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 THE CONSTITUTIONAMTY AND EXPEDIENCY OF CONFISCATION VINDICATED. 
 
 fe X E E G H 
 
 OF 
 
 HON. LYMAN TRUMBULL, OF ILLINO 
 
 ON THE 
 
 ILL TO CONFISCATE THE PROPEETY AND FKEE 
 
 THE SLAVES OF REBELS; 
 
 DELIVERED 
 
 IN THE SENATE OF THE UNITED STATES, APRIL 7, 1862. 
 
 WASHINGTON: 
 
 PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
 1862. 
 

 INEXOIflWGE 
 
 JUN 5 1917 
 
SPEECH. 
 
 The Senate having resumed the consideration of the bill 
 (S. No. 151) to confiscate the property and free the slaves 
 of rebels — 
 
 Mr. TRUMBULL said: 
 
 Mr. President, before proceeding with the re- 
 marks which I design- to make upon this bill, I 
 desire to move two amendments, one of which is 
 verbal, and the other is to make the bill a little 
 more definite. In the fourth line of the seventh 
 section, I move to strike out the words " garnishee 
 and," and to insert in lieu thereof the words, 
 " process of garnishment and other," so that it 
 will read: 
 
 That the several district courts of the United States are 
 liereby invested with power to issue all processes whether 
 mesne or final as well in chancery and admiralty as at com- 
 mon law, including process of garnishment and other pro- 
 cess as in cases of foreign attachment, and to do every other 
 matter and thing necessary or proper to carry out the pur- 
 poses of this act. 
 
 The amendment was agreed to. 
 
 Mr. TRUMBULL. I desire to move another 
 amendment in the thirteenth line of the first sec- 
 tion of the bill, after the word "and," to insert 
 the words " as to all property which shall be 
 seized and appropriated as hereinafter provided;" 
 so that the clause will read: 
 
 Or giving aid and oomfort to said rebellion, shall be for- 
 feited and confiscated to the United States, and as to all 
 property which shall be seized and appropriated as herein- 
 after provided, such forfeiture shall take immediate effect 
 Upon the commission of the act of forfeiture, &e. 
 
 The amendment was agreed to. 
 
 Mr. TRUMBULL. Mr. President, having 
 made a brief explanation of the main features of 
 thebill under consideration, and the principles on 
 which it was based, at the time it was reported to 
 the Senate, it was not my intention to have said 
 anything more upon it, at all events, unless in 
 closing the debate; but the fierceness with which 
 
 it has been assailed, and the misrepresentations 
 to which it has been subjected, unintentional of 
 course, make it necessary that I should reply to 
 some of the strictures upon it. Assuming that it 
 was a sweeping measure for the confiscation of 
 all the property in the southern States, the bill has 
 been denounced as unconstitutional and inexpe- 
 dient with a vehemence and virulence.not to have 
 been expected, and surely but illy calculated to 
 promote that calm, deliberate, and candid consid- 
 eration which the admitted importance of the sub- 
 ject should command. The Senator from Califor- 
 nia [Mr. McDougall] denominated it " an act to 
 sweep the whole of a populous country of all 
 property, real and personal." 
 
 The Senator from Pennsylvania, [Mr. Cowan,] 
 after assuming that it would be " moderate to 
 estimate" the number of persons to be affected by 
 the bill at four millions, said: 
 
 " This hill proposes at a single stroke to strip all this vast 
 number of people of all their property, real, personal, and 
 mixed, of every kind whatsoever, and reduce them at once 
 to absolute poverty." 
 
 My colleague [Mr. Browning] said the bill 
 "strikes at all the property of every kind and 
 character of all the citizens of the seceded States 
 with scarcely an exception." 
 
 The Senator from Virginia [Mr. Carlile] said: 
 
 " It will be seen that all the property of each and every 
 citizen in the seceded States will be forfeited under this 
 bill." 
 
 How grossly these Senators have misconceived 
 the character of the bill will be apparent on a 
 glance at its provisions. So far from striking at 
 all the property of each and every citizen in the 
 seceded States, it would not probably reach the 
 property of one in ten of the rebels, and in no ease 
 would touch the property of a loyal citizen. In 
 the first place, the bill is prospective in its opera- 
 
tion, and confiscates the proD-''-y of "« one for 
 anything done before its/'^^^ssage. It would be 
 in the power of every '^^^^ i" the land to save his 
 property from co'iiscation by ceasing to war 
 against the Go'cnment from the time of its pas- 
 sage. Sec'idly, it only applies to the property 
 of such rebels as are beyond the reach of judicial 
 process. Wherever the person of the rebel can 
 be reached and made subject to the punishment 
 his crimes deserve, the bill does not propose to 
 touch his property. In all the loyal States, in- 
 cluding Missouri, Kentucky, and a large part of 
 Tennessee and Virginia, the only persons whose 
 property could be touched by the bill would be 
 those who abandoned it, and fled to other States 
 to fight against the Union. How diiferentissucli 
 a bill, and how harmless compared with the rad- 
 ical measure wiiich has so alarmed the Senator 
 from Pennsylvania that he declared its passage 
 would do what treason could not, that " we our- 
 selves will then have dissolved the Union !" What 
 makes the course of some Senators who have 
 spoken against this measure the more remarkable 
 is the fact that two of them, at least, the Senator 
 from Pennsylvania and my colleague, after de- 
 nouncing the confiscation of rebel property to a 
 limited extent, underanact of Congress, as some- 
 thing monstrous and horrible, before concluding 
 their speeches, both avow themselves in certain 
 contingencies not only in favor of the confiscation 
 or destruction of the property of rebels, but of 
 arming their negroes to fight against them. Their 
 trouble seems to be, lest confiscation should be 
 regulated by law, and not left, as they insist it 
 ought to be, to the arbitrary discretion of the Ex- 
 ecutive. That I may not do injustice to any one 
 I will read a few paragraphs from the speech of 
 my colleague on this bill. He said: 
 
 "The inexjiediency of this bill is as manifest as its un- 
 constitutionality. Let it pass, and its provisions be heralded 
 in advance of the Army as it inarches South, and what other 
 effect can it have than to consolidate the entire people for 
 one last despairing struggle against those whom they might 
 then justly regard as enemies and oppressors instead of 
 friends and benefactors? What possible inducement could 
 they have to prefer submission to death? For one, I do not 
 wish to waste the fortunes and devastate the homes of all. 
 Leave something to make the guardianship of Government 
 and the protection of law desirable." 
 
 In a subsequent portion of his speech my col- 
 league said: 
 
 " Tliu Government has the right and power, and ought 
 to exercise them, to seize and confiscate all the property, 
 of every character, including slaves, of those in armed re- 
 bellion against the Government, or who may give aid and 
 
 comfort to those in arms, so far as such property may come 
 within the reach of our Army, and so far as its seizure and 
 confiscation may have any relation to the end and object 
 of the war, and may tend to cripple and subdue the enemy 
 or strengthen us, and promote the success of our arms ; and 
 it is the duty of the Government to exercise this right, and 
 to apply such property to the uses to which it is best adapted 
 to aid in the successful prosecution of the war, in defraying 
 its expenses and lightening its burdens on loyal citizens. 
 
 " To accomplish this, neither legislation nor adjudication 
 is necessary. The power is a war power— the right is a 
 belligerent right. These principles are as applicable to slaves 
 as to other property, and no officer should be permitted to 
 use the forces under his command in repelling fugitives fnhn 
 the lines, or in arresting and returning them to rebel mas- 
 ters ; but they should be received, and used in whatever 
 way they could be made most available and efficient in the 
 prosecution of the war; and if any come, whose services 
 cannot be made available, let them pass through the lines 
 and shift for themselves. The Army is not bound to take 
 care of them, and cannot have them as camp followers, to 
 be provided for at the expense of the Government. All who 
 can be advantageously used should be used. Let them do 
 the drudgery and labor which would otherwise devolve on 
 our soldiers. Let them open roads, build bridges, dig ditches 
 and trenches, erect fortifications, and do labor of every 
 kind which may be needed by a large army ; and if need be 
 to save the Government from overthrow, tlie country from 
 ruin, and our homes from desolation, let them be formed 
 into companies and regiments, and drilled and disciplined 
 and armed, to take their chances for wounds and death in 
 the front of battle." 
 
 I do not cead these passages for the purpose of 
 exposing the inconsistency of my colleague, for 
 it seems, after all, that it is not so much the con- 
 fiscation of rebel property that he is opposed to 
 as the manner in which it is done, he insisting 
 " that neither legislation nor adjudication" is ne- 
 cessary to accomplish the object; a position which 
 I shall hereafter undertake 16 show is wholly un- 
 tenable, and at war with both the spirit and letter 
 of the Constitution. That the Constitution puts 
 the force of the nation into the President's hands, 
 "investing him with the war making power" 
 which he may direct and control as he pleases, 
 " and only restrained in so far by Congress in that 
 he must depend upon them to foot his bills and 
 authorize his levies," as insisted by the Senator 
 from Pennsylvania, [Mr. Cowan,] I wholly deny. 
 There is no warrant in the Constitution for the 
 assumption of such powers by the Executive. So 
 far from it, the war-making power is, by the Con- 
 stitution, expressly vested in another department 
 of the Government, and, as I shall presently show, 
 the Supreme Court has decided that the power to 
 confiscate enemy property does not reside in the 
 Executive but in Congress, and nowhere else. 
 And yet, strange as it may seem, these advocates 
 
\, 
 
 of prerogative, who claim warpowersfor the Pres- 
 ident higher and above and beyond the Constitu- 
 tion, ai-e alarmed beyond measure at the bare pro- 
 posal to enact a law whereby rebel property, to 
 a very limited extent, maybe appropriated to the 
 expenses of the war. 
 
 As all the Senators who have spoken against 
 the bill have made the same class of objections, 
 I will reply to them somewhat in detail, though, 
 I must confess, without much' hope of gaining 
 their support to the measure, since they are evi- 
 dently hunting for objections, and would doubt- 
 less imagine others, if those already suggested 
 were removed; for in their sympathy for rebels, 
 whom they style brethren, they have vastly mag- 
 nified the proportions of this bill, as has already 
 been shown; and I can only regard the claim of 
 power of confiscation in the President as a coun- 
 ter proposition to defeat this, for we all know that 
 the President does not pretend to exercise any 
 such power; that he, in fact, has rebuked a dis- 
 tinguished general for attempting to exercise it; 
 and I shall undertake to show before I conclude 
 that he could not constitutionally exercise such a 
 power if he would. 
 
 By way of meeting the objections to the pend- 
 ing bill, I will take up the speech of the Senator 
 from Pennsylvania, [Mr. Cowan,] which em- 
 bodies most of them, and endeavor to show, as I 
 think I can, that they are all unfounded. 
 
 That I may not misstate his objections, I read 
 from his speech. He said: 
 
 " Congress cannot forfeit the property of rebels for longer 
 than their lives, by the enactment of any law whatever, 
 for tlie following reasons: 
 
 " 1. Those persons now in rebellion, having levied war 
 against the United States, are guilty of treason within the 
 exact definition of that crime contained in the third section 
 of the third article of the Constitution, in which it is de- 
 clared that 
 
 "'Treason against the United States shall consist only 
 in levying war against them, or in adhering to their ene- 
 mies, giving them aid and comfort.' 
 
 " Hence, it cannot be doubted but that as soon as the 
 rebels are arrested andbrought within the power of any law 
 we may pass, they become eo instantc traitors, and obnox- 
 ious to the punishment which is imposed by our statute for 
 treason." ***** *** 
 
 " The second clause of thatsame section provides further, 
 that 
 
 " ' The Congress shall have power to declare the punish- 
 ment of treason, but no attainder of treason shall work cor- 
 ruption of blood or forfeiture, except during the life of the 
 person attainted.' 
 
 " Therefore any law made for the guidance of the courts 
 must conform to this provision, and no other or greater pen- 
 alty could be imposed than it would warrant. If, therefore, 
 
 the law was to enact an absolute forfeiture of the estatea 
 of the traitor, it would be bad for the excess, and the judges 
 would be obliged to make the sentence constitutional, either 
 by cutting down the statutory penalty to a forfeiture of his 
 estates for life, di by omitting to forfeit them at all. All this 
 seems to me so obvious as not to be doubled." 
 
 The answer to all this is to be found in the fact 
 that the bill does not propose to confiscat&either 
 absolutely or for life the property of rebels vho 
 are or can be arrested. If, therefore, it were ad- 
 mitted that it is not in the power of Congress to 
 forfeit the property of rebels who are arrested and 
 convicted of treason for longer than their lives, it 
 could have no bearing upon this bill, for the simple 
 reason that this bill only aims to reach the prop- 
 erty of such rebels or traitors as are beyond the 
 reach of judicial process, and can neither be ar- 
 rested, tried, or convicted for treason or any other 
 offense. Surely the prohibition against confis- 
 cating beyond life the property of the man who 
 is arrested and made to suffer in his person for 
 his crimes cannot prevent the absolute confisca- 
 tion of the property of the criminal who is beyond 
 our reach, and cannot be arrested, but who has 
 left property within our jurisdiction, which we 
 can reach. 
 
 Suppose a foreigner were engaged in this re- 
 bellion against the Governiiient, it is clear that 
 such a person, owing no allegiance to the Gov- 
 ernment, could not be convicted of treason; does 
 it therefore follow that his property within our 
 jurisdiction could not be confiscated? Or in case 
 of the rebellious citizen who flees beyond the juris- 
 diction of the country, is his offense to be considered 
 as beyond the reach of the Government, even to 
 forfeit his property within its territorial boundary.' 
 It is manifest that the clause of the Constitution 
 limiting the punishment for treason can have no 
 more application to the confiscation of the property 
 of a person who cannot be arrested and tried for 
 treason than has tlie punishment prescribed by 
 statute for murder to do with that for larceny. 
 
 The Senator from Pennsylvania further objects 
 to the constitutionality of the bill — 
 
 "Because, 
 
 " 1. By the fifth amendment to the Constitution, it is pro- 
 vided : 
 
 " ' No person shall be held to answer for a capital or other- 
 wise infamous crime, unless on a presentmelit or indict- 
 ment of a grand jury, except in cases arising in the land or 
 naval forces, or in the militia when in actual service, in time 
 of war or public danger ; nor shall any person be subject, 
 for the same offense, to be twice put in jeopardy of life or 
 limb; nor shall be compelled in any criminal case to be 
 a witness against himself; nor be deprived of life, liberty, 
 or property, without due process of law ; nor shall private 
 

 6 
 
 property be taken for public ui?e without just compensa- 
 tion.' 
 
 " Here it is attempted to deprive a large class of persons 
 of nil their estates and property, withoutjany arrest, with- 
 out any presentment by a grand jury, without any trial by a 
 petitjury. without, indeed, any trial at all in any court. This 
 would be to deprive them of their property in the very face 
 of the provision requiring that it shall only be done 'by due 
 p)0<:ess of law,' which all commentators and all lawyers 
 r^ree, means proceedings according to the course of the 
 common law." 
 
 It will be observed that the fifth amendment 
 throws the same and even stronger safeguards 
 around tlie life and liberty of a person than around 
 his property, for the reason, doubtless, that life 
 and liberty are more valuable than property. If, 
 then, it is unconstitutional "to deprive a large class 
 of persons of all their estates and property with- 
 out any arrest, without any presentment by a 
 grand jury, without any trial by a petitjury, with- 
 out, indeed, any trial at all in any court," is it not 
 equally unconstitutional to deprive them of life or 
 liberty except by "due process of law.'" Is it 
 then unconstitutional to shoot and take prisoners 
 the rebels on the battle-field.' Are the patriotic 
 soldiers who do it murderers? Would the Sena- 
 tor from Pennsylvania have a presentment by a 
 grand jury and a trial by a petitjury on the field 
 of battle of each person in the enemy's ranks who 
 was firing upon our soldiers, in order that he might 
 not be shot and deprived of life in the very face of 
 the provision requiring that it shall only be done 
 ^'by due process of law, which all commentators 
 ,and all lawyers agree means proceedings according 
 ±0 the courseof the common law?" Is it not clear 
 ithat if we cannot take the property of ourenemies 
 in war except " by due process of law," neither 
 can we take their lives in any other way? 
 
 What is the answer to all this? How is it, in 
 theface of the fifth amendment, that Congress may 
 .provide for taking the lives and property of rebels 
 without ■'' due process of law?" The answer is 
 to be fouKd in the grants of power in other parts 
 of the Constitution, which declare that Congress 
 shall have power " to declare war," and " make 
 •rules concerning captures on land and water;" "to 
 raise and support armies;"" to provide and main- 
 tain a Navy; to make rules for the government 
 and regulation of the land and naval forces; to 
 provide for calling forth the militia to execute the 
 laws of the Union., suppress insurrections, and 
 ■ repel invasions, ".and " to make all laws which 
 shall be necessary and proper for carrying into 
 execution the foregoing powers." These pro- 
 -visions of the Constitution do not mean that Con- 
 
 gress may raise armies and call forth the militia 
 to suppress insurrection " according to the course 
 of the common law," but to put it down by force 
 and violence. It is' because the peace cannot be 
 preserved, the enemy overcome, and the rebellion 
 suppressed by proceedings according to the course 
 of the common law that the Army is called into 
 being, and when so called into being it operates, 
 not according to the course of the common law, 
 but according to the usage of armies engaged in war 
 in dealing with their enemies. Hence the author- 
 ity of the Army by violence to deprive an enemy 
 of life, liberty, and property in time of war is as 
 ample as that of the courts to deprive a person of 
 either by due process of law in time of peace, for 
 the reason that it is by force and violence that 
 armies overcome their enemies; and when the Con- 
 stitution conferred on Congress the power to raise 
 and support armies, it conferred also, as incident 
 to that power, the authority to use them in the 
 manner that armies are accustomed to operate. 
 
 The Senator from Pennsylvania and my col- 
 league further object that this bill is obnoxious to 
 the clause of the Constitution which declares that 
 " no bill of attainder or ex post facto law shall be 
 passed." The Senator from Pennsylvania ad- 
 mijts that the bill is not within the letter of the 
 Constitution, but thinks it within its spirit. My 
 colleague, less liberal, and without, as I think, his 
 usual fairness and candor in the argument of a 
 question, disposes of the bill in a single sentence 
 by saying, " I believe it is not denied that this is 
 a bill of attainder within the meaning of the Con- 
 stitution." Is my colleague so uncharitable as 
 to suppose I would advocate a measure which I 
 believed unconstitutional? I, who have declared in 
 my place during the present session that I "want 
 no other authority for putting down even this 
 gigantic rebellion than such as may be derived 
 from the Constitution, properly interpreted;" that 
 " while fighting this battle in behalf of constitu- 
 tional liberty, it behooves us especially to see to it 
 that the Constitution receives no detriment at our 
 hands;" and who have warned my countrymen 
 "notto sanction usurpations of power which may 
 hereafter become precedents for the destruction of 
 constitutional liberty?" 
 
 No, sir, if I admitted this to be a bill of attain- 
 der, it would of course be an admission that it 
 wasunconslitutional, and it could not for a moment 
 receive my support. The remark of my colleague, 
 that he believed " no one denied that this is a bill 
 of attainder," is still the more remarkable, when 
 
taken in connection with what I said in explana- 
 tion of the bill when it was. reported to the Senate. 
 This was my language: . 
 
 " Some have objected to the constitutional power to pass 
 this bill because they say it is a bill of attainder. It is not 
 a bill of attainder at all; It does not corrupt the blood of the 
 party ; but it is a bill, as I said, operating upon property. 
 The Supreme Court of the United States has expressly de- 
 cided in the case of Brown vs. The United States — which 
 I referred to on a former occasion — that Congress has au- 
 thority to pass an act of confiscation, and if Congress has 
 authority to confiscate the property of an enemy, the act of 
 confiscation must be something different from a bill of at- 
 tainder, because the Constitution expressly declares that 
 no bill of attainder shall be passed." 
 
 How, with this statement on the records of the 
 Senate, made at the tinie the bill was reported for 
 its consideration, my colleague could say that he 
 believed " it was not denied that this is a bill of 
 attainder," can only be accounted for on the sup- 
 position that in his confidence in his own opin- 
 ions he did not take the trouble to inquire what 
 others had admitted or denied. The only author- 
 ity referred to by any Senator for denominating 
 this a bill of attainder is a remark of Chief Justice 
 Marshall, incidentally made, by way of illustra- 
 tion in the case of Fletcher vs. Peck, (6 Cranch,) 
 when the question of bills of attainder was not 
 before him, in which he said, "a bill of attainder 
 may affect the life of an individual, or may con- 
 fiscate his property, or both." Story and Kent 
 both quote this remark of Judge Marsliall in their 
 commentaries; but this reiteration of an obiter dic- 
 tum remai'k by commentators adds nothing to it 
 as an authority. To this incidental remark of 
 Judge Marshall, made in a case in which the power 
 to pass bills of attainder, or what they were, was 
 not involved, I oppose the solemn decision of the 
 same judge, at a later period , in the case of Brown 
 vs. The United States, (8 Cranch,) in which he 
 held that it was competent for Congress to pass 
 a confiscation act. The force of this authority 
 cannot be avoided by saying that Judge Marshall 
 was deciding upon the right to confi.scate the prop- 
 erty of a foreign enemy when he declared " the 
 power of confiscating enemy's property is in the 
 legislature," for if a confiscation bill is the same 
 thing as a bill of attainder. Congress could no 
 more pass such an act in regard to the property 
 of a foreign than a domestic enemy, because the 
 language of the Constitution is that " no bill of 
 attainder shall be passed," which renders it just 
 as unconstitutional to pass such a bill afiecting a 
 foreigner as a citizen. 
 
 But 1 will uttdertake to show that the bill under 
 
 consideration is in no sense a bill of attainder. It 
 does not propose to attaint any one, or to affect 
 any one's person or blood. It does not name any 
 one on whom it is to operate, but simply provides 
 for the forfeiture of the property of persons guilty 
 of certain offenses, who themselves are beyond 
 the reach of courts, and cannot be brought to trial, 
 the forfeiture to be enforced in the loyal States 
 through the courts, by proceedings in rem, and in 
 the disloyal States, in which the courts are over- 
 borne, to be enforced, from the necessity of the 
 case, through the military power. Such a bill has 
 none of the characteristics of an attainder, which 
 may be defined to be " that extinction of civil 
 rights and capacities which takes place whenever 
 a person who has committed treason or felony 
 receives sentence of death for his crimes." Bills 
 of attainder are, moreover, directed against some 
 particular person or persons by name, who are 
 thereby attainted for some crime already com- 
 mitted. This bill provides for the forfeiture of 
 estates in certain cases as a punishment for crime 
 hereafter to be committed, when the person of 
 the individual committing the offense cannot be 
 reached. It does not attaint or convict any one 
 of having committed a crime, nor of itself confis- 
 cate the property of any one, and is no more like 
 a bill of attainder than is an act imposing a fine as 
 a punishment for assault and battery, or forfeiture 
 of goods as a penalty foi' smuggling. , 
 
 The right to confiscate the property of a rebel 
 or traitor attaches without any conviction of the 
 offender. This bill applies only to proceedings 
 in rem. Ithas nothing to do with the punishment 
 of the person, and, indeed, does not operate upon 
 the property of a person who is within i-each of 
 judicial process. In the case of The Palmyra, (12 
 Wheaton, 1,) the Supreme Court, in speaking of 
 an act like this, say: 
 
 "Many cases exist where the forfeiture for acts done at- 
 taches solely in rem, and there is no accompanying penalty 
 in personam. Many cases exist where there is both a for- 
 feiture ill 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 understands the law to be, that the pro- 
 ceeding inrem stands independent of, and wholly unaffected 
 by, any criminal proceeding in yersonmn." 
 
 The Senator from California, to show why this 
 bill ought not to pass, quotes from Story the fol- 
 lowing: 
 
 " It surely is enough for society to take the life of the of 
 fender, as a just punishment of his crime, without taking 
 from his offspring and relatives that property which may 
 he the only means of saving them from poverty and ruin.' 
 
8 
 
 So say I, and the bill does not propose to touch 
 the property of any one whose life has been taken 
 or who can be brought to trial for his crimes, and 
 it is therefore not obnoxious to the objection 
 pointed out by Story. 
 
 Another ground of objection to this bill is the 
 allegation that it is an encroachment on the pre- 
 rogative of the President, who, it is alleged, as 
 Commander-in-Chief of the Army and Navy, al- 
 ready possesses the power of confiscation; that 
 the extraordinary powers which the Government 
 may wield in time of war, called war powers, be- 
 long to the President and not to Congress, and 
 in support of this proposition my colleague cites 
 the case of Luther vs. Borden, reported in 7 How- 
 ard. I will endeavor to show, as I think I can, 
 that such claims of prerogative on the part of the 
 President ai-e unwarranted by the Constitution, 
 against the practice of the Government from its 
 foundation, and that the case of Luther vs. Bor- 
 den, so far from being an authority for such as- 
 sumption, is an authority agauist it. 
 
 L There is not a syllable in the Constitution 
 conferring on the President war powers. The 
 Constitution simply makes him Commander-in- 
 Chief of the Army and Navy when called into 
 being, but he has no power to raise the one nor 
 provide the other. As Commander-in-Chief when 
 an army is raised, in the absence of any rules 
 adopted by Congress for its government, he would 
 have the right to control it, in the prosecution of 
 the war, according to his discretion, not violating 
 the established rules of civilized warfare, but he 
 would not have the right to confiscate enemy 
 property, because this is a power which can only 
 be exercised in pursuance of an act of Congress, 
 and does not belong to the Commander-in-Chief, 
 who, as such, could only seize and hold property 
 which was visible and tangible till the end of the 
 war, when it would revert to its original owner. 
 
 The Constitution says, "Congress" (not the 
 President) " shall have power to declai'e war; to 
 raise and support armies," and to " provide and 
 maintain a Navy." Story, in his Commentaries 
 on the Constitution, says: 
 
 " The power to declare war is exclusive in Congress." 
 ♦ * * * "It includes the exercise of a!l the 
 ordinary rights of belligerents, and Congress may, there- 
 fore, pass suitable laws to enforce them. They may au- 
 tJiiorize the seizure and condemnation of the property of 
 the enemy, within or without the territory of the United 
 States, and the confiscation of debts due to the enemy." 
 
 2. When armies and navies are raised by Con- 
 gress, of which the President is, by the Consti- 
 
 tution, made Commander-in-Chief, he can only 
 govern and regulate them as Congress shall direct; 
 because the Constitution says, " Congress shall 
 have power to make rules for the government and 
 regulation of the land and naval forces." As well 
 might it be said that, because the Constitution 
 declares that the President "shall take care that 
 the laws be faithfully executed," he is therefore 
 not bound, in discharging this duty, to conform 
 his action to the manner prescribed by Congress, 
 as that he can govern the Army as he pleases, 
 irrespective of the rules which Congress has es- 
 tablished. 
 
 3. It has been the practice of Congress, from 
 the organization of the Government, to control 
 the President in his government of the Army. 
 The first Congress which met under, the Consti- 
 tution adopted the rules and articles of war for the 
 government of the Army, as they existed under 
 the Confederation and before we had a President. 
 In 1806, Congress revised the rules and articles 
 for the government of the armies of the United 
 States, in an act containing more than a hundred 
 distinct articles, which, with few variations, are 
 now the law, whereby the mode of organizing, 
 officering, and governing the officers and men was 
 regulated with great minuteness. The fifty-eighth 
 article declares that — 
 
 " All public stores taken in the enemy's camp, towns, 
 forts, or magazines, whether of artillery, ammunition, 
 clothing, forage, or provisions, shall be secured for the ser- 
 vice of the United States, for the neglect of which the com- 
 manding officer is to be answerable." 
 
 Surely the men who made and put into operation 
 the Constitution understood very little of its pro- 
 visions when they passed such a law as this, if my 
 colleague is right in his assertion that " the war- 
 executing powers are vested in the President, in 
 the executive department of the Government, and 
 Congress has no more right to touch them or ex- 
 ercise them than it has to usurp and exercise the 
 judicial functions of the Government." How the 
 Senator from Pennsylvania who declared, with 
 such self-complacency, that the President " was 
 invested with the war-making power," that " he 
 is the commander directing and controlling it as 
 he pleases," must be shocked at the ignorance of 
 our fathers of the meaning of the Constitution 
 they had made, when he reads over the hundred 
 and one articles of war, and particularly the fifty- 
 eighth article, which directs what is to be done 
 with the public stores taken in the enemy's forts 
 and camps. 
 
 4. The advocates for this arbitrary power in the 
 
9 
 
 President, without limitation or restraint of any 
 kind, will find as little support for the assumption 
 in judicial decisions as in the Constitution and 
 the practice of the Government. Does not my 
 colleague know that all which he quoted from the 
 opinion of the court in the case of Luther t)s. Bor- 
 den, had reference to the power of the President 
 in calling out the militia in subordination to an 
 act of Congress, and had no reference whatever to 
 his power under the Constitution independent of 
 such an act? Does he not know that without 
 such act he could not call forth a man even to sup- 
 press insurrection or repel invasion? If not, I 
 refer him to the Constitution, which declares that 
 " Congress shall have power to provide for call- 
 ing forth the militia to execute the laws of the 
 Union, suppress insun-ection, and repel invasion." 
 That it was of the powers vested in the President 
 by virtue of an act of Congress passed in pursu- 
 ance of, this clause of the Constitution of which 
 tlie court spoke in the extracts read by my col- 
 league, and not of the President's power under 
 the Constitution independent of such an act, will 
 be apparent from a glance at a part of the opinion 
 which my colleague did notread. The court say: 
 
 " The fourth section of the fourth article of the Consti- 
 tution of the United States provides tliat tlie United States 
 Khali guaranty to every State in the Union a republican 
 form of government, and shall protect each of them against 
 invasion ; and on the application of the Legislature, or of 
 tlie Executive, (when the Legislature cannot be convened,) 
 against domestic violence. Under this article of the Con- 
 stitution, it rests with Congress to decide what government 
 is the established one in a State. 
 
 " So, too, as relates to the clause in the above-mentioned 
 article of the Constitution, providing for cases of domestic 
 violence. It rested with Congress, too, to determine upon 
 the means proper to be adopted to fulfill this guarantee. 
 They might, if they had deemed it most advisable to do so, 
 have placed it in the power of a court to decide when the 
 contingency had happened which required the Federal Gov- 
 ernment to interfere. But Congress thought otherwise, and 
 no doubt wisely; and by the act of February 28, 1795, 'pro- 
 vided that, in case of an insurrection in any State against 
 the government thereof, it shall be lawful for the President 
 of the United States, on application of the Legislature of 
 such State, or of the Executive, (when the Legislature can- 
 not be convened,) to call forth such number of the mililia 
 of any other State or States as may be applied for as he may 
 judge sufficient to suppress such insurrection.' By this act 
 the power of deciding whether the exigency had arisen 
 upon which the Government of the United States is bound 
 to interfere is given to the President." 
 
 What now becomes of this case as an author- 
 ity to show that the President possesses the war 
 pov/er without any act of Congress, when the 
 court say " by this act" not by the Constitution 
 
 " the power of deciding whether the exigency had 
 arisen, upon which the Government of the United 
 States is bound to interfere, is given to the Pres- 
 ident;" and that Congress " might, if they had 
 deemed it most advisable to do so, have placed it 
 in the power of the court to decide when the contin- 
 gency had happened which required the Federal 
 Government to interfere?" Because the court in a 
 subsequent part of their opinion argue to show 
 that the President, by virtue of his high ofRce, was 
 a proper person for Congress to vest with this 
 power, my colleague insists that therefore he had 
 itfrom the Constitution, when thecourt expressly 
 say he gets it from the act of Congress. My col- 
 league, by parenthetically inserting a few words 
 in his quotation of detached sentences of this opin- 
 ion entirely perverts its meaning. This will, 1 
 think, be apparent on my reading from his speech 
 some of the quotations with the interpolations. 
 Take the following: 
 
 " After the President [not Congress] has acted and called 
 out the militia, is a circuit court of the United States au- 
 thorized to inquire whether his decision was right?" * 
 * * * "It is said that this power [the war 
 power] in the Pre-stflont is dangerous to liberty, and may 
 be abused." 
 
 It will be observed that the words "not Con- 
 gress" and the words " the war power" are in- 
 terpolations. Now, the action of the President and 
 his power here spoken of were the action and 
 power to call forth the militia underact of Con- 
 gress, and not a denial of the power of Congress 
 itself to do it nor of" the war power," as the in- 
 terpolated parentheses would indicate. 
 
 But, sir, another decision of the Supreme Court 
 of the United States disposes of all these questions, 
 decides that the power of confiscation is vested in 
 Congress and nowhere else, that the President pos- 
 sesses no such power under the law of nations, 
 and that the modern usage or law of nations does 
 not of itself by its own force constitute a rule 
 which acts upon property except through the 
 sovereign power, the legislature. I refer to the 
 case of Brown vs. The United States, reported in 
 8 Cranch, (page 110,) in which the court say: 
 
 " Eespecting the power of Government no doubt is en- 
 tertained. That war gives to the sovereign full right to 
 take the persons and confiscate the property of the enemy 
 wherever found, is conceded. The mitigations of this rigid 
 rule, which humane and wise policy of modern times has 
 introduced into practice, will more or less affect the exer- 
 cise of this right, but cannot impair the right itself. That 
 remains undiminished, and when the sovereign authority 
 shall choose-to bring it into operation, the judicial depart 
 nient must give effect to its will. But until tliat will shall 
 
10 
 
 be expressed, no p»vver of jcondemnation can exist In the 
 court." ********* 
 
 "War gives an equal right over persons and property; 
 and if its declaration is not considered as prescribing a law 
 respecting the person of an enemy found in our country, 
 neither docs it prescribe a law for his property. The act 
 concerning alien enemies, which confers on the President 
 very great discretionary powers respecting their persons, 
 affords a strong implication that lie did not possess those 
 powers by virtue of the declaration of war. 
 
 " The ' act for the safe-keeping and accommodation of 
 prisoners of war,' is of the same character. 
 
 "The act prohibiting trade witli the enemy contains this 
 clause : ' ^nd be it further enacted, Tiiat the President of 
 the United States be, and he is hereby, authorized to give, 
 at any time within six months after the passage of this act, 
 passports for the safe transportation of any ship or other 
 property belonging to British subjects, and wliich is now 
 within the limits of the United States.' 
 
 "The phraseology of this law shows that the property of 
 a Britisli subject was not considered by the legislature as 
 being vested in the United States by the declaration of war ; 
 and the authority which the act conferson the Presidentis 
 manifestly considered as one which he did not previously 
 possess. 
 
 " It is urged that, in executing the laws of war, the Exec- 
 utive may seize and tlie courts condemn all property which, 
 according to the modern law of nations, is subject to con- 
 fiscation ; although it might require an act of tbe legisla- 
 ture to justify the condemnation of that property which, 
 according to modern usage, ought not to be confiscated. 
 
 " This argument must assume for its basis the position 
 tiiat modern usage constitutes a rule whicli acts directly 
 upon the thing itself by its own force, and not through the 
 sovereign power. Tliis position is not allovi'ed. Thisusage 
 is a guide which the sovereign follows or abandons at his 
 will. The rule, like other precepts of morality, of human- 
 ity, and even of wisdom, is addressed to the judgment of the 
 sovereign, and although it cannot be disregarded by him 
 without obloquy, yet it may be disregarded. 
 
 "The rule is, in its nature, flexible. It is subject to in- 
 finite modification. It is not an immutable rule of law, but 
 depends on political considerations, which may continually 
 vary. 
 
 " Commercial nations, in the situation of the United 
 States, have always a considerable quantity of properly in 
 the possession of their neighbors. When war breaks out, 
 the question, what shall be done with enemy property in 
 our country, is a question rather of policy than of law. The 
 rule which we apply to the property of our enemy will be 
 applied by him to the property of our citizens. Like all 
 other questions of policy, it is proper for the consideration 
 of a department which ean modify it at will, not for the 
 consideration of a department which can pursue only llje 
 Jaw as it is written. It is proper for the consideration of 
 the legislature, not of the executive or judiciary. 
 
 " It appears to the court, that the power of confiscating 
 enemy property is in the legislature, and that the legisla- 
 ture has not yet declared its will to confiscate property 
 which was within our territory at the declaration of war." 
 Chief Justice Marshall, in this opinion, effect- 
 ually disposes of the assumption thatthe Execu- 
 tive may seize and the courts condemn all property 
 
 which, according to the modern law of nations, is 
 subject to condemnation, as well as of that other 
 assumption that there is a law of nations higher 
 and above the sovereign power of the Stale, by 
 declaring that such law is but a guide which the 
 sovereign follov/s or abandons at will, and that 
 although it cannot be disregarded without oblo-i^ 
 quy, yet it may be disregarded. If this were not 
 so, the extraordinary spectacle might be presented 
 of the courts of a country disavowing and annull- 
 ing the acts of their own Government in matters 
 of state and political diplomacy. 
 
 Another objection urged to the bill is, that it 
 confiscates the property of all absent rebels, in- 
 cluding those who have been unwillingly forced 
 into the confederate service as well as those who 
 have voluntarily entered it. A moment's reflec- 
 tion must satisfy all that this objection is without 
 force, for no court or commission would ever en- 
 force a penalty against a person who had been 
 compelled by force to commit the act of forfeiture. 
 The principle of law is too well settled to require 
 discussion, that no man can be held responsible 
 for acts which he had not the power to prevent; 
 nor is any saving clause necessary in the bill to 
 protect the property of those forced into the rebel- 
 lion from forfeiture, any more than there is for 
 such a clause to protect a man found among a band 
 of robbers or pirates, when he was able to show 
 that he had been forced to join them. But if the 
 bill were obnoxious to this objection, which, in 
 my opinion, it is not, it would be easy to obviate 
 the difficulty by limiting its operation to the prop- 
 erty of such absent persons as shall join the re- 
 bellion without restraint. 
 
 Having shown, as I think, that the bill is not 
 of the sweeping character represented by Senators 
 who have spoken against it, that it is not obnox- 
 ious to the charges of unconstitutionalty which 
 they have made, and that the war power is not in 
 the President, but in Congress, which has exer- 
 cised it from the foundation of the Government, 
 I assume, as positions which cannot be success- 
 fully controverted, that Congress, in providing for 
 the prosecution of the war against the rebels, has 
 a right to direct that such means shall be resorted 
 to as it believes necessary and proper for the at- 
 tainment of the end of the war, which is the s«p- 
 pression of the rebellion; and that no court can 
 set aside or annul any action which Congress may 
 take in the premises, for the reason that the Con- 
 stitution, by vesting in Congress the express power 
 " to declare war," "to raise and support armies," 
 
11 
 
 provide for their government, *• make rules con- 
 cerning captures on land and water," and for sup- 
 pressing insurrection by force, has vested it also 
 with the discretion of determining what means are 
 necessary and proper to enable it to carry into 
 effect these granted powers. It does not belong 
 to the courts to determine how a war shall be pros- 
 ecuted, or what shall be done with the persons or 
 property of an enemy. Those are questions de- 
 pending on political considerations, which may 
 continually vary, and to be judged of by the sov- 
 ereign power, which in this country is the people, 
 who speak through their Representatives in Con- 
 gress so for as war matters are concerned. All 
 the courts can do is to aid in giving effect to the 
 sovereign will when expressed. The position that 
 in executing the laws of war, the Executive may 
 seize and the courts condemn all property, which, 
 according to the modern law of nations is subject 
 to confiscation, in the language of the Supreme 
 Court already quoted, " is not allowed," because 
 this law of nations, as the court say, is only " a 
 guide which the sovereign follows or abandons 
 af his will." It is wholly dependent on our Gov- 
 ernment for its being recognized here at all. The 
 rule in regard to the seizure and appropriation of 
 enemy property is stated in these words by writers 
 on international law: 
 
 " From the moment one State is at war witli another, it 
 lias, on general principles, a right to seize all the enemy's 
 property, of whatsoever kind and wheresoever found, and 
 fo appropriate the property thus taken to its own use or to 
 that of the captors." 
 
 My colleague in speaking of belligerent rights, 
 said: 
 
 "One of these is the right to take, confiscate, appropri- 
 ate, and dispose of, as we please, absolutely and forever, 
 all tlie movalile property of every kind and character be- 
 longing to the enemy individually and collectively, which 
 has any relation to the end of the war, and which tends to 
 our advantage by strengthening us or by weakening the 
 enemy, and diminishing his ability to carry on tlie war and 
 do us injury. 
 
 " The exercise of tliis belligerent power, the assertion of 
 this belligerent right of seizure and confiscation, in no sense 
 and to no extent endangers the liberty of the citizen, nor 
 is there the least occasion for alarm in that regard." 
 
 This may seem strange language on the part of 
 my colleague, when compared with another part 
 of his speech, in which he denounces this bill, 
 which does not propose to touch the property of 
 a single rebel, even, whose person is within the 
 reach of judicial process, in these words: 
 
 "The sure andcertaineffectof this bill would be to make 
 peace and reunion an impossible thing. It would fill the 
 
 hearts of the entire people with despair, and nerve their 
 arms with the energy and desperation which despair in- 
 spires. It would turn to the blackness of night the lastglim- 
 meringhope of future fraternity between now alienated and 
 exasperated brethren." 
 
 What so alarms and horrifies my colleague and 
 the Senator from Pennsylvania [Mr. Cowan] is 
 not that rebel property, to a limited extent, is pro- 
 posed to be confiscated, but that it is proposed to 
 be done in pursuance of laws enacted by the peo- 
 ple's representatives in Congress assembled, and 
 not left to the will and caprice of the President, 
 without limitation or restraint of any kind or char- 
 acter upon. his power; and that, too, as I insist, 
 and think I have shown, in defiance of the very 
 terms of the Constitution, and of the well-con- 
 sidered decision of the Supreme Court in the case 
 of Brown vs. United States already referred to. 
 
 But my object in making these quotations from 
 my colleague's speech was not to expose his in- 
 consistencies, but to establish what were the rights 
 of a belligerent, as even the opponents of this bill 
 admit. I admit the correctness of my colleague's 
 definition, except in his limitation of the power of 
 confiscation to "movable property." Neither 
 the elementary writers upon international law or 
 the Supreme Court make any such limitation. 
 Its propriety is another question; and for one, 1 
 am unwilling that rebel chiefs, like Slidell and 
 Mason, who are said to be large landholders in the 
 loyal States, and have escaped to foreign lands, 
 should be permitted to enjoy the fruits of their 
 estates situated within our jurisdiction, while the 
 lives and property of thousands of loyal men have 
 been sacrificed and a debt incurred which will be 
 a burden on the country for generations to come 
 in consequence of the wicked rebellion which 
 they have inaugurated. 
 
 That we have the right to exercise belligerent 
 rights towards the persons and property of those 
 in arms against the Government, and who are 
 fighting for its overthrow, even the opponents of 
 this bill admit. When a rebellion becomes iso 
 formidable as to be able to muster armies of hun- 
 dreds of thousands of men and maintain itself in 
 arms against the forces of the Government for 
 almost a year, it surely has attained a magnitude 
 entitling it to be called a civil war; and interna- 
 tional law writers agree that the common laws of 
 war are to be observed in a civil war in the same 
 manner as in a war between independent States. 
 If, therefore, in waging war against a foreign 
 nation,the United States could confiscate the prop- 
 erty of the enemy through an act of Congress, 
 
12 
 
 and only in pursuance of an act of Congress, as 
 decided by the Supreme Court, it follows that they 
 may now confiscate the property of the rebels. 
 It matters not whether the war we are waging 
 be with foreign or domestic enemies, our rights 
 against them are the same while the war contin- 
 ues; and in the prosecution of the war we have a 
 right, for the time being, to treat all parts of the 
 country which are in possession of the rebels, and 
 where the laws of the Union are overborne, as 
 foreign. 
 
 This principle was s.ettled by a decision of the 
 Supreme Court in the case of the United States 
 vs. E.ice, (4 Wheaton, 246,) in which it was held 
 that the town of Castine, in Maine, which was 
 taken possession of and occupied by the British 
 for several months during the war of 1812, was, 
 while in their possession, as respects our revenue 
 laws, to be deemed a foreign country, so that goods 
 imported into it were not imported into the Uni- 
 ted Slates, nor subject to the payment of duties; 
 and if a portion of the Union occupied by the en- 
 emy may be treated as foreign for revenue, why 
 not also for confiscation purposes? All the de- 
 partments of the Government — executive, legis- 
 lative, and judicial — have, for certain purposes, 
 already treated those parts of the Union in pos- 
 session and under the control of the rebels as for- 
 eign, and the rebels themselves as enemies orbel- 
 ligerents. This has been done by the passage of 
 a non-intercourse act; by the blockade of the rebel 
 coast; by the condemnation, as lav/ful prize, of 
 vessels attempting to run the blockade; by the in- 
 terchange of flags of truce, the exchange of pris- 
 oners, and in various other ways. Thus treating 
 a portion of the Union as foreign for war pur- 
 poses, and the rebels as belligerents, while it gives 
 us, du ring the con tinuance of the war, all the rights 
 which we could exercise against the property and 
 persons of foreign enemies, does not impair our 
 right when the laws of the Union shall be estab- 
 lished over the rebellious districts, and the rebels 
 themselves reduced to subjection, to treat them as 
 traitors and punish them for their crimes, which 
 I trust will be done, at least so far as the leaders 
 are concerned. 
 
 Vattel, who insists that the common laws of 
 war should be observed in every civil war, says 
 on this subject: 
 
 " When tlie sovereign has subdued the opposite party, 
 and reduced them to submit and sue for peace, he may ex- 
 cept from the amnesty the authors of the disturbances— the 
 leaders of the party ; he may bring them to a legal trial, and 
 punish th«m if they be found guilty," 
 
 But it is said the passage of this bill, admitting 
 its constitutionality, would be inexpedient; that 
 it would make the rebels desperate, and unite the 
 South as one man against the Union. How so, 
 let me ask ? It does not propose to touch the prop- 
 erty of any loyal citizen, and why, therefore, 
 should it drive him against the Union .' Are there 
 no loyal persons in the South, or is their love for 
 the traitors who have driven them from their 
 homes and robbed them of theirproperty so strong 
 that rather than take rebel property to help defray 
 the expense of maintaining the Government 
 against the i-ebellion, they would themselves turn 
 traitors.' Surely this would exhibit a weakness 
 and compassion for enemies, and a malignity 
 and hatred of friends, such as the world never 
 before witnessed. Besides, sir, not to confiscate 
 the property of rebels is to encourage future rebel- 
 lions. Wherever the rebels bear sway they have 
 not hesitated to confiscate the property of loyal 
 citizens; and if now, as the authority of the Union 
 is restored, the persons who have robbed loyal 
 citizens are to be protected in their property, what 
 is it but saying to the people of the country, that 
 whenever a future insurrection arises, the sure 
 way to protect their property will be to join in it; 
 and what is this but to offer a premium for trea- 
 son.' To show the effects of this in individual 
 cases, I quote from a letter received within a few 
 days from a gentleman in New York, who says: 
 
 "I hold a mortgage for $35,000 on a plantation sold by me 
 In Mississippi. This plantation is not far from one belong- 
 ing to Jeff Davis. My mortgage is confiscated; myself and 
 family are heavily embarrassed by engagements predicated 
 upon this mortgage. We are Innocent parties; Jeff Davis 
 is guilty ; and why should he be allowed to escape unharmed 
 after entailing bankruptcy upon loyal individuals and deso- 
 lation through a whole section .'" 
 
 This is but one case of which there are hundreds 
 of thousands all through the South. But few of 
 those engaged in this rebellion will ever be made 
 to suffer in their persons; and if they are to be left 
 in the full possession and enjoyment of their cotton, 
 their lands, and their negroes, the innocent will 
 have been made to suffer while the guilty will go 
 unpunished. The enhanced price which the rebels 
 will get for their sugar and cotton at the close of 
 the war will contrrbute largely towards making 
 up the losses they have incurred by their rebellion , 
 while loyal farmers, manufacturers, merchants, 
 and, indeed, all classesof loyal citizens both North 
 and South, will be impoverished to the extent of 
 P,000,000,000. Tens of thousands of lives will 
 be sacrificed, hundreds of thousands of men will 
 

 13 
 
 £?ir 
 
 be crippled forlife, hundreds of thousands of others 
 will be left orphans on the bounty of the nation, 
 while the authors of all this misery will escape 
 almost entirely unhurt, unless their property is 
 made to pay the penalty. Is this just? Shall the 
 innocent, loyal, and patriotic citizens of my own 
 State, who have contributed so liberally of their 
 blood to the maintenance of the Union and the 
 preservation of constitutional liberty, be deprived 
 of their property to pay the expenses of this war, 
 while they who prosecute it against the Union are 
 permitted to enjoy theirs? Shall the fathers of the 
 gallant sons whose mangled bodies have been 
 borne back to Illinois by hundreds, from the bloody 
 fields of Belmont, of Donelson, and Pea Ridge, be 
 ground down by onerous taxes, which shall de- 
 scend upon their children to the third and fourth 
 generations to defray the expenses of defending 
 the Government against traitors, and we forbear to 
 touch even the property of the authors of these 
 calamities, whose persons are beyond our reach? 
 Suppose ye that the loyal people of this country 
 will submit to such injustice? 
 
 I believe I represent as loyal, as patriotic, and 
 as brave a constituency as any other Senator. I 
 claim nothing more. If western men have fought 
 more battles and won more victories for the Union 
 than their brethren of the East, it is because they 
 have had more opportunities. It has been their 
 good fortune to be led against the enemy instead 
 of being idly confined in camps. The capture of 
 Newbern, chiefly by New England troops under 
 the gallant Burnside, shows that the eastern army 
 needs but to be led against the enemy to drive him 
 from Virginia and the Carolinas as effectually as 
 he has been expelled from Missouri and Ken- 
 tucky. While, therefore, I am proud of the part 
 which the soldiers of my own State took in de- 
 feating the enemy in the West, I do not claim for 
 them any superiority over the other soldiers- of 
 the Republic. The brave men who besieged Don- 
 elson, and who, after fighting through the day for 
 three consecutive days, lay each night on the 
 ground without shelter, exposed to the rain and 
 the sleet, were chiefly Illinoisans. It was there 
 that rebellion received the heavy blow which has 
 staggered it ever since. Forty dead bodies were 
 borne from that bloody field to one small town in 
 .my State and buried in a common grave. The 
 Union forces at Pea Ridge were also largely made 
 up of soldiers from Illinois. Suppose ye, that I 
 can go back to Illinois, among the relatives of 
 those who have been cruelly destroyed, and pro- 
 
 pose to levy taxes upon'tJiem in order to concil- 
 iate and compensate the murderers, for that is 
 really what exempting rebel property from confis- 
 cation amounts to ? Sir, I know not if they would 
 submit to such injustice; and yet there are those 
 who not only talk of an amnesty to the men who 
 have brought these troubles upon the country, but 
 oppose providing the mild punishment of confis- 
 cation of property for those who shall continue 
 hereafter to war upon the Government, and whose 
 persons are beyond our reach . I am surprised 
 that a bill of this character should meet with op- 
 position from Senators of the border States whose 
 loyal citizens the rebels, whenever they have had 
 the power, have robbed, plundered, and driven 
 from their homes. Do gentlemen regard it as con- 
 ciliatory to oblige us to lay taxesupon those whose 
 habitations have been consumed, to reward those 
 who have burned them ? upon those whose whole 
 property has been stolen, to reward the thieves? 
 upon those whose relatives have been slain, to 
 compensate the murderers? In my judgment, 
 justice, humanity, and mercy herself, all demand 
 that we at once provide that the supporters of this 
 cruel and wicked rebellion should henceforth be 
 made to feel its burdens. 
 
 To the most important features in the bill under 
 consideration I have thus far made no allusion. 
 They are the second and third sections of the bill. 
 The second section is in these words: 
 
 ^nd be it further enacted, Tliat every person liaving claim 
 to the service or labor of any other person in any State 
 under the laws thereof, who during the present rebellion 
 shall take up arms against the United States, or in any man- 
 ner give aid and comfort to said rebellion, shall thereby 
 fonllwith forfeit all claim to such service or labor, and the 
 persons from whom it is claimed to be due, commonly called 
 slaves, shall, ipso /acfo, on ihe commission of the act of for- 
 feiture by the party having claim to the service or labor as 
 aforesaid, be discharged therefrom, and become forever 
 thereafter free persons, any law of any State, or of the United 
 States, to the contrary notwithstanding. And 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 proceeding with the trial of 
 his claim, satisfactorily prove that he is and has been dur- 
 ing the existing rebellion loyal to the Government of the 
 United States. And no person engaged in the military or 
 naval service of the United Statesshall. under any pretense 
 whatever, assume to decide on the validity of the claim of 
 any person to the service or labor of any other person, or to 
 surrenderup any such person to the claimant. 
 
 The third section makes it the duty of the Presi- 
 dent to provide for the colonization and protection, 
 as freemen, in some tropical country, of such of 
 the African race made free by the previous section , 
 
14 
 
 ■ ; ^, . : 
 
 as may desire to emigrate. Slavery is admitted, 
 by most loyal citizens, to have been the cause 
 of this wicked rebtllion; and it is also very gen- 
 erally admitted that the Federal Government has 
 no power under the Constitution to remove this 
 cause by abolishing slavery in the States. I, in 
 common with Republicans generally, have often 
 declared that Congress was not responsible for and 
 had no power under the Constitution to interfere 
 with slavery in the States. I say so to-day; and 
 because the Republican party generally has main- 
 tained this position, the Senator from Pennsyl- 
 vnia, [Mr. Cowan,] in the name of Republican- 
 ism, arraigns those of us who are in favor of this 
 bill as acting inconsistently with our professions. 
 He has probably been misled by the title of the bill, 
 which might m^ore properly be styled a bill to dis- 
 courage rebellion, than " a bill to confiscate the 
 pro|ierly and free the slaves of rebels;" for, sir, 
 this bill does not make a rebel of anybody, nor 
 of itself free a single slave. If a slave gets his free- 
 dom under it, it will be by the voluntary act of his 
 rebel master. Surely the Republican party never 
 pledged itself not to. pass a law to punish rebels. 
 
 Suppose before this rebellion broke out a slave 
 had been detected in robbing the mail: would the 
 Senator from Pennsylvania have considered the 
 Republican parly bound by its pledges not to pun- 
 ish the slave for his crime, lest in so doing it should 
 interfere with slavery.' Suppose a servile insur- 
 rection to have broken out in some southern State, 
 and the State to have called on the Federal Gov- 
 ernment to furnish aid for its suppression: would 
 the Senator have considered the Republican party 
 bound not to respond to this constitutional call 
 lest it should interfere with slavery in a State.' Or 
 suppose the slaves of the South shouldbearmed by 
 their rebel masters and marshaled to fight against 
 the Union: would the Republican Senator from 
 Pennsylvania hesitate to direct the Union armies to 
 shoot them on the battle-field, lest in so doing they 
 should interfere with slavery ? I presume the Sen- 
 ator would do none of these things. Neither Con- 
 gress nor the General Government can do any- 
 thing directly for the purpose of interfering with 
 slavery in a State. This I admit to its fullest ex- 
 tent; but Congress may and ought to provide for 
 the punishment of crimes committed against the 
 laws of the Union; it may and ought to provide 
 for the suppression of i-ebellion; and if in doing 
 this slavery suffers, or is interfered with, it is not 
 the Government which makes the interference, 
 but they who violate the laws and war against the 
 
 Government. So, if any slave shall ever obtain 
 his freedom under this bill, it will be in conse- 
 quence of the acts of his rebel master, and I am 
 not aware that the Republican party ever pledged 
 itself not to allow the owners of slaves to make 
 them free. 
 
 I would to God that every rebel in the land 
 would to-morrow ground the weapons of his re- 
 bellion, return to las allegiance, and to obedience 
 to the laws and Constitution. In that event this 
 bill if passed into a law would have no effect 
 either upon his property or his slaves; but if he 
 will continue in rebellion againstthe Government, 
 to plunder and murder loyal citizens, I have never 
 pledged myself as a Republican not to mete out 
 to him the punishment his crimes deserve. If 
 this rebellion should result in freeing the slaves 
 of rebels, it will not be the first time in the history 
 of the world that good has come out of evil; but 
 it will not be the act of Congress which makes 
 them free any more than it is the act of Congress 
 punishing the crime of larceny that makes a man 
 a thief. 
 
 It has been said that Congress possesses no 
 more power to pass this bill now than in a time of 
 peace. I assent to the proposition, and insist that it 
 would have been perfectly competent for Congress 
 to have passed such a bill at any time. Like all 
 criminal laws, it would remain inoperative upon 
 the statute-book till the offense was committed for 
 which it provided the penalty, when it would come 
 into play for the purpose of punishing the offend- 
 ers. It so happens, in the providence of God, that 
 most of those who own slaves are now in arms 
 against the Government. This gives to the Gov- 
 ernment the power to destroy them and all they 
 possessif necessary to suppress the rebellion; and 
 Congress is vested by the Constitution with the 
 discretion ofdetermining what means shall be used 
 to accomplish the object; not only so, but it is 
 made the duty of Congress to provide for sup- 
 pressing the insurrection. In making this provis- 
 ion, is it not wise that Congress should so act, 
 that if men will fight and war against the Govern- 
 ment, they shall not do so without the loss of that 
 species of property which has been the impelling 
 power to drive them into rebellion, and thereby 
 take away any motive for repeating the experi- 
 ment when this rebellion shall have been sup- 
 pressed? Such an opportunity to strike a blow 
 for freedom seldom occurs as that now presented 
 to the American Congress. 
 
 As most of the owners of slaves are engaged in 
 
it' 
 
 15 
 
 the rebellion Land will probably continue so for 
 some time, the effect would be, if this bill were 
 speedily enacted into a law, that they would by 
 their own act give freedom to most of the slaves 
 in the country, and thus would be solved, in a 
 great measure, through the agency of this wicked 
 rebellion, the great question, what is to be done 
 with African slavery ? a subject in view of which 
 Jefferson, in his day, exclaimed, that " he trem- 
 bled when he remembered that God was just." I 
 appeal to Senators as philanthropists, as patriots, 
 as lovers of the Union and of constitutional lib- 
 erty, not to let pass this opportunity which a 
 wicked rebellion presents, of making it the means 
 of giving freedom to millions of the human race, 
 and thereby destroying to a great extent the 
 source and origin of the rebellioH, and the only 
 thing which has ever seriously threatened the 
 peace of the Union. 
 
 Having, as I think, shown that the right to con- 
 fiscate enemy property exists; that for this pur- 
 pose the rebels may properly be treated as enemies ; 
 
 that confiscation can be effected only through an 
 act of Congress; that the bill under consideration 
 is constitutional; and that it is both wise and ex- 
 pedient to take from those who shall continue to 
 fight against the Government after the passage of 
 this act, and whose persons are beyond the reach 
 of punishment, their property and their slaves so 
 far as they are within our reach, I appeal to all 
 those who favor these views to stand together, 
 and let us passj,he bill at as early a day as pos- 
 sible, with such modifications and amendments as 
 may be thought advisable, not losing sight of the 
 great object in view. It is no time to talk of am- 
 nesties and conciliation, when the habitations of 
 loyal citizens are being plundered and their lives 
 destroyed. When the rebels, whose hands are 
 dripping with the blood of loyal citizens, shall 
 have grounded their arms, it will be time enough 
 to talk of clemency; but to have our sympathies 
 excited in their behalf now, when fighting to over- 
 throw the Government, is cruelty to the loyal men 
 who have rallied to its support.