E 458 
 .2 
 
 .T46 
 Copy 1 
 
 REMARKS 
 
 OK 
 
 THE HON. B. F. THOMAS, 
 
 OF MASSACHUSETTS. 
 
 THE RELATION OF THE "SECEDED STATES" (SO CALLED) TO 
 
 THE UNION, AND THE CONFISCATION OF PROPERTY 
 
 AND EMANCIPATION OF SLAVES IN 
 
 SUCH STATES, 
 
 IN THE HOUSE OF REPRESENTATIVES, APRIL 10, 186-2. 
 
 BOSTON: 
 
 PRINTED BY JOHN WILSON AND SOX. 
 22, School Street. 
 
 1862. 
 
REMARKS 
 
 THE HON. B/ ¥f THOMAS, 
 
 OF MASSACHUSETTS, 
 
 no 
 
 THE RELATION OF THE "SECEDED STATES" (SO CALLED) TO 
 THE UNION, AND THE CONFISCATION OF PROPEirrV 
 X^ AND EMANCIPATION OF SLAVES IN 
 
 ■^ ^^ ' SUCH STATES, 
 
 IN THE HOUSE OF REPRESENTATIVES, APRIL 10, 18G2. 
 
 r,()S1'()X: 
 
 PRINTED BY JOHN WILSON AND SON, 
 22, School Street. 
 
 1SG2. 
 
A 
 
REMARKS. 
 
 The Hou!?e being in the Committee of the Whole on the State of 
 the Union, Mr. Thomas said, — 
 
 Mr. Chairman, — I avail myself of the indulgence of 
 the Committee to make some suggestions upon subjects 
 now attracting the attention of Congress and of the 
 country, — the relation of the " seceded States " (so 
 called) to the Union, the confiscation of property, and 
 the emancipation of slaves, in such States. Sensible 
 how deeply the interests of the country are involved in 
 their right decision, I can only say, I have given to 
 them careful and patient consideration, with an earnest 
 hope and desire to learn what my duty is, and faithfully 
 and firmly to discharge it. 
 
 The questions are novel as they are momentous. 
 In the discussion of them, little aid can be derived from 
 our own precedents, from the history of other nations, 
 or from writers on constitutional and international law. 
 The solution of the difficult problems of right and duty 
 involved must be found in the careful study of the prin- 
 ciples of the Constitution, and the just and logical ap- 
 j)lication of them to this new condition of things. 
 
The peculiar feature of our civil polity is, that we 
 live under written constitutions, defining and limiting the 
 powers of Government, and securing the rights of the in- 
 dividual subject. Our political theory is, that the peo- 
 ple retain the sovereignty, and that the Government 
 has such powers only as the people, by the organic law, 
 have conferred upon it. Doubtless these inflexible 
 rules sometimes operate as a restraint upon measures, 
 which, for the time being, seem to be desirable. The 
 compensation is, that our experience has shown, that, 
 as a general rule and in the long-run, the restraint is 
 necessary and wholesome. 
 
 It is, I readily admit, by no narrow and rigid con- 
 struction of the words of the Constitution that the 
 powers and duties of Congress on these subjects are to 
 be ascertained. Every provision must be fairly con- 
 strued in view of the great objects the Constitution was 
 ordained to effect, and with the full recognition of the 
 powers resulting from clear implication as well as ex- 
 press grant. Designed as the bond of perpetual union 
 and as the framework of permanent government, we 
 should be very slow to conclude that it lacked any of 
 the necessary powers for self-defence and self-preserva- 
 tion. 
 
 15ut recognizing the profound wisdom and foresight 
 of the Constitution, and its adaptation to all the exi- 
 gencies of war and peace, when a measure is proposed 
 in apparent conflict with its provisions, we may well 
 pause to inquire, whether, after all, the measure is ne- 
 cessary ; and whether we may not bend to the Constitu- 
 tion, rather than that the Constitution should give way 
 to us. When we make necessity our lawgiver, we are 
 very ready to believe the necessity exists. 
 
Xor are we to forget that the Constitution is a bill of 
 rights as well as a frame of government ; that among 
 the most precious portions of the instrument are the 
 first ten amendments ; that it is doubtful whether the 
 ])eople of the United States could have been induced to 
 adopt the Constitution, except upon the assurance of 
 the adoption of these a»mendments, which are our Magna 
 Charta, embodying in the organic law the securities of 
 life, liberty, and estate, which, to the Anglo-Saxon 
 mind, are the seed and the fruit of free government. 
 Some portions of our history have led to the conclusion, 
 that the existence of these amendments may, in the 
 confusion of the times, have been overlooked. 
 
 In my humble judgment, JMr. Chairman, there has 
 been, and is now, but one issue before the country ; and 
 that is, whether the Constitution of the United States 
 shall be the supreme law of the land. That Constitu- 
 tion was formed by the people of the United States. It 
 acts, not upon the States, nor, through the States, upon 
 us as citizens of the several States, but directly upon us 
 as citizens of the United States ; claiming, on the one 
 hand, our allegiance, and giving to us, on the other, its 
 protection. It is not a compact between the States, or 
 the peoples of the several States : it is itself a frame 
 of government ordained and established by the people of 
 the United States. 
 
 The sphere of the Government so established is indeed 
 limited ; but within that sphere its power is supreme. 
 It is a Government of delegated powers ; and the powers 
 not delegated are reserved either to the States or to the 
 people (Amendments, art. 10). 
 
 The powers and functions granted to the National 
 Government bv the Constitution arc embraced in three 
 
6 
 
 general classes, — those concerning the relations of the 
 United States to foreign nations ; those concerning the 
 relations between the States and their citizens respec- 
 tively ; and certain powers, which, though belonging to 
 the home -department of Government, to be useful and 
 effective, must be general and uniform in their opera- 
 tion throughout the country. A very large proportion 
 of the ordinary and necessary powers and functions of 
 Government is left in the States. The powers of the 
 National Government do not extend to or include the 
 domestic institutions or internal police of the States. 
 The separation and distinction between the respective 
 spheres of the State and National Governments is an 
 essential characteristic of our system, and is as old as 
 the idea of Union itself. No Union was suggested, 
 no project of one for a moment entertained, on any 
 other basis. The Colonics, in authorizing their dele- 
 gates to assent to a separation from Great Britain, and 
 to form a Union for the general defence, expressly 
 restricted them from consenting to any articles of union 
 which should take from the Colonies the power over 
 their internal police and domestic institutions. The 
 resolutions of the Colonies of New Jersey, ]Maryland, 
 and Rhode Island, may be cited in illustration. 
 
 The resolution of the Provincial Congress of New 
 Jersey — passed June 21, 1776, and laid before the 
 Continental Congress on the 28th of June — empowered 
 the delegates of that Province to — 
 
 " I'nito witli the delegates of the other Colonies in declaring the 
 I uited C'(jlonies independent of (ireat Britain; entering into a eou- 
 federalioii for union and comnion defence; making treaties Avith foreign 
 nations for commerce and assistance ; and to take sucli other mea- 
 sures as may appear to them and you necessary for these great 
 
ends; promising to suppoil tlicni willi tlic whole lorco of this Tro- 
 viiu'o ; iilura/s ohs('rri)>(/, whatever |)hiii oi" confederacy you enter 
 into. fJte rer/alafing the intcvxal itolicr of I his J^roriuri' is to he vsirrrt/ 
 III fhi- Colony Legidatnro.'''' 
 
 The Convention of the Colony of Maryland, l)y a 
 resolution (adopted June 28, 1776, and laid before Con- 
 gress July 1), authorized and ein])owcrcd the deputies 
 of the Colony to — 
 
 •• Concur with the other United Colonies, or a majority of them, 
 in declaring the United Colonies free and indejiendent, in favoring 
 such further compact an<l confederation between them, in making 
 foreign alliances, and in adopting such other measures as shall he 
 judged necessaiy for securing the liberties of America : and that said 
 Colony Avill hold itself boimd by the resolutions of the majority of the 
 I'nited Colonies in the premises ; ■provided the aolc and (■xdimvc right 
 of regulating the internal government and police of that Colony he re- 
 nerved to the peo2:)le thereof." — Jnnrnrtls of Cont/ress, ITTH. pp. '.V.)i). 
 891, 892. 
 
 The credentials of the Assembly of llhode Island, 
 after giving to the delegates power to enter into union 
 and confederation, add, — 
 
 •' Taking the greatest care to secure to this Colony, in tlie strongest 
 and most perfect manner, its present established form, and all the 
 powers of government, so far as relates to its internal jjolice, and con- 
 duct of our affairs, civil and religions." — [hid., p. 848. 
 
 In the Revolutionary Government, in the Articles of 
 Confederation, in the Constitution, in its judicious inter- 
 pretation, in every administnition under the Constitu- 
 tion, and in every department of the Government, the 
 limitation has thus far been carefully recognized and 
 faithfully kept. This familiar, well-settled doctrine, as 
 to the independent respective spheres of the National 
 and State Government, has never, perhaps, been more 
 clearlv and stronsflv stated than in one of the resolu- 
 
tions adopted by the Convention which ushered the 
 present administration into power : — 
 
 " Resolved^ That the maintenance inviolate of the rights of the 
 States, and especially the right of each State to order and control its 
 own domestic institutions according to its own judgment exclusively, 
 is essential to that balance of powers on Avliich the perfection and 
 endurance of our political fabi'ic depends." 
 
 It is expressed also, with clearness and strength, in 
 the resolution adopted by the House, near the close 
 of the last session of Congress, by a nearly unanimous 
 vote : — 
 
 " Resolved, That neither the Federal Government, nor the people 
 or governments of the nou-slaveholdiiig States, have a purpose or a 
 constitutional right to legislate upon or interfere with slavery in any 
 of the States of the Union." 
 
 These doctrines, as to the supremacy of the National 
 Government within its sphere and of the reserved 
 rights of the States, are elementary. Between them 
 there is no necessary conflict. Each is the complement 
 of the other, — both vital parts of that political system 
 under whose admirable distribution and adjustment of 
 powers the people of the United States have had for 
 seventy years incomparably the best and most beneficent 
 Government the w^orld has ever known, — a Govern- 
 ment now imperilled, not by reason of any inherent 
 defect or any want of wisdom or foresight in its founders, 
 not because we have outgrown its provisions, not be- 
 cause it is behind the age ; but because it has fallen 
 upon an age not worthy of it, which has failed to ap- 
 preciate the spirit of wisdom, prudence, and moderation, 
 m which it was founded. 
 
 Such being the relation of the Government of the 
 United States to its citizens and to the States, the first 
 
question that arises is, how far this relation is affected 
 by the fact that several of the States have assumed, by 
 ordinances of secession (so called), to separate them- 
 selves from the Union. 
 
 The people of the United States, in and by the Con- 
 stitution of the United States, estabhshed a National 
 Government, without limitation of time, " for themselves 
 and their posterity." It had been provided under the 
 Articles of Confederation, that the Union should be 
 perpetual. The Constitution was established to form 
 " a more perfect union" than that of the Confederation; 
 more efficient in power, and not less durable in time. 
 There is not a clause or word in the Constitution, which 
 looks to separation. It has careful provisions for its 
 amendment, none for its destruction ; capacity for ex- 
 pansion, none for contraction ; a door for new States to 
 come in, none for old or new ones to go out. An ordi- 
 nance of secession has no legal meaning or force ; is 
 wholly inoperative and void. The Constitution, and 
 the laws and treaties made under it, the people have 
 declared, " shall be the supreme law of the land ; and 
 the judges in every State shall be bound thereby, any 
 thing in the constitution or laws of any State to the 
 contrary notwithstanding." The act of secession, there- 
 fore, cannot change in the least degree the legal relation 
 of the State to the Union. No provision of the Con- 
 stitution of the United States, no law or treaty of tlie 
 United States, can be abrogated or impaired thereby. 
 No citizen of the United States, residing in the seceded 
 States, is, by such ordinance of secession, deprived of 
 the just protection of, or exempted from any of his 
 duties to, the United States. In contemplation of law, 
 the reciprocal duties of protection and allegiance remain 
 
10 
 
 unaffected. After the act of secession, the province 
 and duty of the Government of the United States are 
 the same, according to the full measure of its ability, as 
 before, — to enforce in every part of the Union, and 
 over every inch of its territory, the Constitution and 
 laws of the United States. 
 
 It is the necessary result of these principles, that no 
 State can abdicate or forfeit the rights of its citizens to 
 the protection of the Constitution of the United States, 
 or the privileges and blessings of the Union which that 
 Constitution secures and makes perpetual. The pri- 
 mary, paramount allegiance of every citizen of the 
 United States is to the nation ; and the State authorities 
 can no more impair that allegiance than a county court 
 or a village constable. Every proposition, however art- 
 fully disguised, which seeks to give any effect or vitality 
 to an ordinance of secession, for evil or for good, is 
 itself a confession of the right. To say that an act of 
 secession is inoperative and void against the Constitution, 
 and that this void act, sustained by force, is a practical 
 abdication of the rights of the State under the Con- 
 stitution, is to blow hot and blow cold, to deny and affirm, 
 in the same breath ; to state a proposition which is felo 
 de se. 
 
 It is also the plain and necessary conclusion, from the 
 principles before stated, that a State cannot commit 
 treason. Under the Constitution of the United States, 
 jiersons only can commit treason. How treason may be 
 committed, and how tried and punished, the Constitu- 
 tion points out (Constitution, art. 3, sect. 3 ; Amend- 
 ments, arts. 5 and 6). The persons who for the time 
 being hold the offices under a State Government may 
 individually commit treason ; but the acts of the State 
 
11 
 
 officers, traiisfcnding their uiitliority and in contiict with 
 the Constitution of the I'nited States, involve in their 
 guilt no man who has not himself levied war against the 
 United States, or adhered to their enemies, giving them 
 aid and comfort. It is only we, the subjects, tliat can 
 commit treason, or expiate its guilt. No man, or set of 
 men, can, without our consent, involve us in the awful 
 crime, or subject us to the awful penalties, of treason. 
 
 As a State cannot commit the crime of treason, it 
 cannot incur a forfeiture of its powers and functions as 
 the penalty of treason. The punishment provided for 
 traitors is the result of judicial trial, conviction, and 
 judgment. How to indict a State, the constitution of 
 the court, the mode of trial, the form of judgment, and 
 process of execution, yet exist in gremio legis. Nor is it 
 material that the acts of the State officers have the 
 sanction and support of the majority of the jieople of 
 the State. Within the proper sphere of the State 
 Government, the rule of the majority will prevail, except 
 so far as it is restrained by the organic law^ ; but the 
 majority of the voters of the State cannot deprive the 
 minority of the rights secured to them by the Constitu- 
 tion of the United States. Some of these rights may 
 be kept in abeyance. Their exercise may be overborne 
 by superior physical force. They may sleep ; but it is 
 not the sleep of death. They are integral parts of the 
 Constitution, and can only perish when the Constitution 
 perishes. 
 
 The State of Tennessee, for example, has passed an 
 ordinance of " secession." She has allied herself with 
 the other seceding States. Her vote of secession is 
 sustained by force. Upon this new and startling theory 
 of the Constitution, she has aheadv incurred a forfeit- 
 
12 
 
 lire of all those functions and powers essential to the 
 continued existence of the State as a body politic. The 
 voice of her eloquent senator is heard in the Capitol ; 
 her venerable judge sits in the highest judicial tribunal, 
 and exercises the highest functions of Government ; her 
 representatives mingle in our councils ; her loyal citi- 
 zens greet with tears of joy the banner of our advan- 
 cing hosts, — their hope and our hope, their pride and 
 our pride. Yet, upon this theory, there is no Tennessee: 
 " the Commonwealth itself is past and gone." Its 
 citizens can no longer be represented in this House or 
 the Senate. The courts of the United States are closed 
 against them (Corporation of New Orleans vs. Win- 
 ter, 1 Wheaton Rep., 91). The requisition upon the 
 State for troops was a mistake. The direct tax was a 
 mistake. Its citizens, under the shield of the Constitu- 
 tion, are outlaws, and in their own homes exiles. If 
 such be the effects of a void act of secession, we should 
 be grateful we are not called upon to witness the results 
 of a valid one. There is nothing in the doctrines of 
 nullification or secession more disloyal to the Constitu- 
 tion, more fatal to the Union, than this doctrine of 
 State suicide. It is the gospel of anarchy, the philoso- 
 phy of dissolution. Nor by carrying out this doctrine 
 of the destruction or forfeiture of the State organization 
 would any thing be gained for the cause of freedom. 
 Slavery exists by the local, municipal law ; and would 
 not be abolished, unless you go one step further, and 
 hold, that, with the loss of the State organization, the 
 institutions, laws, and civil relations of the States 
 perish. Now, in case of conquest, even though the 
 people of the conquered territory change their alle- 
 giance, their relations to each other and their rights of 
 
li 
 
 property remuiii undisturbed. The modern usage of na- 
 tions, which has become hiw, would be violated if 
 private property should be generally confiscated and 
 ])rivate rights annulled (United States vs. Percheman, 
 7 Peters, 51 ; 3 Phillemore, p. 743). When, therefore, 
 States were reduced to Territories, the National Govern- 
 ment could not abolish slavery therein, except under 
 the right of eminent domain and by giving just com- 
 pensation. 
 
 If we are right as to the nullity of the acts of seces- 
 sion, we may proceed to inquire whether the fact, that 
 the seceding States have attempted to form a new alli- 
 ance or confederation, will effect the result. Upon 
 the plainest letter of the Constitution, as Avell as by 
 its entire spirit, these acts of confederation are void. 
 Continuing as States in spite of their ordinances, they 
 were expressly forbidden to enter into any treaty, 
 alliance, or confederation, or into any agreement or 
 compact, with another State or with a foreign power 
 (Constitution, art. 1, sect. 10). Neither by secession 
 nor confederation have they changed their legal relation 
 to the Union and the Constitution of the United States. 
 They are still members of the Union, foregoing for a 
 time its privileges, but subject to its duties, bound to it 
 by a cord which the sword of successful revolution can 
 alone sever. 
 
 What, then, it may be asked, is the legal character of 
 this great insurrection ? The answer is. It is a rebellion 
 of citizens of the United States against the Government 
 of the United States ; an organized effort to subvert and 
 overthrow its authority, and to establish another Govern- 
 ment in its stead. Nothing can be more explicit than 
 the proclamation of April 15, 1861 : — 
 
u 
 
 '• The laws of llie United States have been for some time past and 
 now are opposed, and the execaition tliereof obstructed, in the States 
 of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, 
 and Texas, by combinations too powerful to be suppressed by tlie 
 ordinary course of judicial proceedings, or by the powers vested in 
 the marshals by law. 
 
 '' Now, therefore, I, Abraham Lincoln, President of the United 
 States, in virtue of the power in me vested by the Constitution and 
 the laAvs, have thought fit to call forth, and hereby do call forth, the 
 militia of the several States of the Union, to the aggregate number of 
 seventy-five thousand, in order to suppress said combinations, and to 
 cause the laius to he duhj execided. 
 
 " I appeal to all loyal citizens to favor, facilitate, and aid this 
 effort to maintain the honor, the integrity, and the existence of our 
 National Union and the perpetuity of popular Government, and to 
 redress wTongs already long enough endured." 
 
 The State organizations have been found convenient, 
 and have been used for the purposes of the Rebellion. 
 Those of counties and cities have been used for the 
 same ends. In either case, it was an entire perversion 
 of their functions ; and the action is none the less illegal 
 and revolutionary on that account. A State, as such, 
 having no power to engage in war with any other State 
 or with the United States, cannot interpose its shield 
 between the Government of the United States and its 
 subjects committing treason by levying war against it ; 
 nor is such levying war any the less treason because the 
 traitors held places of trust in the State Governments, 
 and perverted the functions of those Governments to 
 their base ends. Morally, it is an aggravation of the 
 offence. It does not change its essential legal cha- 
 racter. 
 
 In the Convention for forming the Constitution of the 
 United States, Luther Martin, of Maryland, was anxious 
 to insert a provision to save the citizens of the States 
 
1.') 
 
 from being punishable as traitors to the United States 
 when acting- expressly in obedience to the authority 
 of their own States. The provision offered by him 
 was, — 
 
 '"That IK) act or acts (Idiic liy one or more of tlic States against 
 the United kState.s, or by any citizen ot" any one of tlie United States, 
 nnder tlie authority of one or more of the said States, shall be deemed 
 treason, or juniished as such ; but, in case of war being levied by one 
 or mori' of tlie States against the I'nited Slates, the conduct of each 
 party towards the other, and tlieir adherents respectively, shall be 
 regulated by the laws of war and of nations." 
 
 This proposition was rejected, Mr. Martin says, with 
 much feeling, because the leading members of the Con- 
 vention meant to leave the States at the mercy of the 
 National Government. The more obvious reason is, 
 that it was inconsistent with the whole theory of the 
 Constitution, which, springing from the people of 
 the United States, acted directly upon them as its sub- 
 jects, and with a force which no law or ordinance of 
 a State could impair. 
 
 This, then, is not a conflict of States ; nor is it a war 
 of countries or of geographical lines. It is a conflict 
 between Government and its disobedient subjects. He 
 only is the enemy of the United States who is commit- 
 ting treason by levying war against the United States, 
 or giving aid and comfort to those who do. The loyal, 
 faithful subject of the United States, wherever on the 
 soil of his country he may have his home, is not 
 the enemy of his country. No subtilty of logic, no 
 ingenuity of legal construction, no misapplication of the 
 laws of international war to this contest, can change 
 the nature of things ; can convert loyalty into treason, 
 or devotion into hostility. If there be to-day in Ten- 
 
16 
 
 nessee or Georgia, or South Carolina even, a loyal 
 subject of the United States, " faithful among the faith- 
 less found," the Government is not at war with him. 
 I am aware, that, as to property taken on tlie high seas, 
 some of the district courts of the United States have 
 held otherwise ; but I venture to predict, that the 
 court of last resort will affirm the doctrine, stated by 
 Mr. Justice Nelson of that court, to be good sense and 
 sound law : — 
 
 '* On the breakino'-oiit of a war between two nations, the citizens 
 or subjects of the respective belligerents are deemed by the law of 
 nations to be the enemies of each other. The same is true, in a quali- 
 fied sense, in the case of a civil war arising out of an insurrection or 
 rebellion against the mother-government. But, in the latter case, the 
 citizens or subjects residing within the insurrectionary district, not 
 implicated in the rebellion, but adhering to their allegiance, are not 
 enemies, nor to be regarded as such. This distinction was constantly 
 observed by the English Government in the disturbances in Scotland, 
 under the Pretender and his son, in the years 1715 and 1745. It 
 modifies the law as it respects the condition of the citizens or subjects, 
 residing within the limits of the revolted district, who remain loyal 
 to the Government." 
 
 The difference between a war and a rebellion is clear 
 and vital. War is the hostile relation of one nation to 
 another, involving all the subjects of both : rebellion 
 is the relation which disloyal subjects hold to the na- 
 tion, not involving or impairing the rights of loyal 
 subjects. The law may fail to protect obedient subjects ; 
 but it never condemns them. As between the Govern- 
 ment, and its subjects in arms against it, the lecjal relation 
 is not that of war, notwithstanding the war-power is used 
 to subdue and reduce them to obedience. Though the 
 llebcllion has assumed gigantic proportions, and the civil 
 power is impotent to repress it, the array of numbers. 
 
17 
 
 and extent of physical force, do not change its essential 
 legal character. It is still treason, — the levying of war 
 against the United States by those who owe to it alle- 
 giance. For this exigency the Constitution has pro- 
 vided. The war-power of the Government may be 
 evoked " to execute the laws of the Union, and to 
 suppress insurrection." In levying war against the 
 United States, the rebels do not cease to be traitors, but 
 are doing the thing in Avhich the Constitution declares 
 treason to consist (art. 3, sect. 3). 
 
 While using the powers and appliances of war for 
 the purpose of subduing the Rebellion, we are by no 
 means acting without the pale of the Constitution. 
 We are using precisely the powers with which the Con- 
 stitution has clothed us for this end. We are seeking 
 domestic tranquillity by the sword the Constitution has 
 placed in our hands. In the path of war, as of peace, 
 the Constitution is our guide and our light, — the cloud 
 by day, the pillar of fire by night. 
 
 Wliile using the powers of war for executing the 
 laws and subduing rebellion, we are, of course, bound 
 and restrained by the laws of war. It is our duty and 
 our privilege to respect the maxims of humanity and 
 moderation by which the law of nations and of Chris- 
 tian ciA-ilization has tempered the spirit of modern 
 hostilities. During the war, we may recognize in the 
 rebels the rights of belligerents ; may send them flags of 
 truce ; may make with them capitulations, cartels for 
 exchange of prisoners ; and extend to them the courte- 
 sies which mitigate, to some extent, the iron rigor of 
 war. These things were done in the earliest stages 
 of our Revolution, not only before the separation of 
 the Colonies was declared, but before the idea of inde- 
 
 3 
 
18 
 
 pendence had fairly taken possession of the public 
 mind. But it was never supposed, that, by adopting the 
 usages of civilized warfare, Great Britain Avas relaxing 
 her hold upon the Colonies, or elevating them into inde- 
 pendent powers. Nothing is, I think, plainer in prin- 
 ciple, than that the recognition of these rights and the 
 observance of these usages — flagrante hello — cannot 
 affect the legal relation of the parties ; does not divest 
 the sovereign of his power, or release the subject from 
 his duties, when the strife of arms ceases. It is only 
 when rebellion has ripened into successful revolution, 
 that the permanent legal relations of the parties are 
 changed. The recognition of the "belligerent rights" 
 of the rebels by foreign powers, can, as between the 
 sovereign and his subjects, have no other or further 
 effect. Such recognition (if known to the law of na- 
 tions) proceeds upon the ground, that the revolution is 
 not accomplished, and that the connection is not dissolved. 
 Had this been done, the recognition would have been 
 of their separate national existence. 
 
 In my humble judgment, Mr. Chairman, the " seceded 
 States " (so called), and the people of those States, are 
 to-day integral parts of the Union, over whom, when 
 the conflict of arms ceases, the Constitution of the United 
 States, and the laws made under it, will resume their 
 peaceful sway. Traitors may perish ; some institutions 
 may perish : the nation will remain ; and the States will 
 remain, essential parts of the body politic. " The body 
 is one, and hath many members ; and all the members 
 of that body, being many, are one body." 
 
 With this brief and imperfect development of the 
 principles involved in this great controversy, I proceed 
 to a more direct consideration of the subjects of confis- 
 cation and emancipation. 
 
U) 
 
 In seeking to know what this Government ought to 
 do in relation to the confiscation of private property, or 
 the emancipation of slaves, in the " seceding " States, the 
 obvious question presenting itself to every mind at 
 the threshold is, AN'hat is the end which the Government 
 and the people are seeking to attain "? There can be 
 but one loyal answer to that question. It is to preserve 
 the Union and the Constitution in their integrity ; to 
 vindicate in every part of this indivisible Republic its 
 supreme law. No purpose, however humane, benefi- 
 cent, or attractive, can divert our steps from the plain, 
 straight path of sworn duty. What is writ is writ. In 
 seeking to change it by force of arms, we become the 
 rebels we are striving to subdue. 
 
 It is a plain proposition, that, in seeking to enforce 
 the law, we are, as far as possible, to obey the law. 
 We are not to destroy in seeking to preserve. The 
 people do not require a bitter and remorseless struggle 
 over the dead body of the Constitution. We may raise 
 armies and navies, and pour out as water the treasure 
 and life-blood of the people ; but we can neither think 
 nor act wisely, live well, or die well, for the Republic, 
 unless we keep clearly and always in view the end of 
 all our labors and sacrifices, — the Union of our fathers, 
 and the Constitution, wdiich is its only bond. No 
 thoughtful man can believe there is a possibility of 
 reconstructing the Union on any other basis ; or that it 
 is within the province of Congress, in any other but the 
 peaceful way of amendment, to make the effort. 
 
 The bills and joint resolutions before the House, pro- 
 pose, with some differences of policy and method, two 
 measures, — the confiscation of the j)roperty of the 
 rebels, and the emancipation of their slaves. Some of 
 
20 
 
 the resolutions propose the abolition of slavery itself, 
 with compensation for loyal masters. It is my duty to 
 examine, as briefly as I may, the wisdom, the justice, 
 and the constitutionality of the measures proposed. And, 
 first, of confiscation. 
 
 The propositions for confiscation include the entire 
 property of the rebels, real and personal, for life and in 
 fee. Within the class whose estates are to be confis- 
 cated are included not only those personally engaged in 
 the Rebellion, in arms against the Government, but 
 also those who adhere to them, giving them aid or com- 
 fort : so that within the sweep of the bills would be 
 brought substantially the property of eleven States and 
 six millions of people. 
 
 The mind instinctively shrinks from a proposition 
 like this. It relucts to include in one "fell swoop" a 
 whole people. It asks anxiously, if no consideration is 
 to be had for difi"erent degrees of guilt ; if the same 
 measure is to be meted to those who organized the 
 Kebellion and those who have been forced into it ; if no 
 consideration is to be given to the fact, that allegiance 
 and protection are reciprocal duties ; and that, for the 
 last ten months, the National Government has found 
 itself incapable of giving protection to its loyal subjects 
 in the " seceding States," — neither defending them, nor 
 giving them arms to defend themselves ; and that, de- 
 prived of our protection and incapable of resistance, 
 they have yielded only to superior force ; if a wise 
 Government is to forget the nature of man and the 
 infiuences of birth, of soil, of home, of society, and of 
 State, by which his ox)inions are insensibly moulded ; and 
 that this pestilent heresy of the right of secession, fatal 
 as it is now seen to be, not only to the existence of good 
 
21 
 
 government, but of social order itself, has been a cardi- 
 nal article in the faith of a large portion of the people in 
 the Southern States ; and that tliey liave been induced, 
 by the arts and sophistries and falsehoods of unprin- 
 cipled leaders, to beHeve that their future safety and 
 well-being required the exercise of the right. Those 
 leaders should atone for their crime by the just penalty 
 of the law. But you cannot, says Burke, " indict a 
 whole people : you cannot apply to them the ordinary 
 rules of criminal jurisprudence." To state the proposi- 
 tion to confiscate the j)roperty of eleven States is to con- 
 fute it ; is to shock our common sense, and sense of 
 justice ; is to forget not only the ties of history and 
 of kindred, but those of a common humanity ; is to 
 excite the indignation of the civilized world, and to in- 
 voke the interposition of all Christian governments. 
 
 It is said that just retaliation requires the confisca- 
 tion of the property of the rebels. Doubtless nations 
 may feel compelled to resort to measures of severe re- 
 taliation ; it may be their only security against future 
 outrage : but a firmly established government does not 
 resort to cruelty and injustice because its rebellious 
 subjects have done so. It must maintain a higher 
 standard of rectitude and justice. Its object is, not 
 vengeance, but to deter men from crime. It knows 
 that harsh and severe punishments but rouse pity 
 for the criminal, and indignation against the Govern- 
 ment. 
 
 Nor will the difference between confiscation by the 
 rebels and by this Government be overlooked. Our 
 acts of confiscation, if within the limits of the Constitu- 
 tion, are effective and permanent : theirs, void in law, 
 are temporary in their effect. The title to one square 
 
22 
 
 inch of land will not be changed by any confiscation by 
 the rebel authorities. Every man who has occupied 
 the land of a loyal citizen under their pretended acts of 
 confiscation will be liable for the full rent and damages 
 to the estate. Every man who is in possession of 
 personal property under them will be compelled to 
 disgorge. Every debt paid under them into rebel trea- 
 suries will still be due to the loyal creditor. The resto- 
 ration and indemnity will, I know, be imperfect. Many 
 grievous wrongs will go unredressed ; but every rebel, 
 whatsoever functions he may have usurped, — judicial 
 or executive, — who has invaded the rights of person or 
 of property of a loyal citizen, will be liable to his last 
 farthing for indemnity. So far, therefore, as our Go- 
 vernment confiscates the property of rebels to its own 
 use, it takes from the loyal citizen the sources to which 
 he may justly look for redress. 
 
 The acts of general confiscation proposed would de- 
 feat the great end the Government has in view, — the 
 restoration of order, union, and obedience to law. They 
 would take from the rebels every motive for submission ; 
 they would create the strongest possible motives to con- 
 tinued resistance. In the maintenance of the Confede- 
 rate Government, they might possibly find protection ; 
 in the restoration of ours, spoliation. Spoliatis arma 
 supersimt. You leave them the great weapon of de- 
 spair. Sallust said of the old Romans, " Majores nostri 
 religiosissimi mortales nihil victis eripiebant printer inju- 
 riee licentiam," — " Our ancestors, the most religious of 
 men, took from the vanquished nothing but the license 
 of wrong-doing," — " words," says Grotius, " worthy of 
 having been said by a Christian." 
 
 It seems to be taken for granted, that our efforts to 
 
23 
 
 suppress the llcbellioii will be successful iu proportion 
 to the severity of the measures we adopt. The assump- 
 tion is at war with the lessons of history and with the 
 nature of man. The most vigorous prosecution of 
 the war possible is best for the GoYcrnment and its sub- 
 jects in arms against it. But the war is means to an 
 end. " Wise men labor in the hope of rest, and make 
 war for the sake of peace." It is only when justice is 
 tempered with mercy that it is justice. 
 
 Apart from the injustice and impolicy of these acts of 
 sweeping confiscation, I have not been able to find in 
 the Constitution the requisite authority to pass them. 
 There are tw^o aspects in which the legal question may 
 be viewed, — jirst^ the confiscation and forfeiture of pro- 
 perty as the punishment for crime ; secondly, under what 
 has popularly been called the " war-power" of the Go- 
 vernment. 
 
 Looking at confiscation as the penalty of crime, trea- 
 son, or any lower grade of off"ence, some things seem to 
 be plain : — 
 
 That such forfeiture can be created by statutes appli- 
 cable only to off"ences committed after their passage. 
 Congress cannot pass an ex post facto law (Constitu- 
 tion, art. 1, sect. 9). 
 
 The subject charged with treason may justly claim all 
 the muniments and safeguards of the Constitution. 
 
 He cannot be deprived of life, liberty, or property, 
 without due process of law (Amendments, art. 5) ; that 
 is, judicial process, as understood from the days of 
 Magna (yharta. 
 
 He cannot be held to answer for a capital or other- 
 wise infamous crime, except in cases arising in the land 
 or naval forces, or in the militia when in actual service 
 
24 
 
 in time of war or public clanger, unless on present- 
 ment or indictment by a grand jury [ibid.). 
 
 After indictment, he must have a 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 (art. 3, sect. 2 ; Amend- 
 ments, art. 6). 
 
 No attainder of treason can work a forfeiture, except 
 during the life of the person attainted (Constitution, 
 art. 3, sect. 2). By attainder is here clearly meant judi- 
 cial attainder ; as a bill of attainder (that is, an act of 
 the Legislature) is, by a prior provision of the Constitu- 
 tion, expressly forbidden (art. 1, sect. 9). 
 
 These sacred provisions of the Constitution, which as 
 common-law muniments of life, liberty, and property, 
 have existed in substance for six centuries, — " the least 
 feeling their care, and the greatest not exempted from 
 their power," — lie directly in the path, and are fatal 
 obstructions to any legislation confiscating property as 
 the penalty of treason, except as the result of the judi- 
 cial trial and sentence of the offender. 
 
 It has been assumed, — I think, without sufficient re- 
 flection, — that, under our laws against treason, the most 
 obnoxious traitors even will escape the righteous punish- 
 ment of their crimes, because they must be tried by a 
 jury in the State and district wherein the off'ence shall 
 have been committed. Their only escape will be by 
 exile. Where war is actually levied against the United 
 States, where bodies of men have been actually assem- 
 bled to efl"ect by force of arms their treasonable pur- 
 poses, all those who perform any part, however minute 
 or however remote from the scene of action, and who 
 are actually leagued in the general conspiracy, are to be 
 
25 
 
 considered as traitors (E.v jmrte Bolinaii, &c., -4 Crancli, 
 75). We have not, indeed, adopted the law of con- 
 structive presence, which holds that a man who incites 
 or procures a treasonable act, is, by force of the incite- 
 ment or procurement merely, legally present at the act. 
 But it may be sufficient to constitute presence, if he is 
 in a situation in which he can co-operate with any act of 
 hostility, or furnish counsel and assistance to the parties 
 if attacked (United States vs. Burr, 4 Cranch, 470). 
 The modern facilities of communication greatly enlarge 
 the field of co-operation. A commander at the end of a 
 telegraph-wire, directing the assault upon a fort of the 
 United States, or at a railroad station with troops ready 
 to be moved to the assistance of the rebel army in 
 action, is, in law, present at the overt acts of treason. 
 The leaders of this Rebellion will be found, therefore, to 
 have committed treason, and to be liable to indictment 
 and trial in many States and districts in which a jury 
 will be ready, upon adequate proof, to convict. 
 
 In the proposed measures, the thing sought to be 
 done is the confiscation of the property of the rebel 
 as the penalty of his offence, and the attainment of this 
 end without the trial and conviction of the off"ender. 
 Though, under the Constitution, upon a trial and convic- 
 tion of a traitor, you can only take the life estate, these 
 measures assume, that, without any trial or conviction, 
 you may take the fee-simple. Our legal instincts shrink 
 from such a proposition. Its intrinsic difficulties have 
 been seen and felt ; and a resort has been had to analo- 
 gies and precedents, judicial and legislati\ e, to find for 
 it some sanction and support ; I think, without success. 
 
 1. It is true, as has been said, that, under the Consti- 
 tution, men may be deprived of life and property without 
 
 4 
 
26 
 
 trial by jury. Cases arising in the land and naval forces, 
 and in the militia when in actual service in time of war 
 or public danger, are in terms excepted from the gene- 
 ral rule (Amendments, art. 5) ; but the exception, in- 
 stead of impairing, by the law of logic as of common 
 sense, confirms the rule. 
 
 2. Property is taken for taxes, and certainly witliout 
 trial by jury, where the tax, and mode of assessment, are 
 valid ; but this is under an express grant of power to 
 Congress "to lay and collect taxes" (art. 1, sect. 8), the 
 principle and general method of which were perfectly 
 well understood when the Constitution was adopted. 
 Nor does the exercise of this power, as has been sug- 
 gested, take private property for public use without just 
 compensation : on the contrary, the true and just tkeory 
 of taxation is, that the price paid is the reasonable com- 
 pensation for the protection and security of life, liberty, 
 and property, which a wise and efficient government 
 affords. 
 
 3. The forfeiture of goods for breach of the revenue- 
 laws has sHght, if any, analogy to the confiscation of 
 property as a punishment for the crime of its owner. 
 To Congress is given the power to " regulate com- 
 merce," and " to levy and collect imports ; " and, of 
 course, to prescribe the terms and conditions upon 
 which goods may be imported. It may well avail itself 
 of a familiar principle by which property used in violat- 
 ing, defeating, or defrauding the law is liable to forfeit- 
 ure. Though the forfeiture of the common law did 
 not, strictly speaking, attach in rem, but was a part 
 or consequence of the judgment of conviction of the 
 offender, this doctrine was never applied to seizures and 
 forfeitures created by statute in rem, and cognizable on 
 
27 
 
 the revenue side of the exchequer. Tlie thiii<r was tlieu 
 primarily considered as the offender, and the offence was 
 attached to it. The same principle is applied to ])ro- 
 ceedings in rem, and seizures in the admiralty (2 Wliea- 
 ton, Tlie Palmyra). It is upon this distinction that the 
 statutes of July 19 and of Aug. 6, 18G1, find their sup- 
 port. The principle is, that the thing used in violating 
 the law may be seized and condemned without a judg- 
 ment upon the guilt of the owner. 
 
 I proceed to inquire how far, if at all, the powers of 
 Congress are enlarged by the existence of this Hebellion, 
 and the use of the appliances of war to subdue it. 
 
 It would seem to be plain, that the resistance of any 
 portion of the people to the Constitution and laws can- 
 not operate to confer upon Congress any new substan- 
 tive power, or to abrogate any limitations of the powers 
 of Congress which the people have imposed. When 
 the Constitution intends that the existence of war or 
 rebellion shall put an end to any restriction on the 
 power of the Government, it says so: when it does 
 not say so, the fair inference is that it does not mean so. 
 Examples of such removals of restraint are found in 
 article one, section eight, providing that the privilege of 
 the " writ of habeas corpus shall not be sus[)ended, un- 
 less when, in cases of rebellion or invasion, the ])ublic 
 safety may require it ; " and in article three of the 
 Amendments, forbidding, in time of peace, the quarter- 
 ing of soldiers in any house without the consent of the 
 owner, but in time of war permitting it to be done " in 
 a manner to be prescribed by law." 
 
 Engaged in suppressing a great and formidable rebel- 
 lion, the Government may use the instrumentalities of 
 war, so far as they are adapted to the end: but it is 
 
28 
 
 never freed from the restraints of the Constitution ; can 
 never rise above it. The Constitution is never silent in 
 the midst of arms. In war, as in peace, it is the su- 
 preme law ; itself solus populi et suprema lex. 
 
 When Government is compelled to use the power of 
 war, it observes its limitations. How far, in the use 
 of this power, it may confiscate, or subject to forfeiture, 
 private property, is the next question before us. 
 
 Some things are tolerably well settled. That property 
 used in promoting the rebellion, in levying war against 
 the United States, is lawful prize of war. This would 
 include the arms, munitions, and provisions of war, in 
 actual use or procured for the purpose. The rule ex- 
 tends to goods used, not strictly as munitions or imple- 
 ments of war, but so as to defeat the military and naval 
 operations resorted to to subdue the rebellion : as goods 
 on their way to relieve besieged towns or forts ; or ships 
 or cargo violating a blockade, or proceeding to or from 
 ports with which commercial intercourse has been inter- 
 dicted. It may extend to ships and cargo upon the high 
 seas, the property of those levying war against the 
 United States ; enemies, not because of their domicile or 
 residence upon one part rather than another of the ter- 
 ritory of the Union, but because they are in arms 
 against it. 
 
 Perhaps we should add to these, requisitions or con- 
 tributions, within military districts, levied upon those at 
 war with the Government, for the support of the invad- 
 ing army. Such requisitions were, however, regarded 
 by Wellington, a great statesman as well as great com- 
 mander, as iniquitous ; as a system for which the 
 British soldier was unfit. I would refer also to the ex- 
 cellent remarks on this subject by President Woolsey, 
 
•J<) 
 
 in his admirable Introdnrtion to •' Iiiteriiatioiial Law,"' 
 p. 304. 
 
 Beyond the points snggested, it is bcheved the usages 
 of international war do not extend. By the modern 
 usages of nations, private property on the land is ex- 
 empt from confiscation. This exemption, Mr. Wheaton 
 says (and there is no higher authority), is now lu^ld to 
 extend " to cases of the absolute and un([ualiticd con- 
 quest of the enemy's country" (Wheaton s "Elements 
 of International Law," p. -121). We refer also, as 
 tending to the same result, to Vattel, book 3, chap. 8, 
 sect. l-iT ; to 1 Kent's " Commentaries," pp. 102, 104; 
 3 Phillimore, p. 140 ; Woolsey, p. 304. To this miti- 
 gated rule of war, there are doubtless exceptions. Of 
 these, Mr. Wheaton says, — 
 
 " The exceptions to these general mitigations of the extreme rights 
 of war, considered as a contest of force, all grow out of the same 
 original principle of natural law, Avliich authorizes us to use against 
 an enemy such a degree of violence, and such only, as may be neces- 
 sary to secure the object of hostilities. The same general rule Avhich 
 determines how far it is lawful to destroy the persons of enemies, will 
 serve as a guide in judging how far it is lawful to ravage or lay waste 
 their country. If this be necessary in order to accomplish the just 
 ends of Avar, it may be laAvfully done ; but not otherwise. Thus, if 
 the progress of an enemy cannot be stopjied. nor our own frontier 
 secured, or if the approaches to a town intended to l>e attacked can- 
 not be made without laying Avaste the interniediale tei-ritory, the ex- 
 treme case may justify a resort to measures not warranted by the 
 ordinary purposes of Avar." — Tage 421. 
 
 The exceptions growing out of military exigencies, 
 and measured and governed by them, cannot be foreseen 
 and provided for by legislation, but must be left, where 
 the law of nations leaves them, with the military com- 
 mander. 
 
30 
 
 It has been said that these acts of general confisca- 
 tion find support under the provision of the Constitution 
 which authorizes Congress " to make rules concerning 
 captures by land and water." The. Constitution does 
 not define the meaning of the word " captures." It 
 refers us in such cases to the law of nations, as in others 
 to the common law. Congress has power to declare 
 " war." What war is, the just causes of war, the rights 
 and duties of nations in conducting it, are to be found 
 in the law of nations. The " captures " referred to are 
 very plainly not seizures of property under legal pro- 
 cess, confiscation, or forfeiture, but the taking of enemy's 
 property by force or strategy, ji^re victoria. The title is 
 acquired by capture, and liable to be lost by recapture. 
 To make rules concerning " captures " is not to make 
 rules in conflict with or beyond the law of nations. The 
 extent to which the power conferred by the law of na- 
 tions shall be exercised, and the disposition to be had of 
 captures when made, are the proper subjects of munici- 
 pal law and of the provision of the Constitution. 
 
 The case of Brown vs. the United States (8 Cranch, 
 110) has been cited as expressly deciding that Congress 
 has power to pass a confiscation bill. I submit, with 
 great respect, that it decides no such thing. The only 
 point decided in the case was, that British property 
 found in the United States, on land, at the commence- 
 ment of international hostilities (war of 1812), could not 
 be condemned as enemy's property, without an act of 
 Congress for that purpose. The court, dealing with a 
 question arising under war with a foreign nation, had no 
 occasion to consider the powers or duties of Congress in 
 the case of rebellion. The discussions of the court 
 recognize a distinction between the right of the sove- 
 
31 
 
 reign to take the persons and confiscate the property of 
 the enemy wherever fonnd, and tlie mitigations of the 
 rnle Avhich the humane usages of modern times have 
 introduced. With all mv reverence for the fjreat magis- 
 trate who delivered the opinion of the court, I must be 
 jDermitted to say, that usage is itself the principal source 
 of the law of nations, and that these humane usages have 
 become the rules of war in Christian States. The law 
 of nations, says Bynkershoek, is only a presumption 
 founded on usage [De foro Legatorum^ chap. 18, 
 sect. 6). 
 
 It is suggested, that, if the confiscation of private 
 property violated the law of nations, the courts could 
 not overrule the interpretation of that law by the politi- 
 cal department of the Government, and that no other 
 power could intervene. Possibly this may be so ; but 
 surely it is not intended that we shall violate the law of 
 nations in dealing with our subjects, because there is no 
 appeal or redress for the subject. It is in the exercise 
 of irresponsible power that the nicest sense of justice, 
 and the greatest caution and forbearance, are demanded. 
 In suppressing a rebellion so atrocious, marked by such 
 fury and hate against a Government felt only in its bless- 
 ings, forbearance seems to us weakness, and vengeance 
 the noblest of virtues ; but, in our calmer moments, we 
 hear the Divine Voice : " A engeance is mine ; I will 
 repay." 
 
 I conclude what I have to say upon this branch of the 
 subject with the remark, that, in substance and effect, 
 the bills before the House seek the permanent forfeiture 
 and confiscation of property, real and personal, without 
 the trial of the ofi"cndcr. I am unable to see how, un- 
 der the Constitution, that result can be reached. 
 
32 
 
 The temporary use of property in districts under mili- 
 tary occupation, and of estates abandoned by their 
 owners, rests upon distinct principles, which it is not 
 now necessary to consider. We have only to remark, 
 in passing, that the use of such property and the rule 
 in such districts can be provisional only, Avaiting the 
 regular action of the State governments, and in no way 
 impairing their permanent powers. Upon this subject, 
 I intend, at some future day, to trouble the House with 
 a few suggestions. 
 
 I proceed to the question of the deepest interest in- 
 volved in this discussion, — the emancipation of slaves in 
 the " seceding States." There is no subject on which 
 our feelings are so likely to warp our judgment ; in 
 which calmness is so necessary and so difficult, and 
 declamation so easy or so useless. The general princi- 
 ples stated in relation to the power and duty of Congress 
 as to confiscation are applicable to the subject of eman- 
 cipation. 
 
 On the question of policy, the plausible and attractive 
 argument is, that the only effectual way to suppress 
 rebellion is to remove its cause. The position, when 
 thoroughly probed, is, not that the National Government 
 has not the power to put down the rebellion without 
 resort to emancipation, but that the continued existence 
 of slavery is incompatible with the future safety of the 
 llepublic. This plainly is not a question of present 
 military necessity, but one affecting the permanent 
 structure of the Government, and involving material 
 changes in the Constitution. This can be done in one 
 of two ways : in the method the Constitution points out ; 
 or by successful revolution on the part of the free 
 States, and the entire subjugation of the slave States. 
 
;3:3 
 
 No man can forc^sec to-day what policy a severe and 
 protracted strnf><rle mni/ render necessary. It is suffi- 
 cient to say, that into sncli a waj- of conquest and exter- 
 mination the people of the United States have no presoif 
 disposition to enter. They have too thoroni^li a convic- 
 tion of the capacity of the Government to subdue tlic 
 Kebellion by the means the Constitution sanctions, to be 
 desirous of looking beyond its pale. 
 
 I'pon the legal aspect of the question, it may be 
 stated, as a general proposition, that Congress, in time 
 of peace, has no power over slavery in the States. By 
 that is meant the institution itself ; for the National 
 Government may, in my judgment, forfeit the right of 
 the master in the labor of the slave, as a penalty for 
 crime of which the master shall be convicted : and, when 
 so forfeited, it may dispose of the right as it sees fit. 
 ■ Nor is there any intrinsic difficulty in the use of this spe- 
 cies of property under the right of eminent domain. If 
 the Government were constructing a fort or digging an 
 intrenchment, it might hire this species of labor, or, if 
 necessary, take it, as it might other labor or property, 
 giving reasonable compensation therefor. 
 
 The provision as to the return of fugitives from ser- 
 vice cannot be deemed an exception to the general rule 
 before stated ; for the provision applies to escapes from 
 one State into another, and not to escapes within the 
 State. Of which we may remark, in passing, that, as to 
 the former class, the power of the Government is strictly 
 civil, to be executed by judicial process ; and that, as to 
 the latter, the National Government, in time of war or 
 peace, has no concern. 
 
 Nor would an act of the National Government liberat- 
 ing the slaves within a State, having tlu^ consent of the 
 
34 
 
 State and providing compensation for the masters, mili- 
 tate with the rule. Conventio vincet legem. The consent 
 of the State would relieve the difficulty. 
 
 But the question arises, how far the existence of the 
 Rebellion confers upon Congress any new power over 
 the relation of master and slave. Strictly speaking, no 
 new power is conferred upon any department of the 
 Government by war or rebellion ; but it may have 
 powers to be used in those exigencies which are dormant 
 in time of peace. Such, for example, are the power to 
 call out the militia (art. 1, sect. 8), to try by martial law 
 cases arising in the militia (Amendments, 5), to sus- 
 pend the writ of habeas corpus (art. 1, sect. 9), to quarter 
 troops in private houses (Amendments, 3) ; but, when 
 the National Government is called to the stern duty of 
 repressing insurrection or repelling invasion; may not 
 new power over the relation of master and slave be 
 brought into action? Such, I think, is the result. 
 
 A plain case is presented by slaves employed in the 
 military and naval service of the rebels. If captured, 
 they may be set free. 
 
 The Government may refuse to return a slave to a 
 master who has been engaged in the Rebellion, or suf- 
 fered the slave to be employed in it. 
 
 It may require the services of all persons subject to 
 its jurisdiction by residing upon its territory, when the 
 exigency arises, to aid in executing the laws, in repress- 
 ing insurrection, or repelling invasion. This right is, in 
 my judgment, paramount to any claim of the master to 
 his labor, under the local law. There might be a ques- 
 tion of the duty of the slave to obey ; but the will of the 
 master could not intervene. His claim, if any, would be 
 a reasonable compensation for the labor of his slave. 
 
35 
 
 But, though the power may exist, there is, with [)ru- 
 dent and humane men, no desire to use it. Nothing 
 but the direst extremity would excuse the use of a 
 power fraught with so great perils to both races ; and 
 the glorious triumphs of our arms, evincing our capa- 
 city to subdue the Rebellion without departure from the 
 usages of civilized warfare, have indefinitely postponed 
 the question. 
 
 There is one other exigency in which the relation of 
 master and slave must give way to military necessity. 
 If the commander of a military district shall find that 
 the slaves within it, by the strength they give to their 
 rebellious masters, — by bearing arms, or doing other 
 military service, or acting as the servants of those who 
 do, — obstruct his efforts to subdue the Rebellion, he 
 may deprive the enemy of this force, and may remove 
 the obstruction, by giving freedom to the slaves. This, 
 it is apparent, is not a civil or legislative, but a strictly 
 military right and power, springing from the exigency, 
 and measured and limited by it, to be used for the sub- 
 duing of the enemy, and for no ulterior purpose. If the 
 commander-in-chief and the generals under him shall 
 observe faithfully this distinction, the use of the power 
 ought to be no just ground of complaint. If, in conse- 
 quence of the protraction of the war, the effect of the 
 use of this power should be to put an end to slavery in 
 any of the States, or to weaken and impair its force, we 
 may justly thank God for bringing good out of e^il. 
 
 In my judgment, it would be impracticable for the 
 Legislature, even if it had the power, to anticipate by 
 any general statute the exigencies or prescribe the rules 
 for the exercise of this power. The Legislature and tlie 
 people will be content to leave the matter to the sound 
 
36 
 
 discretion and sound patriotism of the magistrate se- 
 lected to execute the laws. 
 
 To avoid misconstruction, I desire to say that the 
 power of Congress orer slavery in this District is abso- 
 lute ; that no limitation exists in the letter or spirit of 
 the Constitution or the acts of cession. All that is re- 
 quisite for abolishing slavery here is just compensation 
 to the master. Equally absolute, in my judgment, is the 
 power of Congress over slavery in the Territories. 
 
 Mr. Chairman, in a letter to a friend, published on the 
 first day of the last year, I ventured to say that secession 
 should be resisted to tlie last extremity, by force of arms ; 
 that it cost us seven years of war to secure this Govern- 
 ment, and that seven years, if need be, would be 
 wisely spent in the struggle to maintain it ; that for 
 this country there was no reasonable hope of peace but 
 within the pale of the Constitution, and in obedience 
 to its mandates. The progress of events has served 
 only to deepen those convictions. They are as firmly 
 rooted as my trust in God and his providence. Who- 
 ever else may falter, I must stand by the Constitution I 
 have sworn to support. I am not wise enough to build 
 a better. I am not rash enough to experiment upon a 
 nation's life. There is, to me, no hope of "one country" 
 but in this system of many States and one nation, work- 
 ing in their respective spheres as if the Divine Hand 
 had moulded and set them in motion. To this system 
 the integrity of the States is as essential as that of the 
 central power. Their life is one life. A consolidated 
 government for this vast country would be essentially a 
 despotic government, democratic in name, but kept 
 buoyant by corruption, and efficient by tlie sword. 
 
37 
 
 Uesiring the extinction of slavery with my whole mind 
 and heart, I watch the working of events Avith devout 
 gratitude and with patience. The last year has done tlio 
 work of a generation. 13y no rash act of ours, much 
 less any radical change in the Constitution, shall we 
 hasten the desired result. If, in the pursuit of objects 
 however humane ; if, beguiled by the flatteries of hope 
 or of shallow self-conceit ; if, impelled by our hatred 
 of treason, and desire of vengeance or retribution ; if, 
 seduced by the "• insidious wiles of foreign influence," — 
 we yield to such change, we shall destroy the best hope 
 of freeman and slave, and the best hope of humanity 
 this side the grave. 
 
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. TRRORY OF CONGRESS 
 
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LIBRARY OF CON 
 
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