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 S P E E C 
 
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 bELIVEHED 
 
 IN THE SENATE OF THE UNITED STATES, 
 
 Wednesday, June 25, 1862. 
 
 The Senate, af? in Committeee of the Whole, 
 having resumed the consideration of the bill 
 (H. R. No. 471) to confiseate the property of 
 rebels for the payment of the expenses of the 
 present rebellion, and for other purposes — 
 Mr. BROWNING said: 
 Mr. President : We are in the midst of a 
 war for the support of the Constitution. li 
 there had been no departure from its principles, 
 no violation of its provisions, there would have 
 been no war. If all the citizens of the United 
 States would return to their allegiance to the 
 Constitution, and submit to its requirements, 
 the war would at once cease. It could not be 
 prolonged an hour. We are in arms against 
 the rebels because they are in arms against the 
 Constitution. They are struggling to overthrow- 
 it; we, to maintain and uphold it. this is the theo- 
 ry of the war. The practice should conform to the 
 theory. If it does not we are fighting in vain. We 
 should keep the re-establishment of the authority 
 of the Constitution and the Government over all 
 the States of the Union steadily before us as 
 the great central object of our efforts. Wg 
 cannot succeed unless we, ourselves, keep within 
 the limits of the Constitution, and respect and 
 submit to its authority. When we put aside 
 its provisions, break over its restraints, and go 
 outside of its limits, we become co-workers with 
 rebels and traitors in their work of destruction. 
 If, in the progress of the war, the Constitution { 
 falls, whether by the act of the rebels or by I 
 our act, or by the joint action of both, I repeat | 
 that the people will have fought and bled in | 
 vain, and have expended their treasure in vain, j 
 The Senator from Massachusetts [Mr. Sumner] { 
 in his discussion of the bill under considera-l 
 tion, has given expression to such novel and I 
 extraordinary views, and has announced, as un- 1 
 deniable law, principles of such dangerous \ 
 tendency, and which, if carried into legislation, I 
 will be so fatally mischievous in their conse- ! 
 quences, thtvt I cannot permit them to go to the I 
 country, and into the permanent records of its ' 
 history, without my earnest protest against! 
 them, in hov?ever feeble terms that protest mav i 
 be made. ' i 
 
 The Senator has truly stated the ends we 
 have in view, " national unity under the Con- 
 stitution of the United States." These ends 
 cannot be attained by the measures he propo- 
 ses. If it be conceded that they would secure 
 " national unity," they would fail of the other 
 end, to secure it "under the Constitution of the 
 United States," for they would tliemssives over- 
 throw that Constitution. The Senator strug- 
 gles with difficulties which could not beset him 
 if his 0)ilt/ object was " national unity under 
 the Constitution of the United States." This 
 object can be easily reached if vie forbear in- 
 fringing any provision of the Constitution, or 
 going outside of it. 
 
 But there is another object whieh cannot be 
 reached without going " outside of the Consti- 
 tution," and assuming and esereising powers 
 aot granted by it ; and I presume that I do the 
 Senator no injustice in suppnsingr him to be 
 more earnestly in pursuit of this object than 
 ciuy other. If not, whence the necessity of 
 quitting the Constitution and exoloring the 
 history of the world, from the time " when 
 .:>hab took the vineyard of Naboth, and David 
 gave away the goods of one of the confeder- 
 ates of Absalom ;" through all the barbarisms 
 of intervening ages, for sources from which 
 Congress is to draw its power to do the act 
 which he proposes ? Why refer us to the con- 
 liicalion bills of Colonial Legislatures, passed 
 during the struggle with the mother country? 
 They were restrained by no such provisions as 
 are^contaioed in our Constitution, but gave un- 
 bridled license to their exasperated and re- 
 vengeful passions. The wrong and injustice 
 of these colonial acts of confi'scation, and ex- 
 perience of the evils that grew out of them, 
 unquestionably led to the adoption of the clause 
 of the Constitution prohibiting a like power p 
 Congress. So far from the long array of colO; 
 nial acts, with which the Senate has been pre- 
 sented, being authority to justify Congress in 
 similar legislation, they are, on the contrary, 
 authority directly against it. While these acts 
 were yet upon the statute-books, and their ef- 
 fects present and palpable all over the country, 
 
the very men -who were actors in the exciting 
 events out of which they grew, fearing that a 
 time might come when the Congress of the na- 
 tion, blinded by passion, might venture to fol- 
 low the bad and dangerous precedents of the 
 Colonial Legislatures, took the most effective 
 measures to guard against it by inserting positive 
 prohibitions in the Constitution of the Union. 
 
 Still less support is derived from the practice 
 of the English Government. What the British 
 Parliament may have done heretofore affords 
 no safe analogy for the interpretation of the 
 Constitution of the United States. The consti- 
 tutions of the two countries are widely and es- 
 sentially different. I institute no comparison 
 of merit between them. The British constitu- 
 tion is unquestionably a magnificent work, per- 
 haps the best that could be devised for the gov- 
 ernment of the British people. But it is not 
 our Constitution. It is not a written constitu- 
 tion. " What Parliament declares to be the 
 constitution of England is the constitution of 
 England." Parliament may pass bills of at- 
 tainder, outlawry, and confiscation, and execute 
 them, and no question of power can be made, 
 for it is omnipotent, and its will the supreme 
 law of the land. 
 
 The constitution of England is subordinate 
 to the will of Parliament. The Congress of the 
 United States is subordinate to the Constitution. 
 It is hedged in with restraints which it cannot 
 break over or trample upon without most seri- 
 ous injury to the structure of the Government, 
 and great danger of sapping its foundations. 
 
 I therefore put aside, as inapplicable to our 
 condition, all the examples from ancient and 
 modern history. They neither prove nor illus- 
 trate any point in this debate. If we have the 
 power to pass the bill before us we derive that 
 power from the Constitution, and from no other 
 source. The practice of other nations, and of 
 the colonies prior to the adoption of the Con- 
 stitution, can give us no aid. The Constitution, 
 and the practice of our own Government under 
 it, and the expositions of it by the judicial tri- 
 bunals, and by the great men who made it, who 
 had studied it and understood it, and compre- 
 hended the grandeur and harmony of all its 
 principles, should alone be consulted, alone 
 accepted as authority. 
 
 The Senator was right when be said, " in 
 every Government bound by a written Consti- 
 tution, nothing can be done which is not in 
 conformity with the Constitution." After this 
 announcement we had a right to expect an 
 argument which would uncover and " exhibit 
 clearly" the sources of power in the Constitu- 
 tion itself, instead of a learned and interesting 
 disquisition upon the history of confiscations in 
 other countries, and a deduction of authority 
 from that. I know he claims the power under 
 the Constitution, and cites the provisions from 
 which he derives it ; but it is only necessary to 
 analyze his argument, indeed only necessary to 
 
 call attention to it, to expose its infirmity ani. 
 to show how far he has permitted his wishes to 
 mislead his judgment. 
 
 After stating that " the Constitution has not 
 been silent on this question," he recites the par- 
 ticular provisions which, in his opinion, con- 
 tain the grant of power to Congress to do all 
 which the bill before us proposes. He says the 
 Constitution " has expressly provided that Con- 
 gress shall have power, first, ' to declare war.' " 
 This is undeniably true, and the question 
 arises spontaneously to the lips, is this a bill to 
 declare war ? If so, the Senator is right in 
 claiming for Congress the authority to pass it. 
 If it is not, then be gets no support from this 
 provision of the Constitution. He might aa 
 well deduce from it the power to charter a na- 
 tional bank as the power to free slaves and con- 
 fiscate property. 
 
 Secondly, " to grant letters of marque and 
 reprisal." 
 
 The question again comes, is this a bill to 
 " grant letters of marque and reprisal ?" If 
 not, why quote the clause ? for, by virtue of it, 
 and from it, Congress gets no shadow of author- 
 ity to do any other act whatever. 
 
 Thirdly, " to make rules of captures on land 
 and water." 
 
 The Senator has, no doubt inadvertently, 
 misquoted the clause. As it stands in the Con- 
 stitution it is to '' make rules concerning cap- 
 tures on land and water." But the bill neither 
 makes rules of captures, nor concerning cap- 
 tures, and does not relate, in the remotest de- 
 gree, to captures, either on land or water, and 
 it cannot, therefore, lean upon this clause for 
 support, whether we give it the one reading or 
 the other. 
 
 Fourthly, " to raise and support armies.'' 
 Fifthly, " to provide and maintain a navy." 
 Will any Senator have-the temerity to attempt 
 to point out in what way this bill tends to raise 
 and support an army, or to provide and main- 
 tain a navy ? Would it not be a mockery of 
 the Senate to ask it to listen to an argument 
 intended for such a purpose? 
 
 Sixthly, " to make rules for the government 
 and regulation of the land and naval forces." 
 
 There is not one word in the bill that was 
 put there with any expectation of its having 
 the slightest effect on the government and reg- 
 ulation of either the land or naval forces. 
 
 Seventhly, " to provide for calling forth the 
 militia to execute the laws of the Union, sup- 
 press insurrections, and repel invasions." 
 
 There is no invasion to repel, and provision 
 has long since been made and carried into ef- 
 fect for calling forth the militia to suppress the 
 insurrection. No one has yet had the hard- 
 ihood to assert that this bill is intended for any 
 such purpose. If it is, it wouM be difficult to 
 imagine one less likely to accomplish the end. 
 Mr. SUMNER. May I interrupt the Sena- 
 tor? 
 
Mr. BROWNING. Yes, sir. 
 
 Mr. SUMNER. I understood the Senator 
 to say that the bill under discussion, which is 
 the House bill, was not founded on the provis- 
 ion of the Constitution concerning captures ; 
 that, in short, it did not in any way relate to 
 captures. Now, I have in my hand that bill, 
 and will read the introductory clause. It is as 
 follows : 
 
 " That all the estate and property, money, 
 ' stocks, credits, and effects of the persons here- 
 ' after named in this section are hereby forfeited 
 < to the Government of the United States, and are 
 ' declared lawful subjects of seizure and of prize 
 
 * and capture wherever found, for the indemnity 
 ' of the United States against the expenses of 
 
 * suppressing the present rebellion." 
 
 The bill, therefore, is derived directly, spe- 
 cifically, unequivocally, in just so many words, 
 out of the positive language of the Constitution 
 of the United States. 
 
 Mr. BROWNING. Mr. President, I am re- 
 plying to the Senator's speech on the basis on 
 which he made it. I am not willing that he 
 shall shift his ground now. At the time he 
 made his speech and gave utterance to the lan- 
 guage that I have quoted, the bill from which 
 be now reads had never made its appearance 
 in this body. 
 
 Mr. SUMNER. Will the Senator allow me 
 to interrupt him again ? 
 
 Mr. BRO WNING. Yes, sir. 
 Mr. SUMNER. I had already offered that 
 bill myself. It was on the table of the Senate 
 as my bill, to be voted on at the proper time 
 as an amendment to the Senate bill ; and I 
 now read from my owq bill, which has since 
 been adopted in the other House. 
 
 Mr. BRO WNING. The bill was not before 
 the Senate at the time the discussion was going 
 on. It may have been on the table. 
 
 Mr. SUMNER. The Senator will pardon 
 me. When I rose to make my speech, this bill, 
 in the form of an amendment or substitute, had 
 been already offered by me. It was on the ta- 
 i ble ; and notice was given that at the proper 
 1 time, when it would be in order, it would be 
 I pressed to a vote ; and my speech was made to 
 i support that bill. Therefore the Senator is en- 
 l tirely mistaken — I know he does not intend to 
 I do me injustice — when he says that I change 
 ! my ground. Sir, I have no disposition to do 
 tthat. I wish to meet this question frankly un- 
 I der the Constitution of the United States. I 
 tknow the strength of the position which I occu- 
 fpy, and I kuow it is only by misunderstanding 
 lit that it can be answered. 
 
 Mr. BROWNING. Mr. President, I will 
 ^endeavor not to misunderstand, and am very 
 ssure I will not willingly misrepresent the Sena- 
 ^tor. I desire to understand him distinctly. I 
 jam very sure I will not misrepresent him. 
 Mr, SUMNER. I know that you will not. 
 Mr. BRO WNING. It may be true, as he 
 
 says — it matters not to me, so far as this dis- 
 cussion is concerned, whether it is or not — that 
 the bill from which he now reads had been pre- 
 sented. Conceding it to be so, I think there is 
 no fair-minded lawyer who will take the pains 
 to examine the constitutional provisions, who 
 is familiar with the law of nations, and who 
 will compare them with this bill, who will not 
 at once concede that the bill, if it does in terms 
 relate to captures, does so in terms only for the 
 purpose of evading a plain constitutional pro- 
 vision ; that it does not come at all within the 
 spirit or the letter or the intention of the Con- 
 stitution. 
 
 These, I believe, are the only specific grants 
 of power upon which the Senator relies ; these 
 are the only sources from which he draws to 
 justify the bill. What conceivable measure 
 can passion or caprice suggest, that would not 
 find as much support in the provisions referred 
 to as a bill to free slaves and to confiscate 
 property ? And if this is the best showing of 
 authority that learning, talent, and ingenuity 
 can make from the Constitution, may we not 
 safely conclude that none whatever is to be 
 found within its lids ? 
 
 A very important part of the Senator's speech, 
 and which appears to me to be among the 
 most heterodox, and dangerous, and indefensi- 
 ble doctrines he puts forward, are ranged un- 
 der the inquiry, " what are the rights against 
 enemies which Congress may exercise in war ?" 
 To this inquiry the Constitution gives a very 
 explicit answer. They have all already been 
 enumerated. Congress may "declare war, 
 grant letters of marque and reprisal, and make 
 rules concerning captures on land and water." 
 It may " raise and support armies ;" " provide 
 and maintain a navy ;" " make rules for the 
 government and regulation of the land and 
 naval forces ;" " provide for calling forth the 
 militia to exeeute the laws of the Union, sup- 
 press insurrections, and repel invasions ;" and 
 " provide for organizing, arming, and discip- 
 lining the militia, and for governing such part 
 of them as may be employed in the service of 
 the United States." There is the answer, and 
 there is the whole of it. These enumerations, 
 extracted from the Constitution, declare all the 
 powers " which Congress may exercise in war ;" 
 and these it may exercise just as well in peace 
 as in war. Congress has no powers which are 
 peculiar to a state of war — none which are 
 •' dormant in peace and aroused into activity 
 only by the breath of war." Yet this I under- 
 stand to be the view which the Senator takes 
 of the Constitution, and of the powers of Con- 
 gress under it. I understand him to contend 
 that Congress may exercise. powers to-day, be- 
 cause war exists, which it cannot assert to-mor- 
 row if peace ensues ; and it is from this assump- 
 tion of a shifting power that he deduces author- 
 ity to Congress to pass the bill under conside- 
 ration. I wish to do him no injustice, and 
 
therefore quote his own languacje. He says : 
 
 " There is not one of the rights of war which 
 ' Congress may not invoke. There is not a sin- 
 ' gle weapon in its terrible arsenal which Con- 
 ' gress may not grasp." 
 
 And again : 
 
 " But when claiming these powers for Con- 
 ' gi-ess, it must not be forgotten that there is a 
 ' limitation of time with regard to their exercise. 
 ' "Whatever is done against the rebels in our char- 
 ' acter as belligerents under the rights of war, 
 ' must be done duringwar, and notafter its close." 
 
 That this is true when spoken of the Govern- 
 ment I now admit, and always have admitted ; 
 but that it is true when spoken of Congress I 
 utterly deny. " There is not one of the rights 
 of war which " the Government " may not in- 
 voke." There are many which Congress dare 
 not touch without becoming a usurper. And 
 now I deLsire, in all kindness, and with all 
 possible respect, to ask the gentleman whether 
 it is his deliberate judgment, as a lawyer and a 
 Senator, that Congress possesses attributes and 
 may exercise powers in the exigency of war 
 which it does not possess, and may not exer- 
 cise, when peace and tranquility overspread the 
 land? 
 
 Mr. SUMNER. Does the Senator wish an 
 answer ? 
 
 Mr. BROWNING. I have certainly no ob- 
 jection to an answer. 
 
 Mr. SUMNER. I answer most clearly that 
 Congress has powers during war and against 
 public euamies which it has not during peace 
 towards any citizens of the United States, 
 There are rights of war which belong to all 
 nations, and the United States is not without 
 them. Those rights may all be exercised 
 through Congress, but they must be exercised 
 in the time of war. /. s rights of war, they are 
 limited to war. There are penal statutes, stat- 
 utes against treason, statutes for the punish- 
 ment of rebellion, which may be enforced af 
 anytime, both in war and in peace ; but the 
 rights of war grow out of war, and can be ex- 
 ercised only during war. 
 
 Mr. BROWNING. I am happy to find 
 
 Mr. SUMNER, if the Senator will pardon 
 me, to go back to the topic on which we were 
 before 
 
 Mr. BBOY/NING. I cannot give way for 
 a speech to be interpolated, and I do not wish 
 to go back from the point I am discussing. 
 
 Mr. SUMNER. I merely wish to call the 
 Senator's attention to a point on which he dif- 
 fered from me. I stated that the speech I had 
 the honor of making some time ago was made 
 on my own bill. 
 
 Mr. BROWNING. I concede it, sir. 
 
 Mr. SUMNER. I find that the pamphlet 
 edi*ionj which I have in my hand, but which I 
 had not when the Senator did me the honor to 
 to it some moipents ago, is entitled as fol- 
 
 lows : "Speech of Mr. Sumner, of Massachu- 
 setts, on his bill for the confiscation of proper- 
 ty and the liberation of slaves belonging to 
 rebels." It was from that bill that I read, a 
 bill founded on that provision of the Constitu- 
 tion which confers upon Congress the power to 
 regulate captures. 
 
 Mr. BROWNING. I am perfectly willing 
 to concede all that. It neither changes nor 
 modifies any single point in this discussion. I 
 am very happy to find that I had neither mis- 
 understood nor misrepresented the Senator in 
 assuming that he contended that under the Con- 
 stitution Congress might exercise powers to- 
 day, because war existed, which it could not 
 exercise tomorrow if peace ensued. If this be 
 so, then I desire to know whether all the pow- 
 ers of Congress are not derived from the Con- 
 stitution ; whether it possesses any not granted 
 by the Constitution ; and what particular clause 
 or provision of that instrument it is which in- 
 vests it with authority to do an act today which 
 it would not have been equally competent to do 
 at any single hour of the last twenty years? 
 Yet this proposition must be maintained- to 
 justify the action which is urged upon us. It 
 must be shown that a state of war enlarges our 
 powers; for the. right is claimed to judge of, 
 and decide upon, military necessities ; and the 
 Senator truly says this, if done at all, "must be 
 done during war, and not after its close." The 
 reasoning upon this subject proceeds thus : " it 
 is the right of Congress to judge of, determine 
 upon, and order to be executed, all measures 
 dem.anded by military necessities ; but military 
 necessities do not arise when peace prevails, 
 therefore Congress cannot exercise these pow- 
 ers in times of peace, but can when war is 
 raging, and therefore the powers of Congress are 
 augmented and amplified by a state of war," 
 
 The premises are false, and the all deductions 
 made from them are likewise false. It is not 
 true that Congress may assume and exercise 
 all the active war powers in the actual prosecu- 
 tion of war. Ihe Constitution invests it with 
 no such prerogative. It is not true that Con- 
 gress may decide upon the measures demanded 
 by military necessities, and order them to be 
 enforced. If it can do so in one instance, it 
 can do so in every instance. If it can grasp 
 and wield this power in one case, it can do so 
 in all cases. I deny that the right exists, in 
 any case, to pass in judgment upon what is 
 properly called a military necessity. It may 
 become a military necessity when an array, with 
 its munitions and supplies, has been transported 
 across a stream, to destroy the bridge that bore 
 them safely over, and le.uvs only the deep and 
 rapid river in the rear. It maj be a military 
 necessity to preserve the bridge, that the means 
 of safe retreat may be at band if adverse for- 
 ture should require it. It may become a mili- 
 tary necessity, as an army mnTches through the 
 enemy's country, to wast3 and devastate it, and 
 
leave only ruin and desolation behind to sig- 
 nalize its passage. It may become a military 
 necessity, upon the surrender of a beleaguered 
 city, to give it up to pillage and plunder, or to 
 wrap it in flames and reduce it to a smouldering 
 and blackened heap of ruin. It may become 
 a military necessity, upon the approach of the 
 hostile army, to destroy all the stores and mu- 
 nitions of war, and retreat instead of fight. 
 It may become a military necessity to refuse 
 quarter in battle, or to put to the sword all the 
 prisoners who may be captured. Some of these, 
 I admit, are extreme cases, and of rare occur- 
 rence; but they have occurred, and will occur 
 again, and when they do they must be promptly 
 met and acted upon. 
 
 They are all of the class properly called mil- 
 itary necessities. And now, I again ask whether 
 it is seriously contended that Congress has 
 either right or power to judi^e of and determine 
 upon any one of them a month in advance of its 
 occurrence ? Whatever the seeming necessity 
 may be now, when the month has elapsed it may 
 no longer exist. May Congress to-day order that 
 upon the capture of a city a week hence it 
 shall, as a military necessity, be sacked and 
 burnt? However great the apparent necessity 
 for such measures now, the events of an hourmay 
 so change the face of affairs that the necessity 
 will be found in leniency, forbearance, and pro- 
 tection. May Congress to-day determine that 
 the military necessities of the next battle to be 
 fought will require that no quarter shall be 
 given, and that all prisoners shall be put to the 
 sword ? Let us register such an edict, and on 
 the page that chronicles man's deepest and 
 darkest infamy we will outlive the emperor who 
 fiddled by the light of his magnificent capital 
 in conflagration. 
 
 These necessities can be determined only by 
 the military commander, and to him the Con- 
 stitution has intrusted the prerogative of judg- 
 ing of them. When the Constitution made the 
 President " Commander-in-Chief of the army 
 and navy of the United States," it clothed him 
 with all the incidental powers necessary to a 
 full, faithful, and efficient performance of the 
 duties of that high office ; and to decide what 
 are military necessities, and to devise and exe 
 cute the requisite measures to meet them, is 
 one of these incidents. It is not a legislative, 
 but an executive function, and Congress has 
 nothing to do with it. Congress can '' raise 
 and support," but cannot command armies. 
 That duty the Constitution has devolved upon 
 the President. It has made him Commander- 
 in-Chief, and therefore Congress cannot be. 
 Nor can Congress control him in the command 
 of the army, for, if it can, then he is not Com- 
 mander-in-Chief, and the assertion of the Con- 
 stitution to that effect is a falsehood. And 
 whenever Congress assumes the control of the 
 army in the field, it usurps the powers of a co- 
 ordinate department of the Government, de- 
 
 stroys the checks and balances provided for the 
 safety of the people, and subverts the Constitu- 
 tion. Legislative encroachment upon the pre- 
 rogatives of the other departments thus boldly 
 once begun, where will it end ? It will go on 
 increasing in strength, and pushing its cop- 
 quests, till it subordinates the Constitution it- 
 self to its will, and becomes as omnipotent as 
 the British Parliament. It is from the legisla- 
 tive department of the Government that dan- 
 ger is to be apprehended ; not the executive or 
 judicial. They are inherently weak, and we 
 cannot too carefully guard against encroach- 
 ments upon their prerogatives by the legislative 
 department. In discussing the distribution of 
 the powers of Government to the three depart- 
 ments, and the danger to be apprehended from 
 them, Mr. Madison, in the forty-eighth number 
 of the Federalist, says : 
 
 " It is evident that neither of them ought to 
 ' possess, directly or indirectly, an overruling in- 
 ' fluence over the others in the administration 
 ' of their respective powers. It will not be de- 
 ' nied that power is of an encroaching nature, 
 ' and that it ought to be effectually restrained 
 ' from passing the limits assigned to it." * 
 
 * «■ * * * " The legislative 
 ' department is everywhere extending the sphere 
 ' of its activity, and drawing all power into its 
 ' impetuous vortex." * * "'^ " It is 
 ' against the enterprising ambition of this de- 
 ' partment that the people ought to indulge all 
 ' their jealousy and exhaust all their precautions. 
 ' The legislative department derives a superiority 
 ' in our Government from other circumstances. 
 ' Its constitutional powers being at once more 
 ' extensive and less susceptible of precise limits, 
 ' it can with the greater facility mask, under 
 ' complicated and indirect measures, the en- 
 ' croachments which it makes on the co-ordinate 
 ' departments." 
 
 Bat to return again for a moment to the 
 question whether Congress can control the Pres- 
 ident in the supreme command and direction 
 of the army, I ask attention to the fifty-ninth 
 number of the Federalist, by Mr. Hamilton, 
 He says : 
 
 " The President is to be Commander-in-Chief 
 ' of the Army and Navy of the United States. 
 ' In this respect his authority would be nominally 
 ' the same with that of the king of Great Britain, 
 ' but in substance much inferior to it. It would 
 ' amount to nothing more than the supreme com- 
 ' ma nd and direction of the military and naval forces, 
 ' as first general and admiral of the Confederacy ; 
 ' while that of the British king extends to the 
 ' declaring of war and to the raising and regula- 
 ' ting of fleets and armies, all whicli by the Con- 
 ' stitution under consideration v^ould appertain 
 ' to the legislature." 
 
 Here the respective powers of the President 
 and Congress, as connected with the Army, are 
 most clearly and distinctly stated. Congress 
 is to raise and regulate the Army ; when raised 
 
6 
 
 and regulated, the President is to have the su- 
 preme command and direction. 
 
 Again, in the seventy-fourth number, the 
 same distinguished statesman, recurring to the 
 same subject, said : 
 
 " The President of the United Stales is to be 
 ' Commander-in-Ghief of the Army and Navy of 
 ' the United States, and of the militia of the 
 ' several States vrhen called into the actual ser- 
 ' vice of the United States. The propriety of this 
 ' provision is so evident, and it is, at the same 
 ' time, so consonant to the precedents of the 
 ' State constitutions in general, that little need 
 ' be said to explain or enforce it. Even those of 
 ' them which have, in other respects, coupled the 
 ' Chief Magistrate with a council, have, for the 
 ' most part, concentrated the military authority 
 ' in him alone. Of all the cares or concerns of 
 ' Government, the direction of war most peculi- 
 ' arly demands those qualities which distinguish 
 ' the exercise of power by a single hand. The 
 ' direction of war implies the direction of the 
 ' common strength ; and the power of directing 
 ' and employing the common strength forms an 
 ' usual and essential part in the definition of the 
 ' executive authority." 
 
 This was all said before the adoption of the 
 Constitution, and to commend it to the accept- 
 ance of the people. At a later day, after it had 
 been adopted, and questions, as now, arose as 
 to the extent of the legislative power under it, 
 Mr. Madison, in discussing a bill before Con- 
 gress, said: 
 
 " He did not accede to the principle of the bill. 
 ' He did not see any such immediate prospect of 
 ' a war as could induce the House to violate the 
 ' Constitution. He thought that it was a wise 
 ' principle in the Constitution to make one branch 
 ' of the Government raise an army and another 
 ' conduct it. If the Legislature had the power 
 ' to conduct an army they might embody it for 
 ' that end. On the other hand, if the President 
 ' was empowered to raise an army, as he is to 
 ' direct its motions when raised, he might wish 
 ' to assemble it for the sake of the influence to 
 ' be acquired by the command. The Constitu- 
 ' tion has wisely guarded against the danger on 
 ' either side." — 4 Elliott's Debates, p. 444. 
 
 Now, hear again the Senator from Massachu 
 setts state the legal proposition from which he 
 deduces the power to Congress to give the sanc- 
 tion of enactment to the measures which he 
 proposes. Overturn his premises, and his con 
 elusions naturally and necessarily fall with 
 them. In stating what he claims to be a grant 
 of power to Congress by the Constitution to 
 control armies and conduct war, he says : 
 
 " Language could not be broader. Under its 
 ' comprehensive scope there can be nothing es- 
 ' sential to the prosecution of the war, its conduct 
 ' its support, or its success ; yes sir, there can be 
 ' nothingessential to its success which is not posi- 
 ' tively Avithin the province of Congress. There 
 ' is not one of the rights of war which Congress 
 
 ' may not invoke. There is not a single weapon 
 ' in its terrible arsenal which Congress may not 
 ' grasp." 
 
 The great architects of the Constitution, who 
 had studied it profoundly, and mastered and 
 comprehended its philosophy, and who could 
 not be driven by popular clamor in after years 
 to mar their majestic work, have placed and 
 left on record, for the admonition and guidance 
 of those who were to come after them, the sol- 
 emn and authoritive declaration, that it was 
 " a wise principle in the Constitution to make 
 one branch of the Government raise an army 
 and another conduct it." The fathers of the 
 Constitution, whose long experience of the 
 imperfections of existing systems had taught 
 them all the necessities to be provided for by 
 organic laws, distributed the powers of Gov- 
 ernment to different departments, and to pre- 
 vent conflicts and collisions, preserve order, 
 and secure harmony in the working of the sys- 
 tem, they erected barriers to keep them separ- 
 ate, and to confine each department to its ap- 
 propriate sphere, and restrain it from encroach- 
 ments upon another. ' 
 
 The honorable Senator recognises no such 
 barriers, 'no such separation of powers, but 
 claims that all executive powers which the 
 President may exercise in the prosecution of 
 the war are held by him in subordination to the 
 will of Congress, subject to its control and di- 
 rection, and all of which Congress may exercise 
 concurrently with the President if it so chooses. 
 He puts the matter thus : 
 
 " Doubtless there are rights of war, embracing 
 ' confiscation, contribution, and liberation, which 
 ' may be exercised by the commanding general 
 ' in the field, or may be ordered by the President, 
 ' according to the exigency." * ->i- * -5^ 
 ' But all these rights of war which I have re- 
 ' viewed to-day are deposited with the Govern- 
 ' ment of the United States, which means Con- 
 ' gress in conjunction with the President." 
 
 I will not pause to controvert the very re- 
 markable assertion that the President and Con- 
 gress constitute the Government of the United 
 States, but take issue at once with the Senator 
 upon the not less extraordinary proposition that 
 the rights of war are deposited with the Gov- 
 ernment to be exercised by Congress and the 
 President conjointly. There is not, sir, a single 
 power of the Government, so far as I am in- 
 formed or believe, not one single power, which 
 may be exercised either conjointly or concur- 
 rently by the different departments of Gov- 
 ernment. There are certain acts to be per- 
 formed which cannot be perfected without the 
 assent of both the executive and legislative de- 
 partments, but the part to be performed by each 
 is clearly and distinctly defined, and neither can 
 trench upon the province of the other. They 
 are separate and distinct acts, to be performed 
 by each department for itself, by its separate 
 action, and not by the conjoint action of both. 
 
The part to be performed by the President must 
 be performed by him alone. Congress can 
 neither do nor control the doing of it. If the 
 act is legislative, it must be done by Congress ; 
 if executive, by the President, and the Presi- 
 dent alone. « 
 
 Mr. SUMNER. May 1 interrupt the Sena- 
 tor tliGrG i 
 
 Mr. BROWNING. Yes, sir. 
 Mr. SUMNER. I should not interrupt him 
 if I did not hope to bring his attention to the 
 precise point. The Senator says that if the act 
 be legislative, it must be by Congress alone ; 
 if executive, by the President alone. I would 
 ask the Senator whether every legislative act 
 must not receive the signature of the President ? 
 Receiving the signature of the President, does 
 not every legislative act become the conjoint 
 work of the Congress and of the President ? 
 That is what I had in view when I said that 
 these rights of war were to be exercised by 
 Congress in conjunction with the President ; 
 for nothing done by Congress can receive final 
 effect until it has the signature of the President. 
 Mr. BROWNING. Mr. President, the lan- 
 guage of the Senator upon which I am com- 
 menting was, " there is not one of the rights of 
 war which Congress may not exercise ; there is 
 not a weapon in its terrible arsenal that Con- 
 gress may not grasp." Nothing is said about 
 the President. 
 
 Mr. SUMNER. And the Senator quoted the 
 words of mine, " in conjunction with the Presi- 
 dent." An act of Congress becomes a law only 
 through the signature of the President. 
 
 Mr. BROWNING. I am as fully aware of 
 that as the Senator can be. As I stated al 
 ready, there are certain acts which cannot be 
 perfected without the action of both Congress 
 and the President. I stated that, and stated it 
 distinctly ; but, sir, do they act conjointly or 
 concurrently? Neither. Congress has its part 
 to perform, and the President has his part to 
 perform ; and Congress can no more control 
 him in giving or withholding his approval to a 
 bill, than he can control Congress in giving or 
 withholding its approval. The acts are sepa- 
 rate and distinct, to be performed by each de- 
 partment for itself, wholly irrespective of the 
 wishes and wholly emancipated from any re- 
 straint by the other. 
 
 I say, sir, if the act is legislative, it must be 
 done by Congress ; if executive, by the Presi- 
 dent, and the President alone. Congress can- 
 not act with him either conjointly or concur- 
 rently. He is as supreme in his sphere as the 
 legislative department is in its sphere ; and in 
 the performance of the duties with which the 
 Constitution has charged him he cannot, with- 
 ■^^ut an abnegation of his authority, submit to 
 1)6 controlled by either Congress or the people, 
 hey being as completely subject to the Consti- 
 ation and as much bound to yield to its au- 
 hority as he is. It is admitted by the.Senator 
 
 that " there are rights of war, embracing con- 
 fiscation, contribution, and liberation, which 
 may be exercised by any commanding general 
 in the field, or may be ordered by the President 
 according to the exigency." This, sir, is an 
 admission fatal to the claim of power he makes 
 for Congress to exercise the same " rights of 
 war, embracing confiscation, liberation, and 
 contribution ;" for to show that the President 
 may exercise them is to demonstrate that Con- 
 gress cannot. I repeat what I have before said, 
 that there is no single power granted by the 
 Constitution to be exercised indifferently by 
 the President and Congress. The jurisdiction 
 is exclusive in each. If the one possesses it, 
 the other cannot. If this were not so, there 
 would be continual and dangerous collisions 
 between these two departments of Government. 
 One might choose to exercise the power in one 
 way, and the other precisely in the opposite 
 way, and this would result in such fatal antag- 
 onisms as would not only retard but absolutely 
 suspend the wheels of Government. 
 
 The exercise of the law-making power by 
 the President would be rank usurpation. It 
 is as flagrant usurpation, and far more danger- 
 ous to the integrity of the Constitution and 
 the Government, for Congress to assume exec ■ 
 utive power. 
 
 Another error into which zeal for confiscation 
 in this particular mode, and by congressional 
 action, has hurried the Senator, is to be found 
 in the assertion that " it is clear " " that there 
 is no limitation to the amount of fine which may 
 be imposed for crime, so that in its sweeping ex- 
 tent it may practically take from the criminal 
 all his estate, real and personal." Before dog- 
 matizing on the Constitution, it might be well 
 to read it. I quote the eighth artitle of the 
 amendments : 
 
 "Excessive bail shall not be required, nor ex- 
 ' cessive fines imposed, nor cruel and unusual 
 ' punishments inflicted." 
 
 Yet, in the teeth of this, the Senator asserts 
 that " it is clear that there is no limitation to 
 the amount of fine which may be imposed for 
 crime." With this ' claim of omnipotence for 
 Congress, it ought not to surprise us to hear 
 gentlemen contend that for the very common 
 and not very atrocious offence of assault and 
 battery the whole of a man's estate, real and 
 personal, may be swept from him by confisca- 
 tion, and his family pauperized, if Congress sc 
 wills it, and that all constitutional barriers tc 
 a like punishment for treason may be easilj 
 surmounted by a resort to the unlimited and 
 illimitable power of imposing fines. Whal 
 matters it that the Constitution interposes tc 
 stay the hand from giving up the estate to ab 
 solute forfeiture for treason ? We have sworr 
 to support the Constitution, and are troubled 
 with some " compunctious visitings of con- 
 science " when the precise thing which the Con 
 
stitution, in terms, forbids is proposed ; but bow 
 
 easy to calm the moral perturbation by a sneer 
 at constitutioual scruples, and reacb tbe same 
 end by the shorter and directer road of a fine 
 •wbose "insatiable maw" sball incontinently 
 swallow all at a gulp. 
 
 Mr. Justice Story, in his Commentaries on 
 the Constitution, says of this clause : 
 
 " The provision would seem to be.wholly un- 
 ' necessary in a free government, since it is 
 ' scarcely possible that any department of such a 
 'government should authorize or justify such 
 ' atrocious conduct. It was, however, adopted 
 ' as an admonition to all departments of the na- 
 ' tional Government,' to warn them against such 
 ' violent proceedings as had taken place. in Eng- 
 
 * land in the arbitrary reigns of some of the 
 ' Stuarts. In those times, a demand of excessive 
 ' bail was often made against persons who were 
 ' odious to the court and its favorites, and on 
 ' failing to procure it they were committed to 
 ' prison. Enormous fines and amercements were 
 ' also sometimes imposed, and cruel and vindic- 
 ' tive punishments inflicted. Upon this subject 
 ' Mr. Justice Blackstone has wisely remarked, 
 ' that sanguinary laws are a bad symptom of the 
 ' distemper of any State, or at least of its weak 
 ' constitution. The laws of the Roman kings, 
 ' and the twelve tables of the Decemviri, were 
 ' full of cruel punishments ; the Porcian lavv^, 
 
 * which exempted all citizens from sentence of 
 ' death, silently abrogated them all. In this 
 ' period the Republic flourished. Under the em- 
 ' perors severe laws were revived, and then the 
 ' empire fell." 
 
 It was to prevent a repetition of these op- 
 pressions, these atrocities, which, in times of 
 high party excitement and exasperation, had 
 often been perpetrated, and which the conven- 
 tion, judging more correctly than the commen- 
 tator, feared might be resorted to again, that 
 this provision was inserted. Long experience 
 had already taught the civilized world that un- 
 due severity of punishment, instead of prevent- 
 ing and diminishing crime, tended to provoke 
 and increase it. The progress of Christianity 
 had developed a wish to mitigate, as far as com- 
 patible with the imperfection of human institu- 
 tions, the rigor of criminal laws which involved 
 i the innocent in the punishments due to the 
 guilty; and this provision, as well as that 
 against forfeitures, and the passage of bills 
 of attainder, was inserted with a view to the 
 accomplishment of that object. 
 
 To a greater or a less extent, the wife must 
 suffer for theguilt of the husband, and the child 
 for that of the parent ; but this should be so 
 anly to the extent which is inevitable in God's 
 economy of the world, and human laws should 
 36 confined within that limit. It was the pur- 
 30se of the framers of the Constitution to pro- 
 ■.ect the innocent families of offenders from 
 itter impoverishment and ruin for crime which 
 hey had not committed, and could not prevent. 
 
 It was the intention to leave to such families the 
 means of subsistence and livelihood, after the 
 law had exhausted its power of punishment on 
 the criminal ; but this object has not been at- 
 tained, if the unlimited power of imposing fines 
 exists, as contended for by the honorable Sen- 
 tor from Massachusetts. If the existence of the 
 power can be demonstrated, there is a manifest 
 disposition, in some quarters, to use it to the 
 full extent suggested by him, " so that in its 
 sweeping extent it may practically take from 
 the criminal all his estate, real and personal." 
 
 The emergency, has come which the Consti- 
 tution contemplated. The stupendous, unpar- 
 alleled, and unprovoked crime of the traitors 
 in arms against the Government has justly ex- 
 asperated us, and inspired a desire to strip them 
 mercilessly, and with inexorable hand, of all 
 their earthly possessions. Many of them de- 
 serve no mercy ; and when the necessities of 
 the war demand it, they may be stripped, but not 
 by Congress. Congress can neither judge of 
 and determine military necessities in the field, 
 nor execute military powers. Nor is this what 
 is suggested by this part of the Senator's 
 speech, but to provide by law for sweeping 
 away everything by civil proceedings in the 
 courts. When this is attempted, we must look 
 to the Constitution for the extent of our pow- 
 ers ; and when limitations are found, respect 
 and obey them. All limitations in this respect 
 upon the military power are subject to modifi- 
 cations by the exigencies and necessities of the 
 war, to be judged of by the war-executing 
 power ; but no such modifications supervene to 
 amplify the authority of Congress. The trai- 
 tors deserve the severest punishments, and we 
 are anxious to strip them of their estates by 
 absolute forfeiture; but, upon looking into the 
 Constitution, we find our hands are tied ; the 
 power to do this is denied us. We are exas- 
 perated and restive under the restraint, and 
 seek for some other avenue through which we 
 may reach the same end. We resort to fines 
 which shall be so large as to absorb everything, 
 and practically accomplish the same result 
 which would be attained by forfeitures and con- 
 fiscations ; but the Constitution has hedged 
 against us here by providing that excessive 
 fines shall not be imposed. 
 
 Now, in these circumstances, what is the 
 duty of Congress ? Clearly, I think, to obey 
 the Constitution, and keep within its limitations, 
 and neither trample upon nor evade them. 
 These restraints were imposed because the ex- 
 perience of centuries had shown that power was 
 always struggling for expansion, for the en- 
 largement of its area of action ; and that this 
 was especially true in times of domestic distur- 
 bance and strong popular excitement ;- and it 
 was foreseen that, upon such occasions arising 
 here, it might be deemed a political necessity, 
 by Congress, for the punishment of great offend- 
 ers, who had committed stupendous crimes, to 
 
9 
 
 / ^ 
 
 pass bills of attainder, to confiscate estates for- 
 ever, or to impose excessive fines, which would 
 practically accomplish the same thing as abso- 
 lute confiscatioQ. The convention believed the 
 power a dangerous one, capable of great abuses, 
 and sure to be, at such tinaes, so abused as ten 
 times over to counterbalance all possible good 
 that could be attained by its exercise — capable 
 of being used as the instrument of crippling the 
 other departments of the Government, and final- 
 ly of usurping all their functions ; and there 
 fore, in the most emphatic terms, denied the 
 possession of any such powers at all. Congress 
 can exercise no powers not granted by the Con- 
 stitution ; but, with respect to those above enu- 
 merated, and some others, the convention was 
 not content with simply withholding the grant, 
 but put an express negation upon them all ; 
 thus tying the hands of the legislative depart- 
 ment of the Government as tightly as it was 
 possible to do by a written Constitution. 
 
 And, as has been most clearly and forcibly sta- 
 ted by the able, distinguished, and venerable 
 Senator from Vermont, [Mr. Gollamek,] the 
 prohibitions were inserted because it was fore- 
 seen that occasions would arise when Congress 
 would think it necessary to exercise the forbid- 
 den powers ; when the strongest temptation to 
 their exercise would exist; when popular cla- 
 mor might demand their exercise ; and when the 
 danger of their possession would be enhanced 
 just in proportion to the intensity of popular 
 feeling and resentments. These restrictions 
 were not provided for periods of tranquillity, 
 when all the departments of Government would 
 be moving smoothly and safely in their legiti- 
 mate spheres, without temptation to reach for 
 and grasp powers which did not belong to them, 
 but for times of turbulence and danger, when 
 inflamed passion would override reason, and 
 resentment dethrone discretion and justice. It 
 is no answer and no argument to say that it 
 appears to us to be both necessary and just to 
 confiscate, absolutely, the property of traitors, 
 or to impose fines which, " in their sweeping 
 extent, sha,ll practically take all their property, 
 real and personal," in punishment of their 
 great crime. It was for this very reason, that 
 it might seem to us necessary and just, and 
 because the great and wise patriots, sages, and 
 statesmen of the Revolution, who had had 
 practical experience of the effects of such 
 measures through all the stormy years of strug- 
 gle for independence through which they had 
 just passed, had been taught by that experi- 
 ence that they were neither necessary nor just, 
 that the power to adopt them, when we might 
 want to adopt them, was withheld from us. It 
 would have been foolish to forbid a power to 
 Congress which Congress would never want to 
 assert ; and it was precisely for the reason that 
 it was believed the time would come when the 
 Congress would want to do the prohibited 
 things that the power to do them was denied. 
 
 Now, to assert that this rebellion cannot be 
 suppressed without a resort to measures whicli 
 we have no power under the Constitution to 
 adopt, is to concede the success of the rebel- 
 lion, to admit that the Constitution is over- 
 thrown, and the Government a failure. It is 
 to admit that the aspirations of our fathers were 
 but the dreams of enthusiasts, and that the in- 
 stitutions they founded, though flourishing for 
 a time while the skies were clear and calm, 
 have been prostrated in ruin by the first storm 
 of faction that broke upon them. This I am 
 not willing to concede. The legitimate and 
 acknowledged powers of the Government, un- 
 der the Constitution, are fully adequate to all 
 the necessities of selfdefence, protection, and 
 perpetuation, if we will only give them fair 
 play — only confine each department to its own 
 orbit, let it work with its own instrumentalities, 
 and prevent collisions which shall disturb and 
 unsettle the delicately adjusted balance. To 
 save the Government we must save the Consti- 
 tution. When the Constitution is given up and 
 we have to resort to means outside of it, the 
 Government is given up with it. There is an 
 end of it. Some sort of political organization 
 may still exist, some sort of political machinery 
 may take its place; but it will no longer be the 
 Government of our fathers. Its whole essence 
 and structure will be changed. No landmarks, 
 no guides, no guarantees will be left, and no 
 citizen will know his rights or duties, except 
 as they are declared from day to day by the 
 capricious, unsteady, unregulated, and irrespon- 
 sible will of Congress. 
 
 Now, Mr. President, when we shall deliber- 
 ately have carried into a law the assertion that 
 there is no limitation, except the will of Con- 
 gress, "to the amount of fine which may be 
 imposed for crime," we have gone far, very far, 
 in the work of demolition. We have thrust one 
 supporting stone from the arch. Segregation 
 will have begun, and all the separate pai-ts of 
 the structure must soon fall asunder. And 
 bow easily, how naturally, how necessarily thia 
 system of reasoning, when once adopted, leads 
 its votary on, step by step, to the denial or per- 
 version of all that has been regarded as settled 
 by the jurisprudence of the past, and drives him 
 into a legal labyrinth, from which his only 
 guide is the thread of the in rem ! All proceed- 
 ings in rem for the condemnation of captures 
 have heretofore rested upon the guilt of the 
 thing proceeded against. I am not aware of 
 an exception. The honorable Senator admits 
 that this is so, and then, to maintain a show of 
 consistency, proceeds in an effort to prove that 
 all the property of a traitor participates in his 
 guilt, and is all. therefore, liable to be proceed- 
 ed against in rem, and absolutely confiscated, 
 wholly irrespective of proceedings in personam 
 against the guilty owner. 
 
 Mr. President, I certainly intend to treat the 
 distinguished Senator from Massachusetts and 
 
10 
 
 his opinions with the greatest possible respect, 
 and trust that I am guilty of no discourtesy 
 when I ask whether anything can be more fal- 
 lacious or more dangerous than his reasoning 
 upon this subject. He says : 
 
 " Through his property the traitor is enabled 
 ' to devote himself to treason, and to follow its 
 ' accursed trade, waging war against his country, 
 ' so that his property may be considered guilty 
 ' also." 
 
 This one brief sentence sweeps away the an- 
 cient basis of proceedings in rem, and lays a 
 new founda,tion upon entirely new principles. 
 It is no longer a question of the actual partici 
 pation of the propf^rty in guilt, but the guilt of 
 the property in all cases is to be inferred from 
 the guilt of the owner, however innocent and 
 impassive the property may be, and however 
 far separated from its owner and the theatre of 
 his crime. I beseech of the Senator to pause 
 and review his doctrines, and earnestly to con- 
 template the dangerous issues to which they 
 lead. Is it any more true of the traitor than it 
 is of the thief, the burglar, or the niurderer, 
 that his property enables him to devote himself 
 to crime, " and follow its accursed trade ?" The 
 man without property may shoulder his musket 
 and levy war against his country. The man 
 of wealth may do the same thing, but his wealth 
 enables him to engage others in the same work. 
 The man without property may devote himself 
 to the work of robbery or assassinalion. So 
 may the man of wealth, but he has the means 
 of suborning others as confederates in wicked 
 ness and crime. There is absolutely and 
 positively no difference in the effect produced 
 by treason upon the property of the offender 
 and the effect produced by any other crime; 
 and if treason subjects all the property of the 
 offender to be proceeded against in rem for the 
 punishment of the owner, without any reference 
 to the uses to which the property has been ap 
 plied, the same effect must be produced, and 
 the same consequences ensue, to all the proper- 
 ty of every other public offender, whatever his 
 crime may be. Neither the Constitution nor 
 law recognises any distinction in this regard 
 between treason and other crimes. If, then, 
 we accept the law as stated by the Senator 
 from Massachusetts, a total revolution is wrought 
 in our criminal jurisprudence, and, in despite 
 of all the safeguards of the Constitution, pro- 
 ceedings in 'personam, for the punishment of 
 crime may be totally ignored, and punish- 
 ment inflicted by proceeding against property 
 alone ; or, what is yet worse, by punishing the 
 same act twice, by separate proceedings, either 
 simultaneously or at different times, against 
 both person and property. 
 
 Confiscation of property for the crime of the 
 owner cannot be effected by proceedings in 
 rem, but can follow only upon the personal con- 
 viction of the offender, in punishment of his 
 crime. The law upon this subject is stated 
 
 with so much force and perspicuity by Judge 
 Sprague, in his opinion recently delivered in 
 the case of the Amy Warwick, that I venture 
 to ask the attention of the Senate to a conside- 
 ration of his views. He says : 
 
 "Another objection to those decisions of the 
 ' district courts is founded upon the apprehen- 
 ■ sion that they may lead to or countenance cruel 
 ' and impolitic confiscations of private property 
 ' found on land. This apprehension is iinfound- 
 ' ed. No such consequence can legitimately fol- 
 ' low. Those decisions undoubtedly assert that 
 ' the United States have the rights of belligerents. 
 ' But the extent of those rights on land, or the 
 ' manner in which tbey were to be exercised, was 
 ' not discussed. They were not even adverted to, 
 ' except to say that enemj^'s property found by a 
 ' belligerent on land, within his own coui>try, on 
 ' the breaking out of a war, will not be con- 
 ' demned by the courts, although it would be if 
 ' found at sea. This distinction, so far as it goes, 
 ' tends to show that the doctrine of maritime cap- 
 ' tures is not to be applied to seizures on land. But 
 ' the danger upon which this objection is founded 
 ' does hot arise from the administration of the 
 ' prize laws by the courts, or the exercise of bel- 
 ' ligerent rights by military commanders upon 
 ' military exigencies. The objection really arises 
 ^ from fear of the legislation of Congress. It is 
 ' apprehended that they may pass sweeping or 
 ' general acts of confiscation, to take practical 
 ' effect only after the rebellion shall have been 
 ' suppressed ; that whole estates, real and per- 
 ' sonal, which have not been seized during the 
 ' war, may be taken and confiscated upon com- 
 ' ing within the reach of the Government, after 
 ' hostilities shall have ceased. This, as we have 
 ' seen, would not be the exercise of belligerent 
 ' rights, the war being at an end. Belligerent 
 ' confiscations take effect only upon property of 
 ' which possession is taken daring the war. As 
 ' against property which continues under the 
 ' control of the enemy they are wholly inopera- 
 ' tive. If possession be acquired by or after the 
 ' peace, then previous legislation may take ef- 
 ' feet, but it will be by the right of sovereignty, 
 ' not as an act of war. Under despotic govern- 
 ' ments the power of municipal confiscation may 
 ' be unlimited, but under our Government the 
 ' right of sovereignty over any portion of a State 
 ' is given and limited by the Constitution, and 
 ' will be the same after the war as it was before. 
 ' When the United States take possession of 
 ' any rebel district they acquire no new title, but 
 ' merely vindicate that which previously existed, 
 ' and are to do ouly what is necessary for that 
 'purpose. Confiscations of property., not for any 
 ' use that has been made of it, which go not against 
 ' an offending thing, but are inflicted for the personal 
 ' delinquency of the owner, are punitive ; and pun- 
 ' ishment should be inflicted only upon due conviction 
 ' of personal guilt." 
 
 Without multiplying authorities, I may safely 
 say that this is undeniably the law, I do not 
 understand the Senator to deny that it is the 
 law. Indeed, be distinctly admits that " the 
 
11 
 
 reason for proceedings in rem is," " that the 
 thing is in a certain sense an offender, or at 
 least has co-operated with the offender, as in 
 the case of a ship in the slave trade." Admit- 
 ting the law and the restraints of the Constitu- 
 tion, for they cannot be denied, he simply ad- 
 vises that we shall disregard them both. . 
 
 He spurns everything which stands in the 
 •way of his wishes, and boldly and defiantly as- 
 serts that the Constitution gives to the citizens 
 of this country no guarantees which Congress 
 is bound to respect. This is his language : 
 
 " Glorious as it is that the citizen is surround- 
 ' ed by the safeguards of the Constitution, yet 
 ' this rule is suspended by war, which brings into 
 '■ being other rights, which know no master." 
 
 Among the other safeguards with which the 
 Constitution has surrounded the citizen, are the 
 following : 
 
 " Congress shall make no law respecting an 
 ' establishment of religion, or prohibiting the 
 ' free exercise thereof; or abridging the freedom 
 * of speech or the press ; or the right of the peo- 
 ' pie peaceably to assemble, and to petition the 
 ' Goveynment for a redress of grievances." 
 
 According to the Senator these are all sus- 
 pended ; and to-day Congress may pass laws 
 establishing a national religion, prohibiting the 
 free exercise of religion, abridging the freedom 
 of speech and of the press, and punishing the 
 people for peaceably assembling to petition for 
 redress of grievances. If all these safeguards 
 are superseded, why not? What is to hinder 
 if the disposition to do so shall chance to exist ? 
 I cannot hear such doctrines deliberately an- 
 nounced upon the floor of the American Senate 
 without the most serious alarm, and being 
 forced to ask myself, where are we drifting ? 
 
 Mr. SDMNER. Does the Senator attribute 
 any such doctrines to me ? They exist only in 
 his own imagination, not in anything I have 
 ever conceived, certainly not in anything I have 
 ever uttered. I have simply said that the rights 
 of war are without any limitations in the Con- 
 stitution. The rights of the citizen are always 
 under the safeguard ^f the Constitution; and 
 now that we are engaged in war we have no 
 more power as regards the citizen to establish 
 a national religion or to suspend any of those 
 other safeguards, than we have in time of peace. 
 I never conceived any such idea, nor has any- 
 thing ever fallen from me which could have 
 given rise to such an idea. 
 
 Mr. BROWNING. Mr. President, I read 
 again, in the hearing of the Senate and the 
 Senator, his own language : 
 
 " Glorious as it is that the citizen is surrounded 
 'by the safeguards of the Constitution, yet this 
 ' rule is suspended by war, which brings into be- 
 ' ing other rights, which know no master." 
 
 Mr. SUMNER. That is, the rights of war. 
 I speak only of the rights of war; I do not 
 
 allude to anything else under the Constitution. 
 The rights of war, I say, know no master. 
 
 Mr. BROWNING. " Glorious as it is that 
 the citizen is surrounded by the safeguards of 
 the Constitution, yet this rule is suspended." 
 
 And what are these other rights brought into 
 being " which know no master?" And with 
 whom are they deposited, and by whom are 
 they to be exercised? Not the people, for if 
 this new doctrine be true, all the safeguards 
 which the Constitution provided for them are 
 superseded. It is Congress which is to "know 
 no master." It is Congress which is to pursue 
 its objects outside of the Constitution, and to 
 dominate over everything and everybody, with 
 no guarantees for anything or anybody, except 
 its own moderation and forbearance. 
 
 May I not conclude that the Senator himself 
 is convinced that the measures he proposes and 
 the bill he advocates cannot be passed under 
 and in harmony with the Constitution ? If he 
 believed that he could accomplish his ends 
 without departing from the Constitution or in- 
 fringing its provisions, would he ever have ven- 
 tured to take shelter under the dangerous, rad- . 
 ical, and revolutionary doctrine that the safe- 
 guards with which the Constitution has sur- 
 rounded the people are superseded ; that other 
 rights, which know no master, are brought into 
 being; and that Congress may pursue its ob- 
 jects outside of the Constitution? 
 
 It was not without surprise that I heard the 
 Senator announce the double character of the 
 rebels as a discovery which relieved the subject 
 of all difSculty and embarrassment, and placed 
 the powers which he claims for Congress be- 
 yond further question. Who has discussed this 
 question without looking at them in the double 
 aspect of criminals and enemies? He says: 
 
 "Regarding the rebels as criminals, you may 
 ' so pursue and punish them." 
 
 This nobody doubts or controverts. But, 
 regarding them as criminals, how are you to 
 "pursue and punish them?" With sword and 
 m usket and bayonet ? With measures of " con- 
 fiscation, contribution, and liberation ?" No, 
 sir ; but in conformity with the modes prescribed 
 by the Constitution and laws. By indictment, 
 arrest, and trial before a jury of the country; 
 and, when convicted, by inflicting the punish- 
 ment previously ascertained and denounced by 
 the law. When this is done, the power of pun- 
 ishment of the offender as a criminal is ex- 
 hausted. As criminals you cannot confiscate 
 their property, nor pursue them with bills of 
 attainder and outlawry. And this is all the 
 answer I desire to give to this suggestion. The 
 gentleman proceeds: 
 
 " Regarding them as enemies, you may blast 
 ' them with that summary vengeance which is 
 ' among the dread agencies of war." 
 
 Here I will have no controversy with the 
 Senator. I accept the proposition as sound 
 
12 
 
 and true, and in exact harmony witli the Con- 
 stitution and international law. It is precisely 
 what those of us who oppose this bill have con- 
 tended for from the beginning ; and if we will 
 adopt and act upon this principle we will not 
 hesitate to cease the controversy here, and let 
 all these confiscation bills go. For the pres- 
 ent we must regard the rebels as enemies, and 
 pursue them v/ith " the dread agencies of war." 
 To enable us to do so, and do it most efficiently, 
 no such legislation is demanded. 
 
 " The drea,d agencies of war" already exist. 
 It is only necessary to grasp and wield them ; 
 and that is an executive and not a legislative 
 function. I cannot give my assent to the dan- 
 gerous doctrine, now, I believe, for the first 
 time distinctly put forward, that Congress has 
 co-ordinate powers with the President in the 
 execution of the laws of war. 
 
 It will be observed that the question now 
 made is not as to whether the property of reb- 
 els shall be subjected to confiscation, nor to 
 what extent confiscation shall take place, if re- 
 sorted to at all, but one of far greater magnitude, 
 namely, who shall conduct the active opera- 
 tions of war, and determine upon and enforce 
 military necessities ? If the doctrines contended 
 for be true, the President is stripped of his 
 most valuable prerogatives ; he ceases to be a 
 check upon legislative power ; ceases, in fact, 
 to be a co-ordinate department of the Govern- 
 ment. He will no longer be supreme under 
 the Constitution in his constitutional sphere, 
 but will be reduced to pitiable dependence 
 upon the will of Congress, possessing and ex- 
 ercising only such powers as Congress chooses 
 to concede, and at such time and in such man 
 ner as Congress may think proper to prescribe. 
 When this is done the revolution will be com- 
 plete. The Government will no longer be the 
 Government which was evolved from the con 
 vulsions of 1776, and transmitted to us by our 
 fathers, and we will have but little left worth 
 struggling for. In comparison with thetrtamph 
 of this doctrine, the success of the rebellion 
 would be insignificant in radical, startling, and 
 permanent damage to republican institutions. 
 
 The Senator has carefully avoided any dis- 
 cussion, or even expression of opinion, upon the 
 question of the relation which the rebels sustain 
 to us during the continuance of the war. We 
 must recognise them in some distinctive char- 
 acter, and deal with them accordingly, conced- 
 ing to them all the rights which pertain to that 
 character. The Senator felt the embarrass- 
 ment of this, and struggled with it, I think in- 
 effectually, throughout his speech.— If the char- 
 acter of public enemies is conceded, then, while 
 the war lasts, we must pursue them with " the 
 dread agencies of war," and with them alone ; 
 and I have endeavored to show, and think I 
 have shown, that the right to use these is de- 
 posited in other hands than those of Congress. 
 If the character of enemies is denied, and that 
 
 of criminals alone accorded, then we cannot 
 pursue them with the "dread agencies of war." 
 We can use no more force against them than is 
 necessary to arrest them and bring them to 
 trial according to the provisions and require- 
 ments of the Constitution and laws. 
 
 The Senator says : 
 
 " Standing, as we do, face to face with enemies 
 ' who are striking at the life of the Republic, it 
 ' is painful to find ourselves subjected to all the 
 ' embarrassments of a criminal proceeding, as if 
 ' this war was an indictment, and the army and 
 ' navy of the United States, now mustered on 
 ' land and sea, was only a posse comitatus." 
 
 This, sir, is precisely the character to which 
 the arguments and measures of the Senator 
 would degrade the army and navy. It is, in- 
 deed, the exact proposition he makes. In a 
 suijsequent part of his speech he says : 
 
 " Or, regarding them both as criminals and 
 ' enemies, you may marshal against them all the 
 ' double penalties of rebellion and of war, or, 
 ' better still, the penalties of rebellion and the 
 ' triumphs of war." 
 
 Now, if they are to be dealt with as crimi' 
 nalSj our only " triumphs of war " must be the 
 triumphs of arrest by the posse comitatus, that 
 the offender may be handed over to the judicial 
 tribunals, there to be pursued, according to law, 
 with the penalties of the law. 
 
 This cannot be done. It would be a viola- 
 tion of all the laws of civilized warfare. We 
 cannot capture them as eri'^viies in war, and 
 proceed at once to punish them as criminals 
 under the municipal laws. Would the gentle- 
 man himself consent that his theory should be 
 reduced to practice? Will he advise that all 
 those who have been captured on the field of 
 battle, as prisoners of war, shall now, while the 
 war yet rages, be indicted, convicted, and exe- 
 cuted as traitors ? Does he not know that this 
 is utterly impracticable? Does he not know 
 that one such execution by us would be the 
 signal for retaliation by them upon onr own sol- 
 diers, who, by the chances and casualties of 
 war, are now prisoners in their hands ? And 
 when they had dared to drag one of our brave 
 and patriotic soldiers to the gallows, and hang 
 him up as a felon, could we retrace our steps ? 
 Could we tamely submit to the outrage ? Would 
 we dare submit? Submission would annihilate 
 our army, ruin our cause, and bring upon us 
 the deserved contempt of the world. We would 
 be forced by every consideration of self-respect 
 and self-preservation, to resent the act by re- 
 taliation. The inevitable and shocking result 
 would be the brutal and merciless butchery of 
 all prisoners on both sides, and to intensify the 
 war, and imbue it with- a cruelty, vindictive- 
 ness, and ferocity surpassing the murderous 
 and bloody warfare of savages, and to make 
 reunion and fraternity among our unhappy peo- 
 ple an impossibility in all time to come. 
 
13 
 
 When the war is ended, and the rebellion 
 suppressed, we may then resume dominion 
 over the rebels as citizens, and indict, try, and 
 punish them for their treason to any extent 
 which may be deemed wise and necessary. 
 But then we must abandon the agencies of war. 
 We cannot pursue and capture them as enemies^ 
 and at the same time try and execute them as 
 criminals. We cannot marshal against them 
 at the same time the " double penalties " of 
 war and the criminal code. It is neither law- 
 ful nor expedient to do so, and the attempt 
 only embarrasses and bewilders. 
 
 The Senator says : 
 
 " Dwelling on these things, I feel humbled 
 ' that the course of the debate has imposed upon 
 ' me any such necessity." 
 
 The necessity referred to is that declared on 
 the threshold of his speech, of opening " the 
 question in such a way as to exhibit clearly all 
 the points in issue.'''' 
 
 It must be a happy state of mind which ena- 
 bles one to abase himself for the short-comings 
 of his neighbors, and thank God that he is not 
 as other men. He who has attained to such a 
 state of perfection as to justify him in doing so, 
 must be approaching his apotheosis, and rap- 
 idly verging to the point when he shall be with 
 drawn trom contaminating contact with the 
 world. 
 
 The Senator is Jmvibled by the course of de- 
 bate pursued by his brother Senators in this 
 Chamber, and deplores the necessity imposed 
 upon him of exhibiting " clearly all the points 
 in issue." He speaks ex cathedra ; and when 
 he has spoken, there is an end of it. The de- 
 bate is closed. He has " exhibited clearly all 
 ike points in issue." There is nothing further 
 to be said. Who can have the presumption, 
 the audacity, to doubt as to the course to be 
 pursued, or continue the discussion, after his 
 oracular enunciation of the law. Listen and 
 be enlightened. He says: 
 
 " In point of law " * 45- -a- a t^q 
 
 ' may treat the people engaged against us as crim- 
 ' inalg, or as enemies, or, if we please, as both." 
 
 But shall we treat them as criminals or as 
 enemies ? That is the question, and the ques- 
 tion which remains unanswered by the Senator. 
 
 "If we treat them as criminals, then we are 
 ' under the restraints of the Constitution." 
 
 Who has contended for more ? Who has 
 asserted more ? This is one of the very prop- 
 ositions the advocacy of which by others has so 
 humbled him. 
 
 "If y.'-e treat them as enemies, then' we have 
 ' all the latitude sanctioned by the rights of war." 
 
 Of this who has made any question ? Who 
 that has taken part in this discussion has not 
 only affirmed it, but earnestly urged the vigor- 
 ous employment of all the most terrible agen- 
 cies of war to vanquish our enemies and crush 
 
 the rebellion ? Who has humbled him by a de- 
 nial of this right ? 
 
 " If we treat them as both, [enemies and crim- 
 ' inals,] then we combine our penalties from the 
 ' double sources."' 
 
 Here I take issue with the Senator, and deny, 
 in the most emphatic terms, that we may, at 
 the same time, treat them both as enemies and 
 criminals, and " combine our penalties from the 
 double sources." 
 
 I have already remarked briefly on this point, 
 and will not now dwell upon it longer. This is 
 the main feature of his theory, and to enable 
 him to attain the object he has most at heart it 
 is necessary that he shall maintain it. His ef- 
 fort to do so was able aod ingenious. He will 
 pardon me for saying in my opinion it was iar 
 from successful. When we treat the rebels as 
 criminals, he admits that we are " under the 
 restraints of the Constitution." If we treat 
 them as enemies, then we pursue them with 
 " the dread agencies of war;" but these must 
 be wielded by the Army, and not by Congress. 
 If we elect to treat them as the one or the other, 
 in neither event can the power be claimed for 
 Congress to do the act and reach the end at 
 which the Senator is aiming ; and it is to escape 
 this difficulty, and open a new source of power 
 for Congress, that he has taxed bis talents and 
 his learning, and been driven, in despite of them 
 both, to the extraordinary proposition to treat 
 them at the same time both as enemies and 
 criminals, and from this makes the illogical de- 
 duction that, as in the one character they can- 
 not be pursued with war, and in the other can- 
 not be pursued in the courts, that therefore 
 Congress displaces both the Executive and the 
 judiciary, and acquires absolute and unlimited 
 control over them in both characters, and may 
 proceed to do any and everything which we 
 may suppose to be necessary, whether meeting 
 the sanction of the Constitution or not. 
 
 The effort to maintain this proposition has 
 involved the Senator's argument in inextricable 
 confusion. Let me group together a few pas- 
 sages culled from different parts of his speech. 
 These are his words : 
 
 "In every Government bound bj" a written 
 ' constitution nothing can be dons which is not 
 ' in conformitj- with the constitution." 
 
 " The rebels have gone outside of the Consti- 
 ' tution to make war upon their country. It is for 
 ' U3 to pursue them as enemies outside of the 
 ' Constitution, where they have wickedly placed 
 ' themselves, and where the Constitution con- 
 ' curs in placing them also." 
 
 We, sir, are bound by a " written Constitu- 
 tion," and it is admitted that nothing can be 
 done by us "not in eonformiiV wUh the Con- 
 stitution," and yet we are told by the same au- 
 thority it is our duty to " pursue the rebels 
 outside of the Constitution." Can it be ueees- 
 sary to repeat what has not be-erft denied, and 
 
14 
 
 what I apprehend will not be denied, that Con- 
 i; gress possesses no power, and can exercise no 
 .. power, not granted by the Constitution ? This 
 5 being true, Congress can pursue no object out- 
 ,, side of the Constitution without disregarding 
 i the Constitution, and usurping power which it 
 t does not possess. The Senator has a work for 
 Congress to perform which it cannot do within 
 •c the Constitution ; hence his anxiety to prove its 
 I right to go outside of it. Even the army can- 
 £ not pursue an enemy outside of the Constitu- 
 i tion ; that is, it can do nothing in such pur- 
 [j suit which is in violation of the Constitu- 
 ^ tion. Our '■ Government is bound by a writ- 
 it ten Constitution, and nothing can be done 
 J., which is not in conformity with the Constitu- 
 11 tion " by any department of the Government. 
 .(; No one of them, executive, legislative, or ju- 
 e dicial, can go outside of it to grasp powers not 
 X granted by it. Nor is it necessary that they 
 j( should. Every power necessary to defence, 
 3 protection, ai:d preservation is in the Govern- 
 ig ment under the Constitution. All the powers 
 i-[ of war are in the Government under the Con 
 ^n stitution. All belligerent rights are ours under 
 jr, the Constitution, including every prerogative of 
 il capture, " confiscation, requisition, or libera- 
 I]. tion known in war ;" all of which may be as- 
 ^01 serted by this Government under the Constitu- 
 te tion. Every law of nations, with its privileges, 
 , 1; protections, and restraints, is ours, under the 
 tei Constitution ; and it is not true that any emer- 
 le gency has arisen, or can arise, imposing a 
 ut necessity to pursue any object outside of the 
 p( Constitution. This is the completest and 
 y.Q grandest, and best adjusted scheme of govern- 
 3 , ment that was ever devised by the wisdom and 
 lei patriotism of man. Let us hold it fast to the 
 JVlsure foundations on which its great builders 
 )le placed it. So long as the different departments 
 Jo of Government are held to their proper orbits, 
 rulthere is no power which can by possibility be- 
 'at'come necessary for the suppression of the rebel- 
 jtrlion, the condign punishment of treason, and 
 rjf the re-establishment of the authority of the 
 sy^oGrOvernmeut wherever it has been displaced, 
 peithat may not be asserted by the Government 
 within the Constitution. It is only where one 
 cujdepartment invades the prerogatives of another 
 nuthat it becomes necessary for it to go outside 
 to of the Constitution. 
 
 uii The Senator wishes to accomplish an object 
 acwhich is now fully within the constitutional 
 injpower of the Executive. Am I wrong in sup- 
 cbposing that he distrusts the Executive, and 
 mfears the power will not be pushed to the ex- 
 efjtremity which he desires? Hence, he claims 
 acthe power tor Congress. But Congress cannot 
 tbissume and exercise it within the Constitution, 
 iifcherefore he is driven to claim the right for 
 aiCongress to go outside of the Constitution to 
 li^each this particular end. 
 pc I again bring together paragraphs from dif- 
 Ifferent parts of his speech that their strong an- 
 
 tagonisms may be seen at a glance, that it may 
 be perceived at once how utterly irreconcilable 
 they are. He puts the question of slavery thus : 
 
 " Congress has no power under the Constitu- 
 ' tion over slavery in the States, ^ a- * * 
 ' But there is another power without which, I 
 ' fear, the end will escape us. It is that of con- 
 ' fiscation and liberation, and this power is just 
 ' as constitutional as the other two." -^^ ^ * * 
 
 " In declaring the slaves free, you will at once 
 ' do more than in any other way, whether to 
 ' conquer, to pacify, to punish, or to bless." * * 
 
 " By the old rights of war, still prevalent in 
 ' Africa, freemen were made slaves; but by the 
 ' rights of war which I ask you to declare, slaves 
 ' iviil be made free7nen." 
 
 Is it unjust to the Senator to suppose that, aa 
 he approaches this discussion, slavery casts its 
 dark shadow before him, and obscures the light 
 ia which he would otherwise read and interpret 
 the powers of Congress? Is it unjust to con- 
 clude that he hates slavery more than he loves 
 the Constitution, and that to reach and throttle 
 the one he is willing to march over the pros- 
 trate form of the other ? Ami mistaken ia 
 concluding that he has reached that state of 
 mind which leads him to prefer that slavery 
 and the Constitution shall die together rather 
 than. that both shall live? 
 
 Sir, my repugnance to this " relic of barba- 
 rism " is not less than that of the lionorable 
 Senator from Massachusetts. I do not hate 
 slavery less. It would be ungracious to say 
 that I love the Constitution more ; but I will 
 say that my veneration for the one transcendi. 
 my hostility to the other ; and that opposed, as 
 every sentiment and instinct of my nature is, 
 to the institution of slavery, and willing as I 
 am to wound it, I yet confess myself afraid to 
 strike it through the Constitution, or to pursue 
 it outside of the Constitution, to wound it there. 
 Why, Mr. President, this impatience to fly from 
 the " ills we have to those we know not of?" 
 
 In the legitimate and constitutional prosecu- 
 tion of the war the fetters are falling from the 
 slaves of the South faster than we can provide 
 homes, the means of subsistence, and the means 
 of intellectual and moral culture for the help- 
 less, destitute, and, in many cases, degraded 
 freed men and their families. Already they 
 are beginning to press heavily upon the white 
 population of some localities, and heavily upon 
 the bounty of the Government. Who, sir, will 
 dare to estimate the consequences, moral, po- 
 litical, social, and economical, of precipitating, 
 in one day, as the Senator proposes, four mil- 
 lions of this population upon the white commu- 
 nities of these States ? Who can contemplate 
 them without a shudder ? Who has the reck- 
 less hardihood to venture upon such a solution 
 of this stupendous and oppressive problem of 
 human slavery ? 
 
 Before adopting the proposition of the Sen- 
 ator, one of two things should be resolved upon. 
 
/ e? 
 
 15 
 
 We must either overcome all the repugnances 
 of nature ; raze out from our hearts all the sen 
 timents of delicacy and propriety which we have 
 supposed instinctive; roll back the strong cur- 
 rent of thought, and feeling, and habit, and edu- 
 cation, and admit the negroes to a full, free, and 
 unqualified social equality, or we must separate 
 them from among us, and place them where 
 their country, constitution, laws, customs, soci 
 ety, shall aU be their own, and where there shall 
 be a perfect and unrestricted community of 
 legal, political, and social rights. 
 
 The first of these can never be done. Heaven 
 has decreed against it ; and as easily would the 
 leopard change his spots, or the Ethiopian his 
 skin, as we the firm, strong instincts of our na- 
 ture. The second, then, is the only alternative ; 
 and I look with hope to the coming of the day 
 when the bright vision of universal emancipa- 
 tion shall be realized ; when freedom shall rule 
 the spacious world from clime to clime; when 
 civilization and the arts shall penetrate every 
 desert, ride upon every wave, and culture every 
 shore ; and when the bond shall go free, and 
 build up for themselves a republic bright and 
 glorious as our own, and press onward with us, 
 side by side, in noble emulation for the univer- 
 sal diffusion of human culture and happiness. 
 But the accomplishment of this requires time 
 and wise caution. It cannot be done in a day. 
 We must make haste slowly. The attempt to 
 do it in a day will prove fatal to it forever. It 
 would be one of those rash and extreme meas- 
 ures which would inevitably defeat its own ends. 
 The power of slavery on this continent is al 
 ready broken. Its sceptre has departed ; its 
 dominion is overthrown ; it can never regain 
 its lost political, social, and economical import- 
 ance. ■ It has reached the point where "the 
 public mind rests in the belief that it is in pro- 
 cess of fina.1 extinction." The question of ex- 
 pansion is conclusively settled against it, and 
 henceforward it will be a 
 
 " Scorpion girt with fire, 
 ' In circle narrowing as it glows." 
 
 Let us be patient, and let us be just, and thf=^^ 
 storm that now beats upon us will soon have 
 spent ita force ; the clouds which now so gloom- 
 ily overhang us will soon be scattered, and calm 
 and sunshine again overspread and bless the 
 entire land. Let us stand by the Constitution 
 and fulfil its pledge to " guaranty to every State 
 in this Union a republican form of government, 
 and to protect each of them against invasion," 
 " and domestic violence." Let us not be se- 
 duced "outside of the Constitution" by any 
 temptation, however strong, and thus admit be- 
 fore the nations that it has failed in the purposf- 
 of its creation, and that we can no longer gov- 
 ern in accordance with its provisions and re- 
 quirements. The Senator's proposition is not 
 to defend, maintain, and uphold the Govern 
 ment we have ; but to rend its pillars asunder, 
 
 and reconstruct another from its ruins. In 
 what does this differ from the effort of our re- 
 volted and rebellious people but'in the means 
 proposed for its accomplishment? 
 
 Admitting that in a " government bound by 
 a written Constitution nothing can be done 
 which is not in conformity with the Constitu- 
 tion," the Senator insists that we shall go out- 
 side of the Constitution to make his vfishes ac- 
 complished facts. 
 
 Admitting that " no person shall be deprived 
 of life, liberty, or property, without due process 
 of law," which means without presentment or 
 other judicial proceeding, he yet urges upon 
 us, by a simple act of legislation, to sweep 
 millions of property from those over whom, as 
 citizens, we claim and exercise jurisdiction. 
 
 Admitting that " no attainder of treason shall 
 work corruption of blood or forfeiture, except 
 during the life of the person attainted," he yet 
 asserts that " there is nothing in the Constitu- 
 tion to forbid an absolute forfeiture " for trea- 
 son, and urges that Congress shall at once pro- 
 ceed to confiscate all the property, both real 
 and personal, of certain classes of citizens of 
 the United States, and that forever. 
 
 Admitting that "the reason for proceedings in 
 rem is " " that the thing is, in a certain sense, 
 an offender, or at least has co-operated with 
 the offender, as in the case of a ship in the 
 slave trade," he yet maintains that proceedings 
 in rem may be instituted against all the prop- 
 erty of rebels, whereever found, simply be- 
 cause it is their property, without any refer- 
 ence whatever to the uses to which the prop- 
 erty has been applied. 
 
 Admitting that persons captured in battle 
 " may be detained as prisoners till the close of 
 the war, unless previously released by exchange 
 or clemency," he yet contends that all prison- 
 ers taken by our armies may instantly be 
 handed over to the civil authorities, to be pur- 
 sued and punished as criminals. 
 
 Admitting that " Congress has no power 
 under the Constitution over slavery in the 
 States," he yet labors to prove the possession 
 of the power by Congress, and presses upon us 
 to use it, of declaring free ail the slaves in all 
 the States of the Union. 
 
 Mr, SUMNER. I must correct the Senator. 
 My speech was with regard to the rebel States, 
 not in regard to all the States of the Union. I 
 made no allusion to any State that was not in 
 rebellion. 
 
 Mr. BROWNING. Admitting that " Con- 
 '^ress has no power under the Constitution over 
 slavery in the States," the Senator yet labors 
 to prove the possession of the power by Con- 
 gress, and presses upon us to use it, of declar- 
 fig free all the slaves in all the rebel States of 
 this Union, as he now says. 
 
 Mr. SUMNER. The Senator will do me the 
 justice to say that I place it on the rights of war. 
 
 Mr. BROWNING. I do not care to hear 
 
16 
 
 '?^ 
 
 another speech at present. I care not on what 
 power he places it. I deny and I defy, though 
 I do not like to use that word, any man to 
 point to one single word or letter in the Consti- 
 tution which confers upon Congress any power 
 to do any act in the exigency of war which it 
 cannot do in times of peace. There, sir, is 
 wliere the heresy lies. I give the Senator's 
 own words, and while I desire to treat him with 
 every possible respect, and have yielded to him 
 repeatedly — a thing the Senator rarely does for 
 the accommodation of anybody — I feel it incum- 
 bent upon me, as an American citizen, to say 
 nothing of my position as a Senator, to enter 
 my most earnest protest against this danger- 
 ous and revolutionary heresy that the powers 
 of Congress are enlarged and amplified by a 
 state of war. It overthrows the Government 
 and accoraplifhes here in this Chamber what 
 the rebels h ive not accomplished, and never 
 can accoiiiplish. 
 
 Such, sir, are the extremities to which the 
 Senator is driven, the inconsistencies in which 
 he is involved, by his effort to compass an ob- 
 ject which, in my humble judgment, is not 
 only unconstitutional, but which, if successful, 
 will be fatal to the integrity of the Government 
 itself, and change its entire character. Is it 
 uncharitable to say that another object seems 
 to lie much nearer the gentleman's heart than 
 the crushing out of the rebellion and the re-es- 
 tablishment of the authority of the Government 
 in all the States ? 
 
 I avov^ my object to be, with all the terrible 
 enginery of war, to crush down and trample 
 out, at once and forever, this wicked and dia 
 bolical rebellion ; then to pursue and blast its 
 leaders and fomeatorrf with the severest punish- 
 ments that can be visited upon this most ma- 
 lignant ftud nnpardonable treason, and to win 
 back the hearts of the deluded masses to the 
 good old Government which protected them 
 through all the past, and which they cannot, 
 even now, remember without a tear of grati- 
 tude and a sigh of regret, and from the shelter 
 of which they were cruelly enticed away to be 
 exposed to the pelting of the pitiless storm of 
 treason and rebellion which has wasted their 
 fortunes, desolated their homes, murdered their 
 families, embittered their lives, and darkened 
 all their future. I wish to win them back ; and, 
 as the strongest possible inducement to return, 
 I wish there to be fully assured that when they 
 come they will find the same beneficent Gov- 
 ernment to which they had proved faithless, as 
 magnanimous in mercy, as bounteous in bless- 
 ing, as equal in justice, as strong in protection, 
 as when they betrayed it. Through weal and 
 
 through woe, in the sunshine of peace and amid 
 the storm and tempest of war, I wish to stand 
 by the Constitution. I desire that every battle 
 fought and every victory won shall be fought 
 and won under the Constitution and for the 
 Constitution, and that every life that is poured 
 out in this terrible strife shall be a libation to 
 its great principles. Let us stand by the Con- 
 stitution. We shall need its protection here- 
 after more than we ever have heretofore. We 
 shall need its restraints in the times to come 
 more than we ever have in the times that are 
 past. ^*'hen, hereafter, this Chamber shall be 
 filled with Senators, fresh from the battle-field, 
 whose laurels are yet green upon their browa, 
 accustomed to command, and impatient of re- 
 straint, let there be no act of ours to be drawn 
 into Taad precedent in breaking down the bul- 
 warks which the Constitution has erected for 
 the security of the people. Let us leave no rec- 
 ord behind to be pointed at as authority for en- 
 croachment upon the powers and prerogatives 
 of a co-ordinate department. Power is always 
 grasping, always struggling for the enlarge- 
 ment of its dominion. If we begin by denuding 
 the Executive, how long will it be before the 
 judiciary is stripped of its ermine, and all 
 power concentrated in the hands of an irrespon- 
 sible Legislature? When that is done, the hia- 
 tory- of the Republic is closed, and the history 
 of anarchy and despotism begins its melancholy 
 record of tyranny, and oppression, and confu- 
 sion, and blood. 
 
 The beneficence of the Government in peace 
 has been proven ; its strength in foreign war 
 has been fully vindicated. Its power to breast 
 Internal storms and commotions, and resist and 
 subdue intestine foes, is now, for the first time, 
 subjected to the terrible ordeal of experiment. 
 If we rise to this great occasion, grapple suc- 
 cessfully with the momentous events that are 
 upon us, save the life of the nation, reunite it, 
 and reassert its authority, and come from the 
 conflict bringing the Constitution unharmed 
 with us, perfect in its strength, and in the har- 
 mony and majesty of its proportions, the page 
 that bears the record of the achievement will 
 be gilded with a brighter glory, will glow with 
 a purer ray, than any in the annals of our race. 
 
 The treasure and the blood we shall have ex- 
 pended will not have been poured out in vain. 
 Our country, now stooping under the chasten- 
 ing rod, but dearer in her afilictions, will rise 
 from her humiliation renewed and reassured 
 in strength, and radiant with beauty, to resume 
 her proud place among the nations, and blend 
 the triumphs of her future with the glories of 
 her past history. 
 
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