the gentleman from Pennsylvania of the right of conquest, does the successful conquest of eleven States vest the President with sovereign power in the States?"

Mr. Stevens: "I will interrupt the gentleman one moment to correct him. My position was, that the sovereignty was vested in Congress." Mr. Wadsworth: "That was the position I assumed. I said there was no sovereignty in this country but in the sovereign mass, and that they had vested a portion of that in the States, and a portion in the United States, to be exercised by Congress. We seem, then, to agree. I was only inveighing against the presidential plan, and contended that the gentleman himself should lend his weighty support to overthrowing that plan, and all who plant their feet upon the neck of popular sovereignty. By his own principle Congress should undertake to settle the fate of eleven States. I prefer that Congress should do it. Woe worth the day when the American people consent that that portion of the sovereignty which they delegated to the States shall, by the accidents of fortune, or the malice of men, be vested in one man, and he the holder of the sword and the purse. But it is plain to any man who recurs to first principles, that none of these consequences follow. These States are in the Union, and there is no power short of successful revolution that can drive them out of it; and, Mr. Speaker, it is no longer worth while for men of intellect and courage to deny the fact-rebellion, double damned as it is, has been met on our part and confronted with revolution; a revolution of the Federal Government against the States, of the rulers against the people, the sword against privilege, of power against liberty.

during his life" were stricken out, and the words "contrary to the Constitution of the United States" inserted in their place in the resolution. On the 5th of February it passed the House by the following vote:

YEAS-Messrs. Alley, Allison, Ames, Anderson, Arnold, Ashley, John D. Baldwin, Baxter, Beaman, Blow, Boutwell, Boyd, Brandegree, Broomall, Am brose W. Clark, Freeman Clarke, Cobb, Cole, Creswell, Henry Winter Davis, Thomas T. Davis, Dawes, Deming, Donnelly, Driggs, Eliot, Farnsworth, Fenton, Frank, Garfield, Gooch, Grinnell, Higby, Hooper, Hotchkiss, Asahel W. Hubbard, John H. Hubbard, Hulburd, Jenckes, Julian, Kasson, Kelley, Francis W. Kellogg, Orlando Kellogg, Loan, Longyear, Marvin, McBride, McClurg, McIndoe, Samuel F. Miller, Moorhead, Morrill, Daniel Morris, Amos Myers, Leonard Myers, Norton, Charles O'Neill, Orth, Patterson, Perham, Pike, Pomeroy, Alexander H. Scofield, Shannon, Sloan, Smithers, Spalding, SteRice, John H. Rice, Edward H. Rollins, Schenck, vens, Thayer, Tracy, Upson, Van Valkenburgh, Elihu B. Washburne, William B. Washburn, Williams, Wilson, Windom, and Woodbridge-83. NAYS-Messrs. James C. Allen, Ancona, Bailey, James S. Brown, William G. Brown, Chanler, Clay, Augustus C. Baldwin, Jacob B. Blair, Bliss, Brooks, Coffroth, Cox, Cravens, Dawson, Dennison, Eden, Edgerton, Eldridge, Finck, Ganson, Grider, Har ding, Harrington, Benjamin G. Harris, Herrick, Holman, Hutchins, William Johnson, Kalbfleisch, Kernan, King, Knapp, Law, Lazear, Le Blond, Long, Mallory, Marcy, McDowell, McKinney, Middleton, William H. Miller, James R. Morris, Morrison, Nelson, Noble, Odell, John O'Neill, Pendleton, Pruyn, Radford, Samuel J. Randall, William H. Randall, Robinson, Rogers, James S. Rollins, Ross, Scott, John B. Steele, William G. Steele, Strouse, Stuart, Thomas, Voorhees, Wadsworth, Webster, Whaley, Wheeler, Chilton A. White, Joseph W. White, Winfield, Fernando Wood, and Yeaman-74.

The following is the resolution :

"Sir, this is a much larger business, developing by the logic of events, than African slavery. We have got far beyond that. In this very act which you propose to amend, there are the seeds of ruin that stretch beyond all questions of African slavery. You have heard it proclaimed that it rests upon the right of conquest, the obliteration of eleven-therefore of thirty-four-States. What, then, is in truth the real issue before the country? question whether revolution shall go on, or whether the American people shall arrest it. What a spectacle does it present in this the nineteenth century! A revolution of power against the people, of the ruler against the masses, of the Executive and the army, if I am to believe its representatives on this floor, against the people. Shall the Executive of the United States have these vast powers confided to him? Shall we consent that by the conquest of Louisiana and ten other States he has become lord paramount in that country, the sovereignty of this people vested in him to be parceled out to his sworn adherents, and we to furnish our blood and money to support the ten men against the ninety?"

On motion of Mr. Wilson, the words "except

In the Senate on February 17th, Mr. Johnson, of Maryland, from the committee on the judiciary reported back the joint resolution of the House, with a recommendation that it do not pass.

offered the following as an additional section On June 27th Mr. Trumbull, of Illinois, to the bill to establish a Freedman's Bureau:

And be it further enacted, That the last clause of a joint resolution explanatory of an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, approved July 17, 1862, be, and the same is hereby, repealed.

Mr. Trumbull said: "The object of the amend

ment is to repeal the last clause of the joint resolution which was passed after the passage of the confiscation act. The Senator from Indiana may remember that a joint resolution was passed explanatory of the confiscation act, the last clause of which was as follows:

Nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. "My amendment proposes to repeal those words, and leave the confiscation to extend to life or to be absolute as the Constitution may be decided to provide. I propose to leave it where the Constitution has left it."

Mr. McDougall, of California, said: “I desire to ask the Senator from Illinois how he can reconcile his position with the provisions of the Constitution?

Mr. Trumbull replied: "I reconcile it with the Constitution in the same way that I reconcile with it the right to shoot a traitor, to destroy him, to destroy his property and every thing that he has for the purpose of putting down this wicked rebellion. When we are engaged in war we have a right to do whatever is necessary to accomplish the just ends and objects and purposes for which the war is waged, and in order to put down this rebellion we may take the lives of men, their property, and every thing else."

Mr. McDougall again said: “Then I understand that although the Senator has often taken the oath to support the Constitution of the United States and the laws made under it, and although he took that oath upon entering his present office, and although his right to his present place in the Senate is dependent upon that oath, nevertheless he thinks himself justified in trampling upon a plain provision of the Constitution."

Mr. Trumbull again replied: "I say no such thing. I say it is as constitutional to take the rebel's property as his life; and does the Senator from California sit there and pretend that we may not take the life of the rebel without going to a court? What sort of a war would that be which should be prosecuted by jury trials and constables, when your armies are opposing each other, and when hundreds of thousands of men are arrayed against the Government? I am not to be put in any such position as that of advocating an unconstitutional measure. It is clearly and palpably constitutional, and as clearly, and palpably right, in my opinion, as it is to exert the power of this Government in any other way to suppress this wicked rebellion."

Mr. McDougall: Mr. President, the provision of the Constitution to which I have called the attention of the Senate was adopted by men who were just out of the struggles of the Revolution, where for a time they occupied the position of rebels against English authority, subject to the laws of attainder and confiscation as they existed under English rule. With the lessons learned in the struggles of the Rev

olution, they said then for themselves and for the persons that were to come after them, that the law confiscating the property of persons in arms, guilty of treason, if you please, or rebellion, is an oppressive and unjust law. In affirming this opinion they but repeated the expressed judgment of the great teachers of moral, social, and governmental ethics. They laid down the constitutional rule of law with exact reference to questions such as the one now pending, and made it part of the fundamental law of the Republic. It is so plain that he who runs may read it. It cannot be misunderstood; it cannot be misconstrued."

Mr. Carlile, of Virginia, followed, saying: "I confess, Mr. President, that I was not prepared for the proposition submitted by the Senator from Illinois, because, if my recollection is not at fault, that Senator, in his discussion of this subject when it was before this body at the last Congress, maintained the ground that real estate could not be confiscated beyond the life of the owner. That is my recollection of the discussion of this subject when it was before the Senate. The Senator will correct me if I am wrong.'

Mr. Trumbull, in reply, said: "The Senator from Virginia is wrong so far as the confiscation of property in the rebel districts of country where there are no courts, is concerned. I always maintained that the clause in the Constitution limiting the effect of a conviction for treason, had nothing in the world to do with the waging of war in a district of country governed by the military power, and where there were no civil tribunals. Í agree now, that if in any of the loyal States an individual were arrested and tried for treason, convicted, and hung, that would be a sufficient punishment; and his real estate, if he had any, might go to his descendants. But I always insisted that the provision of the Constitution applied only to trials in courts of law, and had nothing to do with the prosecution of war where there were no courts of law, and nothing to do with the estates of persons who were not brought to trial in courts of law and could not be. I always insisted that a traitor who es caped from the country, like Slidell or Mason, and left real estate behind, could not therefore escape the punishment of the confiscation of his property because he was beyond our reach to be tried for treason."

Mr. Carlile: "Mr. President, I should like to know from the Senator where he gets his authority to confiscate the property of traitors or anybody else, unless he derives it from the Constitution."

Mr. Trumbull: "I do get it from the Constitution."

Mr. Carlile: "The proposition is now by law, not by armies, not by virtue of the military power of this Government, but under the forms of law to deprive not the traitor, not the rebel, of his property, because the Constitution gives you the power to do that but it is to

take from the innocent child that he may have left, or from the injured wife of his bosom, the means of support which the framers of the Constitution designed should be left to them. They were too familiar with proceedings of this sort; they themselves had just before the formation of that instrument been rebels; success made them patriots. It is only from the Constitution that the Senate derives any power on this subject. The Senate can in conjunction with the other House declare war, and they can make rules and regulations for the Government of the land and naval forces; but they have no power through the forms of law and by virtue of their legislative character, to transcend the limits of the Constitution, which expressly forbids the confiscation of the estate of any one guilty of treason beyond the traitor's life. There is no exception in favor of the suspension of that provision of the Constitution in time of war. No department of this Government is ever relieved from its obligations to maintain the Constitution, which it solemnly swears to do before it enters on the discharge of its duties. The Executive is as much governed by the Constitution in time of war as he is in time of peace. So is the Congress of the United States. The oath that members of Congress take to support the Constitution, has in it no exception that it shall not be obligatory in time of war; but, wisely looking forward to what those men knew must occur in the history of the Government that they were forming, they declared in the instrument itself the powers that this Government should exercise in war as well as in peace. "The Senator speaks of his right under the Constitution to shoot down a rebel. Sir, I deny him such right. He cannot go out in the street to-day and shoot down a rebel without being guilty of murder. Not in his capacity of Senator is he justified in shooting down even a rebel. Were he in the armies of the country, then it would become his duty to do so.

"This amendment proposes to repeal a part of a resolution which Congress adopted in order to obtain the signature of the President to the confiscation bill. It was made known to Congress, if I am not mistaken in the history of that resolution, and if I am the Senator will correct me-it was made known to Congress that that bill could not receive the approval of the President, and could only become a law by the passage of this very joint resolution, a portion of which is now proposed to be repealed, and that portion, too, which the President required should be adopted before he would approve it.

Now, sir, what is the position in which you will place your Executive? Well may the Senator from Massachusetts, who feels a deep interest in the passage of this scheme, ask the Senator from Illinois not to load his bill with this proposition. Unless the President has reread his constitutional duties, unless he understands now differently his constitutional VOL. IV.-19 A

oath from what he did when he affixed his signature to that resolution, he never can sign this bill with this proposition in it. There might have been some excuse for such a proposition at that time. Then it was urged on Congress as an auxiliary in the suppression of the rebellion. Now it cannot be urged for any such purpose.

"I do not intend to prolong this discussion; I regret that I have felt it my duty to say what I have said; but my object was to call the attention of Senators to it, for I cannot believe, until I see it by a vote, that the Senate has changed its position within the last two years, and that gentlemen read their constitutional powers now differently than they did two years ago."

Mr. Cowan, of Pennsylvania, opposed the resolution, saying: "The Constitution provides that 'No attainder of treason shall work corruption of blood or forfeiture [of estate], except during the life of the person attainted.' The true question is, whether by any law we can make here, the estates of traitors can be forfeited absolutely and for the fee. Because to repeal the joint resolution of 17th July, 1862, would give the act it qualifies that operation; if it did not, the repeal would be useless and inoperative.

"Now I propose to show that from the very nature and necessity of the matter, Congress cannot enact laws of war; to attempt it would be an absurdity. Under ordinary circumstances, it would be enough to say to reasonable men, that one nation or one belligerent could not make laws of war, because the laws of war must bind both belligerents; and it is manifestly absurd to suppose that if one belligerent were to lay down the law to govern the struggle, the other would be bound to obey it. It could only be the law when both agreed to be bound by it; if they did not, then it would be mere idle proclamation, or, as lawyers say, brutum fulmen.

"Again, even if a foreign nation or nations were to join with the United States in establishing new rules or laws to be added to the international code, Congress would have nothing whatever to do with the matter.

"This can be illustrated in a very simple manner. I have said that the Constitution adopted the international code ready made, by conferring power upon Congress to affix a proper punishment for its violation in certain cases, such as piracy, &c., to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water (that is, what disposition shall be made of prizes of war, and not what shall be prize of war as has been argued). Here the power of Congress ends and the power of the President and Senate begins. The President appoints, and the Senate confirms ambassadors to foreign courts; they also make treaties; and lastly, the courts decide all cases arising under the laws of nations, especially prize cases.

"Now, it is well known that the great Powers of Europe, in congress assembled in Paris, in 1856, proposed certain ameliorations in the laws of nations regulating war, as follows: first, to abolish privateering; second, enemy cargo (except contraband of war) to be covered by neutral flags; third, neutral goods (except contraband of war) not seizable under enemy flags.

"The United States were invited to agree to those changes, and the Federal Government was willing to do so, provided another change was made, namely, that private property of enemies should not be prize of war at sea any more than on land.'

"Now, allow me to ask, suppose our Government had agreed, by what agency under our Constitution could that result have been brought about? Surely no one will say it would be Congress; but every one must know that the President, through his ministers abroad, would have entered into treaty with the Powers proposing; that we would have been called on to ratify it in this Senate; and that, so far from the House of Representatives having any thing to do with it, we would have been bound not to let them know any thing about it until our action had been taken.

"Here we see, beyond dispute, that to the President and the Senate is intrusted the power of proposing and agreeing to alterations and amendments to the laws of nations.

"Now, I wish to say further in this connection, that in pursuance of the doctrine I have advanced, we have established courts to decide cases arising under the laws of nations, and that in deciding those cases an act of Congress would have no binding force whatever, because if it contravened the well-settled principles of public law, the court would be bound to disregard it.""

"I do not know whether the honorable Senator from Illinois is aware of it or not, but I assert here that he is trying to make a law to seize the real estate of belligerents as such, to condemn and confiscate it as prize of war, and to do all that I call adding a new provision to the laws of nations and of war. If you take an enemy's private ship at sea it may be condemned as prize by the laws of nations, but if you take an enemy's private plantation, it cannot be forfeited as prize under those laws. They are defective in that respect; indeed they say expressly it cannot be done, and that the title is the same after the conquest as before. This is the difficulty the honorable Senator is trying to remove, and in doing so if he succeeds he must repeal (or violate) the laws of nations and enact a new and different rule here. He says himself that he claims the right to do this on the same grounds precisely that he has a right to shoot a rebel on the field of battle; that is, that it is a war right. Now war rights are regulated by the laws of war, which, as he has well said, are the 'laws of nations in reference to war.' The truth is he is trying to do that

which is forbidden by the laws of war and by the Constitution also if it were attempted as municipal law. Nothing can be clearer than this, and he may just as well submit to these limitations first as last. Let him read the latter if he wants to know what he may rightly inflict upon rebels as citizens for violating their allegiance, and let him read the laws of war for what he may do to them as public enemies. At present I am for confining myself to these latter strictly. I think we are bound to make war according to the rules they furnish us, and I would as soon think of transcending them or violating them as I would think of trampling a statute under foot. The crime is the same in both cases, for both are laws of the land.

"The true question is, can we make prize of war of the real and personal estates of those who have been engaged in this rebellion, and can we forfeit their real estates absolutely? We have seen that we cannot do this by due process of municipal law; can we do it by virtue of the laws of war as settled by civilized and Christian nations? I answer that we cannot; that there is to-day no conflict of authority whatever on the question; there is not a book that treats of it or a chapter devoted to it which does not lay down the rule that we cannot-all for the best reason in the world, namely, that we can make war far more successfully by not being able to exercise any such

power.

"Mr. President, I have sometimes doubted whether we could be serious when we expect any good results to come from such measures as this, which not only exposes us to ridicule but does harm to our cause. What was wanting in this crisis of our history with new criminal legislation, when the code was complete before? We had a statute punishing treason with death, a just and proper punishment, one well according with the magnitude of the crime as well as with the majesty of the law which inflicted it. For all those who conspired the dismemberment of the Republic, who used the means and perverted the State governments to bring it, this is the fitting punishment, because it is the highest, and falls upon the guilty alone, where it ought. I would have had no additional laws; in war they are not needed. I would have contemplated no reforms within the area of the rebellion; they cannot be made at such a time. What we wanted was men and money; these granted, the true function of Congress was over until peace was restored and all parties again represented. But above all things I would not have played into the hands of the enemy; I would not have done that which the rebels most desired to have done, because I have no doubt that this and all kindred schemes have been the very ones which they most wanted us to adopt. I do not know that Jefferson Davis ever prays; but if he does, I have no doubt he would pray-” Mr. Wade: "Pray for just such an advocate."

Mr. Cowan: "Pray for just such a statesman as the honorable Senator from Ohio, the most effective ally he ever had or could have.

"He would have prayed for measures on our part which were obnoxious to all people of the South, loyal and disloyal, Union and disunion. He would have prayed that we should outrage all their common prejudices and cherished beliefs; that we should do these things by giving ourselves over to the guidance of men whom it was part of their religion to hate; to hate personally and by name, with an intensity rarely witnessed in the world before. He would have prayed for confiscation general and indiscriminate; threatening as well the victims of the usurpation as the usurpers themselves; as well those we were bound to rescue as those we were bound to punish. Fervently he would have prayed for our emancipation laws and proclamations as means to fire the southern heart more potent than all others; they would rally the angry population to his standard of revolt as if each had a personal quarrel. He would then have a united South; while as the result of the same measures a distracted and divided North.

"That is the way I think he would have prayed and would pray now. Is any man so stupid as not to know that the great desire on the part of every rebel is to embark in revolt with him the whole people of the disaffected districts? Is not and has not that been considered enough to insure success to him? And where does history show the failure of any united people, numbering five or six millions, when they engaged in revolution? Nowhere; there is no such case.

"What did we do to bring this unity about in the South? We forgot our first resolve in July, 1861, to restore the Union alone, and we went further and gave out that we would also abolish slavery. Now that was just exactly the point upon which all southern men were most tender, and at which they were most prone to be alarmed and offended. That was of all things the one best calculated to make them of one mind against us; there was no other measure, indeed, which could have lost to the Union cause so many of them. It is not a question, either, as to whether they were right or wrong-that was matter for their consideration, not ours-for if we were so desirous of a union with them we ought not to have expected them to give up their most cherished institutions in order to effect it. Unions are made by people taking one another as they are, and I think it has never yet occurred to any man who was anxious to form a partnership with another that he should first attempt to force that other either to change his religion or his politics. Is not the answer obvious; would not the other say to him, 'If you do not like my principles why do you wish to be partner with me? Have I not as good a right to ask you to change yours as a condition precedent?'

"So it was with the southern people; they were all in favor of slavery, but one-half of them were still for union with us as before, because they did not believe we were abolitionists. The other half were in open rebellion because they did believe it. Now, can any one conceive of greater folly on our part than that we should destroy the faith of our friends and verify that of our enemies? Could not anybody have foretold we would have lost onehalf by that, and then we would have no one left to form a union with? We drove that half over to the rebels and thereby increased their strength a thousand-fold.

"Is not all this history now? The great fact is staring us full in the face to-day; we are contending with a united people desperately in earnest to resist us. Our most powerful armies most skilfully led have heretofore failed to conquer them, and I think will fail as long as we pursue this fatal policy.

"Now, Mr. President, I appeal to Senators whether it is not time to pause and inquire whether that policy which has certainly united the southern people in their cause and which quite as certainly has divided the northern people in their support of ours, ought not to be abandoned at once. Why persist in it longer? Can we do nothing to retrieve our fortune by retracing our steps? Can we not divide the rebels and unite the loyal men of the loyal States by going back to the single idea of war for the Union; or is it now too late? Have we lost irrevocably our hold on the affections of our countrymen who were for the Union in 1861-even in 1862? Is there no way by which we could satisfy them that we yet mean union, and not conquest and subjugation? And what a difference in the meaning of those two phrases! The first offers the hand of a brother, the second threatens the yoke of a master. Or are we obliged now to exchange the hopes we had of southern Union men for that other and miserable hope in the negro? Is he all that is left of loyalty in the South, and the only ally we can rely upon to aid us in restoring the Union? Ye gods! what have we come to at last? Either to yield to an unholy rebellion, to dismember an empire, or to go into national companionship with the negro. Is this the alternative to which our madness has brought

us?

"Mr. President, these things are enough to drive a sane man mad. After all our pretension, all our boasting, how absurd will we appear in the eyes of all other nations if we fail in this struggle? Especially as almost all the measures about which we have occupied ourselves for the last three years have been based upon our success already assumed as a fixed fact. We provided for confiscating the estates of rebels before we got possession; we emancipated slaves before we got them from their masters, and we provided for the disposition of conquests we have not made; we have disposed of the skin of the bear and the bear itself is yet