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
Mr. Fessenden, of Maine: What objection can the
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
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
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,
Tuesday, June 17, 1862
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
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,
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
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
The motion was agreed to.
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
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
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
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
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
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
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
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.’
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
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
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
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 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
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
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.
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.
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
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
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.
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
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.
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
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
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
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.
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
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.
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.
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
Mr. Trumbull: This is a very unusual
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?
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
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
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.
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
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
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
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.
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."
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
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
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
(A parliamentary wrangle ensues as Sumner invokes Senate
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
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
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
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
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 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
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
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
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
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:
Anthony Rhode Island
Clark New Hampshire
Harris New York
Simmons Rhode Island
Ten Eyck New Jersey
8 senators from New England
5 senators from Western States
3 senators from Middle Atlantic States
1 senator from Border States
1 senator from Middle West States
1 senator from "Virginia"
Hale New Hampshire
King New York
3 senators from New England states
2 senators from Mid-Atlantic States
1 senator from Border States
7 senators from Middle West states
4 senators from Western states
Senators whose votes are not recorded:
Wilson of Massachusetts (Republican)
Thompson of New Jersey
Henry Rice of Minnesota (Democrat)
Latham of California (Democrat)
McDougall of California (Democrat)
Bayard of Delaware (Democrat)
Saulsbury of Delaware (Democrat)
Pearce of Maryland (Democrat)
Kennedy of Maryland (Democrat)
Carlile of "Virginia" (Democrat)
Powell of Kentucky (Democrat)
Wilson of Missouri (Democrat)
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.
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
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