E 
 4-8 o 
 
Class J 4^0 
 Book •K'59 
 
CONFISOATEI) PROPERTY. 
 
 SPEECH 
 
 HON. F. KERN AN, OF NEW YORK, 
 
 DELIVERED 
 
 IN THE HOUSE OP REPRESENTATIVES, FEBRUARY i, 1861. 
 
 The Joint Resolution to amend the Act to sup- 
 press insurrection, to punish treason and rebellion, 
 to seize and confiscate the property of rebels, and 
 for other purposes, being under consideration — 
 
 Mr. KERN AN said: 
 
 Mb. Speaker : I am very reluctant to occupy 
 ^the time of the House, and it waa upon no 
 suggestion of mine that objection was made 
 to the chairman of the Committee on the Ju- 
 diciary closing the debate, to the end that I 
 should say a few words. I had a desire at an 
 earlier stage of this debate to state my views 
 in reference to this question. 
 
 Sir, as I have observed this discussion, 
 and as I understand it, those who insi'st that 
 the Federal Government can forfeit the lands 
 of the people in rebellion in fee, may proper- 
 ly be divided into three classes, first, those 
 who insist that by a correct interpretation of 
 the Constitution we can so forfeit them ; sec- 
 ondly, those who insist that though, when we 
 punish traitors by a trial and conviction, we 
 cannot forfeit their lands in fee, nevertheless 
 we may in some other mode than by trial and 
 conviction punish them by a forfeiture in fee ; 
 and, thirdly, those who insist that the law 
 under consideration has nothing to do with 
 treason ; that we are not dealing with traitors 
 in the eye of the law ; are not seeking to pun- 
 ish them for treason ; but that we are dealing 
 with them as belligerents, and, by virtue of 
 the law of nations, may confiscate their lands 
 forever. 
 
 I dissent from these propositions, and al- 
 though I must express myself briefly, I de- 
 sire to say a few words upon each of these 
 points. I regard the question involved a very 
 important one ; I feel as earnestly as man can 
 feel, that the policy of Congress in reference 
 to this question of confiscation has very much 
 to do with the present and future welfare of 
 the country ; and I would urge upon our pol- 
 itical opponents that they have as deep an in- 
 terest in this question as we have, their wel- 
 fare is bound up in preservation of this Gov- 
 ernment and this Union, and if we can satisfy 
 them that this policy of confiscation is unwise, 
 that it does not tend to the preservation of this 
 
 Union and this Government, I should hope that 
 they would vote with us on this question ; and 
 I appeal to each man — not in the hope that 
 in a brief half hour I can argue them into 
 my belief — but I appeal to every man who 
 differs with me to consult his own good judg- 
 ment, and then say whether we can pass this 
 law without violating the Constitution, with- 
 out running against the laws of nations, or 
 without inaugurating a policy which will be 
 destructive rather than preservative of this 
 Government in which we have all so much at 
 stake. 
 
 And, sir, first, what is the correct interpre- 
 tation of the Constitution on this subject, and 
 to that point I shall give but a few minutes 
 of the time accorded to me. Let it be re- 
 membered that when the Constitution was 
 made, there were but two modes by the law 
 of England by which a man's property could 
 be forfeited in punishment of treason ; one 
 was by bill of attainder, by an act of Parlia- 
 ment which condemned a man and forfeited 
 his estate without allowing him to be heard 
 in a court of justice, and without any of the 
 safeguards which, by the law of England, in 
 the most arbitrary times, a man had, when he 
 was brought into a court of justice and con- 
 demned through its instrumentality. 
 
 This mode the Constitution expressly p^fo- 
 hibits in the language so often alluded to, 
 "No bill of attainder or ex post facto law 
 shall be passed." This mode of forfeiting 
 estates for treason, to wit, by act of Par- 
 liament, equivalent under our form of Gov- 
 ernment to doing so by act of Congress, the 
 framers of the Constitution deeijaed it wise to 
 forbid absolutely, and they did so in the first 
 article of that instrument by the provision I 
 have stated. .;. 
 
 There was then left the other mode known 
 to the law of England of forfeiting a man's 
 estate for treason, a political offense, namely, 
 by trial and co;idemnation by a court of jus- 
 tice. The framers of the Constitution made 
 provisions as to this mode. In article three, 
 section three, they define treason ; they de- 
 clare that no person shall be convicted of this 
 crime unless on the testimony of two wit- 
 
fI_-TO 
 
 K^^ 
 
 nesses, or on Mb confession in open court, and 
 that Congress shall have power to punish it, 
 hut in the same clause they provide that '• no 
 attainder of treason shall work corruption of 
 blood, or forfeiture except during the life of the 
 person attainted." 
 
 Now, sir, mark that the framers of the Con- 
 stitution were in this article dealing with the 
 only mode known to the law of England, after 
 'the bill of attainder was abolished, by which 
 a person could be punished by forfeiture of 
 his estate for treason. They prescribe that 
 "no attainder of treason" shall work forfeiture 
 of estate except during the life of the person. 
 What is the meaning of *' attainder of trea- 
 son" in legal language f It is the effect, the 
 consequence of judgment pronounced by the 
 court against a person who had been tried 
 and convicted of treason. Blackstone says : 
 
 " Upon judgment of death, and not before, the at- 
 tainder of a criminal eommeneesj and therefore 
 either upon judgment of outlawry or of death for 
 treason or felony, a man shall be said to be attain- 
 ted." 
 
 Again lie says : 
 
 " Forfeiture does not take effect unless an attain- 
 der he had, of which it is one of the fruits j and 
 therefore if a traitor dies before judgment is pro- 
 nounced, or is killed in open rebellion, or is hanged 
 by martial law, it works no forfeiture of his land, 
 for he never was attainted of treason." 
 
 That is, he never was convicted and judg- 
 ment pronounced against him for treason. 
 "Attainder of treason," therefore, in its legal 
 and constitutional sense, signifies one^of the 
 consequences, one of the effects of conviction 
 and judgment by a court for the crime of trea- 
 son. This effect, by the law of England at 
 the time the Constitution was made, was the 
 forfeiture of the estate of the offender. When, 
 therefore, the framers of the Constitution, in 
 the article which defines treason, prescribe 
 the evidence requisite to convict, and grant 
 the power to Congress to declare its punish- 
 ment, and declare that "no attainder of trea- 
 son," that is, no conviction and judgment 
 against a person for treason, shall work a for- 
 feiture of his estate except during his life, is 
 it not clear that they intended to, and by the 
 language used clearly did, limit the power of 
 Congress in punishing by forfeiture to the tak- 
 ing of a life estate ? Is it not clear that we 
 are forbidden by the Constitution to forfeit 
 the lands of those in rebellion by way of pun- 
 ishment for their treason against the Govern- 
 ment, beyond their estates therein for life ? 
 
 This is the construction given to this , por- 
 tion of the Constitution by Mr. Madison in the 
 Federalist. Judge Story is clear and unequivo- 
 cal that this is its meaning. In section twelve 
 hundred and ninety -two of his Commentaries 
 on the Constitution, after speaking of the 
 grant of power to Congress to declare the 
 punishment of treason, he says : 
 
 " Two motives probably concurred in introduc- 
 ing it as an express power. One was, not to leave 
 it open to implication whether it was to be exclu- 
 sively punishable with death according to the known 
 
 rule of the common law, and with the barbarous 
 accompaniments pointed out by it; but to confide 
 the punishment to the discretion of Congress. The' 
 other was to impose some limitation upon the na- 
 ture and estent of the punishment, so that it should 
 not work corruption of blood &i forfeiture beyond 
 the life of the offender." 
 
 I appeal to gentlemen whether they will 
 at this time, in the midst ©f civil war, un- 
 der the influence, to a greater or less de- 
 gree, of the passions which civil war always 
 excites, attempt by ingenuity to interpret the 
 Constitution differently from the sages who 
 framed, and the learned commentator who, in 
 peaceful times, gave . a construction to this 
 part of it which commanded the approval of 
 all who sought a correct interpretation of it. 
 Unless the latter part of the clause of the 
 Constitution under consideration limits the 
 power of Congress in punishing treason by 
 forfeiture, why was it inserted at all? The 
 first part of the clause grants to Congress the 
 power to declare the punishment of treason. 
 If it was intended that there should be power 
 to forfeit estates in fee the latter part is mean- 
 ingless, I submit. 
 
 Again, there is another fact to which I wish 
 to call attention. Every man interpreting 
 the Constitution or a statute should see what 
 the law was when it was made. What was 
 the law of England on this subject when our 
 Constitution was made ? The framers of the 
 Constitution were naturally acting on this 
 subject in reference to the laws of England, 
 whence we drew most of our laws and most of 
 our traditions . Now, it should be re member ed 
 that as early as 1708, by twenty- first chapter 
 of Anne, the British Parliament abolished 
 forfeiture for treason beyond the life of the 
 offender. Chancellor Kent says that the hu- 
 manizing and christianizing influence of mod- 
 ern times and the force of public opinion had 
 wrought to that degree in England, a land at 
 that time often torn by treasonable factions 
 and practices, that by that statute they chang- 
 ed their law ; and although it may be true, 
 qs the gentleman from "Vermont [Mr. Wood- 
 bkidge} stated this morning, that in England 
 the tenures to lands ^are different from ours, 
 yet this was so then; and from that time 
 down to this the law has been that no convic- 
 tion of treason produced a forfeiture of estatt, 
 beyond the life of the party convicted. The 
 founders of our Government, the framers of a 
 Constitution for a country which from its in- , 
 stitutions would naturally have political ex- 
 citements, factions, and treasonable practices 
 perchance, think you that they meant to leave 
 to the majority the right to do, in reference 
 to forfeiting lands in punishment of treason, 
 that which had been abolished in England for 
 more than fifty years at the time this Consti- 
 tution was made ? 
 
 I therefore submit to gentlemen, to law- 
 yers, to statesmen, to the construers of con- 
 stitutions and statutes, whether they will 
 stand for a moment on the interpretation 
 that, by a fair reading of the Constitution, 
 
 Weat. Ees. Hist;. 8oc. 
 
we liave power to take away as punisliment 
 for treason anytSing but the life estate of the 
 off-'Tider. 
 
 Mr. DAVIS, of Maryland, My respect for 
 the gentlemau's' opinion as a lawyer moves 
 me to ask hiixi to indulge me in putting to him 
 a single question ca which I wi=h to have his 
 opinion. 
 
 Mr. KERNAN. I will hear the gentleman's 
 question. 
 
 Mr. DATI3, of Mllyland. Does the gen 
 tleman suppose that the prohibition in the 
 Constitution applies to personal property as 
 well as to real estate f 
 
 Mr. KERNAN. Well, sir, I myself would 
 so suppose on reading the Constitution, and I 
 cannot see why it ought not to be so. And 
 yet, altlK^ugh I have thought on that subject, 
 the gentleman ^om Maryland will pardon me 
 for not wishing to discuss it now, because 
 "sufficient unto the day is the evil thereof." 
 This legislation is with reference to taking 
 the lands of the people of the South and con- 
 fiscating them forever, it is our power to 
 do this which I wish now to discuss. I fear 
 it will be one of the most disastrous lines of 
 policy on which w« can enter, hoping and de- 
 siring as I do that we shall bring the mass of 
 the inheritors of these lands and their fathers 
 to live with us and our children in peace in the 
 old Union and under a common Government. 
 
 Gentlemen see what the law in England 
 was at the time our Constitution was adopted. 
 There was no forfeiture of lands in England 
 beyond the life estate for treason. Gentle- 
 men see that one mode of forfeiting estates, 
 by bill of attainder, was prohibited in express 
 language by the Constitution, They see what 
 evidence was required by our Constitution 
 for a conviction of treason ; and that it was 
 declared that no attainder of treason ("that 
 is, a conviction and judgment on a trial 
 in a courtj should take away lands be- 
 yond the life estate. Gentlemen see what 
 have been the opinions of commentators on 
 the subject from that time to this. I appeal 
 to every lawyer here and throughout the 
 land whether he ever dreamed that Judge 
 Story was not right when he said that the in- 
 tention of the framers of the Constitution was 
 to limit the punishment by forfeiture for trea- 
 son so that it would not extend beyond the 
 life estate of the offender. 
 
 Shall we not then adhere to this construc- 
 tion of the Constitution, and legislate in ac- 
 cordance with it ? Let us. not yield to this new 
 interpretation, which has been put forth else- 
 where, and which has been contended for here, 
 and by which the clause in question is made 
 to mean on^y that the proceeding against a 
 party for treason or the attainder of treason 
 must be during the lifetime of the traitor, 
 "When bills of attainder were abolished I am 
 not aware of any mode known to our or the 
 English law by which a dead man could be 
 tried or attainted for treason. 
 
 Secondly, is it true, as argued by the gen- 
 tleman from Ohio [Mr. Spaldihg] and others, 
 
 that although the meaning of the Constitutioa 
 is what wo claim on this side of the flouse, 
 which he conceded, and that where a person 
 is tried, convicted, and sentenced, his life es- 
 tate only can be forfeited, nevertheless that 
 his lands may be forfeited forever by act of 
 Congress or in some other m.ode, provided we 
 do not try or convict him at all, provided we 
 take his lands by a proceeding wherein he 
 has not the opportunity to prove lie is inno- 
 cent of treason if this be true, and wherein it. 
 is not rtqaired to confront him with "two wit- 
 nesses'to the same overt act" to establish his 
 guilt ? I submit that this position is not ten- 
 able ; regarding the act of Congress under 
 consideration as one to forfeit a man's prop-, 
 erty for treason without trial, it is equivalent 
 tea "bill of attainder," which is expresslj 
 prohibited by the Constitution, and is* there- 
 fore a void act. 
 
 Bat, again, the wis9 men who framed tfee 
 Constitution, when they declared in that in- 
 strument that you could only forfeit a man's 
 life estate where you giv(> him a fair 
 trial in court and convict him of treason did 
 not intend to be and were not so careless in 
 reference to the principles of justice and of 
 freedom, or so inconsistent as ta give power 
 to the majority of a legislative body, likely to 
 be often moved by political excitement and 
 by partisan feelings, to forfeit forever the 
 lands of a party for a, political offense without 
 his having the benefit of a trial. No, sir, 
 they were men who knew too well the dan- 
 gers of such proceedings ; the history of pro- 
 ceedings in England by bills of attainder 
 was familiar to them ; they were too loyal to 
 liberty and those principles by which alone 
 free Governments are sustained and perpetu- 
 ated to be guilty of such folly. 
 
 The gentleman says that by this act of Con- 
 gress we are dealing with men in armed re- 
 bellion against the Government ; that we are 
 not proposing to try them for treason. .What 
 is armed rebellion against the Gt)verument 
 but treason ? Can you punish by legal pro- 
 ceedings armed rebellion differently by call- 
 ing it by some other name than treason ? It 
 is treason, and nothing else. Does tho gen- 
 tleman mean to contend that while we cannot 
 by trying and convicting the offender ef trea- 
 son in a court of justice forfeit his land beyond 
 his life estate we can under and by virtue of 
 an act of Congress forfeit his land forever, 
 without trial, without the evidence required 
 by the court to convict him, and without his 
 having an opportunity to be heard in his de- 
 fense ? 
 
 But I must pass from this pbint. Gentle- 
 men say that this is a proceeding in rem, and 
 that the right of trial by jury is got rid of be- 
 cause it is a trial in a court of admiralty. I 
 will not argue that question. With great 
 deference to others, I ask any lawyer in the 
 House where he ever heard of a proceeding in 
 rem in a court of admiralty ajrar/isi real estate; 
 where he ever heard of setting a court in mo- 
 tion under our Constitution to proceed and 
 
oondemn lands because the owners had violat- 
 ed the laws, acd that, too, without their being 
 entitled to a trial before a jury ? 
 
 It is not disputed that iu cases falling with- 
 in admiralty and maritime jurisdiction ttie 
 r^ourts of the United States may condemn 
 property without trial by jury. But I am not 
 aware that lands can be thus adjudicated and 
 condemned, or that the court can, according 
 to the Constitution, be vested with any such 
 jurisdiction over real estate. In common law 
 cases, as distinguished from those of admi- 
 ralty and maritime jurisdiction, a party in the 
 courts of the United States is entitled to a 
 trial by j ury. The Constitution, article three, 
 section two, provides that "the trial of all 
 crimes, except in cases of impeachment, shall 
 be by jury." Article seven of the Amend- 
 ments declares, "in suits at common law, 
 where the value in controversy shall exceed 
 twenty dollars, the right of trial by jury shall 
 be preserved. ' ' Again, the Constitution de- 
 clares, "no person shall be deprived of life, 
 liberty, or property, without due process of 
 law." In view of these provisions of the 
 Constitution, I submit to the House that so 
 far as this law purports to authorize the courts 
 to proceed in the manner of courts of ad- 
 miralty and adjudicate upon, condemn, and 
 Bell the lands of those charged with treason, 
 it is unconstitutional and void. I submit to 
 the sound judgment of every member of the 
 House whether title to property can, under 
 our Constitution and laws, be divested or con- 
 ferred by such proceedings. 
 
 Mr. Speaker, I pass from this question to 
 the proposition which was put forth with so 
 much boldness and ability by the gentleman 
 from Pennsylvania, [Mr. Stevens.] He in- 
 sists that the law under consideration has 
 nothing to do with treason ; that it is not a 
 law to punish treason or traitors ; that the 
 people within the insurrectionary States are 
 at war with the United States, and by this 
 law we are dealing with them, not as rebels 
 against the rightful authority of the United 
 States, but as "alien enemies;" that the in- 
 surgents are not subjects of the United States 
 Government, but ot foreign States at war 
 with the United States ; that the territory of 
 the so-called Coafederate Sutcs is foreign ter- 
 ritory ; that by the acts of secession and war 
 against the authority of the Constitution and 
 laws of the Union they have abrogated them, 
 and are to be treated, daring the war and 
 after resistance is suppressed, as foreign peo- 
 ple, and their territory as foreign territory 
 acquired by conquest. And he insists that 
 by the law of nations we are authorized, re- 
 garding them as foreign enemies, to confis- 
 eate their lands in fee, absolutely and forever. 
 I understand him to derive the authority to 
 confiscate the lands of those in rebellion not 
 from the Constitution, but from the law of 
 nations. That I may not misstate his posi- 
 tion, I extract the following from his remarks 
 &s reported in the Globe : 
 
 fiscation of property under any provision of thj 
 Constitution. Then the law goes on to sfa'e how 
 you are to seize and condemn property. It is to be 
 seized and proceeded against in rem, accurding to 
 the law for that purpose, and condemned. As 
 what? As the property of traitors? ^o such 
 thing. Condemned as 'enemies' property.' Does 
 not that show that the Constitution has nothing to 
 do with it on the question of treason ? Here are a 
 body of men in arms against the XJnited States. 
 Tbis act of Congress, so far as it refers to seizures 
 of property in fee, refers to them as seizures of the 
 property of alien enemies, to be treated as such." 
 » » * a « * » 
 " Others hold that, having committed treason, 
 renounced their allegiance to the Union, discarded 
 its Constitution and laws, organized a distinct and 
 hostile government, and by force of arms having 
 arisen from the condition of insurgents to the posi- 
 tion of an independent Power de mcto, and having 
 been acknowledged as a belligerent both by foreign 
 nations and our own Government, the Constitution 
 and laws of the Union are abrogated so far as they 
 are concerned, and that, as between the two bellig- 
 erents, they are under the laws of war and the laws 
 of nations alone, and that whichever Power con- 
 quers mav treat the vanquished as conquered prov- 
 inces, and may impose upon them such conditions 
 and laws as it may deem best." 
 
 * * * * S * « » 
 "In order rightly to determine this question we 
 
 must inquire whether the ' Confederate States' are 
 to be considered as a hostile people, entitled to no 
 other protection or privileges than are due to for- 
 eign nations a^ war with each other. Is the pre- 
 sent contest to be regarded as a public war, and to 
 be governed by the rules of civilized warfare, or 
 only as a domestic insurrection, to be suppressed 
 by criminal prosecution before the courts of the 
 country ? If the latter, then the insurgents when 
 proceeded against have a right to invoke the pro- 
 tection of the Constitution and municipal laws. If 
 the former, then they are subject to the laws of war 
 a^one." s * * * * -a * 
 
 " It is not a question of pusishing under the 
 Constitution, but outside of it. These men are 
 enemies,' and we are treating them as enemies ; and 
 I have no doubt that as States they are at war with 
 us." *#*»*»* 
 
 " We do not so treat them until we have con- 
 quered the country held by the Confederate States. 
 Covered by the Confederate flag it is foreign 
 country. When we do conquer it, it is a conquered 
 country. Any other principle would render all our 
 conduct inconsistent and anomalous." 
 
 * ■» * « » » « » 
 "From all this the legitimate conclusion is, that 
 
 all the people and all the territory within the lim- 
 its of the organized States which, by a legitimate 
 majority of their citizens renounced the Constitu- 
 tion, took their States out of the Union, and made 
 war upon the Government, are, so far as they are 
 concerned, subject to the laws of the States; and, 
 so far as the United States Government is concern- 
 ed, subject to the laws of war and of nations, both 
 while the war continues and when it shall be ended." 
 « « * « * -s « « 
 " By the laws of war the conquerer may seize and 
 convert to his own use everything that belongs to 
 the enemy. This may be done while the war is 
 raging to weaken the enemy, and when it is ended 
 tho things seized may bo retained to pay the ex- 
 penses of the war and the damages caused by it 
 Towns, cities, and provinces may be held as a pun" 
 
 Here is no attainder for treason, here is no con-ishment for an unjust war, and as security against" 
 
futare aggressions. The property thus taken is 
 not confiscated under the Constitution after convic- 
 tion for treason, but is held by virtue of the laws 
 of war. No individual crime need be proved 
 against the owners. The fact of being a belliger- 
 ent enemy carries the forfeiture with it. Here was 
 the error of the President when he vetoed the con- 
 fiscation bill passed by Congress. In the confusion 
 af business he overlooked the distinction between 
 a traitor and a belligerent enemy." 
 
 In answer to these positions I submit, and I 
 put this to every member of the House, is not 
 the act under consideration a law to punish 
 treason ;— to punish men who have been or 
 shall be engaged in rebellion against the right- 
 ful authority of the Government of the Unit- 
 ed States ; who have in violation of their duty 
 and allegiance attempted and are now endeav- 
 oring to overthrow the Government of the 
 United States, which Government it is our 
 right and duty to defend, and the authority 
 of the Constitution and laws of which we have 
 a right to compel them to submit to ? If we 
 abandon this position — if it is true, that by 
 this act we are legislating in reference to pub- 
 lic enemies in the legal sense, and not in ref- 
 erence to domestic traitors — I cannot believe 
 that any considerable number of the members 
 of the House would vote for the bill. Does 
 one sovereign Power, while at war with an- 
 other, enact laws confiscating the lands owned 
 by individuals of and which lands are situate 
 within the enemy's territory ? I submit it is 
 an unheard-of proceeding. 
 
 This law is one designed to punish treason, 
 not to apply to public enemies engaged in a 
 public war ; and it must not be in violation of 
 the provisions of the Constitution of the 
 United States. A public war is that waged 
 by one people by its sovereign or Government 
 against another which carries it on through its 
 sovereign or governmeHt. This is not such a 
 war. The United States wage it to suppress 
 armed resistance by individuals owing obe- 
 dience to its laws ; to retain its rightful juris- 
 diction and authority over a portion of its ter- 
 ritory. We are not waging war against a for- 
 eign nation to redress a wrong or to vindicate 
 a right, but we are employing armed force to 
 suppress rebellion within our own territory 
 against the authority of our Constitution and 
 laws over it. 
 
 It appears to me that if the gentleman from 
 Pennsylvania [Mr. Stevens] is coi-rect, then 
 secession is an accomplished fact. By the 
 void and illegal ordinances of secession, and 
 the armed rebellion against the authority of 
 the United States Government in support of 
 them, those in rebellion have ^ taken the 
 Southern States out of the Union. This I 
 deny. They have not abrogated the Consti- 
 tution aiid laws of the Union as to the terri- 
 tory or the people who inhabit it. By illegal 
 violence they have and do prevent the enforce- 
 ment therein of the Constitution and laws ; 
 we have the right to and are engaged in re- 
 storing their authority by suppressing the 
 rebellion. In doing this we have certain bel- 
 
 ligerent rights, but when this is acoompllshed 
 the Southern States are a part of the Union, 
 not by virtue of reconstruction or readmis- 
 sion, not as conquered territory, but because 
 they were never out of the Union. The ex- 
 ercise of the jurisdiction of the Federal Gov- 
 ernment is obstructed and suspended by armed 
 insurrection within the territory of these 
 States. When this is subdued the States 
 remain constituent members of the Union, 
 and the people within them are amenable to 
 the Constitution and laws of the United 
 States, to be protected by them in their rights, 
 and to be punished as prescribed by them for 
 their crimes. If the views of the gentleman 
 from Pennsylvania [Mr. Stevens] are correct, 
 then we should recognize the so-called Con- 
 federate authorities ; then they are rightfully 
 entitled to treat with the Government of the 
 United States for and on behalf of the peo- 
 ple of the States in which the rebellion 
 exits. This I deny. These leaders, in my 
 view, are usurpers, having no rightful au- 
 thority to negotiate with the Government ef 
 the United States on behalf of the Southern 
 people. The States have not rebelled ; it is 
 individuals or combinations of individuals 
 within those States who have rebelled. The 
 States are not to be punished or disfranchis- 
 ed on account of the rebellion ; the individu- 
 als who have violated the laws by organizing 
 armed resistance are liable to be punished 
 according to law when' we have overcome 
 the insurrection so that the law can be en- 
 forced. 
 
 But, if it be conceded that this is a public war 
 against a foreign enemy or government, and 
 that the Southern people are to be regared as 
 alien enerhies, and their territory when the 
 rebellion is suppressed is to be deemed terri- 
 tory acquired by conquest, rather than our 
 own territory in which the authority of the 
 Constitution and laws has been vindicated 
 against rebels, we have no right by the law of 
 nations to confiscate lands owned by private 
 persons. What is the law of nations f I 
 understand it to be that usage which prevails 
 and is sanctioned by civilized and christian 
 nations. The law of nations governing war 
 and the rights of belligerents and conquerors 
 is this usage among nations which has come 
 to have the authority of law, and the viola- 
 tion of which would subject the off'ending 
 Government to ihe condemnation of the civil- 
 ized and christian world. The gentleman 
 from Pennsylvania [Mr. Stevens] contends 
 that this law authorizes us to confiscate infea 
 the lands of the inhabitants of the Southern 
 States, and he derives our right to do so from 
 this law of nations and not from the Constitu- 
 tion ; that we do not forfeit their lands in pun ■ 
 ishment of them for treason, but as a right 
 over them which we have by the law of na- 
 tions, treating them as persons who never 
 owed allegiance to our Government, whom we 
 had conquered. 
 
 I submit that the law of nations as under- 
 stood and practiced in modern times gives no 
 
such rigM ; and that all modem publicists 
 and authorities are against the position con- 
 tended for. 
 
 Wheaton, in his Elements of International 
 Law, page 420, says : 
 
 "But by the modern usago of nations, which has 
 now acquired the force of "law, private property on 
 land is also exempt from confiscation -with the ex 
 ception of such as may become booty in special 
 cases when taken from enemies in the l.e!d, or in 
 besieged towns, and of military contributions levied 
 upon the inhabi'ants of the hostile territory. This 
 exemption extends even to the case of an absolute 
 and unqualified conquest of the enemy's ooui try. 
 In ancient times both the movable and immovable 
 property of the vanquished passed to the conqiier- 
 or. Such was the Roman law of war, often asaurt- 
 ed with unrelenting severity ; and such was the fate 
 of the Roman provinces subdued by the northern 
 barbarians on ihe decline and fall of the western 
 empire. A large portion, from one-third to two- 
 thirds of the lands belonging to the ■vanquished pro 
 vinoials, was confiscated and partitioned amongthe 
 conquerors. The last example in Europe of such a 
 conquest was that of England by William of Nor- 
 mandy, Since that period, among the civilized 
 nations of Christendom, conquest, even when con- 
 firmed by a treaty of peace, has been followed by 
 no general or partial transmutation of landed pro- 
 perty. The property belonging to the Government 
 of the vanquished nation passes to the victorious 
 State, which al.so takes the place o< the former sov- 
 ereign in respect to the eminent domain. In other 
 respects private rights are unaffected by conquest." 
 
 Vattel lays down in substance the same law. 
 
 Mr. Adams in 1816, in a letter to Lord Cas- 
 tlereagh, said : 
 
 "But as by the same usago of civilized nations 
 private property is not the subject of lawful capture 
 in war upon the land, it is perfectly clear that in 
 every stipulation private property shaH be respect- 
 ed, or that upon the restoration of places during the 
 war it shall not be carried away." — 4 American 
 State Papers, 116, &c. 
 
 Chief Justice Marshall says, in 7 Peters, 
 pages 86, 87 : 
 
 " It may not be unworthy of remark that it is very 
 unusual, even in cases of conquest, for the conquer- 
 or to do more than to displace the sovereign and 
 assume dominion over the country. The modern 
 usage of nations, which has become law, would be 
 violated, that sense of justice and of right which is 
 acknowledged and felt by the whole civilized world 
 would be outraged, if private property should be 
 generally confiscated and private rights annulled. 
 The people change their allegiance ,• their relation 
 to their ancient sovereign is dissolved ; but their 
 relations to each other and their rights of property 
 remain undisturbed. If this be the modern rule 
 even in cases of conquest, who can doubt its applica_ 
 tion in the case of an amicable cession ot territory ?»» 
 
 Another gentleman who has addressed the 
 House stated that the law of nations author- 
 ized the party successful in war to do what he 
 pleased with the subjugated people. Vattel, 
 who wrote over one hundred years ago, and 
 when the lavv of nations was harsher than it 
 can be successfully claimed to be at this day, 
 says in Book III, page 388 : 
 
 "But if the entire State be conquered, if the na- 
 tion bo subdued, in what manner can the victor 
 
 treat it without transgressing the bounds of justice ? 
 What are his rights over tho ci-nquered country? 
 Some have dared to advance this moustrr-us prin- 
 ciple, that the couqueror is absolute ma;-tor of his 
 conquest, that he may dispose of it as his property, 
 that he may trciit ic as be pleases, according t j the 
 common expression of treating a State as a con- 
 qu-.red country; and hence they derive one of the 
 sources of de.-potic government." 
 
 I submit, sir, whether there is a member 
 of tills tiotise who desires or is willing to have 
 this great nation of ours, great and powerful 
 as I believe it to be, able to vindicate itself in 
 any juBt caiise, violate the usage of Christian 
 and civilized nations ; disregard those rules 
 and maxims which in the language of Chief 
 Justice Marshall have become law ,■ and what- 
 ever Government violates them, particularly 
 if it be powerful and its opponent weak, sub- 
 jects itself to the scorn and condemnation of 
 the civilized world. Are we prepared to say 
 that we are willing to enter upon a system of 
 confiscation, in virttie of our rights as con- 
 querors which the civilized world denounces, 
 which Wheaton says has never been exercised 
 in Christian Europe since the time of William 
 t>e Norman, and which, he says, the code of 
 civilized and Christian countries forbids under" 
 the ban of being barbarous, and of going back 
 to the times when force alone, uutempered by 
 mercy or ('hristianity or civilization, rode de- 
 structively over all that came in its way ? For 
 the sake of the character of our country, for 
 the sake of our reputation, claiming to be a 
 great civilized and Christian people, for the 
 sake of keeping that standing before the civ- 
 ilized world which we are entitled to in this 
 war, I protest against the idea that we are to 
 enter upon a system of confiscation which has 
 been ignored by civilized nations at war during 
 the last five or six hundred years. Why, sir, 
 it seems to me that nothing could be more 
 fatal to us. While we stand before the world 
 prosecuting this war to defend and maintain 
 the Union, to subdue those who are endeavor- 
 ing to destroy it, who are in arms to over- 
 turn this beneficent Government, we will have 
 the respect and sympathy of foreign nations. 
 Let us not forfeit this position. Let us take 
 DO step, inaugurate no policy which will au- 
 thorize it to be said that we, over twenty mil- 
 lion of people, are .waging a war against eight 
 million with the purpose of making it a war' 
 of conquest to strip them of their property, 
 and to distribute it among camp-followers and 
 speculators, among the men who are not of 
 the Army when battles are to be fought, but 
 who . follow in its wake to share in the 
 plunder when with safety it can be reached. 
 Story says,' in substance, that one of the rea- 
 sons for prohibiting confiscation for treason 
 beyond the life estate was to cut off that 
 swarm of greedy and insatiate plunderers who 
 are ever, under theory of loyalty and the public 
 good, pushing those in power on to vindictive 
 measures, with no higher or more patriotic mo- 
 tive than a desire to share in the plunder which 
 they call for in the name of patriotism. 
 
Sir, if the gantlemas from Pennsylvania 
 [Mr. Stevens] is right, we oaght to recog- 
 nize these Confederate authorities. Then 
 they are the leaders of the people waging 
 war with U3, rightfully their leaders. I 
 have been opposed to recognizing them, op- 
 posed to negotiating with them. I con- 
 sider them, in the language of a resolution 
 for which I voted, usurpers and traitors, hav- 
 ing no right or authority over the people of 
 the South and no right to bind them ; and 
 therefore I have been for overthrowing them, 
 ■for scattering their armies, for delivering 
 from their rule the mass of the people of the 
 South who owe allegiance to this Govern- 
 ment, and whom the Administration should 
 desire to bring back under the Constitution 
 and laws of the Union, that we may go on 
 hereafter peacefully and happily as we have 
 hitherto in a career of individual and national 
 prosperity. 
 
 But again, if we had the constitutional and 
 legal right to forfeit forever the lands of the 
 mass of the people who have taken part in this 
 rebellion, to turn them and their children 
 from them, and sell them to others, do gen- 
 tlemen believe it would be a wise policy to do 
 so ? Would this tend to the speedy sup- 
 pression of resistance or to that state of things 
 among the people of the southern States 
 which all, when they divest themselves of the 
 irritation produced by this civil war, must 
 hope and desire to see after it is successfully 
 ended ? I consider that our main object is to 
 bring the mass of these people back to form a 
 
 part of and strengthen our Government. Do 
 gentlemen believe that such legislation as this 
 under consideration will aid in this matter ? 
 Will it not strengthen those leaders in the 
 South? Will they not be able to point to 
 it and say to their people, "You have nothing 
 to hope for but victory or death ; you see it 
 declared by the legislative assembly of the 
 United States that we are alien enemies, and 
 that they have the right to forfeit all our 
 lands, and are disposed to do it ?" Will it not 
 be worth everything to them in those despair- 
 ing times of their rebellion ? Will it not en- 
 able the leaders to stimulate and intensify the 
 southern people by pointing to the Congress 
 of the United States as being engaged in mak- 
 ing laws the policy and effect of which will be 
 to take from the mass of the people of the 
 South and their children all their property ? 
 Let us rather unite our people and exert all 
 our power in overthrowing' armed resistance, 
 showing at the same time that when that is 
 overthrown the mass of the people in these 
 States are not to be treated as a conquered or 
 subjugated people, but dealt with according to 
 the Constitution and laws of the Union ; that 
 as to the mass there will be amnesty on lib-- 
 eral terms,. to the end that they may be con- 
 tented citizens of this Kepublic ; that they 
 may again be devoted to the Union ; that they 
 may return feeling how much they were 
 wronged by the leaders who led them into this 
 rebellion, and how much they profited by its 
 overthrow and the restoration of the authority 
 of the Constitution over them.