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Title: Charles Sumner; his complete works, volume 9 (of 20)

Author: Charles Sumner

Editor: George Frisbie Hoar

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HANNIBAL HAMLIN

A. W. Elson & Co. Boston

Charles Sumner; his complete works, volume 9 (of 20)

[Pg i]

[Pg ii]

COPYRIGHT, 1872,
BY
CHARLES SUMNER.

COPYRIGHT, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press:
Norwood, Mass., U.S.A.

[Pg iii]

CONTENTS OF VOLUME IX.

[Pg 1]

RIGHTS OF SOVEREIGNTY AND RIGHTS OF WAR:
TWO SOURCES OF POWER AGAINST THE REBELLION.

Speech in the Senate, on his Bill for the Confiscation of Property and the Liberation of Slaves belonging to Rebels, May 19, 1862.

[Pg 3]

[Pg 10]
[Pg 11]

SPEECH.

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

There is a saying, often repeated by statesmen and often recorded by publicists, which embodies the direct object of the war we are now unhappily compelled to wage,—an object sometimes avowed in European wars, and more than once made a watchword in our own country: “Indemnity for the past, and Security for the future.” Such should be our comprehensive aim,—nor more, nor less. Without indemnity for the past, this war will have been waged at our cost; without security for the future, this war will have been waged in vain, treasure and blood will have been lavished for nothing. But indemnity and security are both means to an end, and that end is the National Unity under the Constitution of the United States. It is not enough, if we preserve the Constitution at the expense of the National Unity. Nor is it enough, if we enforce the National Unity at the expense of the Constitution. Both must be maintained. Both will be maintained, if we do not fail to take counsel of that prudent courage[Pg 12] which is never so much needed as at a moment like the present.

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

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

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

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

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

If there be any difficulty now, it is not from the question,[Pg 13] but simply from the facts,—as often in judicial proceedings it is less embarrassing to determine the law than the facts. If things are seen as they really are and not as Senators fancy or desire, if the facts are admitted in their natural character, then must the constitutional power of the Government be admitted also, for this power comes into being on the occurrence of certain facts. Only by denying the facts can the power itself be drawn in question. But not even the Senator from Pennsylvania or the Senator from Vermont denies the facts.

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

The Rebellion is manifest,—is it not? An extensive territory, once occupied by Governments rejoicing[Pg 14] in allegiance to the Union, and sharing largely in its counsels, has undertaken to overthrow the National Constitution within its borders. Its Senators and Representatives have withdrawn from Congress. The old State Governments, solemnly bound by the oaths of their functionaries to support the National Constitution, have vanished; and in their place appear pretended Governments, which, adopting the further pretension of a Confederacy, have proceeded to issue letters of marque and to levy war against the United States. So far has displacement of the National Government prevailed, that at this moment, throughout this whole territory, there are no functionaries acting under the United States, but all are pretending to act under the newly established Usurpation. Instead of the oath to support the Constitution of the United States, required of all officials by the Constitution, another oath is substituted, to support the Constitution of the Confederacy; and thus the Rebellion assumes a completeness of organization under the most solemn sanctions. In point of fact, throughout this territory the National Government is ousted, while the old State Governments have ceased to exist, lifeless now from Rebel hands. Call it suicide, if you will, or suspended animation, or abeyance,—they have practically ceased to exist. Such is the plain and palpable fact. If all this is not rebellion, complete in triumphant treason, then is rebellion nothing but a name.

But the War is not less manifest. Assuming all the functions of an independent government, the Confederacy has undertaken to declare war against the United States. In support of this declaration it has raised armies, organized a navy, issued letters of marque, borrowed[Pg 15] money, imposed taxes, and otherwise done all that it could in waging war. Its armies are among the largest ever marshalled by a single people, and at different places throughout a wide-spread territory they have encountered the armies of the United States. Battles are fought with the varying vicissitudes of war. Sieges are laid. Fortresses and cities are captured. On the sea, ships bearing the commission of the Rebellion, sometimes as privateers and sometimes as ships of the navy, seize, sink, or burn merchant vessels of the United States; and only lately an iron-clad steamer, with the flag of the Rebellion, destroyed two frigates of the United States. On each side prisoners are made, who are treated as prisoners of war, and as such exchanged. Flags of truce pass from camp to camp, and almost daily during the winter this white flag has afforded its belligerent protection to communications between Norfolk and Fortress Monroe, while the whole Rebel coast is by proclamation of the President declared in a state of blockade, and ships of foreign countries, as well as of our own, are condemned by courts in Washington, Philadelphia, New York, and Boston, as prize of war. Thus do all things attest the existence of war, which is manifest now in the blockade, upheld by judicial tribunals, and now in the bugle, which after night sounds truce, indubitably as in mighty armies face to face on the battle-field. It is war in all its criminal eminence, challenging all the pains and penalties of war, enlisting all its terrible prerogatives, and awaking all its dormant thunder.

Further effort is needless to show that we are in the midst of a Rebellion and in the midst of a War,—or, in yet other words, that unquestionable war is now waged[Pg 16] to put down unquestionable rebellion. But a single illustration out of many in history will exhibit this double character in unmistakable relief. The disturbances which convulsed England in the middle of the seventeenth century were occasioned by the resistance of Parliament to the arbitrary power of the Crown. This resistance, prolonged for years and maintained by force, triumphed at last in the execution of King Charles and the elevation of Oliver Cromwell. The historian whose classical work was for a long time the chief authority relative to this event styles it “The Rebellion,” and under this name it passed into the memory of men. But it was none the less war, with all the incidents of war. The fields of Naseby, Marston Moor, Dunbar, and Worcester, where Cavaliers and Puritans met in bloody shock, attest that it was war. Clarendon called it Rebellion, and the title of one of his works makes it “The Grand Rebellion,”—how small by the side of ours! But a greater than Clarendon—John Milton—called it War, when, in unsurpassed verses, after commemorating the victories of Cromwell, he uses words so often quoted without knowing their original application:—

The death of Cromwell was followed by the restoration of King Charles the Second; but the royal fugitive from the field of Worcester, where Cromwell triumphed in war, did not fail to put forth the full prerogatives of sovereignty in the suppression of rebellion; and all who sat in judgment on the king, his father, were saved from the fearful penalties of treason only by exile. Hugh[Pg 17] Peters, the Puritan preacher, and Harry Vane, the Puritan senator, were executed as traitors for the part they performed in what was at once rebellion and war, while the body of the great commander who defeated his king in battle, and then sat upon his throne, was hung in chains, as a warning against treason.

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

The persons arrayed for the overthrow of the Government of the United States are unquestionably criminals, subject to all the penalties of rebellion, which is of course treason under the Constitution of the United States.

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

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

[Pg 18]

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

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

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

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

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

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

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

The same principle has received most authentic declaration[Pg 21] in the recent judgment of an able magistrate in a case of Prize for a violation of the blockade. I refer to the case of the Amy Warwick, tried in Boston, where Judge Sprague, of the District Court, expressed himself as follows.

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

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

[Pg 22]

In these few words of this great authority is found the very discrimination which enters into the present discussion. The war in which we are now engaged is not precisely “public,” because on one side there is no Government; nor is it “private,” because on one side there is a Government; but it is “mixed,”—that is, public on one side and private on the other. On the side of the United States, it is under authority of the Government, and therefore “public”; on the other side, it is without the sanction of any recognized Government, and therefore “private.” In other words, the Government of the United States may claim for itself all belligerent rights, while it refuses them to the other side. And Grotius, in his reasoning, sustains his definition by showing that war becomes the essential agency, where public justice ends,—that it is the justifiable mode of dealing with those who are not kept in order by judicial proceedings,—and that, as a natural consequence, where war prevails, the Municipal Law is silent. And here, with that largess of quotation which is one of his peculiarities, he adduces the weighty words of Demosthenes: “Against enemies, who cannot be coerced by our laws, it is proper and necessary to maintain armies, to send out fleets, and to pay taxes; but against our own citizens, a decree, an indictment, the state vessel are sufficient.”[15] But when citizens array themselves in multitudes, they come within the declared condition of enemies. There is so much intrinsic reason in this distinction that I am ashamed to take time upon it. And yet it has been constantly neglected in this debate. Let it be accepted, and the constitutional[Pg 23] scruples which play such a part will be out of place.

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

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

Therefore, Sir, in determining our course, we may banish all question of power. The power is ample and indubitable, being regulated in the one case by the Constitution, and in the other case by the Rights of War. Treating them as criminals, then are we under the restraints of the Constitution; treating them as enemies, we have all the latitude sanctioned by the[Pg 24] Rights of War; treating them as both, then may we combine our penalties from the double source. What is done against them merely as criminals will naturally be in conformity with the Constitution; but what is done against them as enemies will have no limitation except the Rights of War.

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

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

[Pg 25]

I.

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

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

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

1. Congress, it is said, has no power under the Constitution over Slavery in the States. This popular principle of Constitutional Law, which is without foundation in the positive text of the Constitution, is adduced against all propositions to free the slaves of Rebels. But this is an obvious misapplication of the alleged principle, which simply means that Congress[Pg 26] has no direct power over Slavery in the States, so as to abolish or limit it. For no careful person, whose opinion is of any value, ever attributed to the pretended property in slaves an immunity from forfeiture or confiscation not accorded to other property; and this is a complete answer to the argument on this head. Even in prohibiting Slavery, as in the Jeffersonian ordinance, there is a declared exception of the penalty of crime; and so in upholding Slavery in the States, there must be a tacit, but unquestionable, exception of this penalty.

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

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

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

[Pg 27]

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

6. No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Perhaps no provision of the Constitution, supposed pertinent to the present debate, has been more considered; nor is there any with regard to which there is greater difference of opinion. Learned lawyers in this body insist broadly that it forbids forfeiture of real estate, although not of personal, as a penalty of treason; while others insist that all the real as well as personal estate belonging to the offender may be forfeited. The words of the Constitution are technical, so as to require interpretation; and as they are derived from the Common Law, we must look to this law for[Pg 28] their meaning. By “attainder of treason” is meant judgment of death for treason,—that is, the judgment of court on conviction of treason. “Upon judgment of death for treason or felony,” says Blackstone, “a man shall be said to be attainted.”[17] Such judgment, which is, of course, a criminal proceeding, cannot, under our Constitution, work corruption of blood; which means that it cannot create obstruction or incapacity in the blood to prevent an innocent heir from tracing title through the criminal, as was cruelly done by the Common Law.

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

Even where the traitor is adjudged to death, there is good reason to doubt if his estate in fee-simple, which is absolutely his own, and alienable at his mere pleasure, may not be forfeited. It is admitted by Senators that the words of the Constitution do not forbid the forfeiture of the personal estate, which in the present days of commerce is usually much larger than the real estate, although to an unprofessional mind these words are as applicable to one as to the other; so that a person attainted of treason would forfeit all his personal estate, of[Pg 29] every name and nature, no matter what its amount, even if he did not forfeit his real estate. But since an estate in fee-simple belongs absolutely to the owner, and is in all respects subject to his disposition, there seems no reason for its exemption which is not equally applicable to personal property. The claim of the family is as strong in one case as in the other. And if we take counsel of analogy, we find ourselves led in the same direction. It is difficult to say, that, in a case of treason, there can be any limitation to the amount of fine imposed; so that in sweeping extent it may take from the criminal all his estate, real and personal. And, secondly, it is very clear that the prohibition in the Constitution, whatever it be, is confined to “attainder of treason,” and not, therefore, applicable to a judgment for felony, which at the Common Law worked forfeiture of all estate, real and personal; so that under the Constitution such forfeiture for felony can be now maintained. But assuming the Constitution applicable to treason where there is no judgment of death, it is only reasonable to suppose that this prohibition is applicable exclusively to that posthumous forfeiture depending upon corruption of blood; and here the rule is sustained by intrinsic justice. But all present estate, real as well as personal, actually belonging to the traitor, is forfeited.

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

[Pg 30]

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

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

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

Such, Mr. President, are the provisions or principles of Constitutional Law controlling us in the exercise of[Pg 31] rights against criminals. If any bill or proposition, penal in character, having for its object simply punishment, and ancillary to the administration of justice, violates any of these safeguards, it is not constitutional. Therefore do I admit that the bill of the Committee, and every other bill now before the Senate, so far as they assume to exercise the Rights of Sovereignty in contradistinction to the Rights of War, must be in conformity with these provisions or principles.

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

Nobody can forget that smuggled goods are liable to confiscation by proceedings in rem. This is a familiar instance. The calendar of our District Courts is crowded with these cases, where the United States are[Pg 32] plaintiff, and some inanimate thing, an article of property, is defendant. Such, also, are proceedings against a ship engaged in the slave-trade. Of course, by principles of the Common Law, a conviction is necessary to divest the offender’s title; but this rule is never applied to forfeitures created by statute. It is clear that the same sovereignty which creates the forfeiture may determine the proceedings by which it shall be ascertained. If, therefore, it be constitutional to direct the forfeiture of rebel property, it is constitutional to authorize proceedings in rem against it, according to established practice. Such proceedings constitute “due process of law,” well known in our courts, familiar to the English Exchequer, and having the sanction of the ancient Roman jurisprudence. If any authority were needed for this statement, it is found in the judgment of the Supreme Court of the United States in the case of the Palmyra, where it is said:—

The reason for proceedings in rem is, doubtless, that the thing is in a certain sense an offender, or at least has coöperated with the offender,—as a ship in the slave-trade. But the same reason prevails, although perhaps to less extent, in proceedings against rebel property, which, if not an offender, has at least coöperated with[Pg 33] the offender hardly less than the ship in the slave-trade. Through his property the traitor is enabled to devote himself to treason, and to follow its accursed trade, waging war against his country; so that his property may be considered guilty also. But the condemnation of the property cannot be a bar to proceedings against the traitor himself, should he fall within our power. The two are distinct, although identical in their primary object, which is punishment.

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

II.

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

Clearly the United States may exercise all the Rights[Pg 34] of War which according to International Law belong to independent states. In affirming this proposition, I waive for the present all question whether these rights are to be exercised by Congress or by the President. It is sufficient that every nation has in this respect perfect equality; nor can any Rights of War accorded to other nations be denied to the United States. Harsh and repulsive as these rights unquestionably are, they are derived from the overruling, instinctive laws of self-defence, common to nations as to individuals. Every community having the form and character of sovereignty has a right to national life, and in defence of such life may put forth all its energies. Any other principle would leave it the wretched prey of wicked men, abroad or at home. In vain you accord the rights of sovereignty, if you despoil it of other rights without which sovereignty is only a name. “I think, therefore I am,” was the sententious utterance by which the first of modern philosophers demonstrated personal existence. “I am, therefore I have rights,” is the declaration of every sovereignty, when its existence is assailed.

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

[Pg 35]

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

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

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

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

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

In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by the locality of the property; and this consideration makes it proper to consider them under two heads: first, rights with regard to enemy property actually within the national jurisdiction; and, secondly, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that,[Pg 38] in the present war, rights against enemy property actually outside the national jurisdiction must exist a fortiori against such property actually within the jurisdiction. But, for the sake of clearness, I shall speak of them separately.

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

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

1. It is undeniable, that, in generality, the rule must embrace real property, or, as termed by the Roman Law and the Continental systems of jurisprudence, immovables; but so important an authority as Vattel excepts this species of property, for the reason, that, being acquired by consent of the sovereign, it is as if it belonged to his own subjects.[24] But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason for[Pg 39] the exception of real property, it loses all applicability where the property belongs to an enemy who began by breaking faith on his side. Surely, whatever the immunity of an ordinary enemy, it is difficult to see how a rebel enemy, whose hostility is bad faith in arms, can plead any safeguard. Cessante ratione, cessat et ipsa lex, is an approved maxim of the law; and since with us the reason of Vattel does not exist, the exception which he propounds need not be recognized, to the disparagement of the general rule.

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

3. The rule, in strictness, also embraces private debts due to an enemy. Although justly obnoxious to the[Pg 40] charge of harshness, and uncongenial with an age of universal commerce, this application is recognized by the judicial authorities of the United States. Between debts contracted under faith of laws and property acquired under faith of the same laws reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property within the country on the breaking out of war. Both, it is said, require some special act expressing the sovereign will, and both depend less on any flexible rule of International Law than on paramount political considerations, which International Law will not control. Of course, just so far as slaves are regarded as property, or as bound to service or labor, they cannot constitute an exception to this rule, while the political considerations entering so largely into its application have with regard to them commanding force. In their case, by natural metamorphosis, confiscation becomes emancipation.

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

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

1. Public property of all kinds belonging to an enemy,—that is, property of the government or prince,—including lands, forests, fortresses, munitions of war, movables,—is all subject to seizure and appropriation by the conqueror, who may transfer the same by valid[Pg 41] title, substituting himself, in this respect, for the displaced government or prince. It is obvious that in the case of immovables the title is finally assured only by the establishment of peace, while in the case of movables it is complete from the moment the property comes within the firm possession of the captor so as to be alienated indefeasibly. In harmony with the military prepossessions of ancient Rome, such title was considered the best to be had, and its symbol was a spear.

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

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

4. Private property of an enemy on land may be taken as a penalty for the illegal acts of individuals, or of the community to which they belong. The exercise[Pg 42] of this right is vindicated only by peculiar circumstances; but it is clearly among the recognized agencies of war, and it is easy to imagine that at times it may be important, especially in dealing with a dishonest rebellion.

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

6. Private property of an enemy on land may be taken on the field of battle, in operations of siege, or the storming of a place refusing to capitulate. This passes under the offensive name of “booty” or “loot.” In the late capture of the imperial palace of Pekin by the allied forces of France and England, this right was illustrated by the surrender of its contents, including[Pg 43] silks, porcelain, and furniture, to the lawless cupidity of an excited soldiery.

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

These are not the words of a visionary, or of a speculator, or of an agitator, but of a publicist, an acknowledged authority on the Law of Nations.

Therefore, according to the Rights of War, slaves, if regarded as property, may be declared free; or if regarded as men, they may be declared free, under two acknowledged rules: first, of self-interest, to procure an ally; and, secondly, of conscience and equity, to do an act of justice ennobling victory.

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

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

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Belonging to the United States by virtue of International Law, and being essential to self-defence, they are naturally deposited with the supreme power, which holds the issues of peace and war. Doubtless there are Rights of War, embracing confiscation, contribution, and liberation, to be exercised by any commanding general in the field, or to be ordered by the President, according to the exigency. Mr. Marcy was not ignorant of his duty, when, by instructions from Washington, in the name of the President, he directed the levy of contributions in Mexico. In European countries all these Rights of War which I have reviewed to-day are deposited with the executive alone,—as in England with the Queen in Council, and in France and Russia with the Emperor; but in the United States they are deposited with the legislative branch, being the President, Senate, and House of Representatives, whose joint action becomes the supreme law of the land. The Constitution is not silent on this question. It expressly provides that Congress shall have power, first, “to declare war,” and thus set in motion all the Rights of War; secondly, “to grant letters of marque and reprisal,” being two special agencies of war; thirdly, “to make rules concerning captures on land and water,” which power of itself embraces the whole field of confiscation, contribution, and liberation; fourthly, “to raise and support armies,” which power, of course, comprehends all means for this purpose known to the Rights of War; fifthly, “to provide and maintain a navy,” plainly according to the Rights of War; sixthly, “to make rules for the government and regulation of the land and naval forces,” another power involving confiscation, contribution, and liberation; and, seventhly,[Pg 46] “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” a power which again sets in motion all the Rights of War. But, as if to leave nothing undone, the Constitution further empowers Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” In pursuance of these powers, Congress has already enacted upwards of one hundred articles of war for the government of the army, one of which provides for the security of public stores taken from the enemy. It has also sanctioned the blockade of the Rebel ports according to International Law. And only at the present session we have enacted an additional article to regulate the conduct of officers and men towards slaves seeking shelter in camp. Proceeding further on the present occasion, it will act in harmony with its own precedents, as well as with its declared powers, according to the very words of the Constitution. Language cannot be broader. Under its comprehensive scope there is nothing essential to the prosecution of the war, its conduct, its support, or its success,—yes, Sir, there can be nothing essential to its success, which is not positively within the province of Congress. There is not one of the Rights of War which Congress may not invoke. There is not a single weapon in its terrible arsenal which Congress may not grasp.

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

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

Sir, the case is strong. The Rebels are not only criminals, they are also enemies, whose property is actually within the territorial jurisdiction of the United States; so that, according to the Supreme Court, it only remains for Congress to declare the Rights of War to be exercised against them. The case of Brown,[33] so often cited in this debate, affirms that enemy property actually within our territorial jurisdiction can be seized only by[Pg 48] virtue of an Act of Congress, and recognizes the complete liability of all such property, when actually within such territorial jurisdiction. It is therefore, in all respects, a binding authority, precisely applicable; so that Senators who would impair its force must deny either that the Rebels are enemies or that their property is actually within the territorial jurisdiction of the United States. Assuming that they are enemies, and that their property is actually within our territorial jurisdiction, the power of Congress is complete; and it is not to be confounded with that of a commanding general in the field, or of the President as commander-in-chief of the armies.

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

When claiming these powers for Congress, it must also be stated that there is a limitation of time with regard to their exercise. Whatever is done against the[Pg 49] Rebels in our character as belligerents under the Rights of War must be done during war, and not after its close. Naturally the Rights of War end with the war, except in those consequences which have become fixed during the war. With the establishment of peace the Rights of Peace resume sway, and all proceedings are according to the prescribed forms of the Constitution. Instead of laws silenced by arms, there are arms submissive to laws. Instead of courts martial or military proceedings, there are the ordinary courts of justice with all constitutional safeguards. If this change needed illustration, it would be found in a memorable passage of French history. Marshal Ney, who had deserted Louis the Eighteenth to welcome Napoleon from Elba, was, after the capitulation of Paris, handed over to a council of war for trial; but the council, composed of marshals of France, declared itself incompetent, since the case involved treason, and the accused was carried before the Chamber of Peers, of which he was a member, according to the requirements of the French Charter. His condemnation and execution have been indignantly criticized, but the form of trial was a homage to the pacification which had been proclaimed. Therefore let it be borne in mind that all proceedings founded on the Rights of War will expire, when the Constitution is again established throughout the country. They are temporary and incidental, in order to secure that blessed peace which we all seek.

So completely are these rights distinguished from ordinary municipal proceedings against crime, that they are administered by tribunals constituted for the purpose, with well-known proceedings of their own. Courts of Prize have a fixed place in the judicial system of the[Pg 50] United States, and their jurisdiction excludes that of municipal tribunals, so that no action can be brought in a court of Common Law on account of a seizure jure belli. It is their province to hear all cases of prize or capture,—in short, every case of property arising under the Rights of War; and although practically these cases are chiefly maritime, yet the jurisdiction of such courts is held to embrace hostile seizures on shore.[34] The hearing is by the court alone, without a jury, substantially according to forms derived from the Roman Law; and the ordinary judgment is against the thing captured, or in rem, pronouncing its condemnation and distribution. In every case of prize or capture, involving a question of property, and not of crime, these proceedings constitute “due process of law,” so as to be completely effective under the Constitution, and, according to acknowledged principles, they supersede the jurisdiction of all mere municipal tribunals.

Among the few cases illustrating this exclusive jurisdiction in matters of capture and prize on land is one which arose from the exercise of military power in a conquered province in India, and was at last considered and decided by the Privy Council in England, after most elaborate argument by the most eminent barristers of the time. The facts are few. Upon the conquest of Poonah, in 1817, Mr. Mountstuart Elphinstone, perhaps the most finished man, and of completest gentleness, who ever exercised power in British India, was appointed “sole commissioner for the settlement of the territory conquered, with authority over all the civil and military officers employed in it.” In the discharge of[Pg 51] his dictatorial functions, he proceeded to appoint a “provisional collector and magistrate of the city of Poonah and the adjacent country,” whom he instructed “to deprive the enemy of his resources, and in this and all other points to make everything subservient to the conduct of the war.” After indicating certain crimes to be treated with summary punishment, he proceeded to confer plenary powers, saying: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, unless where they are clearly repugnant to reason and natural equity.” Under these instructions the provisional collector seized several bags of gold, in the house of a prominent enemy. In an action before the Supreme Court of Bombay for the value of this treasure, and of a quantity of jewels and shawls taken by the military, judgment was given for the claimant. But this was overruled by the Court of Appeals in England, on the ground, that, in the actual state of warfare at that time, there was no jurisdiction over a question of prize and capture in an ordinary municipal court. At the bar it was argued:—

[Pg 52]

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

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

I have said what I have to say on the law of this matter, bringing it to the standard of the Constitution and of International Law, and I have exhibited the powers of Congress in their two fountains. It is for you to determine out of which you will draw, or, indeed, if you will not draw from both. Regarding the Rebels as criminals, you may so pursue and punish them. Regarding them as enemies, you may blast them with that summary vengeance which is among the dread agencies of war, while, by an act of beneficent justice, you elevate a race, and change this national calamity into a sacred triumph. Or, regarding them both as[Pg 53] criminals and as enemies, you may marshal against them all the double penalties of rebellion and war, or, better still, the penalties of rebellion and the triumphs of war.

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

Confiscation is hardly less ancient than national life. It began with history. It appears in the Scriptures, where Ahab took the vineyard of Naboth, and David gave away the goods of a confederate of Absalom. The Senator from Wisconsin [Mr. Doolittle] reminded us that it prevailed among the Persians and Macedonians. In the better days of the Roman Republic it was little known; but it appeared with the vengeful proscriptions of Sylla; and Cæsar himself, always forbearing, yet, while striving to mitigate the penalties of the Catilinarian conspirators, moved a confiscation of all their property to the public treasury. It flourished under the Emperors, who made it alternately the instrument of tyranny and of cupidity. But there were virtuous Emperors, like Antoninus Pius, under whom the goods of a convict were abandoned to his children, and like Trajan,[Pg 54] under whom confiscation was unknown. Among the reforms of Justinian, in his immortal revision of the law, this penalty disappeared, except in cases of treason.[37] But these instances illustrate confiscation only as punishment. Throughout Roman history it had been inseparable from war. The auction was an incident of the camp. It was a distribution of bounty lands among the soldiers of Octavius, after the establishment of his power, that drove Virgil from his paternal acres to seek imperial favor at Rome.

In modern times confiscation became a constant instrument of government, both in punishment and in war. It was an essential incident to the feudal system, which was in itself a form of government. Ruthlessly exercised, sometimes against individuals and sometimes against whole classes, it was converted into an engine of vengeance and robbery, which spared neither genius nor numbers. In Florence it was directed against Dante, and in Holland against Grotius, while in early England it was the power by which William of Normandy despoiled the Saxons of their lands and parcelled them among his followers. In Germany, during the period of theological conflict which darkened that great country, it was often used against Protestants, and was at one time menaced on a gigantic scale. The Papal Nuncio sought nothing less than the confiscation of all the goods of heretics. Spain was not less intolerant than Germany, and the story of the Moors and the Jews, stripped of their possessions and sent forth as wanderers, protests against such injustice. In early France confiscation was not idle, although in one instance it received an application which modern criticism[Pg 55] will not reject, when, by special ordinance, rebels were declared to be enemies, and their property was subjected to confiscation as Prize of War.

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

It is in modern France that confiscation has played its greatest part, and been the most formidable weapon, whether of punishment or of war. At first abolished by the Revolution, as a relic of royal oppression, it was at length adopted by the Revolution. Amidst the dangers menacing the country, this sacrifice was pronounced essential to save it, and successive laws were passed, beginning as early as November, 1789, by which it was authorized. Never before in history was confiscation so sweeping. It aroused at the time the eloquent indignation of Burke, and still causes a sigh among all who[Pg 56] think less of principles than of privileges. From an official report to the First Consul, it appears that before 1801 sales were authorized by the Government to the fabulous amount of two thousand five hundred and fifty-five millions of francs, or above five hundred millions of dollars, while still a large mass, estimated at seven hundred million francs, of confiscated property remained unsold.[39] The whole vast possessions of the Church disappeared in this chasm.

Cruel as were many of the consequences, this confiscation must be judged as part of the Revolution whose temper it shared; nor is it easy to condemn anything but its excesses, unless you are ready to say that the safety of France, torn by domestic foes and invaded from abroad, was not worth securing, or that equality before the law, which is now the most assured possession of that great nation, was not worth obtaining. It was part of the broad scheme of Napoleon, moved by politic generosity, to mitigate as far as possible the operation of this promiscuous spoliation, especially by restraining it, according to the principle of the bill which I have introduced, to the most obnoxious persons,—although this sharp ruler knew too well what was due to titles once fixed by Government to contemplate any restoration of landed property already alienated. “There are,” he exclaimed, in the Council of State, “above one hundred thousand names on these unhappy lists: it is enough to turn one’s head.… The list must be reduced by three fourths of its number, to the names of such as are known to be hostile to the Government.”[40] Hostility to the Government constituted with him sufficient[Pg 57] reason for continued denial of all rights of property or citizenship. And so jealous was he on this point, that, when he heard that some who were allowed to enter upon their yet unalienated lands had proceeded to cut down the forests, partly from necessity and partly to transfer funds abroad, he interfered peremptorily, in words applicable to our present condition: “We cannot allow the greatest enemies of the Republic, the defenders of old prejudices, to recover their fortunes and despoil France.”[41] This episode of history, so suggestive to us, will not be complete, if I do not mention, that, through this policy of confiscation, France passed from the hands of dominant proprietors, with extended possessions, into the hands of those small farmers now constituting so important a feature in its social and political life. Nor can I neglect to add, that kindred in character, though involving no loss of property, was the entire obliteration at the same time of the historic Provinces of France, and the substitution of new divisions into Departments, with new landmarks and new names, so that ancient landmarks and ancient names, quickening so many prejudices, no longer served to separate the people.

But this story is not yet ended. Accustomed to confiscation at home, France did not hesitate to exercise it abroad, under the name of contributions; nor was there anything her strong hand did not appropriate,—sometimes, it might be, the precious treasures of Art, paintings of Raffaelle, Titian, or Paul Potter, enshrined in foreign museums, and sometimes the ornaments of churches, palaces, and streets. Often in hard money were these contributions levied. For instance, in 1807,[Pg 58] Napoleon exacted from Prussia, with little more than five million inhabitants, a war contribution of more than one hundred and twenty millions of dollars; and in 1809, the same conqueror exacted from Austria a like contribution of about fifty millions of dollars. In kindred spirit, Davoust, one of his marshals, stationed at Hamburg, levied upon that single commercial city, during the short term of twelve months, contributions amounting to more than fifteen, or, according to other accounts, twenty-five, millions of dollars. But the day of reckoning came, when France, humbled at last, was constrained to accept peace from the victorious allies encamped at Paris. The paintings, the marbles, and the ornaments ravished from foreign capitals were all taken back, while immense sums were exacted for expenses of the war, and also for spoliations during the Revolution, amounting in all to three hundred million dollars. Such is the lesson of France.

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

While it is easy to see that these interesting instances are only slightly applicable to our country, yet I do not disown any suggestion of caution or clemency they inculcate. Other instances in our own history[Pg 59] are more applicable. All are aware that during the Revolution the property of Tories, loyalists, and refugees was confiscated; but I doubt if Senators know the extent to which this was done, or the animosity by which it was impelled. Out of many illustrations, I select the early language of the patriot Hawley, of Massachusetts, in a letter to Elbridge Gerry, under date of July 17, 1776. “Can we subsist,” said this patriot, “did any state ever subsist, without exterminating traitors?… It is amazingly wonderful, that, having no capital punishment for our intestine enemies, we have not been utterly ruined before now.”[42] The statutes of the time are most authentic testimony. I hold in my hand a list, amounting to eighty-eight in number, which I have arranged according to States. Some are very severe, as may be imagined from the titles, which I proceed to give; but they show, beyond assertion or argument, how, under the exigencies of war for National Independence, the power of confiscation was recognized and employed. Each title is a witness.

Such is the array which illustrates the terrible earnestness of those times. In their struggle for National Independence, our fathers did not hesitate to employ all the acknowledged Rights of War; nor did they higgle[Pg 65] over questions of form with regard to enemies in arms against them. To this extent, at least, we may be instructed by their example, even if we discard their precedents.

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

The American Commissioners, John Adams, Benjamin Franklin, and John Jay, declared in reply, that “the restoration of such of the estates of the refugees as have been confiscated is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands.” As to the demand of compensation for these persons, the Commissioners said: “We forbear enumerating[Pg 66] our reasons for thinking it ill-founded.”[45] In the course of the conference, and by way of reply or set-off, gross instances were adduced of outrages by the British troops in “the carrying off of goods from Boston, Philadelphia, and the Carolinas, Georgia, Virginia, &c., and the burning of the towns.” Franklin mentioned “the case of Philadelphia, and the carrying off of effects there, even his own library.” Laurens added “the plunders in Carolina of negroes, plate, &c.”[46] In a letter from Franklin to the British Commissioner, under date of November 26, 1782, the pretension of the loyalists was finally repelled in the plainest words.

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

After the adoption of our Constitution, this article came under discussion between the United States and Great Britain, when Mr. Jefferson, in the most elaborate diplomatic paper of his life, ably vindicated the conduct[Pg 68] of our Government. It was on this occasion that he quoted the words of Bynkershoek, that “it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury, … even immovables, as is the practice in regard to movables.”[49] And in the course of his argument he distinctly asserts that “an Act of the Legislature confiscating lands stands in place of an office found in ordinary cases,—and that, on the passage of the Act, as on the finding of the office, the State stands ipso facto possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State.”[50]

This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,[51] where it was declared that “a State may make what rules it pleases, and those rules must necessarily have place within itself,”[52]—that “the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,”[53]—and that “the right acquired by war depends on the power of seizing the enemy’s effects.”[54] The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall,[Pg 69] afterwards our honored Chief Justice, in words applicable to our own times.

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

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

There are considerations of policy, and, I rejoice to believe, of justice also, which furnish illumination such[Pg 70] as cannot be found in any other instances of history. If we go astray, it must be from blindness.

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

It is clear that such a statute will be of perfect inefficiency. It will not produce even a moderate intimidation,—not so much as a Quaker gun. With the provision in our Constitution applicable to jury trials in criminal cases, it is obvious that throughout the whole Rebel country there can be no conviction under such statute. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. People talk flippantly of the gallows as the certain doom of the Rebels. This is a mistake. For weal or woe, the gallows is out of the question. It is not possible as a[Pg 71] punishment for this rebellion.[56] Nor would any forfeiture or confiscation whatever be sanctioned by a jury in the Rebel country. I think that in this judgment I do not err. But if this be correct, surely we should take all proper steps to avoid such failure of justice. Let Senators see things as they are; let us not deceive ourselves or deceive others. A new statute against treason will be simply a few more illusive pages on the statute-book, and that is all.

I cannot doubt that Senators are in earnest, that they mean what they say, and that they intend to do all in their power, by all proper legislation, to bring the war to a final close. But if this be their purpose, they will not hesitate to employ all the acknowledged Rights of War calculated to promote this end. Two transcendent powers have been exercised without a murmur: first, to raise armies, and, secondly, to raise money. These were essential to the end. But there is another power, without which, I fear, the end will escape us. It is that of confiscation and liberation; and this power is just as constitutional as the other two. The occasion for its exercise is found in the same terrible necessity. An army is not a posse comitatus; nor is it, when in actual war, face to face with the enemy, amenable to the ordinary provisions of the Constitution. It takes life without a jury trial, or any other process of law; and we have already seen, it is by virtue of the same Right of War that the property of enemies may be taken, and freedom given to their slaves. On the exercise of these rights there can be no check or limitation in the Constitution. Any such check or limitation[Pg 72] would be irrational. War cannot be conducted in vinculis. Seeking to fasten upon it the restraints of the Constitution, you repeat the ancient tyranny which compelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war, bringing into being other rights which know no master. An Italian publicist has said that there is no right which does not, in some measure, impinge upon some other right. But this is not correct. The Rights of War can never impinge upon any rights under the Constitution, nor can any rights under the Constitution impinge upon the Rights of War. Rights, when properly understood, harmonize with each other.

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

But while all desire to see the Rebellion completely crushed, there may be difference with regard to the Rights of War to be exercised. Some may be for part; others may be for all. Some may reject the examples of the past; others may insist upon them. It[Pg 73] is for you to choose; but, in making election, you will not forget the object in view. At another point I have leaned on the authority of Grotius. Turning now to Vattel, a writer of masculine understanding, who has done much to popularize the Law of Nations, I am influenced by the consideration, that, less austere than others, he seems always inspired by the free air of his native Switzerland, and filled with the desire of doing good, so that what he sanctions cannot be regarded as illiberal or harsh. In grouping the details entering into the object proposed, this benevolent master teaches that we may seek these things:—

1. Possession of what belongs to us;

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

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

4. Punishment of the enemy.[57]

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

Such in detail is the object that is all contained in the idea of peace. In this work it is needless to say there is no place for any sentiment of hate or any suggestion[Pg 74] of vengeance. There can be no exaction and no punishment beyond the necessity of the case,—nothing harsh, nothing excessive. Lenity and pardon become the conqueror more even than victory. “Do in time of peace the most good, and in time of war the least evil possible: such is the Law of Nations.” These are the admirable words of an eminent French magistrate and statesman.[58] In this spirit it is our duty to assuage the calamities of war, and especially to spare an inoffensive population.

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

The property of the leaders consists largely of land, owned in extensive plantations. It is just that these should be broken up, so that never again can they be nurseries of conspiracy or disaffection. Partitioned into small estates, they will afford homes to many now homeless, while their peculiar and overbearing social influence will be destroyed. Poor neighbors, so long dupes and victims, will become independent possessors[Pg 75] of the soil. Brave soldiers, who have left their Northern skies to fight the battles of their country, resting at last from their victories, and changing their swords for ploughshares, will fill the land with Northern industry and Northern principles.

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

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

The slaves of Rebels cannot be regarded as property, real or personal. Though claimed as property by their masters, and though too often recognized as such by individuals in the National Government, it is the glory of our Constitution that it treats slaves always as “persons.” At home, beneath the lash and local law, they may be chattels; but they are known to our Constitution only as men. In this simple and indisputable[Pg 76] fact there is a distinction, clear as justice itself, between the pretended property in slaves and all other property, real or personal. Being men, they are bound to allegiance, and entitled to reciprocal protection. It only remains that a proper appeal should be made to their natural and instinctive loyalty. Nor can any pretended property of their masters supersede this claim, I will not say of eminent domain, but of eminent power, inherent in the National Government, which at all times has a right to the services of all. Declaring the slaves free, you will at once do more than in any other way, whether to conquer, to pacify, to punish, or to bless. You will take from the Rebellion its mainspring of activity and strength; you will stop its chief source of provisions and supplies; you will remove a motive and temptation to prolonged resistance; and you will destroy forever that disturbing influence, which, so long as allowed, will keep this land a volcano ever ready to break forth anew. While accomplishing this work, you will at the same time do an act of wise economy, giving new value to all the lands of Slavery, and opening untold springs of wealth; and you will also do an act of justice, destined to raise our national name more than any triumph of war or any skill in peace. God, in His beneficence, offers to nations, as to individuals, opportunity, opportunity, opportunity, which, of all things, is most to be desired. Never before in history has He offered such as is ours here. Do not fail to seize it. The blow with which we smite an accursed Rebellion will at the same time enrich and bless; nor is there any prosperity or happiness it will not scatter abundantly throughout the land. Such an act will be an epoch, marking the change from Barbarism to Civilization.[Pg 77] By old Rights of War, still prevalent in Africa, freemen were made slaves; but by the Rights of War which I ask you to exercise slaves will be made freemen.

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

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

[Pg 78]

NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON.

Resolution and Remarks in the Senate, May 23, 1862.

MR. PRESIDENT,—The question presented in this resolution has a practical value to-day, when, here in Washington, we are shocked by efforts of slave-hunters, coming from an adjoining State, to carry off human beings as slaves. This is menaced on a large scale. Whole hecatombs are to be sacrificed. A Philadelphia paper of this morning, “The Press,” which I find on my table, contains, under the telegraphic head, an account of certain proceedings instituted by persons called Commissioners, who have undertaken gravely to decide, that, in a case of human freedom, “it was discretionary with them to allow cross-examination as to identity and ownership.” According to these wise Daniels, a person may be doomed to Slavery, even without any cross-examination of witnesses against him. The statement of this assumption shows the outrage which[Pg 79] offends justice and common sense, and, I am happy to believe, the Constitution also, even if it be assumed that anybody now can be treated as a slave in the District.

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

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

[Pg 80]

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

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

This pretension is aggravated by the fact that many[Pg 81] of these hunters are notoriously disloyal. Sir, it is hard that our Constitution should be violated, and men hurried into Slavery, at the trumpery process of such offensive characters. I think the Committee will find a remedy.

[Pg 82]

INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING ARMIES.

Resolution in the Senate, May 26, 1862.

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

[Pg 83]

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

Resolution in the Senate, May 26, 1862.

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

[Pg 84]

TAX ON COTTON.

Speeches in the Senate, May 27 and June 4, 1862.

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

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

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

But cotton is not only an agricultural product, it is also a leading export. Now I raise no constitutional question on the power to tax exports, although it may[Pg 85] not be entirely easy to reconcile such tax with the language of the Constitution: “No tax or duty shall be laid on articles exported from any State.” The object of this clause was to prevent discrimination among States through the taxing power. But not questioning the power in the present case, it seems to me that its exercise is of doubtful policy, according to principles of political economy. I do not think that it is the policy of civilized nations to tax exports, which play an important part, first, in quickening commerce, and, secondly, in furnishing the equivalent of imports.

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

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

Sometimes it is said, that, if cotton is not taxed, the Cotton States will escape taxation, which would be a practical injustice to other parts of the country. But[Pg 86] I am not satisfied that we cannot tax their slaves. Besides, the $200,000,000 of cotton exported assures the importation of $200,000,000 of foreign products, which, with twenty-five per cent duty, gives a revenue of $50,000,000 annually.

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

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

The proposed tax of one cent a pound is much larger. During the year ending the 30th of June, 1860, the[Pg 87] value of the cotton exported was $191,806,555, and the number of pounds exported was 1,767,686,338. A tax of one cent a pound would be $17,676,863,—a very large sum, which I should be glad to pour into our Treasury. But, assuming the value of this cotton at ten and eight tenths cents a pound, the tax of one cent a pound will be above nine and one fourth per cent,—nearly double what the tax ought to be.

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

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

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

[Pg 88]

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

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

The proposed tax upon coarse goods used in our country is found, on calculation, equal to seven per cent on the capital invested in their manufacture, and on exported goods it is equal to five per cent. If cotton must be taxed, it ought not to be higher than five per cent, and I have already shown that it ought to be ad valorem. On goods exported there should be a drawback in favor of the manufacturer, not only of the three per cent on the goods, but also of the five per cent on the cotton. If the three per cent tax on all goods used in this country were reduced to one and one half per cent ad valorem, this, with the five per cent tax on the cotton, would be equal to three and one sixth per cent ad valorem on coarse goods, and to three and one third per cent on fine[Pg 89] goods. But I prefer the proposition of the Committee, leaving the bill otherwise as it is.

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

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

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

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

[Pg 91]

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

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

Here, then, is the question in a nutshell. In imposing this tax, you have on one side the certainty of undue burden on a special interest; and what have you on the other side? An uncertainty. Who here can say that the proposed tax will be productive? Sir, we have not the cotton in our hands. Through the machinations of wicked men, it has ceased to be within our possession. I remember in my childhood being much amused with a little poem entitled “Oxen in the Skies,” which pleasantly described a contest between two senseless persons as to who should own certain imagined oxen in the skies,—that is, a contest about something not within reach. The cotton you propose[Pg 92] to tax is not within reach. I trust that it may soon be. Should we not act on existing facts, rather than on hopes?

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

[Pg 93]

TAX ON SLAVE-MASTERS.

Speeches in the Senate, on Amendment to the Internal Tax Bill, May 28 and June 6, 1862.

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

[Pg 94]

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

After this discussion, the clause as found in the Constitution, laying “a tax or duty on such importation, not exceeding ten dollars for each person,” was adopted, nem. con. Thus it appears that Sherman, Morris, Franklin,[Pg 95] and Gerry, to say nothing of Madison, all known for opposition to Slavery, and determination to give it no sanction, concurred in this proposition. They felt that a tax or duty, thus arranged, was not a sanction of Slavery.

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

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

If our tax were an encouragement, it would be clearly immoral. But it is a discouragement. Exemption[Pg 96] from taxation is encouragement. Taxation is discouragement just in proportion to its extent, until, in the progress of events, it becomes destructive. Regarding the present question in this light, our course is plain. It is not permissible to encourage Slavery, while every principle of economy and every sentiment of justice and humanity urge its discouragement.

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

If it be said, that at one time I insist the slave shall have all the rights of “persons” under the Constitution, while I now insist that his master shall pay a tax on his claim of property, I reply, that there is no inconsistency, but perfect harmony. By an unquestionable rule of interpretation, applicable to the Constitution, every word must be construed in favor of Liberty, so as most to promote Liberty. According to this rule, every presumption is in favor of Liberty. But, while insisting upon every such presumption, it does not follow that the counter claim shall not be taxed. Indeed, the same principle which inclines in favor of the slave[Pg 97] must incline also to tax the claim of his master, so long as this claim exists in fact. Freedom is to be enlarged in every way possible, whether by encouraging the slave or discouraging the master. Therefore do I say fearlessly, that the slave, whenever he appears within the national jurisdiction or before national tribunals, is entitled to all the rights of “persons”; but the master, who asserts this odious property, cannot claim any immunity for it on this account. The indulgence is all for the slave, and not at all for the master. For the slave Congress must do everything in its power; for the master Congress must have nothing but disapprobation and discouragement.

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

It is easy to levy.

It is profitable.

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

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

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

Mr. Sumner. And I propose to tax the employment of the slave-master,—that is all. It is the business of the slave-master to make the slave work. This is his high vocation. In other words, his business consists in using the service and labor of another. And to this class of persons he belongs. Is it not plain? Can there be any doubt? Look at it. He is an auctioneer of human rights, a broker of human labor, a juggler of human sufferings and human sympathies,—I might say a slaughterer of human hopes; and, Sir, if the Senator from Ohio can tax auctioneer, broker, juggler, or slaughterer of cattle, I am at a loss to understand why he cannot tax the peculiar form of these vocations all concurring in the slave-master. He is swift[Pg 100] to tax the less, but hesitates to tax the greater. He can tax the petty employment, which is not immoral or cruel; but he will not tax the larger multiform employment, in which immorality and cruelty commingle.

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

The Senator thinks it improper to tax slave-masters, especially when we have cotton for taxation; and he almost chides me, because yesterday I was against the cotton tax, which in his judgment is most proper. Sir, I am at a loss to find the parallel between the two cases implied in supposing that one can be a substitute for the other. They are unlike in every respect. Slaves and cotton belong to the same section of country, precisely as alligators and cotton; and that is all the parallel between them. Cotton is an agricultural product, entering into commerce and manufactures, while the manufactures made from it are important to all classes, but especially the poor. The question of its taxation involves considerations of economy and policy utterly unlike those arising on the motion to tax the claim of the slave-master. It is difficult to see how the two taxes can be confounded. One is a tax on an agricultural product; the other is a tax on an odious claim. The Senator will not say that it is an acceptable claim under the Constitution. Even if there, it is disguised under ambiguous words. Indeed, he knows well that it is offensive and repugnant to the conscience of good people. Shall not such a claim be taxed? Shall such a claim be permitted to go scot-free? Shall[Pg 101] we run about the country, seeking class after class to visit with oppressive taxation, and, under the lead of the Senator, excuse this largest and most offensive class of all? I am at a loss to understand on what ground of principle the Senator can proceed, when he proposes this special immunity. If I use strong terms in describing slave-masters, it is because the very language of the bill suggests them, and they are in essential conformity with truth.

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

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

The remarks of the Senator were occupied chiefly[Pg 103] with two heads,—first, eulogy of slave-masters, and, secondly, vindication of his proposed tax on cotton. I have little to say of the Senator’s eulogy. There are two authorities on that head, which the Senator will pardon me, if I place above him: I mean Mr. Jefferson and Colonel Mason, both of our early Revolutionary days. Mr. Jefferson assures us that the whole commerce between master and slave is one of boisterous passion, tending to barbarism.[68] Colonel Mason exclaimed, in the Convention to frame the Constitution, that every slave-master is born a petty tyrant.[69] And yet, Sir, in the face of this authentic testimony, from persons who knew Slavery and all its influences, the Senator eulogizes slave-masters, and pleads for their exemption from taxation. Eulogy is for the dead. I would not add to the odium justly belonging to a tyrannical class, but I do insist that justice shall be done to their victims; and when the Senator interposes eulogy, I interpose against him the rights which have been violated. So long as men persist in such outrage, so long as they persevere in maintaining an institution which annuls the parental relation, the conjugal relation, the right to instruction, the right to the fruit of one’s own labor, and does all this merely to make men work without wages, so long as men support this unjust and irrational pretence, they must not expect soft words from me. If the Senator from Ohio finds it in his generosity to plead for slave-masters, he must excuse me, if I decline to follow him. He does not know them as well as I do, nor does he know their victims as well as I do.

[Pg 104]

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

The Senator from Maine [Mr. Fessenden] said that he had looked simply at the revenue to be obtained by[Pg 105] a tax. But, pray, will not a larger revenue be obtained at the rate of five dollars than at the rate of two? There are the slaves,—count them, and tax them. The process is simple, with no chance of evasion. Besides, Sir, I cannot forget, nor can the Senator, that throughout our history we have heard constantly of “incidental protection.” But, if incidental protection is just and expedient, then is incidental discouragement, and the tax I propose may be sustained on this ground. We do not hesitate to tax whiskey and tobacco as luxuries, indulgences, vices. Why should we hesitate to tax the worst luxury, the worst indulgence, the worst vice of all, which is Slavery? Therefore, for a double reason, first, for the sake of revenue, and, secondly, for the sake of discouragement to Slavery, I am for the larger tax.

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

Nor again, Sir, do I believe that the Senator from New Hampshire can take to himself any monopoly of praise for denying the whole offensive pretension of property in man. Is he more earnest in this denial than many other Senators? Is he more earnest than the Senator from Pennsylvania near me? Is he more earnest than myself? Has he denied it oftener in debate or public speech? To me the pretension is absurd as it is wicked. A man may as well claim property in a star as in his fellow-man. And yet, Sir, with this conviction, I cannot forget that I am here, as a Senator,[Pg 107] to legislate with regard to existing institutions, and to see things as they are. I cannot be blind to the fact of Slavery. Slavery exists as a monstrous fact, an enormity, if you please, but still it exists; and as a legislator I am to act on its existence. Am I not right? Can I presume on this occasion to be guided by my inner conviction that there is no property in man, when, looking to the Slave States, I am compelled to see the great, unquestionable fact of pretended property? To my mind, it is more practical to recognize the fact, and to proceed accordingly.

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

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

[Pg 108]

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

In no other way can you obtain so much revenue so easily and so beneficently. But if you refuse to impose this tax, you concede a special immunity to a most offensive[Pg 109] pretension, and leave those who profit by it to gather their profits without any of that burden so freely imposed upon the honest industry of the country, and upon so many classes of our citizens.

[Pg 110]

PROPER DESPATCH OF BUSINESS.

Remarks in the Senate, on the Order of Business, May 30, 1862.

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

Mr. Sumner. They do not prevail here, and we are to take things as they are. Now, Sir, shall we limit debate? Shall we cut it off more or less? In the absence of rules by which it may be done, we are asked to do it by protracting the daily session into the night, in other words, by night sessions, and so hurrying the bill to a final vote. I do not think this advisable. The matters in question are too important for such summary process. Each day has its debate on questions of detail, which multiply as we proceed; but there are two or three questions of principle not yet considered, though already before us, including that opened yesterday by the Senator from Rhode Island [Mr. Anthony], and[Pg 111] another to be presented by the Senator from California [Mr. McDougall], involving a review of different systems of taxation. Is it supposed that such questions can be properly considered in a single day, or in two days, so that then we shall be ready to vote? To my mind it is not possible.

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

[Pg 112]

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

Resolution and Remarks in the Senate, June 2, 1862.

[Pg 113]

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

[Pg 114]

Then follows a further statement.

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

The proper rule of conduct is simple. It is found in the instructions, to which I referred the other day, from the British Commissioner in a conquered province of India. After indicating certain crimes to be treated[Pg 115] with summary punishment, he proceeds to say: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, unless where they are clearly repugnant to reason and natural equity.”[72] Here is the proper limitation. Anything else is unworthy of a civilized country. Whatever is clearly repugnant to reason and equity must be rejected. Surely such a thing cannot be enforced. But what can be more clearly repugnant to reason and equity than the barbarous law which an officer, in the name of the National Government, has threatened to enforce?

[Pg 116]

STAND BY THE ADMINISTRATION.

Letter to ——, June 5, 1862.

[Pg 119]

POWER OF CONGRESS vs. MILITARY GOVERNMENT OF STATES.

Resolutions in the Senate, June 6, 1862.

Whereas Edward Stanly, assuming to act under a letter from the Secretary of War, calling him Military Governor of North Carolina, a post unknown to the Constitution and laws of the Union, has undertaken, by virtue of such military authority, to surrender fugitive slaves, contrary to the intent and meaning of an Act of Congress recently adopted; also to banish an American citizen, in violation of personal rights secured by the Constitution; and also to close and suppress schools maintained by the charity of good men for the education of colored children, in defiance of every principle of morals and religion, and to the discredit of our national character: Therefore,—

1. Resolved, That the President of the United States be requested to cancel the letter of the Secretary of War under which Edward Stanly now assumes to act.

2. Resolved, That any such letter, assuming to create any person Military Governor of a State, is without sanction in the Constitution and laws, and that its effect[Pg 120] is to subordinate the civil to the military authority, contrary to the spirit of our institutions, and in derogation of the powers of Congress, which, where a State Government falls into the hands of traitors, can be the only legitimate authority, except martial law.

[Pg 121]

AIR-LINE RAILROAD BETWEEN WASHINGTON AND NEW YORK.

Resolution in the Senate, June 9, 1862.

RESOLVED, That the Committee on Post-Offices and Post-Roads be directed to consider the expediency of providing for an air-line railroad between Washington and New York, which shall carry the mails of the United States, and be free from all local impediments.

[Pg 122]

ABOLITION AND PROHIBITION OF SLAVERY IN WEST VIRGINIA.

Remarks in the Senate, on the Bill for the Admission of West Virginia As a State, June 26, July 1 and 14, 1862.

MR. PRESIDENT,—The question is on the admission of West Virginia into the Union as a new State, and the following is one of the conditions, namely: “That from and after the fourth day of July, 1863, the children of all slaves born within the limits of said State shall be free.” Here is a condition which you undertake to impose. This is clear.

But, Sir, be good enough to observe that this condition recognizes Slavery during the present generation. Short as life may be, it is too long for Slavery. If it be adopted, and the bill becomes a law, a new Slave State will take its place in our Union,—it may be with but few slaves, and for the present generation only, but nevertheless a new Slave State. That, Sir, is too much.

How often have I said, and how painful that I must now repeat what all know, that it takes but little Slavery to make a Slave State with all the virus of Slavery! Now my vote shall help no new State to take a place in this Union, with Senators in this body, unless purged of this poison. Enough has our nation been disturbed,[Pg 123] and enough has the Constitution been perverted. The time has come for the remedy. It is found in the policy of Thomas Jefferson, originally applied to the great Territory of the Northwest. Its application to a portion of his own Virginia, seeking to become a new State, will be politic, just, and conservative.

Time has elapsed since this measure was before the Senate, which meanwhile has been engaged in an important debate. Therefore I shall be pardoned, if, at the expense of repetition, I recall attention to the precise question.

The bill for the admission of West Virginia provides that from and after the 4th of July, 1863, all children born of slaves shall be free, leaving the existing generation in Slavery. From statistics furnished by the honorable Senator from Virginia [Mr. Willey], in his elaborate speech, it appears that in West Virginia twelve thousand human beings are held in Slavery.

Mr. Sumner. There may be fewer now: call the number ten thousand. There are ten thousand slaves there, who, according to the bill, are to remain in bondage during life. Thus, for one whole generation, shall[Pg 124] we be afflicted by another Slave State, with two slaveholding representatives in this body.

I mean to speak of this question with all possible respect for Senators on the other side. I am anxious not to introduce any topic otherwise than agreeable; but I must discharge my duty here. I cannot by my vote consent that there shall be two additional slaveholding Senators for another generation. I content myself with this declaration, without argument,—except what is found in a brief passage by Mr. Webster in this body. I refer to his speech of the 22d of December, 1845, on the admission of Texas, where he used this language:—

[Pg 125]

Afterwards, in his famous speech of the 7th of March, 1850, he reaffirmed these principles.

I might quote more, but this is sufficient. Mr. Webster was against new Slave States.

I adduce these words as stating strongly at least one important ground of objection. The admission of West Virginia with a condition recognizing Slavery for a full generation will be an extension of the Slave Power and a new sanction of Slavery. I cannot consent to it, Sir; nor do I see any apology for hesitation. Our control of this matter is clear beyond reasonable doubt, and the present state of our country supplies a new motive for its exercise.

I renounce the intention of presenting again the amendment you have already voted down; but it is none the less important in my judgment. I do not like to occupy the time of the Senate; but I cannot doubt that you have acted on the amendment hastily, and without full consideration. Why, Sir, it is simply the old Jeffersonian ordinance, which, when originally adopted for the great Territory of the Northwest, operated upon Slavery already there, and absolutely forbade this wrong from that time forward. In point of fact, slaves were freed by this ordinance.

I thought it well that this institute of Virginia’s son should help to redeem Virginia. It has been voted[Pg 127] down; and now the question is presented, whether the Senate will recognize a new Slave State. True, Slavery will be for a short term only, for twenty-one years, if you please, but that is a long time for Slavery. I cannot consent to admit a new State with such a curse for twenty-one years. How little slavery it takes to make a Slave State is illustrated by Delaware, with less than eighteen hundred slaves, sending two Senators of Slavery to this Chamber. Shall we welcome two more from a State newly created by ourselves? Never, Sir, by my vote; and as the Senate sees fit to discard the effort I have made, I deem it my duty to vote against the bill.

[Pg 128]

WAR POWERS OF CONGRESS: CONFISCATION AND LIBERATION.

Speech in the Senate, on the House Bill for the Confiscation of Property and the Liberation of Slaves belonging to Rebels, June 27, 1862.

MR. PRESIDENT,—Too tardily the house of a Rebel General in Virginia[83] has been taken by the Government, and set apart as a military hospital for the reception of our soldiers, wounded and maimed in battle. At least three churches here in Washington have been seized and occupied for the same purpose. All applaud these acts, which make the house[Pg 129] more historic and the churches more sacred than ever before. But pray, Sir, under what authority is all this? Not according to any contract or agreement; not according to any “due process of law”; not even according to any statute. And yet the language of the Constitution is positive: “No soldier shall in time of peace be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” If it be time of peace now, then is the Constitution violated by quartering soldiers in these houses without the consent of the owner. If it be time of war now, then is the Constitution violated by quartering these soldiers in a manner not prescribed by law,—unless we are ready to admit that the provisions of the Constitution are entirely inapplicable to what is done under the military requirements of self-defence, which is a supreme law, above all other laws or constitutions devised by men. But if the Constitution, in a case where it is singularly explicit, can be disregarded without question in the exercise of the Rights of War, it is vain to invoke its provisions in other cases, where it is less explicit, in restraint of the Rights of War.

It is true that the Constitution ambiguously provides against certain forfeitures, as incident to an “attainder of treason”; it also positively prohibits “ex post facto laws”; and it nobly declares that “no person shall be deprived of life, liberty, or property, without due process of law.” But nothing in the House bills for the confiscation of property or the liberation of slaves is obnoxious to either of these provisions. There is no attainder of treason, no ex post facto law, and no taking of property without due process of law; for the judi[Pg 130]cial proceedings which these bills institute are competent for the purpose. The House bills are not criminal statutes, nor do they institute criminal proceedings. Therefore do I assert unhesitatingly that these bills are above constitutional objection. They are as constitutional as the Constitution itself. It was once said of a subtile spirit of criticism, that it would find a heresy in the Lord’s Prayer; and such a spirit, permit me to say, is needed to find anything unconstitutional in these bills.

Here I assume, as a cardinal principle of Constitutional Law, that, whatever may be the condition of slaves in the States and under State laws, they are, under the Constitution of the United States, persons, and not property; so that, in declaring their emancipation, Congress is not constrained by any constitutional requirements with regard to property. Whatever the claims of property, slaves are men; and I but repeat an unquestionable truth of morals, confirmed by the Declaration of Independence, when I say that there can be no property in men. Mr. Winter Davis,[84] of Baltimore, has reminded the country, that Congress, on the motion of Mr. Clay, once undertook to declare the freedom of slaves without any “due process of law”; and the present Congress, by a bill of the last session, setting free slaves actually employed in the Rebellion,[85] has done the same thing; so that the principle is completely established.

Even if the bills seemed obnoxious to certain constitutional provisions,—as they clearly are not,—this [Pg 131]objection and every other objection will disappear, when it is understood that they are war measures, derived from the capacious War Powers of Congress, applicable only to public enemies, and limited in duration to the war. Considered in these aspects and with these qualifications, these bills are only an agency in the prosecution of the war, and the power to enact them is as clear as the power to raise armies or to levy taxes. An ancient historian, in words adopted by the greatest modern publicist, has told us that “war has its laws, no less than peace.”[86] These words are placed by Grotius at the head of his great work, and they embody a fundamental principle. The Rights of War are not less peculiar than the victories of war, which are so widely different from the victories of peace.

Pray, Sir, where in the Constitution is any limitation of the War Powers? Let Senators who would limit them mention a single section, line, or phrase, which even hints at any limitation. If it be constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battle,—all without trial by jury, or any process of law, or judicial proceeding of any kind,—it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves. Nor can it be doubted on principle, that, if the latter be unconstitutional, then are all other acts of war unconstitutional. You may condemn confiscation and liberation as impolitic, but you cannot condemn them as unconstitutional, unless, in the same breath, you condemn all other agencies of war, and resolve our present[Pg 132] proceeding into the process of a criminal court, guarded at each step by the technicalities of the Common Law.

Sir, I speak frankly, according to my convictions, claiming nothing for myself which I do not freely accord to others. In this discussion there is no need of sharp words or of personal allusions; nor can anything be gained by misstatement of the position of another. It is easy to say that Senators who insist upon the War Powers of Congress are indifferent to the Constitution; but I do not admit that any Senator is more anxious for the Constitution than myself. The War Powers are derived from the Constitution, but, when once set in motion, are without any restraint from the Constitution; so that what is done in pursuance of them is at the same time under the Constitution and outside the Constitution. It is under the Constitution in its beginning and origin; it is outside the Constitution in the latitude with which it is conducted; but, whether under the Constitution or outside the Constitution, all that is done in pursuance of the War Powers is constitutional. It is easy to cry out against it; it is easy, by misapplication of the Constitution, to call it in question; but it is only by such misapplication, or by senseless cry, that its complete constitutionality can for a moment be drawn into doubt.

The language of the Constitution is plain and ample. It confers upon Congress all the specific powers incident to war, and then further authorizes it “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Here are the precise words:—

[Pg 133]

Can language be clearer? Other parts of the Constitution may be open to question; but here is no room for question. The text is full and unequivocal. The powers are enumerated. Without stopping to consider them in detail, it will be seen that the most important are exclusively incident to a state of war, and not to a state of peace. A declaration of war is of course war, and “all laws necessary and proper for carrying into execution” this declaration are called into being by the war. Rules concerning captures on land and water are from necessity dormant, till aroused by war; but when aroused, they are, like other War Powers, without check from those constitutional provisions which, just so long as peace prevails, are the boast of the citizen.

The War Powers conferred upon Congress by the Constitution were well known; they had been conferred upon Congress by the earlier Articles of Confederation. The language of the latter was full and explicit with regard to captures.

The language subsequently employed in the Constitution is identical in substance. It is evident that the framers of the Constitution had the Articles of Confederation in mind, when they vested in Congress power to “make rules concerning captures on land and water.”

The bills now under consideration are obviously founded on the War Powers. The first section of the first bill begins as follows.

The Senator must be very hardy who denies the power of Congress, in the exercise of belligerent rights, to pass such a bill; and he must be equally hardy, when he insists that belligerent rights are impaired by any limitations of the Constitution.

If the enemies against whom we now wage war were not our own fellow-citizens, if they were aliens unhappily fastened for the time on our territory, there would be no fine-spun question of constitutional immunity. Such immunities are essentially municipal in character; but a public enemy can claim nothing merely municipal. The immunities he enjoys are such only as are conceded by the Rights of War,—nor more, nor less. As a public enemy, he seeks to subvert our Government, its laws and its Constitution; and in this warfare[Pg 135] he proceeds according to the Rights of War, indifferent to any mere local law. But if the war on our part were in accordance with mere local law, and in subordination to provisions of the Constitution devised for peace, it is evident that the National Government would be unable to cope with its enemy. It would enter into battle with hands tied behind the back. Of course, in warfare with people of another country Senators would not require any such self-sacrifice.

But the Rights of War are fixed, whether against alien enemies or against enemies whose hostility is aggravated by the guilt of rebellion, with this single difference, that against rebel enemies these rights would seem to be more complete and unsparing. Show me any Right of War which may be employed against alien enemies, and now, in the name of the Constitution, I insist upon its employment against rebels arrayed as enemies. Because enemies are also rebels, they are not on this account any the less enemies. Because rebels are also enemies, they are not on this account any the less rebels. The double character which they bear increases their liabilities, subjecting them to all the penalties of war enhanced by those personal responsibilities which every partaker in rebellion necessarily assumes.

And yet, Sir, the Constitution is cited as a limitation upon these rights. As well cite the Constitution on the field of battle to check the bayonet charge of our armies, or at the bombardment of a fortress to stay the fiery rain of shells; or, to adopt the examples with which I began, as well cite the Constitution to prevent the occupation of churches here in Washington as hospitals for our soldiers, or to save the house of General Lee in Virginia from similar dedication. The Constitution is en[Pg 136]tirely inapplicable. Sacred and inviolable, the Constitution is made for friends who acknowledge it, and not for enemies who disavow it; and it is made for a state of peace, and not for the fearful exigencies of war, treading down within its sphere all rights except the Rights of War. Born of violence, and looking to violence for victory, war discards all limitations except such as are supplied by the Rights of War. Once begun, war is a law unto itself,—or, in other words, it has a law of its own, which is part of itself. And just in proportion as you seek to moderate it by constitutional limitations do you take from war something of its efficiency. In vain do you equip our soldiers with the best of weapons, or send into the field the most powerful batteries, the latest invention of consummate science, if you direct them all in full career to stand still for an indictment, or other “due process of law,” or, at least, for the reading of the Riot Act. Undertaking to limit the Rights of War by the Constitution, where are you to stop? If the Constitution can interfere with one, it can interfere with all. If the Constitution can wrest from Government the weapons of confiscation and liberation, there is no other weapon in the whole arsenal of war which it may not take also.

Sir, the Constitution is guilty of no such absurdity. It was made by practical men, familiar with public law, who, seeing clearly the difference between peace and war, established powers accordingly. While circumscribing the Peace Powers with constitutional checks, they left untouched the War Powers. They declared, that, in the administration of the Peace Powers, all should be able to invoke the Constitution as a constant safeguard. But in bestowing upon the Government[Pg 137] War Powers without limitation, they embodied in the Constitution all the Rights of War as completely as if those rights had been severally set down and enumerated; and among the first of these is the right to disregard the Rights of Peace. In saying this I fail in no sympathy with peace, which I seek and reverence always, but simply exhibit war in some of its essential conditions. Sir, an alien enemy is not admitted even to sue in your courts.

There is a saying of Antiquity, already quoted in this debate, Silent leges inter arma,—“The laws are silent in the midst of arms.”[88] Handed down from distant ages, and repeated by successive generations, this saying may be accepted as the embodied result and very essence of human experience. Had it not been true, it would have been forgotten, or at least ceased to be repeated. But it declares a truth to which every war practically testifies, while it is founded in reason and the nature of things, confirmed by centuries as attesting witnesses. The Constitution itself is only a human law; nor can it claim to speak in time of war, and within the sphere of war, more than any other human law.

How vain, then, to adduce against confiscation and liberation, as war measures, an objection derived from the Constitution! and how vain, also, to offer a penal statute, under the Peace Powers of the Constitution, as a war measure! War is war. Better arrest it at once, if it is to be war on the one side and peace on the other,—if our enemies are to employ against us all the Rights of War, while we employ against them only the Rights of Peace. Penal statutes are good for peace, when laws prevail; but in the midst of war, and against enemie[Pg 138]s, when laws are proverbially silent, they are absurd. What enemy now arrayed in arms can be indicted, or, if indicted, convicted, under the most stringent of penal statutes? Not Jefferson Davis himself. Why, then, painfully construct legislative verbiage? Why new penalties for treason, which, from the nature of the case, cannot be enforced in this hour of need? Why not see things as they are, and do what the moment requires? The War Powers of Congress are ample; but in time of war a mere penal statute against a public enemy is not so much as a pop-gun.

There are Senators who claim these vast War Powers for the President, and deny them to Congress. The President, it is said, as commander-in-chief, may seize, confiscate, and liberate under the Rights of War, but Congress cannot direct these things to be done. Pray, Sir, where is the limitation upon Congress? Read the text of the Constitution, and you will find its powers vast as all the requirements of war. There is nothing that may be done anywhere under the Rights of War, which may not be done by Congress. I do not mean to question the powers of the President in his sphere, or of any military commander within his department; but I claim for Congress all that belongs to any Government in the exercise of the Rights of War. And when I speak of Congress, let it be understood that I mean an Act of Congress, passed, according to the requirements of the Constitution, by both Houses, and approved by the President. It seems strange to claim for the President alone, in the exercise of his single will, War Powers alleged to be denied to the President in association with Congress. If he can wield these powers[Pg 139] alone, surely he can wield them in association with Congress; nor will their efficacy be impaired, when it is known that they proceed from this associate will, rather than from his single will alone. The Government of the United States appears most completely in an Act of Congress. Therefore war is declared, armies are raised, rules concerning captures are made, and all articles of war regulating the conduct of war are established by Act of Congress. It is by Act of Congress that the War Powers are all put in motion. When once put in motion, the President must execute them. But he is only the instrument of Congress, under the Constitution.

It is true, the President is commander-in-chief; but it is for Congress to make all laws necessary and proper for carrying into execution his powers, so that, according to the very words of the Constitution, his powers depend upon Congress, which may limit or enlarge them at its own pleasure. Thus, whether you regard Congress or regard the President, you will find that Congress is the arbiter and regulator of the War Powers.

Of the pretension that all these enormous powers belong to the President, and not to Congress, I try to speak calmly and within bounds. I mean always to be parliamentary. But a pretension so irrational and unconstitutional, so absurd and tyrannical, is not entitled to respect. The Senator from Ohio [Mr. Wade], in indignant words worthy of the Senate, has branded it as slavish, and handed it over to judgment. Born in ignorance, and pernicious in consequences, it ought to be received most sternly, and, just in proportion as it obtains acceptance, with execration. Such a pretension would change the National Government from a government of[Pg 140] law to that of a military dictator. It would degrade our proud Constitutional Republic, where each department has its appointed place, to one of those short-lived, vulgar despotisms appearing occasionally as a warning to mankind. That this pretension should be put forward in the name of the Constitution is only another illustration of the effrontery with which the Constitution is made responsible for the ignorance, the conceit, and the passions of men. Sir, in the name of the Constitution, which I have sworn to support, and which, according to my ability, I mean to maintain, I protest against this new-fangled effort to foist into it a pretension abhorrent to liberty, reason, and common sense.

At the risk of repetition, but for the sake of clearness, I repeat the propositions on which I confidently rest.

1. Rights of Sovereignty are derived from the Constitution, and can be exercised only in conformity with the requirements of the Constitution; so that all penal statutes punishing treason must carefully comply with these requirements. This is the case of the bill introduced by the Senator from New Hampshire [Mr. Clark].

2. Rights of War are under the Constitution in their origin, but outside the Constitution in their execution. In other words, the Constitution confers Rights of War, but sets no limits to them; so that statutes to enforce them are not mere penal statutes, restricted by the Constitution. But these rights belong to a state of war, and necessarily cease with the war. This is the case of the House bill under discussion.

3. All rebels are criminals,[Pg 141] liable to punishment according to penal statutes; and in all proceedings against them, as such, they are surrounded by the safeguards of the Constitution.

4. Rebels in arms are public enemies, who can claim no safeguard from the Constitution; and they may be pursued and conquered according to the Rights of War.

5. Rights of War may be enforced by Act of Congress, which is the highest form of the national will.

If these conclusions needed the support of authority, they would find it in John Quincy Adams. His words have been often quoted, without perhaps fully considering the great weight to which they are entitled. At an early day, when Minister at London, while Slavery prevailed in the Government, in the discharge of official duties, under instructions from the President, he claimed compensation for slaves liberated by the British armies, arguing against any such liberation under the Rights of War. In conversation with the British Prime-Minister, as reported by himself, after saying that proclamations inviting slaves to desert from their masters had been issued by British officers, he added: “We considered them as deviations from the usages of war.”[89] Afterwards, as Secretary of State under Mr. Monroe, of Virginia, he made a similar statement.[90] A full knowledge of his convictions on this occasion might, perhaps, disclose the repugnance, or, to borrow his own words on another occasion, “the bitterness of soul,” with which he discharged his duty. It is known, by avowal[Pg 142]s afterwards made, that on at least one occasion he acted as Secretary of State contrary to his convictions. “It was utterly against my judgment and wishes, but I was obliged to submit, and I prepared the requisite despatches.”[91] Such was his open declaration in the House of Representatives with regard to an important negotiation. So that it is easy to see how on this other occasion he may have represented the Government and not himself. But, whatever his actions at that time, it is beyond question, that afterwards, in his glorious career as Representative, when larger experience and still maturer years had added to his great authority, and he was called in Congress to express himself on his personal responsibility, we find him reconsidering his earlier diplomatic arguments, and, in the face of the world, defiantly claiming not only for Congress, but for the President, and every military commander within his department, full power to emancipate slaves under the Rights of War. If these words had been hastily uttered, or, if once uttered, had been afterwards abandoned, or if they could in any way be associated with the passions or ardors of controversy, as his earlier words were clearly associated with the duties of advocacy, they might be entitled to less consideration. But they are among the later and most memorable utterances of our great master of the Law of Nations, made under circumstances of peculiar solemnity, and repeated after intervals of time.[92]

…

The re[Pg 143]presentatives of Slavery broke forth in characteristic outrage upon the venerable orator, but nobody answered him. And these words have stood ever since as a landmark of public law. You cannot deny the power of Congress to liberate the slaves, without removing this landmark. Vain work! It is not less firm than the Constitution itself.

Thus do I vindicate for Congress all the Rights of War. If, assuming the powers of Congress, any further question be raised as to the extent of these rights, I reply, briefly, that there is no right, according to received authorities, against a hostile sovereign or prince, embracing, of course, confiscation of property, real as well as personal, which may not in our discretion be exercised against a rebel enemy; and the reason is obvious. Whatever the mitigations of the Rights of War introduced by modern civilization, under which private property in certain cases is exempt from confiscation, this rule does not apply to cases where there is a direct personal responsibility for the war. And here is the precise difference between the responsibility of the sovereign or prince and the responsibility of the private citizen: the private citizen is excused; but the sovereign or prince is always held responsible to the full extent of his property, real as well as personal. Now every rebel who has voluntarily become a public enemy has assumed a personal responsibility, for which, according to acknowledged principles of public law, especially if he has taken high office in the rebel government, he is liable to the full extent of his property, real as well as personal. Every citizen who voluntarily aids in armed rebellion is a hostile sovereign or prince. A generous lenity may interfere to limit his liability, but on principles of public law he is in the very conditi[Pg 144]on of Shylock, when his cruelty was arrested by the righteous judge:—

Such, Sir, is the extent of powers which may be exercised by Congress. Of course, it is for Congress to determine the degree of severity or lenity it will adopt. In claiming these powers to the full extent, I yield to no Senator in that spirit of clemency which, next to justice, is the grace and ornament of success.

Mr. President, these are the principles on which we must act. Announcing them and reducing them to practice, Congress will enlarge its accumulating claims to public gratitude.

The present Congress has already done much beyond any other Congress in our history. Measures, which for long years seemed attainable only to the most sanguine hope, have triumphed. Emancipation in the National Capital; freedom in all the National Territories; the offer of ransom to help emancipation in the States; the recognition of Hayti and Liberia; the treaty with Great Britain for the suppression of the slave-trade; the prohibition of the return of fugitive slaves by military officers; homesteads for actual settlers on the public lands; a Pacific railroad; endowments of agricultural colleges out of the public lands: such are some of the achievements by which the present Congress is already historic. There have been victories of war, won on hard-fought fields, but none comparable to the victories of peace. Besides these measures of unmixed[Pg 145] beneficence, the present Congress has created an immense army and a considerable navy, and has provided the means for all our gigantic expenditures by a tax, which in itself is an epoch.

Thus, in the prosecution of the war, Congress has exercised two great powers,—first, to raise armies, and, secondly, to tax. Both bear directly upon loyal fellow-citizens everywhere throughout the country. Sons, brothers, and husbands are taken from happy homes and from the concerns of business, leaving vacant places, never, perhaps, to be filled again, and hurried away to wage a fearful war. But beyond this unequalled draft upon the loyal men of the country, summoning them to the hazards of battle, there is another unequalled draft upon the loyal property of the country, presenting a combined draft without precedent upon men and upon property. If you would find a parallel to the armies raised, you must go back to the forces marshalled under Napoleon in the indulgence of unbridled ambition. If you would find a parallel to the tax, you must go further back, to that early day of which the Gospel, in its simple narrative, speaks: “And it came to pass in those days that there went out a decree from Cæsar Augustus, that all the world should be taxed.” A similar decree is about to go out from you,—not, indeed, to tax all the world, but to tax a large and generous people: vast, it may be, even for the world. There have been taxes here before; and in other countries there have been taxes as enormous: but there has been no such tax here before; and in no other country has any such tax been levied at once, without the preparation and education of long-continued taxation.

[Pg 146]

Confiscation and liberation are other War Powers of Congress, incident to the general grant of such powers, which it remains for us to employ. So important are they, that without them I fear all the rest will be in vain. Yes, Sir, in vain do we gather mighty armies, and in vain do we tax our people, unless we are ready to grasp these other means, through which the war can be carried to the homes of the Rebellion: I mean especially the criminal homes of the authors and leaders of all this wickedness. By the confiscation of property, the large Rebel estates, where treason laid its eggs, will be broken up, while by the liberation of slaves the Rebels will be deprived of an invaluable ally, whether in labor or in battle. But I confess frankly that I look with more hope and confidence to liberation than to confiscation. To give freedom is nobler than to take property, and on this occasion it cannot fail to be more efficacious, for in this way the rear-guard of the Rebellion will be changed into the advance-guard of the Union. There is in confiscation, unless when directed against the criminal authors of the Rebellion, a harshness inconsistent with that mercy which it is always a sacred duty to cultivate, and which should be manifest in proportion to our triumphs, “mightiest in the mightiest.” But liberation is not harsh, and it is certain, if properly conducted, to carry with it the smiles of a benignant Providence.

The war began in Slavery, and it can end only with the end of Slavery. It was set in motion and organized by the Slave Oligarchy, and it cannot die except with this accursed Oligarchy. Therefore, for the sake of peace, and to restore the Union, every power should[Pg 147] be enlisted by which Slavery, which is the soul of the war, can be reached. Are you in earnest? Then strike at Slavery. Liberation is usually known as a charity; but while none the less a charity, comprehending all other charities, it is now, in the course of events, a necessity of war. Through liberation alone can we obtain that complete triumph, bringing with it assured tranquillity, without which the war will stop merely to break forth anew, and peace will be nothing but an uneasy truce. Among all the powers of Congress incident to our unparalleled condition, there is none so far-reaching, as there is none so beneficent,—there is none so potent to beat down rebellion, as there is none other by which peace can be made truly secure. Powerful and beautiful prerogative! The language of Chatham is not misapplied, when I call it the “master feather of the eagle’s wing.”

[Pg 148]

PRIZE-MONEY AND ITS POLICY.

Remarks in the Senate, June 30, 1862.

I take it that the policy of prize-money is always open to question. It has been handed down from other generations, but I cannot doubt, that, in proportion as nations advance in civilization and refinement, it is more and more drawn into doubt.

Mr. Sumner. But these vested rights, according to existing law, are acquired in war with foreign enemies. And here is the precise point of principle. Certain property of fellow-citizens is taken, not by foreign enemies, but by rebels, and afterwards it is retaken. Several vessels are in this predicament. Even if the recapture were from a foreign enemy, English and American statutes treat it as a case of salvage, and not of prize. But the claim now made involves nothing less than the extension of the ancient rule of war to a new class. I am against such extension. I would have no amplification of such a rule.

[Pg 149]

I am disposed to go still further, and to reconsider the whole policy of prize-money in any case. Even if not ready for this larger question, the Senate will not hesitate to apply the limitation now proposed. Besides the hardship of prize-money at the expense of our own fellow-citizens, there is the uncivilized character of the whole system, which should make us pause.

[Pg 150]

THE RANK OF ADMIRAL.

Remarks in the Senate, on the Bill to establish the Grades of Navy Officers, July 2, 1862.

I hope the amendment will prevail. For years we have been asked to make admirals. Congress has refused,—partly, perhaps, from motives of economy, and partly, also, from hesitation to create officers with that rank and title.

Now, Sir, I am willing, considering the increase of our navy and the exigency of the public service at this time, to create officers with that rank and title. So doing, we confer honor and consideration,—we bestow what officers, military and naval, naturally covet. Wherever they go, they will be addressed as Admiral; and, with naval men, that is much. Sir, I believe it more than money. But, while bestowing rank, I hesitate to increase emolument largely, particularly at this moment of our history. It costs nothing to confer rank; but it will be most expensive to the Treasury, if we enter upon a new scale of pay. Therefore I follow the Senator from New Hampshire in his proposition to reduce the salary. Create the admirals,—bestow this new title, this considerat[Pg 151]ion, this introduction wherever the admiral goes, this equality, if you please, with the admirals of other nations and other fleets; but do not undertake to vie with those nations in salaries. To me it seems unwise.

[Pg 152]

TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED STATES.

Speeches in the Senate, on an Amendment to two different Bills, one relating to the Judiciary, and the other to the Competency of Witnesses, July 3 and 15, 1862.

MR. PRESIDENT,—This bill relates to the national judiciary. The Senate is making rules for the courts of the United States, and now by its vote sanctions the rule that a witness who happens to have a color different from ours is incompetent to testify, he cannot be heard in court. The practical effect of such exclusion is, that any outrage by a white man on a colored person, if no other white person is present, must go unpunished; and the Senate of the United States refuses to interfere against this cruelty. I must say, Sir, that I lose my interest in the bill, when it is associated with such wickedness,—for such I must call it. If there is any outrage at this moment in the form of law, and actually within our reach, it is what I now hold up to the indignation of the country and of mankind. It is hard to think that human beings can be placed[Pg 153] thus defenceless by Act of Congress,—that masters or overseers, being white, may offer to colored persons any offence, any brutality, and the testimony of the witnesses, merely because they are colored, shall be excluded absolutely. And yet, Sir, that is what the Senate to-day declares.

The Senator from New Hampshire [Mr. Hale] has voted to sustain this cruelty. Other Senators have voted to sustain it. It is their privilege. Each Senator votes, I know, according to his conscience; but, Sir, I call attention to the vote, and remind you of what occurred on another occasion. Formerly, when I moved this proposition, it was opposed on the allegation that it was not pertinent to the bill under consideration. When I moved it, the other day, on what was known as the Confiscation Bill, the other Senator from New Hampshire [Mr. Clark] mildly suggested, that, at a proper occasion, on a proper bill, he would be ready to support it. I know that the motion must have the approbation of that excellent Senator. He is too just and too humane not to be in favor of it. And now, Sir, the time has come. Here is a bill regulating evidence in courts of the United States,—not in courts of the States, but in courts of the United States. The whole subject is directly before you. It is within your province now to decide. Yours the jurisdiction and power. And yet, Sir, you choose to continue the wrong. I shall vote for the bill on its final passage, because in other respects I think it ought to be a law; but I enter my protest against the conclusion of the Senate. It is melancholy, disastrous, discreditable.

[Pg 154]

The Senator from New Hampshire severely criticizes the Supreme Court, which he reminds us has decided that the rights of citizenship, being rights that white men are bound to respect, and all the rights which make human life worth anything, are dead to colored persons; and he then proceeds forthwith to sustain a principle every way as bad. He condemns Chief-Justice Taney for declaring that colored persons are not citizens, and then, with marvellous logic, proceeds to say that he will not interfere to overturn the rule by which the testimony of colored persons is excluded from the national courts. Sir, I do not know which is most open to condemnation, the Supreme Court or the Senator. I am against the decision of the Supreme Court. The Senator knows it well. I am not one whit behind him in condemnation of that judgment, which must forever stand forth among the inhumanities of this generation. But permit me to remind the Senator that the rule he sustains is not less inhuman. There is not a word he can launch against the Court that must not rebound upon himself. To me it is unintelligible as painful that the Senator should interfere to save any such inhumanity. I use strong language, but it is only in this way that I can fitly characterize the doctrines of the Supreme Court and of the Senator. The Supreme Court has erred infinitely and wretchedly, but the Senator now errs in the same way.

The Senator is entirely mistaken, when he says that the rule which I seek to overturn proceeds from the Supreme Court. It is no such thing; and if I can have his attention one moment, I can make him understand it. The rule against the testimony of colored pe[Pg 155]rsons stands on the local law of the States, and not on any decision of the Supreme Court of the United States. The Court cannot interfere with it one way or the other. Congress alone, when legislating for its own courts, can interfere with it; and I entreat the Senate now, as it is about to legislate for the national courts, to interfere with it. The amendment of the Senator from Connecticut, which I have in my hand, is as follows:—

That is, the laws of the several States shall be rules of decision in the United States courts. That is what we declare. I simply propose to add, that those laws shall not be rules of decision in the United States courts, so far as they exclude witnesses on account of color. The Senator from New Hampshire opposes this just, humane, and irresistible proposition; and his argument is, that, instead of reaching the result by legislation, we must overturn the Supreme Court. Sir, permit me to say, his argument is entirely inapplicable, his whole philippic against the Supreme Court is out of place. Whether I agree with him or not, it is plain that this is not the time for it; and I must confess that I like to see things in their proper place. The question now is much more simple, more direct. Why enter upon the ample, illimitable debate which the Senator opens? Why review the Supreme Court and its relations to the country, and whether it shall be overturned, whether it shall be reformed, whether it shall be mod[Pg 156]ified? All this has nothing to do with the question, and the Senator, when he introduced it, simply diverted attention from the business before us. I do not know that he did it purposely. Indeed, I rather suspect the ardor of his nature, which has led him into this strange diversion with its irrelevant amplification.

But the Senator says that the cases in which colored persons are interested arise in the State courts, and not in the United States courts, and that therefore my amendment is entirely inapplicable. The Senator is entirely mistaken again. The United States courts have jurisdiction of crimes without reference to color. They also have civil jurisdiction in other cases which do not depend upon citizenship. The Senator, as a lawyer, knows this well; and yet, deliberately, by vote, and now by speech, he upholds the barbarous rule of exclusion on account of color. Sir, I do not know which was worse, the vote or the speech, although the latter was in harmony with the former. I was astonished at the vote. I am now astonished at the speech, which, pardon me, is as illogical in argument as bad in principle. Most kindly, but most earnestly, do I dissent from it. Sir, I do not wish to take up time, but the subject is of transcendent importance. You will bear with my frankness, if I add, that sanctioning this exclusion can do no honor to Congress. I am sure it must be recorded in judgment against us, and deservedly too. Civilization will blush at the record. God save us!

Mr. President,—It may be well, as the Senate is called to enact a new national statute, to glance back at an early landmark, and contemplate the principles declared by our fathers. I hold in my hand the Declaration of Independence, with these words at the beginning: “We hold these truths to be self-evident, that all men are created equal,” &c. Now, Sir, the Senator from Connecticut [Mr. Foster], representing the Judiciary Committee, proposes to establish as a rule of evidence in the national courts that men are not equal.

I could not intentionally do the Senator injustice. Nor do I find that I did him injustice; and he will therefore pardon me, if I repeat what I said before[Pg 158],—that, representing the Judiciary Committee, the Senator comes forward, in defiance of the Declaration of Independence, to ingraft into the legislation of the United States the practical principle that all men are not equal. The Senator rises and denies that he is doing any such thing. He simply recognizes local laws in the States. That is all,—nothing else. But pray, Sir, is not this enough? Local laws which defy the Declaration of Independence cannot be recognized without defying the Declaration; nor can the Senator escape responsibility merely by saying that he follows the local laws. Does he not sanction injustice? The case is plain. He asks us to legislate on the competency of witnesses. He proposes to regulate this competency by Act of Congress, where, among other things, we are to provide that in the courts of the United States witnesses shall be incompetent on account of color. The proposition is not made openly, but in the covert words, that the local laws of States shall in all cases prevail in the national courts. The Senator cannot forget these local laws, how instinct with barbarism they are, nor the shame and scandal they bring upon our country and upon civilization itself; and yet he would give them new sanction and effect,—not in the courts of the States, within the local jurisdiction, but in the courts of the United States, under the Constitution of the United States, within the national jurisdiction, where you and I, Sir, are responsible for the barbarism. No matter in what form it is put, no matter how subtly the attempt is concealed, it is the adoption by Congress of an outrageous rule.

Offer[Pg 159] any objection you please to the credibility of a witness, show that he is not intelligent, that he is not worthy of belief, that his character is bad, and make all proper deductions from his testimony on this account, but do not say that he is absolutely incompetent, that he cannot be heard in court, that, no matter how intelligent, truthful, or respectable, he cannot be admitted to testify, if he happens to be of another color than ourselves. Such exclusion is cruel to the witness, degrading to courts administering it, and destructive of justice, which seeks evidence from every quarter.

I listened closely to the ingenious argument of the Senator, going along with him in what he claimed for the States and for their courts. He said, each State is entitled, within its own jurisdiction, to have its rules of evidence. Granted. He thought it better to leave every State its own rule on this question. Granted again, Sir, so far as the courts of the States are concerned.

Mr. Sumner. Because I have no right to interfere with them.

Mr. Sumner. There is the mistake of the Senator. He confounds our duties in the two different cases of national courts, where we are responsible, and of State courts, where we have no responsibility and no right to interfere. In his remarks he said: “It is competent for each State to make these rules for itself.” Granted again,—within its own jurisdiction. But he would allow each State its sovereign will on this question. Sir, where I cannot constitutionally interfere to check a barbarism, of course I do not interfere; sorrowfully I allow the sovereign will to prevail. But when a barbarism seeks shelter under the jurisdiction of Congress,[Pg 160] when it falls under the direct responsibility of my vote, I cannot be silent.

The Senator will pardon me, if I add, that he erred, when he undertook to transfer the rules of the State courts, without amendment or modification, to the National courts. The State courts have their rules of evidence,—they are beyond our control; but the United States courts are within our control, and the time has come to bring them at last within the pale of civilization. Why, Sir, has the good cause advanced thus far? to what end is it triumphant on this floor, if, in determining rules of evidence in the national courts, we take up and sanction this relic of barbarism?

If the rule is not justly within our reach, pray, Sir, why are we asked to vote on a bill concerning the competency of witnesses, and with a section expressly regulating the whole subject? Sir, I should feel untrue to myself, untrue to the principles I have at heart, and to the people I have the honor to represent, if I allowed a bill like this, with such a title, with such an object, to pass without earnest endeavor to exclude from it all support of the vileness which seeks shelter under its words. Within a few days the Senator has voted for a bill to punish the fraudulent counterfeiting of postage stamps; but suppose the counterfeiter does his work in the presence of colored persons and nobody else, where, under the proposed rule, will the Senator find the evidence required to carry the law into effect? As long as Congress undertakes to legislate criminally, as long as it has courts with a national jurisdiction in the Slave States, it is due to itself, and it is due to justice, that it should furnish the evidence by which such legislation may be made effective,[Pg 161] and justice be administered, without a constant act of shame calculated to bring a blush upon the cheeks. I speak plainly, as is my habit, and perhaps with feeling, but I trust that I have said nothing that I ought not to say.

[Pg 162]

PROVISIONAL GOVERNMENTS AND RECONSTRUCTION.

Remarks in the Senate, on a Bill to establish Provisional Governments in certain Cases, July 7, 1862.

MR. PRESIDENT,—I cannot consent to the amendment. Plainly it is going too far. A government organized by Congress and appointed by the President is to enforce laws and institutions, some of which are abhorrent to civilization. Take, for instance, the Revised Code of North Carolina, which I have before me. Here is a provision which the Governor, under this Act, must enforce. I say must enforce. The amendment is, that there shall be “no interference with the laws and institutions existing in such State at the time its authorities assumed to array the same against the Government of the United States.” Therefore they must be enforced. And now, if you please, listen to one of them.

That abomination, Sir, is set forth in the Revised Code of North Carolina, chap. 34, sec. 82. But lest it should fail by the employment of slaves as school-teachers, we have the following prohibition.

The punishment of slaves for this offence is whipping, repeated for every act. But, Sir, here is another specimen.

Here is yet another.

[Pg 164]

And now one more.

I have read enough, Sir. These passages show you the statutes to be enforced in the name of the National Union, by its constituted authorities, in courts organized by Congress. And behind all these is Slavery itself to be enforced also.

Sir, such an exhibition is more than sufficient. You cannot consent to any such thing. In organizing these governments, all that we can do is to protect life and property, and generally to provide the machinery of administration. Further we cannot go, and protect institutions in themselves an outrage to civilization.

In this country there is but one “institution,” as all the world knows, and the phrase “and institutions,” [Pg 165]when carefully introduced, means only one institution, which I need not name.

[Pg 166]

TAXES ON KNOWLEDGE.

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

MR. PRESIDENT,—I ask a moment’s attention to the tax on books, which is raised in this bill from fifteen to twenty per cent. Assuming that this is done to increase the revenue, I have to say, that, if we place reliance on the evidence before us, it will not have such effect.

The annual importation of books during the last four years shows that a duty of ten per cent is more productive than a higher rate. The increased importation is more than compensation for the diminished rate; but here it is with books as with other things.

If there were a tax on the manufacture of books in our country, there might be reason for a corresponding duty; but there is no such tax.

By the experience of the last tariff we are warned. The increase of this duty was disastrous to the book-trade, and I am assured that several booksellers who have imported largely are withdrawing from this branch of business, because the rate of fifteen per cent renders it unprofitable. And yet you propose to raise the rate to twenty per cent.

Nor is there any practical argument founded on protection. There are no interests requiring protection which will be promoted by an increased duty, as appears in last year’s memorial of publishers and i[Pg 167]mporters, praying a reduction to ten per cent, and also in another and later memorial from New York importers, praying for the same reduction, and setting forth that their business seriously suffers from the existing rate.

And now I add, that this increased duty is a tax on knowledge, and as such to be discountenanced and opposed. But I rest my argument on the simple ground, that it will not increase the revenue. If at this exacting moment it would have any such consequence, much as I should regret the necessity, I could not oppose it. But it is easy to show that such will not be the consequence: at least, the statistics point this way. The total value of books imported in 1858, with a duty of eight per cent, amounted to five hundred and thirty thousand dollars: I do not give the odd figures. The total value in 1859, likewise with a duty of eight per cent, was seven hundred and seventy-seven thousand dollars; and in 1860, with the same rate, it was seven hundred and thirty-four thousand. In 1861, the total value, with a duty of fifteen per cent, sank as low as three hundred and forty-six thousand. These figures speak.

I do not err, when I infer from them that the higher duty has been an injury to the revenue, and also to the importer. Therefore it is open to a twofold objection. With a duty of ten per cent the revenue would gain, and the public with the importer would be benefited.

The case is stated in a few words. An increased duty on books will do nothing for the revenue; but it will interfere with a useful business, and at the same time impose a tax on knowledge.

[Pg 168]

Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.

[Pg 169]

CONSTITUTIONAL QUORUM OF THE SENATE.

Speech in the Senate, on a Resolution declaring the Constitutional Quorum, July 12, 1862.

MR. PRESIDENT,—What is a quorum depends upon the Constitution; but we approach its consideration with the knowledge that in England, the original home of our institutions, and especially of Parliamentary Law, the question, for a long period anterior to the National Constitution, was fixed by usage. Indeed, usage is authority for the larger part of the English Constitution. But in this case of a quorum the usage is liable to alteration. In his elaborate work on the Law and Practice of Legislative Assemblies, the Parliamentary Law on the subject is thus stated by Mr. Cushing:—

It will be observed that the quorum of the Commons, numbering six hundred and fifty-four persons, is only forty, and this number appears to have been recognized as long ago as 5th January, 1640. At an earlier day more than sixty was required, and as late as March 18, 1801, an attempt was made in the Commons to revive this ancient rule, but it failed. For a short time in 1833 and 1834 the quorum for private business was twenty.[98]

The quorum of the Lords, numbering four hundred and sixty-five, is only three. A spectator at the law sessions of the Upper House is struck by the appearance of the Lord Chancellor on the woolsack, in wig and gown, listening to arguments, with two lay lords, like two lay figures, on the side benches, merely to constitute a quorum so as to legalize the decision of the Chancellor. The origin of this quorum, having the sanction of unbroken usage, is lost in the night of Antiquity. It is probably founded on the ancient maxim of the Roman Law, Tres faciunt collegium,—“Three make a college,”—the latter word being equivalent, in some respects, to our word corporation.

Thus, according to Parliamentary Law, two things appear: first, the quorum of each House is within the control of the House; secondly, it is now, and a[Pg 171]lways has been, in each House, much smaller than a majority.

With us the quorum, in general terms, is fixed by the Constitution. It is not left to usage, or the control of each House; but it is reasonable to infer that any question on the meaning of the Constitution, arising from generality of language, may be interpreted in the light of Parliamentary Law. Indeed, this is only according to the rule under which all technical words in the Constitution are interpreted. For instance, words known to the Common Law or to the English Chancery are interpreted according to the Common Law or the English Chancery. Mr. Wirt, in his admirable argument on the impeachment of Judge Peck, states the rule in these words:—

According to this rule, so clearly enunciated, the words “quorum” and “House,” which are derived from English Parliamentary Law, may be explained by that law; so that, in case of doubt, that law is for this[Pg 172] purpose embodied in the Constitution. Now the Constitution declares that a majority of each House shall constitute a quorum to do business. The rule, it will be observed, is the same for each House. But the question arises, What is a majority of each House? or rather, putting aside all question with regard to the House of Representatives, which is perfectly free to determine for itself, What is a majority of the Senate?

In fixing the quorum at a majority rather than any smaller number, our Constitution followed the law of business corporations, where a majority always prevails, according to an old maxim of the Common Law,—Ubi major pars est, ibi est totum,—“Where the greater part is, there is the whole.” This rule is so reasonable, that it has been vindicated by an eminent authority as founded on the Law of Nature. Here are the words of the great jurist Savigny:—

Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.

[Pg 173]

But the question still occurs, What is the major part of the Senate? Is it the major part of the abstract or theoretical Senate, or the major part of the real Senate? In other words, is it the major part of the Senate contemplated by the Constitution, with two Senators from each State, or the major part of the actual Senate, counting only those entitled to vote? At the present moment there is a wide difference between the two cases.

Several clauses of the Constitution are applicable to this question. I group them together.

Probably “the whole number of Senators” is equivalent to the term “House.” But what is the “House”?

The Senate de jure consists of two Senators from each State.

The Senate de facto may consist of Senators actually elected and qualified, or of Senators actually elected.

Whether the “House” shall be the Senate de jure or the Senate de facto is now within our discretion. The question has been raised, and the way is open to adopt[Pg 174] either interpretation, according to the meaning of the Constitution as seen in the light of Parliamentary Law, and, I add also, of convenience.

According to Parliamentary Law, the whole question is in our hands.

According to convenience, the quorum should be founded on the actual Senate, being the Senators actually elected and qualified.

If ever the argument of convenience was strong, peculiarly strong, it is now, when a wicked rebellion has undertaken to withdraw the Senators of eleven States, thus reducing our numbers. It is not necessary to assert that these States should be no longer counted among our stars. It is enough, if we declare that their vacant chairs shall no longer be counted in our quorum. As the language of the Constitution is drawn into debate, I cannot doubt, that, according to Parliamentary Law, the present question is within the control of the Senate, to be determined by the teachings of reason and convenience, so as to assure the public welfare. Any other interpretation must leave the Senate to all the hazards of disorganization by treason, or, it may be, by indifference. If the Senate declines to exercise this power, it will abandon an essential principle of self-defence.

An extreme case might be put, where, through defection, the actual Senators are reduced to a mere handful. But the rule is not to be tried by any such extreme case, which can occur only when the Government is broken up.

I rest confidently on the double conclusion: first, that the words of the Constitution with regard to the quorum of the Senate, so far as doubtful, are to be[Pg 175] interpreted by Parliamentary Law; and, secondly, that, by Parliamentary Law, these words are within the control of the Senate, to be interpreted according to its own ample discretion under the exigency of the occasion.

[Pg 176]

PROTEST AGAINST FINAL ADJOURNMENT OF CONGRESS.

Remarks in the Senate, on a Resolution for the final Adjournment of the two Houses, July 12, 1862.

MR. PRESIDENT,—I do not think, in the present state of the country, the Senate ought to adjourn, and for one I enter my protest against it, and I ask for the yeas and nays that I may make it of record.

It is essential to proper legislation not only that the Senate should vote, but that it should consider measures on which it votes; and the consideration must be in proportion to their importance. Allusion is made to one measure on which the Senate has not voted,—that in charge of my friend the Senator from Ohio [Mr. Wade], the admission of West Virginia as a new State. Perhaps no question of greater importance has ever been presented. It concerns the whole question of Slavery; it concerns the pretension of State Rights; it concerns also the results of this war. Look at it, therefore, in any aspect you please, it is a great question. And yet the idea of Senators anxious to adjourn is, that it is to be hurried forward without any proper discussion.

There is an[Pg 177]other question, not less important. It is the bill of the Senator from New York [Mr. Harris], constituting Provisional Governments for the Rebel States,—a subject of transcendent importance, and I submit, also, of practical interest at this very moment; for it involves precisely this inquiry, Whether you are to allow a system of military governments or Congressional governments. It is a question between the military and the civil power.

Then we have the Army Bill, which my colleague has in charge. Few matters of greater importance have ever been laid before the Senate. It involves nothing less than the organization in our country of a system of conscription, so well known on the Continent of Europe, but thus far happily unknown to us; and yet, Sir, this great question, also, is to be hurried forward without any adequate discussion.

Then we have Executive business, to which I can only allude in a general way, but of vast moment, which cannot be adequately considered without days, and I might say weeks.

Then we have also the whole Calendar, to which the Senator from Illinois has referred, that ought to occupy us for weeks.

Here are at least five important matters,—West Virginia, the Provisional Governments, the Army Bill, Executive business, and the whole Calendar,—all open to consideration; and yet, Sir, Senators propose to go home,—Senators are weary,—Senators would like to find a retreat, away from these legislative cares. I can enter into that feeling. Sir, I should be glad to be at home. I suppose the gallant soldiers on the James River, on the Chickahominy, would also be glad to be at home. They are not excused, they have not a furlough,—and yet we Senators talk of our furlough.

[Pg 178]

Now it is known that formerly, when Congress was paid by the day, it never thought of adjourning at this time. One of the most important bills on your statute book bears date the 18th day of September, 1850;[102] and for some years immediately thereafter Congress did not adjourn until late in August. I think I have sat myself close upon September; but when I mentioned this fact the other day, the Senator from Ohio reminded me that then Congress was paid by the day, whereas now it is paid by the year. Has it come to this, that Congress could sit here content when paid by the day, and now that it is paid by the year it leaves its important business to be neglected entirely, or to be hurried forward without that discussion which it ought to receive?

Sir, I hope the Senate will not consent to fix any day of adjournment. I hope it will sit here, proceeding regularly with the business now on its Calendar, and meeting any contingencies which in the present state of the country may arise. A duty is cast upon Congress which ought not to be slighted. It is to see that the Republic receives no detriment. Solemnly now this duty addresses itself to all of us. Let us not neglect it. For the sake of the public business, and for the sake of those responsibilities which from their very uncertainty at this crisis are so vast, I ask the Senate to continue here.

[Pg 180]

PATRIOTIC UNITY AND EMANCIPATION.

Letter to a Public Meeting at New York, July 14, 1862.

[Pg 182]

HARMONY WITH THE PRESIDENT AND EMANCIPATION.

Speech in the Senate, on the Joint Resolution explanatory of the Act for Confiscation and Liberation, July 16, 1862.

MR. PRESIDENT,—Our country is in peril. This is much to say, but it must be said, and we must all govern ourselves accordingly. More than ever before, the time has come for an earnest, absolute, controlling patriotism. This is the lesson of the day. In presence of such peril, and under the weight of such duties, there is no pride of opinion which I would not freely sacrifice, nor can I stand on any order of proceeding. I ask no questions, and I make no terms. Show me how an important measure can be secured, which I think vita[Pg 183]l to the country, and I shall spare no effort to secure it.

Rules are for protection, for defence, and to facilitate business. If in any way they become an impediment, they cease to perform their natural office, and I can easily abandon them, especially when my country may suffer. Therefore, Sir, I am only slightly impressed by the argument that our information with regard to the President is informal. It is enough that a measure we all have at heart as essential to national life may fail to receive his constitutional approval, unless modified in advance by supplementary statute. Anxious for this measure, I think how it may be secured, rather than how the opinions of the President have become known to us.

Of course, Sir, I cannot share the doubts attributed to the President. To me they seem groundless and fallacious. Waiving all question of their accuracy as an interpretation of the Constitution, even in criminal proceedings, I cannot forbear saying that they proceed on the mistaken idea of a procedure by indictment and not by war, subjecting the country to all the constraint of a criminal trial when the exigency requires the ample latitude of war. If soldiers are sent forth to battle, if fields are occupied as camps, and houses are occupied as hospitals, without permission of the owners, it is under the War Powers of Congress, or, in other words, the belligerent rights of this Government. And it is by virtue of these same belligerent rights that the property of an enemy is taken. Now, if he be an enemy, is there in the Constitution any check upon these rights? Whether you choose to take property for life or beyond life, the Constitution is indifferent; for all constitutional limitations are entirely inapplicable to belligerent rights.[Pg 184] There are express words ordaining that you must not “abridge the freedom of speech or of the press,” or “infringe the right of the people to keep and bear arms”; nor can you take “life, liberty, or property, without due process of law.” And yet, wherever your armies move, and elsewhere too, you do all these very things in the exercise of acknowledged belligerent rights. As plainly, the right of confiscation, whether for life or beyond life, is also yours.

Unhappily, Sir, our country is engaged in war,—terrible, relentless, unquestionable war,—and if we would not discard success, it must be prosecuted as war, in the full exercise of belligerent rights. If we were dealing with sporadic cases of treason, with simple sedition, or with a mere outbreak, our process would be limited by the Constitution; but with an enemy before us, lashed into fury and led on by “Até hot from Hell,” where is the limit to the powers to be employed? I remember that Burke, in his great effort on Conciliation with America, says: “It looks to me to be narrow and pedantic to apply the ordinary ideas of criminal justice to this great public contest; I do not know the method of drawing up an indictment against an whole people.”[106] But when, on account of a provision in the Constitution obviously intended only for the protection of the citizen, you refuse to take the property of an enemy in open war, then do you substitute the safeguards of criminal justice for war, thus voluntarily weakening your armies and diminishing your power. I am tempted to say, that, in devotion to the form of the Constitution, you sacrifice its substance. I might say, that, in misapplying the text of the Constitution, you sacrifice the Constitutio[Pg 185]n itself.

Pardon me for seeming, even briefly, to argue this question. I do it only because I would not have my vote misunderstood. I shall support the proposition, not because I concur with it, but because its adoption will help secure the approval of the bill that has so much occupied the attention of Congress and the hopes of the country.

Mr. President, I have never, from the beginning, disguised my conviction that the most important part of the bill concerns Emancipation. To save this great part, to secure this transcendent ally, to establish this assurance of victory, and to obtain for my country this lofty crown of prosperity and glory, I willingly abandon all the rest. The navigator is called sometimes to save his ship by casting part of the cargo into the sea.

But whatever the difference between the President and Congress, there are two points on which there is no difference. Blacks are to be employed, and slaves are to be freed. In this legislative proclamation the President and Congress will unite. Together they will deliver it to the country and to the world.

It is an occasion of just congratulation, that the long debates of the session have at last ripened into a measure which I do not hesitate to declare more important than any victory achieved by our arms. Thank God, the new levies will be under an inspiration which cannot fail. It is the idea of Freedom, which, in spite of all discomfiture, past or present, must give new force to the embattled armies of the Republic, making their conflicts her own.

Sir, fro[Pg 186]m this day forward the war will be waged with new hopes and new promises. A new power is enlisted, incalculable in influence, strengthening our armies, weakening the enemy, awakening the sympathies of mankind, and securing the favor of a benevolent God. The infamous Order No. 3, which has been such a scandal to the Republic, is rescinded. The slave everywhere can hope. Beginning to do justice, we shall at last deserve success.

[Pg 187]

UNION OF GOOD CITIZENS FOR A FINAL SETTLEMENT.

Letter to the Republican State Committee, September 9, 1862.

[Pg 191]

THE PROCLAMATION OF EMANCIPATION:
ITS POLICY AND NECESSITY AS A WAR MEASURE FOR THE SUPPRESSION OF THE REBELLION.

Speech at Faneuil Hall, October 6, 1862. With Appendix, on the Nomination and Reëlection of Mr. Sumner as Senator.

[Pg 193]

[Pg 197]

SPEECH.

Fellow-Citizens of Massachusetts:—

Meetings of the people in ancient Athens were opened with these words: “May the gods doom to perdition that man, and all his race, who, on this occasion, shall speak, act, or contrive anything against the Commonwealth!” With such an imprecation all were summoned to the duties of the citizen. But duties become urgent in proportion to perils. If ever there were occasion for these solemn words, it is now, when the country is in danger, when the national capital itself is menaced, when all along the loyal border, from the Atlantic Ocean to the Indian Territories west of the Mississippi, barbarian hordes, under some Alaric of Slavery, are marshalling forces, and death is knocking at the doors of so many happy homes. If ever there was occasion when country might claim the best and most self-forgetful effort of all, it is now. Each in his way must act. Each must do what he can: the youthful and strong by giving themselves to the service; the weak, if in no other way, by scraping lint. Such is the call of patriotism. The country must be saved.

Among omens which I hail with gladness is the union now happily prevailing among good men in support of the Government, whether State or National,—forgetting that they were Democrats, forgetting that they were Whigs, and disregarding old party names, to[Pg 198] remember only the duties of the citizen. Another sign, not less cheering, is the generous devotion which all among us of foreign birth offer to their adopted country. Germans fight as for fatherland, and Irishmen fight as for loved Erin; nor can our cause be less dear to the latter, now that the spirit of Grattan and O’Connell has entered into it.

Surely this is no time for the strife of party. Its jealousies and antipathies are now more than ever irrational. Its clamors of opposition are now more than ever unpatriotic. Unhappily, there are some to whom its bitter, unforgiving temper has become so controlling, that, even at this moment, they would rather enlist to put down a political opponent than to put down the rebel enemy of their country,—they would rather hang Henry Wilson or John A. Andrew than hang Jefferson Davis or Robert Toombs. Such persons, with all their sweltered venom, are found here in Massachusetts. Assuming the badge of “No Party,” they are ready for any party, new or old, by which their prejudices may be gratified,—thus verifying the pungent words of Colonel Benton: “Wherever you will show me a man with the words ‘No Party’ in his mouth, I will show you a man that figures at the head or dangles at the tail of the most inveterate party that ever existed.” Of course, such persons are not expected to take part in a meeting like the present, which seeks to unite rather than divide, while it rallies all to the support of the President, and to that policy of Freedom he has proclaimed.

Thank God t[Pg 199]hat I live to enjoy this day! Thank God that my eyes have not closed without seeing this great salvation! The skies are brighter and the air is purer now that Slavery is handed over to judgment.

By the proclamation of the President, all persons held as slaves January 1, 1863, within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom. Beyond these most effective words, which do not go into operation before the new year, are other words of immediate operation, constituting a present edict of Emancipation. The President recites the recent Acts of Congress applicable to this question, and calls upon all persons in the military and naval service to observe, obey, and enforce them. But these Acts provide that all slaves of Rebels, taking refuge within the lines of our army, all slaves captured from Rebels or deserted by them, and all slaves found within any place occupied by Rebel forces and afterwards occupied by forces of the United States, shall be forever free of servitude, and not again held as slaves; and these Acts further provide, that no person in the military or naval service shall, under any pretence whatever, assume to decide on the validity of any claim to a slave, or surrender any such person to his claimant, on pain of being dismissed from the service: so that by these Acts, now proclaimed by the President, Freedom is practically secured to all who find shelter within our lines, and the glorious flag of the Union, wherever it floats, becomes the flag of Freedom.

[Pg 200]

Thank God for what is already done, and let us all take heart as we go forward to uphold this great edict! For myself, I accept the Proclamation without note or comment. It is enough for me, that, in the exercise of the War Power, it strikes at the origin and mainspring of this Rebellion; for I have never concealed the conviction that it matters little where we strike Slavery, provided only that we strike sincerely and in earnest. So is it all connected, that the whole must suffer with every part, and the words of the poet will be verified, that,—

On this most interesting occasion, so proper for gratitude, it is difficult to see anything but the cause; and yet, appearing before you on the invitation of a Committee of the Commonwealth, I must not forget that I owe this privilege to my public character as Senator of Massachusetts. In this character I have often been invited before; but now the invitation has more than accustomed significance; for, at the close of a long period of public service, it brings me face to face with my constituents. In a different condition of the country, I could not decline the opportunity of reviewing the relations between us,—of showing, at least, how you took me from private station, all untried, and gave me one of your highest trusts, and how this trust was enhanced by the generosity with which you sustained me against obloquy and vindictive assault, especially by your unparalleled indulgence to me throughout a protracted disability,—and perhaps, might I be so bold, of presenting for your considerati[Pg 201]on some sketch of what I have attempted, conscious, that, if not always successful, I have been at all times faithful to cherished convictions, and faithful also to your interests, sparing nothing of time or effort, and making up by industry for any lack of ability, so that, during a service of more than eleven years, I have never once visited home while Congress was in session, or been absent for a single day, unless when suffering from that disability to which I have referred, and during the session which has just closed, filled with most laborious duties from beginning to end, I was not out of my seat a single hour. But this is no time for such a review. I have no heart for it, while my country is in danger. And yet I shall not lose the occasion to challenge the scrutiny of all, even here in this commercial metropolis, where the interests of business are sometimes placed above all other interests. Frankly and fearlessly I make my appeal. In all simplicity, I ask you to consider what I have done as your servant, whether in the Senate or out of the Senate, in matters of legislation or of business. If there is any one disposed to criticize or complain, let him be heard. Let the whole record be opened, and let any of the numerous visitors who have sought me on business testify. I know too well the strength of my case to shrink from any inquiry, even though stimulated by the animosity of political warfare.[112]

But there are two accusations, often repeated, to which [Pg 202]I reply on the spot; and I do so with less hesitation, because the topics are germane to this debate. The first is, that from my place in the Senate I early proclaimed Slavery to be Barbarism. Never shall the cause of Freedom go by default, if I can help it; and I rejoice, that, on that occasion, in presence of the slaveholding conspirators vaunting the ennobling character of Slavery, I used no soft words. It is true, that, in direct reply to most offensive assumptions, I proclaimed Slavery barbarous in origin, barbarous in law, barbarous in all its pretensions, barbarous in the instruments it employs, barbarous in consequences, barbarous in spirit, barbarous wherever it shows itself,—while it breeds barbarians, and develops everywhere, alike in the individual and the society to which he belongs, the essential elements of barbarism. It is true, that, on the same occasion, I portrayed Slavery as founded in violence and sustained only by violence, and declared that such a wrong must, by sure law of compensation, blast the master as well as the slave, blast the land on which they live, blast the community of which they are part, blast the government which does not forbid the outrage, and the longer it exists, and the more completely it prevails, must its blasting influence penetrate the whole social system. Was I not right? Since then the testimony is overwhelming. A committee of the Senate has made a report, extensively circulated, on the barbarities of this Rebellion. You know the whole story to which each day testifies. It is in some single incident that you see the low-water mark of social life; and I know nothing in which the barbarism of Slavery is more completely exhibited than in the fate of our brave soldiers, dug up from honorable graves, where at last they had found rest, that their bones might be carved[Pg 203] into keepsakes and their skulls into drinking-cups to gratify the malignant hate of Slave-Masters.

The other accusation is similar in character. It is said that I have too often introduced the Slavery Question. At this moment, seeing what Slavery has done, I doubt if you will not rather say that I have introduced it too seldom. If, on this account, I neglected any single interest of my constituents, if I was less strenuous whenever foreign relations or manufactures or commerce or finances were involved, if I failed to take my part in all that concerns the people of Massachusetts and in all embraced within the manifold duties of a Senator, then, indeed, I might be open to condemnation. But you will not regret that your representative, faithful in all other things, was ever constant and earnest against Slavery, and that he announced from the beginning the magnitude of the question, and our duties with regard to it. Say what you will, the slave is the humblest and the grandest figure of our times. What humility! what grandeur! both alike illimitable! In his presence all other questions are so petty, that for a public man to be wrong with regard to him is to be wholly wrong. How, then, did I err? The cause would have justified a better pertinacity than I can boast. In the Senate of Rome, the elder Cato, convinced that peace was possible only by the destruction of Carthage, concluded all his speeches, on every matter of debate, by the well-known words: “But whatever you may think of the question under consideration, this I know, Carthage must be destroyed.” I have never read that the veteran Senator was condemned for the constancy of his patriotic appeal. With stronger reason far, I, too, might always have cried, “This I know, Slavery must be destroyed,”—Delenda[Pg 204] est Servitudo. But, while seeking to limit and constrain Slavery, I never proposed anything except in strictest conformity with the Constitution; for I always recognized the Constitution as my guide, which I was bound in all respects to follow.[113]

Such are accusations to which I briefly reply. Now that we are all united in the policy of Emancipation, they become of little consequence; for, even if I were once alone, I am no longer so. With me are the loyal multitudes of the North, now arrayed by the side of the President, where, indeed, I have ever been.

If you will bear with me yet longer in allusions which I make with reluctance, I would quote, as my unanswerable defence, the words of Edmund Burke, when addressing his constituents at Bristol.

Among the passages in eloquence which can never die, I know none more beautiful or heroic. If I invoke its protection, it is with the consciousness, that, however unlike in genius and fame, I am not unlike its author in the accusations to which I have been exposed.

Fellow-citizens, a year has passed since I addressed you; but, during this time, what events for warning and encouragement! Amidst vicissitudes of war, the cause of Human Freedom has steadily and grandly advanced,—not, perhaps, as you could desire, yet it is the only cause which has not failed. Slavery and the Black Laws all abolished in the national capital; Slavery interdicted in all the national territory; Hayti and Liberia recognized as independent republics in the family of nations; the slave-trade placed under the ban of a new treaty with Great Britain; all persons in the military and naval service prohibited from returning slaves, or sitting in judgment on the claim of a master; the slaves of Rebels emancipated by coming within our lines; a tender of compensation for the abolition of Slavery: such are some of Freedom’s triumphs in the recent Congress. Amidst all doubts and uncertainties of the present hour, let us think of these things and be comforted. I cannot forget, that, when I last spoke to you, I urged the liberation of the slaves of Rebels, and especially that our officers should not be permitted to surrender back to Slavery any human being seeking[Pg 206] shelter within our lines; and I further suggested, if need were, a Bridge of Gold for the retreating Fiend. And now all that I then proposed is embodied in the legislation of the country as the supreme law of the land.

It was as a military necessity that I urged these measures; it is as a military necessity that I now uphold them, and insist upon their completest and most generous execution, so that they shall have the largest scope and efficacy. Not as Abolitionist, not as Antislavery man, not even as philanthropist,—if I may claim that honored name,—do I now speak. I forget, for the moment, all the unutterable wrong of Slavery, and all the transcendent blessings of Freedom; for they do not belong to this argument. I think only of my country menaced by rebellion, and ask how it shall be saved. But I have no policy, no theory, no resolutions to support,—nothing which I will not gladly abandon, if you will show me anything better.

And now, what is the object of the war? This question is often asked, and the answer is not always candid. It is sometimes said that it is to abolish Slavery. Here is a mistake, or a misrepresentation. It is sometimes said, in cant language, that the object is “the Constitution as it is and the Union as it was.” Here is another mistake or misrepresentation, which becomes more offensive when it is known that by “the Constitution as it is” is meant simply the right to hold and hun[Pg 207]t slaves, and by “the Union as it was” is meant those halcyon days of Proslavery Democracy, when the ballot-box was destroyed in Kansas, when freedom of debate was menaced in the Senate, and when chains were put upon the Boston Court-House. Not for any of these things is this war waged. Not to abolish Slavery or to establish Slavery, but simply to put down the Rebellion. And here the question occurs, How can this object be best accomplished?

In discussing this question with proper frankness, I shall develop and vindicate that policy of which the President’s Proclamation is the herald, and to which his Administration is publicly pledged. The Administration belongs to us, and we belong to the Administration. My aim is to bring the Administration and the people nearer together, by showing the ground on which they must meet, for the sake of the Republic, and that it may not perish beneath felon blows.

I start, of course, with the assumption, in which you will all unite, that this war must be brought to a close. It must not be allowed to drag its slow length along, bloody, and fruitless except with death. Lives enough have been sacrificed, graves enough have been filled, homes enough have been emptied, patriot soldiers enough have been sent back halt and maimed with one leg or one arm, tears enough have been shed. Nor is this all; treasure enough has been expended. It is common to think only of the national debt, now swelling to unnatural proportions; but this will be small by the side of the fearful sum-total of loss from destruction of property, derangement of business, and change of productive to unproductive industry. Even if we do not accept[Pg 208] the conclusions of an ingenious calculator who places this damage at ten thousand millions of dollars, we must confess that it is an immensity, which, like the numbers representing sidereal distances, the imagination refuses to grasp. To stop this infinity of waste there must be peace; to stop this cruel slaughter there must be peace. In the old wars between King and Parliament, which rent England, the generous Falkland cried from his soul, “Peace! peace!” and history gratefully records his words. Never did he utter this cry with more earnestness than I do now. But how shall the blessing be secured?

I start with the further assumption, that there can be no separation of these States. Foreign nations may predict what Rebels threaten, but this result is now impossible. Pray, good Sirs, where will you run the boundary line? Shall it be the cotton limit? Shall it embrace Virginia in whole or part? How about Tennessee? Kentucky? Or shall it be the most natural line of cleavage, the slave line? And how will you adjust the navigation of the Mississippi, and the whole question of Slavery? And what principles, commercial and political, shall be established between the two Governments? But do not deceive yourselves into the idea that peace founded on separation can be anything but a delusion and a snare. Separation is interminable war, “never ending, still beginning,”—worse than the forays which ravaged the Scottish border, or the Tartar invasions which harassed China until its famous wall was built, fifteen hundred miles long, and so thick that six horsemen ride upon it abreast. War will be chronic, and we must all sleep on our arms. Better that it be all at once, rather than diffused over a generation[Pg 209]. If blood must be shed, better for a year than for an age.

But if there be anything in the Monroe doctrine, if we could not accommodate ourselves to the foothold of Europe upon this continent, how can we recognize on our borders a malignant Slave empire, with Slavery as its boasted corner-stone, constituting what Shakespeare calls “an impudent nation,” embittered and enraged against us, without law, without humanity, and without morals,—a mighty Blue-Beard’s Chamber,—an enormous House of Ill-Fame? We would not allow the old Kingdom of the Assassins to be revived at our side. But wherein are our Rebels better?

Nor can you recognize such separation without delivering over this cherished Union to chaos. If the Rebel States are allowed to go, what can be retained? It is true, there can be no constitutional right to break up the Constitution, but the precedent unhappily recognized would unsettle this whole fabric of States. Therefore, fellow-citizens, there can be no separation. But how to prevent it,—in other words, how to hamstring the Rebellion and conquer a peace,—this is the question.

The Rebels are in arms, aroused, at home, on their own soil, and resolved never to yield. Nothing less than independence will satisfy them: if the war continues, I know not that they will be content with this. Two policies are presented on our side,—one looking primarily to Rebel conciliation, and the other looking primarily to Rebel submission. Both have the same elements, although in diverse order. The first begins with conciliation in order to end with Rebel submission, which is[Pg 210] cart before horse. The second begins with Rebel submission in order to end with conciliation. The question is simply this,—Whether conciliation shall precede or follow submission? Conciliation is always proper, where possible; but, at this stage, it is obviously impossible. If anybody believes that now any word or act of conciliation, any forbearance on our part, any hesitation in exercise of the sternest Rights of War, will help us to victory or contribute to put down the Rebellion, let me not enter into that man’s counsels, for they can end in nothing but shame and disaster. I find that they who talk most against coercion of Rebels and coercion of States are indifferent to the coercion of four million people, men, women, and children, to work without wages under discipline of the lash. Without hesitation I say that the Rebels must be subdued,—call it coercion or subjugation, whichever you please: our war has this direct object. With victory will come conciliation, clemency, amnesty. But first victory.

To obtain victory, two things are needed: first, a precise comprehension of the case, and, secondly, vigor of conduct. One will not do without the other. It will not be enough to comprehend the case, unless you are ready to treat it with corresponding vigor. And it will not be enough to have vigor, unless you discern clearly how the case shall be treated. To this end there must be statesmen as well as generals.

The first duty of the good physician is to understand the condition of his patient,—whether it is a case of medicine or surgery, of cutaneous eruption or deep-seated cancer. This is called diagnosis. Of course, if this fails, the whole treatment will be a failure. But[Pg 211] the statesman, in all the troubles of his country, has the same preliminary duty. He, too, must see whether it is a case for medicine or surgery, of cutaneous eruption or deep-seated cancer. And since all that he does must be precisely according to his judgment of the case, error here must be equally fatal.

Next to comprehension of the case is vigor in conduct, which is more needful in proportion as the case becomes desperate. This must be not only in the field, but also in council,—not only against the serried front of the enemy, but against those more fatal influences that come from lack of comprehension or lack of courage. The same vigor we require in our generals must be required also in our statesmen,—the same spirit must animate both. No folding of the hands, no putting off till to-morrow what can be done to-day, no hesitation, no timidity, but action, action, action, straightforward, manly, devoted action. It is easy to see that this is required in the field; but it is no less required in every sphere of the Government, from President to paymaster.

In war there are some who content themselves with triumphs of prudence instead of triumphs of courage, and spend much time in trying how not to be beaten, instead of how to beat. They are content to forego victory, if they can escape defeat, forgetting that Fabius was only a defender and not a conqueror, that a policy fit at one time may be unfit at another, that a war waged in an enemy’s country cannot be defensive, nor can it prevail by any procrastination. People at home, on their own soil, can afford to wait. Every month, every week, every day is an ally. But we cann[Pg 212]ot wait. No moment must be spared. Not in this way battled those ancient commanders called “The Two Thunderbolts of War.” Not in this way did Napoleon defeat the Austrian forces at Marengo, and shatter the Prussian power on the field of Jena.

But there are “thunderbolts” of the cabinet as well as of the field. The elder Pitt, who was only a civilian, infused his own conquering soul into the British arms, making them irresistible; and the French Carnot, while a member of the Committee of Public Safety, was said to have organized victory. Such is the statesmanship now needed for us. And there must be generals who will carry forward all that the most courageous statesmanship directs.

Armies and men we have of rarest quality. Better never entered a field or kept step to drum-beat. Intelligent and patriotic, they have left pleasant homes, to offer themselves, if need be, for their country. They are no common hirelings, mere food for powder, but generous citizens, who have determined that their country shall be saved. Away in camp, or battle, or hospital, let them not be forgotten. But, better than gratitude even, we owe them the protection which comes from good generals and courageous counsels. O God! let them not be led to useless slaughter like sheep, nor be compelled to take the hazard of death from climate and exposure, as well as from ball and bayonet, without giving them at once all the allies which can be rallied to their support. In the name of humanity, and for the sake of victory, I make this appeal. But the loyal everywhere are allies. And does loyalty depend upon color? Is it skin or heart that we consult? Do you[Pg 213] ask the color of a benefactor? As I listen to people higgling on the question how to treat Africans coming to our rescue, I am reminded of that famous incident, where the Emperor of Austria, driven back by the Turks, three hundred thousand strong, and besieged in Vienna until at the point of surrender, was suddenly saved by the gallant Sobieski of Poland. The Emperor, big with imperial pride, thought chiefly of his own supereminent rank,—as a Proslavery Democrat thinks of his,—and hesitated how to receive his Polish benefactor, who was only an elected king, when the Austrian commander said: “Sire, receive him as the saviour of your empire.” The Emperor gave to his saviour hardly more than a cold salute; and we are told to imitate this stolid ingratitude.

Wherever I turn in this war, I find the African ready to be our saviour. If you ask for strategy, I know nothing better than that of the slave, Robert Small, who brought the Rebel steamer Planter with its armament out of Charleston, and surrendered it to our Commodore as prize of war. If you ask for successful courage, I know nothing better than that of the African, Tillman, who rose upon a Rebel prize-crew, and, overcoming them, carried the ship into New York. If you ask for heroism, you will find it in that nameless African on board the Pawnee, who, while passing shell from the magazine, lost both his legs by a ball, but, still holding a shell, cries out, “Pass up the shell,—never mind me; my time is up.” If you ask for fidelity, you will find it in that slave, also without a name, who pointed out the road of safety to the harassed, retreating Army of the Potomac. And if you ask for evidence of desire for freedom, you will[Pg 214] find it in the little slave-girl, journeying North, whom Banks took up on his cannon.

It is now as at earlier stages of our history. The African is performing his patriotic part, so far as you will let him. At the famous massacre, when the first blood of the Revolution reddened the ice-clad pavements of Boston, Crispus Attucks, an African, once a slave, was among the victims. At Bunker Hill, where our homely troops first stood against British valor, Peter Salem, also an African once a slave, was conspicuous for courage, to the cost of the royal officer who scaled the rampart, so that History names him with honor, and Art presents him in the fore-front of the battle. Trumbull has portrayed the scene. So long as that picture endures, so long as that historic battle haunts the memory, you cannot forget the African fellow-soldier of Prescott and Warren. But there are others like him, ready now to do the same service.

Not for the first time do I here make this appeal. Constantly I have made it before the people and in the Senate, by speech and proposition. I give an instance, being a resolution in the Senate, offered May 26th of this year.

I need not stop to discuss this resolution. You know my opinions, and how I have pressed them in debate. You may also be assured that I have never failed to present them in that quarter where it was peculiarly important they should prevail. On the 4th of July of the present year, in a personal interview with the President, I said: “You need more men, not only at the North, but at the South, in the rear of the Rebels: you need the slaves. Say the word, and you can give to our armies this invaluable alliance,—you can change the rear-guard of the Rebellion into the advance-guard of the Union. It is now the 4th of July. You can make this day more sacred and more historic, and do for it better than the Continental Congress.” Had Emancipation been spoken at that time, I cannot doubt that the salvation of our country would have begun thus earlier. Of course, such a word would have been a blast from the war-trumpet, justified as a military necessity, according to examples of history and the heart of man. And such a blast the President has now blown.

But it is said that all appeal to slaves is unconstitutional; and it is openly assumed that rebels making war on the Constitution are not, like other public enemies, beyond its protection. Why this peculiar te[Pg 216]nderness, whenever Slavery is in question? Battalions may be shot down, and property taken without due process of law, but Slavery must not be touched. The ancient Egyptians, when conquered, submitted easily to loss of life and property; but when a Roman soldier happened to kill a cat in the streets, they rose and tore him limb from limb with such violent excitement that the generals overlooked the outrage for fear of insurrection. Slavery is our sacred cat, not to be touched without fear of insurrection. Sir, I am tired and disgusted at hearing the Constitution perpetually invoked for Slavery. According to certain authorities, the Constitution is all for Slavery and nothing for Freedom. I am proud to own that with me just the reverse is the case. There are people who keep apothecaries’ scales, in which they nicely weigh everything done for Freedom. I have no such scales, where Freedom is in question, nor do I hesitate to say that in a case of Freedom all such nicety is unconstitutional. The Constitution is not mean, stingy, and pettifogging, but open-handed, liberal, and just, inclining always in favor of Freedom, and enabling the Government, in time of war, not only to exercise any Rights of War, including liberation of slaves, but also to confer any largess or bounty—it may be of money, or, better still, of freedom—for services rendered. I do not dwell now on the unanswerable argument by which John Quincy Adams has placed this power beyond question.[117] Whatever the provisions of the Constitution for protection of the citizen, they are inapplicable to what is done against a public enemy. The law of an Italian city prohibited the letting of blood under penalty of death; but this did not doom[Pg 217] the surgeon who opened a vein to save the life of a citizen. In war there is no constitutional limit to the activity of the Executive, except the emergency. The safety of the people is the highest law. There is no blow the President can strike, there is nothing he can do against the Rebellion, that is not constitutional. Only inaction can be unconstitutional.

Some there are who would sacrifice the lives of our Northern liberty-loving people, and, if this does not save the Union, then strike Slavery. This again is putting cart before horse. Slavery should be struck to save precious blood. The life of a single patriot is worth more than all Slavery; ay, more, it has stronger securities in the Constitution.

Search the writers on the Law of Nations, and you will find the appeal to slaves justified. Search history, whether in ancient or modern times, and you will find it justified by example. In our Revolution, this appeal was made by three different British commanders,—Lord Dunmore, Sir Henry Clinton, and Lord Cornwallis. I do not stop for details. That their appeal was not unsuccessful is evident from concurring testimony. Its propriety was admitted by Jefferson, while describing his own individual losses from Cornwallis.

It would be difficult to imagine testimony stronger. Here was a sufferer, justly indignant for himself and his State; but he does not doubt that an enemy would do right in carrying off slaves to give them freedom.

The enterprise of Lord Dunmore deserves more particular mention. His proclamation was thus explicit:—

Its effect is amply attested. Edmund Pendleton writes to Richard Henry Lee: “Letters mention that slaves flock to him in abundance; but I hope it is magnified.”[120] Lord Dunmore reports to his Government at home: “I have been endeavoring to raise two regiments here,—one of white people, the other of black. The former goes on very slowly, but the latter very well.”[121] Nothing shows the consternation more than a letter of Washington, who, after saying that “Lord Dunmore should be instantly crushed, if it takes the force of the whole colony to do it,” proceeds:—

To these authorities add the exclamation of Zubly, in the Continental Congress from Georgia:—

Naturally the representative of slave-masters did not approve it. It is enough that he thought it “practicable.”

Several years later, Lord Dunmore reiterated his sentiments and vindicated his appeal. This was at Charleston, where he addressed a communication to Sir Henry Clinton at New York, under date of February 2, 1782, in which he says:—

[Pg 220]

These examples, with all this testimony, vindicate our Proclamation.

There are other instances nearer our own day. During the last war with England, Admiral Cochrane, commander-in-chief of the British squadron on the American station, was openly charged with inviting slaves of our planters to join the British standard, although the phraseology of his proclamation was covert, offering “all those who might be disposed to emigrate from the United States” service under his Majesty, or encouragement as “free settlers” in the British possessions.[125] Something similar has been anticipated by our own Government on the coast of Florida, as appears from an official report.

Here is distinct recognition of danger from black soldiers, if employed against us.

Admitting that an appeal to slaves is constitutional, and also according to examples of history, it is said that it will be unavailing, for the slaves will not hearken to it. Then why not try? It can do no harm, and will[Pg 221] at least give us a good name. But, if not beyond learning from the enemy, we shall see that the generals most hated on our side, and, like Adams and Hancock in the Revolution, specially excepted from pardon, are Phelps and Hunter, plainly because the ideas of these generals are more dreaded than any battery or strategy. Of this be assured: the opponents of this appeal are not anxious because it will fail; only because it may be successful do they oppose it. They fear it will reach the slaves, rather than not reach them.

Look at it candidly, and you cannot deny that it must produce an effect. It is idle to say that its influence will be bounded by our jurisdiction. When the mill-gates are lifted, all the water above, in its most distant sources, starts on its way; and so will the slaves. Remote kingdoms trembled at the Pope’s excommunication and interdict, and an elegant historian has described the thunders of the Vatican intermingling with the thunders of war. Christendom shook when Luther nailed his theses on the church-door of Wittenberg. An appeal to our slaves will be hardly less prevailing. Do you ask how it would be known? The fall of Troy, long before our telegraph, was flashed by beacon-fires from Mount Ida to Argos. The slave telegraph is not as active as ours, but it is hardly less sure. It takes eight days for a despatch from Fortress Monroe to the Gulf of Mexico. The glad tidings of Freedom will travel with the wind, with the air, with the light, quickening and inspiring the whole mass. Secret societies of slaves, already formed, will be among the operators. That I do not speak without authority, please listen to the words of John Adams, taken from his Diary, under date of 24th September, 1775.

[Pg 222]

This is testimony. The destructive avalanche of the Alps is sometimes started by the winding of a horn, and a structure so irrational as Slavery will tremble at a sound.

From such appeal two things must ensue. First, the slaves will be encouraged in loyalty; and, secondly, the masters will be discouraged in disloyalty. Slave labor, which is the mainspring and nursery of Rebel supplies, without which the Rebellion must starve, will be disorganized, while a panic spreads among slave-masters absent from their homes. The most audacious Rebels will lose their audacity, and, instead of hurrying forward to deal parricidal blows at their country, will hurry backward to defend their own firesides. The Rebellion will lose its power. It will be hamstrung.

That such a panic would ensue is attested by the confession of the South Carolina delegation in the old Continental Congress, as appears by its Secret Journal, under date of 29th March, 1779, that this State was “unable to make any effectual efforts with militia, by reason of the great proportion of citizens necessar[Pg 223]y to remain at home to prevent insurrections among the negroes, and to prevent the desertion of them to the enemy.”[128] It is attested, also, by the concurring testimony of Southern men in other days, especially in those remarkable words of John Randolph: “The night-bell never tolls for fire in Richmond that the frightened mother does not hug her infant the more closely to her bosom, not knowing what may have happened.”[129] It is attested also by the actual condition of things when John Brown entered Virginia, as pictured in familiar words:—

Asserting the efficacy of this appeal, I ground myself on no visionary theories or vain hopes, but on the nature of man and authentic history. To doubt its efficacy is to doubt that man is man, with a constant desire for liberty as for life, and it is also to doubt the unquestionable instances in our own history where this desire has been displayed by African slaves. That a government exposed to the assaults of a merciless barbarian foe should so long reject this irresistible alliance is among questions to excite the astonishment of future ages.

What, then, are the reasons alleged against this appeal? They all resolve themselves into objections of fact. The President, by his Proclamation, has already answered them practically; but I will take the[Pg 224]m up in detail.

(1.) The first objection, and most often repeated, is one which it is difficult to treat with patience. We are told that the appeal will offend the Border States, and that, in this moment of trial, we must do as they tell us. It is, of course, slave-masters who speak for the Border States; and permit me to say, such persons, continuing to swear by Slavery, are not competent witnesses. Believing in Slavery, wedded to Slavery, they are as incompetent to testify as husband and wife are incompetent to testify for each other. Just in proportion as we follow them we are misled, and we shall continue to be misled so long as we follow them. Their influence is perpetual paralysis. Nobody can counsel safely at this moment who adheres to Slavery, or fails to see Slavery as the origin and mainspring of the Rebellion. It is well known that for a long time in England all efforts against Slavery, led by Wilberforce and Clarkson, were discountenanced and opposed by the slave-masters in the distant islands. Whatever the proposition, whether to abridge, to mitigate, or ameliorate, there was always one steady dissent. Put not your trust in slave-masters,—do not hearken to their promises,—do not follow their counsels. Such is the plain lesson of English history, of French history, of Dutch history, of every country which has dealt with this question,—ay, of Russian history at this very moment,—and such, also, is the positive caution of English statesmen. On this point we have the concurring testimony of three names, each of which is an authority. It is all embodied in a brief passage of a speech by Lord Brougham.

[Pg 225]

These are emphatic words, and as often as I am reminded of the opinions of Slave-Masters on our present duties, when Slavery is in question, I think of them as a solemn warning, confirmed by all the teachings of experience in our own country, early and late.

(2.) Another objection is, that officers in our army will fling down their arms. Very well,—let the traitors fling down their arms: the sooner, the better. They are unworthy to bear arms, and should be delivered up to the hissing and execration of mankind. But I will not dishonor officers with the commission of the United States by such imputation on their loyalty and common sense. As officers they must know their duty too well, and as intelligent men they must know that the slaves are calculated to be their best and surest allies.

(3.) Another objection is, that Slavery is a “side issue,” not to be touched until the war is ended. But these wise objectors forget that it is precisely in order to end the war that Slavery is to be touched, and that, when they oppose the effort, they make a “side issue” in its behalf, calculated to weaken the national arm.

(4.) Another objection has its origin in pity, that the [Pg 226]Rebels may be saved from a slave insurrection. God forbid that I should fail in any duty of humanity, or tenderness even; but I know no principle of war or of reason by which our Rebels should be saved from the natural consequences of their own conduct. When they rose against a paternal Government, they set the example of insurrection which has carried death to innumerable firesides. They cannot complain, if their slaves, with better reason, follow it. According to an old law, bloody inventions return to plague the inventor. But this whole objection proceeds on a mistaken idea of the African slave. The story of San Domingo, so often quoted against him, testifies to his humanity. Only when Napoleon, in an evil hour, sought to reënslave him, did those scenes of blood occur, which exhibit less the cruelty of the slave than the atrocious purpose of the white man. The African is not cruel, vindictive, or harsh, but gentle, forgiving, and kind. Such is authentic history. Nor does it appear, when the slaves left their masters, on the appeal of the British commanders, during our Revolution, that they were guilty of any excess. It is true that labor was disorganized, and the whole community weakened; and this is what we seek to accomplish in the Rebel States.

(5.) And yet one more objection is sometimes advanced. It is said that an appeal to the slaves will make them overflow into the North, where they will compete with other labor. This ill-considered and trivial objection subordinates the suppression of the Rebellion to a question of labor, and, by a “side issue,” diverts attention from the great object at heart. But it becomes absurd, when you consider, as every candid observer must admit, that no such objection can arise. There is no danger of any such overflow. It is precisely [Pg 227]the pressure of Slavery, and not the license of Freedom, that causes overflow. If Slavery were removed, the Africans would flow back, instead of overflowing here. The South is their natural home, and there they will go when justice at last prevails.

Such are the objections of fact, so far as any exist within my knowledge. If any other has been made, I do not know it. I ask you frankly, have I not answered them?

But, fellow-citizens, I shall not leave the argument at this stage. It is not enough to show that slaves can render important assistance, by labor, by information, or by arms, and that there is no reasonable objection to calling upon them, with other loyalists, in support of the Union. The case is stronger still. Without the aid of the slaves this war cannot be ended successfully. Their alliance is, therefore, a necessity. In making this assertion I know well the responsibility I assume, nor do I assume it lightly. But the time has come when the truth must be told. Let me be understood. As war is proverbially uncertain, I cannot doubt that fortune will again light upon our arms. The force of the Rebellion may be broken even without appeal to the slaves. But I am sure that with the slaves our victory will be more prompt, while without them it can never be effectual completely to crush out the Rebellion. It is not enough to beat armies. Rebel communities, envenomed against the Union, must be restored, and a wide-spread region quieted. This can be done only by removal of the disturbing cause, and the consequent assimilation of the people, so that no man shall call another master. If Slavery be regarded as a disease, it must be extir[Pg 228]pated by knife and cautery; for only in this way can the healthful operations of national life be regained. If regarded as a motive, it must be expelled from the system, that it may no longer exercise its malign influence. So long as Slavery continues, the States in which it exists will fly madly from the Union, but with its destruction they will lose all such tendency. The Slave States, by the influence of Slavery, are now centrifugal; but with Slavery out of the system, they will be centripetal. Such is the law of their being. And it should be our present policy to take advantage of this law for the benefit of the Union. Nay, from the necessity of the case, this must be done.

A united people cannot be conquered. Defeated on the battle-field, they will remain sullen and revengeful, ready for another rebellion. This is the lesson of history. Even Hannibal, after crushing in the field all the armies of Rome, and ranging at will throughout Italy, was obliged to confess the inadequacy of his triumphs, while he appealed for help to the subjects of Rome, exciting them to insurrection, and arousing them against the Roman power. To this long-cherished plan were directed all the energies he could spare from battle, believing that in this way his enemy could be brought under a double fire. But it is known that the people of the Slave States are not wholly united, and that among them are large numbers ready at call to uphold the Union. From the beginning of the war, we have assumed, as an element of strength, the presence there of large numbers devoted to the Union, ready at the proper moment to coöperate with the national forces. Yet most of these faithful Unionists are not white. T[Pg 229]he Unionists of the South are black. Let these be rallied, and the Rebellion will be exposed not only to a fire in front, but also to a fire in the rear. The two together are necessary to the operations of war. The Union army thus far is like a single blade of a pair of scissors, which, though of choicest steel with sharpest edge, must be comparatively useless. Let the other blade be conjoined, and the instrument will be perfect. The scissors of Fate could not cut more surely.

Is not our duty clear? And is not the President completely vindicated? By Emancipation we not only hasten the war to a close, but we give it an effective finality, preventing it from breaking forth anew, which can be obtained in no other way. The heads of the hydra will be extirpated and the monster destroyed, never more to show itself. Without Emancipation the whole contest is delivered over to present uncertainty, while the future is left to glare with all the horrors of civil strife unsuppressed. The last chapter of “Rasselas” is entitled “The Conclusion, in which Nothing is Concluded”; and this will be the proper title for the history of this war, if Slavery is allowed to endure. If you would trample down the Rebellion, you must trample down Slavery; and, believe me, it must be completely done. Among the terrible pictures in the immortal poem of Dante, where crime on earth is portrayed in so many fearful punishments, is that of Caiaphas, high-priest of the Jews, who, as penalty for his sacrifice of the Saviour, was stretched on the floor of Hell, where all who passed must tread on him.

[Pg 230]

Such should be the final fate of Slavery, naked and dishonored, stretched where all may tread upon it. Never can the Rights of War be employed more justly than to create this doom.

It was easy to see from the beginning that the Rebellion had its origin in Slavery,—that without Slavery it never could have broken forth,—that, when begun, it was continued only through Slavery,—that Slavery was at once the curse that pursued, the principle that governed, and the power that sustained,—and the Oligarchy of slave-masters, three hundred and fifty thousand all told, were the criminals through whom all this direful wickedness was organized and waged. Such is the unquestionable diagnosis of the case, which history will recognize, and a wise statesmanship must have seen promptly. Not to see Slavery in this guilty character was a mistake, and grievously have we answered for it. All are agreed now that Buchanan played into Rebel hands, when, declaring that there can be no coercion of a State, he refused to touch the Rebellion. Alas! alas! we, too, may play into Rebel hands, when, out of strange and incomprehensible forbearance, we refuse to touch Slavery, which is the very life of the Rebellion. Pardon these allusions, made in no spirit of criticism, but simply that I may accumulate new motives for that Proclamation which I rejoice to welcome as herald of peace.

There are many generals already in the field,—upwards of thirty major-generals, and two hundred brigadiers; but, meritorious and brave as they may be,[Pg 231] there is a general better than all, whom the President now commissions,—I mean General Emancipation.

It is common to speak of God as on the side of the heavy battalions. Whatever the truth of this saying, it does not contain the whole truth. Heavy battalions are something, but they are not everything. Even if prevailing on the battle-field, which is not always the case, the victory they compel is not final. It is impotent to secure that tranquillity essential to national life. Mind is above matter, right is more than force, and it is vain to attempt conquest merely by matter or by force. If this can be done in small affairs, it cannot in large; for these yield only to moral influences. Napoleon was the great master of war, and yet, from his utterances at St. Helena, the legacy of his transcendent experience, comes this confession: “The more I study the world, the more am I convinced of the inability of brute force to create anything durable.” And another Frenchman, of subtile thought and perfect integrity, whose name is linked forever with American institutions, De Tocqueville, has paid a similar tribute to truth. “Force,” says he, “is never more than a transient element of success. A government only able to crush its enemies on the field of battle would very soon be destroyed.” In these authoritative words of the warrior and the thinker there is warning not to put trust in batteries or bayonets, while an unconquerable instinct makes us confess that might cannot constitute right.

Let the war end on the battle-field alone, and it will be only in appearance that it will end, not in reality. Time will be gained for new efforts, and Slavery will coil itself to spring again. The Rebellion may seem to[Pg 232] be vanquished, and yet it will triumph. The Union may seem to conquer, and yet it will succumb. The Republic may seem to be saved, and yet it will be lost,—handed over a prey to that injustice which, so long as it exists, must challenge the judgments of a righteous God.

Thus, for the sake of peace, which we all desire, do I now plead for Freedom, through which alone peace can be secured. Are you earnest for peace? then must you be earnest for Freedom also. Would you uphold the Union against treason? then must you uphold Freedom, without which bloody treason will flourish over us. But Freedom is adopted by Congress and proclaimed by the President as one of the agencies in the prosecution of the war. Therefore it must be maintained with all our souls and all our hearts and all our might. The hour of debate has passed, the hour of action has sounded. In opposing solemn Acts of Congress, which, according to the Constitution, are now the supreme law of the land, passed for the national defence,—in opposing the Proclamation of the President,—nay, in discouraging Freedom,—you are as bad as if you discouraged enlistments. It is through Freedom, as well as arms, that the war will be waged; and the same loyalty that supports the one is now due to the other. The discouragement of enlistments is recognized as seditious and traitorous; but the discouragement of this new force, adopted by the Government for the suppression of the Rebellion, is only another form of sedition and treason, which an indignant patriotism will spurn. Emancipation is now a war measure, to be sustained as you sustain an army[Pg 233] in the field.

If the instincts of patriotism did not prompt this support, I should find a sufficient motive in that duty which we all owe to the Supreme Ruler, God Almighty, whose visitations upon our country are now so fearful. Not rashly would I make myself the interpreter of His will; and yet I am not blind. According to a venerable maxim of jurisprudence, “Whoso would have equity must do equity”; and God plainly requires equity at our hands. We cannot expect success while setting at nought this requirement, proclaimed in His divine character, in the dictates of reason, and in the examples of history,—proclaimed, also, in the events of this protracted war. Terrible judgments have fallen upon the country: plagues have been let loose, rivers have been turned into blood, and there is a great cry throughout the land, for there is not a house where there is not one dead; and at each judgment we seem to hear that terrible voice which sounded in the ears of Pharaoh: “Thus saith the Lord God of the Hebrews, Let my people go, that they may serve me.” I know not how others are touched, but I cannot listen to the frequent tidings of calamity descending upon our arms, of a noble soldier lost to his country, of bereavement at the family hearth, of a youthful son brought home dead to his mother, without catching the warning, “Let my people go!” Nay, every wound, every sorrow, every hardship, all that we are compelled to bear in taxation, in want, in derangement of business, has a voice crying, “Let my people go!”

[Pg 234]

And now, thank God, the word is spoken!—greater word was seldom spoken. Emancipation has begun, and our country is already elevated and glorified. The war has not changed in object, but it has changed in character. Its object now, as at the beginning, is simply to put down the Rebellion; but its character is derived from the new force at length enlisted, stamping itself upon all that is done, and absorbing the whole war to itself. Vain will it be again to delude European nations into foolish belief that Slavery has nothing to do with the war, that it is a war for empire on one side and independence on the other, and that all generous ideas are on the side of the Rebellion. And vain, also, will be that other European cry,—whether from an intemperate press or the cautious lips of statesmen,—that separation is inevitable, and that our Government is doomed to witness the dismemberment of the Republic. With this new alliance, such forebodings will be falsified, the wishes of the fathers will be fulfilled, and the rights of human nature, which were the declared object of our Revolution, vindicated. Thus inspired, the sword of Washington—that sword which, according to his last will and testament, was to be drawn only in self-defence, or in defence of country and its rights—will once more marshal our armies to victory, while the national flag, wherever it floats, will give freedom to all beneath its folds, and the proud inscription be at last triumphantly verified: “Liberty and Union, now and forever, one and inseparable.”

But, fellow-citizens, the war we wage is not merely for ourselves, it is for all mankind. Slavery yet lingers in Brazil, and beneath the Spanish flag in those two golden possessions, Cuba and Porto Rico; but nowhere can it survive extinction here. Therefore we conquer[Pg 235] for Liberty everywhere. In ending Slavery here we open its gates all over the world, and let the oppressed go free. Nor is this all. In saving the Republic we save Civilization. Man throughout his long pilgrimage on earth has been compelled to suffer much, but Slavery is the heaviest burden he has been called to bear: it is the only burden our country has been called to bear. Let it drop, and this happy Republic, with humanity in its train, all changed in raiment and in countenance, like the Christian Pilgrim, will hurry upward to the celestial gate. If thus far our example has failed, it is simply because of Slavery. Vain to proclaim our unparalleled prosperity, the comfort diffused among a numerous people, resources without stint, or even the education of our children; the enemies of the Republic had but to say, “There is Slavery,” and our example became powerless. But let Slavery disappear, and the same example will be of irresistible might. Without firing a gun or writing a despatch, it will revolutionize the world.

Therefore the battle we fight belongs to the grandest events of history. It constitutes one of those epochs from which humanity will date. It is one of the battles of the ages, as when the millions of Persia were hurled back from Greece, or when the Mohammedans, victors in Africa and Spain, were hurled back from France by Charles Martel, and Western Europe was saved to Christianity. In such a cause no effort too great, no faith too determined. To die for country is pleasant and honorable. But all who die for country now die also for humanity. Wherever they lie in bloody fields, they will be remembered as heroes through whom the Republic was saved and civilization established forever.

[Pg 236]

But there are duties elsewhere than in bloody conflict. Each of us, in his place at home, by his best efforts, can do something, not only to sustain the soldier in the field, but also to uphold that sublime edict which will be to the soldier both sword and buckler, while it gives to the conflict all the grandeur of a great idea. In this hour of trial let none fail. Above all, let none go over to the enemy, even should his tents for the moment be pitched in Faneuil Hall,[132] assured that there can be but two parties: the party of our country, with the President for its head, and Emancipation its glorious watchword; and the party of Rebellion, with Jefferson Davis for its head, and no other watchword than Slavery.

[Pg 237]

APPENDIX.

NOMINATION AND REËLECTION OF MR. SUMNER.

[Pg 247]

THE EMANCIPATION PROCLAMATION OUR CORNER-STONE.

Letter to Fellow-Citizens at Salem, October 10, 1862.

[Pg 248]

FARMERS, THEIR HAPPINESS AND LIBERAL SENTIMENTS.

Speech at the Dinner of the Hampshire County Agricultural Society, at Northampton, Mass., October 14, 1862.

Mr. President, Ladies, and Gentlemen:—

I cannot forget the first time that I looked upon this beautiful valley, where river, meadow, and hill contribute to the charm. It was while a youth in college. With several of my classmates I made a pedestrian excursion through Massachusetts. Starting from Cambridge, we passed, by way of Sterling and Barre, to Amherst, where, arriving weary and footsore, we refreshed ourselves at the evening prayer in the College Chapel. From Amherst we walked to Northampton, and then, ascending Mount Holyoke, saw the valley of the Connecticut spread out before us, with river of silver winding through meadows of gold. It was a scene of enchantment, and time has not weakened the impression it made. From Northampton we walked to Deerfield, sleeping near Bloody Brook, and then to Greenfield, where we turned off by Coleraine through dark woods and over hills to Bennington in Vermont. The whole excursion was deeply interesting, but no part more so than your valley. Since then I have been a traveller at home and abroad, but I know no similar scene of greater beauty. I have seen the meadows of Lombardy, and those historic rivers, the Rhine and the Arno, and that stream of Charente, which Henry the Fourth called the most beautiful of France,—also those Scottish rivers so famous in legend and song, and the exquisite fields and sparkling waters of Lower Austria; but my youthful joy in the landscape which I witnessed from the neighboring hill-top has never been surpassed in any[Pg 250] kindred scene. Other places are richer in the associations of history; but you have enough already in what Nature has done, without waiting for any further illustration.

It is a saying of Antiquity, often quoted: “Oh, too fortunate husbandmen, if they only knew their blessings!”[135] Nowhere are these words more applicable than to this neighborhood, where Nature has done so much, and where all that Nature has done is enhanced by an intelligent and liberal spirit. An eminent French writer, one of the greatest of his country, who wrote in the middle of the last century, when France was a despotism, Montesquieu, has remarked in his “Spirit of Laws,” that “countries are not cultivated in proportion to their fertility, but in proportion to their liberty.”[136] A beautiful truth. But here in this valley are both. Where is there greater fertility? where is there truer liberty?

If the farmers of our country needed anything to stimulate pride in their vocation, it would be found in the statistics furnished by the national census. That of 1860 is not yet prepared, and I go back to that of 1850. Here it appears, that, out of the whole employed population of the United States over fifteen years of age, two millions four hundred thousand, or forty-four per cent, were engaged in agricultural pursuits, while the total number engaged in commerce, trade, manufactures, mechanic arts, and mining was only one million six hundred thousand, or about thirty per cent. These figures show an immense predominance of the agricultural interest in the whole country. Of[Pg 251] course in Massachusetts the commercial and manufacturing interests are relatively larger than in other parts of the country. But our farmers are numerous.

This same census shows, that, in 1850, the four largest staples of our country, ranking them according to their nominal value, were: Indian corn, two hundred and ninety-six million dollars; wheat, one hundred million dollars; cotton, ninety-eight million dollars; hay, ninety-six million dollars. These figures, of course, are familiar, but they are so instructive that they will bear repetition. Besides illustrating the magnitude of our agricultural interests, they shed new light on the lofty pretensions that have been made for King Cotton. There is no crown for hay, or wheat, or Indian corn, and yet two of these stand above cotton. But the whole table testifies to the power of the farmer.

From another quarter are statistics showing how agricultural pursuits favor longevity. Out of seventeen hundred persons, the average life of farmers was forty-five years; of merchants, thirty-three years; of mechanics, twenty-nine years; and of laborers, twenty-seven years. Thus length of days seems to be an agricultural product.

Gratifying as it may be to glance at agriculture in these statistics, which must arouse the pride, if not the content of the farmer, there are other aspects which to my mind are more interesting. In early days agriculture was only an art, most imperfectly developed. The plough of the ancient husbandman was little more than a pole with a stick at the end by which the earth was scratched, and other implements were of like simplicity. As for the knowledge employed, it was all of the most superficial character. But agriculture is now[Pg 252] not only an art, in a high degree of perfection, it is also a science, with its laws and rules, as much as navigation or astronomy. There is no knowledge which will not help the farmer; especially is there no branch of science. Geography, geology, meteorology, botany, chemistry, zoölogy, and animal physiology, all contribute. Regarding agriculture in this light, we cannot fail to give the farmer a high standard of excellence. In the cultivation of the earth he practises an art and pursues a science. But human character is elevated by the standard which is followed.

There is another feature in the life of the farmer which is to me more interesting still. The farmer is patriotic and liberal. Dependent upon Nature, he learns to be independent of Man. If not less than others under the influence of local prejudices, he is at least removed from those combinations engendered by the spirit of trade. He thinks for himself, and acts for his country. I do not venture to say that he is naturally a reformer, but I think the experience of our country attests that he does not set himself against the ideas of the age.

I rejoice to believe that there is no such hide-bound indifference to liberal ideas among our farmers. But, just in proportion as these are numerous, intelligent, powerful, and liberal, do they constitute an arm of strength. Pardon me, if now more than ever I see them in this character. In appealing to them for the sake of our country, I make no appeal inconsistent with the proprieties of this occasion. Our country is in [Pg 253]peril, and it must be saved. This is enough.

Under God, our country will be saved through the united energy, the well-compacted vigor of the people directed by the President of the United States. Our first duty is to stand by the President, and to hold up his hands. There must be no hesitation or timidity. If he calls for troops, he must have them. If, besides calling for troops, he enlist other agencies for the suppression of the Rebellion, he must be sustained precisely as in calling for troops.

Thus far the main dependence has been troops, to which our honored Commonwealth has made generous contributions. No part of the country has suffered more in gallant officers, youthful, gentle, and excellent in all things. This neighborhood has its story of sorrow. Amherst has buried the pure and patriotic Stearns, and only within a few days here in Northampton you have received from the field of death the brave and accomplished Baker.

And now at last a new power is invoked, being nothing less than that great Proclamation of the President which places Liberty at the head of our columns.

It is sometimes said that this edict is unconstitutional. Some there are with whom the Constitution is a constant stumbling-block, wherever anything is to be done for Freedom. It cannot be so, I trust, with the liberal farmers of this valley. Of course, the Edict of Emancipation is to be regarded as a war measure, made in the exercise of the Rights of War. It is as much a war measure as the proclamation calling forth troop[Pg 254]s, and is entitled to the same support. It is not a measure of Abolition or Antislavery, or of philanthropy, but a war measure, pure and simple. If there be any person disposed to discourage it, I warn him that he departs from the duties of patriotism hardly less than if he discouraged enlistments. There is but one course now before us. The policy of Emancipation, at last adopted as a war measure, must be sustained precisely as we sustain an army in the field. With this new and mighty agency I cannot doubt the result. The Rebellion will be crushed, and the Republic will be elevated to heights of power and grandeur where it will be an example to mankind. It is related of the Emperor Julian, known as the Apostate,—for he had once embraced Christianity,—that, perishing before he had struck the last blows prepared by hatred to the Church, he looked at the blood which spurted from his side, and then cried, “Galilean, thou hast conquered!” Whether fable or truth, the story has its meaning. Such a cry will yet be heard from the apostate chiefs in our Rebel States, “Liberty, thou hast conquered!”—and the echo of this cry will be heard round the globe.

Following the usage of your festival, I offer the following sentiment:—

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AMBULANCE AND HOSPITAL CORPS.

Resolution in the Senate, December 3, 1862.

RESOLVED, That the Committee on Military Affairs and the Militia be directed to consider the expediency of providing by law for the establishment of a corps composed of men especially enlisted for hospital and ambulance service, with officers commissioned purposely to command them, who shall have the entire charge, under the medical officers, of the hospitals and of the ambulance wagons, so as to enlarge the usefulness of this humane service, and give to it the efficiency derived from organization.

[Pg 256]

CELEBRATION OF EMANCIPATION.

Letter to a Public Meeting of Colored Citizens in Boston, January 1, 1863.

[Pg 257]

PRUDENCE IN OUR FOREIGN RELATIONS.

Remarks in the Senate, on Resolutions against French Interference in Mexico, February 3, 1863.

But, Sir, if the Senate had abundant time, like a mere debating society, and were free to select at will a topic for discussion, I surely should object at this moment to a debate which must be not only useless, but worse than useless. I forbear from details at present. I wish to avoid them, unless rendered necessary. I content myself with saying that the resolutions either mean something or they mean nothing. If they mean nothing, surely the Senate will not enter upon their discussion. If they mean anything, if they are not mere words, they mean war, and this no common war, but war with a great and adventurous nation, powerful in fleets and armies, bound to us by treaties and manifold traditions, and still constant in professions of amity and good-will. Sir, have we not war enough already on our hands, without needlessly and wantonly provoking another? For myself, I give all that I have of intellectual action, and will, and heart, to the suppression of this Rebellion; and never, by my consent, shall the Senate enter upon a discussion the first effect of which will be aid and comfort to the Rebellion itself.

Mr. President,—I, too, hope that the Senate will dare do everything that is right; but I hope that it will not dare to embarrass the Government at this moment, and give aid and comfort to the Rebellion. I do not say that the Senator means to give such aid and comfort, but I do say that the very speech which has just[Pg 259] fallen from him, to the extent of its influence, will give aid and comfort. Can any Senator doubt that all who sympathize with the Rebellion will rejoice to see this Senate discussing the question of peace and war with a great European power? Can any one doubt that the Rebels over the way will rejoice and clap their hands, when they hear the tidings? Sir, I will not give them any such encouragement. They shall not have it, if vote or voice of mine can prevent. I, too, Sir, am for the freest latitude of debate, but I am for the suppression of the Rebellion above and before everything else; and the desires of the Senate must all yield at this moment to the patriotic requirements of the country. There is a time for all things. There is a time to weep, and there is a time to laugh. I do not know, that, in the chapter of national calamities, there may not be a time for further war; but I do say that the duty of statesmanship here in this Chamber is to set the foot down at once against any such proposition, which, just to the extent of its recognition, must add to present embarrassments.

Mr. President,—At the present moment there is one touchstone to which I am disposed to bring every question, especially in our foreign relations; and this touchstone is its influence on the suppression of the Rebellion. A measure may in itself be just or expedient; but if it would be a present burden, if it would add to our embarrassments and troubles, and especially if it would aggravate our military condition, th[Pg 260]en, whatever may be its merits, I am against it. To the suppression of the Rebellion the country offers life and treasure without stint, and it expects that these energies shall not be sacrificed or impaired by the assumption of any added responsibilities.

If I bring these resolutions to this touchstone, they fail. They may be right or wrong in fact and principle, but their influence at this moment, if adopted, must be most prejudicial to the cause of the Union. Assuming the tone of friendship to Mexico, they practically give to the Rebellion a most powerful ally, for they openly challenge war with France. There is madness in the proposition. I do not question the motives of the Senator, but it would be difficult to conceive anything more calculated to aid and comfort the Rebellion, just in proportion to its adoption. Sufficient unto the day is the evil thereof. The present war is surely enough, without adding war with France.

I content myself with this protest, without following the Senator in a discussion which must be unprofitable, if not pernicious.

I say nothing of France, whose power cannot be doubted, and whose friendship I would carefully cultivate.

I say nothing of Mexico, our unhappy neighbor Republic, torn, as we now are, except to declare sympathy and cordial good-will.

It is sufficient that the policy of the Senator from California, without any certainty of good to Mexico, must excite the hostility of France, and give to the Rebellion armies and fleets, not to mention that recognition and foreign intervention which we deprecate.

Let us all unite to put down the Rebellion. [Pg 261]This is enough for the present.

If Senators are sensitive, when they see European monarchies again setting foot on this hemisphere,—entering Mexico with their armies, entering New Grenada with their influence, and occupying the ancient San Domingo,—let them consider that there is but one way in which this return of empire can be arrested. It is by the suppression of the Rebellion. Let the Rebellion be overcome, and this whole continent will fall naturally, peacefully, and tranquilly under the irresistible influence of American institutions. Resolutions cannot do this, nor speeches. I therefore move that the resolutions lie on the table.

[Pg 262]

EMPLOYMENT OF COLORED TROOPS.

Bill in the Senate, February 9, 1863.

[Pg 263]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every able-bodied male person of the age of eighteen years and under forty-five years, made free by the Act of Congress, approved August sixth, eighteen hundred and sixty-one, entitled “An Act to confiscate property used for insurrectionary purposes,” or the Act of July seventeenth, eighteen hundred and sixty-two, entitled “An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of Rebels, and for other purposes,” or by Proclamations of the President of the United States, dated September twenty-second, eighteen hundred and sixty-two, and January first, eighteen hundred and sixty-three, respectively, or by any other legal and competent authority exercised in suppressing the present Rebellion, shall severally be forthwith enrolled as a military force of the United States by the commanding officer within whose department such persons shall be found, and they shall be organized, armed, equipped, and mustered into the service of the United States, to serve during the present war, to a number not exceeding three hundred thousand men.

Sec. 2. And be it further enacted, That the said military force shall be organized according to the regulations of the branch of service in which they may be designated to serve, and receive the same rations, clothing, and equipments as volunteers, and a monthly pay of seven dollars, to be paid one half at the end of each month, and the other half when discharged. They shall be officered by persons appointed and commissioned by the President, and governed by the rules and articles[Pg 264] of war, and such other rules and regulations as may be prescribed by law. Each person so serving as a non-commissioned officer or private in such military force of the United States shall be entitled to receive, upon his discharge, ten acres of land, and each person so serving as a commissioned officer shall be entitled to receive twenty-five acres, the same to be located upon any lands confiscated during the present Rebellion, and not reserved by the Government for public use; the land so located to be occupied only as a homestead by the person entitled to receive the same, and his family.

Sec. 3. And be it further enacted, That the President be, and is hereby, authorized to further order the voluntary enlistment or enrolment of each and every able-bodied free male person of African descent, of the age of eighteen years and under forty-five years, within the United States, for military service, as provided by this Act, except that the monthly pay of such free persons shall be the same as that of the volunteers: Provided, The whole number called into the service of the United States under the provisions of this section shall not exceed one hundred thousand men.

[Pg 266]

IMMEDIATE EMANCIPATION, AND NOT GRADUAL.

Speech in the Senate, on the Bill providing Aid for Emancipation in Missouri, February 12, 1863.

[Pg 267]

Mr. President,—This bill, as I understand it, is a bill of peace; it is to bring back tranquillity in a disturbed State. If you ask for authority under the Constitution, I cannot doubt that it is in the War Power. It is in the power to suppress this insurrection, to put down this rebellion. But most strangely do you seek to put down this rebellion by the abolition of Slavery twenty years, or even ten years, from now. To my mind the proposition is simply ridiculous. I use strong language, because so it seems to me, and I cannot help saying it.

Sir, for the sake of our common country at this critical moment, for the sake of Missouri herself, for the sake of every slave-master in Missouri, and for the sake of every slave, I insist that Abolition shall be completed at the nearest possible day. History, reason, and common sense are uniform in this requirement, and I challenge contradiction to their concurring testimony.

The measure on its face is double, being in the alternative. It provides a certain sum in the event of Emancipation taking place within two years, and another sum if it takes place at a certain distant day. Now, Sir, I do not desire any alternative. I trust that what we do will take effect at once. I wish to see the benefit of it, especially to see it felt in the suppression of the Rebellion.

I assume that Senators are in earnest for something to put down the Rebellion. Our country, I know, is rich in resources. It can vote millions for almost any purpose; but still I doubt if the Senator from Mis[Pg 268]souri would urge Congress, at this moment, to appropriate millions, unless he expected in this way to do something very positive against the Rebellion. I assume that this is his object, and also the object of other Senators urging this measure. Is there any other object to justify, at this moment, a vote for it? Is there any Senator who will toss twenty or ten millions of money to any State, unless he is satisfied that by doing so he can help put an end to the Rebellion? On this point all must agree. Therefore do I insist on the single question, How shall we most surely help put an end to the Rebellion? If this can be best accomplished by immediate Emancipation, then must we vote accordingly. But if it is better to allow Emancipation to drag through twenty or even ten years, with the possibility of reaction, and with the certainty of controversy during all this period, and, above all, without any immediate good, then will Senators vote accordingly. Sir, I am against any such thing. I wish the measure to be effective for the object proposed, and, as I do not believe it can be effective, unless immediate, I must vote accordingly.

I object to the enormous valuation. I object to it in the present bill, and also as a precedent. We shall be bound by it hereafter. The next bill will have [Pg 269]this same value of three hundred dollars for each slave. I would begin by putting it at two hundred dollars, and that is my motion.

MR. PRESIDENT,—If I speak tardily in this debate, I hope for the indulgence of the Senate. Had I been able to speak earlier, I should have spoken; but, though present in the Chamber, and voting when this bill was under consideration formerly, I was at the time too much of an invalid to take an active part in the debate. In justice to myself and to the great question, I cannot be silent.

I have already voted to give Missouri twenty million dollars to secure freedom at once for her slaves, and to make her at once a Free State. I am ready to vote more, if more be needed for this good purpose; but I will not vote money to be sunk and lost in an uncertain scheme of Prospective Emancipation, where Freedom is a jack-o’-lantern, and the only certainty is the Congressional appropriation. For money paid down, Freedom must be delivered.

Notwithstanding all differences of opinion on this important question, there is much occasion for congratulation in the progress made.

[Pg 270]

Thank God, on one point the Senate is substantially united. A large majority will vote for Emancipation. This is much, both as a sign of the present and a prophecy of the future. A large majority, in the name of Congress, will offer pecuniary aid. This is a further sign and prophecy. Such a vote, and such an appropriation, will constitute an epoch. Only a few short years ago the very mention of Slavery in Congress was forbidden, and all discussion of it was stifled. Now Emancipation is an accepted watchword, while Slavery is openly denounced as a guilty thing worthy of death.

It is admitted, that now, under the exigency of war, the United States ought to coöperate with any State in the abolition of Slavery, giving it pecuniary aid; and it is proposed to apply this principle practically in Missouri. It was fit that Emancipation, destined to end the Rebellion, should begin in South Carolina, where the Rebellion began. It is also fit that the action of Congress in behalf of Emancipation should begin in Missouri, which, through the faint-hearted remissness of Congress, as late as 1820, was opened to Slavery. Had Congress at that time firmly insisted that Missouri should enter the Union as a Free State, the vast appropriation now proposed would have been saved, and, better still, this vaster civil war would have been prevented. The whole country is now paying with treasure and blood for that fatal surrender. Alas, that men should forget that God is bound by no compromise, and that, sooner or later, He will insist that justice shall be done! There is not a dollar spent, and not a life sacrificed, in this calamitous war, which does not plead against any repetition of that wicked folly. Palsied be the tongue that speaks of compromise with Sl[Pg 271]avery!

Though, happily, compromise is no longer openly mentioned, yet it insinuates itself in this debate. In former times it took the shape of barefaced concession, as in the admission of Missouri with Slavery, in the annexion of Texas with Slavery, the waiver of the prohibition of Slavery in the Territories, the atrocious bill for the reënslavement of fugitives, and the opening of Kansas to Slavery, first by the Kansas Bill, and then by the Lecompton Constitution. In each of these cases there was concession to Slavery which history records with shame, and it was by this that your wicked slaveholding conspiracy waxed confident and strong, till at last it became ripe for war.

And now it is proposed, as an agency in the suppression of the Rebellion, to make an end of Slavery. By proclamation of the President, all slaves in certain States and designated parts of States are declared free. Of course this proclamation is a war measure, rendered just and necessary by exigencies of war. As such, it is summary and instant in operation, not prospective or procrastinating. A proclamation of Prospective Emancipation would have been an absurdity,—like a proclamation of a prospective battle, where not a blow was to be struck or a cannon pointed before 1876, unless, meanwhile, the enemy desired it. What is done in war must be done promptly, except, perhaps, under the policy of defence. Gradualism is delay, and delay is the betrayal of victory. If you would be triumphant, strike quickly, let your blows be felt at once, without notice or premonition, and especially without time for resistance or debate. Time deserts all who do not appreciate its value. Strike promptly, and time becomes your invaluable ally; strike slowly, gradually, prospectively, and time[Pg 272] goes over to the enemy.

But every argument for the instant carrying out of the Proclamation, every consideration in favor of despatch in war, is especially applicable to whatever is done by Congress as a war measure. In a period of peace Congress might fitly consider whether Emancipation should be immediate or prospective, and we could listen with patience to the instances adduced by the Senator from Wisconsin [Mr. Doolittle] in favor of delay,—to the case of Pennsylvania, and to the case of New York, where slaves were tardily admitted to their birthright. Such arguments, though to my judgment of little value at any time, might then be legitimate. But now, when we are considering how to put down the Rebellion, they are not even legitimate. There is but one way to put down the Rebellion, and that is instant action; and all that is done, whether in the field, in the Cabinet, or in Congress, must partake of this character. Whatever is postponed for twenty years, or ten years, may seem abstractly politic or wise; but it is in no sense a war measure, nor can it contribute essentially to the suppression of the Rebellion.

I think I may assume, without contradiction, that the tender of money to Missouri for the sake of Emancipation is a war measure, to be vindicated as such under the Constitution of the United States. It is also an act of justice to an oppressed race. But it is not in this unquestionable character that it is now commended. If it were urged on no other ground, even if every consideration of philanthropy and of religion pleaded for it with rarest eloquence, I fear that it would stand but little chance in either House of Congress. Let us not disg[Pg 273]uise the truth. Except as a war measure to aid in putting down the Rebellion, this proposition could expect little hospitality here. Senators are ready to vote money—as the British Parliament voted subsidies—to supply the place of soldiers, or to remove a stronghold of the Rebellion, all of which is done by Emancipation. I do not overstate the case. Slavery is a stronghold, which through Emancipation will be removed, while every slave, if not every slave-master, becomes an ally of the Government. Therefore Emancipation is a war measure, and constitutional as the raising of armies or the occupation of hostile territory.

In vindicating Emancipation as a war measure, we must see that it is made under such conditions as to exercise a present, instant influence. It must be immediate, not prospective. In proposing Prospective Emancipation, you propose a measure which can have little or no influence on the war. Abstractly Senators may prefer that Emancipation should be prospective rather than immediate; but this is not the time for the exercise of any abstract preference. Whatever is done as a war measure must be immediate, or it will cease to have this character, whatever you call it.

If I am correct in this statement,—and I do not see how it can be questioned,—then is the appropriation for Immediate Emancipation just and proper under the Constitution, while that for Prospective Emancipation is without sanction, except what it finds in the sentiments of justice and humanity.

It is proposed to vote ten million dollars to promote Emancipation ten years from now. Perhaps I am sanguine, but I cannot doubt that before the expiration of that period Slavery will die in Missouri under the awak[Pg 274]ened judgment of the people, even without the action of Congress. If our resources were infinite, we might tender this large sum by way of experiment; but with a treasury drained to the bottom, and a debt accumulating in fabulous proportions, I do not understand how we can vote millions, which, in the first place, will be of little or no service in the suppression of the Rebellion, and, in the second place, will be simply a largess in no way essential to the subversion of Slavery.

Whatever is given for Immediate Emancipation is given for the national defence, and for the safety and honor of the Republic. It will be a blow at the Rebellion. Whatever is given for Prospective Emancipation will be a gratuity to slaveholders and a tribute to Slavery. Pardon me, if I repeat what I have already said on this question: “Millions for defence, but not a cent for tribute”; millions for defence against peril, from whatever quarter it may come, but not a cent for tribute in any quarter,—especially not a cent for tribute to the loathsome tyranny of Slavery.

I know it is sometimes said that even Prospective Emancipation will help weaken the Rebellion. That it will impair the confidence in Slavery, and also its value, I cannot doubt. But it is equally clear that it will leave Slavery still alive and on its legs; and just so long as this is the case, there must be controversy and debate, with attending weakness, while Reaction perpetually lifts its crest. Instead of tranquillity, which we all seek for Missouri, we shall have contention. Instead of peace, we shall have prolonged war. Every year’s delay, ay, Sir, every week’s delay, in dealing death to Slavery leaves just so much of opportunity to the Rebellion; for so long as Slavery is allowed to exist in[Pg 275] Missouri the Rebellion will still struggle, not without hope, for its ancient mastery. But let Slavery cease at once and all will be changed. There will be no room for controversy or debate, with attending weakness; nor can Reaction lift its crest. There will be no opportunity to the Rebellion, which must cease all effort there, when Missouri can no longer be a Slave State. Freedom will become our watchful, generous, and invincible ally, while the well-being, the happiness, the repose, and the renown of Missouri will be established forever.

Thus far, Sir, I have presented the argument on grounds peculiar to this case; and here I might stop. Having shown, that, as a military necessity, and for the sake of that economy which it is our duty to cultivate, Emancipation must be immediate, I need not go further. But I do not content myself here. The whole question is opened between Immediate Emancipation and Prospective Emancipation,—or, in other words, between doing right at once and doing right at some future, distant day. Procrastination is the thief, not only of time, but of virtue itself. Yet such is the nature of man that he is disposed always to delay, so that he does nothing to-day which he can put off till to-morrow. Perhaps in no single matter is this disposition more apparent than with regard to Slavery. Every consideration of humanity, justice, religion, reason, common sense, and history, all demanded the instant cessation of an intolerable wrong, without procrastination or delay. But human nature would not yield, and we have been driven to argue the question, whether an outrage, asserting property in man, denying the conjugal relation, annulling the parental relation, shutting out human improvement, and[Pg 276] robbing its victim of all the fruits of his industry,—the whole to compel work without wages,—should be stopped instantly or gradually. It is only when we regard Slavery in its essential elements, and look at its unutterable and unquestionable atrocity, that we fully comprehend the mingled folly and wickedness of this question. If it were merely a question of economy, or a question of policy, then the Senate might properly debate whether the change should be instant or gradual; but considerations of economy and policy are all absorbed in the higher claims of justice and humanity. There is no question whether justice and humanity shall be immediate or gradual. Men are to cease at once from wrong; they are to obey the Ten Commandments instantly, and not gradually.

Senators who argue for Prospective Emancipation show themselves insensible to the true character of Slavery, or insensible to the requirements of reason. One or the other of these alternatives must be accepted.

Shall property in man be disowned immediately, or only prospectively? Reason answers, Immediately.

Shall the conjugal relation be maintained immediately, or only prospectively? Reason recoils from the wicked absurdity of the inquiry.

Shall the parental relation be recognized immediately, or only prospectively? Reason is indignant at the question.

Shall the opportunities of knowledge, including the right to read the Book of Life, be opened immediately or prospectively? Reason brands the idea of delay as impious.

Shall th[Pg 277]e fruits of his own industry be given to a fellow-man immediately or prospectively? Reason insists that every man shall have his own without postponement.

And history, thank God, speaking by examples, testifies in conformity with reason. The conclusion is irresistible. If you would contribute to the strength and honor of the Nation, if you would bless Missouri, if you would benefit the slave-master, if you would elevate the slave, and, still further, if you would afford an example which shall fortify and consecrate the Republic, making it at once citadel and temple, do not put off the day of Freedom. In this case, more than in any other, he gives twice who quickly gives.

I shall vote for this bill on its final passage, but it will be because I know it will go back to the House of Representatives, where it can undergo consideration, and where, I trust, a bill will be at last matured that will embody the true principle which ought to govern this great question.

[Pg 278]

LETTERS OF MARQUE AND REPRISAL.

Speeches in the Senate, on the Bill To authorize the President, in all Domestic or Foreign Wars, to issue Letters of Marque and Reprisal, February 14 and 17, 1863.

Mr. President,—It seems to me that this bill is in all respects a misconception. There is nothing now to justify letters of marque and reprisal; and when Senators say that Massachusetts is interested in their issue, I repel the suggestion. Sir, Massachusetts is interested in putting down the Rebellion. She is also interested in clearing the sea of pirates. Such is her open and unquestionable interest, and to this end she is concerned in the employment of all possible agencies consistent with the civilization of our day. Massachusetts is interested in the enlargement of the marine, national and private, and I add, also, in the present enlistment of the private marine in the national service; but this is very different from the issue of letters of marque.

…

I thin[Pg 279]k the Senator from Iowa is misled by a phrase. He speaks of the militia of the sea. It is a captivating phrase, I admit; but the meaning is not entirely clear. The Senator finds it in privateers,—that is, private armed ships, belonging to private individuals, under the command of private persons, cruising against private commerce, and paid exclusively by booty. Such is his idea of a sea militia. I confess this is not very captivating to me. My idea of a sea militia is different. It is all the ships of the country, if the occasion require, under the national flag, in the service of the country as national ships, with the character of national ships, enjoying everywhere the immunities of national ships, and free from the suspicions always attaching to the privateer, wherever it appears. An enactment, authorizing the employment of the mercantile marine in the national service as part of the national navy, would be practical and reasonable. Such a marine might justly be called the militia of the sea; but I must protest against the deceptive militia of the Senator.

MR. PRESIDENT,—The Senator from Iowa [Mr. Grimes], who has just taken his seat, ingeniously and elaborately vindicates a bill which, at least in one feature, is an innovation upon the original policy of our country; and, strange to say, while doing so, he pleads for what he calls our traditional policy. I, too, plead for our traditional policy, but not the policy of the Senator. And I plead also for a policy which, whether traditional or not, will provide for the national defence according to that best economy which takes counsel of[Pg 280] prudence as well as of courage.

The Senator, with seeming triumph, asks if we can afford to declare that our whole private marine shall rot at the wharf. Clearly not, and nobody proposes to declare so, although we might as well do this as recklessly provoke war which must drive our commerce from the ocean,—if in no other way, by the increased rates of insurance. I would secure for our private marine the amplest opportunity, that it may continue without interruption to plough every sea with its keels, and that, wherever it appears, it may find its accustomed welcome. The policy of the Senator has no such promise.

All will concur in any practical measure at this time for the increase of our strength on the ocean. To this end my vote shall not be wanting. But to my mind it is clear to demonstration that the measure proposed is not practical in character, that it promises no result which cannot be reached better in another way, while it is almost sure to bring upon the country additional embarrassment. It may be bold, but I am sure it is not prudent, nor is there in it economy of any kind.

This bill is entitled, “Concerning Letters of Marque, Prizes, and Prize Goods.” The title is borrowed from the two statutes of 1812 and 1813. It is, in plain terms, a bill to authorize Privateers,—that is, private armed vessels licensed to cruise against the commerce of an enemy, and looking to booty for support, compensation, and salary. It is by booty that owners, officers, and crews are to be paid. Booty is the motive power and life-spring. Such is this bill on its face, without going into detail. Surely a bill of this character ought not to pass without strong reason.

[Pg 281]

Looking at the bill more closely, it is found to have two distinct features: first, as a new agency against the Rebellion; secondly, as a provision for privateers in any future war. I regard these two features as distinct. They may be considered separately. One may be right, and the other wrong. One may be adopted, and the other rejected.

So far as the bill promises substantial help in putting down the Rebellion without more than countervailing mischief, it may properly be entertained. But what can it do against the Rebellion? And where is the policy or necessity on which it is founded? If Senators think that the bill can do any good now, I am sure they listen to their hopes rather than to the evidence. Why, Sir, the Rebels, against whom you would cruise, are absolutely without commerce. Pirate ships they have, equipped in England, armed to the teeth, and unleashed upon the sea to prey upon us; but there is not a single bottom of theirs that can afford the booty which is the pay and incentive of the privateer. It would be hardly more irrational to enlist private armed ships against the King of Dahomey.

I know it is said that our navy is too small, and that more ships are needed, not only for transportation, but also to increase and strengthen the blockade, or to cruise against pirates. Very well. Hire them, and put them in commission as Government ships, with the immunities, the responsibilities, and the character of such ships. There can be no difficulty in this; and, better still, there will be no difficulty afterwards. This is simple and practical.

But, while I s[Pg 282]ee no probable good from launching privateers upon the ocean to cruise against a commerce that does not exist, and to be paid by a booty that cannot be found, I see certain evils which I am anxious to avoid for the sake of my country, especially at this moment. I think that I cannot be mistaken in this anxiety.

It is well known, that, according to ancient usage and the Law of Nations, every privateer is entitled to belligerent rights, one of which is that most difficult, delicate, and dangerous right, the much disputed Right of Search. There is no Right of War with regard to which nations are more sensitive,—and no nation has been more sensitive than our own, while none has suffered more from its exercise. By virtue of this right, every licensed sea-rover is entitled on the ocean to stop and overhaul all merchant vessels under whatever flag. If he cannot capture, he can at least annoy. If he cannot make prize, he can at least make trouble, and leave behind a sting. I know not what course the great neutral powers may adopt, nor do I see how they can undertake to set aside this ancient right, even if they smart under its exercise. But when I consider that these powers have already by solemn convention—I refer, of course, to the Congress of Paris in 1856—renounced the whole system of privateers among themselves, I confess my fears that they will not witness with perfect calmness the annoyance to which their commerce will be exposed. And now, Sir, mark my prediction. Every exercise upon neutral commerce of this terrible Right of Search will be the fruitful occasion of misunderstanding, bickering, and controversy, at a moment when, if my voice could prevail, there should be nothing to interfere with that accord, harmony, and sympathy which are due from civilized states to our Republic in its great battle wi[Pg 283]th Barbarism. Even if we are not encouraged to expect these things from Europe, I hope that nothing will be done by us to put impediments in their way. Justly sensitive with regard to our own rights, let us respect the sensibility of others.

It is not enough to say that we have an unquestioned right to issue letters of marque. Rights, when exercised out of season or imprudently, may be changed into wrongs. It was a maxim of ancient jurisprudence, Sic utere tua, ut alienum non lædas, and I think that this maxim, at least in spirit, is applicable to the present occasion. Our right may be clear; but, if its exercise would injure or annoy others, especially without corresponding advantage to ourselves, we shall do well, if we forbear to exercise it.

Thus far I have considered that part of the bill which provides for privateers against the Rebels; but I cannot quit this branch of the question without calling attention again to the scenes that must ensue, if these privateers are let loose. Picture to yourselves the ocean traversed by licensed rovers seeking prey. The Dutch admiral carried a broom at his mast-head as the boastful sign that he swept the seas. The privateer might carry a scourge. Wherever a sail appears, there is chase; the signal gun is fired, and the merchantman submits to visitation and search. Delay is the least of the consequences. Contention, irritation, humiliation ensue, all calculated to engender ill-feeling, which, beginning with individuals, may embrace country and government. I do not say that such an act, even harshly exercised upon neutral commerce, will bring upon us further war, but I would not try the experiment. The speaking-trumpet of a reckless privateer may contribute to[Pg 284] that discord which is the herald of bloodshed itself.

But, Sir, even if you think it worth while to authorize privateers against the Rebels, to cruise against an imaginary commerce, in quest of an imaginary booty, why not stop there? The measure would not be wise, but it might find seeming apology in the present condition of affairs. The bill of the Committee, and also the amendment of the Senator from Iowa, go much further. It is a general bill, authorizing privateers, not merely against the Rebels, but also against foreign nations in future wars, in the discretion of the President. I quote from the bill of the Committee.

Mark the language, “whenever war exists.” I am not ready to say that these words give the President power to declare the existence of war without the intervention of Congress; but I object to the whole clause on account of its generality. And the substitute of the Senator is obnoxious to the same objection. It says:—

This is a general provision, by which the President is authorized to issue letters of marque, not only to aid in putting down the present Rebellion, but also “in all domestic and foreign wars” which may occur hereafter.[Pg 285] I will not say that any such general, prospective provision, although clearly a departure from that traditional policy which the Senator professes to uphold, is positively unconstitutional; but I am sure that it is contrary to the spirit of the Constitution. To me it seems obvious that the Constitution contemplated the special action of Congress on every occasion for the exercise of this power. This was the safeguard against excess or blunder. Such a power was not to be exercised hastily or inconsiderately, but with full and special consideration. It was not to be exercised all at once and in the lump, but as the exigency occurred in individual cases. And Congress, which was empowered to declare war, had the further power, in the same way and with similar solemnities, to give the war this additional feature, if, under the circumstances, it thought best. This great power was not handed over indefinitely to the President, to be wielded at will, but was lodged in Congress. If Congress is not insensible to the spirit of the Constitution, it will never hand it over to the President, as now proposed.

Even in England, where the power to declare war is lodged with the sovereign in council, it seems that in point of fact letters of marque are regulated by special Acts of Parliament on the breaking out of war. This is stated by Chitty, in his work on the Prerogatives of the Crown.

Obviously recognizing this principle, which is so entirely consistent with reason and that wisdom which is the strength of nations, our country thus far in its history has declined to pass any general prospective law authorizing letters of marque. This is our traditional policy, which the Senator seeks to overturn. The statute authorizing letters of marque in 1812 expired with the war. It was not general or prospective. Is there any reason now that we should depart from this policy? Is there any good to be accomplished by such departure? It is strange that at this moment, when other nations renounce privateering, we should rush forward and ostentatiously declare it part of our political system,—I might almost say, an element of our political life. Pray, if this declaration were of such importance, why has it been so long postponed? Generations, jealous guardians of all our national rights, have passed away, leaving the statute-book without any such voice. It did not occur to them that the national defence or the national honor required it. And yet the discovery is suddenly made that this is a mistake, or that our predecessors were all wrong, especially in not announcing to the world that in the event of war privateers will be let loose.

As there is no foreign war in which we are now engaged, this provision is prospective and minatory, so far as foreign nations are concerned. It is notice to avoid any question with us, under penalty of depredations by privateers. If not a menace, it is very like one. I do not know that it will be so interpreted by those[Pg 287] to whom it is addressed, but I am sure that it can do no good; and just in proportion as it is so interpreted, it will be worse than useless. A menace is as ill-timed between nations as between individuals.

I do not dwell now on the irrational character of privateering, but I seize the occasion to declare my deliberate judgment that our country may yet find, to its cost, that this cherished weapon is a two-edged sword. A nation with an extensive commerce cannot afford to invite the hazard of its employment. Thus, in the event of war with a power inferior to ourselves in commerce, as Portugal, or Spain, or France, the increased rates of insurance would make it impossible for us to keep our ships afloat, while all our profits on the ocean would be appropriated by those nations happily still at peace. The very superiority of our commerce would be a disadvantage, inasmuch as we should be more exposed. For instance, in a war with Portugal or Spain we should stake gold against copper, and even in a war with France it would be gold against silver. If this prospect pleases, then Senators will vote for a measure which may be called Privateering made easy; or, how to do it without Congress.

Nor do I discuss the immorality and brutality too naturally engendered by a system whose inspiration is booty. Here I content myself with the words of General Halleck, in his excellent summary of International Law.

There is another American authority I ought not to omit. I refer to Chancellor Kent, who in his much quoted Commentaries has recorded his judgment. If I chose to cross the ocean, I might add indefinitely to this testimony; but I confine myself to our own countrymen, so that you shall see privateering as judged by Americans. Here are the words of the great jurist.

It is well known that these were the sentiments of the founders of our Republic, which, in its early treaty with Prussia, took the lead in denouncing the whole system of privateering. Is it not better to follow this example, until positive, irresistible exigencies of war compel us to depart from it? If we cannot do this, let us at least keep from affording new facilities to an offensive system. What our country denounced in other days should not now be proclaimed and glorified.

Mr. Sumner. By the treaty of 1785.

Mr. Sumner. The Prussian treaty.

Mr. Sumner. It was a stipulation to the effect, that, in any war between the United States and Prussia, neither party should commission privateers to depredate on the commerce of the other.

[Pg 290]

Mr. Sumner. I wish the treaty had been such as to afford a stronger example; but it must be accepted as the judgment of our country at that time; and to my mind it is a practical denunciation of privateering, worthy of the illustrious character by whom it was negotiated, who was none other than Benjamin Franklin. But this treaty is not all. I do not forget how Jefferson wrote to France, “The benevolence of this proposition is worthy of the nation from which it comes, and our sentiments on it have been declared in the treaty to which you are pleased to refer, as well as in some others which have been proposed,”[143] thus testifying to our treaty and to his own sentiments; and, at a later day, that John Quincy Adams, in his instructions to Mr. Rush, of July 28, 1823, directing him to negotiate a treaty with Great Britain for the abolition of privateering, declared that this was “an object which has long been dear to the hearts and ardent in the aspirations of the benevolent and the wise, an object essentially congenial to the true spirit of Christianity”; and he adopted the earlier declaration of Franklin, “It is time, it is high time, for the sake of humanity, that a stop were put to this enormity.”[144]

Mr. Sumner. The Senator will pardon me, if I say that I know no better denunciation than that of a treaty negotiated by Franklin. A treaty is the act of the nation, and testifies to the sentiments of the nation. If the same denunciation did not find place in more important treaties, it is reasonable to suppose that it was not acceptable to the other contracting parties. It is an historic fact, that Franklin sought to embody this denunciation in the very treaty by which our independence was acknowledged, and thus to associate it with our national being.[145] Indeed, it was a standing offer from our Government to foreign powers.[146] Unquestionably the Constitution gives Congress the power to issue letters of marque, but the reason is obvious: because privateering was recognized at that time as a proper agency of war. The framers of the Constitution did not divest the government they created of a power which belonged to other governments according to the existing usage of nations. In recognizing this power, they express no opinion upon its character. For that we must go to the treaty, and to the words and efforts of Franklin, Jefferson, and John Quincy Adams, speaking and acting officially for the nation,—all but Franklin subsequent to the Constitution.

And now, Sir, at the risk of repetition, I enumerate my objections to this bill.

[Pg 292]

1. It proposes to cruise against a non-existent commerce, for the sake of a non-existent booty.

2. It accords to private individuals the belligerent right of search, which must be fruitful of trouble in our relations with the great neutral powers.

3. It gives to the President, in his discretion, the power to issue letters of marque in any future wars, without any further authority of Congress, when this power should always wait for the special authority of Congress on the declaration of war.

4. It is in the nature of a menace to foreign nations, and therefore worse than useless.

5. It vitalizes and legalizes a system which civilization always accepted with reluctance, and our own country was one of the earliest and most persistent to denounce.

6. It will give us a bad name in history.

It does all this without accomplishing any substantial good. If it be said that ships are needed for transportation, or for the blockade, or in order to pursue pirates on the sea, then, I repeat, let the Government hire them. The way is easy, and it is also the way of peace. To this end I offer a substitute for the present bill, which will secure to the Government all the aid it can desire, without the disadvantage or shame of a measure which can be justified only by overruling necessity. I will read the substitute.

If[Pg 293] Senators desire a militia of the seas, here it is,—a sea militia, precisely like the land militia, mustered into the service of the United States, under the command of the United States, and receiving rations and pay from the United States, instead of sea-rovers, not mustered into the national service, not under national command, and not receiving rations or pay from the nation, but cruising each for himself, according to his own will, without direction, without concert, simply according to the wild temptation of booty. Such a system on land would be rejected at once. Nobody would call it a militia. Do not sanction it now on the ocean; or, if you are disposed to sanction it, call it not a militia of the seas.

Mr. President,—The question is now presented precisely, whether the Senate will confine this bill in operation to the war in which we are actually engaged for the suppression of the Rebellion, or make it prospective in character, applicable to some war in the unknown future, to some country not named, to some exigency not now understood, and therefore, in its nature, a notice or warning, if not a menace, to all countries.

This is the precise question: Shall the bill be confined to our own time, to this day, to this hour, to something we can see, to what is actually before us; or shall it be extended also to the future, to something we cannot see,[Pg 294] to what is not actually before us, and with regard to which we can have no knowledge, unless we listen to our fears?

If the words are introduced as a menace, then are they out of place and irrational. Suppose any such words in the legislation of Great Britain or France at a moment when they might be interpreted as applicable to us, who can doubt their injurious effect upon public opinion here? A brave and intelligent people will not bend before menace, nor can any such attempt affect a well-considered national policy. All history and reason show that such conduct is more irritating than soothing. Sir, if you are in earnest, as I cannot doubt, to cultivate those relations of peace and good-will with foreign nations which are in themselves a cheap defence, you must avoid all legislation which can be misinterpreted, especially everything which looks like menace.

I cannot pretend to foresee the future. I know not that other wars may not be in store for us, that we may not be called to confront other powers, in alliance, perhaps, with our Rebels, and to make still greater efforts. All this may come; but I pray not. If it does come, then let us meet its duties and responsibilities like Senators; but do not rush forward recklessly, like the bully with his bludgeon, ready to strike wherever there is a head. I do not believe in such legislation; nor do I believe in any legislation providing new facilities for a war, or tending to produce irritation and distrust. Prepared always for the future, I would not challenge it. Preparation and provocation are widely different. Nor would I do anything out of season. There was characteristic wisdom in the remark of the venerable Chief Justice of England, Sir Matthew Hale, when he said[Pg 295] that “we must not jump before we get to the stile.” It seems to me that Senators who are pressing this bill forget this time-honored injunction, and try to make their country take a jump prematurely.

…

You have just listened to the Senator from California [Mr. McDougall], announcing that perhaps before the next meeting of Congress there may be foreign war; and you have not forgotten his elaborate speech only the other day, when he openly challenged war with France. I ask Senators, if, at this critical moment, they are ready to follow him in his effort to carry us in that direction. For myself, I protest against it. I am heart and soul for putting down this Rebellion without playing into the hands of Rebels. Now it must be plain to all that every word calculated to draw or drive any foreign government into alliance with the Rebellion does play into the hands of Rebels. Senators may be willing to distract the attention of the country from our single object, to impair the national force, and help surrender all to the uncertainties and horrors of accumulating war. Let me not enter into their counsels. It is not my habit to shrink from responsibility; personal risks I accept willingly; but I confess anxiety that my country should not rush abroad in quest of new dangers, whose only effect will be to increase the national calamities.

It will be observed, that, by the amendment already adopted, the President alone, without the coöperation of Congress, is empowered to make what are called all needful rules and regulations for the government and conduct of these privateers, and for the adjudication and disposal of prizes and salvages made by them. But formerly it was not so ordered. No such large power was ever before vested in the President. By the statute of June 26, 1812, a system was provided, in seventeen sections, for the government of letters of marque, prizes, and prize goods. These sections relate to the formalities required from persons applying for letters of marque, the bonds to be given, and the sureties, how the captured property shall be forfeited, the distribution of the prize money, the distribution of salvage, how the prize shall be brought in for adjudication, regulations concerning prisoners found on board of prize vessels, instructions for the privateers, bounty for destroying the enemy’s vessels, instructions to the commanding officers of privateers to keep journals, how owners of privateers are punishable for violating the revenue laws of the United States, how offences on board private armed vessels are punishable; also the commissions of collectors and consuls upon prize goods, and the uses to which they shall be applied. Here is a statute, in itself a code, containing provisions exclusively applicable to these important matters, all determined by Congress in advance; but it is now proposed that Congress[Pg 297] shall abdicate, leaving to the President alone this large power.

I call attention to one matter in the statute, namely, “How offences on board private armed vessels shall be punished.” It is enacted, “that all offences committed by any officer or seaman on board any such vessel having letters of marque and reprisal, during the present hostilities against Great Britain, shall be tried and punished in such manner as the like offences are or may be tried and punished, when committed by any person belonging to the public ships of war of the United States.”[147]

I would ask if it is in the power of the President merely by regulation to determine how offences on board private armed vessels shall be tried and punished? I take it that Congress must deal directly with this question. I am sure that it is unwise for Congress to renounce a duty belonging to it obviously under the Constitution, and which in former times it exercised. Senators sometimes complain that great powers are assumed by the President; but, unless I misread this bill, they are about to confer on him powers large, indeed, beyond precedent. There is, in the first place, the power to declare whether, in case of war with a foreign nation, letters of marque shall be issued,—a high prerogative, in times past reserved exclusively to Congress. But, not content with this, they would confer upon him plenary powers, as legislator, with regard to everything to be done by the letter of marque, and with regard, also, to its possible prizes. As once the French monarch exclaimed, “The State, it is I!”—so, when we have conferred these powers, one after another, on the [Pg 298]President, I think he may make a similar exclamation.

The proposition on which a vote is now asked has all that is good in the pending measure, without any of the unquestionable disadvantages. I am unwilling to trespass upon the Senate, and would hope that I am not too earnest; but the question, to my mind, is of no common character.

The Senator who presses this measure seeks to employ private enterprise in all wars, domestic or foreign: I show him how it can be done. He seeks to enlist the private marine of the country in the public service: I show him how it can be done. He seeks to contribute at this moment to the national force: I show him how it can be done. Say not that I am against the employment of private enterprise. Nor say that I would allow our private marine to rot at the wharf. Nor say that I would begrudge anything needed by the national force. To this end the Senate cannot go further than I. All that the Senator would do I would do, but in a way to avoid those embarrassments and difficulties necessarily incident to privateering, and so as to be in harmony with the civilization of our age. Nor shall it be said that I shrink from any of the responsibilities which belong to us with regard to foreign nations; but I desire to say, that among the highest responsibilities which any can recognize is that of doing nothing n[Pg 299]eedlessly which shall add to existing troubles or give the country a new burden.

In conclusion, let me once more remind you that every privateer upon the ocean carries the right of search. Wherever he sails, he is authorized to overhaul neutral ships in search of contraband, or, it may be, to determine if the voyage is to break the blockade. A right so delicate and grave I would reserve to the Government, to be exercised only by national ships. I cannot err, when I insist that it shall be intrusted to those only whose position, experience, and relations with the Government give assurance that it will be exercised with wisest discretion.

If, in order to secure private enterprise and to enlist all its energies, it were necessary to have privateers, then the argument of the other side might be entitled to weight. But all that you desire can be had without any such resort, and without any drawback or disadvantage. Let the Secretary of the Navy hire private ships, wherever he can find them, and put them in commission as national ships, with the rations, pay, officers, and character of national ships. This will be simple and most effective. I am at a loss for any objection to it: I can see none.

I may be mistaken, Sir, but I speak in frankness. To my mind the question between the two propositions is too clear for argument. On one side it is irrational, barbarous, and fruitless, except of trouble. On the other side you have practical strength, and the best assurance of that prudence which is the safeguard of peace. Between the two let the Senate choose.

[Pg 300]

[Pg 301]

APPOINTMENTS TO THE NAVAL ACADEMY.

Remarks in the Senate, on the Bill to regulate the Appointment of Midshipmen to the Naval Academy, February 16, 1863.

Because these appointments are conferred upon youth, or, if you please, upon boys, it seems to me that they are too often regarded as of little moment. In reality, they are among the most important appointments under Government. They are appointments for life; since, beginning with the youth or boy, they end only at death, it may be as captain, commodore, or admiral, supported always at the expense of the country, and with increasing emoluments corresponding to increasing rank.

Therefore do I think that the Government cannot be too careful in securing the best youths, and I welcome cordially the proposition of the Senator from Rhode Island. I think it entirely practicable, and also most important. I hope the Senate will adopt it. I cannot doubt that such places should be given only to the mos[Pg 302]t worthy, discarding personal or political favoritism; but there must be a rule by which to ascertain the most worthy.

[Pg 303]

EXEMPTION OF CLERGYMEN FROM MILITARY CONSCRIPTION.

Remarks on the Conscription Law, February 16, 1863.

MR. PRESIDENT,—I would not have this proposition treated with levity. I do not say that it has been. Suffice it for me that I make it in sincerity, because I think the exception worthy of place in a permanent statute regulating the military system of our country.

I shall not be led into debate, but you will let me declare my conviction that the proper duty of the clergyman, if he joins the army, is as chaplain, ministering to the sick, the wounded, the dying, and teaching the living how to die. At the same time, I can well understand that there may be occasions when another service will be required, or when an irresistible impulse may[Pg 304] change the chaplain into the soldier.

An eminent writer of our age, the late Lord Macaulay, has said positively that a clergyman should never fight. The motion which I make has no such extent. It simply proposes that the law shall not require him to fight.

In former days bishops have worn coats of mail and led embattled forces, and there are many instances where the chaplain has assumed all the duties of the soldier.

At the famous Battle of Fontenoy, where the French, under Marshal Saxe, prevailed over the united armies of England, Austria, and Holland, there was a British chaplain, with a name subsequently historic, who by military service acquired the title of “The Fighting Chaplain of Fontenoy.” This was the renowned Edinburgh professor, Adam Ferguson, author of the “History of the Roman Republic.” And only a few days ago I presented a petition for a pension from the widow of Rev. Arthur B. Fuller, chaplain, who fell fighting at Fredericksburg. But these instances are exceptional. Legislation cannot be founded on exceptions.

The Senate is engaged in maturing a permanent law,—not merely for a year, not only for the present Rebellion, not for any exigency of the day, but an enduring statute,—and as such it will be a record of the sentiments and the civilization of our time. But I am not disposed to present this question on any ground of sentiment, though such an appeal would be difficult to answer.

Time is pr[Pg 305]ecious, and I content myself with another appeal,—I mean to practical experience. I think I do not err, when I say, that, in the history of the Christian world, you will not find a single evidence of a country where clergymen have been compelled to serve as soldiers,—at least I do not recall such instance,—while the most military country of modern times has refused to sanction the compulsion. I have before me the well-considered military statute of France, where everything was matured with the greatest care and consideration, and so as to secure the largest amount of service. No exemption was recognized, except after conscientious debate and for sufficient reason. Therefore this statute is testimony of the highest character. But here I find exemption, not only of the clergy, including all denominations recognized by the State, but also of students of divinity preparing to enter the ministry. If not absolutely indifferent to practical experience, the example of a military people like the French, especially in exemptions from conscription, cannot be neglected. I doubt if we shall lose by following it.

I do not understand that our clergy throughout the United States are rich. In some of the larger towns they may be comparatively so, but in the country such is not the case. Goldsmith’s village preacher, “passing rich with forty pounds a year,”—that is, about two hundred dollars,—was not unlike large numbers of the clergy among us. Now, Sir, to compel persons living on such a small allowance to pay two hundred and fifty dolla[Pg 306]rs for a substitute is really asking too much. I think it unreasonable; and I think my colleague, who is pressing this bill with so much energy, would adapt himself better to the sentiment of the country and of civilization, if he admitted this natural and humane exemption into his list.

[Pg 307]

PROTEST AGAINST FOREIGN INTERVENTION, AND DECLARATION OF NATIONAL PURPOSE.

Concurrent Resolutions of Congress, reported in the Senate February 28, 1863.

Whereas it appears from the diplomatic correspondence submitted to Congress, that a proposition, friendly in form, looking to pacification through foreign mediation, has been made to the United States by the Emperor of the French, and promptly declined by the President; and whereas the idea of mediation or intervention in some shape may be regarded by foreign governments as practicable, and such governments, through this misunderstanding, may be led to proceedings tending to embarrass the friendly relations which now exist between them and the United States; and whereas, in order to remove for the future all chance of misunderstanding on this subject, and to secure for the United States the full enjoyment of that freedom from foreign interference which is one of the highest rights of independent states, it seems fit that Congress should manifest its convictions thereon: Therefore—

Resolved (the House of Representatives concurring), That, while in times past the United States have sought and accepted the friendly mediation or arbitration of foreign powers for the pacific adjustment of international questions, where the United States were party of the one part and some other sovereign power party of the other part; and while they are not disposed to misconstrue the natural and humane desire of foreign powers to aid in arresting domestic troubles, which, widening in influence, have afflicted other countries, especially in view of the circumstance, deeply regretted by the American people, that the Rebel blow aimed at the national life has fallen heavily upon the laboring population of Europe; yet, notwithstanding these things,[Pg 309] Congress cannot hesitate to regard every proposition of foreign interference so far unreasonable and inadmissible, that its only explanation can be found in a misunderstanding of the true state of the question, and of the real character of the war in which the Republic is engaged.

Resolved, That the United States are grappling with an unprovoked and wicked Rebellion, which is seeking the destruction of the Republic, that it may build a new power, whose corner-stone, according to the confession of its chiefs, shall be Slavery; that for the suppression of this Rebellion, thus saving the Republic and preventing the establishment of such a power, the National Government is employing armies and fleets, in full faith that the purposes of conspirators and rebels will be crushed; that, while engaged in this struggle, on which so much depends, any proposition from a foreign power, whatever form it take, having for object the arrest of these efforts, is, just in proportion to its influence, an encouragement to the Rebellion, and to its declared pretensions, and on this account is calculated to prolong and embitter the conflict, to cause increased expenditure of blood and treasure, and to postpone the much desired day of peace; that, with these convictions, and not doubting that every such proposition, although made with good intent, is injurious to the national interests, Congress will be obliged to look upon any further attempt in the same direction as an unfriendly act, which it earnestly deprecates, to the end that nothing may occur abroad to strengthen the Rebellion, or to weaken those relations of good-will with foreign powers which the United States are happy to cultivate.

[Pg 310]

Resolved, That the Rebellion, from its beginning, and far back even in the conspiracy which preceded its outbreak, was encouraged by hope of support from foreign powers; that its chiefs constantly represented the people of Europe as so far dependent upon regular supplies of the great Southern staple, that, sooner or later, their governments would be constrained to take side with the Rebellion in some effective form, even to the extent of forcible intervention, if the milder form did not prevail; that the Rebellion is now sustained by this hope, which every proposition of foreign interference quickens anew, and that without this life-giving support it must soon yield to the just and paternal authority of the National Government; that, considering these things, which are aggravated by the motive of the resistance thus encouraged, the United States regret that foreign powers have not frankly told the chiefs of the Rebellion that the work in which they are engaged is hateful, and that a new government, such as they seek to found, with Slavery as its acknowledged corner-stone, and with no other declared object of separate existence, is so far shocking to civilization and the moral sense of mankind that it must not expect welcome or recognition in the Commonwealth of Nations.

Resolved, That the United States, confident in the justice of their cause, which is the cause of good government and of human rights everywhere among men, anxious for the speedy restoration of peace, which shall establish tranquillity at home and remove all occasion of complaint abroad, and awaiting with well-assured trust the final suppression of the Rebellion, through which all these things, rescued from present peril, will be secured forever, and the Republic, one and indivisible,[Pg 311] triumphant over its enemies, will continue an example to mankind, hereby announce, as their unalterable purpose, that the war will be vigorously prosecuted, according to the humane principles of Christian nations, until the Rebellion is overcome; and they reverently invoke upon their cause the blessing of Almighty God.

Resolved, That the President be requested to transmit a copy of these resolutions, through the Secretary of State, to the ministers of the United States in foreign countries, that the protest and declaration herein set forth may be communicated by them to the governments near which they reside.

[Pg 313]

INEXPEDIENCY OF LETTERS OF MARQUE.

Letter to a Citizen of New York, March 17, 1863.

[Pg 316]

UNITY FOR THE SAKE OF FREEDOM, AND FREEDOM FOR THE SAKE OF UNITY.

Letter to a Public Meeting at Cleveland, Ohio, May 18, 1863.

[Pg 318]

PACIFIC RAILROAD.

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

[Pg 320]

UNION OF THE MISSISSIPPI AND THE LAKES BY CANAL.

Letter to a Convention at Chicago, May 27, 1863.

[Pg 322]

THE ISSUES OF THE WAR.

Dedication of a New Edition of the Speech on the Barbarism of Slavery,[152] July 4, 1863.

To the Young Men of the United States I dedicate this new Edition of a Speech on the Barbarism of Slavery, in Token of heartfelt Gratitude to them for brave and patriotic Service rendered in the present War for Civilization.

It is now more than three years since I deemed it my duty, in the Senate, to expose the Barbarism of Slavery. This phrase, though common now, was new then. The speech was a reply, strict and logical, to assumptions of Senators, asserting the “divine origin” of Slavery, its “ennobling” character, and that it was the “black marble keystone” of our national arch. Listening to these assumptions, which were of daily recurrence, I felt that they ought to be answered; and considering their effrontery, it seemed to me that they should be answered frankly and openly, by exhibiting Slavery as it really is, without reserve,—careful that I should “nothing extenuate, nor set down aught in malice.” This I did.

In that debate was joined the issue still pending in the Trial by Battle. The inordinate assumptions for Slavery naturally ripened in Rebellion and War. If Slavery were in reality all that was claimed by its representatives, they must have failed in duty, if they did not vindicate and advance it. Not easily could[Pg 323] they see a thing so “divine” and so “ennobling,” constituting the “black marble keystone” of our national arch, discredited by popular vote, even if not yet consigned to sacrifice.

The election of Mr. Lincoln was a judgment against Slavery, and its representatives were aroused.

Meanwhile, for more than a generation, an assumption of Constitutional Law, hardly less baleful, had become rooted side by side with Slavery, so that the two shot up in rank luxuriance together. It was assumed, that, under the Constitution, a State was privileged at any time, in the exercise of its own discretion, to withdraw from the Union. This absurdity found little favor at first, even among the representatives of Slavery. To say that two and two make five could not be more irrational. But custom and constant repetition gradually produced an impression, until, at last, all the maddest for Slavery were the maddest also for this disorganizing ally.

It was then, conjoined with this constitutional assumption, that the assumption for Slavery grew into noxious vigor, so that, at last, when Mr. Lincoln was elected, it broke forth in flagrant war; but the war was declared in the name of State Rights.

Therefore there are two apparent rudiments to this war. One is Slavery, and the other is State Rights. But the latter is only a cover for the former. If Slavery were out of the way, there would be no trouble from State Rights.

The war, then, is for Slavery, and nothing else. It is an insane attempt by arms to vindicate the lordship asserted in debate. With madcap audacity it seeks to install this Barbarism as the truest Civilization. [Pg 324]Slavery is announced as the “corner-stone” of the new edifice. This is enough.

The question is presented between Barbarism and Civilization,—not merely between two different forms of Civilization, but between Barbarism on the one side and Civilization on the other side.

Such is the issue, simply stated. On the one side are women and children at the auction-block, families rudely separated, human flesh lacerated and seamed by the bloody scourge, labor extorted without wages; and all this frightful, many-sided wrong is the declared foundation of a mock Commonwealth. On the other side is the Union of our fathers, with the image of Liberty on its coin and the sentiment of Liberty in its Constitution, now arrayed under a patriotic Government, which insists that no such mock Commonwealth, having such declared foundation, shall be permitted on the national territory, purchased with money and blood, to impair the unity of our jurisdiction, and to insult the moral sense of mankind.

Therefore the battle waged by the Union is for Civilization itself, and it must have aid and God-speed from all not openly for Barbarism. Every one must give his best efforts, and especially the young men to whom I now appeal.

Charles Sumner.

Washington, 4th July, 1863.

[Pg 325]

LET COLORED MEN ENLIST.

Letter to a Convention at Poughkeepsie, New York, July 13, 1863.

FOOTNOTES

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volume 9 (of 20), by Charles Sumner

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