and compassion for traitors. There is but little elevation in contempt, but such suggestions do not rise high enough to meet it. They pass by me as the idle wind. If a man has no other arrows in his quiver, let him use these; I am content.

"The favorite argument, Mr. Speaker, of those who claim for Congress the power to confiscate the property of traitors without trial by jury is, that the want of this power would show a fatal weakness in the Constitution and a lack of wisdom and foresight in its framers. They will not believe the Constitution is so weak and helpless, so incapable of self-defence. Nothing, in my judgment, so shows its majesty and strength, pray God, immortal strength. the powers of war are almost infinite. The resources of this vast country spring to your open hand. All that men have, even their lives, are at the service of their country; and Page 365 in this great conflict how nobly and freely given! You can raise an army of seven hundred thousand men; you can give them all the best appliances of war; you can cover your bays and rivers and seas with your navy; you can blockade a coast of three thousand miles; you may cut down the last rebel on the field of battle. Such is the power of war. But, Mr. Speaker, when you shall have used all these powers, when peace shall have been restored, or when the rebels shall come and lay themselves at your feet, or be taken captive by your arms, then, also, will the power of that Constitution be made manifest; then, also, will this Government be shown to be the most powerful and the noblest on the earth, not because the captured rebel is at your mercy, but because he is not. Because, under the shield of the Constitution, the rebel at your feet is stronger than armies, stronger than navies. You cannot touch a hair of his head or take from him a dollar of his property until you shall have tried and condemned him by the judgment of his peers and by the law of the land. Does this show the weakness of the Constitution, or does it show its transcendent strength? Are these written constitutions established to give to Government power, without limit, over the property, liberty, and life of the citizen, or are they made to define and limit the power of the Government, and to shield and protect the rights of the subject?

"I have always been taught that the people is the sovereign; that these constitutions are carefully defined grants from the sovereign power, so framed as to establish justice, and at the same time secure the blessings of liberty and the protection of law even to the humblest and meanest citizen. I know, Mr. Speaker, that those are getting to be old-fashioned sentiments. Magna Charta is soiled and worm eaten. The Bill of Rights, the muniments of personal freedom, habeas corpus, trial by jury, what are they all worth in comparison with this new safeguard of liberty, the proceeding in rem? 

"Was you ever at Runnymede, Mr. Speaker? I remember going down, on a beautiful day in July, from Windsor Castle to the plain, and crossing the narrow channel of the Thames to that little island on which, more than six centuries ago, in the early gray of morning, those sturdy barons wrested from an unwilling king the first great charter of English freedom—the germ of life of the civil liberty we have to-day. I could hardly have been more moved had I stood in the village and by the manger in which was cradled 'the Son of Mary and the Son of God.' From the gray of that morning streamed the rays which, uplifting with the hours, coursing with the years, and keeping pace with the centuries, have encircled the whole earth with the glorious light of English liberty—the liberty for which our fathers planted these commonwealths in the wilderness; for which they went through the baptism of fire and blood in the Revolution; which they imbedded and hoped to make immortal in the Constitution; without which the Constitution would not be worth the parchment on which it was written.

"But I must not linger by the way, Mr. Speaker. What do these bills propose? The immediate object is to confiscate the property of the rebels. For what end? For punishment, is it not? If you strip these men of their property, it is not because they are innocent, although this bill does, in fact, confiscate the property of persons who may be guiltless of any offence. But the theory of the bill is to punish men for the crime of rebellion, or treason, or give it what name you will. The bill, indeed, recites, as an ulterior purpose, the payment of the expenses of the rebellion. But there is no man on this floor so verdant as to suppose this means much. If the courts enforce the statute (I believe they will not), how much treasure can you wring from those States, poor at the best, but whom the close of this war will leave impoverished, seared, and swept, as by fire? You might as well pasture your cattle on the desert of Sahara. The land will indeed be loft, but who will be your purchasers, when they know they must take at the best a doubtful title, but a sure, bitter, and lasting feud. The strife and hate growing out of the confiscations of the Revolution are scarcely yet appeased, and it was with these confiscations fresh in the memories of the framers of the Constitution that the limitation of the power of forfeiture was adopted. There never was a wilder dream than that of paying the expenses of the rebellion with the fruits of confiscation.

"The real object of the bill is punishment, the punishment of an offence clearly defined in the Constitution, of the highest offence known to the laws. The punishment is the forfeiture of the property of the offender. The forfeiture is to be established before judicial tribunals, and upon proof of the guilt of the owner. You have, then, these three elements: punishment —upon proof of the commission of crimes—before a judicial tribunal. One element is wanting. One has been diligently excluded—trial by jury. Human ingenuity has been exhausted to shut the door against it, and your bill is like Hamlet with the Prince of Denmark omitted by particular request. Hero is the plain imperative mandate of the Constitution, which he who runs may read:

 The trial of all crimes except in cases of impeachment, shall be by jury.—Constitution, art. 3, sec. 2.

"The property to which the bill applies is not, under the law of nations, prize, it is not booty, it is not contraband of war. It is not enforced military contribution. It is not property used or employed in the war or in resistance to the laws, and, therefore, clearly to be distinguished from that covered by the statute of August 6, 1861. It is private property outside of the conflict of arms, forfeited not because it is the instrument of offence, but as a penalty Page 366 for the crime of the owner. The disguise of the proceeding in rem is too thin and transparent. No lawyer, no man of common sense will be deceived by it. The proceeding in spirit, in substance, and effect, is the punishment of treason by the forfeiture of a man's entire estate, real and personal, without trial by jury, and in utter disregard of the provision of the Constitution which limits the forfeiture for treason to the life of the person attainted. (Article 3, section 3).

"Was there ever a bolder contrivance to get around the plainest and most sacred provisions of the Constitution than this attempt to get a man's farm, his cattle and fodder, his plough, spade, and hoe into a maritime court and try them by the law of prize? With all respect for my excellent friends upon the committee, such a proposition 'shocks our common 6cnse' as well as our sense of justice and right. You make the plea of necessity, and necessity is the mother of invention; but do you expect to satisfy sensible men, when reason resumes its sway, that under a Constitution which defines treason to consist in levying war against the United States, which will not suffer the traitor to be condemned except by the judgment of his peers, and when condemned will not forfeit his estate except during his life, you can, by this proceeding in rem, without indictment, without trial by jury, without the proof of two witnesses (article 3, section 3), for treason, for the act of levying war, deprive him of all his estate, real and personal, for life and in fee? Nay, more; and that, after he has thus been punished, without trial by jury, and by the loss of his whole estate, you can, for the same act of levying war, try him and hang him? To suggest a doubt whether, after all, this is plain sailing under the flag of the Constitution, is to have too nice constitutional scruples !"

After examining the details of the confiscation and emancipation bills, Mr. Thomas proceeded thus: "That the bills before the House are in violation of the law of nations and of the Constitution I cannot—I say it with all deference to others—I cannot entertain a doubt. My path of duty is plain. The duty of obedience to that Constitution was never more imperative than now. I am not disposed to deny that I have for it a superstitious reverence. I have 'worshipped it from my forefathers.' In the school of rigid discipline by which we were prepared for it, in the struggles out of which it was born, the seven years of bitter conflict, and the seven darker years in which that conflict seemed to be fruitless of good, in the wisdom with which it was constructed and first administered and set in motion, in the beneficent Government it has secured for more than two generations, in the blessed influences it has exhorted upon the cause of freedom and humanity the world over, I cannot fail to recognize the hand of a guiding and loving Providence. But not for the blessed memories of the past only do I cling to it. He must be blinded with excess of light, or with the want of it, who does not see that to this nation, trembling on the verge of dissolution, it is the only possible bond of unity. With this conviction wrought into the very texture of my being, I believe I can appreciate this conflict, can understand the necessity of using all the powers given by the Constitution for the suppression of this rebellion. They are, as I believe, and as the progress of our arms attests, ample for the purpose. I do not, therefore, see the wisdom of violating or impairing the Constitution in the effort to save it, or of passing from the pestilent heresy of State secession to the equally fatal one of State suicide. The fruits of the first are anarchy and perpetual border war; of the second the growth of military power, the loss of the centrifugal force of the States, the merging of the States in the central Government; a republic in name and form, in substance and effect a despotism."

Subsequently the bill before the House was passed, and sent to the Senate. It came up before that body on the 25th of June.

Matters had now reached a crisis in the Senate. A few of its members, determined, if possible, to secure the passage of all such measures as would extinguish slavery, conceiving that they had now reached the great and crowning act to be adopted. In the heat of their zeal, they had overlooked the Constitution and the courtesy due to the halting, conscientious convictions of more cool and considerate members. The result of the struggle which ensued was such as to convince these extreme Senators that the Senate was not yet ripe for, or 'educated up to' a compliance with their wishes.

Mr. Browning, of Illinois, took the floor. The special order was this bill from the House, and a substitute which had been moved. He said: "I deny and I defy, though I do not like to use that word, any man to point to one single word or letter in the Constitution which confers upon Congress any power to do any act in the exigency of war which it cannot do in times of peace. There, sir, is where the heresy lies. I give the Senator (Mr. Sumner's) own words, and while I desire to treat him with every possible respect, and have yielded to him repeatedly—a thing the Senator rarely does for the accommodation of anybody—I feel it incumbent upon me, as an American citizen, to say nothing of my position as a Senator, to enter my most earnest protest against this dangerous and revolutionary heresy that the powers of Congress are enlarged and amplified by a state of war. It overthrows the Government and accomplishes here in this Chamber what the rebels have not accomplished, and never can accomplish.

"Such, sir, are the extremities to which the Senator is driven, the inconsistencies in which he is involved, by his effort to compass an object which, in my humble judgment, is not only unconstitutional, but which, if successful, will Page 367 be fatal to the integrity of the Government itself, and change its entire character. Is it uncharitable to say that another object seems to lie much nearer the gentleman's heart than the crushing out of the rebellion and the reestablishment of the authority of the Government in all the States?

"I avow my object to be, with all the terrible enginery of war, to crush down and trample out, at once and forever, this wicked and diabolical rebellion; then to pursue and blast its leaders and fomenters with the severest punishments that can be visited upon this most malignant and unpardonable treason, and to win back the hearts of the deluded masses to the good old Government which protected them through all the past, and which they cannot, even no remember without a tear of gratitude-and a sigh of regret, and from the shelter of which they were cruelly enticed away to be exposed to the pelting of the pitiless storm of treason and rebellion which has wasted their fortunes, desolated their homes, murdered their families, embittered their lives, and darkened all" their future. I wish to win them back; and, as the strongest possible inducement to return, I wish them to be fully assured that when they come they will find the same beneficent Government to which they had proved faithless, as magnanimous in mercy, as bounteous in blessing, as equal in justice, as strong in protection, as when they betrayed it. Through weal and through woe, in the sunshine of peace and amid the storm and tempest of war, I wish to stand by the Constitution. I desire that every battle fought and every victory won, shall be fought and won under the Constitution and for the Constitution, and that every life that is poured out in this terrible strife shall be a libation to its great principles. Let us stand by the Constitution. We shall need its protection hereafter more than we ever have heretofore. "We shall need its restraints in the times to come more than we ever have in the times that are past. When, hereafter, this Chamber shall be filled with Senators, fresh from the battle-field, whose laurels are yet green upon their brows, accustomed to command, and impatient of restraint, let there be no act of ours to be drawn into bad precedent in breaking down the bulwarks which the Constitution has erected for the security of the people. Let us leave no record behind to be pointed at as authority for encroachment upon the powers and prerogatives of a coordinate department. Power is always grasping, always struggling for the enlargement of its dominion. If we begin by denuding the Executive, how long will it be before the judiciary is stripped of its ermine, and all power concentrated in the hands of an irresponsible legislature? When that is done, the history of the Republic is closed and the history of anarchy and despotism begins its melancholy record of tyranny and oppression and confusion and blood."

Mr. Hale, of New Hampshire, said: "Sir, t, doctrine has been advanced on this floor again and again, and reiterated and promulgated, which, to my mind, is more fatal in its character, more destructive of the Government, more at war with every principle of the Constitution, than secession itself. It is the doctrine that would concentrate all the executive power of the nation—when I say executive power, I speak of it in its broadest sense, its power of activity, its energy, its power to be something and do something—in the President of the United States, negativing and denying to Congress any power at all. If that doctrine prevails your Constitution is gone, the dream of your fathers is over, the idea of a republic has vanished like the clouds of the morning before the rising glories of the sun, a practical despotism has stolen in upon us while our guardians have slept, the Constitution is perverted, and we are but a monarchy, having a name to live while we are in fact dead.

"I confess, sir, that if that is to be the Constitution we are to have left when the war is over, it is a matter of indifference to mo whether the Federal or the confederate States prevail, for either of them will have but au iron despotism."

Mr. Sumner, of Massachusetts, thus explained what he regarded as the war power of the Government: "Pray, sir, where in the Constitution is the limitation of the war powers of Congress? Let Senators who would limit them mention a single section, line, or phrase, which even hints at any limitation. If it he constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battle—all without trial by jury or any process of law or judicial proceedings of any kind—it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves. Nor can it be doubted on principle that if the latter be unconstitutional, then are all the other agencies of war unconstitutional. You may condemn confiscation and liberation as impolitic, but you cannot condemn them as unconstitutional unless, in the same breath, you condemn all other agencies of war, and resolve our present proceedings into the process of a criminal court, guarded at each step by the technicalities of jurisprudence.

"Sir, I speak frankly, according to my convictions, claiming nothing for myself which I do not freely accord to others. In this discussion there is no need of sharp words or of personal allusions of any kind: nor can anything be gained by any misstatement of the position of another. It is easy to say that Senators who insist upon the war powers of Congress are indifferent to the Constitution; but I do not admit that any Senator is more anxious for the Constitution than myself. The war powers of Congress are derived from the Constitution, but, when once set in motion, are without any restraint from the Constitution, so that what is Page 368 done in pursuance of them is at the same time under the Constitution and outside the Constitution. It is under the Constitution in its beginning and origin. It is outside the Constitution in the latitude with which it may be conducted. But, whether under the Constitution or outside the Constitution, all that is done in pursuance of the war powers is constitutional. It is easy to cry out against it; it is easy, by misapplication of the Constitution, to call it in question; but it is only by such a misapplication, or by a senseless cry, that its complete constitutionality can for a moment be drawn into doubt.

"The language of the Constitution is plain and ample. It confers upon Congress all the specific powers incident to war, and then further authorizes it to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' Here are the precise words:

The Congress shall have power to declare war, to grant letters of marque and reprisal, to make rules concerning captures on land and water, to raise and support armies—to provide and maintain a navy; to mate rules for the government and regulation of the land and naval forces: to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

"Can language be clearer? There may be other parts of the Constitution open to question; but there is no room for question here. The text is full and unequivocal. The powers :ire enumerated. Without stopping to consider them in detail, it will be seen that the most important are exclusively incident to a state of war, and not to a state of peace. A declaration of war is of course war, and 'all laws necessary and proper for carrying into execution' this declaration are called into being by the war."

Mr. Browning, of Illinois, took up the positions advanced by Mr. Sumner, thus: "I intend to notice a few of the propositions of the Senator from Massachusetts. A fair example of his construction of constitutional provisions is found in his commentaries on this clause:

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

"A custom obtained, a right of war was exercised by the British Government of quartering soldiers in private houses for their maintenance; not putting them in hospitals, sick and wounded, to be cared for; but soldiers who were engaged in the active prosecution of war. They quartered them, without the consent of the owners, upon the families of citizens, to be supported and maintained as long as the Government chose at the cost of the citizen and without his consent. The Senator, to make his construction of the Constitution good upon other clauses as well as this, tortures this into a clause which would prohibit, if it were enforced, the taking of a rebel house to be used for the purposes of a hospital, or the appropriation of the house of any of our own citizens for hospital purposes. Now, sir, if the Senator really believes that the cases he has cited are within the purview of this clause of the Constitution, I certainly shall despair of ever producing any impression upon him by any constitutional argument I could enter into with him. And yet I think it is a fair specimen of his interpretation of all the clauses of the Constitution upon which he relies to establish his claim of despotic power; I will not say 'slavish;' I will not, as was said the other day, 1 bandy words,' but I will say a claim of absolute and despotic power for a single department of the Government.

The Senator claims that absolute and despotic power for Congress in the conduct of the war, and calls with something of an air of triumph upon those of us who deny it to point him to the limitation which the Constitution imposes upon the war powers of Congress. Mr. President, I have always understood the Constitution of the United States to be a grant of powers. It is true there are limitations. Its framers were not content with simply withholding grants; but in some cases—and that of confiscation' was one—not content with withholding a grant of power, the convention did proceed to impose express limitations, and negatived the possession and use of any such power. It did so in several instances. But, sir, the Constitution, instead of being a limitation upon the powers of Congress in the sense in which the Senator speaks of it, is a grant of powers, and Congress can exercise no power relating to war or peace that is not expressly granted to it by the Constitution.

"And now, sir, I ask him, when he claims this unlimited and despotic power for Congress on the conduct of the war, to point me to the grant of power in the Constitution, and not content himself by turning with an air of triumph and saying 'gentlemen have pointed to no limitation in the Constitution upon the war power.' Where is his grant of power? The only place that he professes to find it, I believe, is here:

Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers—

the powers previously granted— and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

"Mr. President, I ask, is it seriously contended that the powers of Congress are one atom greater by the insertion of this provision than they would have been if it had never appeared in the Constitution at all?

"The gentleman insists that the Constitution confers upon Congress all the rights of war. I think I do not state him too largely. He says, in addition to that, that all the powers that are Page 369 granted to the President by the Constitution may be used by him in association with Congress; that he has no power which Congress may not, if it chooses, associate itself with him in the exercise of. One of the powers of war is the power to command the army. Does the Senator intend to be understood as insisting that Congress has the right and power, under the Constitution, to take the actual command of the army in the field?"

Mr. Sumner: "Is the Senator serious in putting the question?"

Mr. Browning: "Unquestionably, I am serious."

Mr. Sumner: "The Senator knows very well that by the Constitution of the United States the President is commander-in-chief of the army; but he also knows very well, that by the Constitution of the United States, Congress may make all laws to regulate the duties and the powers of the commander-in-chief. That is my answer to the question."

Mr. Browning: "Mr. President, I ask the Senator whether he was serious when he asserted that all the rights and powers of war were conferred by the Constitution upon Congress; whether he was serious when he further asserted that the President possessed no power which might not be used by him in association with Congress. I am serious in asking these questions, for these are doctrines which, in my judgment, are subversive of every principle of free government, which tend to establish, and which, if carried into legislation and into operation, will establish the most odious, despotic tyranny that the world ever saw.

"I do not intend to go any further into the argument, Mr. President. The Senator, repeating what had previously been said by another Senator, that the doctrine which had been advocated upon this floor, that the President could not be controlled by Congress in the exercise of the duties peculiarly devolving upon him by the Constitution, has chosen to characterize that as absurd and slavish, and deserving only of contempt, and, I believe he added, or execration. Mr. President, harsh and vulgar words prove nothing but the passion and malignity of him who uses them. They constitute no argument; they deserve no answer."

Mr. Howard, of Michigan, followed, saying: "I rise, Mr. President, to detain the Senate for a few minutes in the discussion of one single proposition, which has been frequently insisted upon during this debate respecting confiscation, that has run through so many weeks of this session —I mean the proposition which asserts the absolute authority of the President of the United States as derived from that provision of the Constitution which declares that he shall be commander-in-chief of the army and the navy and of the militia of the several States, when called into the actual service of the United States. If I understand this proposition correctly, it may be stated briefly thus: that in virtue of the clause of the Constitution which I have recited, the Executive of the nation has the absolute, independent, irresponsible authority to control, use, and employ the army and the navy of the United States, and all the implements and instruments of war, as he pleases, not being, in these regards, subject to the control of Congress in any degree, and not being in any sense or degree responsible to Congress for the exercise of this supposed power, and not being subject to any legislation which the two Houses of Congress may adopt in reference to his authority.

"The question which I propose to discuss, a? connected with this proposition, is, Has Congress authority under the Constitution to control and direct the President in the application and use of the military force of the nation in carrying on war, and is he bound to apply and employ it as they may direct? It is a simply question of power under the Constitution. All will admit its magnitude and importance.

"Sir, this new heresy deserves rebuke. It has been justly characterized by the Senator from Ohio (Mr. Wade) as slavish. And nothing is more certain than that, if it shall get a permanent hold on the public mind, we shall, in the no very distant future, lose our liberties or become a conquered people. And I warn the country against the insidious and fatal sophistry, as I warn them against the less insidious and far less fatal doctrine of secession. Secession must and will be refuted and put down by the arms of freemen; but when they, too, have consented to surrender the power of the sword wholly to the President, denying to their representatives all power to control him in the use of it; when Congress shall have abdicated this, the highest function of the national sovereignty, Caesar has no Rubicon to pass; the boundaries of his military command, once fixed by the Senate, are blotted out forever. The consular general becomes a military dictator, an imperator, and all the powers of the Government, civil and military, pass into his irresponsible hands; his decrees will constitute the laws of the Republic, and his praetorian bands will make the President of the United States."

Mr. Browning, of Illinois, thus replied: "I will not occupy the attention of the Senate over five minutes. As my attention was especially invited by the Senator from Michigan to a portion of his speech, to all of which I have listened with interest, I think it proper that I should make a word of reply to that part to which he invited my attention. He, like every other Senator who contends for the new doctrine he advocates, is forced to go outside of the Constitution to find authority to sustain it, and no better authority has been found by the Senator than that of Washington's commission under the Continental Congress, and the practice of the Government under the Articles of Confederation. He says that Washington himself did not assume or pretend to claim any authority independent of the appointing power. Of course he did not; the Continental Congress Page 370 was the appointing power, and the Continental Congress was competent to impose any conditions, limitations, and restraints it chose to do, and it did impose them; so did the Congress under the old Articles of Confederation. And it was the continued and repeated blundering and bungling of military operations when controlled and governed by Congress that influenced the convention to ignore the doctrine, and separate forever the direction of the army from the control of Congress. It was the very authority upon which the Senator relies to sustain his doctrine that led to a change of the doctrine, and the clothing of the President of the United States with all the authority of commander-in-chief. Now, sir, the Constitution, and not Congress, is the appointing power of the commander-in-chief of the army and navy of the United States, and he is subject to all the restraints that the Constitution imposes upon him, and he is subject to none others. Congress can impose no restraint upon any power that is necessary to the execution of the office with which the Constitution clothes him.

"The gentleman, however, attributes to me a denial of all control by Congress over the army, or the commander-in-chief. I am perfectly willing to stand by my sentiments as I have myself uttered them. I am not willing to have attributed to mo absurdities that I never entertained and never expressed, whether they result from a misunderstanding or from a misrepresentation of what I did say. I certainly do not intend to intimate that the Senator makes any wilful misrepresentations of my views; but they are upon record; I am willing to abide by them, defend them; bnt I am not willing to undertake the defence of all the absurdities that he suggests in interrogatories to me. I do not deny the control of Congress, and never have denied the control of Congress over the armies of the United States to the extent that the Constitution gives it control. I admit all the control which the Constitution has given; that is, Congress has power to raise armies and support armies. Congress may refuse to raise armies; it may refuse to support armies; it may disband armies after they are raised, and to that extent it can control the commander-in-chief, and to no other extent than the extent that the Constitution has authorized it to control him."

The debate was further continued in the Senate with much feeling among the members in favor of a confiscation bill. Mr. Cowan, of Pennsylvania, thus described the proceedings: "I came here with the firm conviction that it was the duty as well as the policy of the Republican party, the majority upon this floor, to take by the hand every loyal man who came from a Southern State, to forget any differences that we might have had before the territorial question of slavery (which was really settled by the election of Mr. Lincoln to the Presidency), to let that all be past and bygone, and all, unitedly, as brothers, stand together, shoulder to shoulder, in order to suppress this rebellion. Could we have done this earnestly and heartily, confining our legislation solely to such laws as were necessary to raise and support our armies in the field, we should, in my judgment, have saved life and treasure, and we should have been nearer the end than we are to-day. But what has been the course of the school to which I have alluded J Why, sir, hardly a day has elapsed here that some measure was not introduced relating to slavery, and which was calculated to irritate, to wound, and to alienate those loyal and willing friends from us. How is it now? The gulf which separates the loyal men from the border States and the ultra school of the Republican party, is nearly as wide on this floor as that which separated the secessionists and the Republicans of former times. Mr. President, is that the way to suppress the rebellion? Never, never. Do the Senators from the Slave States say you are making friends for them by your projects of emancipation and confiscation, and all that kind of thing? They will tell you, and have told you, one and all, that instead of so doing, yon are weakening them at home, and multiplying enemies against the Republic. Let the Senator from Minnesota go home and count his dead— and he has not one for every twenty that I have—and let him ask himself whether this unrelenting bitterness toward a whole people because they happen to live in Slave States, whether this fierce denunciation of that whole people at all times, and upon all occasions, without regard to their loyalty or disloyalty, whether the measures insisted upon here daily, and which were obnoxious to them, whether all that can be reconciled with an honest and sincere desire to put down this rebellion? I hope he may be satisfied with his answer; but if I were in his case, thinking as I do, I could not."

The bill from the House, which had been under consideration, was now amended by substituting the bill reported by the Special Committee of the Senate, by the following vote:

YEAS. —Messrs. Anthony, Browning, Clark, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris. Henderson, Howe, Nesmith, Rice, Simmons, Stark, Ten Eyck, and Willey—21.

NAYS. —Messrs. Chandler, Grimes, Hale, Howard, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Missouri, and Wright—17.

The bill from the House was drawn upon the principle that the confederates were belligerents, and could be proceeded against by all those measures which can be resorted to in a state of war. Those Senators who supported this bill also maintained the principle that Congress alone had the right to direct and control the war, and that the President was subject to their instructions. The key to these views is found in the fact that these Senators considered the immediate emancipation of the slaves the most important of all measures, and by this Page 371 route they hoped to achieve that end. On the other hand, the bill reported by the Special Committee of the Senate, contemplated the conviction and punishment of the traitor by due process of law, and authorized the President, whenever he deemed it expedient, to issue a prospective proclamation of emancipation. The confiscation of the property of principal offenders was the chief idea of the bill.

Mr. Trumbull, of Illinois, now moved to amend, by striking out the substitute reported by the Senate's committee, and to insert a bill from the House, authorizing emancipation. His remarks express his views on the position of the question, as follows: "Now, it is very manifest that the twenty-one Senators who voted a few minutes ago for a substitute to the House bill will never pass any confiscation bill. If it depends upon their votes, no confiscation bill will be passed, although they are quite willing to strike out a confiscation bill. The Senate has it in its power to make a law. The House has passed two bills. The Senate has the power to pass the bills of the House, and they are laws. The Senate also has it in its power to disagree with the House, and probably defeat any confiscation whatever. If some of the friends of confiscation think proper to unite with the enemies of all confiscation and disagree with the House and defeat any measure, that cannot be helped. Every Senator votes in view of his own responsibility, and if he thinks that the best course, he will, of course, pursue it. It is not my province to say anything about that for any other Senator than myself. I think that the wise policy would be, now that the House has passed measures, even if they were not quite satisfactory, to take them and enact them at once into laws. I think now it would be better to take up the other branch of the subject relating to emancipation, and substitute it, if the Senate would do so, in lieu of the amendment that the Senate proposes to adopt here; because then we shall adopt a measure that the House has agreed upon; that will be a law. But who supposes that the House will agree to the amendment that has been adopted here by the enemies of all confiscation aiding a few of its friends? Probably many persons do not want them to adopt it. That is the very thing they desire, to defeat any action. But I am for some action. I want something practical; and hence I want to agree to one of the House bills, if I cannot agree to the other; I would agree to both if I come, although they are not just such bills as I would prefer, particularly the confiscation bill."

A debate ensued which indicated much feeling on the part of the Republican Senators, who had been defeated in their bill, which was thus described by Mr. Wade, of Ohio: "Mr. President, I have witnessed, with a great deal of pain, the scenes that have been presented before us to-day in the Senate. I feel that the eye of the civilized world is upon us, and that on the Republican party of this continent now rests the question of free government throughout the world. It seems so to me; and I say I am pained the more, because it seems to me that here is a radical division that has elicited a manifestation of some degree of feeling which may tend, not only on this important question, but on others, to divide that party on whom the hopes of the whole world must rest. We have stood together, shoulder to shoulder, upon the great questions which have come before us during this session, and never, in any legislative assembly, has so much been accomplished for the welfare of mankind, for the hope of the world, as has been accomplished thus far by the action of the Republican party in this Congress. Sir, posterity will be amazed at the great work we have performed thus far."

A vote was finally reached upon the bill, which passed, as follows:

YEAS.—Messrs. Anthony, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Howe, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, and Wilmot—28.

NAYS.—Messrs. Bayard, Browning, Carlile, Chandler, Davis, Henderson, Howard, Nesmith, Pierce, Powell, Stark, Wilson of Missouri, and Wright—13.

In the House, the amendment of the Senate was disagreed to—yeas 8, nays 124.

A committee of conference on the part of each House was appointed, and the Senate bill, with amendments, was reported and concurred in by the Senate and House.

Subsequently, a joint resolution explanatory of this act was passed in the House and sent to the Senate. It provided that the bill should be so construed "as not to apply to any acts done prior to its passage; nor to include any member of a State legislature, or judge of any State court who has not, in accepting or entering upon his office, taken an oath to support the constitution of the so-called Confederate States of America."

Mr. Clark, of New Hampshire, also offered the following, to be added to the resolution:

Nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.

Mr. Trumbull, of Illinois, objected, saying: "I cannot consent to that amendment. The Senate will observe that it is a very important amendment. It provides that you shall confiscate the real estate only for life. What will that amount to? What is a life estate worth in lands in the West, where these traitors chiefly hold their real estate? It is not worth anything; it amounts to nothing."

Mr. Clark, of New Hampshire, replied: "I trust the amendment will be agreed to. It may be sometimes desirable to secure as much as we can, if we cannot get all we wish. I would desire to get the real estate in fee; but if we cannot do that, it may be worth while for us to consider whether we will not take the personal property of the individual and the real estate for life, if we cannot get the estate in fee."

Mr. Sherman, of Ohio, said: "I should like to know by what authority the Senator says we cannot get any more, because if we are acting under a kind of duress, I want to understand it."

Mr. Clark replied: "I do not say that we are acting under any duress; but it may be that there may be objections to the bill as it now stands, somewhere, and it may be that an amendment like this will cure the difficulty and enable us to get over it. I suggest to Senators whether it may not be better to adopt the amendment in that view of it, rather than to reject it."

Mr. Sherman: "If the Senator from New Hampshire will state to us in explicit language that the President of the United States will veto the bill unless we pass this amendment, I am in favor of passing it; but I want to throw that responsibility upon those who ought properly to assume it. I will not shirk myself, and I do not want anybody else to shirk. If the President desires to say that in his view of the Constitution—and I do not criticise him—he wishes this amendment in order to enable him conscientiously to sign the bill, I will pass it; but I want him to take that position before the people of the United States."

Mr. Clark: "Mr. President, I think I may say that I am authorised to declare that I do know that that is one of the objections made to the bill by the President, and it is with a view of removing that objection and inducing his signature to the bill that I offer this amendment, not that it satisfies me."

Mr. Sherman: "Then I will vote for it."

Mr. Clark: "There is one other amendment that I propose to make, and I may as well, as I am upon the floor, state what that is. I propose, after this amendment be adopted, if it shall be adopted, to move this further amendment:

"And be it further resolved. That the words granting an amnesty in the thirteenth section of said act shall be so construed as to authorize the President to restore the offender any property which may have been seized and condemned under any proceedings of this act, or the proceeds thereof."

Mr. Grimes, of Iowa, said: "Will the Senator state whether that is also at the instance of the President?"

Mr. Clark: "It is. The thirteenth section of the bill provides:

That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State, or part of a State, pardon and amnesty, with such exceptions, and at such times and on such conditions as he may think fit. "The question was, whether that would authorize him, if a man showed himself to be innocent, to restore his property; and it is only to extend the words to give him that privilege, if he finds the man has been innocent, to let him have his property back again."

Mr. King, of New York, likewise objected to the amendment, saying: "Mr. President, this mode of proceeding presents to us a question that is entirely new. "We are called upon to make a precedent as to the manner in which communications shall take place between coordinate branches of the Government in the exercise of their powers. I look upon it as a graver question, if possible, than the merits of this particular proposition.

"I am astonished that this proposition should be made. I regret it. I think it ought not to be made or acted on."

Mr. Fessenden, of Maine, said: "Now, sir, what is the part of common sense under such circumstances? If all the essential features of the bill can be retained, or if the greater number of the most essential features can be secured by yielding one, without which the bill cannot become a law, or may not become a law, what is the objection, as a matter of common sense and common prudence, to taking the best we can and the most we can under such circumstances? Is there any loss of dignity in that? Is there any loss of character on the part of the Senate? Is it better that no bill be passed with regard to this object, which gentlemen profess to have, and have, so much at heart? Is it best to have an open defiance, and to say that nobody shall have an opinion but ourselves? That would seem to be the inference from the argument. I have always been opposed to that idea. "While I am very anxious to have my own views carried out into practice, I acknowledge the same right on the part of others in the same position with myself, and those in a different position from myself, if they are to act on the same subject."

Mr. Powell, of Kentucky, proposed an amendment, saying: "I now notify the Senate that at the proper time I will move to amend the pending amendment by striking out the word 'real'. before 'estate,' so that, confining the forfeiture to life, it shall apply to all estates, both real and personal; and upon that point I will remark very briefly.

"I am clearly of opinion, and have expressed it heretofore in the Senate, that the clause in the Constitution which declares that 'no attainder of treason shall work corruption of blood or forfeiture, except during the life of the personal attainted,' applies both to personal and real estate. The chief object I have in view now, however, is to call the attention of the Senate to a very short, but in my mind a very cogent argument that cites the authorities on this subject. I have delivered to the clerk a written article upon this very subject, which was sent to me some days ago, by Judge Nicholas, of Louisville, Kentucky, who is one of the best lawyers in the country, and he has written most luminously on all this subject of confiscation and the war power. Judge Nicholas cites the opinions expressed upon this point by the Senator from Illinois (Mr. Browning), and by the Senator from Massachusetts (Mr. Sumner), and he makes his argument, adduces Page 373 his authorities, to overthrow the error into which those Senators had fallen.

"I am delighted, sir, to see that the President has indicated a desire to regard the Constitution in this measure. I pray God that he will do it in all cases, and I am sorry he has not heretofore done it more resolutely than he has. I now ask the clerk to read the manuscript that I have placed in his hands."

The Secretary read as follows:

Forfeiture—Confiscation.—" Personality, by the English law, was never forfeited by an attainder of treason. It was the realty, and the realty only, that the attainder acted on; and when they say no attainder shall hereafter work a forfeiture, they mean it shall not hereafter work a forfeiture upon the same estate that it heretofore acted upon. An attainder never did act upon the personality at all, never touched it; it affected the realty only, leaving the personality to be dealt with as the wisdom of Congress might see fit." —Senator Browning, Congressional Globe, 2171.

"It is admitted oy Senators that the words of the Constitution do not forbid the forfeiture of personal estate; so that a person attainted of treason would be made to forfeit all his personal estate, no matter what its amount."—Senator Sumner, Congressional Globe, 2190.

To prevent a repetition of such gross, pernicious blunders, the attention of those Senators and others is invited to the following citations from so familiar and accurate an authority as Blackstone's Commentaries:

"By attainder for treason or other felony, forfeiture of lands and of whatsoever else the offender possessed, was the doctrine of the old Saxon law."— Vol. 2, 251.

"Upon judgment of outlawry or of death, for treason or felony, a man shall be said to be attainted."— Vol 4, 381.

"The forfeiture of goods and chattels accrues in every ono of the higher kinds of offence: in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not," &c.— Vol. 4, 386.

"There is a difference between the forfeiture of lands and of goods and chattels. Lands are forfeited upon attainder and not before; goods and chattels are forfeited by conviction. Because, in many of the cases where goods are forfeited there never is any attainder; which happens only where judgment of death or outlawry is given. The forfeiture of lands has relation to the time of the fact committed, be as to avoid subsequent sales and conveyances; but the forfeiture of chattels has no relation backwards; so that those only which a man has at the time of conviction shall be forfeited. Therefore, a traitor or felon may, bona fide, sell any of his chattels, real or personal, between the fact and conviction, for no buyer could be safe if he were liable to return the goods he had fairly bought, provided any of the prior vendors had committed treason or felony."— Vol. 4, 337.

Therefore the Constitution, in saying " no attainder of treason shall work forfeiture except during the life of the person attainted," includes personal as much as real estate. Therefore, also, Congress can in no way, directly or indirectly, punish treason by emancipation, for quo ad the punishment of treason the owner of a slave has only a life estate, and the owner of such life estate has no power of emancipation. Or, at most, all that Congress could do in the way of penalty, would be to emancipate during the life of the owner; but this would be so manifestly unjust to the remainder-man that no fair-minded person would contend for that mode of exercising the power.

There is still a stronger reason against such exercise of the supposed power. Senator Sumner, in the same speech (page 2l90) admits: "Congress has no power under the Constitution over slavery in the States." '• Congress has no direct power over slavery in the States so as to abolish or limit it." Now, all the slave States prohibit emancipation, except in the manner their statutes specially prescribe. Congress can rightfully, legally, do nothing in reference to this peculiar property, whether by way of punishment or otherwise, in" violation of this necessary settled policy of those States. Congress may forfeit and hold, or forfeit and sell slaves by due process of law in punishment of treason, but the Government or its purchaser must take and hold the property subject to the State law.

This equally disposes of all claim of power in the President, or of one of his sub-military commanders, to emancipate by proclamation. They can have in that particular, or any other no power not given by Congress expressly or impliedly. As Congress cannot give such power directly, it cannot be implied. If claimed as an incident to the right of eminent domain, then it becomes private property taken for public use, for which just compensation must be made to the owner according to the recent precedent of emancipation in the District of Columbia. If claimed as an incident to the power of carrying on the war, then it is met by that highest authority, the Declaration of Independence, denouncing it as contrary to the usages of civilized warfare. It therefore cannot be implied in the silence of the rules and articles of war, nor can Congress rightfully make it part of them.

    Respectfully submitted by                      S. S. NICHOLAS.

The amendment moved by Mr. Powell was rejected.

Mr. Harris, of New York, thus explained the proposition before the Senate: "Mr. President, the bill in question, as it has passed both House of Congress, provides for the seizure and condemnation of the property of rebels in two ways: first, where the traitor has been proceeded against personally and convicted. In that case, the first section of the bill provides that a fine may be imposed upon him, and that his property may be sold for the payment of that fine. His whole estate in the realty ma}', under the provisions of that section, be divested. The Senator from Illinois thinks that provision is unconstitutional, and yet he has supported the bill and desires to have it a law. He thinks that, under the provisions of that section, only the life estate can be divested. So the President thinks. Thus far they agree.

"Now there is another provision of that bill which the Senator from Illinois does not seem to understand. He has stated that it is provided in the bill that the real estate of the rebel may be seized by the army, and made a prize or capture of war. The Senator is mistaken about that. The seventh section of the bill provides that where the proceeding is not against the rebel in personam, where there are no personal proceedings against him, his estate may be seized by the Government by a proceeding in rem, and condemned and sold. The President thinks that that proceeding in rem against the property instead of the person is equally unconstitutional with the other; and I am not sure that the Senator from Illinois would not think so. It is accomplishing indirectly what the first section accomplishes directly, in my judgment. The one is a judgment in rem against the property, the other is a judgment in personam, accompanied with a fine under which the property is sold. The Senator from Illinois and the President differ Page 374 widely in respect to this. The principle is the same. The Senator has entirely misapprehended, at least it would seem so from the remarks he has made, the scope and extent of the provisions of this bill in regard to proceedings in rem. If I understand the bill, the seventh section of the bill provides for the seizure of rebel property where there are no proceedings against the person, not by the army merely, but by proceedings instituted on behalf of the Government by the executive department of the Government. It seems to me that the Senator from Illinois is of all others the last person who should object to this explanatory provision by which the bill is made to conform to his own principles."

The joint resolution, with the amendments, was subsequently passed in the Senate and approved by the House.

The bill and joint resolution were signed by the President, after which he sent the following Message to the House.

Fellow Citizens of the Senate and House of Representatives:

Considering the bill for "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," and the joint resolution explanatory of said act, us being substantially one, I hare approved and signed both.

Before I was informed of the resolution, I had prepared the draft of a Message, stating objections to the bill becoming a law, a copy of which draft is herewith submitted.

                                                     ABRAHAM LINCOLN.

    July 12, 1862.

[Copy.]

Fellow Citizens of the House of Representatives:

I herewith return to your honorable body, in which it originated, the bill for an act entitled "An act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," together with my objections to its becoming a law.

There is much in the bill to which I perceive no objection. It is wholly prospective; and it touches neither person nor property of any loyal citizen, in which particular it is just and proper.

The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and persons who shall" incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any such existing rebellion or insurrection." By fair construction, persons within those sections are not punished without regular trials in duly constituted courts under the forms and all the substantial provisions of law and the Constitution applicable to their several cases. To this I perceive no objection; especially as such persons would be within the general pardoning power, and also the special provision for pardon and amnesty contained in this act.

It is also provided that the slaves of persons convicted under these sections shall be free. I think there is an unfortunate form of expression, rather than a substantial objection, in this. It is startling to say that Congress can free a slave within a State, and yet if it were said the ownership of the slave had first been transferred to the nation, and Congress had then liberated him, the difficulty would at once vanish. And this is the real case. The traitor against the General Government forfeits his slave at least as justly as he does any other property; and he forfeits both to the Government against which he offends. The Government, so far as there can be ownership, thus owns the forfeited slaves, and the question for Congress in regard to them is, "Shall they be made free or sold to new masters!" I perceive no objection to Congress deciding in advance that they shall be free. To the high honor of Kentucky, as I am informed, she is the owner of some slaves by escheat, and has sold none, but liberated all. I hope the same is true of some other States. Indeed, I do not believe it will be physically possible for the General Government to return persons be circumstanced to actual slavery. I believe there would be physical resistance to it, which could neither be turned aside by argument, nor driven away by force. In this view I have no objection to this feature of the bill. Another matter involved in these two sections and running through other parts of the act will be noticed hereafter.

I perceive no objections to the third and fourth sections.

So far as I wish to notice the fifth and sixth sections, they may be considered together. That the enforcement of these sections would do no injustice to the persons embraced within them is clear. That those who make a causeless war should be compelled to pay the cost of it is too obviously just to be called in question. To give governmental protection to the property of persons who have abandoned it and gone on a crusade to overthrow that same Government is absurd, if considered in the mere light of justice. The severest justice may not always be the best policy. The principle of seizing and appropriating the property of the person embraced within these sections is certainly not very objectionable, but a justly discriminating application of it would be very difficult, and, to a great extent, impossible. And would it not be wise to place a power of remission somewhere, so that these persons may know they have something to lose by persisting and something to gain by desisting? I am not sure whether such power of remission is or is not within section thirteen. 'Without any special act of Congress, I think our military commanders, when, in military phrase, "" they are within the enemy's country," should, in an orderly manner, seize and use whatever of real or personal property may be necessary or convenient for their commands; at the same time preserving, in some way, the evidence of what they do.

What I have said in regard to slaves while commenting on the first and second sections is applicable to the ninth, with the difference that no provision is made in the whole act for determining whether a particular individual slave does or does not fall within the classes defined in that section. He is to be free upon certain conditions; but whether those conditions do or do not pertain to him, no mode of ascertaining is provided. This could be easily supplied.

To the tenth section I make no objection. The oath therein required seems to be proper, and the remainder of the section is substantially identical with a law already existing.

The eleventh section simply assumes to confer discretionary power upon the Executive. Without the law, I have no hesitation to go as far in the direction indicated as I may at any time deem expedient. And I am ready to say now, I think it is proper for our military commanders to employ, as laborers, as many persons of African descent as can be used to advantage.

The twelfth and thirteenth sections arc something better than unobjectionable; and the fourteenth is entirely proper, if all other parts of the act shall stand. That to which I chiefly object pervades most part of the act, but more distinctly appears in the first, second, seventh, and eighth sections. It is the sum of those provisions which results in the divesting of title forever.

For the causes of treason and ingredients of treason, not amounting to the full crime, it declares forfeiture extending beyond the lives of the guilty parties; whereas the Constitution of the United States declares that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.' True, there is to be no formal attainder in this case; still, I think the greater punishment cannot Page 375 be constitutionally inflicted, in a different form, for the tame offence.

With great respect I am constrained to say I think this feature of the act is unconstitutional. It would not be difficult to modify it.

I may remark that the provision of the Constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real or landed estate.

Again, this act, in rem, forfeits property for the ingredients of treason without a conviction of the supposed criminal, or a personal hearing given him in any proceeding. That we may not touch property lying within our reach, because we cannot give personal notice to an owner who is absent endeavoring to destroy the Government, is certainly satisfactory. Still, the owner may not be thus engaged; and I think a reasonable time should be provided for such parties to appear and have personal hearings. Similar provisions are not uncommon in connection with proceedings in rem.

For the reasons stated, I return the bill to the House in which it originated.

Some of the acts of a general nature passed at this session of Congress, provided for the following purposes:

The number of members of the House of Representatives was fixed at two hundred and forty-one. Eight additional members were assigned, one each to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont, and Rhode Island.

The following additional article of war was adopted for the government of the army and navy:

Article. — All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court martial of violating this article shall be dismissed from the service.

The act for the abolition of slavery in the District of Columbia emancipated all persons of African descent held to service in the District immediately upon its passage; loyal owners of slaves only were allowed ninety days to prepare and present to commissioners appointed for that purpose the names, ages, and personal description of their slaves, who were to be valued by the commissioners. No single slave could be estimated to be worth more than three hundred dollars. The amount of these claims was to be paid to each owner after the final report of the commissioners at the end of nine months. One million of dollars was appropriated to carry the act into effect. The sum of one hundred thousand dollars was appropriated to colonize any of the liberated slaves, who might desire to go to Hayti, Liberia, or any country beyond the limits of the United States, as the President might select.

A department of agriculture was established, the design and duties of which are to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture in the most general and comprehensive sense of that word, and to procure, propagate, and distribute among the people new and valuable seeds and plants.

A commissioner, with a salary of three thousand dollars, and a chief clerk, with a salary of two thousand dollars, are the officers of the department.

An act to secure homesteads to actual settlers on the public domain, provides that any loyal citizen of twenty-one years of age or upward, or one who has filed his intention to become a citizen, may enter one quarter section or a less quantity of unappropriated public land upon which such persons may have filed a preemption claim, or is subject to preemption. The applicant must file an affidavit that the said entry is made for actual settlement and cultivation, and not for the use or benefit of any other person. No certificate is given or patent issued until the land has been occupied and cultivated for five years by the applicant. No land thus acquired can become liable for the satisfaction of any debt contracted previous to the issue of the patent. No individual can acquire title to more than one quarter section under the act.

An act was passed to provide for the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean.

The following sections of an act to punish and prevent the practice of polygamy in the Territories of the United States, &c, were enacted:

The first section punishes with a fine of five hundred dollars and imprisonment not exceeding five years, any person convicted of bigamy in any Territory of the United States.

SEC. 2. And be it further enacted, That the following ordinance of the provisional government of the Stale of Deseret, so called, namely: "An ordinance incorporating the Church of Jesus Christ of Latter Day Saints, passed February eight, in the year eighteen hundred and fifty-one, and adopted, reenacted, and made valid by the Governor and Legislative Assembly of the Territory of Utah by an act passed January nineteen, in the year eighteen hundred and fifty-live, entitled "An act in relation to the compilation and revision of the laws and resolutions in force in Utah Territory, their publication, and distribution," and all other acts and parts of acts heretofore passed bv the said Legislative Assembly of the Territory of Utah, which establish, support, maintain, shield, or countenance polygamy, be, and the same hereby are, disapproved and annulled: Provided, That this act shall be so limited and construed as not to affect or interfere with the right of property legally acquired under the ordinance heretofore mentioned, nor with the right "to worship God according to the dictates of conscience," but only to annul all acts and laws which establish, maintain, protect, or countenance the practice of polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.

SEC. 3. And be it further enacted. That it shall not be lawful for any corporation or association for religious or charitable purposes to acquire or hold real estate in any Territory of the United States during the existence of the territorial government of a greater value than fifty thousand dollars; and all real estate acquired or held by any such corporation or association contrary to the provisions of this act shall be forfeited and escheat to the United States; Provided,

Page 376 That existing vested rights in real estate shall not be impaired by the provisions of this section.

Every person hereafter elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments, except the President, is, by another act, required to take the following oath before entering upon the duties of such office:

I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help mo God.

The Confiscation, Tax, Tariff, and Militia Laws are noted elsewhere in these pages.

This session of Congress closed on the 17th of July, 1862. It was marked by industry on the part of the members, and a disposition not only to sustain the Executive in the conflict with the Confederate States, but to urge him to all such measures as should tend to liberate the slaves in those States. It is a singular fact that not a proposition for conciliation -or one that looked to a redress of any conceived grievance on the part of the South was entertained in either House. One was offered by Mr. Saulsbury, of Maryland, on the second day of the session, and immediately laid on the table. It does not appear to have been alluded to afterward, nor was any other offered. The resolutions expressing the sense of Congress on the object of the war adopted at the previous session were repudiated, and bills providing for the emancipation of the millions of slaves through the confiscation of all the property of disloyal owners in those immense Southern States, were passed into laws.

Slavery, and the laws regulating it, were abolished in the District of Columbia. Slavery was forbidden in all the Territories of the United States. Liberia and Hayti were recognized as independent republics, and as belonging to the family of nations. A new treaty, relative to the slave trade, was ratified with Great Britain, which allowed to her the liberty of searching American vessels under certain circumstances. All persons in the army or navy were prohibited from returning slaves, or sitting in judgment on the claim of their masters. The slaves of disloyal persons in the Confederate States were declared to be emancipated on coming within the lines of the Federal army. 'A resolution to tender compensation to loyal masters on the voluntary emancipation of their slaves was also adopted by Congress. (The American Annual Cyclopaedia and Register of Important Events of the Year 1861, vol. 1. New York: Appleton & Co., 1868, pp. 275-376)


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