Charles Sumner: his complete works, volume 09 (of 20)

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Title: Charles Sumner: his complete works, volume 09 (of 20)

Author: Charles Sumner

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*** START OF THE PROJECT GUTENBERG EBOOK CHARLES SUMNER: HIS COMPLETE WORKS, VOLUME 09 (OF 20) ***

[Illustration: A. W. Elson & Co. Boston: HANNIBAL HAMLIN]

Statesman Edition VOL. IX

Charles Sumner

HIS COMPLETE WORKS

With Introduction
BY
HON. GEORGE FRISBIE HOAR

[Illustration]

BOSTON
LEE AND SHEPARD
MCM

Statesman Edition.
LIMITED TO ONE THOUSAND COPIES.
OF WHICH THIS IS
No. 259

Norwood Press:
NORWOOD, MASS., U.S.A.

CONTENTS OF VOLUME IX.

PAGE

RIGHTS OF SOVEREIGNTY AND RIGHTS OF WAR: TWO SOURCES OF POWER
AGAINST THE REBELLION. Speech in the Senate, on his Bill for
the Confiscation of Property and the Liberation of Slaves
belonging to Rebels, May 19, 1862 1

NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON. Resolution and
Remarks in the Senate, May 23, 1862 78

INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING
ARMIES. Resolution in the Senate, May 26, 1862 82

HELP FROM SLAVES, WITH RECIPROCAL PROTECTION IN THEIR RIGHTS AS
MEN. Resolution in the Senate, May 26, 1862 83

TAX ON COTTON. Speeches in the Senate, May 27 and June 4, 1862 84

TAX ON SLAVE-MASTERS. Speeches in the Senate, on Amendment to
the Internal Tax Bill, May 28 and June 6, 1862 93

PROPER DESPATCH OF BUSINESS. Remarks in the Senate, on the
Order of Business, May 30, 1862 110

SHUTTING UP OF COLORED SCHOOLS BY THE PROVISIONAL GOVERNMENT OF
NORTH CAROLINA. Resolution and Remarks in the Senate, June 2,
1862 112

STAND BY THE ADMINISTRATION. Letter to ----, June 5, 1862 116

POWER OF CONGRESS _vs._ MILITARY GOVERNMENT OF STATES.
Resolutions in the Senate, June 6, 1862 119

AIR-LINE RAILROAD BETWEEN WASHINGTON AND NEW YORK. Resolution
in the Senate, June 9, 1862 121

ABOLITION AND PROHIBITION OF SLAVERY IN WEST VIRGINIA. Remarks
in the Senate, on the Bill for the Admission of West Virginia
as a State, June 26, July 1 and 14, 1862 122

WAR POWERS OF CONGRESS: CONFISCATION AND LIBERATION. Speech
in the Senate, on the House Bill for the Confiscation of
Property and the Liberation of Slaves belonging to Rebels,
June 27, 1862 128

PRIZE MONEY AND ITS POLICY. Remarks in the Senate, June 30,
1862 148

THE RANK OF ADMIRAL. Remarks in the Senate, on the Bill to
establish the Grades of Navy Officers, July 2, 1862 150

TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED
STATES. Speeches in the Senate, on an Amendment to two
different Bills, one relating to the Judiciary, and the other
to the Competency of Witnesses, July 3 and 15, 1862 152

PROVISIONAL GOVERNMENTS AND RECONSTRUCTION. Remarks in the
Senate, on a Bill to establish Provisional Governments in
Certain Cases, July 7, 1862 162

TAXES ON KNOWLEDGE. Remarks in the Senate, on the Duties upon
Imported Books and Rags, July 8, 1862 166

CONSTITUTIONAL QUORUM OF THE SENATE. Speech in the Senate, on a
Resolution declaring the Constitutional Quorum, July 12, 1862 169

PROTEST AGAINST FINAL ADJOURNMENT OF CONGRESS. Remarks in the
Senate, on a Resolution for the Final Adjournment of the Two
Houses, July 12, 1862 176

PATRIOTIC UNITY AND EMANCIPATION. Letter to a Public Meeting at
New York, July 14, 1862 180

HARMONY WITH THE PRESIDENT AND EMANCIPATION. Speech in the
Senate, on the Joint Resolution explanatory of the Act for
Confiscation and Liberation, July 16, 1862 182

UNION OF GOOD CITIZENS FOR A FINAL SETTLEMENT. Letter to the
Republican State Committee, September 9, 1862 187

THE PROCLAMATION OF EMANCIPATION: ITS POLICY AND NECESSITY AS
A WAR MEASURE FOR THE SUPPRESSION OF THE REBELLION. Speech at
Faneuil Hall, October 6, 1862. With Appendix, on the Nomination
and Reëlection of Mr. Sumner as Senator 191

THE EMANCIPATION PROCLAMATION OUR CORNER-STONE. Letter to
Fellow-Citizens at Salem, October 10, 1862 247

FARMERS, THEIR HAPPINESS AND LIBERAL SENTIMENTS. Speech at
the Dinner of the Hampshire County Agricultural Society, at
Northampton, Mass., October 14, 1862 248

AMBULANCE AND HOSPITAL CORPS. Resolution in the Senate,
December 3, 1862 255

CELEBRATION OF EMANCIPATION. Letter to a Public Meeting of
Colored Citizens in Boston, January 1, 1863 256

PRUDENCE IN OUR FOREIGN RELATIONS. Remarks in the Senate, on
Resolutions against French Interference in Mexico, February 3,
1863 257

EMPLOYMENT OF COLORED TROOPS. Bill in the Senate, February 9,
1863 262

IMMEDIATE EMANCIPATION, AND NOT GRADUAL. Speech in the Senate,
on the Bill providing Aid for Emancipation in Missouri,
February 12, 1863 266

LETTERS OF MARQUE AND REPRISAL. Speeches in the Senate, on the
Bill to authorize the President, in all Domestic or Foreign
Wars, to issue Letters of Marque and Reprisal, February 14 and
17, 1863 278

APPOINTMENTS TO THE NAVAL ACADEMY. Remarks in the Senate, on
the Bill to regulate the Appointment of Midshipmen to the Naval
Academy, February 16, 1863 301

EXEMPTION OF CLERGYMEN FROM MILITARY CONSCRIPTION. Remarks on
the Conscription Law, February 16, 1863 303

PROTEST AGAINST FOREIGN INTERVENTION, AND DECLARATION OF
NATIONAL PURPOSE. Concurrent Resolutions of Congress, reported
in the Senate, February 28, 1863 307

INEXPEDIENCY OF LETTERS OF MARQUE. Letter to a Citizen of New
York, March 17, 1863 313

UNITY FOR THE SAKE OF FREEDOM, AND FREEDOM FOR THE SAKE OF
UNITY. Letter to a Public Meeting at Cleveland, Ohio, May 18,
1863 316

PACIFIC RAILROAD. Letter to Messrs. Samuel Hallett & Co., May
23, 1863 318

UNION OF THE MISSISSIPPI AND THE LAKES BY CANAL. Letter to a
Convention at Chicago, May 27, 1863 320

THE ISSUES OF THE WAR. Dedication of a New Edition of the
Speech on the Barbarism of Slavery, July 4, 1863 322

LET COLORED MEN ENLIST. Letter to a Convention at Poughkeepsie,
New York, July 13, 1863 325

RIGHTS OF SOVEREIGNTY AND RIGHTS OF WAR:

TWO SOURCES OF POWER AGAINST THE REBELLION.

SPEECH IN THE SENATE, ON HIS BILL FOR THE CONFISCATION OF PROPERTY AND
THE LIBERATION OF SLAVES BELONGING TO REBELS, MAY 19, 1862.

Wherefore he deserves to be punished, not only as an enemy, but
also as a traitor, both to you and to us. And indeed treason is
as much worse than war as it is harder to guard against what
is secret than what is open,--and as much more hateful, as
with enemies men make treaties again, and put faith in them,
but with one who is discovered to be a traitor nobody ever
enters into covenant, or trusts him for the future.--XENOPHON,
_Hellenica_, Book II. ch. 3, § 29.

* * * * *

Tum, ex consulto Senatus adversariis hostibus judicatis, in
præsentem Tribunum, aliosque diversæ factionis, jure sævitum
est.--FLORUS, _Epitome_, Lib. III. cap. 21.

* * * * *

Ego semper illum appellavi hostem, cum alii adversarium; semper
hoc bellum, cum alii tumultum. Nec hæc in Senatu solum; eadem
ad populum semper egi.--CICERO, _Oratio Philippica XII._ cap.
7.

* * * * *

Except the Tax Bill, no subject occupied so much attention
during this session as what were known generally as
“Confiscation Bills,” all proposing, in different ways, the
punishment of Rebels and the weakening of the Rebellion, by
taking property and freeing slaves. In supporting these bills,
Mr. Sumner did not disguise his special anxiety to assert the
power of Congress over Slavery.

As early as January 15th, Mr. Trumbull reported from the
Judiciary Committee a bill to confiscate the property and free
the slaves of Rebels, which was considered from time to time
and debated at length, many Senators speaking. Amendments
were made, among which was one moved by Mr. Sumner, February
25th, requiring, that, whenever any person claimed another
as slave, he should, before proceeding with his claim, prove
loyalty.[1] Then came motions for reference of the pending bill
and all associate propositions to a Select Committee. That of
Mr. Clark prevailed. In a speech which will be found in the
_Congressional Globe_[2] sustaining the reference, Mr. Sumner
said:--

“Such are the embarrassments in which we are involved,
such is the maze into which we have been led by these
various motions, that a committee is needed to hold the
clew. Never was there more occasion for such a committee
than now, when we have all these multifarious propositions
to be considered, revised, collated, and brought into a
constitutional unit,--or, if I may so say, changing the
figure, passed through an alembic, to be fused into one
bill on which we can all harmonize.”

Mr. Clark reported from the Select Committee a bill “to
suppress Insurrection and punish Treason and Rebellion,” which,
on the 16th of May, was taken up for consideration. Mr. Sumner
was among those who thought the bill inadequate, and on the day
it was taken up he introduced a substitute in ten sections,
which was printed by order of the Senate. The title was, “For
the Confiscation of Property and the Liberation of Slaves
belonging to Rebels.” The sections relating to Liberation were
these.

“SEC. 6. _And be it further enacted_, That, if any person
within any State or Territory of the United States shall,
after the passage of this Act, wilfully engage in armed
rebellion against the Government of the United States,
or shall wilfully aid or abet such rebellion, or adhere
to those engaged in such rebellion, giving them aid or
comfort, every such person shall thereby forfeit all claim
to the service or labor of any persons commonly known as
slaves; and all such slaves are hereby declared free,
and forever discharged from such servitude, anything in
the laws of the United States, or of any State, to the
contrary notwithstanding. And whenever thereafter any
person claiming the labor or service of any such slave
shall seek to enforce his claim, it shall be a sufficient
defence thereto that the claimant was engaged in the said
rebellion, or aided or abetted the same, contrary to the
provisions of this Act.

“SEC. 7. _And be it further enacted_, That, whenever any
person claiming to be entitled to the service or labor
of any other person shall seek to enforce such claim, he
shall, in the first instance, and before any order shall be
made for the surrender of the person whose service or labor
is claimed, establish not only his claim to such service
or labor, but also that such claimant has not in any way
aided, assisted, or countenanced the existing Rebellion
against the Government of the United States. And no person
engaged in the military or naval service of the United
States shall, under any pretence whatever, assume to decide
on the validity of the claim of any person to the service
or labor of any other person, or deliver up any such person
to the claimant, on pain of being dismissed from the
service.”

May 19th, Mr. Sumner made the following speech, vindicating the
powers of Congress.

A debate ensued, turning on the inadequacy of the pending
bill, in which Mr. Sumner likened it to a glass of water with
a bit of orange-peel, which, according to a character in one
of Dickens’s novels, by making believe very hard, would be
a strong drink, and said: “At a moment when the life of the
Republic is struck at, Senators would proceed by indictment in
a criminal court.” Mr. Wade said: “I do not know that we shall
get anything; but if we only get this bill, we shall get next
to nothing.”

In the course of the debate, Mr. Davis departed from the
main question to say that he understood the Senators from
Massachusetts sympathized with the mob in Boston, and its
resistance to the Fugitive Slave Act. He never knew that Mr.
Wilson had appeared “to back the Marshal of the United States
in the execution of that law.” Then ensued a brief colloquy.

“MR. DAVIS. I never heard that he did, or that either
of them did, perform or attempt to perform that high,
patriotic duty.

“MR. SUMNER. I was in my seat here.

“MR. DAVIS. Did you not give your sympathy to those who
resisted the law?

“MR. SUMNER. My sympathy is always with every slave.

“MR. DAVIS. That is a frank acknowledgment. His sympathy is
with every slave against the Constitution and the execution
of the laws of his country! If that is not a sentiment of
treason, I ask what is.”[3]

Meanwhile the House of Representatives were considering the
same subject, and on the 26th May passed a bill “to confiscate
the property of Rebels for the payment of the expenses of the
present Rebellion, and for other purposes,” which, on motion
of Mr. Clark, was taken up in the Senate June 23d, when he
moved to substitute the pending Senate bill. The debate on
the general question was resumed. June 27th, Mr. Sumner made
another speech, which will be found in its place, according to
date,[4] especially in reply to Mr. Browning, who had claimed
the War Powers for the President rather than for Congress.

June 28th, the substitute moved by Mr. Clark was agreed to,
Yeas 19, Nays 17, and the bill as amended was then passed, Yeas
28, Nays 13.

July 3d, the House non-concurred in the Senate amendment.
A Conference Committee reported in substance the Senate
amendment, which was accepted in the Senate, Yeas 28, Nays 13,
and in the House, Yeas 82, Nays 42. July 17th, the bill was
signed by the President.

The sections of this bill, as it passed, relating to
liberation, were these.

“SEC. 9. _And be it further enacted_, That all slaves of
persons who shall hereafter be engaged in rebellion against
the Government of the United States, or who shall in any
way give aid or comfort thereto, escaping from such persons
and taking refuge within the lines of the army, and all
slaves captured from such persons, or deserted by them, and
coming under the control of the Government of the United
States, and all slaves of such persons found on [or] being
within any place occupied by Rebel forces, and afterwards
occupied by the forces of the United States, shall be
deemed captives of war, and shall be forever free of their
servitude, and not again held as slaves.

“SEC. 10. _And be it further enacted_, That no slave
escaping into any State, Territory, or the District of
Columbia, from any other State, shall be delivered up,
or in any way impeded or hindered of his liberty, except
for crime, or some offence against the laws, unless the
person claiming said fugitive shall first make oath that
the person to whom the labor or service of such fugitive is
alleged to be due is his lawful owner, and has not borne
arms against the United States in the present Rebellion,
nor in any way given aid and comfort thereto; and no
person engaged in the military or naval service of the
United States shall, under any pretence whatever, assume to
decide on the validity of the claim of any person to the
service or labor of any other person, or surrender up any
such person to the claimant, on pain of being dismissed
from the service.”[5]

This speech in the Washington pamphlet was entitled “Indemnity
for the Past and Security for the Future,” which points
directly at its object. An edition was printed in New York by
the Young Men’s Republican Union, with the title, “Rights of
Sovereignty and Rights of War, Two Sources of Power against the
Rebellion,” which describes the way in which this object might
be accomplished.

It was noticed at the time as removing difficulties which
perplexed many with regard to the powers of Congress.

In Paris, the _Journal des Débats_[6] referred to it as
explaining the confiscation proposed in the United States, and
quoted passages especially in reply to the _Constitutionnel_,
which had attacked the measure.

A few opinions are given, merely to illustrate the tone of
comment.

* * * * *

Hon. John Jay, afterwards our Minister at Vienna, who
sympathized promptly with all that was done to crush the
Rebellion, wrote from New York:--

“Your Confiscation speech is an admirable exposition of the
subject, and will go far to remove any lingering doubts
in the public mind in regard to the constitutionality and
necessity of the measure.”

Then again he wrote:--

“I have re-read, with thorough satisfaction, your speech
on Confiscation and Emancipation in the pamphlet you
were good enough to send me. It is admirable in its
tone, arrangement, and completeness, and the arguments
and illustrations are overwhelming and unanswerable. The
necessity of Emancipation is fast forcing itself upon our
people by the stern logic of facts, but your speech will
remove any lingering doubts.”

Hon. Amos P. Granger, former Representative in Congress, and a
stern patriot, wrote from Syracuse, New York:--

“Your remarks of the 19th, as reported in the _Tribune_ day
before yesterday, are read in this vicinity with a great
deal of pleasure and approbation. They are replete with
prudence, skill, and wisdom. Such sentiments are rarely
heard in Washington. It would seem that they would be
decisive.”

Hon. William L. Marshall, an able Judge of Maryland, wrote
from Baltimore:--

“You have exhausted the subject, it seems to me, so far as
it involves legal questions. I have been greatly pleased
and much interested by your argument.”

L. D. Stickney, of Florida, wrote from Washington:--

“I have read your speech on the confiscation of the
property of Rebels with the liveliest interest and with
entire approbation. Long a citizen of the South, I have
nevertheless been a steadfast Republican of the school of
Jefferson and of J. Quincy Adams,--a Republican to elevate
men to the proper status of freemen, not to degrade them
to slavery. While the unthinking and those of violent
prejudices call you fanatical, no man properly qualified
to judge of men and events can survey your parliamentary
history without acknowledging your claim to the highest
plane of statesmanship. I reverence Sir James Mackintosh
as the brightest example of great men whom the world will
not willingly let die. Tried by no other standard than your
speeches in the Thirty-Seventh Congress alone, you will
stand unchallenged by the enlightened judgment of mankind,
his co-rival in that fame which makes his name cherished by
scholars everywhere, and by all men of good report.”

While expressing sympathy with this speech, many at this time,
like the last writer, referred to the series of efforts by
Mr. Sumner during this session. Among these was Hon. Samuel
E. Sewall, of Boston, the able lawyer and tried Abolitionist,
who repeated the kindly appreciation which he had expressed on
other occasions.

“Your course during the present session has not only
delighted your friends, but I think has given great
satisfaction to the mass of your constituents, as well as
to all throughout the country whose opinions are of any
value.

“Any man might think his life well spent, who, in its whole
course, had said and done no more in the cause of freedom
and justice than you have in the six months past.”

Hon. Charles W. Upham, the author, and former Representative in
Congress, wrote from Salem:--

“You have nobly presented and thoroughly exhausted all the
subjects you have treated. I rejoice in your success, and
cordially indorse your sentiments. May you live to witness
the progressive triumphs of the great cause to which you
are devoted!”

Lewis Tappan, often quoted already, wrote from New York:--

“You have done a great work in the Senate during the last
session. I admire your consistency. Every utterance has
been instinct with liberty and loyalty.… Thanking you again
for the speech, and for your other speeches, and thanking
God for the brilliancy of your entire Senatorial career.…”

Hon. Asaph Churchill, lawyer and fellow-student, expressed his
sympathy, and gave a reminiscence, in a letter from Boston.

“Allow me to congratulate you upon the grand success of our
country’s movement, and no less upon your own career, which
has been crowned with such splendid success, during the
past season, in the new, important, and delicate questions
which you have been called upon to speak and act upon.
Certainly your highest ambition ought to be satisfied with
that which insures to you your place in the immortality of
history; and you have had the most abundant opportunity for
accomplishing upon the grandest scale that aspiration which
I so well remember you gave utterance to at our Law School,
when, boy-like, we were all telling what we most ardently
sought to do or to be, that you ‘wished to do that which
would do the most good to mankind.’”

Wendell Phillips, after his return from a lecture-tour, wrote:--

“Be of good courage. We all say amen to you. And your
diocese, _I_ can testify, extends to the Mississippi.”

Alfred E. Giles, lawyer, wrote from Boston:--

“During your Congressional career, I have so uniformly
found my views and feelings on public affairs in accordance
with those of your speeches, that I now feel myself
obliged, for once at least (for I shall not often trouble
you), to express my gratitude, and give a word of good
cheer to you, who, amid so many discouragements, and under
so much obloquy as has been attempted to be thrown upon
you, have ever so faithfully and manfully stood up for the
oppressed and for liberal principles.

“It appears to me, on reading your speeches, that I find
my own views and principles announced, stated, and clothed
with a richness and beauty of style and illustration that I
admire, but cannot emulate.

“Again, I am much pleased that you always deal fairly
with your opponents, not using misrepresentation and _ad
captandum_ argument, but drawing your weapons from the
armory of truth and right.”

Professor Ordronaux, of Columbia College, New York, wrote:--

“Last year, while in England, I had the honor of meeting
many gentlemen of your acquaintance, and, amid the many
bitter things I was compelled to listen to, it was a
source of constant satisfaction and pride to hear them
acknowledge the great confidence they reposed in you, and
the earnest wish they expressed for the success of that
_novus ordo sæclorum_ in the Senate, for which we are so
much indebted to you. Reading over for the third time your
famous Kansas speech, of May, 1856,[7] this morning, I was
struck with the almost prophetic character of its language.
The crime against Nature has indeed culminated. It struck
you down, and then went dancing like a maniac, all the
while approaching that bottomless abyss into which it is
now descending. Can you doubt that Nemesis still wields her
sword and flaming torch?”

These expressions of sympathy and good-will, overflowing from
opposite quarters, are a proper prelude to other utterances,
widely different in tone, aroused against Mr. Sumner by the
very persistency of his course. Appearing in their proper
place, these will be better comprehended from knowing already
the other side.

SPEECH.

MR. PRESIDENT,--If I can simplify this discussion, I shall feel that
I have done something towards establishing the truth. The chief
difficulty springs from confusion with regard to different sources of
power. This I shall try to remove.

* * * * *

There is a saying, often repeated by statesmen and often recorded
by publicists, which embodies the direct object of the war we are
now unhappily compelled to wage,--an object sometimes avowed in
European wars, and more than once made a watchword in our own country:
“Indemnity for the past, and Security for the future.” Such should be
our comprehensive aim,--nor more, nor less. Without indemnity for the
past, this war will have been waged at our cost; without security for
the future, this war will have been waged in vain, treasure and blood
will have been lavished for nothing. But 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. Both will be maintained, if we do not fail to take
counsel of that prudent courage which is never so much needed as at a
moment like the present.

Two things we seek as means to an end: Indemnity for the past, and
Security for the future.

Two things we seek as the end itself: National Unity, under the
Constitution of the United States.

In these objects all must concur. But how shall they be best
accomplished?

The Constitution and International Law are each involved in this
discussion. Even if the question itself were minute, it would be
important from such relations. But it concerns vast masses of property,
and, what is more than property, it concerns the liberty of men, while
it opens for decision the means to be employed in bringing this great
war to a close. In every aspect the question is transcendent; nor is it
easy to pass upon it without the various lights of _jurisprudence_, of
_history_, and of _policy_.

Sometimes it is called a constitutional question exclusively. This is
a mistake. In every Government bound by written Constitution nothing
is done except in conformity with the Constitution. But in the present
debate there need be no difficulty or doubt under the Constitution.
Its provisions are plain and explicit, so that they need only to be
recited. The Senator from Pennsylvania [Mr. COWAN] and the Senator from
Vermont [Mr. COLLAMER] have stated them strongly; but I complain less
of their statement than of its application. Of course, any proposition
really inconsistent with these provisions must be abandoned. But if,
on the other hand, it be consistent, then is the way open to its
consideration in the lights of history and policy.

If there be any difficulty now, it is not from the question, but
simply from the facts,--as often in judicial proceedings it is less
embarrassing to determine the law than the facts. If things are seen
as they really are and not as Senators fancy or desire, if the facts
are admitted in their natural character, then must the constitutional
power of the Government be admitted also, for this power comes into
being on the occurrence of certain facts. Only by denying the facts can
the power itself be drawn in question. But not even the Senator from
Pennsylvania or the Senator from Vermont denies the facts.

* * * * *

The facts are simple and obvious. They are all expressed or embodied in
the double idea of Rebellion and War. Both of these are facts patent
to common observation and common sense. It would be an insult to the
understanding to say that at the present moment there is no Rebellion
or that there is no War. Whatever the doubts of Senators, or their
fine-spun constitutional theories, nobody questions that we are in
the midst of _de facto_ Rebellion and in the midst of _de facto_ War.
We are in the midst of each and of both. It is not enough to say that
there is Rebellion; nor is it enough to say that there is War. The
whole truth is not told in either alternative. Our case is double, and
you may call it Rebellion or War, as you please, or you may call it
both. It is Rebellion swollen to all the proportions of war, and it is
War deriving its life from rebellion. It is not less Rebellion because
of its present full-blown grandeur, nor is it less War because of the
traitorous source whence it draws its life.

The Rebellion is manifest,--is it not? An extensive territory, once
occupied by Governments rejoicing in allegiance to the Union,
and sharing largely in its counsels, has undertaken to overthrow
the National Constitution within its borders. Its Senators and
Representatives have withdrawn from Congress. The old State
Governments, solemnly bound by the oaths of their functionaries to
support the National Constitution, have vanished; and in their place
appear pretended Governments, which, adopting the further pretension
of a Confederacy, have proceeded to issue letters of marque and to
levy war against the United States. So far has displacement of the
National Government prevailed, that at this moment, throughout this
whole territory, there are no functionaries acting under the United
States, but all are pretending to act under the newly established
Usurpation. Instead of the oath to support the Constitution of the
United States, required of all officials by the Constitution, another
oath is substituted, to support the Constitution of the Confederacy;
and thus the Rebellion assumes a completeness of organization under the
most solemn sanctions. In point of fact, throughout this territory the
National Government is 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 practically
ceased to exist. Such is the plain and palpable fact. If all this
is not rebellion, complete in triumphant treason, then is rebellion
nothing but a name.

But the War is not less manifest. Assuming all the functions of an
independent government, the Confederacy has undertaken to declare
war against the United States. In support of this declaration it has
raised armies, organized a navy, issued letters of marque, borrowed
money, imposed taxes, and otherwise done all that it could in waging
war. Its armies are among the largest ever marshalled by a single
people, and at different places throughout a wide-spread territory they
have encountered the armies of the United States. Battles are fought
with the varying vicissitudes of war. Sieges are laid. Fortresses and
cities are captured. On the sea, ships bearing the commission of the
Rebellion, sometimes as privateers and sometimes as ships of the navy,
seize, sink, or burn merchant vessels of the United States; and only
lately an iron-clad steamer, with the flag of the Rebellion, destroyed
two frigates of the United States. On each side prisoners are made,
who are treated as prisoners of war, and as such exchanged. Flags of
truce pass from camp to camp, and almost daily during the winter this
white flag has afforded its belligerent protection to communications
between Norfolk and Fortress Monroe, while the whole Rebel coast is
by proclamation of the President declared in a state of blockade, and
ships of foreign countries, as well as of our own, are condemned by
courts in Washington, Philadelphia, New York, and Boston, as prize
of war. Thus do all things attest the existence of war, which is
manifest now in the blockade, upheld by judicial tribunals, and now in
the bugle, which after night sounds truce, indubitably as in mighty
armies face to face on the battle-field. It is war in all its criminal
eminence, challenging all the pains and penalties of war, enlisting all
its terrible prerogatives, and awaking all its dormant thunder.

Further effort is needless to show that we are in the midst of a
Rebellion and in the midst of a War,--or, in yet other words, that
unquestionable war is now waged to put down unquestionable rebellion.
But a single illustration out of many in history will exhibit this
double character in unmistakable relief. The disturbances which
convulsed England in the middle of the seventeenth century were
occasioned by the resistance of Parliament to the arbitrary power of
the Crown. This resistance, prolonged for years and maintained by
force, triumphed at last in the execution of King Charles and the
elevation of Oliver Cromwell. The historian whose classical work was
for a long time the chief authority relative to this event styles it
“The Rebellion,” and under this name it passed into the memory of
men. But it was none the less war, with all the incidents of war. The
fields of Naseby, Marston Moor, Dunbar, and Worcester, where Cavaliers
and Puritans met in bloody shock, attest that it was war. Clarendon
called it Rebellion, and the title of one of his works makes it “The
Grand Rebellion,”--how small by the side of ours! But a greater than
Clarendon--John Milton--called it War, when, in unsurpassed verses,
after commemorating the victories of Cromwell, he uses words so often
quoted without knowing their original application:--

“Yet much remains
To conquer still: Peace hath her victories
No less renowned than War.”[8]

The death of Cromwell was followed by the restoration of King Charles
the Second; but the royal fugitive from the field of Worcester,
where Cromwell triumphed in war, did not fail to put forth the full
prerogatives of sovereignty in the suppression of rebellion; and all
who sat in judgment on the king, his father, were saved from the
fearful penalties of treason only by exile. Hugh Peters, the Puritan
preacher, and Harry Vane, the Puritan senator, were executed as
traitors for the part they performed in what was at once rebellion and
war, while the body of the great commander who defeated his king in
battle, and then sat upon his throne, was hung in chains, as a warning
against treason.

Other instances might be given to illustrate the double character of
present events. But enough is done. My simple object is to exhibit this
important point in such light that it will be at once recognized. And
I present the Rebellion and the War as obvious _facts_. Let them be
seen in their true character, and it is easy to apply the law. Because
Senators see the facts only imperfectly, they hesitate with regard to
the powers we are to employ,--or perhaps it is because they insist upon
seeing the fact of Rebellion exclusively, and not the fact of War. Let
them open their eyes, and they must see both. If I seem to dwell on
this point, it is because of its practical importance in the present
debate. For myself, I assume it as an undeniable postulate.

* * * * *

The persons 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.

The same persons arrayed in war against the Government of the United
States are unquestionably _enemies_, exposed to all the incidents
of war, with its penalties, seizures, contributions, confiscations,
captures, and prizes.

They are _criminals_, because they set themselves traitorously against
the Government of their country.

They are _enemies_, because their combination assumes the front and
proportions of war.

It is idle to say that they are not criminals. It is idle to say that
they are not enemies. They are both, and they are either; and it is for
the Government of the United States to proceed against them in either
character, according to controlling considerations of policy. This
right is so obvious, on grounds of reason, that it seems superfluous to
sustain it by authority. But since its recognition is essential to the
complete comprehension of our present position, I shall not hesitate to
illustrate it by judicial decisions, and also by an earlier voice.

A judgment of the Supreme Court of the United States cannot bind the
Senate on this question; but it is an important guide, to which we
all bow with respect. In the best days of this eminent tribunal, when
Marshall was Chief Justice, in a case arising out of the efforts of
France to suppress insurrection in the colony of San Domingo, it was
affirmed by the Court that in such a case there were two distinct
sources of power open to exercise by a government,--one found in the
rights of a sovereign, the other in the rights of a belligerent, or, in
other words, one under Municipal Law, and the other under International
Law,--and the exercise of one did not prevent the exercise of the
other. Belligerent rights, it was admitted, might be superadded to
the rights of sovereignty. Here are the actual words of Chief-Justice
Marshall:--

“It is not intended to say that belligerent rights may not be
superadded to those of sovereignty. But admitting a sovereign,
who is endeavoring to reduce his revolted subjects to
obedience, to possess both sovereign and belligerent rights,
and to be capable of acting in either character, the manner in
which he acts must determine the character of the act. If as a
legislator he publishes a law ordaining punishments for certain
offences, which law is to be applied by courts, the nature of
the law and of the proceedings under it will decide whether
it is an exercise of belligerent rights or exclusively of his
sovereign power.”[9]

Here are the words of another eminent judge, Mr. Justice Johnson, in
the same case:--

“But there existed a war between the parent state and her
colony. It was not only a fact of the most universal notoriety,
but officially notified in the gazettes of the United States.…
Here, then, was notice of the existence of war, and an
assertion of the rights consequent upon it. The object of
the measure was … solely the reduction of an enemy. _It was,
therefore, not merely municipal, but belligerent, in its nature
and object._”[10]

Although the conclusion of the Court in this case was afterwards
reversed, yet nothing occurred to modify the judgment on the principles
now in question; so that the case remains authority for double
proceedings, municipal and belligerent.

On a similar state of facts, arising from the efforts of France
to suppress the insurrection in San Domingo, the Supreme Court of
Pennsylvania asserted the same principle; and here we find the eminent
Chief-Justice Tilghman--one of the best authorities of the American
bench--giving to it the weight of his enlightened judgment. These are
his words:--

“We are not at liberty to consider the island in any other
light than as part of the dominions of the French Republic.
_But supposing it to be so, the Republic is possessed of
belligerent rights.…_

“Although the French Government, from motives of policy, might
not choose to make mention of war, yet it does not follow that
it might not avail itself of all rights to which by the Law of
Nations it was entitled in the existing circumstances.… This
was the course pursued by Great Britain in the Revolutionary
War with the United States.… Considering the words of the
_arrêté_, and the circumstances under which it was made, it
ought not to be understood simply as a municipal regulation,
but a municipal regulation connected with _a state of war_ with
revolted subjects.”[11]

The principle embodied in these cases is accurately stated by a recent
text-writer as follows.

“A sovereign nation, engaged in the duty of suppressing an
insurrection of its citizens, may, with entire consistency, act
in the twofold capacity of sovereign and belligerent, according
to the several measures resorted to for the accomplishment of
its purpose. By inflicting, through its agent, the judiciary,
the penalty which the law affixes to the capital crimes of
treason and piracy, … it acts in its capacity as a sovereign,
and its courts are but enforcing its municipal regulations. By
instituting a blockade of the ports of its rebellious subjects,
… the nation is exercising the right of a belligerent, and its
courts, in their adjudications upon the captures made in the
enforcement of this measure, are organized as Courts of Prize,
governed by and administering the Law of Nations.”[12]

The same principle has received most authentic declaration in the
recent judgment of an able magistrate in a case of Prize for a
violation of the blockade. I refer to the case of the _Amy Warwick_,
tried in Boston, where Judge Sprague, of the District Court, expressed
himself as follows.

“The United States, as a nation, have full and complete
belligerent rights, which are in no degree impaired by the fact
that their enemies owe allegiance, and have superadded the
guilt of treason to that of unjust war.”[13]

Among all the judges called to consider judicially the character of
this Rebellion, I know of none whose opinion is entitled to more
consideration. Long experience has increased his original aptitude for
such questions, and made him an authority.

There is an earlier voice, which, even if all judicial tribunals had
been silent, would be decisive. I refer to Hugo Grotius, who, by his
work “_De Jure Belli ac Pacis_,” became the lawgiver of nations.
Original in conception, vast in plan, various in learning, and humane
in sentiment, this effort created the science of International Law,
which, since that early day, has been softened and refined, without
essential change in the principles then enunciated. His master mind
anticipated the true distinction, when, in definition of War, he wrote
as follows.

“The first and most necessary partition of war is this:
that war is _private_, _public_, or _mixed_. Public war is
that which is carried on under the authority of him who has
jurisdiction; private, that which is otherwise; _mixed, that
which is public on one side and private on the other_.”[14]

In these few words of this great authority is found the very
discrimination which enters into the present discussion. The war in
which we are now engaged is not precisely “public,” because on one side
there is no Government; nor is it “private,” because on one side there
is a Government; but it is “mixed,”--that is, public on one side and
private on the other. On the side of the United States, it is under
authority of the Government, and therefore “public”; on the other side,
it is without the sanction of any recognized Government, and therefore
“private.” In other words, the Government of the United States may
claim for itself all belligerent rights, while it refuses them to the
other side. And Grotius, in his reasoning, sustains his definition by
showing that war becomes the essential agency, where public justice
ends,--that it is the justifiable mode of dealing with those who are
not kept in order by judicial proceedings,--and that, as a natural
consequence, where war prevails, the Municipal Law is silent. And here,
with that largess of quotation which is one of his peculiarities, he
adduces the weighty words of Demosthenes: “Against enemies, who cannot
be coerced by our laws, it is proper and necessary to maintain armies,
to send out fleets, and to pay taxes; but against our own citizens,
a decree, an indictment, the state vessel are sufficient.”[15] But
when citizens array themselves in multitudes, they come within the
declared condition of enemies. There is so much intrinsic reason in
this distinction that I am ashamed to take time upon it. And yet it has
been constantly neglected in this debate. Let it be accepted, and the
constitutional scruples which play such a part will be out of place.

Senators seem to feel the importance of being able to treat the Rebels
as “alien enemies,” on account of penalties which would then attach.
The Senator from Kentucky [Mr. DAVIS], in his bill, proposes to
declare them so, and the Senator from Wisconsin [Mr. DOOLITTLE] has
made a similar proposition with regard to a particular class. But all
this is superfluous. Rebels in arms are “enemies,” exposed to all the
penalties of war, as much as if they were alien enemies. No legislation
is required to make them so. They are so in fact. It only remains
that they should be treated so, or, according to the Declaration of
Independence, that we “hold them, as we hold the rest of mankind,
_enemies in war_, in peace friends.”

* * * * *

Mark now the stages of the discussion. We have seen, first, that, in
point of _fact_, we are in the midst of rebellion and in the midst of
a war,--and, secondly, that, in point of _law_, we are at liberty to
act under powers incident to either or both of these conditions, treat
the people engaged against us as criminals, or as enemies, or, if we
please, as both. Pardon me, if I repeat these propositions; but it is
essential that they should not be forgotten.

Therefore, Sir, in determining our course, we may banish all question
of power. The power is ample and indubitable, being regulated in the
one case by the Constitution, and in the other case by the Rights of
War. Treating them as criminals, then are we under the restraints of
the Constitution; treating them as enemies, we have all the latitude
sanctioned by the Rights of War; treating them as both, then may we
combine our penalties from the double source. What is done against
them merely as _criminals_ will naturally be in conformity with the
Constitution; but what is done against them as _enemies_ will have no
limitation except the Rights of War.

The difference between these two systems, represented by two opposite
propositions now pending, may be seen in the motive which is the
starting-point of each. Treating those arrayed in arms against us as
criminals, we assume sovereignty, and seek to punish for violation of
existing law. Treating them as enemies, we assume no sovereignty, but
simply employ the means known to war in overcoming an enemy, and in
obtaining security against him. In the one case our cause is founded
in Municipal Law under the Constitution, and in the other case in the
Rights of War under International Law. In the one case our object is
simply punishment; in the other case it is assured victory.

* * * * *

Having determined the existence of these two sources of power, we
are next led to consider the character and extent of each under the
National Government: first, _Rights against Criminals_, founded
on sovereignty, with their limitations under the Constitution;
and, secondly, _Rights against Enemies_, founded on war, which are
absolutely without constitutional limitation. Having passed these in
review, the way will then be open to consider which class of rights
Congress shall exercise.

I begin, of course, with _Rights against Criminals_, founded on
sovereignty, with their limitations under the Constitution.

Rebellion is in itself the crime of treason, which is usually called
the greatest crime known to the law, containing all other crimes, as
the greater contains the less. But neither the magnitude of the crime
nor the detestation it inspires can properly move us from duty to the
Constitution. Howsoever important it may be to punish rebels, this must
not be done at the expense of the Constitution. On that point I agree
with the Senator from Pennsylvania [Mr. COWAN], and the Senator from
Vermont [Mr. COLLAMER]; nor will I yield to either in determination to
uphold the Constitution, which is the shield of the citizen. Show me
that any proposition is without support in the Constitution, or that it
offends against any constitutional safeguard, and it cannot receive my
vote. Sir, I shall not allow Senators to be more careful on this head
than myself. They shall not have a monopoly of this proper caution.

In proceedings against criminals there are provisions or principles of
the Constitution which cannot be disregarded. I will enumerate them,
and endeavor to explain their true character.

1. Congress, it is said, has no power under the Constitution over
Slavery in the States. This popular principle of Constitutional Law,
which is without foundation in the positive text of the Constitution,
is adduced against all propositions to free the slaves of Rebels. But
this is an obvious misapplication of the alleged principle, which
simply means that Congress has no direct power over Slavery in the
States, so as to abolish or limit it. For no careful person, whose
opinion is of any value, ever attributed to the pretended property
in slaves an immunity from forfeiture or confiscation not accorded
to other property; and this is a complete answer to the argument
on this head. Even in prohibiting Slavery, as in the Jeffersonian
ordinance, there is a declared exception of the penalty of crime; and
so in upholding Slavery in the States, there must be a tacit, but
unquestionable, exception of this penalty.

2. There must be no _ex post facto_ law; which means that there can be
no law against crime retrospective in its effect. This is clear.

3. There must be no bill of attainder; which means that there can be no
special legislation, where Congress, undertaking the double function of
legislature and judge, shall inflict the punishment of death without
conviction by due process of law. And there is authority for assuming
that this prohibition includes a bill of pains and penalties, which is
a milder form of legislative attainder, where the punishment inflicted
is less than death.[16] And surely no constitutional principle is more
worthy of recognition.

4. No person shall be deprived of life, liberty, or property, without
due process of law; which means, without presentment, or other judicial
proceeding. This provision, borrowed from Magna Charta, constitutes a
safeguard for all: nor can it be invoked by the criminal more than by
the slave; for in our Constitution it is applicable to every “person,”
without distinction of condition or color. But the criminal is entitled
to its protection.

5. In all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and District
wherein the crime shall have been committed, which District shall
have been previously ascertained by law. This is the sixth amendment
to the Constitution, and is not to be lost sight of now. The accused,
whoever he may be, though his guilt be open as noonday, can be reached
_criminally_ only in the way described. When we consider the deep and
wide-spread prejudices which must exist throughout the whole Rebel
territory, it is difficult to suppose that any jury could be found
within the State and District where the treason was committed who
would unite in the necessary verdict of Guilty. For myself, I do not
expect it; and I renounce the idea of justice in this way. Jefferson
Davis himself, whose crime has culminated in Virginia, could not be
convicted by a jury of that State. But it is the duty of the statesman
to consider how justice, impossible in one way, may be made possible in
another way.

6. No attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attainted. Perhaps
no provision of the Constitution, supposed pertinent to the present
debate, has been more considered; nor is there any with regard to which
there is greater difference of opinion. Learned lawyers in this body
insist broadly that it forbids forfeiture of real estate, although
not of personal, as a penalty of treason; while others insist that
all the real as well as personal estate belonging to the offender may
be forfeited. The words of the Constitution are technical, so as to
require interpretation; and as they are derived from the Common Law,
we must look to this law for their meaning. By “attainder of treason”
is meant _judgment of death_ for treason,--that is, the judgment of
court on conviction of treason. “Upon judgment of death for treason or
felony,” says Blackstone, “a man shall be said to be attainted.”[17]
Such judgment, which is, of course, a criminal proceeding, cannot,
under our Constitution, work corruption of blood; which means that it
cannot create obstruction or incapacity in the blood to prevent an
innocent heir from tracing title through the criminal, as was cruelly
done by the Common Law.

Nor shall such attainder work “forfeiture except during the life of
the person attainted.” If there be any question, it arises under these
words, which, it will be observed, are peculiarly technical. As the
term “attainder” is confined to “judgment of death,” this prohibition
is limited precisely to where that judgment is awarded; so that, if the
person is not adjudged to death, there is nothing in the Constitution
to forbid absolute forfeiture. This conclusion is irresistible. If
accepted, it disposes of the objection in all cases where there is no
judgment of death.

Even where the traitor is adjudged to death, there is good reason
to doubt if his estate in fee-simple, which is absolutely his own,
and alienable at his mere pleasure, may not be forfeited. It is
admitted by Senators that the words of the Constitution do not forbid
the forfeiture of the personal estate, which in the present days of
commerce is usually much larger than the real estate, although to an
unprofessional mind these words are as applicable to one as to the
other; so that a person attainted of treason would forfeit all his
personal estate, of every name and nature, no matter what its amount,
even if he did not forfeit his real estate. But since an estate in
fee-simple belongs absolutely to the owner, and is in all respects
subject to his disposition, there seems no reason for its exemption
which is not equally applicable to personal property. The claim of
the family is as strong in one case as in the other. And if we take
counsel of analogy, we find ourselves led in the same direction. It
is difficult to say, that, in a case of treason, there can be any
limitation to the amount of fine imposed; so that in sweeping extent
it may take from the criminal all his estate, real and personal. And,
secondly, it is very clear that the prohibition in the Constitution,
whatever it be, is confined to “attainder of treason,” and not,
therefore, applicable to a judgment for felony, which at the Common
Law worked forfeiture of all estate, real and personal; so that under
the Constitution such forfeiture for felony can be now maintained.
But assuming the Constitution applicable to treason where there is
no judgment of death, it is only reasonable to suppose that this
prohibition is applicable _exclusively to that posthumous forfeiture
depending upon corruption of blood_; and here the rule is sustained by
intrinsic justice. But all present estate, real as well as personal,
actually belonging to the traitor, is forfeited.

Not doubting the intrinsic justice of this rule, I am sustained by
the authority of Mr. Hallam, who, in a note to his invaluable History
of Literature, after declaring, that, according to the principle of
Grotius, the English law of forfeiture in high treason is just, being
part of the direct punishment of the guilty, but that of attainder or
corruption of blood is unjust, being an infliction on the innocent
alone, stops to say:--

“I incline to concur in this distinction, and think it at
least plausible, though it was seldom or never taken in the
discussions concerning those two laws. Confiscation is no more
unjust towards the posterity of an offender than fine, from
which, of course, it only differs in degree.”[18]

An opinion from such an authority is entitled to much weight in
determining the proper signification of doubtful words.

This interpretation is helped by another suggestion, which supposes
the comma in the text of the Constitution misplaced, and that, instead
of being after “corruption of blood,” it should be after “forfeiture,”
separating it from the words “except during the life of the person
attainted,” and making them refer to the time when the attainder
takes place, rather than to the length of time for which the estate
is forfeited. Thus does this much debated clause simply operate to
forbid forfeiture when not pronounced “during the life of the person
attainted.” In other words, the forfeiture cannot be pronounced against
a dead man, or the children of a dead man, and this is all.

Amidst the confusion in which this clause is involved, you cannot
expect that it will be a strong restraint upon any exercise of power
under the Constitution which otherwise seems rational and just. But,
whatever its signification, it has no bearing on our rights against
enemies. Bear this in mind. Criminals only, and not enemies, can take
advantage of it.

* * * * *

Such, Mr. President, are the provisions or principles of Constitutional
Law controlling us in the exercise of rights against criminals. If any
bill or proposition, penal in character, having for its object simply
punishment, and ancillary to the administration of justice, violates
any of these safeguards, it is not constitutional. Therefore do I admit
that the bill of the Committee, and every other bill now before the
Senate, so far as they assume to exercise the Rights of Sovereignty
in contradistinction to the Rights of War, must be in conformity with
these provisions or principles.

* * * * *

But the Senator from Vermont [Mr. COLLAMER], in his ingenious speech,
to which we all listened with so much interest, was truly festive in
allusion to certain proceedings much discussed in this debate. The
Senator did not like proceedings _in rem_, although I do not know that
he positively objected to them as unconstitutional. It is difficult to
imagine any such objection. Assuming that criminals cannot be reached
to be punished _personally_, or that they have fled, the Senator from
Illinois [Mr. TRUMBULL], and also the Senator from New York [Mr.
HARRIS], propose to reach them through their property,--or, adopting
technical language, instead of proceedings _in personam_, which must
fail from want of jurisdiction, propose proceedings _in rem_. Such
proceedings may not be of familiar resort, since, happily, an occasion
like the present has never before occurred among us; but they are
strictly in conformity with established precedents, and also with the
principles by which these precedents are sustained.

Nobody can forget that smuggled goods are liable to confiscation by
proceedings _in rem_. This is a familiar instance. The calendar of our
District Courts is crowded with these cases, where the United States
are plaintiff, and some inanimate thing, an article of property, is
defendant. Such, also, are proceedings against a ship engaged in the
slave-trade. Of course, by principles of the Common Law, a conviction
is necessary to divest the offender’s title; but this rule is never
applied to forfeitures created by statute. It is clear that the same
sovereignty which creates the forfeiture may determine the proceedings
by which it shall be ascertained. If, therefore, it be constitutional
to direct the forfeiture of rebel property, it is constitutional to
authorize proceedings _in rem_ against it, according to established
practice. Such proceedings constitute “due process of law,” well known
in our courts, familiar to the English Exchequer, and having the
sanction of the ancient Roman jurisprudence. If any authority were
needed for this statement, it is found in the judgment of the Supreme
Court of the United States in the case of the _Palmyra_, where it is
said:--

“Many cases exist where there is both a forfeiture _in rem_ and
a personal penalty. But in neither class of cases has it ever
been decided that the prosecutions were dependent upon each
other; but the practice has been, and so this Court understand
the law to be, that the proceeding _in rem_ stands independent
of, and wholly unaffected by, any criminal proceeding _in
personam_.”[19]

The reason for proceedings _in rem_ is, doubtless, that _the thing_ is
in a certain sense an offender, or at least has coöperated with the
offender,--as a ship in the slave-trade. But the same reason prevails,
although perhaps to less extent, in proceedings against rebel property,
which, if not an offender, has at least coöperated with the offender
hardly less than the ship in the slave-trade. Through his property the
traitor is enabled to devote himself to treason, and to follow its
accursed trade, waging war against his country; so that his property
may be considered guilty also. But the condemnation of the property
cannot be a bar to proceedings against the traitor himself, should he
fall within our power. The two are distinct, although identical in
their primary object, which is punishment.

Pardon me, Sir, if, dwelling on these things, I feel humbled that
the course of the debate imposes such necessity. Standing, as we do,
face to face with enemies striking at the life of the Republic, it is
painful to find ourselves subjected to all the embarrassments of a
criminal proceeding, as if this war were an indictment, and the army
and navy of the United States, now mustered on land and sea, were only
a _posse comitatus_. It should not be so. The Rebels have gone outside
of the Constitution to make war upon their country. It is for us to
pursue them as enemies outside of the Constitution, where they wickedly
place themselves, and where the Constitution concurs in placing them
also. So doing, we simply obey the Constitution, and act in all
respects constitutionally.

II.

And this brings me to the second chief head of inquiry, not less
important than the first: _What are the Rights against Enemies which
Congress may exercise in War?_

Clearly the United States may exercise all the Rights of War which
according to International Law belong to independent states. In
affirming this proposition, I waive for the present all question
whether these rights are to be exercised by Congress or by the
President. It is sufficient that every nation has in this respect
perfect equality; nor can any Rights of War accorded to other nations
be denied to the United States. Harsh and repulsive as these rights
unquestionably are, they are derived from the overruling, instinctive
laws of self-defence, common to nations as to individuals. Every
community having the form and character of sovereignty has a right
to national life, and in defence of such life may put forth all
its energies. Any other principle would leave it the wretched prey
of wicked men, abroad or at home. In vain you accord the rights
of sovereignty, if you despoil it of other rights without which
sovereignty is only a name. “I think, therefore I am,” was the
sententious utterance by which the first of modern philosophers
demonstrated personal existence. “I am, therefore I have rights,” is
the declaration of every sovereignty, when its existence is assailed.

Pardon me, if I interpose again to remind you of the essential
difference between these rights and those others just considered.
Though incident to sovereignty, they are not to be confounded with
those peaceful rights which are all exhausted in a penal statute within
the limitations of the Constitution. The difference between a judge and
a general, between the halter of the executioner and the sword of the
soldier, between the open palm and the clenched fist, is not greater
than that between these two classes of rights. They are different in
origin, different in extent, and different in object.

I rejoice to believe that civilization has already done much to
mitigate the Rights of War; and it is among long cherished visions,
which present events cannot make me renounce, that the time is coming
when all these rights will be further softened to the mood of permanent
peace. Though in the lapse of generations changed in many things,
especially as regards non-combatants and private property on land,
these rights still exist under the sanction of the Law of Nations, to
be claimed whenever war prevails. It is absurd to accord the right to
do a thing without according the means necessary to the end. And since
war, which is nothing less than organized force, is permitted, all the
means to its effective prosecution are permitted also, tempered always
by that humanity which strengthens while it charms.

I begin this inquiry by putting aside all Rights of War against
persons. In battle, persons are slain or captured, and, if captured,
detained as prisoners till the close of the war, unless previously
released by exchange or clemency. But these rights do not enter into
the present discussion, which concerns property only, and not persons.
From the nature of the case, it is only against property, or what is
claimed as such, that confiscation is directed. Therefore I say nothing
of persons, nor shall I consider any question of personal rights.
According to the Rights of War, property, although inanimate, shares
the guilt of its owner. Like him, it is criminal, and may be prosecuted
to condemnation in tribunals constituted for the purpose, without any
of those immunities claimed by persons accused of crime. It is _Rights
of War against the property of an enemy_ which I now consider.

If we resort to the earlier authorities, not excepting Grotius himself,
we find these rights stated most austerely. I shall not go back to any
such statement, but content myself with one of later date. You may find
it harsh; but here it is.

“Since this is the very condition of war, that enemies are
despoiled of all right and proscribed, it stands to reason that
whatever property of an enemy is found in his enemy’s country
changes its owner and goes to the treasury. It is customary,
moreover, in almost every declaration of war, to ordain that
goods of the enemy, as well those found among us as those
taken in war, be confiscated.… Pursuant to the mere Right of
War, even immovables could be sold and their price turned
into the treasury, as is the practice in regard to movables;
but throughout almost all Europe only a register is made of
immovables, in order that during the war the treasury may
receive their rents and profits, but at the termination of the
war the immovables themselves are by treaty restored to the
former owners.”[20]

These are the words of the eminent Dutch publicist, Bynkershoek, in
the first half of the last century. In adducing them now I present
them as adopted by Mr. Jefferson, in his remarkable answer to the note
of the British minister at Philadelphia on the confiscations of the
American Revolution. There are no words of greater weight in any writer
on the Law of Nations. But Mr. Jefferson did not content himself with
quotation. In the same state paper he thus declares unquestionable
rights:--

“It cannot be denied that the state of war strictly permits a
nation to seize the property of its enemies _found within its
own limits or taken in war_, and in whatever form it exists,
whether in action or possession.”[21]

This sententious statement is under date of 1792, and, when we consider
the circumstances which called it forth, may be accepted as American
doctrine. But even in our own day, since the beginning of the present
war, the same principle has been stated yet more sententiously in
another quarter. The Lord Advocate of Scotland, in the British House of
Commons, as late as 17th March of the present year, declared:--

“The honorable gentleman spoke as if it was no principle of war
that private rights should suffer at the hands of the adverse
belligerent. But that was the true principle of war. If war was
not to be defined--as it very nearly might be--as a denial of
the rights of private property to the enemy, that denial was
certainly one of the essential ingredients in it.”[22]

In quoting these authorities, which are general in their bearing, I do
not stop to consider their modification according to the discretion
of the belligerent power. I accept them as the starting-point in the
present inquiry, and assume that by the Rights of War enemy property
may be taken. But rights with regard to such property are modified by
the _locality_ of the property; and this consideration makes it proper
to consider them under two heads: _first_, rights with regard to enemy
property actually within the national jurisdiction; and, _secondly_,
rights with regard to enemy property actually outside the national
jurisdiction. It is easy to see, that, in the present war, rights
against enemy property actually outside the national jurisdiction
must exist _a fortiori_ against such property actually within the
jurisdiction. But, for the sake of clearness, I shall speak of them
separately.

* * * * *

_First._ I begin with the Rights of War over enemy property actually
within the national jurisdiction. In stating the general rule, I adopt
the language of a recent English authority.

“Although there have been so many conventions granting
exemption from the liabilities resulting from a state of
war, the right to seize the property of enemies found in our
territory when war breaks out remains indisputable, according
to the Law of Nations, wherever there is no such special
convention. All jurists, including the most recent, such as De
Martens and Klüber, agree in this decision.”[23]

This statement is general, but unquestionable even in its rigor.
For the sake of clearness and accuracy it must be considered in its
application to different kinds of property.

1. It is undeniable, that, in generality, the rule must embrace real
property, or, as termed by the Roman Law and the Continental systems
of jurisprudence, _immovables_; but so important an authority as
Vattel excepts this species of property, for the reason, that, being
acquired by consent of the sovereign, it is as if it belonged to
his own subjects.[24] But personal property is also under the same
safeguard, and yet it is not embraced within the exception. If such,
indeed, be the reason for the exception of real property, _it loses
all applicability where the property belongs to an enemy who began
by breaking faith on his side_. Surely, whatever the immunity of
an ordinary enemy, it is difficult to see how a rebel enemy, whose
hostility is bad faith in arms, can plead any safeguard. _Cessante
ratione, cessat et ipsa lex_, is an approved maxim of the law; and
since with us the reason of Vattel does not exist, the exception which
he propounds need not be recognized, to the disparagement of the
general rule.

2. The rule is necessarily applicable to all personal property, or,
as it is otherwise called, _movables_. On this head there is hardly
a dissenting voice, while the Supreme Court of the United States, in
a case constantly cited in this debate, has solemnly affirmed it. I
refer to _Brown_ v. _United States_,[25] where the broad principle is
assumed that war gives to the sovereign full right to confiscate the
property of the enemy, wherever found, and that the mitigations of the
rule, derived from modern civilization, may affect the exercise of the
right, but cannot impair the right itself. Goods of the enemy actually
in the country, and all vessels and cargoes afloat in our ports, at
the commencement of hostilities, were declared liable to confiscation.
In England, it is the constant usage, under the name of “Droits of
Admiralty,” to seize and condemn property of an enemy in its ports at
the breaking out of hostilities.[26] But this was not followed in the
Crimean War, although the claim itself has never been abandoned.

3. The rule, in strictness, also embraces private debts due to an
enemy. Although justly obnoxious to the charge of harshness, and
uncongenial with an age of universal commerce, this application
is recognized by the judicial authorities of the United States.
Between debts contracted under faith of laws and property acquired
under faith of the same laws reason draws no distinction; and the
right of the sovereign to confiscate debts is precisely the same
with the right to confiscate other property within the country on
the breaking out of war. Both, it is said, require some special act
expressing the sovereign will, and both depend less on any flexible
rule of International Law than on paramount political considerations,
which International Law will not control. Of course, just so far
as slaves are regarded as property, or as bound to service or
labor, they cannot constitute an exception to this rule, while the
political considerations entering so largely into its application
have with regard to them commanding force. In their case, by natural
metamorphosis, confiscation becomes emancipation.

Such are recognized Rights of War touching enemy property within the
national jurisdiction.

* * * * *

_Secondly._ The same broad rule with which I began may be stated
touching enemy property beyond the national jurisdiction, subject,
of course, to mitigation from usage, policy, and humanity, but still
existing, to be employed in the discretion of the belligerent power. It
may be illustrated by different classes of cases.

1. Public property of all kinds belonging to an enemy,--that is,
property of the government or prince,--including lands, forests,
fortresses, munitions of war, movables,--is all subject to seizure
and appropriation by the conqueror, who may transfer the same by
valid title, substituting himself, in this respect, for the displaced
government or prince. It is obvious that in the case of immovables the
title is finally assured only by the establishment of peace, while
in the case of movables it is complete from the moment the property
comes within the firm possession of the captor so as to be alienated
indefeasibly. In harmony with the military prepossessions of ancient
Rome, such title was considered the best to be had, and its symbol was
a spear.

2. Private property of an enemy at sea, or afloat in port, is
indiscriminately liable to capture and confiscation; but the title is
assured only by condemnation in a competent court of prize.

3. While private property of an enemy on land, according to modern
practice, is exempt from seizure simply as private property, yet
it is exposed to seizure in certain specified cases. Indeed, it is
more correct to say, with the excellent Manning, that it “is still
considered as liable to seizure,” under circumstances constituting in
themselves a necessity, of which the conqueror is judge.[27] It need
not be added that this extraordinary power must be so used as not to
assume the character of spoliation. It must have an object essential to
the conduct of the war. But, with such object, it cannot be questioned.
The obvious reason for exemption is, that a private individual is not
personally responsible, as the government or prince. _But every rebel
is personally responsible._

4. Private property of an enemy on land may be taken as a penalty for
the illegal acts of individuals, or of the community to which they
belong. The exercise of this right is vindicated only by peculiar
circumstances; but it is clearly among the recognized agencies of war,
and it is easy to imagine that at times it may be important, especially
in dealing with a dishonest rebellion.

5. Private property of an enemy on land may be taken for contributions
to support the war. This has been done in times past on a large scale.
Napoleon adopted the rule that war should support itself. Upon the
invasion of Mexico by the armies of the United States, in 1846, the
commanding generals were at first instructed to abstain from taking
private property without purchase at a fair price; but subsequent
instructions were of a severer character. It was declared by Mr.
Marcy, at the time Secretary of War, that an invading army had the
unquestionable right to draw supplies from the enemy without paying for
them, and to require contributions for its support, and to make the
enemy feel the weight of the war.[28] Such contributions are sometimes
called “requisitions,” and a German writer on the Law of Nations says
that it was Washington who “invented the expression and the thing.”[29]
Possibly the expression; but the thing is as old as war.

6. Private property of an enemy on land may be taken on the field of
battle, in operations of siege, or the storming of a place refusing
to capitulate. This passes under the offensive name of “booty” or
“loot.” In the late capture of the imperial palace of Pekin by the
allied forces of France and England, this right was illustrated by the
surrender of its contents, including silks, porcelain, and furniture,
to the lawless cupidity of an excited soldiery.

7. Pretended property of an enemy in slaves may unquestionably
be taken, and, when taken, will of course be at the disposal of
the captor. If slaves are regarded as property, then will their
confiscation come precisely within the rule already stated. But, since
slaves are men, there is still another rule of public law applicable
to them. It is clear, that, where there is an intestine division in
an enemy country, we may take advantage of it, according to Halleck,
in his recent work on International Law, “without scruple.”[30] But
Slavery is more than an intestine division; it is a constant state of
war. The ancient Scythians said to Alexander: “Between the master and
slave no friendship exists; even in peace the Rights of War are still
preserved.”[31] Giving freedom to slaves, a nation in war simply takes
advantage of the actual condition of things. But there is another
vindication of this right, which I prefer to present in the language of
Vattel. After declaring that “in conscience and by the laws of equity”
we may be obliged to restore “booty” recovered from an enemy who had
taken it in unjust war, this humane publicist proceeds as follows.

“The obligation is more certain and more extensive with regard
to a people whom our enemy has unjustly oppressed. For a
people thus spoiled of their liberty never renounce the hope
of recovering it. If they have not voluntarily incorporated
themselves with the state by which they have been subdued, if
they have not freely aided her in the war against us, _we ought
certainly so to use our victory as not merely to give them a
new master, but to break their chains_. To deliver an oppressed
people is a noble fruit of victory; it is a valuable advantage
gained thus to acquire a faithful friend.”[32]

These are not the words of a visionary, or of a speculator, or of an
agitator, but of a publicist, an acknowledged authority 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 be
declared free, under two acknowledged rules: _first_, of self-interest,
to procure an ally; and, _secondly_, of conscience and equity, to do an
act of justice ennobling victory.

* * * * *

Such, Sir, are acknowledged Rights of War with regard to enemy
property, whether within or beyond our territorial jurisdiction. I do
little more than state these rights, without stopping to comment. If
they seem harsh, it is because war in essential character is harsh. It
is sufficient for our present purpose that they exist.

* * * * *

Of course, all these rights belong to the United States. There is
not one of them which can be denied. They are ours under that great
title of Independence by which our place was assured in the Family
of Nations. Dormant in peace, they are aroused into activity only by
the breath of war, when they all place themselves at our bidding, to
be employed at our own time, in our own way, and according to our own
discretion, subject only to that enlightened public opinion which now
rules the civilized world.

Belonging to the United States by virtue of International Law, and
being essential to self-defence, they are naturally deposited with the
_supreme power_, which holds the issues of peace and war. Doubtless
there are Rights of War, embracing confiscation, contribution, and
liberation, to be exercised by any commanding general in the field,
or to be ordered by the President, according to the exigency. Mr.
Marcy was not ignorant of his duty, when, by instructions from
Washington, in the name of the President, he directed the levy of
contributions in Mexico. In European countries all these Rights of
War which I have reviewed to-day are deposited with the executive
alone,--as in England with the Queen in Council, and in France and
Russia with the Emperor; but in the United States they are deposited
with the legislative branch, being the President, Senate, and House
of Representatives, whose joint action becomes the supreme law of the
land. The Constitution is not silent on this question. It expressly
provides that Congress shall have power, first, “to declare war,” and
thus set in motion all the Rights of War; secondly, “to grant letters
of marque and reprisal,” being two special agencies of war; thirdly,
“to make rules concerning captures on land and water,” which power of
itself embraces the whole field of confiscation, contribution, and
liberation; fourthly, “to raise and support armies,” which power, of
course, comprehends all means for this purpose known to the Rights
of War; fifthly, “to provide and maintain a navy,” plainly according
to the Rights of War; sixthly, “to make rules for the government and
regulation of the land and naval forces,” another power involving
confiscation, contribution, and liberation; and, seventhly, “to
provide for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions,” a power which again
sets in motion all the Rights of War. But, as if to leave nothing
undone, the Constitution further empowers Congress “to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers.” In pursuance of these powers, Congress has already
enacted upwards of one hundred articles of war for the government of
the army, one of which provides for the security of public stores taken
from the enemy. It has also sanctioned the blockade of the Rebel ports
according to International Law. And only at the present session we
have enacted an additional article to regulate the conduct of officers
and men towards slaves seeking shelter in camp. Proceeding further on
the present occasion, it will act in harmony with its own precedents,
as well as with its declared powers, according to the very words of
the Constitution. Language cannot be broader. Under its comprehensive
scope there is nothing essential to the prosecution of the war, its
conduct, its support, or its success,--yes, Sir, there can be nothing
essential to its success, which is not positively within the province
of Congress. There is not one of the Rights of War which Congress may
not invoke. There is not a single weapon in its terrible arsenal which
Congress may not grasp.

* * * * *

Such are indubitable powers of Congress. It is not questioned that
these may all be employed against a public enemy; but there are
Senators who strangely hesitate to employ them against that worst enemy
of all, who to hostility adds treason, and teaches his country

“How sharper than a serpent’s tooth it is
To have a thankless child.”

The rebel in arms is an enemy, and something more; nor is there any
Right of War which may not be employed against him in its extremest
rigor. In appealing to war, he has voluntarily renounced all safeguards
of the Constitution, and put himself beyond its pale. In ranging
himself among enemies, he has broken faith so as to lose completely
all immunity from the strictest penalties of war. As an enemy, he must
be encountered; nor can our army be delayed in the exercise of the
Rights of War by any misapplied questions of _ex post facto_, bills of
attainder, attainder of treason, due process of law, or exemption from
forfeiture. If we may shoot rebel enemies in battle, if we may shut
them up in fortresses or prisons, if we may bombard their forts, if we
may occupy their fields, if we may appropriate their crops, if we may
blockade their ports, if we may seize their vessels, if we may capture
their cities, it is vain to say that we may not exercise against them
the other associate prerogatives of war. Nor can any technical question
of constitutional rights be interposed in one case more than another.
Every prerogative of confiscation, requisition, or liberation known in
war may be exercised against rebels in arms precisely as against public
enemies. Ours are belligerent rights to the fullest extent.

Sir, the case is strong. The Rebels are not only criminals, they
are also enemies, whose property is actually within the territorial
jurisdiction of the United States; so that, according to the Supreme
Court, it only remains for Congress to declare the Rights of War to be
exercised against them. The case of Brown,[33] so often cited in this
debate, affirms that enemy property actually within our territorial
jurisdiction can be seized only by virtue of an Act of Congress, and
recognizes the complete liability of all such property, when actually
within such territorial jurisdiction. It is therefore, in all respects,
a binding authority, precisely applicable; so that Senators who would
impair its force must deny either that the Rebels are enemies or that
their property is actually within the territorial jurisdiction of the
United States. Assuming that they are enemies, and that their property
is actually within our territorial jurisdiction, the power of Congress
is complete; and it is not to be confounded with that of a commanding
general in the field, or of the President as commander-in-chief of the
armies.

Pardon me, if I dwell on one point with regard to the property of
rebels in arms by which it is distinguishable from the private property
of enemies in international war. _Every rebel in arms is directly
responsible for his conduct_, as in international war the government or
prince is directly responsible; so that on principle he can claim no
exemption from any penalty of war. And since Public Law is founded on
reason, it follows that the rule subjecting to seizure and forfeiture
all property, real as well as personal, of the hostile government or
prince should be applied to all property, real and personal, of the
rebel in arms. It is impossible for him to claim the immunity conceded
generally to private property of an enemy in international war, and
also conceded generally to land of an enemy within our territorial
jurisdiction. For the rebel in arms there is no just exemption.

* * * * *

When claiming these powers for Congress, it must also be stated
that there is a limitation of time with regard to their exercise.
Whatever is done against the Rebels in our character as belligerents
under the Rights of War must be done during war, and not after its
close. Naturally the Rights of War end with the war, except in
those consequences which have become fixed during the war. With the
establishment of peace the Rights of Peace resume sway, and all
proceedings are according to the prescribed forms of the Constitution.
Instead of laws silenced by arms, there are arms submissive to laws.
Instead of courts martial or military proceedings, there are the
ordinary courts of justice with all constitutional safeguards. If this
change needed illustration, it would be found in a memorable passage
of French history. Marshal Ney, who had deserted Louis the Eighteenth
to welcome Napoleon from Elba, was, after the capitulation of Paris,
handed over to a council of war for trial; but the council, composed
of marshals of France, declared itself incompetent, since the case
involved treason, and the accused was carried before the Chamber of
Peers, of which he was a member, according to the requirements of the
French Charter. His condemnation and execution have been indignantly
criticized, but the form of trial was a homage to the pacification
which had been proclaimed. Therefore let it be borne in mind that
all proceedings founded on the Rights of War will expire, when the
Constitution is again established throughout the country. They are
temporary and incidental, in order to secure that blessed peace which
we all seek.

So completely are these rights distinguished from ordinary municipal
proceedings against crime, that they are administered by tribunals
constituted for the purpose, with well-known proceedings of their
own. Courts of Prize have a fixed place in the judicial system of
the United States, and their jurisdiction excludes that of municipal
tribunals, so that no action can be brought in a court of Common Law
on account of a seizure _jure belli_. It is their province to hear
all cases of prize or capture,--in short, every case of property
arising under the Rights of War; and although practically these cases
are chiefly maritime, yet the jurisdiction of such courts is held to
embrace hostile seizures on shore.[34] The hearing is by the court
alone, without a jury, substantially according to forms derived from
the Roman Law; and the ordinary judgment is against the thing captured,
or _in rem_, pronouncing its condemnation and distribution. In every
case of prize or capture, involving a question of property, and not
of crime, these proceedings constitute “due process of law,” so as
to be completely effective under the Constitution, and, according to
acknowledged principles, they supersede the jurisdiction of all mere
municipal tribunals.

Among the few cases illustrating this exclusive jurisdiction in matters
of capture and prize on land is one which arose from the exercise
of military power in a conquered province in India, and was at last
considered and decided by the Privy Council in England, after most
elaborate argument by the most eminent barristers of the time. The
facts are few. Upon the conquest of Poonah, in 1817, Mr. Mountstuart
Elphinstone, perhaps the most finished man, and of completest
gentleness, who ever exercised power in British India, was appointed
“sole commissioner for the settlement of the territory conquered,
with authority over all the civil and military officers employed in
it.” In the discharge of his dictatorial functions, he proceeded to
appoint a “provisional collector and magistrate of the city of Poonah
and the adjacent country,” whom he instructed “to deprive the enemy
of his resources, and in this and all other points to make everything
subservient to the conduct of the war.” After indicating certain crimes
to be treated with summary punishment, he proceeded to confer plenary
powers, saying: “All other crimes you will investigate according
to the forms of justice usual in the country, modified as you may
think expedient; and in all cases you will endeavor to enforce the
existing laws and customs, _unless where they are clearly repugnant to
reason and natural equity_.” Under these instructions the provisional
collector seized several bags of gold, in the house of a prominent
enemy. In an action before the Supreme Court of Bombay for the value
of this treasure, and of a quantity of jewels and shawls taken by the
military, judgment was given for the claimant. But this was overruled
by the Court of Appeals in England, on the ground, that, in the actual
state of warfare at that time, there was no jurisdiction over a
question of prize and capture in an ordinary municipal court. At the
bar it was argued:--

“No country can ever be thoroughly brought under subjection, if
it is to be held, that, where there has been a conquest and no
capitulation, the mere publication of a proclamation, desiring
the people to be quiet, and telling them what means would be
resorted to, if they were not so, so far reduces the country
under the civil rule, that the army loses its control, and the
municipal courts acquire altogether jurisdiction, so that every
action of the officers in the direction of military affairs is
liable to their cognizance.”[35]

In giving judgment, Lord Tenterden, at the time Chief Justice of
England, stated the conclusion, as follows.

“We think the proper character of the transaction was that
of _hostile seizure_, made, if not _flagrante_, yet _nondum
cessante bello_, regard being had both to the time, the place,
and the person, and consequently that the municipal court had
no jurisdiction to adjudge upon the subject, but that, if
anything was done amiss, recourse could only be had to the
Government for redress.”[36]

This is an important and leading authority, interesting in all
respects; but I adduce it now only to show that municipal courts cannot
properly take cognizance of questions of property arising under the
Rights of War. This established principle testifies to the essential
difference between _rights against criminals_ and _rights against
enemies_. There is a different tribunal for each claim.

* * * * *

I have said what I have to say on the law of this matter, bringing it
to the standard of the Constitution and of International Law, and I
have exhibited the powers of Congress in their two fountains. It is
for you 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 war, or, better still, the penalties
of rebellion and the triumphs of war.

* * * * *

It now remains to borrow such instruction as we can from the _history_
of kindred measures. And here I am not tempted to depart from that
frankness which is with me an instinct and a study. If there be
anything in the past to serve as warning, I shall not keep it back,
although I ask you to consider carefully the true value of these
instances, and how far they are a lesson to us. If there be any course
to which I incline, it will be abandoned at once, when shown not to be
for the highest good. I have no theories to maintain at the expense of
my country or of truth.

* * * * *

Confiscation is hardly less ancient than national life. It began
with history. It appears in the Scriptures, where Ahab took the
vineyard of Naboth, and David gave away the goods of a confederate of
Absalom. The Senator from Wisconsin [Mr. DOOLITTLE] reminded us that
it prevailed among the Persians and Macedonians. In the better days
of the Roman Republic it was little known; but it appeared with the
vengeful proscriptions of Sylla; and Cæsar himself, always forbearing,
yet, while striving to mitigate the penalties of the Catilinarian
conspirators, moved a confiscation of all their property to the public
treasury. It flourished under the Emperors, who made it alternately
the instrument of tyranny and of cupidity. But there were virtuous
Emperors, like Antoninus Pius, under whom the goods of a convict were
abandoned to his children, and like Trajan, under whom confiscation
was unknown. Among the reforms of Justinian, in his immortal revision
of the law, this penalty disappeared, except in cases of treason.[37]
But these instances illustrate confiscation only as punishment.
Throughout Roman history it had been inseparable from war. The auction
was an incident of the camp. It was a distribution of bounty lands
among the soldiers of Octavius, after the establishment of his power,
that drove Virgil from his paternal acres to seek imperial favor at
Rome.

In modern times confiscation became a constant instrument of
government, both in punishment and in war. It was an essential incident
to the feudal system, which was in itself a form of government.
Ruthlessly exercised, sometimes against individuals and sometimes
against whole classes, it was converted into an engine of vengeance
and robbery, which spared neither genius nor numbers. In Florence it
was directed against Dante, and in Holland against Grotius, while in
early England it was the power by which William of Normandy despoiled
the Saxons of their lands and parcelled them among his followers. In
Germany, during the period of theological conflict which darkened
that great country, it was often used against Protestants, and was at
one time menaced on a gigantic scale. The Papal Nuncio sought nothing
less than the confiscation of all the goods of heretics. Spain was
not less intolerant than Germany, and the story of the Moors and the
Jews, stripped of their possessions and sent forth as wanderers,
protests against such injustice. In early France confiscation was
not idle, although in one instance it received an application which
modern criticism will not reject, when, by special ordinance, _rebels_
were declared to be _enemies_, and their property was subjected to
confiscation as Prize of War.

By the law of England, it was the inseparable incident of treason,
flourishing always in Ireland, where rebellion was chronic, and showing
itself in Great Britain whenever rebellion occurred. But it was simply
as part of punishment, precisely as the traitor was drawn and quartered
and his blood corrupted, all according to law. The scaffold turned over
to the Government all the estate of its victims. But there is another
instance in English history entirely different in character, where
Henry the Eighth, in warfare with the Catholic Church, did not hesitate
to despoil the monasteries of their great possessions, with a clear
annual revenue of one hundred and thirty-one thousand six hundred and
seven pounds, or, according to Bishop Burnet, ten times that sum “in
true value.”[38] This property, so enormous in those days, wrested at
once from the mortmain of the Church, testifies to the boldness, if not
the policy, with which the power was wielded.

It is in modern France that confiscation has played its greatest part,
and been the most formidable weapon, whether of punishment or of war.
At first abolished by the Revolution, as a relic of royal oppression,
it was at length adopted by the Revolution. Amidst the dangers menacing
the country, this sacrifice was pronounced essential to save it, and
successive laws were passed, beginning as early as November, 1789, by
which it was authorized. Never before in history was confiscation so
sweeping. It aroused at the time the eloquent indignation of Burke,
and still causes a sigh among all who think less of principles than
of privileges. From an official report to the First Consul, it appears
that before 1801 sales were authorized by the Government to the
fabulous amount of two thousand five hundred and fifty-five millions
of francs, or above five hundred millions of dollars, while still a
large mass, estimated at seven hundred million francs, of confiscated
property remained unsold.[39] The whole vast possessions of the Church
disappeared in this chasm.

Cruel as were many of the consequences, this confiscation must be
judged as part of the Revolution whose temper it shared; nor is it
easy to condemn anything but its excesses, unless you are ready to
say that the safety of France, torn by domestic foes and invaded from
abroad, was not worth securing, or that equality before the law,
which is now the most assured possession of that great nation, was
not worth obtaining. It was part of the broad scheme of Napoleon,
moved by politic generosity, to mitigate as far as possible the
operation of this promiscuous spoliation, especially by restraining
it, according to the principle of the bill which I have introduced,
to the most obnoxious persons,--although this sharp ruler knew too
well what was due to titles once fixed by Government to contemplate
any restoration of landed property already alienated. “There are,”
he exclaimed, in the Council of State, “above one hundred thousand
names on these unhappy lists: it is enough to turn one’s head.… _The
list must be reduced by three fourths of its number, to the names of
such as are known to be hostile to the Government._”[40] Hostility to
the Government constituted with him sufficient reason for continued
denial of all rights of property or citizenship. And so jealous was
he on this point, that, when he heard that some who were allowed to
enter upon their yet unalienated lands had proceeded to cut down the
forests, partly from necessity and partly to transfer funds abroad, he
interfered peremptorily, in words applicable to our present condition:
“We cannot allow the greatest enemies of the Republic, the defenders of
old prejudices, to recover their fortunes and despoil France.”[41] This
episode of history, so suggestive to us, will not be complete, if I do
not mention, that, through this policy of confiscation, France passed
from the hands of dominant proprietors, with extended possessions,
into the hands of those small farmers now constituting so important a
feature in its social and political life. Nor can I neglect to add,
that kindred in character, though involving no loss of property, was
the entire obliteration at the same time of the historic Provinces of
France, and the substitution of new divisions into Departments, with
new landmarks and new names, so that ancient landmarks and ancient
names, quickening so many prejudices, no longer served to separate the
people.

But this story is not yet ended. Accustomed to confiscation at
home, France did not hesitate to exercise it abroad, under the name
of contributions; nor was there anything her strong hand did not
appropriate,--sometimes, it might be, the precious treasures of Art,
paintings of Raffaelle, Titian, or Paul Potter, enshrined in foreign
museums, and sometimes the ornaments of churches, palaces, and streets.
Often in hard money were these contributions levied. For instance,
in 1807, Napoleon exacted from Prussia, with little more than five
million inhabitants, a war contribution of more than one hundred and
twenty millions of dollars; and in 1809, the same conqueror exacted
from Austria a like contribution of about fifty millions of dollars.
In kindred spirit, Davoust, one of his marshals, stationed at Hamburg,
levied upon that single commercial city, during the short term of
twelve months, contributions amounting to more than fifteen, or,
according to other accounts, twenty-five, millions of dollars. But the
day of reckoning came, when France, humbled at last, was constrained
to accept peace from the victorious allies encamped at Paris. The
paintings, the marbles, and the ornaments ravished from foreign
capitals were all taken back, while immense sums were exacted for
expenses of the war, and also for spoliations during the Revolution,
amounting in all to three hundred million dollars. Such is the lesson
of France.

And still later, actually in our day, the large possessions of the late
king, Louis Philippe, were confiscated by Louis Napoleon, while every
member of the Orléans family was compelled to dispose of his property
before the expiration of a year, under penalty of forfeiture and
confiscation. This harsh act had its origin in the assumed necessities
of self-defence, that this powerful family might be excluded from
France, not only in person, but in property also, and have no foothold
or influence there.

While it is easy to see that these interesting instances are only
slightly applicable to our country, yet I do not disown any suggestion
of caution or clemency they inculcate. Other instances in our own
history are more applicable. All are aware that during the Revolution
the property of Tories, loyalists, and refugees was confiscated; but
I doubt if Senators know the extent to which this was done, or the
animosity by which it was impelled. Out of many illustrations, I select
the early language of the patriot Hawley, of Massachusetts, in a letter
to Elbridge Gerry, under date of July 17, 1776. “Can we subsist,”
said this patriot, “did any state ever subsist, without exterminating
traitors?… It is amazingly wonderful, that, having no capital
punishment for our intestine enemies, we have not been utterly ruined
before now.”[42] The statutes of the time are most authentic testimony.
I hold in my hand a list, amounting to _eighty-eight_ in number, which
I have arranged according to States. Some are very severe, as may be
imagined from the titles, which I proceed to give; but they show,
beyond assertion or argument, how, under the exigencies of war for
National Independence, the power of confiscation was recognized and
employed. Each title is a witness.

1. _New Hampshire._--To confiscate estates of sundry persons
therein named. November 28, 1778.

2. _Massachusetts._--To prevent the return of certain persons
therein named, and others who had left that State, or either of
the United States, and joined the enemies thereof. 1778.

3. To confiscate the estates of certain notorious conspirators
against the government and liberties of the inhabitants of the
late Province, now State, of Massachusetts Bay. 1779.

4. For repealing two laws of the State, and for asserting the
rights of that free and sovereign Commonwealth to expel such
aliens as may be dangerous to the peace and good order of
government. March 24, 1784.

5. In addition to an Act made and passed March 24, 1784,
repealing two laws of this State. November 10, 1784.

6. _Rhode Island._--To confiscate and sequester estates, and
banish persons of certain descriptions. October, 1775.

7-13. To confiscate and sequester estates, and banish persons
of certain descriptions. February, March, May, June, July,
August, October, 1776.

14, 15. To confiscate and sequester estates, and banish persons
of certain descriptions. February, October, 1778.

16-20. To confiscate and sequester estates, and banish persons
of certain descriptions. February, May, August, September,
October, 1779.

21-23. To confiscate and sequester estates, and banish persons
of certain descriptions. July, September, October, 1780.

24, 25. To confiscate and sequester estates, and banish persons
of certain descriptions. January, May, 1781.

26-28. To confiscate and sequester estates, and banish persons
of certain descriptions. June, October, November, 1782.

29-32. To confiscate and sequester estates, and banish persons
of certain descriptions. February, May, June, October, 1783.

33. To send out of the State N. Spink and John Underwood, who
had formerly joined the enemy, and were returned into Rhode
Island. May 27, 1783.

34. To send William Young, theretofore banished, out of the
State, and forbidden to return at his peril. June 8, 1783.

35. Allowing William Brenton, late an absentee, to visit his
family for one week, then sent away, not to return. June 12,
1783.

36. To banish S. Knowles (whose estate had been forfeited), on
pain of death, if he return. October, 1783.

37. _Connecticut._--Directing certain confiscated estates to be
sold.

38. _New York._--For the forfeiture and sales of the estates of
persons who have adhered to the enemies of the State. October
22, 1779.

39. For the immediate sale of part of the confiscated estates.
March 10, 1780.

40. Approving the Act of Congress relative to the finances of
the United States, and making provision for redeeming that
State’s proportion of bills of credit to be emitted. June 15,
1780.

41. To procure a sum in specie, for the purpose of redeeming a
portion of the bills emitted, &c. October 7, 1780.

42. For granting a more effectual relief in cases of certain
trespasses. March 17, 1783.

43. For suspending the prosecutions therein mentioned. March
21, 1783.

44. To amend and extend certain Acts. May 4, 1784.

45. To preserve the freedom and independence of the State, &c.
May 12, 1784.

46. _New Jersey._--To punish traitors and disaffected persons.
October 4, 1776.

47. For taking charge of and leasing the real estates, and
for forfeiting personal estates, of certain fugitives and
offenders. April 18, 1778.

48. For forfeiting to and vesting in the State the real estates
of certain fugitives and offenders. December 11, 1778.

49. Supplemental to the Act to punish traitors and disaffected
persons. October 3, 1782.

50. To appropriate a certain forfeited estate. December 23,
1783.

51. _Pennsylvania._--For the attainder of divers traitors, and
for vesting their estates in the Commonwealth, if they render
not themselves by a certain day. March 6, 1778.

52. To attaint Henry Gordon, unless he surrender himself by
a given day, and the seizure of his estates by the agents of
forfeited estates confirmed. January 31, 1783.

53. _Delaware._--Declaring estates of certain persons
forfeited, and themselves incapable of being elected to any
office. February 5, 1778.

54. _Maryland._--For calling out of circulation the quota of
the State of the bills of credit issued by Congress. October,
1780.

55. To seize, confiscate, and appropriate all British property
within the State. October, 1780.

56. To appoint commissioners to preserve confiscated British
property. October, 1780.

57. To procure a loan, and for the sale of escheat lands and
the confiscated British property therein mentioned. October,
1780.

58. For the benefit of the children of Major Andrew Leitch.
June 15, 1782.

59. To vest certain powers in the Governor and Council.
November, 1785.

60. To empower the Governor and Council to compound with the
discoverers of British property, and for other purposes.
November, 1788.

61. _Virginia._--For sequestering British property, enabling
those indebted to British subjects to pay off such debts, &c.
October, 1777.

62. Concerning escheats and forfeitures from British subjects.
May, 1779.

63. For removal of seat of government. May, 1779.

64, 65. To amend the Act concerning escheats and forfeitures.
May, October, 1779.

66. To adjust and regulate pay and accounts of officers of
Virginia line. November, 1781.

67. For providing more effectual funds for redemption of
certificates. May, 1782.

68. Prohibiting the migration of certain persons to that
Commonwealth, &c. October, 1783.

69. To explain, amend, &c., the several Acts for the admission
of emigrants to the rights of citizenship, and prohibiting the
migration of certain persons to that Commonwealth. October,
1786.

70. _North Carolina._--For confiscating the property of
all such persons as are inimical to the United States, &c.
November, 1777.

71. To carry into effect the last mentioned act. January, 1779.

72. Directing the sale of confiscated property. October, 1784.

73. To describe and ascertain such persons as owed allegiance
to the State, and to impose certain disqualifications on
certain persons therein named. October, 1784.

74. To amend the last mentioned Act. November, 1785.

75. To secure and quiet in their possessions all such as have
or may purchase lands, goods, &c., sold or hereafter to be sold
by the commissioners of forfeited estates. December 29, 1785.

76. Act of pardon and oblivion. April, 1788.

77. _South Carolina._--For disposing of certain estates and
banishing certain persons therein mentioned. February 26, 1782.

78. To amend the last mentioned Act. March 16, 1783.

79. To vest land, late property of James Holmes, in certain
persons in trust for the benefit of a public school. August 15,
1783.

80. For restoring to certain persons their estates, and for
permitting the said persons to return, &c. March 26, 1784.

81. For amending and explaining the Confiscation Act. March 26,
1784.

82. To amend the Confiscation Act, and for other purposes
therein mentioned. March 22, 1786.

83. _Georgia._--For inflicting penalties on, and confiscating
the estates of, such persons as are therein declared guilty of
treason, &c. May 4, 1782.

84. To point out the mode for the recovery of property
unlawfully acquired under the British usurpation, and withheld
from the rightful owners, &c. February 17, 1783.

85. Releasing certain persons from their bargains, &c. July 29,
1783.

86. For ascertaining the rights of aliens, and pointing out a
mode for the admission of citizens. February 7, 1785.

87. To authorize the auditor to liquidate the demands of
such persons as have claims against the confiscated estates.
February 22, 1785.

88. To compel the settlement of public accounts, for inflicting
penalties, and for vesting auditor with certain powers.
February 10, 1787.[43]

Such is the array which illustrates the terrible earnestness of those
times. In their struggle for National Independence, our fathers did not
hesitate to employ all the acknowledged Rights of War; nor did they
higgle over questions of form with regard to enemies in arms against
them. To this extent, at least, we may be instructed by their example,
even if we discard their precedents.

In the negotiations for the acknowledgment of National Independence
these Acts were much considered. It does not appear, however, that
their legality was drawn into question, although, as is seen, they
exercised the double rights of sovereignty and of war. The British
Commissioner, Mr. Oswald, expresses himself, under date of November 4,
1782, as follows.

“You may remember, that, from the very first beginning of our
negotiation for settling a peace between Great Britain and
America, I insisted that you should positively stipulate for
the restoration of the property of all those persons, under
the denomination of the Loyalists or Refugees, who have taken
part with Great Britain in the present war: or, if the property
had been resold, and passed into such a variety of hands as
to render the restoration impracticable, (which you asserted
to be the case in many instances,) you should stipulate for a
compensation or indemnification to those persons adequate to
their losses.”[44]

The American Commissioners, John Adams, Benjamin Franklin, and John
Jay, declared in reply, that “the restoration of such of the estates
of the refugees as have been confiscated is impracticable, because
they were confiscated by laws of particular States, and in many
instances have passed by legal titles through several hands.” As to
the demand of compensation for these persons, the Commissioners said:
“We forbear enumerating our reasons for thinking it ill-founded.”[45]
In the course of the conference, and by way of reply or set-off, gross
instances were adduced of outrages by the British troops in “the
carrying off of goods from Boston, Philadelphia, and the Carolinas,
Georgia, Virginia, &c., and the burning of the towns.” Franklin
mentioned “the case of Philadelphia, and the carrying off of effects
there, even his own library.” Laurens added “the plunders in Carolina
of negroes, plate, &c.”[46] In a letter from Franklin to the British
Commissioner, under date of November 26, 1782, the pretension of the
loyalists was finally repelled in the plainest words.

“You may well remember, that, in the beginning of our
conferences, before the other Commissioners arrived, on
your mentioning to me a retribution for the loyalists whose
estates had been forfeited, … I gave it as my opinion and
advice, honestly and cordially, that, if a reconciliation was
intended, no mention should be made in our negotiations of
those people; for, they having done infinite mischief to our
properties, by wantonly burning and destroying farm-houses,
villages, and towns, if compensation for their losses were
insisted on, we should certainly exhibit against it an account
of all the ravages they had committed, which would necessarily
recall to view scenes of barbarity that must inflame, instead
of conciliating, and tend to perpetuate an enmity that we all
profess a desire of extinguishing.…

“Your ministers require that we should receive again into our
bosom those who have been our bitterest enemies, and restore
their properties who have destroyed ours,--and this while the
wounds they have given us are still bleeding. It is many years
since your nation expelled the Stuarts and their adherents,
and confiscated their estates. Much of your resentment against
them may by this time be abated; yet, if we should propose it,
and insist on it, as an article of our treaty with you, that
that family should be recalled and the forfeited estates of its
friends restored, would you think us serious in our professions
of earnestly desiring peace?

“I must repeat my opinion, that it is best for you to drop all
mention of the refugees.”[47]

But on this occasion there was a compromise. Instead of positive
stipulations in behalf of the loyalists, it was agreed in the treaty,
“that the Congress shall earnestly _recommend_ it to the Legislatures
of the respective States to provide for the restitution of all estates,
rights, and properties which have been confiscated, belonging to _real_
British subjects, and also of the estates, rights, and properties of
persons resident in districts in the possession of his Majesty’s arms,
_and who have not borne arms against the said United States_.”[48]
Thus, while in every other article of the treaty it was agreed that
certain things _shall be done_, here it was only agreed to _recommend_
that they shall be done; and even the recommendation of restitution
was confined to what are called “_real_ British subjects,” and others
“who have not borne arms against the United States,”--thus evidently
recognizing the liability of those who did not come within these two
exceptions.

After the adoption of our Constitution, this article came under
discussion between the United States and Great Britain, when Mr.
Jefferson, in the most elaborate diplomatic paper of his life, ably
vindicated the conduct of our Government. It was on this occasion
that he quoted the words of Bynkershoek, that “it stands to reason
that whatever property of an enemy is found in his enemy’s country
changes its owner and goes to the treasury, … even immovables, as
is the practice in regard to movables.”[49] And in the course of
his argument he distinctly asserts that “an Act of the Legislature
confiscating lands stands in place of _an office found_ in ordinary
cases,--and that, on the passage of the Act, as on the finding of the
office, the State stands _ipso facto_ possessed of the lands without
a formal entry. The confiscation, then, is complete by the passage of
the Act, both the title and possession being divested out of the former
proprietor and vested in the State.”[50]

This is strong language. Not only in our diplomacy, but also in our
courts, was the validity of these Acts upheld. Mr. Jefferson was
sustained by the Supreme Court of the United States in an early case
on the confiscation of British debts by Virginia,[51] where it was
declared that “a State may make what rules it pleases, and those rules
must necessarily have place within itself,”[52]--that “the right
to confiscate the property of enemies during war is derived from a
state of war, and is called the Rights of War,”[53]--and that “the
right acquired by war depends on the power of seizing the enemy’s
effects.”[54] The last remark has a subtle significance. But the whole
case was stated at the bar by John Marshall, afterwards our honored
Chief Justice, in words applicable to our own times.

“It has been conceded that independent nations have in general
the right of confiscation, and that Virginia at the time of
passing her law was an independent nation. But it is contended,
that, from the peculiar circumstances of the war, the citizens
of each of the contending nations having been members of the
same government, the general right of confiscation did not
apply, and ought not to be exercised. It is not, however,
necessary to show a parallel case in history, since it is
incumbent on those who wish to impair the sovereignty of
Virginia to establish on principle or precedent the justice
of their exception. _That State, being engaged in a war,
necessarily possessed the powers of war, and confiscation is
one of those powers, weakening the party against whom it is
employed, and strengthening the party that employs it._”[55]

In closing what I have to say of the confiscation bills of the
Revolution, I cannot disguise that they have been thought severe in
some cases beyond the acknowledged exigencies of the times; but,
admitting their severity, they testify none the less to those Rights of
War in which they had their origin.

* * * * *

Such, Sir, are examples of history, so far as I can gather them,
to guide on the present occasion. The embarrassment of Hercules is
constantly repeated. There are paths to avoid, as well as paths to
take; and it is for you to determine, under the lights of the past, how
your course shall be directed.

* * * * *

There are considerations of _policy_, and, I rejoice to believe, of
justice also, which furnish illumination such as cannot be found
in any other instances of history. If we go astray, it must be from
blindness.

In determining what powers to exercise, you will be guided to a certain
extent by the object you seek to accomplish. Do you seek really to
put down the Rebellion, and to tread it out forever, or do you seek
only the passage of a penal statute? Do you seek a new and decisive
weapon in the war our country is compelled to wage, or do you seek
nothing more than to punish a few rebels? Or, if the object you seek is
simply punishment, do you wish it to be sure and effective, or only in
name? Are you in earnest to strike this rebellion with all the force
sanctioned by the Rights of War, or do you refuse to use anything
beyond the peaceful process of Municipal Law? I put these questions
sincerely and kindly. You will answer them by your votes. If you are
not in earnest against the rebellion now arrayed in war, if you are
content _to seem_ without acting, _to seem_ without striking, in short,
_to seem_ rather than _to be_, you will pass a new penal statute, and
nothing more.

It is clear that such a statute will be of perfect inefficiency. It
will not produce even a moderate intimidation,--not so much as a Quaker
gun. With the provision in our Constitution applicable to jury trials
in criminal cases, it is obvious that throughout the whole Rebel
country there can be no conviction under such statute. Proceedings
would fail through the disagreement of the jury, while the efforts of
counsel would make every case an occasion of irritation. People talk
flippantly of the gallows as the certain doom of the Rebels. This is
a mistake. For weal or woe, the gallows is out of the question. It
is not possible as a punishment for this rebellion.[56] Nor would
any forfeiture or confiscation whatever be sanctioned by a jury in
the Rebel country. I think that in this judgment I do not err. But if
this be correct, surely we should take all proper steps to avoid such
failure of justice. Let Senators see things as they are; let us not
deceive ourselves or deceive others. A new statute against treason will
be simply a few more illusive pages on the statute-book, and that is
all.

I cannot doubt that Senators are in earnest, that they mean what they
say, and that they intend to do all in their power, by all proper
legislation, to bring the war to a final close. But if this be their
purpose, they will not hesitate to employ all the acknowledged Rights
of War calculated to promote this end. Two transcendent powers have
been exercised without a murmur: first, to raise armies, and, secondly,
to raise money. These were essential to the end. But there is another
power, without which, I fear, the end will escape us. It is that of
confiscation and liberation; and this power is just as constitutional
as the other two. The occasion for its exercise is found in the same
terrible necessity. An army is not a _posse comitatus_; nor is it, when
in actual war, face to face with the enemy, amenable to the ordinary
provisions of the Constitution. It takes life without a jury trial, or
any other process of law; and we have already seen, it is by virtue of
the same Right of War that the property of enemies may be taken, and
freedom given to their slaves. On the exercise of these rights there
can be no check or limitation in the Constitution. Any such check or
limitation would be irrational. War cannot be conducted _in vinculis_.
Seeking to fasten upon it the restraints of the Constitution, you
repeat the ancient tyranny which compelled its victims to fight in
chains. Glorious as it is that the citizen is surrounded by the
safeguards of the Constitution, yet this rule is superseded by war,
bringing into being other rights which know no master. An Italian
publicist has said that there is no right which does not, in some
measure, impinge upon some other right. But this is not correct. The
Rights of War can never impinge upon any rights under the Constitution,
nor can any rights under the Constitution impinge upon the Rights of
War. Rights, when properly understood, harmonize with each other.

Assuming, then, what is so amply demonstrated, that the Rights of War
are ours without abridgment, and assuming also that you will not allow
the national cause, which has enlisted such mighty energies, to be
thwarted through any failure on your part, I ask you to exercise these
rights in such way as to insure promptly and surely that permanent
peace in which is contained all we desire. But to this end mere victory
will not be enough. The Rebellion must be so completely crushed that it
cannot again break forth, while its authors have penalties to bear, all
of which may be accomplished only by such a bill as I have proposed.
The reasons of policy, as well as of duty, are controlling.

* * * * *

But while all desire to see the Rebellion completely crushed, there may
be difference with regard to the Rights of War to be exercised. Some
may be for part; others may be for all. Some may reject the examples of
the past; others may insist upon them. It is for you to choose; but,
in making election, you will not forget the object in view. At another
point I have leaned on the authority of Grotius. Turning now to Vattel,
a writer of masculine understanding, who has done much to popularize
the Law of Nations, I am influenced by the consideration, that, less
austere than others, he seems always inspired by the free air of his
native Switzerland, and filled with the desire of doing good, so that
what he sanctions cannot be regarded as illiberal or harsh. In grouping
the details entering into the object proposed, this benevolent master
teaches that we may seek these things:--

1. Possession of what belongs to us;

2. Expenses and charges of the war, with reparation of damages;

3. Reduction of the enemy, so that he shall be incapable of unjust
violence;

4. Punishment of the enemy.[57]

And in order to arrive at these results, the Rights of War are ours,
to be employed in our discretion. Nor is it to be forgotten that these
rights are without any of those limitations which modern times have
adopted with regard to the private property of enemies in international
war, and that, on reason and principle, which are the foundations of
all Public Law, _every rebel who voluntarily becomes an enemy is as
completely responsible in all his property, whether real or personal,
as a hostile Government or Prince_, whose responsibility to this extent
is unquestioned.

Such in detail is the object that is all contained in the idea of
peace. In this work it is needless to say there is no place for any
sentiment of hate or any suggestion of vengeance. There can be no
exaction and no punishment beyond the necessity of the case,--nothing
harsh, nothing excessive. Lenity and pardon become the conqueror more
even than victory. “Do in time of peace the most good, and in time of
war the least evil possible: such is the Law of Nations.” These are
the admirable words of an eminent French magistrate and statesman.[58]
In this spirit it is our duty to assuage the calamities of war, and
especially to spare an inoffensive population.

But not so should we deal with conspirators. For those who organized
this great crime and let slip the dogs of war there can be no penalty
too great. They should be not only punished to the extent of our
power, but stripped of all means of influence, so that, should their
lives be spared, they may be doomed to wear them out in poverty, if
not in exile. To this end their property must be taken. Their poor
deluded followers may be safely pardoned. Left to all the privileges
of citizenship in a regenerated land, they will unite in judgment of
leaders who have been to them such cruel taskmasters.

The property of the leaders consists largely of land, owned in
extensive plantations. It is just that these should be broken up, so
that never again can they be nurseries of conspiracy or disaffection.
Partitioned into small estates, they will afford homes to many now
homeless, while their peculiar and overbearing social influence will
be destroyed. Poor neighbors, so long dupes and victims, will become
independent possessors of the soil. Brave soldiers, who have left
their Northern skies to fight the battles of their country, resting at
last from their victories, and changing their swords for ploughshares,
will fill the land with Northern industry and Northern principles.

I say little of personal property, because, although justly liable to
confiscation, yet it is easy to see that it is of much less importance
than the land, except so far as slaves are falsely classed under that
head.

* * * * *

Vattel says that in our day a soldier would not dare to boast of having
killed the enemy’s king; and there seems to be similar timidity on our
part towards Slavery, which is our enemy’s king. If this king were
removed, tranquillity would reign. Charles the Twelfth, of Sweden,
did not hesitate to say that the cannoneers were perfectly right in
directing their shots at him; for the war would instantly end, if
they could kill him; whereas they would reap little from killing his
principal officers. There is no shot in this war so effective as one
against Slavery, which is king above all officers; nor is there any
better augury of complete success than the willingness, at last, to
fire upon this wicked king. The illusions through which Slavery has
become strong must be abandoned.

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

* * * * *

Mr. President, if you seek Indemnity for the Past and Security for
the Future, if you seek the national unity under the Constitution of
the United States, here is the way. Strike down the leaders of the
Rebellion, and lift up the slaves.

“To tame the proud, the fettered slave to free,--
These are imperial arts, and worthy thee.”

Then will there be Indemnity for the Past such as no nation ever before
was able to win, and there will be Security for the Future such as
no nation ever before enjoyed, while the Republic, strengthened and
glorified, will be assured forever, one and indivisible.

NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON.

RESOLUTION AND REMARKS IN THE SENATE, MAY 23, 1862.

May 23d, the Senate proceeded to consider a resolution offered
the preceding day by Mr. Sumner:--

“_Resolved_, That the Committee on the District of Columbia
be directed to consider what legislation, if any, is
needed to protect persons of African descent in Washington
from unconstitutional seizure as fugitive slaves, or from
seizure by disloyal persons.”

Mr. Sumner said:--

MR. PRESIDENT,--The question presented in this resolution has a
practical value to-day, when, here in Washington, we are shocked
by efforts of slave-hunters, coming from an adjoining State, to
carry off human beings as slaves. This is menaced on a large scale.
Whole hecatombs are to be sacrificed. A Philadelphia paper of this
morning, “The Press,” which I find on my table, contains, under the
telegraphic head, an account of certain proceedings instituted by
persons called Commissioners, who have undertaken gravely to decide,
that, in a case of human freedom, “it was discretionary with them to
allow cross-examination as to identity and ownership.” According to
these wise Daniels, a person may be doomed to Slavery, even without
any cross-examination of witnesses against him. The statement of this
assumption shows the outrage which offends justice and common sense,
and, I am happy to believe, the Constitution also, even if it be
assumed that anybody now can be treated as a slave in the District.

The much discussed clause of the Constitution bearing on this question
provides that “no person held to service or labor _in one State_, under
the laws thereof, _escaping into another_, shall, in consequence of any
law or regulation therein, be discharged from such service or labor.”
It will be observed that this is limited to escape _from one State into
another State_. Nothing is said of escape into Territories, or into
the District of Columbia. If made applicable to Territories or the
District, it is only by inference and deduction, and not by virtue of
any express words.

Notwithstanding this omission in the Constitution, the Act of 1793,
providing for the surrender of fugitives from service, was made
applicable to escape into Territories, and this questionable precedent
was followed in the terrible Act of 1850. But neither of these Acts
was made applicable to escape into the District of Columbia. While
Slavery prevailed in the District, it was difficult to raise a question
with regard to the surrender of fugitive slaves. But since Freedom has
happily become the law here, the case is materially changed. Slaves at
last are beginning to have rights. And the question arises, whether,
in the absence of express power in the Constitution, and also in the
absence of express words in any statute, commissioners can undertake
to surrender men into Slavery. Even if there were express words in
the statute, we should be obliged to find express words also in the
Constitution, which is the source of the power. But there are no words
applicable to this pretension either in statute or Constitution.

Sir, I have always understood, that, in the interpretation of statutes,
and especially of the Constitution, every word is to be interpreted in
favor of life and liberty,--_in favorem vitæ ac libertatis_. Indeed,
one of the received maxims of the Common Law says strongly, “Impious
and cruel is he to be adjudged who does not favor Liberty.”[59] If
these maxims are not entirely rejected, it is impossible to find,
either in statute or Constitution, any power to gratify the hunters now
thronging this District in quest of human prey. It is _casus omissus_
in our texts legislative or constitutional, and no commissioner, in the
plenitude of petty power, can undertake to supply words which do not
appear in statute or Constitution. It is for them only to administer
the law as it is, and not to make it, especially against Freedom.
They are not greater than the Constitution; and they should know that
human freedom, in the estimation of every civilized jurisprudence, is
priceless.

The question which I now raise, if I may employ the language of
lawyers, is proper for the courts. A court in Washington, properly
inspired, could not hesitate in its conclusion. It would deny any such
offensive prerogative, unless sanctioned by clear and positive words.
In the absence of such words, it would rejoice to set aside the whole
pretension. It would not hesitate or halt, but it would do it gladly,
generously, justly, and make a new precedent by which civilization
should be advanced. Yet this is too much to expect from the courts of
Washington, whose sense of justice has been enfeebled by the atmosphere
of Slavery.

This pretension is aggravated by the fact that many of these hunters
are notoriously disloyal. Sir, it is hard that our Constitution should
be violated, and men hurried into Slavery, at the trumpery process of
such offensive characters. I think the Committee will find a remedy.

On motion of Mr. Grimes, the resolution was amended by
substituting the Committee on the Judiciary for the Committee
on the District of Columbia, and then agreed to.

INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING ARMIES.

RESOLUTION IN THE SENATE, MAY 26, 1862.

Mr. Sumner submitted the following resolution for consideration.

RESOLVED, That the Secretary of War be requested to communicate to the
Senate copies of any instructions to commanding generals, in pursuance
of the Act of Congress, approved August 6, 1861, setting free slaves
who have been employed by the consent of their masters against the
Government and lawful authority of the United States; and also to
inform the Senate if any steps have been taken to make this statute
effective, and to insure its due execution by our advancing armies, for
the benefit of slaves who have been so employed.

June 4th, the resolution was considered and agreed to.

July 10th, a report was received from the Secretary of War,
entitled “Instructions to commanding generals in regard to the
freeing of slaves,” which, besides the instructions, contained
communications from General Phelps and General Butler.[60]

HELP FROM SLAVES, WITH RECIPROCAL PROTECTION IN THEIR RIGHTS AS MEN.

RESOLUTION IN THE SENATE, MAY 26, 1862.

The following resolution was introduced, as an expression of
opinion, and an appeal to the country.

RESOLVED, That, in the prosecution of the present war for the
suppression of a wicked Rebellion, the time has come for the Government
of the United States to appeal to the loyalty of the whole people
everywhere, but especially in the Rebel districts, and to invite
all, without distinction of color, to make their loyalty manifest
by ceasing to fight or labor for the Rebels, and also by rendering
every assistance in their power to the cause of the Constitution and
the Union, according to their ability, whether by arms, or labor, or
information, or in any other way; and since protection and allegiance
are reciprocal duties, dependent upon each other, it is the further
duty of the Government of the United States to maintain all such
loyal people, without distinction of color, in their rights as _men_,
according to the principles of the Declaration of Independence.

TAX ON COTTON.

SPEECHES IN THE SENATE, MAY 27 AND JUNE 4, 1862.

In the consideration of the Internal Tax Bill Mr. Sumner took
an active part, as the _Congressional Globe_ attests.

When this bill came from the House of Representatives, it
contained a tax of one cent a pound on cotton. The Finance
Committee of the Senate reported against this tax. Mr. Sumner,
though never disposed to spare Slavery, was unwilling to
bear hard on an interest so important as cotton to the whole
country, especially to the South when redeemed, as well as to
the manufactures of the North, and therefore exerted himself
against the tax. May 27th, he spoke as follows.

MR. PRESIDENT,--I am in favor of the proposition of the Committee,
which seems to me sound in principle and policy.

There are reasons against taxing cotton,--first, from the character
of the product itself, and, secondly, from the effect of the tax on
manufactures.

If we look at the character of the product, we find, in the first
place, that it is agricultural,--peculiar, indeed, to one section of
the country, but as much an agricultural product as grain, hemp, and
flax, which are left untouched by this bill. There should be reason
for adopting the tax in one case and not in the other. No such reason
exists.

But cotton is not only an agricultural product, it is also a leading
export. Now I raise no constitutional question on the power to tax
exports, although it may not be entirely easy to reconcile such tax
with the language of the Constitution: “No tax or duty shall be laid
on articles exported from any State.” The object of this clause was
to prevent discrimination among States through the taxing power. But
not questioning the power in the present case, it seems to me that its
exercise is of doubtful policy, according to principles of political
economy. I do not think that it is the policy of civilized nations
to tax exports, which play an important part, first, in quickening
commerce, and, secondly, in furnishing the equivalent of imports.

Then there is difficulty arising from the condition of the country.
Until the Cotton States are restored to the Union, little or no revenue
can be expected from any such tax. But if their representatives were
once more here, can anybody suppose it possible to tax this great
staple of the South, while the great staples of the West--grain,
provisions, and wool--are free? It seems to me unadvisable to attempt,
in the absence of these representatives, what we would not attempt, if
they were present,--in other words, to do what is of doubtful equity,
simply because we have the votes. Our tax, at best, can be little more
than prospective. Is it not better to wait till it may be a reality?

Even if at another time the tax on cotton seemed politic, I doubt if
it can be so regarded for some time to come. Considering the peculiar
condition of things, there is small doubt that the country for the next
five years will have greater interest in encouraging the production of
cotton than in taxing it.

Sometimes it is said, that, if cotton is not taxed, the Cotton States
will escape taxation, which would be a practical injustice to other
parts of the country. But I am not satisfied that we cannot tax
their slaves. Besides, the $200,000,000 of cotton exported assures
the importation of $200,000,000 of foreign products, which, with
twenty-five per cent duty, gives a revenue of $50,000,000 annually.

But if cotton must be taxed, it should not be by a specific tax, but
by a tax _ad valorem_, and for obvious reason. Cotton is sold in the
market under seven different grades, varying materially in value.
These grades are classified as follows, beginning with the lowest or
least valuable, and ending with the highest or most valuable: (1.)
ordinary, (2.) good ordinary, (3.) low middling, (4.) middling, (5.)
good middling, (6.) middling fair, (7.) Sea Island. For ten years, from
1850 to 1860, the average price of ordinary cotton was six and five
eighths cents a pound, while middling fair, the highest grade except
Sea Island, averaged twelve cents a pound. A tax of one cent a pound
on ordinary cotton would be over fifteen per cent on its value, while
one cent a pound on middling fair cotton would be eight and one third
per cent, and the same tax on Sea Island cotton, commanding the highest
price of all, would be less than five per cent.

The tax on cotton, if any is imposed, ought not to exceed five per cent
_ad valorem_. In the natural course of events, without interruption of
war, the cotton exported would have amounted in value for a year to
$200,000,000. If to this we add the value of cotton used in the United
States, $35,000,000, we shall have the sum-total of $235,000,000. A tax
of five per cent _ad valorem_ on this would be $11,750,000.

The proposed tax of one cent a pound is much larger. During the year
ending the 30th of June, 1860, the value of the cotton exported was
$191,806,555, and the number of pounds exported was 1,767,686,338. A
tax of one cent a pound would be $17,676,863,--a very large sum, which
I should be glad to pour into our Treasury. But, assuming the value of
this cotton at ten and eight tenths cents a pound, the tax of one cent
a pound will be above nine and one fourth per cent,--nearly double what
the tax ought to be.

Consider now, if you please, the effect of this tax on cotton
manufactures. It appears that we manufacture annually about seven
hundred thousand bales of cotton, one half of which is of the three
lower grades, and is worked into what is called by manufacturers coarse
goods. Of these one pound of cotton will make about two and a half
yards, worth twenty cents. Now a tax of three per cent on this cloth
would be six mills. Add the tax of one cent a pound on cotton, and you
have a total of sixteen mills, making a tax of eight per cent on the
value of the cloth,--a higher tax than is imposed by the Tax Bill on
anything except dogs, whiskey, and tobacco.

The rest of the cotton manufactured in our country is worked into what
are called fine goods, of which one pound will make from four to eight
yards, valued at thirty to forty cents, or, on an average, thirty-five
cents. The tax of three per cent on these goods at thirty-five cents
would be ten and a half mills. Add the tax of one cent on the cotton,
which is ten mills, and you have the total of twenty and a half mills,
making a tax on this article of more than five and eight tenths per
cent.

Of the finest goods, a pound of cotton would make cloth worth
seventy-five cents. The tax upon this class would be four and one third
per cent.

Thus the cheap goods used by the poorer people will be taxed much
higher than the finer goods used by the rich. Are you ready to set up
this discrimination?

There is an important export trade of cotton manufactures, which must
not be forgotten. But these are entirely of the class known as coarse
goods. For instance, during the year ending June 30, 1860, cotton
goods exported amounted to $10,934,796. This commerce is conducted
under difficulties. Necessarily it encounters strong competition in
the foreign markets, and must have failed, but for the anomalous
opportunities it enjoyed in China and the East Indies, where these
goods were often sent as remittances instead of bills of exchange, it
being cheaper to pay for them in Boston even more than they will bring
at their destination than to pay the premium of exchange. But this
business, having such anomalous support, cannot bear additional burden.
It will be annihilated,--at least I am so assured by those who ought to
know.

The proposed tax upon coarse goods used in our country is found, on
calculation, equal to seven per cent on the capital invested in their
manufacture, and on exported goods it is equal to five per cent. If
cotton must be taxed, it ought not to be higher than five per cent,
and I have already shown that it ought to be _ad valorem_. On goods
exported there should be a drawback in favor of the manufacturer, not
only of the three per cent on the goods, but also of the five per cent
on the cotton. If the three per cent tax on all goods used in this
country were reduced to one and one half per cent _ad valorem_, this,
with the five per cent tax on the cotton, would be equal to three and
one sixth per cent _ad valorem_ on coarse goods, and to three and one
third per cent on fine goods. But I prefer the proposition of the
Committee, leaving the bill otherwise as it is.

In conclusion, I have to say that the cotton cloths manufactured in our
country are nearly as much a necessary as breadstuffs, entering into
the daily life of all, whether rich or poor, like daily bread.

In the debate which ensued, Mr. Davis, of Kentucky, alluded to
Mr. Sumner.

“I have been very strongly arrested by the debate to-day,
and I very much approve of its spirit and its tenor. I am
glad to see gentlemen quitting visionary subjects”--

MR. CLARK. Do not lug them in.

--“and coming to questions of legitimate political
economy; and especially I am glad that the Senators from
Massachusetts have shown a disposition to come to such
legitimate ground of legislation.”

In the same speech the Kentucky Senator indulged in prophecy.

“And if the slaves were liberated, if the theory of the
gentlemen from Massachusetts and other Senators were
carried into operation, I believe, as certainly as I
believe that I am now addressing the Senate of the United
States, that there would not be one fifth as much cotton
raised in any year in the next five years as has been
raised, according to the estimate of the Senator from Rhode
Island, for the past year. I do not believe that the man
lives, that the child lives, who will ever see, after the
universal emancipation of the slaves, under any state of
labor, or of care, or of application of labor, either the
labor of men or of machinery, that the production of cotton
in the United States will reach one half of five millions
of bags.”[61]

The amendment striking out the tax was adopted,--Yeas 20, Nays
16.

* * * * *

June 3d, at the next stage of the bill, the question was
presented again, when Mr. Sumner renewed his opposition to
the tax. In the course of his remarks the following passages
occurred.

MR. SUMNER. Then, Sir, as I had the honor of saying in the former
debate, suppose the vacant seats on the other side of the Chamber were
filled, suppose Senators here from the Cotton States, would you think
of imposing a tax on cotton without in the same bill imposing a tax on
the agricultural products of the North? You would not, I am sure; and,
Sir, in their absence, I will not do what I would not do, if I could,
were they here.

MR. GRIMES. Would you not abolish Slavery in the District of
Columbia?

MR. SUMNER. I would do that, were they here, and propose it to their
faces, and be too happy in the opportunity.

June 4th, the debate was continued, when Mr. Sumner spoke as
follows.

I am admonished by my friend, the Senator from Maine [Mr. FESSENDEN],
not to say anything. I shall say very little. I am in favor of
reducing the tax from one cent to half a cent, and I am also in favor
of striking out the whole tax. If there must be a tax, I wish the
smallest; and if I can have the attention of the Senator from Wisconsin
[Mr. HOWE], whose remarks were so candid, I should like to put him a
question. You heard him say that he would not impose any tax which he
knew would really be burdensome on the manufacturers. Other Senators
have repeated the same thing.

Now, Sir, on whom will he rely, in determining whether the tax will be
burdensome? I take it that the manufacturers are competent witnesses,
if not the best witnesses; and Senators from manufacturing States, when
they express themselves on the question, are to be heard. But it is
the clear opinion of the manufacturers that the proposed tax will be
burdensome, that it will almost annihilate a certain branch of trade
with China and the East Indies, and that it will be most oppressive
on the coarser fabrics at home. The tax on the latter will swell to
as much as seven per cent, which is a very large tax, larger than is
imposed on anything else in the bill, unless it be whiskey and dogs.

I put it to the Senator from Wisconsin, who so candidly said that he
would not impose a tax that he knew to be burdensome, whose testimony
will he accept? On what will he rely? Is it his own knowledge, his own
impressions, his own imagination, if you please? In answer to all these
I present the positive testimony of those really familiar with the
subject.

Here, then, is the question in a nutshell. In imposing this tax, you
have on one side the certainty of undue burden on a special interest;
and what have you on the other side? An uncertainty. Who here can say
that the proposed tax will be productive? Sir, we have not the cotton
in our hands. Through the machinations of wicked men, it has ceased to
be within our possession. I remember in my childhood being much amused
with a little poem entitled “Oxen in the Skies,” which pleasantly
described a contest between two senseless persons as to who should own
certain imagined oxen in the skies,--that is, a contest about something
not within reach. The cotton you propose to tax is not within reach. I
trust that it may soon be. Should we not act on existing facts, rather
than on hopes?

There is a larger view of the question. While you begin to tax the
agricultural products of the country, you open the door to that great
experiment. If the Senate is ready to march in that direction, I will
not say whether I am not ready to march also; but the Senate should
not commence the experiment without considering where it leads. In
this whole bill you do not tax a single agricultural product. Why,
therefore, make an exception of cotton? If you begin with cotton, where
will you stop? Must you not also tax hemp, flax, and corn? Why not? Not
that I am in favor of such taxation; but where in principle are you to
stop? Sir, I put these questions as a warning to Senators.

The original proposition from the House of Representatives was
amended by substituting “one half cent” a pound, instead of
“one cent,”--Yeas 30, Nays 10.

TAX ON SLAVE-MASTERS.

SPEECHES IN THE SENATE, ON AMENDMENT TO THE INTERNAL TAX BILL, MAY 28
AND JUNE 6, 1862.

While voting and speaking against a tax on cotton, Mr. Sumner
was anxious to tax Slavery, and this he sought to accomplish by
a tax on those who pretended to hold slaves.

* * * * *

May 28th, he moved the following amendment:--

“_And be it further enacted_, That any person who shall
claim the service or labor for life of any other person,
under the laws of any State, shall pay, on account of such
person so claimed, the sum of ten dollars.”

And then said:--

MR. PRESIDENT,--A tax of ten dollars on account of each slave will
give $40,000,000. And in putting the tax at ten dollars I follow the
precedent of the Constitution, which taxes slaves imported at ten
dollars. I do not disguise that on this question I have shared the
doubts of others. Of course, no tax would be tolerable which gave
any sanction to property in man; and it has been feared that a tax
on slaves might be interpreted into such sanction. This fear is not
unnatural to persons shocked by the idea of Slavery. It was early
avowed by Roger Sherman, of Connecticut, whose sensibility is recorded
by Madison in his report of the debates in the Federal Convention.

“He was opposed to a tax on slaves imported, as making the
matter worse, because it implied they were property.”[62]

Again, a few days later, when the same clause of the Constitution was
under discussion, Mr. Sherman repeated his objection, and the following
debate occurred, which seems to exhaust the argument on both sides.

“MR. SHERMAN was against this second part, as acknowledging men
to be property, by taxing them as such under the character of
slaves.

“COLONEL MASON. Not to tax will be equivalent to a bounty on
the importation of slaves.

“MR. GORHAM thought that Mr. Sherman should consider the
duty, _not as implying that slaves are property_, but as a
discouragement to the importation of them.

“MR. GOUVERNEUR MORRIS remarked, that, as the clause now
stands, it implies that the Legislature may tax freemen
imported.

“MR. SHERMAN, in answer to Mr. Gorham, observed, that the
smallness of the duty showed revenue to be the object, not the
discouragement of the importation.

“MR. MADISON thought it wrong to admit in the Constitution the
idea that there could be property in men. The reason of duties
did not hold, as slaves are not, like merchandise, consumed, &c.

“COLONEL MASON, in answer to Mr. Gouverneur Morris. The
provision, as it stands, was necessary for the case of
convicts, in order to prevent the introduction of them.”[63]

After this discussion, the clause as found in the Constitution, laying
“a tax or duty on such importation, not exceeding ten dollars for
each person,” was adopted, _nem. con._ Thus it appears that Sherman,
Morris, Franklin, and Gerry, to say nothing of Madison, all known
for opposition to Slavery, and determination to give it no sanction,
concurred in this proposition. They felt that a tax or duty, thus
arranged, was not a sanction of Slavery.

The same question is now presented to us. Clearly there can be no such
thing as property in man. The whole idea is offensive and odious.
There is no revenue, whatever be its amount, to compensate for this
recognition. Better be poor, better be pinched in means, better forego
much needed supplies, than obtain help through any such sacrifice.
But the same considerations which induced our fathers, with all their
avowed scruples, to sustain such a tax or duty, may properly influence
us.

It is the boast of the Constitution that it knows nobody as a slave.
All are “persons.” But at the same time it does not assume to interfere
with a well-known State institution by which “persons” are degraded to
be property. The condition of the slave is anomalous. He is property by
local law; he is a “person” by the Constitution. But nobody questions
the existence of Slavery. It is a monstrous _fact_, beyond reach in
the States, except through the War Power, and yet none the less a
_fact_, which taxation will only recognize, and not sanction. It is an
intolerable nuisance intrenched in State lines; but we shall not treat
it otherwise than as nuisance, when we tax it. In taxing it we do not
assume its rightfulness; we only assume its undeniable existence as a
_fact_, and nothing else.

If our tax were an encouragement, it would be clearly immoral. But
it is a discouragement. Exemption from taxation is encouragement.
Taxation is discouragement just in proportion to its extent, until, in
the progress of events, it becomes destructive. Regarding the present
question in this light, our course is plain. It is not permissible to
encourage Slavery, while every principle of economy and every sentiment
of justice and humanity urge its discouragement.

But it is said that the Constitution prohibits a capitation tax,
“unless in proportion to the census.” The tax I propose is not a
capitation tax, any more than the tax on auctioneers, or lawyers, or
jugglers, or peddlers, or slaughterers of cattle is a capitation tax.
According to lexicographers, a capitation tax is a poll tax, a tax on
each individual. Now this tax makes no pretension to be a poll tax,
or a tax on each individual. It is a tax on a person who claims the
service or labor of another for life, proportioned to the extent of his
claim. In other words, _it is a tax on a claim of property_; and when I
tax this claim, surely I do not recognize its morality, nor do I accord
to it any sanction.

If it be said, that at one time I insist the slave shall have all the
rights of “persons” under the Constitution, while I now insist that his
master shall pay a tax on his claim of property, I reply, that there
is no inconsistency, but perfect harmony. By an unquestionable rule
of interpretation, applicable to the Constitution, every word must
be construed _in favor of Liberty_, so as most to promote Liberty.
According to this rule, every presumption is in favor of Liberty. But,
while insisting upon every such presumption, it does not follow that
the counter claim shall not be taxed. Indeed, the same principle which
inclines in favor of the slave must incline also to tax the claim
of his master, so long as this claim exists in fact. Freedom is to
be enlarged in every way possible, whether by encouraging the slave
or discouraging the master. Therefore do I say fearlessly, that the
slave, whenever he appears within the national jurisdiction or before
national tribunals, is entitled to all the rights of “persons”; but the
master, who asserts this odious property, cannot claim any immunity for
it on this account. The indulgence is all for the slave, and not at
all for the master. For the slave Congress must do everything in its
power; for the master Congress must have nothing but disapprobation and
discouragement.

These are reasons that influence me, and I present them now in order
to influence those who hesitate to impose this tax, on the old idea of
Roger Sherman, that it will be a recognition of property in man. Of
course, where Senators have no such scruple, the argument for this tax
is unanswerable.

It is easy to levy.

It is profitable.

And so far as it exerts an influence, it must be a discouragement to an
offensive wrong, which is the parent of our present troubles, and the
occasion of all this taxation. It would be strange, if Slavery, after
causing our national calamity, should escape from all its consequences.
It would be strange, if Slavery, which has played the tyrant thus far
in our history, should now, like the tyrant, be so far indulged as to
escape burdens of all kinds. It shall not be by my vote.

Subsequently Mr. Sumner modified his amendment, by accepting
a substitute drawn by Mr. Simmons, of Rhode Island, in behalf
of the Finance Committee, who suggested, that “the section,
as presented by the Senator from Massachusetts, might leave
the slave liable to be sold to pay the tax, and that conflicts
about as much with the Senator’s notions as he could well have
drawn any provision to do so.” Mr. Sumner had no anxiety on
this head, and said at once:--

Perhaps the Senator and myself start from different points. I do not
think the United States can own a slave. I cannot doubt, that, if a
slave should be seized under process of the United States, he would be
taken to Freedom, and not to Slavery, for the simple reason that the
nation cannot own a slave. Therefore any special provision for this
emergency is superfluous. I rest in the conviction, that, when a slave
passes into the hands of the United States, he at once becomes free.

Mr. Sumner added, that the proposition he had presented was “in
the plainest form and fewest words,” and on this account had
merits of its own.

Mr. Collamer hoped Mr. Sumner would accept the substitute,
and thought “ten dollars a head on all ages and conditions an
unreasonable tax.”

The substitute accepted by Mr. Sumner was as follows.

“SEC.--_And be it further enacted_, That an annual tax of
five dollars shall be paid by every person or persons,
corporation, or society, for and on account of the service
or labor of every other person between the ages of ten and
sixty-five years, whose service or labor, for a term of
years or for life, is claimed to be owned by such first
mentioned person or persons, corporation, or society,
whether in a fiduciary capacity or otherwise, under and by
virtue of the laws or customs of any State; and said annual
tax shall be levied and collected of the person or persons,
corporation, or society, making such claim, and of their
goods, chattels, or lands, as is herein before provided;
but in no case shall the person or persons whose service or
labor is so claimed, or their service or labor, be sold for
the purpose of collecting said tax: _Provided_, That this
tax shall not apply to service due to parents.”[64]

Mr. Sherman, of Ohio, took the lead in answer to Mr. Sumner,
and in opposition to his amendment. After insisting that slaves
are “persons,” and that, if the amendment be adopted, “they
will be the only persons taxed under this bill,” he said:--

“If the Senator had made his argument yesterday, when
we proposed to tax cotton, a production which goes into
manufactures, what he has said would apply with great
force. Cotton is a production of slave labor solely.… All
his arguments apply to cotton as a subject of taxation; but
he convinced a majority of the Senate yesterday that it was
not expedient to tax cotton; and now he proposes to tax
slaves, and how?… With all our immense resources, we cannot
now collect it, except from the loyal people who live in
the Border States, who now recognize our flag and are
subject to our law. I am not willing to select them as the
first to bear a heavy and peculiar taxation. I believe that
the true course is to insist upon the tax on cotton.”[65]

The special points of Mr. Sherman’s opposition appear in Mr.
Sumner’s reply.

MR. PRESIDENT,--I will make one remark in reply to the Senator from
Ohio. He objects to my proposition as in the nature of a direct tax, or
poll tax. How is this? Has not the Senator voted to tax auctioneers,
lawyers, jugglers, and slaughterers of cattle, all being classes of
persons in the community?

MR. SHERMAN. To tax their employments.

MR. SUMNER. And I propose to tax the employment of the
slave-master,--that is all. It is the business of the slave-master to
make the slave work. This is his high vocation. In other words, his
business consists in using the service and labor of another. And to
this class of persons he belongs. Is it not plain? Can there be any
doubt? Look at it. He is an auctioneer of human rights, a broker of
human labor, a juggler of human sufferings and human sympathies,--I
might say a slaughterer of human hopes; and, Sir, if the Senator from
Ohio can tax auctioneer, broker, juggler, or slaughterer of cattle,
I am at a loss to understand why he cannot tax the peculiar form of
these vocations all concurring in the slave-master. He is swift to
tax the less, but hesitates to tax the greater. He can tax the petty
employment, which is not immoral or cruel; but he will not tax the
larger multiform employment, in which immorality and cruelty commingle.

But the Senator says it is a capitation or poll tax. Not, Sir, in the
sense of the Constitution. On this I stand. It is simply a tax on a
productive claim of property, or, to borrow the language of the Senator
a moment ago, on an “employment.” It is nothing but that.

The Senator thinks it improper to tax slave-masters, especially when we
have cotton for taxation; and he almost chides me, because yesterday
I was against the cotton tax, which in his judgment is most proper.
Sir, I am at a loss to find the parallel between the two cases implied
in supposing that one can be a substitute for the other. They are
unlike in every respect. Slaves and cotton belong to the same section
of country, precisely as alligators and cotton; and that is all the
parallel between them. Cotton is an agricultural product, entering into
commerce and manufactures, while the manufactures made from it are
important to all classes, but especially the poor. The question of its
taxation involves considerations of economy and policy utterly unlike
those arising on the motion to tax the claim of the slave-master. It
is difficult to see how the two taxes can be confounded. One is a tax
on an agricultural product; the other is a tax on an odious claim.
The Senator will not say that it is an acceptable claim under the
Constitution. Even if there, it is disguised under ambiguous words.
Indeed, he knows well that it is offensive and repugnant to the
conscience of good people. Shall not such a claim be taxed? Shall such
a claim be permitted to go scot-free? Shall we run about the country,
seeking class after class to visit with oppressive taxation, and,
under the lead of the Senator, excuse this largest and most offensive
class of all? I am at a loss to understand on what ground of principle
the Senator can proceed, when he proposes this special immunity. If
I use strong terms in describing slave-masters, it is because the
very language of the bill suggests them, and they are in essential
conformity with truth.

I believe I have answered the two objections made by the Senator from
Ohio. If he made any other, it has escaped my recollection.

Mr. Sherman followed Mr. Sumner, beginning with these words:--

“I will not reply to that part of the speech of the
honorable Senator from Massachusetts in which he denounced
slaveholders. My opinions on this subject are well known.
I think that slaveholders have certain rights under the
Constitution of the United States; and while I never
could be one myself, and have as deep a repugnance to any
law which authorizes the holding of slaves as any other
man, yet, while I am here under oath, I will respect
their constitutional rights to the fullest extent. We
are bound to legislate for them, and they are entitled
to the protection of the Constitution of the United
States as fully as if they were here, all of them, to
speak for themselves; and especially I do not think it
proper or courteous to use such language, applied to a
whole class of people, when Senators on this floor are
with us, associating with us, who are included by the
appellation ‘slaveholder,’ so obnoxious to the Senator from
Massachusetts. Certainly I cannot characterize so harshly
any one who is a member of the same body with myself.”[66]

He then said that he intended “to put the proposition to tax
cotton and the proposition to tax slaves against each other,”
and that he would “propose to amend the amendment of the
Senator from Massachusetts by substituting a modified tax on
cotton,”--that “they are connected together, and the Senator
cannot disconnect them.” He then spoke of slave-masters again.

“The slaveholders of the Revolution were men of the highest
purity, of the greatest patriotism. At that time Slavery
was admitted to be an evil. They were men of gentleness, of
courtesy, of kindness, good hearts and good heads, nearly
all of them; and so are the great body of the slaveholders
with whom you are brought in contact in the Border States,
men of gentleness and kindness and courtesy.… Many of the
most gentlemanly, courteous, kind, and patriotic men that I
ever met in the world were slaveholders; and I think, that,
taken as a class, the slaveholders of the Border States
are men who are deserving of our commiseration, of our
kindness, rather than of our reproaches.… I do not choose
to select that class of men from among all the population
of the Southern States and tax them, and then to apply to
them opprobrious epithets.”[67]

Mr. Sumner felt called to speak again in reply, and said:--

The Senator from Ohio says that I propose a tax on “slaves,” and then
carefully reminds me that “slaves” are persons, and therefore not,
according to the Constitution, to be taxed, except by a capitation
tax. Now, Sir, I have to say, in the first place, that the tax which
I propose is not to be regarded as a tax on slaves. If applicable to
persons, it is to the masters, and not to the slaves. It is a tax on
slave-masters, as I have already said,--precisely like the tax on
auctioneers, which is sustained by the Senator. It is a tax on a claim
of property made by slave-masters. The Senator may call such a claim
property or not, as he pleases. It is at least a claim of property,
and as such I propose to tax it. Why not? The Senator admits that at
other times slaves have been expressly taxed,--actually taxed in name.
In the tax of 1815 there was a tax on “land _and slaves_.” The Senator
does not doubt the constitutionality of such tax. Sir, I am content
with this authority, which goes beyond anything that I propose, and I
am not troubled by any scruple, lest, in imposing a tax on the claim of
the slave-master, I recognize property in man. At most, I recognize a
profitable claim, and tax it.

The remarks of the Senator were occupied chiefly with two
heads,--first, eulogy of slave-masters, and, secondly, vindication
of his proposed tax on cotton. I have little to say of the Senator’s
eulogy. There are two authorities on that head, which the Senator will
pardon me, if I place above him: I mean Mr. Jefferson and Colonel
Mason, both of our early Revolutionary days. Mr. Jefferson assures us
that the whole commerce between master and slave is one of boisterous
passion, tending to barbarism.[68] Colonel Mason exclaimed, in the
Convention to frame the Constitution, that every slave-master is
born a petty tyrant.[69] And yet, Sir, in the face of this authentic
testimony, from persons who knew Slavery and all its influences, the
Senator eulogizes slave-masters, and pleads for their exemption from
taxation. Eulogy is for the dead. I would not add to the odium justly
belonging to a tyrannical class, but I do insist that justice shall
be done to their victims; and when the Senator interposes eulogy, I
interpose against him the rights which have been violated. So long as
men persist in such outrage, so long as they persevere in maintaining
an institution which annuls the parental relation, the conjugal
relation, the right to instruction, the right to the fruit of one’s
own labor, and does all this merely to make men work without wages, so
long as men support this unjust and irrational pretence, they must not
expect soft words from me. If the Senator from Ohio finds it in his
generosity to plead for slave-masters, he must excuse me, if I decline
to follow him. He does not know them as well as I do, nor does he know
their victims as well as I do.

The Senator dwells much on the importance of a tax on cotton. The
subject was fully canvassed yesterday, and the vote of the Senate was
against him. He now seeks a re-hearing out of the ordinary course.
Would it not be better, if his proposition were postponed to the next
stage of the bill, when it will be strictly in order? Meanwhile, in
pursuance of my promise to be brief, I content myself with saying, that
the desire of the Senate to tax cotton is no reason why they should
refuse to tax the claim of the slave-master. The two are not in any
way dependent upon each other. Let the Senator from Ohio carry his
cotton tax, if the Senate agree with him. But, Sir, I insist, that,
whether cotton is taxed or not, the claim of the slave-master shall
not be permitted to escape. I do not say the property, but I say the
claim. It ought to be taxed, not only for revenue, but also for the
discouragement it will fasten upon an odious pretension, which has been
to us the fountain of trouble and war.

Mr. Sherman’s motion to strike out the tax on slave-masters and
insert the tax on cotton was then lost,--Yeas 15, Nays 22.

* * * * *

Mr. Henderson, of Missouri, then moved to amend the amendment
of Mr. Sumner by adding,--

“_And provided, further_, That the tax herein prescribed
shall not be levied or collected in any State where a
system of gradual emancipation may have been adopted at the
time of the collection.”

May 29th, this was lost,--Yeas 15, Nays 20.

Then, on motion of Mr. Fessenden, Mr. Sumner’s amendment was
further modified by substituting a tax of “two” dollars,
instead of “five,” on account of each slave. Before the vote
was taken, Mr. Sumner assigned the reason for the higher rate.

The Senator from Maine [Mr. FESSENDEN] said that he had looked simply
at the revenue to be obtained by a tax. But, pray, will not a larger
revenue be obtained at the rate of five dollars than at the rate of
two? There are the slaves,--count them, and tax them. The process is
simple, with no chance of evasion. Besides, Sir, I cannot forget, nor
can the Senator, that throughout our history we have heard constantly
of “incidental protection.” But, if incidental protection is just and
expedient, then is incidental discouragement, and the tax I propose
may be sustained on this ground. We do not hesitate to tax whiskey and
tobacco as luxuries, indulgences, vices. Why should we hesitate to tax
the worst luxury, the worst indulgence, the worst vice of all, which
is Slavery? Therefore, for a double reason, first, for the sake of
revenue, and, secondly, for the sake of discouragement to Slavery, I am
for the larger tax.

After further debate, the question was taken on the amendment
of Mr. Sumner as modified, and resulted, Yeas 14, Nays 22. So
the amendment was lost.

* * * * *

June 5th, at the next stage of the bill, Mr. Sumner moved his
amendment in the following form:--

“_And be it further enacted_, That every person claiming
the service or labor of any other person as a slave shall
pay a tax of two dollars on account of every person so
claimed: but in no case shall any person so claimed be sold
for the purpose of collecting the tax.”

The yeas and nays were ordered, and, being taken, resulted,
Yeas 19, Nays 16. So the amendment was agreed to.

* * * * *

June 6th, Mr. Anthony, of Rhode Island, who had voted for
the tax on slaves, moved a reconsideration, not because he
had changed his opinion, but, as he said, at the request of
Senators. This was to give an opportunity for another vote.

In the debate which ensued the amendment was assailed by Mr.
Doolittle, Mr. Browning, Mr. Cowan, and Mr. Hale. The latter
quoted the words,--

“And if we cannot alter things,
Egad, we’ll change their names, Sir,”[70]--

and insisted, that, however it might be called, it was a tax on
slaves; on which Mr. Wade remarked from his seat, “So much the
better.” Mr. Sumner said in reply:--

MR. PRESIDENT,--I presume there is no difference among Senators in
desire to follow the Constitution. The Senator from New Hampshire [Mr.
HALE], on my right, cannot be more desirous to follow it than the
Senator from Pennsylvania [Mr. WILMOT], on my left. In that respect
they are equal. Nor do I believe that the Senator from Illinois [Mr.
BROWNING], over the way, can claim any particular monopoly of such
devotion. In that respect, Sir, we are all equal. Our difference is as
to the meaning of the Constitution. But it is a poor argument which
finds its chief force in asseverations of devotion to the Constitution.
Conscious of my obligation to support it, and of my loyalty, I make no
such asseverations.

Nor again, Sir, do I believe that the Senator from New Hampshire can
take to himself any monopoly of praise for denying the whole offensive
pretension of property in man. Is he more earnest in this denial
than many other Senators? Is he more earnest than the Senator from
Pennsylvania near me? Is he more earnest than myself? Has he denied
it oftener in debate or public speech? To me the pretension is absurd
as it is wicked. A man may as well claim property in a star as in
his fellow-man. And yet, Sir, with this conviction, I cannot forget
that I am here, as a Senator, to legislate with regard to existing
institutions, and to see things as they are. I cannot be blind to the
_fact of Slavery_. Slavery exists as a monstrous fact, an enormity, if
you please, but still it exists; and as a legislator I am to act on its
existence. Am I not right? Can I presume on this occasion to be guided
by my inner conviction that there is no property in man, when, looking
to the Slave States, I am compelled to see the great, unquestionable
fact of pretended property? To my mind, it is more practical to
recognize the fact, and to proceed accordingly.

The Senator from Illinois insists that this is a capitation tax, and
he reads the text of the Constitution. What is a capitation tax? The
precise definition in Webster’s Dictionary--if the Senator will excuse
me for going to an authority which is not a law book--is “a tax or
imposition upon each head or person, a poll tax.” Such is the tax with
regard to which the provision of the Constitution read by the Senator
was adopted. This provision is not applicable to any other tax, but
simply to this special tax.

Already I have reminded the Senator that he has voted to tax
auctioneers, to tax jugglers, to tax the slaughterers of cattle, and to
tax lawyers. I might add other classes. I now propose that he should
tax claimants of slaves, a class offensive to reason and humanity. That
is all. If you look at the census of 1850,--that of 1860 is not yet
published,--you will find among the different classes of our population
the following: mariners, 70,000,--I will not give the hundreds;
merchants, 100,000; planters, 27,000; wheelwrights, 30,000; teachers,
29,000; tailors, 52,000; overseers, 18,000; lawyers, 23,000; farmers,
2,363,000; slaveholders, 347,000.

Now, Sir, would any one say that a tax on the business of the mariner
was a capitation tax? Would any one say that a tax on the business
of merchants, of whom we have one hundred thousand, was a capitation
tax? Would any one say that a tax on the business of the planter was
a capitation tax? that a tax on the business of the wheelwright was a
capitation tax? that a tax on the business of teachers was a capitation
tax? that a tax on the business of tailors was a capitation tax? that
a tax on the business of overseers of plantations, who apply the
lash, of whom there are eighteen thousand, was a capitation tax? that
a tax on lawyers, already voted by the Senator from Illinois, was a
capitation tax? that a tax on farmers, if you will, of whom, happily,
we have two million three hundred and sixty-three thousand, was a
capitation tax? And will any one say that a tax on slave-masters, of
whom, unhappily, we have three hundred and forty-seven thousand, is a
capitation tax? Senators may imagine it a capitation tax, Senators may
call it a capitation tax, but no imagination and no energy of assertion
can make it so. It is not a capitation tax. It is a tax on the claim
of the slave-master in the bones and muscles, the labor and service of
his fellow-man, and, so far as the tax can have any influence, it must
discredit and discourage such claim. Therefore, Sir, I say confidently
that the tax is in every respect constitutional, and it is also a tax
well worthy of adoption, because, at a moment when Slavery stands
revealed as the very pest of our land, it will operate to discredit and
discourage it.

In no other way can you obtain so much revenue so easily and so
beneficently. But if you refuse to impose this tax, you concede a
special immunity to a most offensive pretension, and leave those who
profit by it to gather their profits without any of that burden so
freely imposed upon the honest industry of the country, and upon so
many classes of our citizens.

The motion to reconsider was carried,--Yeas 22, Nays 18.

The question then recurred on the amendment, and it was
lost,--Yeas 17, Nays 23.

* * * * *

This narrative shows how the effort to tax Slavery finally
failed, not on its merits, but from tenderness to slave-masters
of the Border States.

PROPER DESPATCH OF BUSINESS.

REMARKS IN THE SENATE, ON THE ORDER OF BUSINESS, MAY 30, 1862.

In the pressure of business before the Senate, it was proposed
to sit into the night on the Internal Tax Bill. Mr. Sumner
spoke against this proposition.

MR. PRESIDENT,--If I recollect aright, the Tax Bill was considered in
the House of Representatives more than three weeks, and it is well
known that there are rules for the limit of debate in that body which
do not prevail in the Senate.

MR. HALE. But which ought to prevail here.

MR. SUMNER. They do not prevail here, and we are to take things as
they are. Now, Sir, shall we limit debate? Shall we cut it off more or
less? In the absence of rules by which it may be done, we are asked to
do it by protracting the daily session into the night, in other words,
by night sessions, and so hurrying the bill to a final vote. I do not
think this advisable. The matters in question are too important for
such summary process. Each day has its debate on questions of detail,
which multiply as we proceed; but there are two or three questions of
principle not yet considered, though already before us, including that
opened yesterday by the Senator from Rhode Island [Mr. ANTHONY], and
another to be presented by the Senator from California [Mr. MCDOUGALL],
involving a review of different systems of taxation. Is it supposed
that such questions can be properly considered in a single day, or in
two days, so that then we shall be ready to vote? To my mind it is not
possible.

But if possible, I repeat, it is not advisable, and, believe me, Sir,
I say this from no disposition to shirk business or duty here. I have
not been out of my seat three minutes since this bill was taken up,
nor, indeed, have I been out of my seat a half-hour since the session
began. Therefore I do not fall under the judgment of the Senator from
Maine [Mr. FESSENDEN] with regard to those who prefer that debate
should be allowed to proceed, even at the expense of time. I am ready
for work; but I think we shall all do best, if this important measure
is considered without haste, if not entirely without rest, according to
the customary order of business.

SHUTTING UP OF COLORED SCHOOLS BY THE PROVISIONAL GOVERNMENT OF NORTH
CAROLINA.

RESOLUTION AND REMARKS IN THE SENATE, JUNE 2, 1862.

Hon. Edward Stanly was appointed by the President Provisional
Governor of North Carolina, and Andrew Johnson, of Tennessee.
The former signalized his arrival at his post by an official
movement against schools for colored children, as forbidden by
“the laws of the State,” meaning the Black Code, before the war.

Mr. Vincent Colyer, who had opened a school for colored
children at Newbern, came at once to Washington. Arriving
at the close of the day, he reported immediately to Mr.
Sumner, who without delay hurried to the Executive Mansion,
and, not finding the President there, followed him to the
War Department. Mr. Sumner related what had occurred, when
the President, with an impatience which Mr. Sumner never
encountered from him on any other occasion, exclaimed, “Do
you take me for a School-Committee-man?” Mr. Sumner replied
promptly: “Not at all; I take you for President of the United
States; and I come with a case of wrong, in attending to which
your predecessor, George Washington, if alive, might add to
his renown.” The President changed his tone, and with perfect
kindness proceeded to consider the case.

Mr. Sumner lost no time in laying it before the Senate.

June 2d, he offered the following resolution:--

“_Resolved_, That the Secretary of War be requested to
communicate to the Senate copies of any commissions
or orders from his Department undertaking to appoint
Provisional Governors in Tennessee and North Carolina, with
the instructions given to the Governors.”

By unanimous consent, the Senate proceeded to consider the
resolution, when Mr. Sumner said:--

MR. PRESIDENT,--I shall not stop to consider any question touching the
power to appoint Governors of States. My object is different. It is to
expose a case of peculiar interest and importance, with regard to which
I have a statement worthy of confidence. From this it appears that one
of the first acts of Mr. Stanly, on arrival at Newbern, North Carolina,
and assuming his responsible duties as Provisional Governor, was to
announce that the school there for the education of colored children,
recently opened by Northern charity, must be closed, being forbidden by
the laws of North Carolina, which he was instructed by the authorities
at Washington to maintain. I have here an official report of this
extraordinary transaction.

“In a conversation between Governor Stanly and Mr. Colyer,
the Governor stated that there was one thing in Mr. C.’s
doings, as superintendent of the poor, a question would be
raised about,--indeed, it had been already,--and that was
his (C.’s) keeping school for the blacks. ‘Of course you are
aware,’ said the Governor, ‘that the laws of the State make the
opening of such schools a criminal offence. My instructions
from Washington were, that I was to carry out the laws of
North Carolina precisely as they were administered before the
breaking out of this unhappy affair; so, if I were called upon
for a decision in the matter of your schools for the blacks, I
would have to decide against you; but at the same time I don’t
want anything done abruptly. As a man, I might do, perhaps, as
you have done; but as a Governor, I must act in my official
capacity according to my instructions, and administer the laws
as I find them.’

“A true copy.

“C. H. MENDELL,
_Clerk to Mr. Colyer_.

“NEWBERN, May 28, 1862.”

Then follows a further statement.

“Mr. C. C. Leigh, who was with General Saxton in the Oriental,
on his way to South Carolina, as confidential agent of the
National Freedmen’s Relief Association, and who has just
returned, asked Mr. Colyer what he should do. Mr. C. replied:
‘I must close the schools, as I cannot consent to continue to
place myself in a situation where I am liable to be punished
according to the laws of North Carolina.’

“Mr. Leigh is the Chairman of our Home Committee.”

If any person, in the name of the United States, has undertaken to
close a school for little children, whether white or black, it is
important that we should know the authority under which he assumes to
act. Surely nobody here will be willing to take the responsibility for
such an act. It is difficult to conceive that one of the first fruits
of national victory and the reëstablishment of national power should
be an enormity not easy to characterize in any terms of moderation.
Jefferson tells us that in a certain contest there is no attribute of
the Almighty “which can take side with us.”[71] And permit me to say,
that, if, in the war unhappily existing, the military power of the
United States is employed in closing schools, there is no attribute
of the Almighty which must not be against us; nor can we expect any
true success. Sir, in the name of the Constitution, of humanity, and
of common sense, I protest against such impiety under sanction of the
United States.

The proper rule of conduct is simple. It is found in the instructions,
to which I referred the other day, from the British Commissioner in
a conquered province of India. After indicating certain crimes to be
treated with summary punishment, he proceeds to say: “All other crimes
you will investigate according to the forms of justice usual in the
country, modified as you may think expedient; and in all cases you will
endeavor to enforce the existing laws and customs, _unless where they
are clearly repugnant to reason and natural equity_.”[72] Here is the
proper limitation. Anything else is unworthy of a civilized country.
Whatever is clearly repugnant to reason and equity must be rejected.
Surely such a thing cannot be enforced. But what can be more clearly
repugnant to reason and equity than the barbarous law which an officer,
in the name of the National Government, has threatened to enforce?

The resolution was agreed to.

* * * * *

June 4th, a report from the Secretary of War, in answer to
this resolution, contained a letter of appointment, dated May
19, 1862, conferring “all and singular the powers, duties,
and functions pertaining to the office of Military Governor,
including the power to establish all necessary offices and
tribunals, and suspend the writ of _Habeas Corpus_.” This was
followed, May 20th, by instructions, wherein it is said: “Upon
your wisdom and energetic action much will depend.… It is not
deemed necessary to give any specific instr

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