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In The Congress Of The United States


The Senate


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.


Virginia's first citizen and soldier, and first

President of the United States


May 1, 1862

The Senate resumed the consideration of the bill (S.No. 151)

to confiscate the property of the rebels and free the slaves



Mr. 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 universal emancipation.


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.


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 personam.


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?


Mr. 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 disloyal.


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 years.


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' property.


Mr. Wilkinson, of Minnesota: I hope that the motion will not prevail. Reference will create delay. We are ready to vote on this bill.


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 and nays.

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 a committee.


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 heart.


Mr. Wade: I believe the Senator is an enemy of the bill. I gather that from his speeches.


Mr. 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 difference?


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 States.


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 as Commander-in-Chief.


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 is impossible.


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?


Kentucky, with Missouri's help, has to hold off

Illinois, 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 rests.


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.

Joe RyanComment: 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 vu)


Then, Mr. President, I hope that all these troublesome questions, which are calculated to embitter, will be referred to a committee.


Mr. 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 time.)


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 there.


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 declaration.


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 War


Mr. Davis, of Kentucky: I offer the following resolution:


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 the table.


Surrender of 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 slaves.


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.


Confiscation again


Mr. Collamer offered an amendment to the bill which reads:


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 their enemies."


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.


Mr. 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 to do.


"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 the States.


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 session.


May 2, 1862


Confiscation again


Mr. 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 the rebellion.


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 feet?


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 1850

(They were 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 property?


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 property?


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 perfectly helpless.


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 removal.


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 different power.


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 1862

(These men were not listening)


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.


Note: 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 mistaken.


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 1860.


 Hiram Rhodes
First 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 the galleries.


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 look on.


May 7, 1862


The 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 Supreme Court.


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 country.


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.


Confiscation, Again


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 march.


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 battles.


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 effective.


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 anything.


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 confiscation.


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 rebels.


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 nationseizes 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 Representatives


May 8


Freedom for the Slaves


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 table.


Mr. Washburne: I demand the yeas and nays. The yeas and nays were ordered.


Mr. Lovejoy: Mr. Speaker I demand the previous question.


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 Slaves, Again


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 prohibit slavery.


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 thing."


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 question ordered.


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.


Confiscation of Rebel Property


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 of war.


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."


Jefferson Davis 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


Confiscation, Again


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.


It 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 facto war.


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 recites—"indivisible."


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:



"The right of employing force," Vittal's holds, or making a just war, "belongs to nations no farther than is necessary for their own defense, and for the maintenance of their rights. [When a nation is attacked] then. . . that nation has a right to repel the aggressor." So the question recurs, was Virginia, in the view of the law of nations, a nation when she was attacked by the United States?



"Whether a sovereign is bound to observe the laws of war towards rebellious subjects." Sumner's crowd would have it be that the "sovereign" in this situation is the Federal Government and that the "subjects" are the citizens of  Virginia and her allies. But, as a matter of objective political truth this is not so. "The name of rebels," Vittal writes," is given to all subjects who unjustly take up arms against the ruler of the society." Here is exposed the gross defect in the logic of those who insist the war was simply a "rebellion" and not a war between States. The Federal Government, Ruler of Virginia's society? Does anyone seriously believe the founders, when they wrote the Constitution, thought they were creating the opportunity for Sumner to argue this?


 Sumner admits that the ultimate object of the war is to coerce Virginia and her allies back into the Union, a Union defined by a Constitution that recognizes the absolute right of the States to frame their own domestic policy. Under the Constitution in existence, in 1862, then, once Virginia is back within the Union it cannot be prevented from reenslaving the Africans within its territory. The Republicans recognize this reality and will soon begin the work necessary to cause the Constitution to be amended, to strip the States of control over their domestic policies.


I have said what I have to say on the law of this matter, bringing it to the touchstone of the Constitution and of international law. It is for you now to determine out of which you will draw, or, indeed, if you will not draw from both,. Regarding the rebels as criminals, you may so pursue and punish them. Regarding them as enemies, you may blast them with that summary vengeance which is among the dread agencies of war; while, by an act of beneficent justice, you elevate a race, and change this national calamity into a sacred triumph. Or, regarding them both as criminals and as enemies, you may marshal against them all the double penalties of rebellion and of war, or better still, the penalties of rebellion and the triumphs of war.


Mr. President, if you seek indemnity for the past and security for the future, if you seek the national unity under the Constitution, here is the way in which all these can be surely obtained. Strike down the leaders of the rebellion and lift up the slaves. Then there will be indemnity for the past such as no nation ever before was able to win, and there will be a security for the future such as no nation ever before enjoyed, while the Republic, glorified and strengthened, will be assured forever, one and indivisible.


     Note: This is beautiful language elevating the emotions while speaking clearly the truth.


The President pro tempore. The question before the Senate is the amendment moved by the Senator from Kentucky to the third section of the original bill, upon which the yeas and nays have been ordered. The Vice President appeared and took the chair and the Senate proceeded to consideration of the tax bill.




Joe Ryan


Part II

The War in the West
General Grant's Papers


Part III

The War in the East
Seven Pines
General McClellan's Papers




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Joe Ryan is a Los Angeles trial lawyer who has traveled the route of the Army of Northern Virginia, from Richmond to Gettysburg, several times.

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Marbury v. Madison

MarshallJohn Marshall became Chief Justice of the United States Supreme Court at the same time Thomas Jefferson became President. Marshall was of the Federalist Party and Jefferson of the Republican Party. The latter party had just taken control of Congress from the former. In the course of the transition, appointments of officers made by the outgoing Administration had not been delivered at the time the new Administration took office. Marbury was one of these officers and he sued the Administration (naming James Madison, Jefferson's Secretary of State as defendant) seeking a writ of mandamus, to compel the Administration to issue him the Jeffersonappointment that had been made but not delivered at the time it took office. Marbury based his standing to sue—without a litigant having "standing" the Court has no jurisdiction to hear the case—on a provision of the Judiciary Act of 1789. (This Act was operative at the time Marbury brought suit because the Congress, controlled by Republicans, had repealed the Judiciary Act of 1801, a Federalist piece of legislation.

The ruling doctrine of the Republican Party at this time was "state rights;" this being the idea that any member of the Union possessed the right and power to pronounce a congressional law unconstitutional. The Federalist Party, on the other hand, espoused the view that the Supreme Court alone had the power to invalidate acts of Congress. Marshall, a Federalist, seized upon Marbury's case as the vehicle by which the issue of where the power laid to annul acts of Congress could be decided.

No words in the Constitution gave the Supreme Court the power to annul congressional acts. The subject had been discussed at the Philadelphia Convention, but it was a brief debate and it was focused on a proposition to make the President and the Justices of the Supreme Court joint members of a Council of Revision, with power to annul acts of Congress. No direct resolution was ever offered to the effect that either the President or the Supreme Court should be given power to declare acts of Congress unconstitutional. (Most members of the Convention are on record as having expressed opinions, pro and con, as to whether the Court may annul congressional acts.) In the end nothing was done and the whole subject was dropped.

Chief Justice Marshall's Written Decision

Marbury Document

Marshall, who had always publicly held the position that the Court did have the power to annual congressional acts, reached the issue in Marbury, by writing the majority opinion that held the Judiciary Act of 1789 was unconstitutional because it purported to increase the original jurisdiction of the Court (to include cases like Marbury's) beyond what the Constitution in express language provided. In ruling that the Court did not have jurisdiction to hear Marbury's case, Marshall repeated, in essence, Alexander Hamilton, who, in The Federalist Papers, No. 78, had written, "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from Congress. If there be an irreconcilable variance between the two, the Constitution ought to be preferred over the statute." Marshall, using this language, formally announced that the Supreme Court is the authority of last resort to interpret the Constitution and determine the validity of congressional acts by the test of that instrument.

Marbury v. Madison established the principle that the Congress does not have a free hand to legislate whatever it wants—appellate jurisdiction of the courts, healthcare, immigration, abortion, etc—unrestrained by the courts. Seventy years passed, from the year Marbury v. Madison was decided, in 1803, to the year another congressional act was declared unconstitutional; and that was In Re Dred Scott (1857) in which the Court held that Congress had no power to prohibit slavery in the territory purchased from France and that the Act of March 6, 1820, known as the Missouri Compromise, was unconstitutional, null and void.

The great problem with the supposition made by some that the President possesses the independent power to annul (ignore) acts of Congress is the fact that the Constitution expressly gives the President power to veto a bill which he may do for any reason he chooses, including the ground the bill is unconstitutional; but, by a two thirds vote, Congress can pass it over the President's disapproval. It is illogical to say that the framers intended, by inserting a Presidential oath of office in the Constitution, to give the President power, beyond the power of the veto, to annul acts of Congress. Why brother writing the words, if despite the Congress's overriding of the veto, the President can constitutionally refuse to execute the law?

Thus, the framers' scheme seems reasonably clear; the power of the President to annul acts of Congress begins and ends with his express constitutional power to veto bills. Once the Congress trumps the veto by an overriding two-thirds vote, the President must, if he is to be obedient to the constitutional oath of office, execute the law; and, as he does so, his Administration can petition the Supreme Court for review of the offending law's constitutionality and, if the Court rules the law unconstitutional, he is then free to ignore it.

There is one Federal Judge, Brett M. Kavanaugh, who has argued in writing that, "Under the Constitition, the President may decline to enforce a statute. . . when the President deems the statute unconstitutional." That's tyrants' speech. That's what Mr. Chayez does in Venesuela, and what the mullahs do in Iran. Let us insist that judges, who disclose their view that Presidents may ignore laws they "deem" to be unconstitutional, do not find their way to the Supreme Court. (See, Susan Seven Sky. V. Holder (2011) 661 F.3d 1, 50: Judge Kavanaugh offers Judge Easterbrook's 1991 law review article, Presidential Review 1991 40 Cas W. Res. 905, as the basis of authority for the statement.)


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