Mr. Gooch, of Massachusetts: Mr. Speaker this bill provides for the recognition of Hayti and Liberia, and the establishment of diplomatic relations with them.

Mr. Cox, of Ohio: The gentleman from Massachusetts intends to let Hayti and Liberia send as ministers whomsoever they please to this country.

Mr. Fessenden, of Maine: What objection can the gentleman have?

Mr. Cox: Objection? Gracious heavens! What innocency! Objection to receiving a black man on equality with the white men of this country? Every objection which instinct, race, prejudice, and institutions make. I have been taught that this country was made for white men; that the government is a government of white men and that the men who made it never intended to place the black race on equality with the white.

It may be that the gentlemen on the other side intend to carry out their scheme of emancipation to the extent that they will raise the black to the equality of the white. I suppose they want to approach that object by having a colored representative in the capital at Washington. Having given national equality to the black republics do you want to go a little further and make individual, political, and social equality?

Mr. Fessenden: State your reasons, nor ours.

Mr. Cox: I recall that you stated you would rather the Union should not be restored than that slavery should continue.

Mr. Blair, of Missouri: The other day, when we had a bill before the House for the emancipation of the slaves of rebels, I offered an amendment for their colonization, against which you voted.

Mr. Cox: Yes, I did.

Mr. Blair: That looks as if you want to keep the negroes here on an equality with us. (Laughter)

Mr. Cox: The gentleman laughs and others with him. I voted against the amendment because of the great cost colonization involves. And you are a minority in your party. The men who control our legislation here are those who say that the negro has the same right to live in America as the white man has; and that he is entitled to freedom in emigration.

Mr. Blair: Yes, sir. I would give them liberty where they can enjoy it, and not where, as in these states, they cannot enjoy it. I go for giving them a country and a home and complete liberty in that country where they will be superior to any other race.

Mr. Cox:: I am with the gentleman in desiring to send the black man out of the country, or at least in preventing any more from coming into my State. The State of Indiana excludes them and I believe, like Illinois, has a colonization fund but no black goes.

Mr. Holman, of Indiana: I do not know of a single instance where a negro has consented to go.

Mr. Bingham, of Ohio: Have the kindness to let me know how you propose to dispose of these free negroes? You say you do not favor colonization. Where will you put them?

Mr. Cox: I would put them where the Constitution puts them.

Mr. Bingham: Where is that?

Mr. Stevens, of Pennsylvania: Puts him in slavery, of course. (Laughter)

Mr.Biddle, of Pennsylvania: The bill before us is not an isolated matter. It is part of a grand scheme that has much to do with the strife we now endure. It is announced that the Chicago platform is at last fulfilled. The territories are now free. We have achieved freedom for the 29 slaves in New Mexico and the 18 slaves in Utah, and for the cooks and washerwomen of the District. But at an awful cost to the cause of constitutional liberty.

I know there are gentlemen here who say they do not care how much they irritate the rebels, but the result has not been happy. Mr. Blair told us that Fremont’s proclamation raised an army for the rebels in that State, and other proclamations have been made and bills passed here that might have been drafted by Jeff Davis himself, they suit his purpose so much. Our African policy has doubled the work of our armies.

Mr. Speaker, States that refuse admittance to the negroes within their borders have no right to affect an intolerance toward States which solve the negro question by means of domestic slavery. Through all the anti-slavery sentiment of the North there runs a vein of insincerity; and, if, through the “great exodus” predicted by Mr. Bingham, the negroes in great numbers are transferred to the North, this unfortunate race may find itself there in a position as unenviable as that from which it may escape.

Mr. Bingham: Will the gentleman from Pennsylvania allow me to suggest to him that I never intimated that that people would make an exodus to the North. I said that they would make an exodus from the house of their bondage. History shows that they will stay where they are.

Mr. Maynard, of Tennessee: If we could eliminate the negro from politics, no doubt we could give do him equal and exact justice. I ask for the yeas and nays.

The yeas and nays were ordered and the bill passed, yeas 86, nays 37.

Tuesday, June 17, 1862

Confiscation

Mr. Eliot, of Massachusetts: The select committee on confiscation has been directed to report back, as a substitute, the amendment offered by Mr. Porter of Indiana to House Bill 472. The amendments simplify the bill in its operations. I report it in the form of a substitute.

Mr. Wickliffe, Kentucky: I rise to a point of order. This committee was directed by a vote of the House to do one single thing. That was, to strike out the original bill, and to report what the House decided should be its substitute.

The Speaker: The Chair understands the gentleman from Massachusetts, while on the floor, proposes to amend the substitute which is in order.

Mr. Phelps, of Missouri: The order was to report the original emancipation bill, which was House Bill 472, together with an amendment in the nature of a substitute, proposed by the gentleman from Indiana.

 Wednesday, June 18, 1862

The Clerk then completed the reading of the substitute of Mr. Eliot, The substitute is as follows:

That all right and title of every person comprehended by this act, in and to the service of labor of any other person is hereby forfeited, and such persons held to labor, commonly called slaves, are hereby declared forever discharged; first if they are owned by any officer of the rebel army, any officer of the rebel government, or by any person who engages in rebellious acts against the Government of the United States.

That the President shall appoint commissioners to make a list of slaves in the states in rebellion who are owned by persons who fit the classifications described in the Act entitled, `To confiscated property used for rebellious purposes,’ approved August 6, 1861, and said list is to be returned to the District Court for the District where the slave is held and the Court will issue orders to show cause why said slaves should not be declared free, and if such persons do not declare that they are not engaged in rebellion after having received sixty days warning by proclamation of the President as above provided, the slaves are thereupon free. If said persons do declare they are not engaged in rebellion the burden is on the slave to rebut this declaration.

That the President is authorized to negotiate for the acquisition by treaty or otherwise, for lands or countries in Mexico, South America, or in the islands of the gulf, for the right of settlement upon the lands of the persons freed by this Act.

The yeas and nays were ordered. The question on the passage of the bill was taken and it was decided in the affirmative: yeas 82, nays 54. So the substitute was agreed to and the Bill was passed.

In the Senate of the United States

Freedom of Rebels’ Slaves

June 18, 1862

The bill (H.R.No. 472) to free from servitude the slaves of certain rebels engaged in aiding and abetting the existing rebellion against the Government of the United States was read twice by its title.

Mr. Trumbull, of Illinois: I give notice that I shall move at the earliest moment to proceed to its consideration, together with the bill to confiscate property. I now move that the bill be printed.

The motion was agreed to.

Editor’s Note

The procedural history of the Senate version of H.R. No 472 is murky. It appears that the Senate version came out of the  Republican caucus, was presented to the floor, then sent to a select committee and was reported to the floor in altered form. The Republicans were all in agreement with the substance of the bill, but there was division over the issue of where the constitutional authority for its passage existed. The debate that follows focuses on this latter issue and is as relevant to us today as it was to the men of 1862.

June 24, 1862

Confiscation of Rebel Property

The PRESIDENT pro tempore. The special order of the day is the bill (H.R. 471) to confiscate the property of rebels to pay for the expenses of the rebellion. The pending question is the motion of Mr. Clark of New Hampshire to strike out all after the enacting clause of the bill, and to insert the substance of the bill reported by the select committee of the Senate. Both these propositions are now before the Senate, as the Committee of the Whole, for consideration, and both are open to amendment before the question shall be put on the substitute. Upon this question Mr. Saulsbury, of Delaware, is entitled to the floor.

Mr. Saulsbury, of Delaware: Under the pretense of suppressing a causeless rebellion, the executive and legislative departments of this Government are, in my opinion, daily engaged in the grossest violations of the fundamental law. If in times of peace the Constitution is the surest protection of the citizen, in times of civil war it is his only hope of safety.

It is my purpose today, to strip assumption of its false pretensions, and to expose to public view the real authors and abettors of my country’s ruin. From my place I say that it is my deliberate and solemn conviction that either abolitionism or constitutional liberty must forever die; the two cannot exist together. Abolitionism has for the time being dissolved the Union. While it lives and rules, the Union will remain dissolved.

A little more than seventy years ago, the people of thirteen separate and independent States entered into an agreement, made a compact, formed a union, the terms of which were plainly evidenced in writing, which writing they dominated a constitution of government.

By the first article of the treaty of peace in 1783, Great Britain, distinctly recognizing each of her original thirteen colonies by name, as distinctly acknowledges each to be a free sovereign, and independent State, and treats them collectively as such.

As such separate and independent States allegiance was due to each of them from their respective citizens.

For purposes of convenience they entered, as independent States, each with the other, into Articles of Confederation. In 1787, for the purpose of forming a more perfect union between them, these separate, independent, and sovereign States appointed delegates to a common convention, to consider and agree upon terms of union for purposes common to them all, subject, however, to their separate ratification and approval. The approval of a majority of all the people of these States could not make the agreement of the delegates a constitution for all or any of them. It required the separate approval of each separate State to make that agreement its constitution. When nine States had thus separately ratified this agreement, it became their constitution, but not the constitution of those States which had not given it their assent.

No one was mad enough then to propose emancipation of slaves as a condition of Union.

The Government thus formed was clothed with ample powers, but it could exercise no powers not delegated in the instrument creating it, for it was expressly provided that the powers not granted were reserved to the people, or to the States.

Seventy years later Lincoln was elected, Fort Sumter was fired upon and Congress met. He who would have proposed to preserve the Union by any means short of war might expect to be regarded as a traitor. On the day following the fall of Sumter, Congress passed a resolution that this war was to be waged to restore the Union, not to free slaves.

And how have you kept that word? You have abolished slavery in the District, when slave-owners claim their property, you turn the military upon them, making it an offense for any military officer to return a slave to his master. You have decoyed and afforded shelter to thousands of slaves. You are now feeding and clothing them. You are paying thousands of negroes to act as teamsters and you are arming the slaves. You are attempting to build up an abolition party in the Border States, and you have recognized Hayti and Liberia. You have by your bills proposed the emancipation of almost the entire slave population of the South.

In order to understand the character of this bill under consideration, and the power of Congress to pass it, we must consider the nature of the conflict in which we are involved. The President considers it an insurrection, but it is most generally termed a rebellion.

We gain nothing by self deception, by the adoption of false premises, or the application of false logic. There is not an abolitionist who would not be shocked by the opinions I mean to express. But, sir, I speak to men of sense, and not to fools. I want the ear of Union loving men. I have no message for those who are for a Union without slavery, but opposed to a Union with slavery. Such miserable traitors deceive nobody by their cry of Union.

I believe that when a revolution is so far completed that a government de facto has become established, when the former government is so far ousted that it is unable to afford the protection to its adherents in the revolutionary government, the duty of allegiance so far ceases that it would be unjust, and therefore illegal, to punish obedience to the commands of the government de facto as a treason toward the government de jure. It is a well known maxim that allegiance and protection are reciprocal. If the latter cannot be afforded, then the former cannot be required.

Governments according to our theory, derive all their just powers from the consent of the governed. There is no divine right in the ruling power. In the Declaration of Independence, life, liberty, and the pursuit of happiness are declared to be inalienable rights; and that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever a government becomes destructive of these ends, it is the right of the people to abolish it.

This is the doctrine of Lincoln. In 1848, sitting in Congress, Lincoln said, “any people anywhere being inclined, and having the power, have the right to rise up and shake off the existing government. and form a new one that suits them better.”

Mr. President, the true theory of our government is this: the Federal Government is the creature of the States. They, being sovereign, made it. Within the sphere of its delegated powers they agreed that it should be supreme. They did not thereby relinquish their own sovereignty, but retained it fully and absolutely within their reserved or nondelegated authority. I will adopt the language of Roger Sherman: “The Government of the United States being  federal, and instituted by a number of sovereign States, they may be considered as so many pillars supporting it.”

The Government of the United States was made by the people of the several States, acting in their separate State capacity, and not by a majority of the whole people of the United States, acting in their collective capacity.

The rebellion has antagonized the double allegiance of the citizens of the confederated States. That those States having established a government de facto, and the Federal authority having been ousted from those States that it cannot afford protection to the citizen against the consequences of disobedience to the commands of State authority, he is excused, in the language of Blackstone, in obeying, and thereby incurs neither the penalty of death nor confiscation of estates as a consequence of the crime of treason against the United States.

While I admit the right of this Government by force of arms to prevent the secession of any State from the Union, I deny that such right is derived from the Constitution. I believe the doctrine of Oliver Ellsworth to be true, that “this constitution does not attempt to coerce sovereign States in their political capacity.” This right, if it exists, springs from the overruling necessity of self-preservation and the right which one party to a contract, while fulfilling his own obligations under it, has to compel a compliance by the other party to it with his obligations. If these reasons do not justify us then we are without excuse for all the blood on our hands.

Let those who deny this proposition point to the article, the section and the clause in the Constitution which give the power they claim. Congress, it is true, has power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion. But the action of a sovereign State is not an insurrection within the meaning of this provision. This is clearly inferable from the direct refusal of the constitutional convention to give authority to the federal government to exercise its military power to control the actions of State governments, and also by the recorded opinions of the founders in reference to the extent of authority granted to it.

Practically, however, it makes little difference whether this power of coercion is of constitutional origin. But it makes a great deal of difference in reference to the question we are now considering. If the possession of the island of Cuba were necessary to the safety and existence of this nation, we should be fully justified by the law of nations in seizing it at any hazard. War would be the necessary result; but even this would be justified by the great right of self-preservation. Yet we might coerce the Cubans into submission, but we could not regard them as having violated any great moral or political duty. Their only crime would have been the want of sufficient physical strength to sustain themselves against our arms.

Whether the war which we wage be justified depends on its object and purpose. The right to wage the war is the same right a party to a contract has, to compel its performance. But the party asking for specific performance must show his own compliance with its terms and spirit. Showing this, he establishes his right. He cannot interpolate or take from it. It must be performed in whole or not at all. If you wage this war for the restoration of the Union as it was and the Constitution as it is, observing your own obligations under it. But if, in waging it, you mean to subvert the Constitution, which is the only bond and obligation of Union, if you mean to destroy or impair the rights of States or the people, you wage it under a false pretense and your war is murder and your success treason.

Mr. President, it is no use to attempt to disguise the fact or conceal the truth in this case. Ostrich like you may stick your heads in the sand and suppose you are concealed. You delude yourselves. Your purposes are known. Your motives are understood. The present knows them. The future will know them, and history will record them. Did not slavery exist in the Southern States you never would have thought of this confiscation bill. You did not think of it in the war of 1812, in the war with Mexico. Why do you think of it now? Your design is to make this a war for the abolition of slavery. You desire to destroy the domestic institutions of the States. Abolition shouts Union, while meaning to destroy the only bond of Union.

Mr. Sherman, of Ohio: I have amendments to offer.

Mr. Trumbull, of Illinois: I am opposed to altering the House bill. We have had a great deal of controversy about this confiscation question, and I think the wisest course would be to adhere to the House bill and make it law.

On motion of Mr. Doolittle the Senate proceeded to executive business.

Wednesday, June 25, 1862 (General Lee attacked McClellan’s right flank at Beaver Dam Creek today.)

The Senate resumed the consideration of HR 471, to confiscate the property of rebels.

Mr. Browning, of Illinois: We are in arms against the rebels because they are in arms against the Constitution. They are struggling to overthrow it, we to maintain and uphold it. This is the theory of the war. The practice should conform to the theory. If it does not we are fighting in vain. We should keep the reestablishment of the Constitution over all the states of the Union before us as the great object of the war. We cannot succeed unless we, ourselves, keep within the limits of the Constitution and respect and submit to its authority.

When we put aside its provisions, break over its restraints, and go outside its limits, we become coworkers with rebels and traitors in their work of destruction.  The senator from Massachusetts, Mr. Sumner, in his discussion of the bill under consideration, has given expression to such novel and extraordinary views, and has announced, as undeniable law, principles of such dangerous tendency, and which, if carried into legislation, will be so fatally mischievous in their consequences, that I cannot permit them to go to the country, and into the permanent records of its history without my earnest protest against them.

The senator has correctly stated the ends we have in view, `national unity under the Constitution of the United States.’ These ends cannot be attained by the measures he proposes. If it be conceded that they would secure national unity, they would fail to secure it under the Constitution, for they would themselves overthrow that Constitution.

There is an object that cannot be reached without going outside the Constitution. The Senator was right when he said, `in every government bound by a written constitution, nothing can be done which is not in conformity with the Constitution. After this announcement we had a right to expect an argument which would exhibit clearly the sources of power within the Constitution itself, instead of learned exposition upon the history of confiscation in other countries.  I know he claims the power under the constitution but it is only necessary to analyze his argument to understand how far he has permitted his wishes to mislead his judgment.

The Senator recites the provisions which, in his opinion, contain the grant of power to Congress to do all which the bill before us proposes. He says, first, that the Constitution provides Congress with the power to declare war, to grant letters of marque, to make rules concerning captures, to raise and support armies. If this bill does none of these things.

Mr. Sumner, of Massachusetts: May I interrupt the Senator?

Mr. Browning: Yes, sir.

Mr. Sumner: I have in my hand the bill and in its introduction it states, `That all the property of the persons herein named are hereby forfeited to the Government and are declared lawful subjects of capture.’ The bill therefore is derived directly from the positive language of the Constitution.

Mr. Browning: Conceding it to be so, I think there is no fair-minded lawyer who will take the pains to examine the constitutional provisions, who is familiar with the law of nations, and who will compare them to this bill, who will not at once concede that this bill, if it does in terms relate to captures, does so in terms only for the  purpose of evading a plain constitutional provision; that it does not come at all within the spirit or the letter or the intention of the Constitution.

What conceivable measure can passion or caprice suggest, that would not find as much support in the provisions the Senator refers to as a bill to free slaves and confiscate property? And if this is the best showing of authority that learning, talent, and ingenuity can make from the Constitution, may we not safely conclude that none whatever is to be found within its lids?

A very important part of the Senator’s speech and which appears to me to be among his most dangerous and indefensible doctrines is what he calls, `the rights against enemies which Congress may exercise in war.’ To this the Constitution gives a clear answer: they have already been listed. Congress may declare war, issues letters of marque, make rules concerning captures, provide for calling forth the militia, make rules of the armed forces. There is the answer and the whole of it. This list extracted from the Constitution declare all the powers which Congress may exercise in war. Congress has no power which is peculiar to war not contained within the list.

Yet I understand the Senator to contend that Congress may exercise powers today, because war exists, which it cannot assert tomorrow if peace ensues, and it is from this assumption of a shifting power that he deduces authority to Congress to pass the  bill under consideration. He says, `There is not one of the rights of war that Congress cannot invoke. There is not a single weapon in its terrible arsenal which Congress may not grasp.’ And again, he says, `But when claiming these weapons there is a limitation of time with regard to their exercise. Whatever is done against the rebels under the rights of war must be done during the war.’

Editor’s Note

At this point Mr. Browning makes a distinction between the Congress doing these presumably unconstitutional acts, and the Government doing them. This seems to be a distinction without a difference, yet he spends considerable time attempting to explain why the distinction is substantial.

That this is true when spoken of the Government I now admit; but that it is true when spoken of Congress I utterly deny. There is not one of the rights of war which the Government may not invoke. There are many which Congress dare not touch without becoming a usurper.

I now ask the Senator whether Congress possesses powers in war that it does not possess in peace.

Mr. Sumner: I answer most clearly that Congress has power during war which it has not during peace towards any citizen of the United States. There are rights of war that belong to all nations. Those rights may all be exercised through Congress, but they must be exercised in time of war.

Mr. Browning: Then I want to know the provision in the Constitution that invests Congress with authority to do an act today which it would not have been equally competent to do at any single hour in the last twenty years? It must be shown that a state of war enlarges our powers, for the right is claimed to judge of, and decide upon, military necessities.

The reasoning of the Senator proceeds thus: `it is the right of Congress to judge of, determine upon, and order to be executed, all measures demanded by military necessities; but military necessities do not arise when peace prevails, therefore Congress cannot exercise these powers in times of peace, but can when war is raging, and therefore the powers of Congress are augmented and amplified by a state of war.’

The premises are false, and all the deductions made from them equally false. It is not true that Congress may assume and exercise all the active war powers in the actual prosecution of war. The Constitution invests Congress with no such prerogative. It is not true that Congress may decide upon the measures demanded by military necessity and order them enforced. If it can grasp this power in one case it can grasp it in all. I deny that the right exists, in any case, to pass in judgment upon military necessity.

It may become a military necessity for an army, in crossing a stream, to destroy the bridge after its passage. It may become military necessity for an army, passing through the country, to destroy it. It may become military necessity, upon the capture of Richmond, to destroy it. I ask now whether it is seriously contended that Congress has the power to decide any of these questions beforehand. May Congress today order Richmond destroyed tomorrow?

Editor’s Note

Now we get to Browning’s point: he agrees with Sumner that invoking “military necessity” allows Richmond to be destroyed, but he wants the President to control the decision to burn it, not Congress. He agrees, then, in the substance of the bill to free the slaves of rebels and confiscate their property, but wants the instrument of its execution to be in the hands of the President, not in the hands of Congress.

These necessities can only be determined by the military commander, and to him the Constitution has intrusted the prerogative of judging of them. When the Constitution made the President Commander-in-Chief, it clothed him with all the incidental powers necessary to a full, faithful, and efficient performance of the duties of that high office; and to decide what are military necessities, and to devise and execute the requisite measures to meet them, is one of these incidents. It is not a legislative, but an executive function, and Congress has nothing to do with it. Congress can raise and support armies, but cannot command armies. That duty the Constitution has devolved upon the President. It has made him Commander-in-Chief and therefore Congress cannot be.

Whenever Congress assumes the control of the army in the field, it usurps the powers of a coordinate department of the Government, destroys the checks and balances provided for the safety of the people, and subverts the Constitution.

Editor’s Note

The question is, can the Congress control the President in the supreme command and direction of the army? According to Browning Congress’s power is limited to raising and funding armies, while the President is to have supreme command and direction of the army.

The Senator does not recognize the separation of powers, but claims that all executive powers which the President may exercise in the prosecution of the war are held by him in subordination to the will of Congress, subject to its direction and control. Senator Sumner said, `Doubtless there are rights of war, embracing confiscation and liberation, which may be  exercised by the general commanding in the field, but all these rights of  war are deposited with the Government which means Congress in conjunction with the President.’

Another error of the Senator has hurried into, with his zeal to have Congress act in the manner of confiscation and liberation is his assertion that there is no limit to the fine Congress can impose. In this he ignores the plain language of the Constitution that `excessive fines shall not be imposed.’ The Constitution interposes to stay the hand from giving up the estate to absolute forfeiture for treason. Many of the rebels deserve no mercy; and when the necessities of war demand it, they may be stripped of all their property but not by Congress.

Mrs. Mary Lee's Cottage, at White House Landing.

Now, in this circumstance, what is the duty of Congress? I think to obey the Constitution and keep within its limitations.

Furthermore, under the Constitution, confiscation of property for the crime of the owner, cannot be effected by proceeding in rem, but can follow only upon the personal conviction of the offender, in punishment of his crime. Senator Sumner claims that this limitation is suspended by war, that the rights of war are without any limitation.

The Senator says that we may regard the rebels as criminals and so pursue and punish them. But regarding them as criminals, how are we to pursue and punish them? With sword and rifle and bayonet? With measures of confiscation and liberation? No, sir; but in conformity with the Constitution and laws. By indictment, arrest, and trial by jury, and when convicted, by punishment proscribed by law. When this is done the power to punish is done. As criminals you cannot confiscate their property.

The Senator then says we may regard the rebels as enemies and blast them with summary vengeance. I accept this proposition as true and in exact accord with the law of nations and in harmony with the Constitution. This is precisely what those of us who oppose this bill have contended for from the beginning. To enable us to do so, requires no legislation. The dread agencies of war to do this already exist and it is the executive’s function to grasp them and wield them, not Congress’s. The question is not whether property will be confiscated, but who shall conduct the active operations of the war, and determine and enforce military necessity.

If the character of enemies is conceded, then, while the war lasts, we must pursue them with the dread agencies of war and with them alone. If the character of enemies is denied, then we can use no more force against them than is necessary to arrest them and bring them to trial. We cannot capture them as enemies in war and proceed at once to punish them as criminals under the laws. Will the Senator advise that all those who have been captured on the field of battle, as prisoners of war, shall now, while the war still rages, be indicted, convicted, and executed as traitors? Does he not know that one execution by us would be the signal for retaliation by them? The result would be the brutal butchery of all prisoners on both sides.

The Senator and his crowd wish to accomplish an object (free the slaves of rebels) which is now fully within the constitutional power of the Executive. Am I wrong in supposing that he distrusts the President, and fears the power will not be pushed to the extremity which he desires? Hence he claims the power for Congress. But Congress cannot assume and exercise such a power within the Constitution, therefore he is driven to claim the right for Congress to go outside of the Constitution to reach the desired end.

Editor’s Note

Like Sumner, Browning cheats with words: he insists that the President, by virtue of war powers, has the “Constitutional power” to free the slaves of rebels. He does not. He has such power only if it is recognized by the law of nations and the law of nations, as we have seen, recognizes such a power only if it is exercised in the course of pursuing a “just” war. A war of subjugation, of conquest, as the Union’s war against the Confederate States was, is not, in point of law, a “just” war. Still, as Vittal states, equity allows a victor to free a class of persons held unjustly by the conquered State. Such is the irony of war.

At this point in his speech, Browning shifts to the consideration of what result will follow from freedom for the slaves.

I love the Constitution more than I hate slavery. Willing as I am to wound slavery, yet I am afraid to strike at it through the Constitution. Why, Mr. President, this impatience to fly from the ills we have to those we know not of? In the legitimate and constitutional prosecution of this war the fetters are falling from the slaves of the South faster than we can provide homes, the means of subsistence, and the means of education for the helpless, destitute, and in many cases degraded freed men and their families. Already they are beginning to press heavily upon the white population of some localities and heavily upon the bounty of the Government. Who, sir, will dare to estimate the consequences, moral, political, social, and economical, of precipitating, in one day, as the Senator proposes, four millions of this population upon the white communities of these States? Who can contemplate them without a shutter? Who has the reckless hardihood to venture upon such a solution to this horrible problem of human slavery?

Before adopting the proposition of the Senator, one or two things should be resolved upon. We must either overcome all the repugnances of nature; raze out from our hearts all the sentiments of delicacy and propriety which we have supposed instinctive; roll back  the strong current of thought and feeling and habit and education, and admit the negores to full, free and unqualified social equality, or we must separate them from among us, and  place them where their country, constitution, laws, customs, society, shall all be their own, and where there shall be a perfect and unrestricted community of legal, political, and social rights.

The first of these can never be done. Heaven has decreed against it; and as easily would the leopard change his spots, or the Ethiopian his skin, as we the firm, strong instincts of our nature. The second, then, is the only alternative; and I look with hope to the coming of the day when the bright vision of  emancipation shall be realized. But the accomplishment of this requires time and wise caution. It cannot be done in a day. We must make haste slowly. Let us stand by the Constitution and fulfill its pledge to guaranty to every State in the Union a Republican form of government. The Senator’s proposition is not to defend, maintain, and uphold the Government we have; but to rend its pillars asunder, and reconstruct another from its ruins. In what does this differ from the effort of the rebels but in the means proposed for its accomplishment.

Editor’s Note

Browning is correct as to what Sumner’s crowd wants to happen. In fact, the Government we have today is not the Government designed by the  founders, it is a Government designed by the radicals of 1862 which strips from the Constitution the operation of the clause Browning  quotes, by stripping from the States their sovereign right to control their domestic policies, making them not States but vassals of the Federal Government. Not necessarily a bad thing, as principles of political science go, just not what the founders intended.

Mr. Dixon, of Connecticut: In our present struggle we are tempted to forget that the time may come when the just prerogatives of State Governments may require defense. Strengthened by its vast war power, what encroachments might the Federal Government make on the proper sphere of State Authority we cannot foresee; but it is certain that for a long period after the war the Federal Government will strengthen itself at the expense of the States. State Authority will be viewed as dangerous to the Federal Government’s security.

June 25, 1862)

Mr. Wade, of Ohio: I will not sit here silently and hear it said that there is no power in Congress by which the property of rebels could be taken. I could never sit here silent when I hear that the President was by some mysterious power invested with despotic authority to trample upon the rights of the people and the rights of Congress the moment you declare war. I ask the Senators who preach this doctrine where do they get it? They cannot find it in the Constitution.

I understand the Senator’s argument to be that whenever war is declared the President is a despotic chief, without the restraint of Congress, or indeed any restraint. He lays no limitation upon the President’s power.

Mr. Browning: I only wish to say that I am in no sense responsible for the Senator’s misunderstanding.

Mr. Wade: I am not going to bandy epithets with that Senator or anybody else; but I do not wonder that the hideous doctrines which he has proclaimed on this floor startle him when they are recapitulated, that there is in our institutions a magistrate armed with a power that cannot be controlled.

Mr. Browning: I said that the President, like Congress, is under the constraints of the Constitution.

Mr. Wade: That is a mere platitude that a child would not deny. The question is, where is the boundary between these two powers.

Mr. Browning: In the Constitution.

Mr. Wade: Yes, sir, in the Constitution, but where in the Constitution do you find that the President may confiscate property and that Congress cannot regulate that power? The Senator has contended that the moment war is declared the President has no limit, that Congress loses its power to interpose.

Editor’s Note

Does not the argument between the senators sound familiar? 

I cannot hear with complacency the doctrine urged that Congress has no power to regulate these rights of war, that the moment war is declared, if I have understood these gentlemen, the moment we are involved in war, Congress loses all power to regulate the rights of war, and they are devolved by the Constitution, ipso facto, in all their length, breadth, depth, upon the President, and we cannot modify them or control them. That is the whole gist of the argument of the gentlemen.

Such a construction of the Constitution cannot be true. What are these powers? That is the question. Gentlemen argue here a slavish doctrine, that the President, the moment we are engaged in war, is subject to no control from any quarter. Sir, the representatives of the people, the Congress, are the safe depository of power in all cases, to limit, modify, and control whatever the President may do. There are none that sit above us.

People talk of the rights of war and the power of a military commander! Is it not in the power of Congress to proscribe the rules upon which your military chief acts? Do not Senators know that the whole code known as the Articles of War is the dictate of the Congress, not the President? The President cannot make a single regulation regarding the army’s conduct without the consent of Congress.

Mr. Browning: Then the Constitution is a falsehood as the President is not Commander-in-Chief.

Mr. Wade: That is a great non sequitur. He may be the Commander-in-Chief; but Congress, the legislative power sitting superior to him, may regulate and direct whatever principles they please their commander shall act upon and execute. Does the Senator contend that the President can take the estate of A and transfer good title to B, on the principles of confiscation? Can he do it?

Mr. Browning: The question is not relevant.

Mr. Wade: I think it is. We are acting upon a bill to confiscate the property of rebels and transfer it to the Government. Who can do it but Congress? You see that your unlimited chief does want a little power when he acts upon this question of confiscation. While we do not dictate how the general proceeds in the field, we may lay down the principles on which the war shall be prosecuted.

Mr. Fessenden, of Maine: We cannot.

Mr. Wade: Who doubts that we can do it? Does this gentleman say we cannot make peace if we want to?

Mr. Fessenden: Yes.

Mr. Wade: We can do that. Here is your Commander-in-chief, proudly strutting at the head of his troops; tomorrow we take all the troops from his command. That shows a little power in Congress, I should think. We may disband the army against the positive orders of the President.

I hope no such doctrine as the gentleman asserts will ever gain a foothold in America. I do not care how much we think of the President, I cannot make an irresponsible despot of him. Talk here of conferring in these most dangerous times all power upon one man! Why, sir, it is the strangest insanity. The President cannot confiscate property of his own will and make a good tile to anybody. Congress must do it, or it cannot be done.

Editor’s Note

All the players are trapped in the Constitution’s morass. Under the Constitution neither the President nor the Congress had authority to confiscate the personal property of rebels; and, under the law of war, though confiscation is allowed depending upon circumstances, legal title is not recognized as being transferred from the true owner to the military victor. Thus, whether the Congress legislates the result, or the President proclaims it, as far as the world is concerned the property still belongs to the owner.

Now, sir, what are the rights of war? They are just precisely such as Congress sees fit to confer on the President. He shall be commander-in-Chief of the Army, says the Constitution; and the Senator from Illinois thinks that in its very terms imports that he is high, exalted over all the branches of government, supreme and despotic. There is nothing in the terms that imports that. There never was a Commander-in-Chief sent out by any Government in Europe, but what acted in strict subordination to the Government at home. He is nevertheless sent out, he is invested with all military power, but nevertheless under the control of the legislative power at home. Just so here. We call the commanders from the field; we may depose them; we may put up or put down. We make the Articles of War, which are nothing more or less than the law by which the war shall be conducted.

Why, then, in order to resist this confiscation bill talk of the enormous overpowering despotic authority of the President? Sir, it has no relevancy to the case. We have full power over the question.

While I am up I will say I want the people to understand I am for this bill, and had I the power of Congress I would take all the property of the rebels. I would reduce these slaveholders to absolute poverty. And I say now that you cannot with one hand guard with your army the property of rebels and with the other fight them in the field. I have an order here of General McDowell’s that proves the point. It reads: “General Meredith will furnish a guard for the house and property of Mr. Huffman.” I am told that Huffman is as arrant a traitor as there is on the face of the Earth. Restrained by the Constitution are we? We cannot take Huffman’s property? In my heart of hearts I have it in charge to defend the Constitution and I will do it, though every slave is free and every rebel loses every cent of property that he ever had or will have. Until this spirit actuates the Administration I do not hope for a triumphant conclusion of this great controversy.

:

If Southern traitors will not be our equals they must be our vassals.

Mr. Dixon: Mr. President: I do not like the Senator from Ohio to misunderstand me. I said that in acts of secession the States did not act as such; that they had no power to act as such; I claimed that the acts of secession were individual acts of insurrection, rebellion and hostility, for which the individual is liable. I do not understand him to claim that the State of Virginia has committed treason.

Mr. Wade: I understand the Senator to say that the Congress had no power to pass a bill of confiscation, but that the power was lodged in the President, if there was any such power.

Mr. Dixon: I did not say that. I said that the arguments show a great difficulty of passing any bill of the kind without conflict with the Constitution.

Mr. Wade: Do you hold that Congress has full power to legislate on the subject of confiscation of rebel property?

Mr. Dixon: That is a question which cannot be answered yes or no. I think Congress has power to regulate the President to a certain degree, by regulations and rules made for the Army. I say also that Virginia is still in the Union. I think the citizens of Virginia are in rebellion.

The Senator spoke of me giving up executive authority. I did say I thought he could free a slave. Does the Senator think so? If he was in command of the Army and found a slave who was useful could he not free him?

Mr. .Howard, of Michigan: Now that my friend denies so stoutly that Virginia cannot commit treason, I ask him where is the loyal State? What has become of the loyal State of Virginia?

Mr. Dixon: It is a difficult question. We cannot admit that the State of Virginia is not in existence. I think Virginia can never die. But where is the loyal government? Disorganized. The State is in abeyance.

Mr. Wright, of Indiana: I move the Senate adjourns. The motion was agreed to and the Senate adjourned.

June 27, 1862 (McClellan’s army has reached Malvern Hill)

The PRESIDENT pro tempore: Mr. Wright from Indiana has the floor.

Mr. Wright: I am not able to go on now.

Mr. Cowan, of Pennsylvania: I have a few words to say on this House bill. I am in favor of the proposed amendment by the Senator from New Hampshire, Mr. Clark, which changes the bill. I think the House bill impractical.

As I understand it, the authority which is claimed for Congress, and under which it is proposed to pass this bill, is based upon the belligerent rights of this Government. It is not put upon the ground of public law; it is a belligerent right, or as Senator Sumner puts it, a right of war; and the persons whose property is to be taken are belligerents, not criminals. If that is true, how then will the bill operate in actual practice?

It seems to me, Mr. President, impossible to forfeit and confiscate the property of any particular person as a belligerent, and why? Because nations confiscate property of other nationalities, because they are citizens of the power with which war is waged.

When a sovereign confiscates property of a belligerent, he confiscates it because the property itself has a criminal character from the place where it was found, from its apparent destination, or from the use in which it is engaged; and no one ever goes further than to inquire into those particular facts. It is never a subject of inquiry who is the  owner; or whether the owner is guilty or innocent; simply because, if that were the inquiry, the trial becomes a trial in personam, instead of a proceeding in rem.

It is proposed by this House bill to seize and confiscate the property of certain leaders and officers under the rebel Government. If the property is carried into a prize court the question to be tried is not whether the property was used as contraband, but whether the owner is guilty of treason. The difficulty is that the rebel has no nationality. We might readily confiscate all the property of the people of South Carolina, because we should not be incumbered with the inquiry of whether the owner of the property was guilty; it would be enough to know he was a South Carolinian. But we cannot, of course, confiscate the property of loyal people. Nobody pretends that we can do that. And in order to discriminate we must make the factual inquiry as to the personal character of the owner, we must determine his guilt or innocence. It is not enough to show that he is an inhabitant of South Carolina. We must go further and show he has participated in the rebellion. This is a personal inquiry and requires a trial in personam.

Let us suppose the Government seizes the property of General Lee (his wife's home at Arlington for example). I mean the private property, horses, money, stock, cows, furniture, and takes it into the prize court to have it libeled and condemned as prize; by what law does the  court decide whether that is prize or not? By a law of Congress? No, sir, not at all, the law by which that is determined is the law of nations; and why? Because General Lee is a belligerent and the court, by the application of the law of nations, would have to decide that the property cannot be the subject of prize.

Arlington House

Suppose the Judge asks: “By what authority do you bring private property taken upon land to be condemned by law as prize? The only answer that can be given is, “by virtue of a law of Congress.’ “But,” says the judge, I do not sit here to administer that law as between belligerents in prize cases; I sit here to administer the law of nations, and by the law of nations private property taken upon land is not a lawful prize; and I must therefore refuse to condemn and order the property returned to General Lee.”

Mr. Trumbull: But how can a court administer the law of nations except that it is authorized to do so by law of Congress?

Mr. Cowan: Congress creates these courts for the very purpose of administering the law of nations; and why? To keep us at peace with other nations. No nation is entitled to the protections the law of nations affords unless it establishes these courts and unless it conforms to the law of nations with regard to prizes.

Mr. Trumbull: If the Senator will allow me, I wish to ask him if any court of the United States can declare a law of Congress void for any reason under heaven than because it violates the Constitution. Is there any law of nations above the law of Congress?

Mr. Cowan: I say again the Government of the United States establishes these courts for this very purpose—not to decide between belligerents according to the laws of Congress, because belligerents are not bound by the laws of Congress. The laws of Congress do not bind the people of Great Britain, or France, nor do they bind the people in rebellion and at war with us as belligerents. They will bind them in a municipal sense as citizens and as criminals. But remember, this bill is placed upon the ground that they are belligerents, and that we have the right to do this in the exercise of a belligerent right, what Sumner calls the right of war.

Mr. Sumner: Does not the Constitution declare that all laws passed in pursuance thereof shall be the supreme law of the land?

Mr. Cowan: Yes, sir.

Mr. Sumner: Then would a court venture to set aside a part of the supreme law of the land unless on the ground that it is unconstitutional—that is, that it was not passed in pursuance of the Constitution?

Mr. Cowan: That is just my objection to this bill; that it is not in pursuance thereof.

Mr. Trumbull: I hope that you will show it in some other way than by undertaking to show that it is not in pursuance of the law of nations.

Mr. Cowan: When I show that it is contrary to the law of nations, I show its unconstitutionality, because there is nothing plainer in the world than that the Congress of the United States, the Government of the United States, the whole people of the United States everywhere are bound by the laws of nations; and if we expect to have national rights and enjoy national privileges in the great family of nations, nothing can be clearer than that we are bound by the laws of nations.

Mr. Trumbull: I totally deny that the Government of the United States is bound by the law of nations. It may destroy every one of them and so say the authorities. We are talking of power.

Editor’s Note

Is this not amazing? It is as if these men were speaking now, in the Congress of the United States as it is in 2012. How long do we reasonably suppose we can continue to talk like this? American Excellence indeed.

The Congress of the United States can pass a law that every prisoner is to be hung; would that be in accordance with the law of nations? It would be a valid law. The law of nations cannot control the Government of the United States for one moment.

Editor’s Note

Nor, then, of Nazi Germany, or Israel, or Syria, or Iran, or China. Each nation can do whatever it has the power to do and thumb its nose at the world.

Mr. Cowan: Mr. President, I am as willing as the Senator from Illinois to admit the unlimited extent to which Congress might make a fool of itself. I have no hesitation in the world of asserting that Congress might do as many ridiculous things as the same number of men anywhere else on earth, if they choose to do it; but I do say if they did it they would trample upon the laws which bind and knit together the civilized world everywhere in national brotherhood.

Mr. Trumbull: I thought the Senator was arguing about power, not policy. If he admits that the Congress has the power that is enough. That I understand is the basis of his argument.

Mr. Cowan: Yes, I am arguing the question of power, the power of a civilized government, not a barbarian one which set its feet on the laws of nations, and trample them all to the earth and declare itself out of the pale of civilization.

I have no hesitation in asserting that if this bill were to pass and become law, that not a single dollar’s worth of property could be condemned and confiscated under it in any court of the United States, doing its duty.

But, gentlemen say that the courts are not to declare the laws of Congress null and void. I dissent from that opinion. The judiciary of this country is coordinate with the legislature, and that for the protection of all of us, it is right and proper, and it is the duty of the courts, when this Congress transcends its constitutional authority, and when it passes laws not warranted by the express grants of power in that instrument, to declare them unconstitutional.

Mr. Trumbull: This is a very unusual rebellion.

Mr. Cowan: This Congress has solemnly and unanimously decided that this war is not waged for conquest. It is impossible that it could be waged for conquest. How can the sovereignty of the United States make conquest of that of which it is the rightful owner already?

Editor’s Note

Here, Mr. Cowan wanders off into a marshland of silliness. The founders thought the Federal Government they created ipso facto became the “owner” of Virginia and the people in it? Absurd.

Can this Government make conquest of Virginia? Virginia is already its own, and owes to it allegiance; and so it is with every foot of territory within the limits of the Union. Mr. President, it is utterly useless to attempt to put this war upon the footing of conquest. The people of this country do not desire conquest; they desire reconstruction.

Mr. Sumner: They desire victory.

Mr.Cowan: they desire victory as the Senator says, but they desire victory for what? To put a feather in their cap? To have it written down that they have overcome their brethren in fight? No, sir, that is a poor mean ambition. They desire victory because it brings back safety.

Mr. Howe, of Wisconsin: We are fighting our enemies as I understand it.

Mr. Sumner: Mr. President too tardily the house of General Lee has been taken by the Government. But pray, sir, under what authority was it done? Not according to any due process of law. The language of the Constitution is positive: “No soldier shall, in time of peace, be quartered in any house; nor in war but in a manner prescribed by law.” If the Constitution can be disregarded without question in the exercise of the rights of war, it is vain to invoke the provisions of other cases in restraint of the right of war.

I assume as a cardinal principle of constitutional law that, whatever may be the condition of slaves, they are, under the Constitution, persons, and not property; so that in declaring their emancipation, Congress is not constrained by any of the constitutional requirements with regard to property. But even if this bill seems obnoxious to certain constitutional provisions this objection disappears when it is understood that they are war measures, derived from the capacious war powers of Congress (We are back to the concept that the Government can do in war what it cannot do in peace.)

Pray, sir, where in the Constitution is the limitation of the war powers of Congress? If it is constitutional to make war, it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves. The war powers are derived from the Constitution, but when once set in motion, are without any restraint from the Constitution, so that what is 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 or outside the Constitution, all that is done in pursuance of the war powers is constitutional. (2963)

The rights of war are fixed, as against enemies. And yet, the Constitution is cited as a limitation upon these rights. As well cite the Constitution to save the house of General Lee from destruction. The Constitution is utterly inapplicable. The Constitution is made for friends who acknowledge it, and not for enemies who disavow it and it is made for a state of peace and not for the dread exigencies of war. War, as it comes, treads down within its sphere all rights except the rights of war. Once begun war is a law unto itself. In vain do you send your soldiers forth, armed with the best weapons, if you direct them to stand still in full career for due process of law.

But there are senators who claim these vast war powers for the President, and deny them to Congress. The President, it is said, as Commander-in-Chief, may seize, confiscate, and liberate under the rights of war; but Congress cannot direct these things to be done. Pray, sir, where is the limitation on Congress?  And when I speak of Congress let it be understood I mean an act of Congress, passed by both houses and approved by the President.

It is strange to claim for the President alone, in the exercise of his single will, war powers which are denied to the President in association with Congress. Surely, if he can wield these powers alone, he can wield them in association with Congress. It is by act of Congress that the war powers are put in motion. When once in motion the President must execute them. But he is only the instrument of Congress, under the Constitution.

It is true that the President is Commander-in-Chief; but it is for Congress to make all laws necessary and proper for carrying into execution his powers; so that in the very words of the Constitution his powers depend upon Congress, which may limit or enlarge them at its own pleasure.

Editor's Note

During this time—January to July 1862—the record shows plainly that a struggle is going on between the Republicans in control of the Congress and the President over the issue of who is it, under the Constitution, that trumps the other in the exercise of "war power." Senator Trumbull, like Senator Sumner, wants to confiscate the property of rebels and free their slaves, but he wants the President to control the timing and means by which this occurs, while Sumner wants Congress to control it by directing the "Commander-in-Chief" to do it now. The few Democrats in the Senate, representing the Border States of Delaware, Maryland, Kentucky and Missouri, side with Trumbull's crowd against Sumner's.

At the same time, everyone is struggling to construct a theory that explains how this can be done as a matter of law. Distilling the essence of all their contending arguments, it becomes reasonably clear that the only theory that fits the facts completely, is the theory that the Confederate States, in law as well as fact, are out of the Union, and that the Union is now engaged in a war of conquest, and in the course of it, ignoring the law of nations applicable to the situation, it intends to use its military power to confiscate the private property of Virginia's citizens, and liberate their slaves.

At the end of the process, after forcing Congress to delete the bill's expost facto and attainder provisions, Lincoln signs the Congressional bill into law, but then he never executes it; ignoring the bill's scheme of confiscation, he simply announces, on September 22, 1862, that he deems all the slaves inhabiting the Confederate States to be free as of January 1, 1863. Of course, the Lee Family slaves, who are legally emancipated by General Lee on January 2, 1863, do not have to wait for Grant to arrive to enforce Lincoln's decree.

And so we have the perplexing irony of an unjust war (as the law of nations defines it, one for conquest) achieving a just result (the liberation of an innocent people held in slavery).

At the risk of repetition, but for the sake of clearness, let me now repeat the propositions on which I confidently rest.

1. The rights of sovereignty are derived from the Constitution, and can be exercised only in conformity with the requirements of the Constitution; so that all penal statutes, punishing treason, must comply with these requirements. This is the case of the bill offered by Senator Clark of New Hampshire.

2. The rights of war are under the Constitution in their origins, but outside the Constitution in their execution. In other words, the Constitution confers the rights of war, but sets no limits on them, so that statutes to enforce them are not to be regarded as mere penal statutes, restricted by the Constitution (This Lincoln did not agree with.) This is the case of the House bills now before us.

3. Rebels in arms are public enemies, who can claim no safeguard under the Constitution, and they may be pursued and conquered according to the rights of war.

4. The rights of war may be enforced by act of Congress, which is the highest form of the national will.

If these conclusions needed the support of authority, they would find it in John Quincy Adams. At an early day, when Secretary of  State, in the discharge of his duties, he had claimed under the Treaty of Ghent compensation for slaves liberated by the British armies, and he had argued against any such liberation under the rights of war. Years later, when he sat in the House of Representatives, he said that it was utterly against his judgment, but that he was obliged to make the argument on behalf of the United States Government.

Editor's Note

In other words, as early as 1800, the law of nations was clear that belligerents did not have the right to liberate the slaves of their enemies, when engaged in a war of conquest. In 1861-1865, the Union was doing to the Confederate States exactly what Great Britain was doing to the United States, in 1776-1780. The only difference is that the Union won and Great Britain lost.

Whatever may have been his conviction at that time, it is beyond question that he reconsidered his earlier diplomatic argument and said, while sitting in the House of Representatives, in 1841, that the President has the full power to emancipate slaves under the rights of war. The representatives of slavery broke forth in outrage upon Adams, but nobody answered him. And his words have stood ever since as a landmark of public law. (Huh?)

Whatever may be the mitigations of the rights of war introduced by modern civilization, under which private property in certain cases is exempt from confiscation, this rule does not apply to cases where there is a direct personal responsibility for the war. Every rebel who has voluntarily become an enemy has assumed a personal responsibility for which, according to principles of public law, he may be held liable to the full extent of his property, real as well as personal. He is in the condition of Shylock when his cruelty is arrested by the righteous judge. "If thus shed one drop of Christian blood, thy lands and goods are, by the laws of Venice, confiscate unto the State of Venice."

Editor's Note

Here, Sumner leaps over the great fault in his argument by seizing upon the pronouncement of an imposter judge in a fictional court case.

Mr. President, such are the principles on which we are not to act. The present Congress has already done much beyond any other Congress in our history. Emancipation in the national capital; freedom in all the national Territories; the offer of ransom (Lincoln's plan) to help emancipation in the States; the recognition of Hayti and Liberia; the treaty with Great Britain regarding the slave trade; the prohibition of the return of fugitive slaves by military officers (an article of war Lincoln does not yet enforce); homesteads for settlers on the public lands, a Pacific railroad; such are the achievements by which the present Congress will become historic.

The war began in slavery, and it can end only with the end of slavery. It was set in motion by the slave oligarchy and it cannot die except with this accursed oligarchy. Therefore, for the sake of peace, every power should be enlisted by which slavery, which is the soul of the war, can be reached. Are you in earnest? Then strike at slavery!

The Presiding Officer: The question is on the amendment of the senator of New Hampshire, Mr. Clark, to strike out in the House bill after the enacting clause, and insert as a substitute the following:

That every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared free.

Sec. 2. That if any person shall hereafter incite, assist, or engage in any rebellion against the United States, such person shall be imprisoned for a period not exceeding ten years, or by the forfeiture of all his property, real and personal, and by the liberation of his slaves, if any he have; and all such property, excluding slaves, shall be forfeited to the United States.

Sec. 3. Such persons shall not be allowed to hold any office.

Sec. 4. This act shall not be construed to affect the prosecution of any person guilty of treason before the passage of this act.

Sec. 5. The President is authorized and it shall be his duty, to seize the property of such persons who have been notoriously engaged in rebellion

. . . .

Mr. Wilkinson, of Minnesota: Now, sir, what are the rights of war. The rights of war are all deduced from a single principle, and that is the end of a just war. When the end for which the war is prosecuted is just, the rights of war grant to him who is waging it all necessary means to attain that end. Sir, I claim in defense of the right of confiscation, that it is necessary to compel the guilty authors of this rebellion to indemnify the loyal people of the country for the suffering and expense to which they have been subjected, in consequence of this rebellion. The people upon whom the Confiscation Act will operate are those who have forced us into this war. They have compelled the nation to use force, to raise armies, to build ships of war; and they have no right to complain if things proceed so far that they lose everything they own in the struggle.

Mr. Sumner: Of course Senator Clark's substitute is open to amendment, and before the vote can be taken on it, I have several amendments to move. I send one to the Chair.

The PRESIDENT pro tempore: The question is on the amendment to the amendment.

Mr. Sumner called for the yeas and nays: yeas 14, nays 25. So the amendment to the amendment was rejected.

The PRESIDENT pro tempore: The question recurs on the amendment moved by the senator from New Hampshire, Mr. Clark.

Mr. Sumner: I have another amendment to insert.

(A parliamentary wrangle ensues as Sumner invokes Senate rules.)

The PRESIDENT pro tempore: The question is on the amendment of the Senator from New Hampshire upon which the yeas and nays have been ordered. Yeas 21, nays 17. (The New England radicals voted nay, the moderates, joined by Border State men voted yea.) So the amendment was agreed to.

Mr. Trumbull now moved to strike out the entire bill of the Senator from New Hampshire, and to insert in its place the bill that was passed by the House to emancipate the slaves.

Mr. Sherman, of Ohio: Mr. President, the motion of the senator from Illinois, if persisted in, will open the debate we have had on confiscation, as well as the whole question of emancipation. It is a strictly parliamentary motion, but unusual. It seeks to substitute for a bill which we have been discussing for months another bill lying on the table.

Mr. Wade, of Ohio: Mr. President, I have witnessed with a great deal of pain the scenes that have been presented to us today in the Senate. There has been such a radical expression of feelings which tend to divide our party. We have stood together shoulder to shoulder, upon the great questions of the day. I am sorry that we are parting here upon a great measure. I am willing to sacrifice everything except principle in order to unite us. ("Oh, let us vote.") My friends behind me may mutter as they please. Mr. President, why do we differ on this question, and why do we differ? There is really no difference between the House bill and the bill of the Senate committee. You cannot name a single principle in the House bill that you cannot find in the Senate bill. It is as to the extend and vigor of the measures proposed that they differ; and I regret to hear that among Republicans there is a particle of difference in sentiment as to how far we should go in putting down this rebellion, and punishing the authors of it.

There was a favorite bill emanating from the Judiciary Committee. It was vigorous, it was masculine; it dealt not in sentiment for rebellion. It sought the destruction of rebels, the confiscation of their property, the liberation of their slaves. I loved the bill for that. I was overruled. That bill went to a special committee which I knew would not be prepared to go as far as I wished the bill to go. In the meantime the House took the subject up and they passed a bill. I read the House bill carefully and I found it pretty much what I wanted. I thought that Republican senators would not be willing to risk a division on a great measure of this kind, by standing bigotedly and doggedly to their own bill. I was aware, though, that whoever goes for the weakest measure is sure to have the support of every man who wants no confiscation bill at al..

I had hoped that when they whipped us out of our darling bill, they would gracefully concede and surrender their own and act with us upon the middle ground of this great bill of the House. But, sir, we are beaten; the fatal vote has been taken.

Sir, it is a great mistake! I say the harsher we are to these rebels, the better it will suit the Union men of the South. I want their great aristocratic estates brought low, I want their slaves sent away. Sir, we must put them down. To talk of peace with the cause of this war is nonsense. The House bill is well calculated to do this. I ask these Senators, can you not concede something to a majority of your fellows who have worked with you through thick and thin?

Mr. Clark, of New Hampshire: If you will examine the yeas and nays, you will find that fifteen Republicans voted one way, and fifteen the other. Now, why cannot you concede as well as we?

Mr. Wade: I cannot understand how that vote could have stood so.

Mr. Clark: The record shows it.

Mr. Wade: I thought the vote stood 17 to 24.

Mr. Sumner: It stood 17 to 21.

Mr. Wade: And the Senator from Indiana and the Senator from Missouri voted with us.

Mr. Fessenden: That left you only fifteen Republican votes.

Mr. Wade: Very well then; we had that class of men from the slave states of whom I have been speaking, men who want vigorous measures adopted. These are the men that voted with the earnest, up and down, through thick and thin Republicans in this body. Sir, I honor them for it. And whom did you join with?

Mr. Henderson: I will state that I voted against the amendment because I wanted neither bill.

Mr. Wade: he who is not against us, is for us. There is our vote; and you talk of your vote being swelled up to that. How have you labored upon this great issue to defeat your brethren not only here but in the other House, where the vote was almost two thirds in support. What do you contend for in your bill that you stickle for, that is not in our bill? Not a man of you can tell us.

It is true I heard the Senator from New Hampshire say the other day that he never would vote for the House bill. He did not tell us the reason.  Why invoke the aid of your enemy to defeat your friends? This very debate today, and the vote defeating the House bill will ring through the Slave states as with a perfect yell of triumph, like a great victory. When they behold the Democrats and a portion of Republicans are joining hands. They will say, "Let us hold out a little longer."

Now, sir, between these measures, if I cannot have the House measure which I want, I shall go over to your measure.

Mr. Fessenden: This seems to be rather a family quarrel, and I take the floor because of what has fallen from the Senator from Ohio. I have had the misfortune to differ in my opinions with the Senator, but I must be allowed to make my own vote, voice my own opinion. I am denounced as having gone off from what are called the true, straight forward Republicans. All who disagree with him are no longer among the faithful.  The Senator's speech goes out now to the country as a direct, positive imputation upon the integrity of those who have not voted with him.

Sir, when the Senate bill was brought into this chamber, the Senator knows full well that that more than once, time after time, gentlemen strongly in favor of it were warned that there were provisions in that bill which gentlemen acting with them could not sustain, that their view of the unconstitutionality of its provisions were such that they could not sustain it; and what was the appeal made to them? The appeal made to them was, "appoint a committee of our friends, and let it be examined, let the obnoxious features be modified, put it in condition that we all can vote for it, do not carry it into the Chamber and make a wrangle and a disturbance among friends of the same creed. That was the appeal made. It was rejected over and over again, and it was insisted that it should come into this Chamber, and that the matter should not be settled out of it. Can any gentleman deny that statement? That is conciliation; that is accommodation to friends; that is a regard for constitutional scruples!

One would think that is hardly the proper course when, even if there was a small minority of a party who, being men of truth and of integrity, said "We have difficulities; the difficulties go beyond mere forms; they go to a question of constitutional right; do not compel us to go against you."

No concession was made. The original measure insisted upon. What was the result? Men cannot be compelled to yield their views of the Constitution. The result was that the trial failed, and when it failed, what did it come to? It came somewhere near the point that should have been come to in the first place. A select committee of this body was appointed to examine all the bills, and report something that might be a compromise. The selection was made by the Chair; the committee had a majority of what were called the friends of a stringent confiscation bill upon it.

Mr. Trumbull: Oh no!

Mr. Fessenden: It had. The Senator from Illinois was offered a place and he turned it down. The compromise bill came into this body and what does the record show? Take these two who have chosen to vote for the House bill, and add them to the fifteen gentlemen on this side who voted against the House bill, and it makes a majority of the Republican members opposed to the House bill. And yet the Senator from Illinois talks about the few Republicans who join with the enemies of all confiscation.

These gentlemen had been pressing action, pressing for a vote, determined to have it, to bring us to a vote, and what did they do? When they found that the report of the committee thus agreed upon, a compromise thus calculated to heal all difficulties, was likely to be adopted, the next thing was to put it over and keep it out of the way, and the Senator from Massachusetts avowed that to be his wish, until the House of Representatives acted. Who was factious? Who was disposed to control?

I came to the time when the Senator from Massachusetts, the great leader on this subject, avowed that he no longer wished for it, and I brought on the tax bill.

Mr. Wade: I am not blaming you for bringing on the tax bill, but you crowded us out.

Mr. Fessenden: The Senator knows better than that. He knows that his own friends, when they found they would be beaten, desired to have it put over. The other House passes a bill which is satisfactory to the Senators. It comes in here and they are willing to take it up; and now because we would not yield at once our assent to that bill which they waited for and which suits their views, but prefer to vote for the proposition reported by the select committee, what do the gentlemen do? Contest it through and through and through again, and not satisfied with that, with all the regard they have for their friends, and all the wish they have to keep the Republican Party together, they tell us: "Take it or leave it." And if you do not take it you are uniting with the enemies of all confiscation, to defeat the true out and out Republicans. Are not we fifteen as good as you fifteen any day of the week?

Mr. Wade: I think not.

Mr. Fessenden: That is precisely the thing. We get to the bottom of the Senator's heart. He thinks we are right as long as we follow him.

Mr. President, I believe in the entire power of Congress. I believe in a constitutional oversight by Congress of the war and all that pertains to it, the President included, as my friend does; but in the conduct of the war, had it been from the start the policy of the Administration to conduct it upon strict principles, upon the principles on which we have been speaking, to go into the country of the rebels, as we call them, as into an enemy's country, and to avail itself of all the powers under the Constitution which it possessed, until we interfered with it for the suppression of the rebellion, much more might have been done with reference to these great questions than has been done. But, sir, I find no fault; I am not here to judge the Executive Department. Because they differ with me or I with them, it is not for me to denounce them either as incapable or dishonest.

Enough upon that subject. Let us settle this question, and let us settle it with the House of Representatives.  I believe in the bill of the committee.

Editor's Note

The bill Senator Fessenden is referring to as the project of the Radicals, led by Wade and Trumbull, was introduced by Trumbull to the Senate on December 5, 1861 as Senate Bill 78. The text of this bill is not found in the record. Senator Trumbull described the bill thusly: "It is a bill for confiscating the property, and giving freedom to the slaves, of rebels. It provides for the absolute and complete forfeiture forever to the United States of every species of property, real and personal, belonging to persons beyond the jurisdiction of the United States, who shall take up arms against the United States or in any way aid the rebellion. This seizure to be enforced by the military power of the United States. The bill also forfeits the claims of rebels to slave and declares the slaves free." Senator Trumbull stated that he was not placing the authority for the bill on the concept of military necessity, but upon "the authority of the Constitution," which he finds in the fact that the Constitution grants Congress the power to make war.

Senate Bill 78, along with four similar bills offered by other senators, was referred to the Judiciary Committee. On January 15, 1862, the bill, along with the others, was reported back to the Senate. At this point the bill was to be printed and read and placed on the calendar. From there it appears to have made its way to a select committee. On April 7, 1862, the Radicals, having the floor, moved to "clear the calendar" of a number of bills relating to the subject of confiscation; included among these is Senate Bill 78.

The Record reads:

Mr. Wilson, of Massachusetts: The Committee of the Judiciary has been discharged from the consideration of bill 161. I move that it be taken up and indefinitely postponed.

Mr. Trumbull" I think the same course might be pursued with all the bill on the Calendar that relate to the subject of confiscation of property.

Mr. Sumner: I doubt whether it is desirable to get them off the Calendar until we reach a conclusion on the general subject.

Mr. Trumbull: I see no object in having them here, because we are considering one bill which has been reported by the committee.

Mr. Sumner: I have no concern about it.

Mr. Wilson: I think the suggestion made by Senator Trumbull is correct. I have marked all these bills and intended to move to strike them off. They are. . . S.N. 78, for the confiscation of the property of rebels and giving freedom for the slaves. . .  I move they be postponed indefinitely.

The motion was agreed to.

The point to keep in mind here, is that Trumbull's crowd of 15 Republicans was pushing the concept of declaring the slaves of rebels to be free from the beginning of the second session of the Thirty-Seventh Congress, with some of them professing to believe the Constitution allowed the Congress to do this, and some of them professing to believe that, while the Constitution did not allow it, military necessity trumped the Constitution and, on that basis, claimed for Congress the power to declare the slaves of rebels to be free;  and still others of  them claimed the President could do it in his capacity as Commander-in-Chief.

All of them, from the point of view of abstract application of law, whether constitutional or international, were wrong. The 15 Republicans in Fessenden's crowd, supported by the senators from the Border States, recognized this, and through the House bill tried to keep the issue within legal bounds.

 No doubt following this political process closely, Lincoln understood the extra-legal nature of the political act of confiscating private property and acted to proclaim the slaves inhabiting rebel territory to be free, only when it appeared that the rebel invasion of Kentucky might result in the capture of Louisville and cause the young men of Kentucky to flock to the Confederate banner. The Emancipation Proclamation was based squarely on military necessity springing from the moment and nothing else. Its way past time for the historians to abandon the romance and rhetoric surrounding the Proclamation and recognize it for what it was: a warning to the Kentuckians to toe the line.

The Presiding Officer: The question is on the amendment to the amendment.

Mr. Trumbull: Mr. President, I said that a minority of the friends of confiscation, uniting with its enemies, were placing an amendment before the Senate. That has been converted by the Senator from Maine; and he has undertaken to make it appear that a majority of Republican Senators—

Mr. Fessenden: The Senator will pardon me; his language was not "a minority;" he said "a few."

Mr. Trumbull: I repeat, it is a few of the friends of confiscation, joining with the enemies of confiscation, that have placed the amendment before the Senate and there are, let me tell the Senator from Maine, members of the select committee who have boasted there is no confiscation in it. I say that the amendment offered as a substitute today would have failed but for the votes of Senators not Republican.

Mr. Fessdenden: The Republicans themselves have not a quorum.

Mr. Trumbull: It would have failed if there had been none but Republicans here. Then how was it carried. Let there be no misapprehension in the country.

Mr. Fessenden: I do not know how my friend's mind is constituted, but it seems very difficult for him to state a Senator as he says. I said that if you added their votes to the others, there was a majority of Republicans for the bill. I did not claim that they would vote for it today. I know for a fact that the Senator from Ohio voted the other way today.

Mr. Trumbull:  I do not wonder at the sensitiveness of gentlemen here. I will not undertake to speak of the people of Maine, but the people of my state are in earnest; they are for putting down this rebellion; they believe that a war exists, a wicked, unrelenting, causeless war, urged on by bad and wicked men. They have suffered. I do not know but twenty thousand of loyal soldiers from Illinois have been buried since this war began. Hundreds of their bodies have been borne back and deposited in the soil of the State whence they went forth to maintain the Constitution and the Union.

And when a bill is substituted in the Senate by the votes of a minority of the Republican Senators, who are held responsible for the administration of the Government, uniting with those opposed to the Administration, it is no wonder those bringing this about should feel a little sensitive.

Mr. Clark: Is there no sensitiveness on that side of the Chamber?

Mr. Trumbull: No, sir; I feel no sensitiveness; I feel no malignity. Now I will answer Fessdenden. He wants to know why we cannot come in and take the compromise bill of the Senate. The compromise bill of the Senate! A compromise to whom? A compromise to the men who want no confiscation bill? No, the substitute is no confiscation bill. How then will it pass; because some of us will accept it as having something in it; it is better than nothing.  It will then go back to the House and the House will have to concur in it before it can become law. And if they do not concur it will lead to a committee of conference and, therefore, when I cast my vote for it I do so thinking there is still some chance to get something better.

I should hope no Senator votes from feeling of fear and I should think it only in the imagination of the Senator that he has conjured up such an idea.

Mr. Fessenden: The Senator has no right to say any such thing.

Mr. Grimes, of Iowa: If the Senators have relieved themselves from their personal and constitutional suggestions, I should like now to know something about the order of business. I understand we are in the Senate.

The Presiding Officer: We are.

Mr. Grimes: We are out of committee. We have adopted, as a substitute for the House bill, the Senate bill, and now it is proposed by the Senator from Illinois to add another bill to that.

The Presiding Officer: The bill in the committee was amended by striking out all after the enacting clause and inserting what has been denominated as the Senate bill. The bill was reported to the Senate with that amendment; and the question first in the Senate was, "Will the Senate concur in the amendment made in the Committee of the Whole? To that amendment, thus made in committee, the Senator from Illinois moves this amendment, and the question now is upon the amendment to the amendment made in committee, it being competent for any member to move an amendment in the Senate to an amendment made in committee.

Mr. Trumbull: I will withdraw the proposed amendment at this stage and let the vote be taken directly on the question of concurring with the Committee of the Whole in adopting the substitute and on that I ask for the yeas and nays.

The Presiding Officer: The amendment of the Senator is withdrawn. The question now is, "Will the Senate concur in amending this bill as it was amended in Committee?" On this question the yeas and nays are demanded.

The yeas and nays were ordered; and being taken, resulted—yeas 19, nays 17; as follows:

So the amendment was concurred in. The amendment was ordered to be engrossed and the bill was read a third time.

Mr. Powell of Kentucky: I ask for the yeas and nays on the passage of the bill.

The votes on the yeas and nays were ordered.

Mr. Sumner: On the final passage, I shall vote for this bill, not because I believe it is much in itself, but because I believe, if adopted now by the Senate, it must be returned to the other House, and through the firmness of that body. We shall have a chance yet of having a bill that will be a reality.

Mr. Doolittle: I hope the Senate will now bear witness that there is another threat from the senator from Massachusetts.

Mr. Sumner: In what is it a threat, Mr. President?

Mr. Doolittle: In the language itself.

The Presiding Officer: The Chair will take occasion to remark that allusions to the other House are not in order.

Mr. Howard of Michigan: On the final passage of this bill I wish simply to say that I shall vote against it, because my conviction is very strong that the main provisions of this bill are in direct conflict with the Constitution, because in those provisions it undertakes to initiate a criminal prosecution in a court of law, for the commission of the crime of treason, and, without trying the offender, without bringing him into court, it proceeds to strip him of his property. All of this is to be done without a trial, without calling a jury, or resorting in any of those judicial proceedings which the Constitution demands in all criminal prosecutions. I therefore vote against this bill.

The Secretary proceeded to call the roll.

Mr. Chandler, of Michigan (when his name was called): I vote "nay" because I do not think the bill is worth one stiver. It is utterly worthless as a bill to confiscate property. ("Order!")

The Presiding Officer: Debate is not in order during the roll call.

The result was announced—yeas 28, nays 13. So the bill was passed.

Editor's Closing Comment

Despite one hundred and fifty years of post civil war experience what was at issue between the Radical and Moderate Republicans, in control of the Senate majority, remain at issue today, brought to the fore by the Republicans plunging the country into their so-called "war on terror."

The Ninth Circuit Court of Appeals, in its opinion published on May 2, 2012, wrote the following concerning its dismissal of the alleged "terrorist's," Jose Padilla's, civil suit for damages against Bloat Hall law professor, John Yoo: We dismiss the case, "for two reasons. First, although during Yoo's tenure [in Bush's Justice Department] the constitutional rights of convicted persons subject to ordinary criminal process where, in many respects, clearly established, it was not `beyond debate' at that time that Padilla—who was not a criminal defendant but a suspected terrorist designated and enemy combatant and confined to military detention by order of the President―was entitled to the same constitutional protections as an ordinary convicted or accused criminal."(When Padilla's petition reached the Supreme Court, Bush and Rumsfeld quickly transferred Padilla from the Navy brig to civilian custody and Padilla was finally tried as a criminal defendant and convicted of an ordinary crime.)

Note: The most liberal of the Federal Circuit Courts, the Ninth, tells us now that it was" not beyond debate," in 2001, that the President cannot, under the Constitution, throw an American citizen into a military prison, throw away the key, and leave him, without access to the courts, to be tortured? Senators Trumbull, of Illinois and Wade, of Ohio, are raising up in their graves pumping their bony fists in the air; while Senators Fessenden, of Vermont, Browning, of Illinois, and Cowan, of Pennylvania, roll over with a groan.

"Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla's alleged treatment rose to the level of torture, that such treatment (the treatment Padilla alleged)  was torture was not clearly established in 2001-2003."

Note: "Not clearly established?" So if Padilla's military guards "probably," most likely, tortured him, almost beat him to death, leaving him maimed and brain damaged, this is a war crime, under the law of nations, and the Judicial Branch of American Government turns a blind eye to it on the basis that it cannot recognize a remedy for him, under the Constitution, against the Government? However refined the theory, how is this rationale different than what tyrants always rely on? (See, Jose Padilla v. John Yoo 2012 U.S. App. LEXIS 8934, filed May 2, 2012.)

On Tuesday, May 1, 2012, the Los Angeles Times reported the following:

"The Administration's reliance on drones has stirred deep controversy at home and abroad. Such strikes have led to angry accusations that U.S. dromes have killed or injured hundreds of civilians over three years." President Obama's top counter-terrorism advisor, one John Brennan, says, "We only authorize a particular operation against a specific individual (could be an American citizen or no) if we have a high degree of confidence that the individual being targeted is indeed  the terrorist we are pursuing. This is a very high bar. Brennan did not explain who takes part in the judgment or what standard of evidence is applied to the judgmental process. This, Brennan informs us, conforms to "the rule of law." Brennan said he was discussing this publicly, because "President Obama has instructed us to be more open with the American people."

Note: So if the President tells us he has a "high degree of confidence" that an American citizen is a "terrorist," ipso facto he has the constitutional power to summarily execute him? How did we allow this to come to pass? The public is not to know who are the witnesses against the citizen, what is the nature of the evidence against the citizen and judge it ourselves in a court of law? So what happens next, when the President sends the drones to do their work under American skies?