What Happened in May 1862 ©
In The Congress Of The United States
Confiscation of Property, Again
Editor's Comment: There are two
distinct things happening here: first, the most radical of the Republicans are
seeking to advance their policy of freedom for the slaves through the
confiscation of the property of slaveholders; second, they are struggling with
their adversaries over the problem of how to accomplish this in a manner that
at least seems to conform to some form of law.
The tension between distinct
concepts of "law" can be seen throughout the arguments of the
senators and representatives, given verbatim below. What becomes clear as you
read, is that by the congressional act of confiscation the rebels cannot
possibly be classed as citizens of the United States, because if they were
citizens of the United States the Congress could not, under the Constitution,
authorize what the act of confiscation proscribes
Recognizing this really
indisputable fact, many of the senators attempt to hang the authority for the
act of confiscation on the law of war, but, here too, they fail to conform the
act to the law. If you class the rebels as "enemies" as opposed to
"citizens" certainly the law of war applies; but the law of war, as
it existed in 1862, did not authorize the United States to strip slaveholders
who were citizens and, perhaps, soldiers of Virginia, of title to their
private property whether real or personal.
Under the law of war, the United
States Army, in the course of invading Virginia, might lawfully seize for its
use, on the excuse of military necessity, private property—farm land for
camps, livestock for food, horses for transportation, slaves for labor—but once
it moved on in its invasion title to these forms of property did not legally go
with it. Ultimately, regardless of the character by which the property owner
might be defined, title to the property belonged to him and nothing in the law
of war authorized the United States to transfer the title to someone else.
If the law of war were otherwise,
think, for example, what result the Jewish owners of fine art could expect to
get, when they sued years after World War II to recover the property the German
Government took from them.
As you read, then, keep in mind
how the senators and representatives struggle in the construction of their
arguments to skip past these abstract legal barriers to conflate the meanings
of the words—"Rebel" "Citizen" and "Enemy." At
the end of the struggle, which does not come until July, they create a new law,
practically impossible to enforce, that purports to punish rebels in a way that
neither citizens nor enemies can be legally punished.
Though the text is long, for
those of you interested in the truth of history, it is worth reading because it
gives you the opportunity to put yourself in the gallery and listen to those
responsible for the reconstruction of the country's Constitution, as they
speak; it is as if you were present in Philadelphia's Independence Hall, in
1787, listening to Washington speak.
first citizen and soldier, and first
of the United States
May 1, 1862
resumed the consideration of the bill (S.No. 151)
the property of the rebels and free the slaves
Wilmot, of Pennsylvania: Mr. President, the second section of the bill
reported from the Judiciary Committee is an act of emancipation, giving freedom
to the slaves of those who, during the present rebellion, shall take up arms
against the United States. The bill itself declares their emancipation without
the intervention of court or commissioners, and provides that in any proceeding
by the master to enforce his claim against the slave, he shall establish his
loyalty before an order shall be made for the surrender of the slave. The bill
also provides for the confiscation to the national Treasury of both the real
and personal estate of rebels.
I will consider briefly the features of this bill. The
second section I sustain. I would today give freedom to the slaves of every
traitor; and after that would confidently look for the early adoption of the
policy recommended by the President, gradually to work out the great result of
Special guarantees are claimed for the protection of
slavery. I deny this pretension. It has no constitutional basis. Its claims for
special protection is an insult to the nation. The property of the nation is to
be subjected to heavy contribution, the lives of tens of thousands of its
citizens sacrificed, hundreds and thousands of widows and orphans cast upon the
charity of friends for support. Slavery alone claims exemption, the cause of
the rebellion. This great revolt against the sovereignty of the nation has no other
foundation except slavery.
Note: Mr. Wilmot ignores the
truth: The constitutional basis for slavery lies in the fact that, as
Washington and his colleagues framed it, the Constitution is a constitution of delegated powers; the power to regulate the domestic policy of
the States is not enumerated among these delegated powers and, thus, the policy
of slavery or no slavery is reserved to the States respectively. Whether or not
the fact the United States is at war with the seceded slave State, gives
Congress a legitimate excuse to override this constitutional reality is
an entirely different question, from that of whether there is a constitutional
basis for slavery among the States still in the Union.
The freemen—the democracy of the nation—in the election of
Abraham Lincoln, vindicated their right to administer the Government, and in
the first hour of victory were met by the armed rebellion of the slaveholders.
Shall slavery overthrow this Government? The nation has the right of self
defense, self-protection, and to remove whatever stands in its way. It is the
immutable law of nature and of nations, that a State shall preserve
itself, that it may destroy whatever enemy threatens its life.
Note: The sword Wilmot raises
cuts both ways. Virginia, in 1861, was, as the founders understood it, a State
in the purest sense of the word; it controlled its domestic affairs, and, if
invaded, it had the right and the means to defend itself. At the same time as a
State outside the Union, it was naturally at risk of being invaded by the rump
of the United States, intent on conquering it. But it is a powerful sword:
slavery threatened the life of the Union—and that means the life of the Federal
Government, and for those in control of it.
Mr. Wilmot is pretending, here,
when he claims Virginia and her allies constitute a "threat" to the
Federal Government's "life." Germany, in 1939, certainly constituted
a threat to the life of the governments of Europe, but Virginia, in 1862,
hardly constituted a threat to the life of the Government of the United States. Like Poland, in 1939, it simply wished to be let alone.
Does any Senator on this side of the Chamber doubt that
slavery is the immediate cause of our troubles? If not, then I claim his
support for such measures against slavery as shall make it powerless for future
mischief. The nation must never again pass under the yoke of the slave power.
Mr. Calhoun earlier saw and more clearly comprehended the irreconcilable
antagonism between freedom and slavery. In 1841, Mr. Calhoun became satisfied
that the two systems of society and labor could not both stand under one
Government; that slavery must go to the wall, or a dissolution of the Union was inevitable.
The Constitution is continually pushed forward in support of
the inviolability of slavery. Sir, I deny that the Constitution contains any
special guarantees in behalf of slavery. It provides for the surrender of persons owing labor or service escaping from one State into another. This is as
applicable to apprentices as to slaves. If, however, the Constitution can be
construed as containing special guarantees in behalf of slavery, the paramount
law of self-preservation is not the less obligatory on the nation.
Note: Here, you see the constant
refrain of the Republicans again: there is a law "higher" than the
Constitution. You are supposed to forget, when it is convenient, that the
Constitution defines itself as the "supreme law of the land."
Whatever we deem necessary as a means of preserving
the Government, we have the authority of reason to do. This
doctrine is clearly recognized in the late special message of the President
recommending national aid to the liberating border States. Slavery is not only
the cause, but the great support of the rebellion. Slaves do much of the work
of the rebel army, throw up intrenchments, build fortifications. Yet slavery is
the one thing we must not disturb. To no other interest do we accord this
exemption from the dangers and necessities of war.
Note: So, then, the government in
power in Syria, today, has the authority to murder its citizens who are
demonstrating in the streets against it? Raze their houses, empty their bank
accounts, take the title to their lands?
The bill at hand is based on the principle that if the rebel
can be arrested, and punishment inflicted on him by the court, his property is
not molested. But if he abandons his property, and flees the country, or be
within territory which is in rebellion, then by military commission his
property can be taken and its proceeds placed in the Treasury.
Three grounds of objections are made to this bill. It is claimed
to be in contravention of the law of nations; it violates the Constitution; and
that its passage is not a good idea as it will drive the rebels to desperation.
Note: These are objectively
strong reasons, if true, for recognizing the bill is not reasonable.
Mr. Henderson of Missouri made a great effort to show that
the bill violates the law of nations. He cited authorities of weight and
respectability, but I think the law is settled against him. National law rests
upon the law of nature. As an independent nation, we alone determine when
and how far we will be bound by the customary law. Assuming the law in
front of us is in conflict with international law, still our right to
enact it cannot be questioned.
Note: Here, Mr. Wilmot joins
hands with Hitler, and every petty tyrant the world has ever produced.
Should we pass this bill, what power will annul it? Does any
Senator believe that the passage of this bill would provoke towards us the
hostility of nations? Would the foreign ministers resident here, protest on
behalf of their governments? Sir, they would not, they would hail us for doing
It is claimed their property cannot be seized because they
are citizens, and entitled to the protection of the Constitution. How absurd is
this. Those in rebellion are both traitors and public enemies, and are
amendable to the laws provided against both. An alien enemy, whose property is
found among us, having never himself borne arms against the country, this
property we seize and forfeit; but if his allegiance were due to us, if he had
sworn to support and defend the Constitution, and then wickedly perjured
himself, we cannot take and forfeit his property; it is under the aegis of the
Constitution, and must be used only in the service of the rebellion!
Note: The "rebels" are
not claiming they are citizens of the United States; quite the contrary. It is
the Republicans, themselves, who are making this claim, as the means of denying
that the States have lawfully seceded from the Union.
Again, objection is made to the bill because of its
attainder. The Constitution reads: "Congress shall have power to declare
the punishment of treason; but no attainder of treason shall work corruption of
blood or forfeiture, except during the life of the person attained."
What is "attainder," as used here? Simply judicial
judgment against an offender for the crime of treason. In other words, no
judgment of the court can deprive the heirs of the offender of their rights of
inheritance of his property. But this rule does not apply here, because our
bill does not involve the rendering of a judgment at all. No man can be tried
under it. It affects property alone. Those whose property is taken are beyond
the reach of personal punishment. Are the refugees of this rebellion to live
upon the revenues of large estates here? Is Slidell to live in Europe in affluence on the revenue of estates in Louisiana?
Note: Mr. Wilmot is making up law
as he goes. The Constitution's provision against attainder clearly means that
Congress has no power to enact laws which punish the "rebels" for
treason by declaring their property is forfeited to the Federal Government.
Characterizing the proceeding by which this forfeiture is established as
"in rem" vs "in personam" does not change the immutability
of this constitutional fact.
Sir, this bill has no relation whatever to the punishment
provided against treason. It attaches to the property of those in
rebellion, and provides for proceedings in rem and not in
Another claim of unconstitutionality is that the bill is an ex
post facto law. It is not. It has no feature of pains and penalties. It
inflicts no penalty for past offenses, but only inflicts forfeiture against
such as shall, after its passage, be guilty of bearing arms against the United States.
Note: Here, Mr. Wilmot is right:
by limiting the operation of the bill to "rebellious" acts committed
after its enactment, Wilmot dodges the prohibition of the Constitution's ex
post facto provision. But, of course, to the chagrin of many of the Republicans
this means that the bill cannot affect the title to the slaves who have already
come within Union Army lines.
Very extraordinary powers are claimed for the
President on this subject of emancipation of slaves and the confiscation of
property. As commander-in-chief, it is claimed that he has full power to
emancipate the slaves, and the right to take for public use such property of
the rebels as he pleases. This, sir, is claiming large powers for the
President, and if he possesses them, then, indeed, does war make him as
absolute as the Czar or Sultan.
Note: Here we see the real
importance to us of understanding the political history of the Civil War, for
what happened then within the Legislative and Executive branches of our
Government, we can expect will happen now and in the future, every time we are
so distracted to allow these bodies to engage the country in war. War
is the greatest danger to our civil liberties. Wilmot, despite
his support of the bill, was unwilling to recognize extraordinary powers
devolving to the President as a consequence of war.
The President, as Commander-in-Chief, has no power to
emancipate slaves, except as actually connected with his military operations,
and here he is limited to the actual power of the force under his command. A
general in the field has the same power. A proclamation by the President
of general emancipation, or of emancipation of the slaves of rebels, is utterly
without force. He may control by martial law within his military array.
He may call upon the slaves for military service. And take him out of the power
and control of his master. His authority as military commander does not go
beyond his lines. He has no power whatever of confiscation. He may take such
military stores as are necessary for the support of the Army, and he may do
this alike with friend or foe.
Note: Wilmot accurately describes
the President's power as Commander-in-Chief to seize the property of enemies,
under the law of war.
The supreme power of this Government, under and within the
limits of the Constitution, is in Congress.
Note: This last claim, you will
see, was hotly contested through the long debate over the Confiscation Bill,
and it is still being contested in our day: where does the "supreme
power" of the Constitution lie? In Congress? In the President? In the
Supreme Court? In the people?
Wright of Indiana: Mr. President, I will not discuss all the details of
a confiscation law. It is enough to say I have no patience for long debate upon
the power of Congress to pass an act of confiscation. It is not denied that we
have the power to declare war and to suppress rebellion. Having this power,
have we not also the power to successful prosecute the war? By depriving the
rebels of the means for continuing this rebellion we go a great way toward
securing its extinction.
I say, sir, that when the nation is imperiled there is but
one duty supreme and absorbing, a duty to which all others are subordinate—the
duty of self-preservation. Everything opposed to the existence of the
Government must be made to yield, or be swept off with an iron hand. That
the State may live, all other considerations must be neglected, all
inferior interests must perish.
Note: This is surely the
barbarians' view: "Everything must be swept off with an iron hand that the
State may live?"
When we declare war against the rebellion in the South we do
not declare war against the States, or against independent nationalities. Our
hostilities are directed only against those who have taken up arms against the
Government, and the end we seek is the suppression of the rebellion. We do not
declare that the citizens of all the seceded States shall be considered as
alien enemies; and the innocent shall be involved in ruin with the guilty, but
we ask for a method by which the loyal citizens can be distinguished from the
Note: By September we shall see
that this has become an impossible task; hence the Emancipation Proclamation.
Senator Collamer, of Vermont, seems to regard the rebels as
a Power, and not as felons, and half approves of England's recognition of them
as a belligerent Power. He says that the war should be conducted in accordance
with the law of nations. If he means by this that foreign Powers have a right
to call us to account for neglecting the maxims of international warfare and
pursuing our own course, I utterly dissent from this view.
Why should our armies restrict their seizures of rebel
property to that found in rebel camps and contraband of war according to
international law? We seem to be under the delusion that this is properly a
war, instead of a contest for the arrest and punishment of our own
citizens, who have committed felony, and every one of which is
responsible for the crimes of this rebellion.
Note: Here, Mr. Wright highlights
a fundamental defect in Republican political theory, justifying war against Virginia
and her allies. The Republicans are desperate to frame the situation as merely
an exercise of the police power, to restore law and order as happened when the
Government applied military force to quell the civilian riots that occurred in Detroit and Los Angeles and other cities, in the 1960s. The application of force, Wright
argues, is not against "States," but against persons in rebellion. In
other words, the Federal Government can do to rebels what it cannot do to
citizens or enemies?
I hold, sir, that every loyal citizen of South Carolina is
as much entitled to the rights and privileges of this Government as the loyal
citizen of New York. To listen to any other teaching, to adopt any other
policy, would be rank injustice. We should be very careful not to countenance
any proposition looking to the destruction of the States and the organization
of territorial government within their limits, for in direct terms we would
admit the foul doctrine of secession. This Government does not look this
rebellion as an act of the States, but as the act alone of the individuals who
have engaged in it.
Note: This, of course, is exactly
what happened as the war progressed to its end. The seceded States became
"military districts" managed by U.S. Army officers for almost ten
The Presiding Officer: The question before the
Senate is on the motion of the Senator from Pennsylvania, Mr. Cowan, to refer
the bills for confiscation to a select committee of seven. Is the Senate ready
for this question?
Note: After two months of debate,
it is becoming clear that there is not a majority of senators willing to ignore
the Constitution and the law of war, in the matter of confiscating the rebels'
Mr. Wilkinson, of Minnesota: I hope that the
motion will not prevail. Reference will create delay. We are ready to vote on
Mr. Wilson, of Massachusetts: I propose to
amend the amendment of the Senator from Vermont, Mr. Collamer, which I believe
is the amendment now pending.
The Presiding Officer: The amendment is not
now in order. The question pending is on the motion to refer.
Mr. Saulsbury, of Delaware: I ask for the yeas
The yeas and nays were ordered.
Mr. Wade, of Ohio: I hope this motion will not
prevail. It is made by no friend of this bill.
Note: It is becoming clear to
everyone in the Senate that some Republicans, joining with the minority of
Democrats, are now turning to the intricacies of Senate parliamentary rules of
procedure to block the vote on the bill's passage from taking place. This
blockage is seen in the continuing flow of amendments that are being offered to
the bill and the motion made by Senator Cowan to refer the confiscation bill to
Mr. Cowan, of Pennsylvania: I made this motion
to refer. I think the Senator from Ohio is being very ungracious when he
charges that it comes from an enemy. I want to know how it comes that certain
Senators upon this floor are arrogating to themselves constantly that they are
the friends of the country to the exclusion of others who have her interests at
Mr. Wade: I believe the Senator is an enemy of
the bill. I gather that from his speeches.
Cowan: Mr. President, it is admitted upon all hands that these bills
involve grave questions of policy and constitutional law, questions in the
presence of which anyone not heated beyond the point where reason can sway
would stop and hesitate. Look at the number of these bills in the two Houses.
No one can agree upon the plan to be adopted. We have, I think, here a dozen
and I am told six or seven in the other House. Why is that? If this is a
plain question, if we have this power, where is the necessity for all this
I have myself drawn a bill in which I propose to push the
punishment by municipal law against the rebels to the very verge of its
constitutional limit. I propose to amend the old law, the punishment under
which is now death, by adding to it confiscation of the personal property of
the rebel upon his conviction, and forfeiture for life of his lands when the
final judgment is pronounced upon him. How anybody in Congress, with the powers
we have can go further, I cannot see, unless we adopt the theory which seems to
be prevalent here, that Congress is, in defiance to the Constitution, and
directly in the teeth of it, the Commander-in-Chief of the Army of the United
Note: Senator Cowan has got it
right. The only legitimate way to get at the property of the "rebels"
is by using the law of war, but using this law requires that the Congress be in
control of the actual operations of the armies in the field, a control
that the Constitution gives to the President.
But we have nothing to do with the command of the Army. Our
function is to provide the means to raise it, the means to equip it, our power
is simply over the supplies that can keep it in the field. I am perfectly
satisfied to entrust the direction of that force, the command and control of
our armies, to the President.
Note: Ultimately, we shall see Lincoln assuming to free the slaves of rebels through some power he professes to possess
The reference of the bills will tend to a speedy end of this
business. It will give us the measure in better shape by endeavoring to
reconcile and to pick out from all the measures such parts as are advisable to
form a new whole. I therefore trust that the motion will prevail.
Then there is the other thing, the thing
continually brought up here—I mean, the emancipation of the Negroes. This is a
Government of thirty millions of people. Does anyone think we can carry on the
Government if we trespass upon and violate the belief of twenty millions of
those people? We are not here to frame a code of morals for this nation. We
are here to administer this Government and take the people as we find them.
There are eight millions of the South who are unanimously
opposed to our meddling with slavery. They have rebelled upon the belief that
we intended to correct it; and we are to show them they are wrong, to get them
back, to restore the Union, to restore the Constitution and to punish those who
have incited rebellion. How are we to do it? Are we to take that belief and
dogma of theirs and make that the end and aim of all our attacks?
Note: Here we see the tension
between the idea of confiscating rebel property as the means of suppressing Virginia's resistance to the force of the United States, and the idea of changing the
domestic policy of the slave States by force.
Mr. President, that is the worst way. We cannot compel these
people to believe as we do nor can we compel them to adopt their practices to
our beliefs. And, Mr. President, if this course is adopted, and emancipation
is made the prime end and purpose of this war, the war itself will fail
inevitably, just because as soon as the people of the South (this
includes Missouri, Kentucky, Maryland) realize this, they will become
one unit against us and they will carry the war on, can ever be conquered. It
Note: Kentucky is indeed the
lynch-pin here: Lincoln is right in his belief that, if the Union loses Kentucky, the war cannot possibly be won militarily. Without uncontested possession of Kentucky how will it be possible for Lincoln's armies to drive the Confederates away from Vicksburg and, thus, regain entire control of the Mississippi?
Missouri's help, has to hold off
Indiana, and Ohio, to keep the Mississippi closed.
Then, sir, how are they to be conquered? I tell you, Mr.
President, they are to be conquered by us in standing literally, strictly, and
truly upon the Constitution. That is the compact; that is the bargain. The
allegation now on our part is that they have broken it. Shall we break it too,
and justify them?
To assail a universal opinion prevailing over a country of
that extent, among such a number of people whom we expect to govern, while at
the same time we call our government a government of the people, is to ignore,
to deny, and to abandon the very first principle upon which the Government
Note: Mr. Cowan is plainly
correct in his analysis of the situation, if, but only if, you think of the
people of the seceded States as still citizens of the United States. Thinking of them as "citizens" requires recognizing that, indeed, leaving
alone their States' domestic policy was the bargain the founders made
with themselves, but for which the Union never could have existed for a minute,
much less an hour or a day.
The radical Republicans, however,
have already recognized that a new compact, framed by force of arms, will be
the end result of the civil war, and their view will very soon dominate the
Congress and induce the President, under the pressure of immediate military
necessity, to "proclaim" the slaves of rebels to be forever free.
We have said that this power of confiscation is in the
President if it is anywhere; if there is anybody who has the right to seize
upon this property it is the President. That is not only law, but it is fact.
Take the bill of the Senator of Ohio and that of Illinois. Suppose the
President sees fit to disregard it entirely; where is your mode of compulsion?
Senators say, impeachment.
The President is Commander-in-Chief of the Army, and he is
now dealing, and he is bound to deal with the rebellion by the laws of
war. Why? Because these laws of war are arbitrary? Because they are
written down in books somewhere? No, sir. The laws of war are in the
nature of things; they are the laws of humanity; the laws that have
been discovered through long series of mistakes and blunders in bygone
centuries, and which to violate now would be to strike at yourself. The laws of
war are the laws the President expects to achieve his ends.
I say, then, you pass your law, but it is optional with the
President whether it shall be law or no; it depends upon his discretion whether
he will execute it or not.
Comment: It is simple to say that, under the Constitution, Congress legislates, the Executive executes, and the Supreme Court decides whether the legislation is within the power of Congress to enact. But, According to Frank H. Easterbrook, a judge of the United States Court of Appeals for the Seventh Circuit, writing in a 1990 law review article, the constitutional framework is more complex than this. Taking as the starting point of analysis, Marbury v. Madison, Judge Easterbrook writes that Chief Justice John Marshall in that case answered the question―who interprets the meaning of the Constitution?—with "every man for himself."(See, Presidential Review, 40 Case W. Res. 905 (1990))
"Every man for himself:" the President can't kowtow to Congress's view any more than the Supreme Court will. Especially given the unique presidential oath to the Constitution in article II, section 1, clause 7: `I do solemnly swear that I will faithfully execute the office of President of the United States and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.' Nothing there about executing laws while ignoring the Constitution."
For example, Judge Easterbrook argues, suppose Congress passed this law: "The President shall execute Jefferson Davis and the crowd that surrounds him, and he shall confiscate all their property, and none of their descendents shall be eligible for any public office. And no court of the United States shall have jurisdiction to review acts required by this statute."The President must decide whether to dispatch the firing squad. In doing so, the President decides for himself whether the Congressional mandate is authorized by the Constitution. (The "authority" Judge Easterbrook cites for his argument is a "summary" an editor, E.Burns, gives in a 1938 book, purporting to quote an "unpublished memoranda" of James Madison; and a statement purportedly made by Alexander Hamilton, in The Federalist, No. 78.)
What a responsibility the Constitution puts on the President; and on us, we give him, or her, the mandate. We trust the President to protect our civil liberties, from usurpation wherever it may come. We have to trust the system to keep the President in check.
But what if the Supreme Court has spoken on the subject? Article III, Judge Easterbrook explains, "creates the `judicial power of the United States.' A judicial power is the power to render dispositive judgments." The President has no such power under the Constitution and, as a judgment conclusively resolves a case, he or she must objey it―unless the President can claim she is not a party to the case upon which the judgment is based. In his First Inaugural Address, Lincoln did exactly this in regard to the Supreme Court's Dred Scott decision. Dred Scott held that Africans could never be citizens of the United States. Lincoln ignored the judgment.
There is a fundamental difference, however, between ignoring a judgment of the Supreme Court, to which the Government is not a party, and ignoring a judicial order directed to the Executive Branch. In 1861, President Lincoln refused to release Mr. Merryman, who had been summarily thrown into a military prison, despite Chief Justice Taney's order to do so. So far in the history of the Republic, no other president has followed Lincoln's suit. As it was with Lincoln, the day one does it again will be a very black day in the history of the Republic.
I have been of the view from the beginning that the duty of
the Congress was to come here with a united North, as we had a united North,
with loyal hearts beating in unison all over it with us and keep our eyes
solely upon that object and aim. Then we were brothers; then we did present a
full front and bulwark to the enemy, no division, no weakening them.
How is it now? I see extremes already getting up
presidential candidates. We have a mischievous set of politicians who are
endeavoring to distract and to divide the force of the country, on the one
side, by making General McClellan a President, and on the other by making
General Fremont a President. I pray to God to take them away just as soon as
they become pegs upon which to hang a division of that kind in this crisis. I
see no reason why, when the whole strength of the country is needed to achieve
success, why we should turn ourselves into a pack of petty, scrambling
politicians, filled with venom and strife raked up from the ashes of bygone
follies in order to destroy the prize for which we all struggle. (de ja
Then, Mr. President, I hope that all these troublesome
questions, which are calculated to embitter, will be referred to a committee.
Hale, of New Hampshire: I am opposed to referring these bills to a
committee. I want action. It is time to do something. It is time the
do-nothing-policy be abandoned. The contagion of our inertness seems to have
infected the army. They have had a winter campaign in Washington, and they have
gone to the tidewaters of Hampton Roads for a summer campaign to repeat the Washington campaign in warm weather. We have been sitting here a besieged city. (Hardly) Every time we attempt to do something, we are met with a constitutional
objection. I tell you, sir, the Constitution was made for peace.
It was made for a civilized society, and was not framed and did not contemplate
the exigencies and emergencies of an armed rebellion. (This echoes in our
I will say that I am ready to look with a charitable eye
upon every act of the President which has been honestly well meant for the
defense of the country. I tell them there is a fearful responsibility that will
rest somewhere, and they will have to show that there were extraordinary
emergencies which justified some of the measures that have been adopted. I am
willing to have faith that it is so, though I confess it is rather a blind
faith, and not call these gentlemen to account at the present time.
The time has gone for parleying with this matter. I think
that if there is any defect in this bill it is that it does not go far enough.
At this point a series of amendments and counter
amendments were voiced by numerous senators.
Mr. Henderson, of Missouri: There is a
proposition in this bill changing the burden of proof on the slaveholder when
he attempts to recapture his slave. I will not vote for it. There is a
government de facto in the South, and the people there are
compelled by every regard that they have for their lives and their property to
uphold that government; but they will be very glad indeed to see your armies march
We are passing a bill to do what? To confiscate all property
of rebels. Had we not better conquer them first? You cannot take away their
property until you have marched your armies there. Your bill is an idle
Mr. Wade: Did you say there was a de
facto government in the southern States that the people there were
bound to submit to?
Mr. Henderson: Yes.
Mr. Carlile, of "Virginia:" Mr. President,
the white people of the slaveholding States will never consent that the negro
shall be made their equal. It has been announced that there is a power above
the Government, and allusion has been made to the people, that the people may
exert their power if a confiscation bill is not passed. It does seem to me that
Jeff Davis is running two congresses and this one in Washington is doing him
more service than the other.
The Presiding Officer: The question is on the
amendment of the Senator from Wisconsin to the motion of the Senator from Pennsylvania. The question being taken by yeas and nays, the nays have it.
Object of the
Mr. Davis, of Kentucky: I offer the following
Resolved, that the war
now being carried on by the United States to suppress insurrection against
them, should be vigorously prosecuted and continued to compel obedience to the Constitution
and for no other end whatsoever.
Mr. Sumner, of Massachusetts: Let it lie on
Slaves by the Army
On motion by Mr. Wilson, the Senate resumed consideration of
the following resolution, submitted by him on April 3.
Resolved, that the
Committee on Military Affairs be directed to consider whether further
legislation is required to prevent officers from aiding in the return of
Mr. Sumner: I am grateful to the Senator for
the frankness with which he has exposed and condemned the recent orders of
several of our generals. One of these officers, General Hooker, has given
slaveholders access to his camps for the purpose of taking away slaves. Buell
has done the same thing, so have others. General Halleck, too, is involved. He
issued an order, saying, "It does not belong to the military to decide
upon the relation of master and slave. No fugitive slave, therefore, shall be
admitted within the lines of our camps." This is absurd. What right, under
the Constitution, has this general to set himself up as the judge as to cases
of human freedom? Where does he find the power? It is the boast of the
Constitution that all are "persons,' and yet the Army is gravely told to
treat certain persons as slaves. How does this general know they are slaves? On
what evidence? Because they are black? Halleck assumes slavery when he should
assume freedom. I do protest against his perverse violation of the Constitution
in order to carry out a miserable and disgraceful pro-slavery policy.
Note: Sumner, as always, is
talking nonsense, but then he is driven by a "higher" law, and,
indeed, he must be recognized, above all men of the times, as the most constant
in the endeavor to destroy slavery by any means.
Slavery is the constant rebel and universal enemy. It is
traitor and belligerent together. Tenderness to slavery is practical
disloyalty and practical alliance with the enemy.
Mr. Saulsbury, of Delaware: The Government has
been coming into my State at night and dragging away to military prisons white
people. White men these days seem to have no rights the Government is bound to
respect. Now, sir, if the military authorities are oppressive against the negro
race, I am not for oppression. What I ask is that if their wrongs are brought
into this Senate Chamber for debate and redress, let the same measure of
justice be meted out to the loyal white citizens of Delaware who are being so cruelly
treated by the Government.
Mr. Collamer offered an amendment to the bill which
Section 2: That the persons to whose
labor or service any person convicted under this act has claim by the laws of
any State, shall be thereafter forever free and discharged there from.
Section 6: Whenever the President, in
pursuant of existing laws, shall, by proclamation, have declared the
inhabitants of any State in a state of insurrection, he is authorized to fix
and appoint a day when all persons held to service or labor in any such State
as he shall declare, shall be free and discharged from said service or labor
notwithstanding any law of said State to the contrary.
Note: You see here the fact that Lincoln did not think of something new, in September 1862, when he published the
"Emancipation Proclamation." The substance of the idea not only had
been long before incorporated into Senate bills but vigorously argued for, as a
"law" under the Constitution. Ultimately, the Senators recognized the
silliness of this and dropped it from the bill that finally became law.
Mr. Wilson: Sir, with the lights of today, I
do not see how any man can be for slavery and at the same time be a loyal man. Slavery
and treason this day are one and the same. How can any man be loyal to
this country and support human slavery in America. It is the cause, the whole
cause of this rebellion. Slavery is the great rebel: it plunged the nation into
a war for the acquisition of slaveholding territory, it repealed the prohibition
of slavery north of the Missouri Compromise line, it seized the ballot boxes in
Kansas, it enacted a fugitive slave law.
Note: Webster's Dictionary
defines Treason to mean: "violation of one's allegiance to one's
sovereign." The Constitution defines it to mean: a citizen of the United States "levying war against the United States or giving aid and comfort to
I believe we have a constitutional right to free the
slaves of rebel masters, and I think it would be a crime against the
country if I did not give a vote to free the slaves. If this Congress adjourns
without putting on the books an act to free the slaves, it will hurt the cause
of the country.
I believe that we are to win victories, but how to change
the hearts of the masses of men that have plunged into this rebellion? What
made them hate us? What made them jeer? What made them scoff at the Declaration
of Independence? Slavery made them do it. It was slavery, nothing more, nothing
less, that perverted their hearts, clouded their reason, blinded their
consciences, and made them traitors.
Note: Wilson's rhetoric sounds
good, the cadence of the phrases stimulating to the emotions. But is Wilson actually stating the objective truth of history? No, afraid not. The great evil
that caused the war was white racism, a racism that perverted the hearts of the
Northern white men, clouded their reason, blinded their consciences, so that
they refused to offer the slave States the real opportunity to share equally
the economic and social pain that freedom for the slaves would cause. Even now,
with Lincoln's weak message begging Congress to offer the border States
financial help, the radicals reject the idea out of hand They all got
the war they deserved
Believing this, I think it is our duty to walk up to the
extreme verge of our constitutional power, and I would go no further. If there
is a doubt, I would not give that doubt to slavery, but I would give the doubt
to my country. But, sir, I have no doubt we have the right to take the
life, take the property, and free the slaves of every rebel on this continent.
(Here is a fanatic man.)
Senator Collamer has proposed in his amendment to authorize
the President, whenever he shall believe it necessary for the suppression of
this rebellion, to issue his proclamation declaring the slaves of rebels free.
This proposition gives up the whole question. It is a full concession. It
concedes the right of this Congress to authorize the President to emancipate
the slaves of rebels in all the States which are in insurrection. I accept it,
sir; that if the President can do this, so, too, can Congress. Congress has the
right to require the President to do it if Congress believes it necessary for
the suppression of the rebellion.
Now, sir, I should like to know with what sort of grace it
is that we are told that there is no power in this Government to interfere with
slavery at all, and that we are bound by our pledges as Republicans not to
interfere with it, and then, presented with a bill which allows the President arbitrarily,
in his own judgment, and in his own discretion, to free all the slaves in any
location the limits of which he alone decides.
Davis, of Kentucky: I utterly deny the power of Congress, directly or
indirectly, to emancipate a slave in the States. I deny that any man here who,
under the pretext of punishment, can do an act which the Congress has no power
"But, oh," say some gentlemen. You want slavery
defended. No such thing. The Constitution recognizes the property of slave-owners
in their slaves. Have we not been legislating in violation of that right? The
Supreme Court has sanctioned, sustained, and enforced that right; and yet the
Congress is engaged in passing laws, at the instigation of gentlemen here who
prefer abolition to the perpetuation of the Union, to defeat that right.
What did you gentlemen tell us last summer? You were in dire
straits then. You all voted that you did not intend to meddle with slavery in
Mr. Wilkinson: The rebels made the war.
Mr. Davis: True and now you are turning the
war from them to slavery. What was the question in the border States? We had difficulty in holding them, and we did it upon the pledges of the Senate
and the House and of Abraham Lincoln. We assumed that this was not a war
against slavery, and if the Union triumphed in the war they would make no
attack upon the domestic policy of any State. We believed what you said was
true. We quoted it to our people, and we could never have convinced them to
stand with the Union without them. All we ask is that you keep your word. But
pass this bill, every white being in all the slave States, the border
States as well as those who have seceded, against your law, and the
whole object of their lives will be to neutralize its effect.
Note: This is a very real threat
which Lincoln, in September 1862, took very seriously.
There are two hundred and sixty thousand slaves in Kentucky. At least one fourth of them would be subject to this law. The bill proposes to
liberate these slaves, seventy-five thousand at least, and leave them there,
without any provision for them. If the question were put to the people
tomorrow, will you take $600 for your slave and leave him there, or nothing and
we will colonize him elsewhere, they would vote for the latter.
Mr. Trumull: This bill proposes to colonize.
Mr. Davis: But it makes no provision for it.
Besides your colonization is voluntary. The slaves will never go voluntarily.
Mr. Clark: The Constitution has the power to
make rules and regulations concerning the property of the United States. Then they may be set free.
Mr. Davis: That is a matter of State policy.
Mr. Clark: Suppose we take a mule from a
rebel, cannot we turn him loose?
Mr. Davis: Let me explain. I want the whole
white population of South Carolina changed, and if I had the power I would
change it just as the people of Acadia were changed by the conquest of that
province by England. I would permit the hardy men of the West to go there and
possess themselves of the lands and the slaves become planters.
Mr. Sumner: There is occasion for executive
May 2, 1862
Wade: It was not my intention to speak on this. I am not unmindful that
I have sworn to observe the Constitution. I do not believe there is anything in
this bill that contravenes the Constitution. Senator Browning holds that the
power to free the slaves is altogether with the President; that the moment war
is declared the President is a despot, armed with irresponsible power to do
just what he thinks is necessary of the occasion. A more dangerous construction
of the Constitution cannot be imagined. It is not in harmony with the spirit of
the Constitution. I do suppose the rights of war do invest the
Government with all the power that is necessary to maintain itself intact. No
doubt that is true, but the question remains, who shall exercise the power?
Mr. Cowan: I think the power is in the
President. He has the right to anything and everything necessary to suppress
Mr. Wade: Where would our fathers be likely to
have lodged it? In the irresponsible power of one man, called a President? Was
it not the labor of their lives to prevent any man's being armed with absolute,
unlimited power? Do you believe that those men would arm the President with the
power to trample all the limitations they had established for liberty under his
Note: Exactly the same question
must be asked today, when we have Presidents and a Congress making dueling
claims to the power to suspend the Bill of Rights in the name of fighting an
endless "war on terror."The Constitution authorizes Congress to
suspend the writ of habeas corpus it is true, when public security requires it,
but the Constitution does not authorize the suspension of the Bill of Rights
under any circumstance.
There is nothing in the Constitution which warrants you in
saying this power is in the President. He is the Commander-in-Chief and holds
the position with the consent of the people. He is their creature and agent;
but, according to the argument of some senators, he can assume to be their
master, and when their institutions are imperiled their hands are tied, and
they can do nothing! The absurdity is in placing the creature above the
creator; in placing the man, who by the Constitution is the agent of the
people, above the people and above Congress. Away with so slavish a doctrine.
Note: Like Wilson's, Mr. Wade's
rhetoric sounds good, and it does have a certain substance to it. But still, at
the bottom of it, Wade ignores the simple fact that, under the Constitution,
the House of Representatives can impeach the President and the Senate can
confirm it by trial. So far in our history, the Republicans have impeached
Andrew Johnson, for refusing to execute a law he considered unconstitutional,
and Bill Clinton, for lying about a private matter in a deposition taken of him
in a private civil suit. If the day ever comes when a President is impeached
for acting the part of a tyrant, we will all be trembling as the outcome
unfolds and the military might of the United States Armed Forces is mobilized
to clear the Senate Chamber of the Senators, as Napoleon cleared with his
troops the Assembly at St. Cloud.
Mr. Cowan: Is not Congress, as much as the
President, the creature and agent of the people? Are there not in the
Constitution powers delegated to the President that were not delegated to
Congress? Would it not be a violation of the Constitution if the one were to
usurp the powers of the other?
Henry Clay in
willing to listen.)
Mr. Wade: Suppose all that is so. Who stands
near the people, we or this irresponsible chief of yours? Congress has power to
declare war as well as peace, to provide armies to defend the country or assail
other countries. And yet you suppose that the President is, somewhere outside
of the Constitution, invested with supreme power above that of despots—unlimited,
uncontrolled, and uncontrollable. The idea is absurd. When war is declared, it
is Congress, not him, that decides whether the war will continue, and to prescribe
precisely upon what principles it shall be governed. It is for the Congress to
lay down the rules and regulations by which the Executive shall be governed in
conducting the war.
Senators drag in the law of nations as a stumbling block to
our constitutional rights. Although we ought to be observant of the law of
nations, it is the power of Congress, if they please to overrule it and trample
it underfoot. It may be a very good advisory doctrine but it is not a
limitation on our power.
Note: Mr. Wade states the case that Congress controls the decision and the prosecution of war, an idea all of us should support. He goes on, though, to make it clear he is in the forefront of the war crowd.
It is said the President can do anything; that he can
forfeit estates. Can the President by his proclamation forfeit all the estates
in the South? I want to know that.
Mr. Cowan: Well, sir, in the first place, the
President is guided in that by the law of war. He has the right to take all the public property of the enemy, and to appropriate it to the
maintenance of the war against the rebels.
Mr. Wade: Has he the right to take the private
Mr. Cowan: He has the right to take possession
of their real estate and hold it until the war is over, and he is able to hand
the rebels over to the civil courts for punishment for their crimes.
Mr. Wade: I cannot extort from the Senator
whether the President has power to confiscate the property of rebels, put the
proceeds in the Treasury, and apply it to the indemnification of those who have
lost in the war, or for paying the expenses of the war.
Mr. Cowan: I answer distinctly, the President
has no right nor the Congress either, for longer than his lifetime. Congress
may forfeit it for his life if he is convicted of treason. That is as far as
either the President or Congress can go.
Mr. Wade: Can the President forfeit the personal
Mr. Cowan: The President may take personal
property. It is a capture, not a forfeiture, which he takes under the law of
war, by way of retaliation when they take our personal property. That
constitutes the military necessity and that military necessity is the
measure of the power of the President.
Mr. Wade: What comes of it in the end? Does it
go back to the individual or does it stay with the Government?
Mr. Cowan: It does not go back.
Mr. Wade: The Senator does not like to meet
the proper inferences from his own doctrine. He denies that the President, even
armed as he says with despotic power, can change the title to property, for
retaliation or anything else. He can do nothing beyond his camp.
Notwithstanding all these attempts to magnify the power of
the Commander-in-Chief, the true doctrine is this: when he marches his army
into the enemy's country and seizes upon his property, all that by strength of
his arms he takes; but can he make a rule beyond his camp? None at all, he is
Sir, every man who has caught the spirit of our institutions
should frown down this attempt to magnify the President into an irresponsible
despot with power to prescribe rules and regulations by which the estates, real
or personal, of men can be forfeited. The belligerent rights of your
Commander-in-Chief in the field, never did and never will go one inch beyond
the boundary of his camp where he holds martial law. The moment
he moves his camp, that moment all his rules and regulations are gone with his
Enough of that, let me return to the bill. If you defeat
this bill, if you fail to take all the property of rebels and confiscate to relieve
the burdens of loyal men and to indemnify us for the debts we have incurred in
defending ourselves against these traitors—
Mr. Henderson: Do you want to do away
with the institution of slavery entirely throughout the States?
Mr. Wade: Mr. President, I am not permitted to
choose my course. What is the object of the war? For what is it prosecuted? Is
it for the purpose of abolition? The war was forced on us, we have no choice
but to defend ourselves. I have said that, in the progress of nations, slavery
becomes impossible. Once you might work a slave for profit. But can you work a
slave against a steam engine? If you cannot your system is at an end. How is it
with the reaper, the mowing machines, the power looms, and spinning jennies?
All of these things have rendered slavery absolutely impossible. You are hanging
on to a system that has passed away. You cannot escape from this war without
the emancipation of the negroes.
Note: Mr. Wade's observation
tells the substance of the thing: Everybody of the times, in 1861, knew that
slavery was doomed to expire by the breath of steam engines taking over the
labor of almost everything. The slave States saw it, the free States saw it. Yet,
no one could voice the obvious solution: free the slaves, disperse them across
the entire country as free persons, and provide them and the slave-owners some
means of transforming the economy of things. The Republicans could not bring
themselves to advocate these things The Southerners could not bring themselves
to beg for these things.
Mr. Collamer: The gentleman and myself do not
differ regarding slavery; it is doomed. With the progress of our armies the
masters will be dispersed, the slaves scattered. But we do differ about one
thing. We swear to support the Constitution; the President swears that he will
protect and defend it. The very form of the oath implies the exercise of a
Note: In our time, with President
G.W. Bush, and now Barack Obama, Mr. Collamer's observation has been adopted as
the basis for their contention the President can ignore the Congress when he
deems it appropriate.
I think that the provision of the Constitution which
declares that the writ of habeas corpus shall not be suspended
unless when, in case of war or rebellion, the public safety shall require it,
implies that in those times the public safety may require it, and does require
it. That implies the exercise of a large measure of executive power.
Note: Again, Mr. Collamer would
be loved by the presidents of our day who insist that the President, not the
Congress, controls the decision whether or not to suspend the writ. In fact,
the provision of the Constitution Collamer's refers to is found in Article I,
which grants Congress its powers, and not in Article II which defines the
office and power of the President.
I further say that the exercise of this executive power in a
time of war is almost without limitation as against the enemy; it is the
creature of circumstances. Who is to judge when the crisis comes, when the
necessity arises? Clearly those who carry on and execute the war. Can it be
said that because the President has power in an emergency or in a necessity to
destroy a city, therefore Congress can make a law directing the President to
set fire to the city of New Orleans today? Can it be possible that we can make
a statute, by way of power delegated to us by the Constitution, by which we can
compel the President to set fire to the city? Certainly that cannot be. Can we
pass a law directing the President to cut every blade of grass, raze every
house to its foundation, every man, woman, and child there?
The Senators of
(These men were
Mr. Wade: I suppose we could have made a law
last week that unless New Orleans surrendered it should be burnt, as well as
there is power to kill the inhabitants if they do not surrender.
Mr. Wade is a terror, he would have the Congress play the part of Henry V,
standing at the walls of Hal fleur, shouting to the elders of the city they had
better open the gates or he would let his soldiers dash the babies' heads
against the wall when they forced their way in.
Mr. Collamer, of Vermont: I think the judgment
of the question when the military necessity arises is to be left to the
discretion of the executive power, who has in his hands the direction of the
Army. I say that the existence of the actual military necessity must be judged
by those who are charged with the conduct of the war.
The sixth section of my offered substitute bill is of this
character. If in any of the States where insurrection has existed for a period
of six months, and that is the case with all of them now, then, in that case,
the President is authorized, if in his opinion it is necessary to the
successful suppression of the rebellion, by proclamation to fix and appoint a
day when all persons held to service or labor in any such State, shall be free.
There you see, it is put upon the President to decide if the necessity exists.
Now we have Mr. Wilmot's offered amendment. What does it say. It makes it
mandatory on the President to issue the proclamation. The President is left no
discretion at all.
Note: Here is seen the fact that
the idea of an emancipation proclamation did not spring spontaneously from
Lincoln's head, as the historians usually say, relying on the fictional
narrative of Gideon Welles "diary." The idea was raised months before
the proclamation was issued, by senators like Collamer and many hours of debate
regarding it were consumed in the Congress. Certainly Lincoln read the daily
record of the Congressional proceedings and was well aware of the issues
concerning it that the debate raised.
The Fiction of
History: Lincoln's "first reading."
Mr. President, I cannot but remark another thing. In all
these confiscation measures, there is a certain involuntary but at the same
time very pregnant respect paid to a particular provision of our Constitution
that has settled down and worn into a habit of the mind that no man can get rid
of it. All these propositions say that this confiscation, this emancipation,
shall take place with regard to the property and slaves of persons who shall hereafter be guilty of acts of rebellion. What do gentlemen put that in for?
It springs from the sentiment that you cannot pass ex
post facto laws. That is the reason. I simply mention this for the
purpose of showing that, guiding ourselves by the limitations of the
Constitution, which gives us power. Gentlemen cannot effect the purpose which
they have in view: the destruction of slavery, because the bills they offer,
with this stricture in them, cannot reach the slaves that heretofore have been
seized, or the slaves in the border States.
Note: If, however, you view the
"rebels," not as citizens of the United States but as citizens of a
foreign State at war with the United States, then the Constitution's ex post
facto clause is eliminated as a legal barrier to confiscation.
Mr. Saulsbury: Pass this bill, undertake to
emancipate the slaves, and what will be the consequence? You have discarded
every utterance of a representative from a border State heretofore, and you
will thereby lose any hope of a reunion of the States. It is gone, it is past. Contrary to the interests of the border States, you
passed your bill for the abolition of slavery in the District, you passed your
resolution, in compliance with the Presidential recommendation, for
emancipation in the border States. In nothing that you have done, sir, have you
listened to our advice. You have given no heed to our counsel; you have treated
us with contempt, and you have virtually said to us that our counsels are not
welcome, our advice is not needed. And now you propose to pass this bill.
I know that in these days, when there is a triumphant
majority, when you think you have everything your own way, it is very easy to
imagine that you are going to carry out your policy everywhere, but you are
Mr. President, I venture to make a prediction. I am neither
a prophet nor the son of a prophet, but I say, pass your emancipation bills,
thinking you are freeing the slaves, and if you take them after you free
them to your northern States among yourselves, you will do something more than
I anticipate; for you are passing resolutions and laws to keep them from coming
among you. My prophecy is, that in 1870, whether you conquer the
seceded States or not, if local State governments are preserved in this
country, there will then be more slaves in the United States than there were in
African-American Senator, from Mississippi, 1870 - 1871
Why do I say so? By your acts you attempt to free the
slaves. You will not have them among you. You leave them where they are. What
is the result? If local governments are preserved, if the people have the right
to make their own laws, and to govern themselves, they will not only reenslave
every person that you attempt to set free, but they will reenslave the whole
race. I say that if you send into my State 5,000 more of that class of person
among us, contrary to our law, contrary to our will, I avow upon the floor of
the Senate that I will go before my people for enslaving the whole race, because
I say that this country is the white man's country. God, nature,
everything has made a distinction between the white man and the negro, and by
your legislation you cannot bring up the filthy negro to the elevation of the
white man. I say to you, the gentlemen of the dominant party, that we mean that
the United States of America, from the northern lakes to the Gulf, to the
Pacific, shall be a white man's home; and not only a white man's home, but the
white man shall govern, and the nigger never shall be our equal. (Applause
in the galleries.)
These United States Senators Spoke These Words Here
The Presiding Officer: There must be order in
Mr. Saulsbury: No legislation that you can
adopt shall prevent that irrevocable decree of God and nature, the supremacy of
the white man to the United States of America. What care I, gentlemen, whether
you pass this bill or not? I do not care a fig. Why do I not? My State is not
interested in the subject of slavery.
Note: Mr. Saulsbury, undoubtedly,
was correct in his analysis of the mindset of the white people of the United States, in 1862. But, amazingly, within three short years from that date the
legislatures of three fourths of the States would vote to adopt amendments to the Constitution which not only prohibited involuntary servitude in the
United States but also gave the Africans the status of citizens of the United
States, entitling them to political, if not social, equality with the white men
of the country. What accounts for this sudden turnaround? Who does not
see the answer is, war. The war was the instrument the Republicans used to gain
control of the state legislatures and thus vote the amendments, and the war was
the influence that induced the white people, the ordinary ones in the streets,
to acquiesce in the amendments.
Again, gentlemen, let me tell you that during the present
session I have sat here, I have listened patiently, and I have heard gentlemen
of the dominant party denounce every man that voted for John C. Breckinridge as
a disloyal man, and they wrap the American flag around their holy persons
because they voted for Abraham Lincoln, and thank God that they are not as
other men are, or even as these poor rebels who voted for John C. Breckinridge!
I should know how to answer any such remark as that if it were made to me
personally. Sir, let me tell you what you and your party have done in voting
for Abraham Lincoln. You have laid down a platform aggressive upon the
Constitution of your country. You have avowed principles contrary to the law of
the land. I think your arguments, your declarations, your assertions, as to
what you meant to do if you got the reins of power, have done more to dissolve
this Union than anything else. You have given Jefferson Davis and his men the
only capital they had. They proclaimed that if you got into power you meant to
do certain things. You denied it.
Do not tell us that you deluded and deceived us in the
promises you made when you declared that you would not interfere with our
domestic institutions, that you meant only this war for the preservation of the
Union and the Constitution. Fight these battles for the Union and we will go
as far with you, but tell us that, by some insidious trick, by some legislative
device, you mean to render it an occasion to destroy the freedom of the
legislation and the independence of the States, that you mean to assume to
yourselves what your fathers and ours never meant you to have—the right
to regulate our domestic institutions; and we can only now stand by and
May 7, 1862
Emancipation Proclamation, Again
Mr. Wilson: I return to Mr. Collamer's
proposed amendment where he puts the discretion to free the slaves on the
president. I offer an amendment to his amendment which makes it imperative upon
the President to issue his proclamation. Immediately after the passage of thirty
days, and the slaves of all rebels are made free.
Mr. Hale: There is difficulty in my mind
regarding this. I hope we have not gone so far that a man may be treated here
as I used to be treated in my home state when I quoted the Constitution and the
Mr. Wilson would authorize the President to go into one of
these States and point out a crime, and as a punishment for that crime, by
proclamation, to liberate his slaves. It strikes me, if we have any
Constitution at all, that such a proceeding is palpably unconstitutional. It is
not worth while for us to let our feelings run away with our judgments
entirely. I think the Senator will find that that is nothing more nor less than
taking that crime, which is being in rebellion, and imposing as a punishment,
not of confiscation but of the liberation of his slaves by the simple
proclamation of the President.
Mr. Wilson: Now, sir, it seems clear to me we
have the power to free the slaves of rebels, and having the power to do it, I
believe it is our duty to do it. Sir, I believe that if the Congress fails now
to do its duty, we shall see some of the leaders of this rebellion come back
here, and shake their bloody hands in our faces defiantly. If we leave this
gigantic power untouched, we will have here again in the Capitol that race of
bold, arrogant, domineering, disloyal men gain sway in the councils of the
Our fleet rode up the Mississippi the other day, and lying
before New Orleans, its commander received the mayor who met him with scorn and
defiance. There is nothing on earth but slavery that has made those men and
those women, too, rebels against the country.
The Senator from New Hampshire has moved to commit these
bills to a special committee. Sir, we have undertaken to perfect these bills in
open Senate. That has been our policy; and it is possible that we can do so.
Mr. Hale: Mr. Wilson says that slavery cheated
Washington and cheated Jefferson. Not half so bad as it will cheat him if in
his crusade to kill it, he tramples upon the Constitution of his country in his
Mr. Wade: I did hope when this motion to
commit these bills to a committee was made, that it would not prevail, but I
see now that it is to prevail, and I believe we have come to an end of this
subject. The reference of this matter at this time to a committee I look upon
as a renunciation of the principle altogether. I regret to say that it is most
evident that there is not a majority in the Senate favorable to an efficient
bill of confiscation.
It is idle and nugatory and vain for us to be here talking
about confiscation, unless we are ready to adopt some measure other than that
of punishing treason under the Constitution and by the course of the common
law, because the moment you go across the Potomac, from here to the Gulf, you
can convict nobody, as every one knows.
If the Constitution does not permit us to go a greater
length than that, why do we talk about it? I do not know but that the law
punishing treason as it stands now is well enough. I think we can go further. I
think the bill is a constitutional bill. It is so in my judgment, but it is not
so in the mind of the majority, and it is not so for reasons so radical that no
efficient bill can be made upon the principles enunciated here.
The attempt to pass a confiscation bill has cost us a great
deal of time. The recommittal of this bill after it has been for four months
under our consideration, will be a proclamation to the people that will fill
them with more despondency for your Government than the loss of half a dozen
Note: Really? Could Mr. Wade be
correct? It hardly seems so. "Half a dozen battles?" Mr. Wade ignores
the reality that, in his view of things, he is yet in the minority of white men
in the country.
The question of recommittal was tried the other day; it was
made a test question then, and every man who was in favor of an efficient
confiscation bill voted against the motion, and we defeated it by a small
majority. Now, new light is shed on the subject. Many of the warm friends of
this bill now, wish to get another bill, and for what? To emasculate it. The
bill is said to be too sweeping. With some gentlemen the Constitution is a
stumbling block, and some seem to feel very tender toward these wicked rebels.
When it comes back from committee it will be a mere milk and water concern,
just such as we passed last session, it will show we dare not manifest the
courage to do it, free the slaves.
Mr. Sumner: Mr. President, the Senator from Ohio knows I differ with him very rarely, but I do differ with him today. The precise point
on which we are to vote, as I understand it, is, shall the pending bills and
their proposed amendments be referred to a select committee. It seems to be
that the stage has been reached when this motion is in order. We have already
on our tables more than a dozen different bills or amendments that have been
printed. Every morning there is a new batch. It seems to me a bad economy of
time to undertake here to examine and judge all these propositions. In the familiarity
of the committee room there can be no delays on this account. The old
parliamentary rule is that a committee supplies ears and eyes and hands to the
Senate. Surely there was never an occasion when a committee was more needed.
Mr. Collamer: Mr. President, whether men are
in favor of confiscation or not, depends very much upon the definition of the
term. If you mean by confiscation that you may strip people of their property
by a law which shall execute itself without any other means of carrying it into
effect in a way which I regard as unconstitutional, I am opposed to it. If it
be defined as a stripping of the people by calling them names, without ever
trying them whether they are guilty of these names or not, I am against it.
Why are all these bills put in terms of attainder? Simply
and for nothing else but this: they concede upon the very face of them that it
is a punishment; they know that you could not make a law according to our
Constitution which was ex post facto. What do you mean by
that? To define the punishment for the offense after it is committed; that is
what is ex post facto. They do not attempt to create
confiscation, in relation to acts committed in the past, because they will not
pass an ex post facto law.
What is the reason that Senators are so tender on that
point? Why is it that you will regard that provision of the Constitution
forbidding you to pass an ex post facto law, but you will utterly
disregard all those provisions of the Constitution that declare that a man
shall not be deprived of his property without due process of law; that he
should not be visited with punishment except upon indictment, trial, and
conviction; and that he shall not twice be punished for the same offense? Why
overlook all these prohibitions of the Constitution? It seems to me Senator
Wade comes always to this conclusion, that if he cannot have what he calls a
confiscation bill except according to the Constitution, he cannot have anything
I answer that if he requires anything to be done contrary to
the Constitution, he must go without an effective law. It is not my fault. He
says he does not disregard the Constitution at all. But, sir, when that
Constitution forbids the punishing of people without conviction, how is it that
you will confiscate their property without conviction? How can you do it?
Mr. Wade says the reason why it would be ineffective is
because judgment could not be obtained. When I ask him to tell us why it is
that we should not take this property legally, constitutionally, and upon
conviction, he immediately gets up a long declamation filled up with the utmost
eloquence, describing the barbarities, the horrors, and the outrages of this
rebellion. Instead of explaining and telling us why and how the thing can be
done constitutionally, that is the answer we get; and when we desire to do the
thing effectively, and in a constitutional way, we are told it is not good for
The Presiding Officer: The motion before the
Senate is that this bill, with all the amendments, be committed to a special
committee of nine members.
Mr. Cowan: I have said over and over again
that I was perfectly willing that the President, with his army of seven hundred
thousand men, should go on and apply that force to the rebellion, to take,
seize, and confiscate everything which in his and his generals' judgment
thought proper. If that is not confiscation enough, I do not know what you
gentlemen want. They do not expect to confiscate property until it is taken. I
say, go and take it.
Note: The Radicals, to answer Mr.
Cowan, are using "confiscation" to mask their real interest, freedom
for all the slaves wherever they are. And that is why the bill is not passing.
Under the theory that confiscation is punishment for the "crime" of
rebellion, it is impossible for most of these white men to ignore the plain
prohibitions of the Constitution: no bills of attainder, no bills of ex post
facto laws, any bills proscribing punishment must comport with principles of
due process of law, providing indictment and trial and conviction before
Lincoln following this debate, no
doubt closely, will eventually leap the constitutional barriers, by seizing
upon the war power (not the law) as the means of freeing the slaves of
Gentlemen find much fault with this opinion of mine, that
because I gave the President full authority to meet this rebellion and put it
down, I was charged with not understanding the true spirit of the Constitution,
and making a despot of the President. I go for it as a measure of war. I leave it in the hands of the Commander-in-Chief, and of the Army itself.
That is not legislative confiscation, but a very different thing.
This confiscation is to be done by the Legislature; and you decide here that
these people are guilty, and you decide what punishment they shall suffer, and
you deny them the right to trial. To that I object. When the President, with
the war power in his hand—the force of the nation—seizes upon the
property of the rebel, he takes him in the fact (huh?); no trial is needed, and
I am willing that it shall be so.
The Presiding Officer: Is the Senate ready for
the question on the motion to refer?
Mr. Foster called for the yeas and nays; and
they were ordered; and being taken, resulted—yeas 24, nays 14.
The Presiding Officer: The motion is agreed
to; and the bill, with the accompanying propositions of amendment, is referred
to a select committee of nine.
In The House of
Freedom for the
Mr. Lovejoy reported back from the Committee
on Territories, with an amendment, (House Bill No. 374) to render freedom
national and slavery sectional, and moved the previous question on the third
reading of the bill. The bill was read. It provides that to the end that
freedom may be, and remain forever, the fundamental law of the land in all
places whatsoever, slavery and involuntary servitude shall henceforth cease,
and be prohibited forever in the Territories of the United States..
Mr. Cox: I move to law the bill upon the
Mr. Washburne: I demand the yeas and nays. The
yeas and nays were ordered.
Mr. Lovejoy: Mr. Speaker I demand the previous
The question was taken on the motion to lay the bill on the
table, and it was decided in the negative, yeas 50, nays 64. So the House
refused to lay the bill on the table.
Mr. McKnight: I move to adjourn.
Mr. Hickman: On that I call for the yeas and
nays. The yeas and nays were ordered. The question was taken; and it was
decided in the affirmative, yeas 63, nays 42. So the motion was agreed to and
the House adjourned.
May 9, 1862
Freedom for the
Mr. Cox: I move to recommit and that neither
this bill nor any like it be reported back to the House. It is a suicidal bill,
a bill for the benefit of secession and Jeff Davis. The Army and the people are
against all such aids to the enemy of the country. I believe that resolution
offered by the gentleman from Illinois this morning relative to General
McClellan was a piece of Pharisaism on his part—
The Speaker: The Chair does not see what the
resolution has to do with the question before the House.
Mr. Cox: Well, sir, I am against the whole
business. I believe it is helping the enemies of the country. The conservative
men of the House have the power and ought to squelch out the whole negro
business. They are responsible for this continuous agitation. From the very
commencement of the session we have had these bills before us in one shape or
another, and postponed from time to time. Now I want to see the conservative
element, if there is any such thing left here, come up and vote this thing
right down. Now, sir, I want to see the Union restored as it was made by our
fathers; not the Union that the gentleman from Illinois wants to see—a Union with a dismantled Constitution and a broken Confederation. I believe the people of
the country are sick and weary of this legislation about the negro. From one
end of the country to the other complaint is coming up that our time is wasted;
that nothing is done for the white race, nothing, except about the negro. Our
only duty this session is to raise money, but what have we been doing? Scarcely
had the role been called before a gentleman introduced a bill connected with
the negro, and from that time until now, the whole strain of the House has been
devoted to the negro question. Heaven is sick and earth is weary of this
damnable and dangerous iteration.
We may be compelled, after this war shall have been
concluded, to reform, perhaps, some of our opinions in respect to slavery. But
our duty now is to concentrate on crushing this damned rebellion. The people do
not approve of these extreme opinions.
The Speaker: It is not in order to move that a
proposition shall be recommitted to a committee with instructions that the
proposition shall not be reported back.
Mr. Wickliffe: I will suggest to the gentleman
from Ohio that it shall be recommitted to the committee, with instructions that
it shall not be reported back until the next session, in cold weather. (Laughter
in the galleries.)
Mr. Cox: I adopt the suggestion from the
gentleman from Kentucky; I move that it be recommitted and not reported back
until the last day of the next session.
Mr. Diven: I want Congress to exhaust the last
power it has over this institution and to wipe it out.
Mr. Wickliffe: I want this decision of Justice
Story, in Prigg v. Pennsylvania to go out with your speech, to be
read and circulated in the North. I will read from it now: "The clause in
the Constitution relating to person owing service or labor in one State
escaping into another, was to secure to the citizens of the slave States the
complete right and title of ownership in their slaves, as property. The full
recognition of this right was so vital to the preservation of their domestic
interests that it cannot be doubted that it is constituted a fundamental
article, without the adoption of which the Union could not have been
formed." I have read that for the benefit of the country people.
Mr. Arnold: Mr. Speaker, the object of this
bill is to exercise constitutional power which the Congress possesses to
Mr. Washburne: What do you by this bill
propose? You are attempting to pass a bill on this delicate and dangerous
subject which, if passed, will work the greatest excitement in the country, work
it into a frenzy and revolutionize the Constitution itself.
Mr. Crisfield: Mr. Speaker, what must be the
consequence of the passage of this bill? You may talk about loyalty and
disloyalty, but I tell you that whenever you touch property of the value of the
slave property in this country, you create trouble; when you talk about
depriving a man of his property, whatever may be its nature, it will affect his
character and conduct and his relations with you. What is Government for but to
protect life, liberty and property? Do you expect these people to make no
struggle for their rights? Do you expect them to stand by and patiently allow
themselves to be deprived of the rights and privileges which the Constitution
guarantees to them? If you take from us today our right to hold slaves how long
will it be before you will take from us some other constitutional right, even
more valuable than that?
Mr. Fessenden: Let me say that there are wise
men who believe that it is not for the law to say that any man shall be the
property of another. The gentleman quoted Justice Story, in Prigg v.
Pennsylvania. I quote to you the secretary of State of Kentucky recently, who said, "A being possessed of intelligence common to the human
race cannot, by force of any constitution, be goods, or chattels, or a
May 12, 1862
Mr. Cox: I move to lay the bill on the table.
Mr. Lovejoy: I call for the yeas and nays. The
yeas and nays were ordered, and it was decided in the negative. Yeas 49, nays
81. So the House refused to lay the bill on the table.
Mr. Lovejoy: I move the previous question on
the passage of the bill. The previous question was seconded, and the main
Mr. Allen called for the yeas and nays
and they were ordered. The question was taken; and it was decided in the
affirmative—yeas 85, nays 50. So the bill was passed.
Mr. Diven: We may take the property of a
person as the penalty of a crime against the Government, of which the person is
convicted by due process of law. If you take property by civil law you must
take it as the Constitution proscribes.
Now, sir, how is this power enlarged by a state of war? A
state of war is not unconstitutional. The Constitution itself contemplates it.
It provides for it. It authorizes Congress to declare it. When may the
declaration be made and the country put into a state of war? It may be done for
the purpose of suppressing insurrection or putting down rebellion.
All that attaches to war, all the laws of civilized warfare,
if we are a civilized people, attach to a state of war. What are the laws of
war? What do the laws of war allow and tolerate? As in civil government we are
restrained by constitutional provisions, so in a state of war we are restrained
by those rules which civilized nations have thrown around civilized warfare,
and those rules are known as the laws of war. These laws are not determined by
Congress. They are not enlarged, altered, or restricted by Congress; they are
established by nations.
We have considered already what civil power we have. Let us
see what power war gives us over the individual. It gives us the right over the
individual citizen to compel him to take up arms in defense of
the country. It gives us the right to subject him to military discipline. That
is the power it gives us over our own citizens.
Over the enemy the law of war gives us the right to shoot
them down on the battlefield. It gives us the power to capture them on the
battlefield, and to take them prisoners and to hold them as prisoners until the
war is over; but, sir, not beyond that.
What power have we over the property of individuals by
virtue of the laws of war? All the property of the enemy captured in war
becomes our property instantly upon capture. It requires no act of legislation.
It requires no act of confiscation, no act of condemnation to change
instantly—the property of the enemy captured in battle becoming the property of
the captor at once. The title to the property changes instantly.
But when we speak of the property of the enemy, it is not in
the sense claimed by some gentlemen on this floor. It is not the private property, it is the public property, and I have been surprised to see men in
this House citing the laws of war in justification of these acts of
confiscation of private property, when they must know that they speak of public
property; for the authorities, every one of them—Vattel, Story and all—say that
private property is not subject to seizure (beyond the military necessity of
the army at the moment).
We have the right to take the property of individuals,
either of enemies or friends, under the plea of necessity, for the purpose of
feeding our armies, furnishing transportation for our armies, or for anything
which may be of immediate necessity. But there again the law of war steps in,
and at least the public faith and honor are pledged to pay for property taken
under this plea of necessity. We have the right to take property temporarily
for the use of the army in this way.
A general has a right to make a camp on my farm; he has a
right to make his headquarters in my house. He occupies it for his military
purposes and I am for all purposes temporarily evicted. But this does not
impair my title. Any title deed remains intact while the farm is thus
occupied, and the moment he ceases to occupy it my rights are resumed, and no
man put in possession of my farm, or as tenant in my house, can occupy it for a
day under any authority conferred by the laws of war.
The Government in time of war, as in time of peace, has no legal
right to dispossess any person of his private property for public use without
just compensation. Now I appeal to every thinking man of this House to know
whether there be any other constitutional way of taking private property,
whether there be any other way either under the civil law or the law of war if
taken by the war power. I have looked in vain for any such authority. I have
searched carefully through all the authorities cited in debate and I have found
that no laws of civilized warfare justify the taking of private property under
any circumstances except those I have enumerated.
Now, sir, we having no legal power to reach the property of
individuals except in the mode I have described, where do men find their
authority for seizing private property anywhere by legislative act and
converting it to public use?
Sir, I challenge gentlemen to point me to such a provision
in the Constitution. I challenge them to point me to any provision in the law
But it is said this is a civil war. It is said that the law
of war does not apply to a war waged by a subject against the supreme
authority. (See, how crucial the characterization is, of calling Virginia's soldiers, "rebels.") The authorities gentlemen cite for this
will fail them there, for Vattel expressly declares that the restriction as to
taking private property should much more apply to civil than to public war.
All the difference is, between civil and public war, is that
in a public war all control we have over the individual enemy ceases when the
war ends; while in a rebellion like this the power to punish civilly may be
resorted to after the war is over. When this war shall have ended,
notwithstanding we may have subjected the individual enemy to imprisonment as a
prisoner of war, he may still be indicted and punished for this treason. But
this is a civil process, and must be conducted according to the Constitution
and the laws.
Note: The fact that, though it
did for a time imprison Jefferson Davis after the war, the Federal Government
did not indict Davis, demonstrates the extreme weakness of its position in 1862
that individuals fighting in defense of Virginia were "rebels."
imprisoned at Fort Monroe
Now. I come to consider for a moment the powers that we have
over this institution of slavery under the law of war. And here I am aware that
I am to be met with the taunt that I am proslavery. Men have here gravely
quoted George Washington and Thomas Jefferson against the institution of
slavery. But did George Washington or Thomas Jefferson ever teach that Congress
had the right to abolish slavery in the States, either in war or in peace? No,
sir, they taught the very reverse of that. They made a constitution which
gave Congress no power over the subject, but left it solely to the States. And now, when I and other men stand up in vindication of the Constitution
we are called hypocrites.
Allow me to allude to what I regard as a most unfair course
toward Representatives from the border States. It has been charged they love
slavery more than they love the Union. Why, sir, what offense have they
committed? They have simply said Congress has no power to legislate over
slavery within their States. And they has said too that they will not allow
Congress to do it; and I say that if they are men, they ought not to allow
Congress to do it.
Now, there is but one other plea under which this right to
confiscate this property, and to free these slaves is contended for, and that
is to treat these rebel States as a foreign enemy; giving efficacy to the acts
of secession by which they claim to have separated themselves from the United
States. When you cease treating them as a rebellious people you commence to
treat them as a foreign enemy; and when you have conquered them, make laws for
their government. By treating them in that way, I admit we would have a right
to declare what would be the condition of the human beings in the country we
thus conquer. (Here comes the true basis of Lincoln's proclamation) As
a conquered people, we have the right beyond a doubt to declare that their
slaves shall be free.
But there is the difficulty in the way. By the adoption of
that course you recognize the doctrines contended for by the secessionists, and
it puts us in the attitude of waging a war we are not justified in
waging. If they had a right to secede, then they had a right to
peaceable secession, and we are warring upon that right in prosecuting this
war. "Let us alone," was their cry, "We want to leave
you." Sir, that doctrine, when admitted, simply ends this
Republic. It simply strikes down the Union.
May 13, 1862
Mr. Hall: I have listened in vain for an
explanation of the means by which the abolition of slavery is to aid in
suppressing the rebellion. Such a measure must add enormously to the expenses of
the war. As you set the slaves free you must provide for them. You cannot let
them starve. They have never been accustomed to take care of themselves. We
would have to take care of them. Your policy will impoverish their masters, and
they cannot then employ them. You must take the land, too, as well as the
negroes, to enable the negroes to make a living. You must take the stock too,
by which the farms are worked. In fact, these schemes of abolition create the
necessity for transferring a great part of the property of the South from the
white race to the black. In the course of converting them into a condition
where they can support and defend themselves, you must incur enormous expenses
in maintaining them and keep up large armies to defend them.
Note: It was not until 1870 that
the United States armies finally left the South to deal with its problems alone.
While you are doing this, you are demoralizing your armies.
You would disgust them with the odious task of general confiscation. They would
peril their lives reluctantly to exalt this wretched race on the ruin of their
fellow-citizens. When they have been trained to this wholesale system of
plunder, they will have become fit instruments for the destruction of every
right existing in our country. What effect will all this have on the
Confederate States? They would then need no impressment to recruit their
armies. It seems strange that any one should feel called upon to answer
seriously a scheme so absurd, so utterly ruinous as that of abolishing slavery.
May 14, 1862
Mr. Crisfield: The gentleman from Pennsylvania, Mr. Stevens, declares, "If no other means were left to save the Republic,
I believe we have the power to declare a dictator."
Necessity is not one of the constitutional grants, it finds
no place in the instrument. What is necessity? Who shall define it? Who shall
determine when it is to be invoked? The Constitution sets limits to its power
which cannot rightly be exceeded. Shall it be the President who decides this
thing called necessity? His sole duty is to execute the laws, not to make or
break them. This is a terrible doctrine, it prostrates all the limitations of
the Constitution, it consolidates power in one hand, and it practically repeals
the Constitution itself. Where is the clause establishing this sliding scale of
authority? The Constitution has made but one grant of power to Congress, and
that is for all seasons and all circumstances. It is the same today as the day
the government was organized.
In the Senate
May 19, 1862
Mr. Sumner, of Massachusetts: Mr. President,
if I can simplify this discussion, I shall feel that I have done something toward
establishing the truth. There is a saying which embodies the direct object of
the war which we are now compelled to wage: Índemnity for the past and security
for the future. Indemnity and security are both means to an end, and that end
is the national unity under the Constitution of the United States.
is not enough if we preserve the Constitution at the expense of the national
unity. Nor is it enough if we enforce the national unity at the expense of the
Constitution. Both must be maintained. But how shall they be best accomplished?
It is sometimes said that it is exclusively a constitutional
question. This is a mistake. In every government bound by a written
constitution nothing can be done which is not in conformity with the
Constitution. But on the present occasion there need be no difficulties or
doubts under the Constitution. Its provisions are plain and explicit, so that
they need only be recited.
Senator Cowan from Pennsylvania and Senator Collamer from Vermont have stated them strongly. I do not complain of their statement but of their
application. If there be any difficulty it is with discerning the facts, not
the law. If things are now seen as they really are, and not as senators fancy
them to be, if the facts are now admitted in their natural character, then must
the constitutional power of the Government be admitted also.
The facts are simple and obvious. They are all expressed in
the double idea of rebellion and of war. Whatever may be the
doubts of senators, or their fine-spun constitutional theories, no one can
question we are in the midst of a de facto rebellion and a de
Note: But, of course, Sumner's
statement of the case distorts the reality: The issue is, is the war in fact a
rebellion? No, the evidence shows, it is not. "Rebellion is an act on the
part of a people to throw off the Government of a State. In 1862, the United States was not a "State," but a confederation of States, one of which was Virginia.
Virginia as a State
enacted an act of secession sanctioned by her citizens which legally divorced
her from the Union; plain and simple. She asked to be let alone and instead the
rump of the United States has made war upon her, for the purpose of conquering
her people, freeing their slaves, and forcing them to live under its laws. Virginia's soldiers resist this aggression, but must live with the consequences of defeat.
We are in the midst of each and both. It is not enough to
say there is a rebellion; nor is it enough to say that there is a war. The
whole truth is not told in either alternative. Our case is double. It is
rebellion, swollen to all the proportion of war, and it is war, deriving its
life from rebellion.
The rebellion is manifest, is it not? An extensive territory,
once occupied by governments rejoicing in allegiance to the Union, has undertaken to overthrow the Constitution within its borders.
Note: This guy is tricky, watch
his language carefully. "territory once occupied by governments?"
Sumner is reaching to frame the Union as one vast territory occupied by
governments in a political union, suggesting that the governments are
meaningless to the territory, only the Union is meaningful. The territory is
"within its borders." Sumner has transformed the
Constitution's recognition that the Union is a "them" and a
"they,"a confederation of States, into an "it," a
nation-state, as the Congress's post war manufactured pledge of allegiance
Throughout this territory the national Government has been
ousted, while the old State governments have ceased to exist, lifeless now from
rebel hands. Call it suicide, if you will, or suspended animation, or abeyance,
they have nevertheless ceased to exist.
Note: Is this pap the expression
of logic, of magic, of bluster? The Federal Government has not been
"ousted" from the territory of Virginia; it never occupied or
controlled, or governed that territory; it had no say, under the Constitution,
what the Virginia State government did nor did not do within the borders of Virginia.
In reality the old State
Governments are very much in existence and functioning and being supported by
their citizens; marshalling all their resources, human, physical, financial, to
resist the invasion into their territory of the invader Sumner is
championing. Sumner cannot bring himself to tell the simple truth. His
Government is waging a war of conquest against the people of the slave States.
But a single illustration out of many from history will
exhibit this double character in unmistakable relief. The disturbances which
convulsed England in the middle of the sixteenth century were occasioned by the
resistance of Parliament to the power of the Crown. This resistance triumphed
at last in the execution of King Charles and the elevation of Oliver Cromwell.
The death of Cromwell was followed by the restoration of King Charles II. The
body of the great commander who had defeated his king in battle and then sat
upon his throne, was hung in chains, as a warning against treason.
Note: The game Sumner plays
calling this a rebellion and a war is meaningless. Unlike Parliament with its
King, Virginia and her allies were not attempting to dispose the Congress of
the Union and set up another in its place. Parliament was a Government throwing
off its Sovereign King, Virginia was a State throwing off its political
connection to a confederation of Republican States. Two vastly different
political situations Sumner for his rhetorical purposes conflates.
The persons now arrayed for the overthrow of
the Government of the United States are unquestionably criminals, subject to
all the penalties of rebellion, which is of course treason under the
Constitution of the United States.
Note: Again, Sumner plays games
with words. It is not "persons arrayed against the Union" but
"States." And, of course, the Constitution, in its definition of
"treason" acknowledges the Union was not intended to be characterized
as an "it."The point is, that Virginia, when it ratified the
Constitution in 1789, did not thereby become a "subject" of the King,
nor did its people; as citizens of Virginia they became citizens of the United States so long as Virginia remained a member of the Union.
Therefore, sir, in determining our course, we may banish all
questions of power. The power is ample, being regulated in the case of
rebellion by the Constitution and in the case of war by the laws of war. If we
treat them as criminals, then we are under the restraints of the Constitutional
if we treat them as enemies, then we have all the latitude sanctioned by the
law of war. If we treat them as both, then we combine our penalties from the
double sources. In treating those in arms against us as criminals we assume
sovereignty. In treating them as enemies we assume no sovereignty, but simply
employ the means known to war in overcoming them.
(He knows they
don't really understand, they work in the fields,
but he knows
them as men: Charles Sumner.)
I agree that if we treat them as criminals we are bound to
recognize all the procedural rules in the Constitution that protect them from
punishment that does not conform to due process of law. But the rebels have
gone outside the Constitution to make war upon their country. It
is for us to pursue them as enemies outside the Constitution. This brings us to
the decisive point: What are the rights against enemies which Congress may
exercise in war?
Clearly the United States may exercise all the rights of war
which belong to independent States. I waive whether these rights can be
exercised by Congress or by the President. Harsh as these rights are, they are
derived from the instinctive law of self-defense. Every community having
the form and character of sovereignty has a right of national life, and, in
defense of such life, it may put forth all its energies. "I am,
therefore I have rights," may be the declaration of every sovereignty,
when its existence is assailed.
While the private property of an enemy on land, according to
the modern practice of nations, is exempt from seizure, simply as private
property, yet in certain cases it can be seized under circumstances
constituting a necessity. The seizure must have an object essential to the
conduct of the war.
The pretended property of an enemy in slaves may be taken. Since
slaves are men, there is still another rule of public law applicable to
them. As Vittal states it:
"For a people spoiled of
their liberty, if they have not voluntarily incorporated themselves with the
State by which they have been subdued—if they have not freely aided the State
in the war against us—we ought certainly to use our victory to break their
chains. To deliver an oppressed people is a noble fruit of victory."
(Vattel, book 3, cap. 13, sec 203.)
These are not the words of a visionary, or of a speculator,
or of an agitator; but of a publicist, one of the acknowledged authorities on
the law of nations.
Therefore, according to the rights of war, slaves, if
regarded as property, may be declared free, or if regarded as men, they may
also be declared free, under two acknowledged rules: first, of self-interest,
in order to procure an ally, and secondly, of conscience and equity, in order
to do an act of justice which shall ennoble victory.
Note: Here, if Vittal has stated
the settled rule accurately, controversy regarding the issue of Lincoln's authority to proclaim freedom for the slaves must end.
And as the text of Vittal's work
shows Sumner has:
Whether the war was a just or
unjust war, of course, is a different question altogether. Vittal, in his
tome—Law of Nations—wrote this, in 1759: