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Digitized by the Internet Archive 
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CONFISCATION OF KEBEL PROPEKTY. 
 
 SPEECH 
 
 OF 
 
 ON. WILLIAM KELL 
 
 OF ILLINOIS, 
 
 DELITEREt) 
 
 IN" THE HOUSE OP REPRESENTATIVES. 
 
 May 24, 1862. 
 
 WASHINGTON, D. C. 
 
 AMMELL & CO., PRINTERS, CORNSB OF SECOND STREET & INDIANA AVENUE, THIRD FLOOR 
 
 1862. 
 
West. Ees. HJiSi. BDo. 
 
 '^'■'na.'?;^ 
 
SPEECH. 
 
 Tlie House having under consideration the bills to confiscate the property and free from 
 servitude the slaves of rebels — 
 
 Mr. KELLOGG, of Illinos, said : 
 
 Mr. Speaker : To restore the Gov-eriiraent in its functions, unity, and 
 power, and to preserve the Constitution intact, should be, and doubt- 
 less is, the desire and object of all true men. In considering the va- 
 rious propositions before the House, this object should be kept con- 
 stantlj^ ill view; for though the rebellion be crushed, yet if we have 
 infracted the Constitution and dissolved its great bonds, we have indeed 
 accomplished little more than the rebels themselves designed — the de- 
 struction of the Constitution. 
 
 Mr. Speaker : From the reflection 1 have been able to give this sub- 
 ject, I am satisfied that the passage by Congress of a judicious confisca- 
 tion bill will be in consonance with the spirit of the Constitution, and 
 materially tend to the restoration of the Government. In this, like all 
 other Governments, there are two great elements of the administration 
 of its powers : one to be brought into exercise when the physical power is 
 developed in arms and armies; the other to manifest itself through, 
 judicial tribunals. The war power, so called, is a part of and incident 
 to every Government, and whether written expressly in our Constitu- 
 tion or not, is nevertheless a part of it. ]^o Government can exist per- 
 ,^manently without it. It is its shield; it is that power alone to which 
 recourse can be had when its existence is threatened by invasion from 
 abroad, or civil war within its own limits. To deny this power would 
 be to deny the right and power of self-protection. These powers are 
 both written in the Constitution, and do in nowise conflict with each 
 other. 
 
 The Constitution declares in express terms the war power. It is as 
 clearly laid down, it is as distinctly marked out, as anj'^ express power 
 that is given by the Constitution. But even were it not declared in 
 express terms, I assume that the Government cannot exist without it. 
 The moment you form a government with the view of exercisino- the 
 functions of a government, that moment you give to it the great ele- 
 ment of self-preservation, which is no more nor less than the war power 
 
 the power to protect itself. 
 
Mr. Speaker: If our Government does not possess that power to- 
 day, it is a failure, a rope of sand; it is a useless thing that we have 
 reverenced for many years. If, sir, we, as a nation, have not the poAver 
 of self-preservation, it is time that the people of this Government, with 
 its great prosperity and its great inherent elements of power, should 
 bestir themselves, and fix it as a cardinal principle of the Constitution. 
 But, sir, no need of this. The Constitution expressly declares, in lan- 
 guage not to be mistaken, that tlie Government shall have power to 
 declare war and to raise armies. "What more can be asked ? What is 
 the object of the power to declare war? None other than the object of 
 maintaining the Union in perpetuity; for in this Christian era of the 
 world Governments should have no other object than the maintenance 
 of their rights, their dignity, the happiness and prosperity of the peo- 
 ple, and the perpetuity of their existence; and this Government has 
 all the power which is necessary to accomplish that high object. And 
 incident to that, I assume, is the pov/er of the confiscation of the prop- 
 erty of enemies, engaged either in civil war or in war between two na- 
 tions or Governments. 
 
 The short time allowed by the rules of the House for the discussion 
 of this subject, requires that we should glance as hastily as possible at 
 some of the main points necessary to be considered and discussed. I 
 confess, sir, that I have been somewhat surprised in the discussion that 
 has taken place in this House by men of eminent learning and patriotic 
 motives, who have seemed to rack their brains to find some reason why 
 we have not the power to effectually and speedily crush out this rebel- 
 lion. When this Government is struggling with mighty throes under 
 the great events that are upon it, when its very existence is threatened, 
 its true friends should seek first to find authority for that reasonable 
 power which will sustain it and transmit it to posterity in perpetuit3^ 
 
 On the contrar}^, here in this House, efforts are being made, with 
 great ingenuity, to show that the Constitution is limited in its power of 
 accomplishing the very object for Avhich it was formed. I think that 
 a wrong construction has been put upon it. I think a wrong con- 
 struction has been placed upon the law of nations, to which it is 
 important to refer in considering the rights and duties of nations in the 
 exercise of this power. 
 
 It has been said that there is no power of confiscation of the proper- 
 ty of public enemies. Sir, to my mind, if there is any one proposition of 
 law which is well settled in this Government and by the law of nations, 
 it is the power to confiscate the property of enemies, and that that 
 power exists in Congress ; and, in my judgment, it should to-day be 
 exercised. 
 
 But, Mr. Speaker, my object to-day is more particularly to suggest 
 some authorities to the House, and to call the attention of Congress 
 to the welbestablished principle of the laws of war, than to make any 
 appeal to the House. I shall, therefore, proceed to suggest such au- 
 thorities as I have been enabled to collect, and which I think will fully and 
 clearly establish the right of Congress to pass a confiscation act with a 
 view to cripple the energies and power of the. enemy, and to reimburse 
 ourselves for the expenditures of this war. 
 
 la considering this subject, it is proper to refer to authorities which 
 
have been recognised bj^ the nations generally as good authorities, and 
 so expressly recognised by our own courts. I read tirst from " Yattel 
 on the Laws of Nations :" 
 
 "A State taking up arms in a just cause has a double right against her enemy : first, a 
 right to obtain possession of her property withheld by her enemy, to which must be added 
 the expenses incurred in pursuit of that object, the charges of the war, and the reparation of 
 damages; for, were she obliged to bear these expenses^and losses, she would not fully recover 
 her property or obtain her dues. Second, she has a right to weaken her enemy, in order to 
 render him incapable of supporting his unjust violence ; a right to deprive him of the means 
 of resistance." 
 
 Have you an eneni}" in the field with wdiom your armies are enga- 
 ging,' whose armies are formidable and whose warfare is ruthless and de- 
 termined ? What is your first right ? Your first right and your first duty 
 is to cripple your enemy by taking from him the means of carrying on 
 his unjust war against yoii ; keeping this well-established principle 
 fally in view, there will be little difiiculty in deriving from the Consti- 
 tution, expounded by the law of nations, the right to confiscate the 
 property of the rebels now in arms. 
 
 To those wh(^ talk most feelingly of the rights of those in arms 
 against the Government, and yet demand a speedy suppression of this 
 rebellion b};- the powder of the nation, I submit right liere this proposi- 
 tion: how would you most successfully cripple the rebels in their power 
 of oftence or resistance ? The answer forces itself upon the lips of every 
 man. By taking from them the means of supporting and maintaining 
 armies. That reason lies at the base of this right to take the property 
 of the enemy. Yattel continues : 
 
 " Hence, as from their source, originate all the rights which war gives us over things be- 
 longing to the enemy. I speak of ordinary cases and what particularly relates to the enemy's 
 property. On other occasions, the right of punishing him produces new rights over the things 
 which belong to him, as it also does over his person. These we shall presently consider. 
 
 ■•We have a right to deprive our enemy of his possessions, of everything which may aug- 
 ment his strength and enable him to make war. This every one endeavors to accomplish in 
 the manner most suitable to him. Whenever we have an opportunity, we seize on the enemy's 
 property and convert it to pur own use ; and thus, besides diminishing the enemy's power, Ave 
 augment our own, and obtain, at least, a partial indemnification or equivalent, either for what 
 constitutes the subject of the war, or for the expenses and losses incurred in its prosecution ; 
 in a word, we do ourselves justice." 
 
 Mark you, because you have the right to cripple the enemy and pre- 
 vent hini from sustaining armies in the field, you have the right to 
 take all that belongs to the enemy — all that by wdiich he supports his 
 armies. Gentlenie'ii should not tax their brains to find authority for 
 rejecting the doctrine of the right of confiscation, for the proposition is 
 not only fully established by authorities, but is consonant with justice 
 and reason. " This is but the commencement of a long series of author- 
 ities fixing beyond cjuestion the right of confiscation. 
 
 I would ask the gentlemen who'doubt the power uuder the general 
 provisions of the laws of war to confiscate an enemy's property, to revolve 
 in their own minds how it is that this irresistible reasoning and cogent 
 conclusions of this writer on international law are to be overcome. I 
 am told, perhaps, that this book was written so long ago that it is not 
 entitled to credit. I leave that for those who seek for subterfuges to 
 resist the overwhelming logic of this writer. That I may not be mis- 
 taken in this matter, I wfill read from another authorit}^, and one of the 
 older ones too. 
 
BynkersLoek, in his Treatise on the Law of War, speaking of cases 
 where treaties between nations rnay change the rule and right of con- 
 fiscation of enemy's property, says : 
 
 " But if there are no such treaties, or if the goods and actions are not taken away within a 
 limited time, it is asked, what is the law in that case? And surely, such being the state of 
 war, that enemies are on every legal principle proscribed and despoiled of'everything, it stands 
 to reason that everything belonging to the enemy which is found in the hostile country 
 changes its owner. It is, besides, customary, in almost every declaration of war, to proclaim 
 that the goods of enemies, as well those found among as those taken in war, shall be con- 
 fiscated." 
 
 And again he says : 
 
 " If we follow the strict law of war, even immovables may be sold, and their proceeds lodged 
 in the public treasur}-, as is done with movables.'' 
 
 It is here declared that you may take the property, the land, and 
 everything which belongs to the enemy, that you may cripple him and 
 prevent him doing you wrong and injury; and any nation that is warred 
 against, that will not take the ordinary and most eifective means to re- 
 sist that war and bring it to a speedy termination, illy discharges the 
 duty of a sovereign State. 
 
 Lest, however, I shall be charged with reading authorities of rigor 
 which are not sustained by modern practice and decisions, I propose to 
 read now from the decisions of our own courts. I read from the opin- 
 ion of the court delivered by Chief Justice Marshall, a man learned in 
 the law, and whose opinions, in court or out of court, are entitled to 
 great respect and consideration. In the celebrated case of Brown vs. 
 The United States, Chief Justice Marshall, as a part of his opinion in 
 that case, declares : 
 
 " Respecting the power of Government, no doubt is entertained. That war gives to the 
 sovereign full right to take the persons and confiscate the property of the enemy, wherever 
 fourd, is conceded. The mitigations of this rigid rule, which the humane and wise policy of 
 modern times has introduced into practice, will more or less aifect the exercise of this right, 
 but cannot impair the right itself. That remains undiminished, and when the sovereign au- 
 thority shall choose to bring it into operation, the judicial department must give effect to its 
 will." 
 
 In another portion of the same opinion, it is declared, not only by a 
 ma.)ority of the court, but by the dissenting judge also, that that power 
 exists in Congress. If we have not the constitutional power, I would 
 rather make any sacrifice than to adopt this kind of legislation. If we 
 have the power, I am anxious for its exercise ; and it does behoove us 
 well to consider it, for the destruction of but one bond of the Consti- 
 tution, to my mind, would be more dreadful, under existing circum- 
 stances, than the marching of armies. 
 
 Speaking of the proposition that modern practice had changed the 
 rule of law, the same judge uses this language: 
 
 " This rule appears to be totally incompatible with the idea that war does of itself vest the 
 property in the belligerent Government. It may be considered as the opinion of all who have 
 written on the jus belli, that war gives the right to confiscate, but does not itself confiscate the 
 property of the enemy; and their rules go to tlie exercise of this right." 
 
 Judge Marshall makes no mincing, halting, doubting argument, but 
 declares in that cool, deliberate language that commends itself to the 
 heart and brains of every man, that the right to confiscate property 
 generally does exist, and I ask the opponents of this doctrine to meet 
 this authority. Certainly they will not meet it by saying that it, too, is 
 
of so ancient a date that it should not be considered as a correct expo- 
 sition of the law. 
 
 Justice Story, in that case, differed with the court on the question of 
 what kind of special legislation was necessary to authorize the courts to 
 interpose ; but upon the power of confiscation in Congress there was 
 no disparity of opinion between them, and he says, in the same case : 
 
 " In respect to the goods of an enemy found -within the dominions of a billigerent Power, 
 the right of confiscation is most amply admitted by Grotius, and Puffendorf, and Bynker- 
 shoek, and Burlamaqui, and Rutherforth, and Vattel. I do not find any denial in authorities 
 which are entitled to much weight; and I therefore consider the rule of the law of nations to 
 be that every such exercise of authority is lawful, and exists in the sound discretion of the 
 sovereign of the nation." 
 
 I should have no occasion to go further and cite authorities — for the 
 right of confiscation generally, of all property of the enemy, seems to be 
 so conclusive!}'- shown that it would be a useless waste of time to read 
 
 ^them ; but in view of the fact, that an American commentator has been 
 cited here to sustain the denial of this right, and to show that there 
 
 _ was no such power, I refer to Chancellor Kent, an able commentator 
 on the law of nations. Therefore, I deem it my duty to read a little 
 further upon that point ; and that, too, from this same distinguished 
 commentator. I Avas surprised when I heard the gentleman from Mis- 
 souri [Mr. Phelps] read that authority as evidence of the want of 
 .power to confiscate. So much confidence had I in his opinion that I 
 supposed myself in error, and I examined, to some extent, the writings 
 of that commentator upon the subject. But while I will not enter into 
 a controversy with any gentleman upon that subject, I will present the 
 
 '^^plain and unmistakable language of that writer, and leave it for the 
 House and the country to judge who has most faithfully cited him as 
 authority. I read from the first volume of Kent's Commentaries : 
 
 " When hostilities have commenced, the first objects that naturally present themselves for 
 detention and capture, arc the persons and property of the enemy found within the territory 
 on the breaking out of the war. According to strict authority, a State has a right to deal as 
 an enemy with persons and property so found within its power, and to confiscate the property, 
 and detain the persons as prisoners of war. " 
 
 Had that been read before, I would not have detained the House to 
 read it; but there is the acknowledgment by this American commenta- 
 tor, in the most unequivocal language, that there is a power of confis- 
 cation over,all the property of the enemy, and the right to detain their 
 persons as prisoners. 
 
 What more can be asked from American authorities to sustain the 
 
 position I have taken than those I have cited ? But I again read from 
 
 " J ustice Kent. In citing some authorities which seemed to oppose this 
 
 view of the law, Kent himself summed them up, and declared the law 
 
 to be as follows : 
 
 " But however strong the current of authority in favor of the modern and milder construc- 
 tion of the rule of national law on this subject, the point seems to be no longer open to dis- 
 cussion in this country ; and it has become definitely settled in favor of the ancient and 
 sterner rule, by the Supreme Court of the United States." 
 
 " When the case was brought up on appeal before the Supreme Court of the United States, 
 the broad principle was assumed that war gave to the sovereign full right to take the persons 
 and confiscate the property of the enemy wherever found ; and that the mitigations of this 
 rigid rule, which the wise and humane policy of modern times had introduced into practice, 
 might more or less aifect the exercise of the right, but could not impair the right itself." 
 
 In this he cites the very decision I have read, and acknowledges 
 
it to be tlie law. Then, sir, why, in good faith, should not gentlemen 
 have read the conclusion to which the commentator comes in acknowl- 
 edging, in the fullest possible manner, the right to confiscate enemy's 
 property and seize their persons as prisoners ? 
 
 But I must pass on to another portion of this subject. Having estab- 
 lished, as I think, the power in war to confiscate the property, both 
 movable and immovable, of enemies for the benefit of the State, I come 
 now to apply this rule and law of nations to the present condition of 
 our unhappj' country. "When rebellion becomes so formidable as to 
 require the mustering of armies to suppress it, it becomes a civil war, 
 and it is to be conducted upon the principles and the laws of war. The 
 traitors add to their offence of treason the higher crime of civil war, 
 and may be treated, not only as rebels guilty of treason by the laws of 
 the land, but may be treated also as a public enemy. To support this j 
 proposition, I Vv-ill read some authorities upon that point. I wish my J 
 position to be understood. I hold that these rebels now in arms are 
 subject to the civil laws, as traitors. Having committed treason, they _^ 
 are subject to punishment by the courts under the Constitution ; having '^ 
 risen to a higher crime, that of levying civil war, engaging in and as^ 
 suming the character of public enemies, they may be treated as such. 
 They are treated as public enemies ; and, deny it as you will, before I 
 close I will show that the laws of nations treat them not only as traitors,' 
 but as public enemies, and that they are entitled to the same rule of 
 warfare whik in the field, and. are bound to bear the burdens which 
 pertain to a condition of public war; yet in nowise are they exempt 
 from punishment for the crime of treason by the courts. Judging this-*^ 
 matter by the laws of nations, I find this to be the rule : 
 
 "When a partj- is formed in a State who no longer obey the soyereign, and are possessed of 
 sufficient strength to oppose him,, or, when in a ):epublic, the nation is divided into two op- 
 posite factions, and both sides take up arms — this is called civil ivar. 
 
 " Setting, therefore, the justice of the case wholly out of the question, it only remains for 
 us to consider the maxims which ought to be observed in a civil war, and to consider whether 
 the sovereign in particular is, on such an occasion, bound to conform to the established laws 
 of war. 
 
 ■ "A civil war breaks the bonds of society and G-overnment, or at least suspends their force 
 and effect ; it produces in the nation two independent parties, Avho consider each other as 
 enemies and acknowledge no common judge. Those two parties, therefore, must necessarily , 
 be considered as thenceforward constituting, at least for a time, two separate bodies, two 
 distinct societies. Though one of the parties may have been to blame for bre&,king the unity 
 of the State and resisting the lawful authority, they are not the less divided in fact. Besides, 
 who shall judge them ? Who shall pronounce on which side the right or wrong lies ? On 
 earth they have no common superior. They stand, therefore, in precisely the same predica- 
 ment of two nations who engage in a contest, and being unable to come to an agreement, hav 
 recourse to arms. - * 
 
 " This being the case, it is. very evident that the common laws of war, those maxims of hu- 
 manity, moderation, and honor, which we have already detailed in the course of this work, 
 ought to be observed by both parties in every civil war." — VatieVs Law of Nations. 
 
 Again : the same writer declares that — 
 
 " When the sovereign has subdued the opposite party, and reduced them to submit and sue 
 for peace, he may except from the amnesty the authors of the disturbances — the heads of the 
 party. He may bring them to a legal trial, and punish them, if they are found guilty." 
 
 The law is most clear and plain, that when a rebellion rises to that 
 condition that the nation is bound, for its preservation, to meet armies 
 with armies, to inaugurate all that pertains to war, the belligerents 
 should carry on such war according to the rules and laws of war, and 
 
9 
 
 are to be governed in their action by those rules. Sir, this rebellion 
 has become- a civil war, and the parties engaged in it are entitled to 
 the rule and code of civilized warfare. Thej are also bound to bear 
 the penalties and burdens which are incident to that warfare, one of 
 which is confiscation, as I think I have most fairly shown. 
 
 Again, sir. These authorities fully sustain me in the proposition that, 
 having subdued them by arms, they are not exempt from the penalties 
 of treason, but that they sustain the double character of traitors to the 
 Government and public enemies of the nation ; that all that pertains to 
 war between two enemies pertains to this war, and that having crushed 
 out the rebellion, the civil law and the jurisdiction of the courts may 
 be brought to bear, and the penalties of the law be enforced upon them 
 for their acts of treason. And this, in my judgment, does not at all 
 conflict with the proposition that we have a right to confiscate their 
 property because they are public enemies. 
 
 But it ma,y be said that this is all from the books merely, and has no 
 application to the present rebellion. I wish to call the attention of 
 gentlemen who entertain such an opinion to the condition of things as 
 they really exist now in the countrj'. There are to-day six hundred thou- 
 sand men arrayed in armies upon the side of the Government, and 
 probably four hundred thousand men in the rebel armies ; perhaps 
 more. These armies meet everywhere, deluging the country with 
 blood ; and shall we say longer that this is a mere pitiable rebellion ? 
 J^o, sir, it has risen up in the scale of warfare, in the number and power 
 of belligerents, in its atrocities perpetrated by the rebels, and its re- 
 sults, until it has become the most momentous war of the age. 
 
 I am aware that many have entertained the theory that the rebel 
 armies were not belligerents and enemies as understood by the law of 
 nations. This I have long thought was a grave error. There is no dis- 
 ojuisino; the sad fact that there is not an element or characteristic of 
 v/ar in its fullest development that has not and is not constantly mani- 
 festing itself in the, civil war now desolating the country. A glance at 
 the condition of the rebel government and forces will not fail to dispel 
 this illusion from the mind of any dispassionate and fair man. They 
 have assumed a government, with all the machinery, forms, and func- 
 tions of a government; have organized, armed, and equipped an army 
 and navy ; built forts to defend cities ; and have and do subsist armies. 
 Our armies meet theirs in sanguinary conflict ; prisoners are captured 
 and held until exchanged by arrangements of the belligerent parties in 
 strict conformity with the rules of war. We besiege their fortified po- 
 sitions with immense armies, and when they are driven from cities and' 
 districts of country, military governors are appointed to administer 
 temporary governments therein, and to aid and protect the civil authori- 
 ties — and tliat, sir, where the authorities of the Government had been 
 obstructed and overthrown by the force of rebel armies; we send auc 
 receive flags of truce, and under their protection prisoners are ex- 
 changed according to the usages of war. 
 
 Again, sir. We have declared, and with the power of ourlSTavy en- 
 forced, the blockade of many of the important ports of the country, 
 and have required foreign nations to respect such blockade, a proceed- 
 ing totally inconsistent with the doctrine that war does not exist. Neu- 
 
10 
 
 tral nations are only bound to respect a blockade when declared and 
 enforced by belligerent Powers, the object of which is to destroy the 
 commerce of the enemy, and prevent him from receiving material aid 
 in sustaining armies and carrying on a war. On this ground and for 
 these reasons all neutral nations are required by the laws of nations to 
 respect a blockade so declared and sustained. That our own Govern- 
 ment and many powerful foreign Governments have apj)lied this doc- 
 trine of the law to the present condition of the country our intercourse 
 with them and their declarations and acts abundantly attest. All this 
 has been done and is being done because of the belligerent power of 
 the rebel forces on the one side, and the necessary war force on the 
 part of the Government to conquer and subdue this wide-spread civil 
 war. And now, sir, with all these facts standing so prominently before 
 the mind of this House, will any gentleman say that war does not exist ? 
 I think not. No one, candid with himself, howsoever much he may 
 desire to defeat this bill, will longer rely on the shallow pretence that 
 war is not in the land. Was not Vattel right when he said that when 
 a nation was divided into two opposing parts, which take the field 
 against each other, although one be rebel in its character, war does then 
 exist in fact, and should be conducted by the rules and laws of civilized 
 warfare ? 
 
 Now, sir, I ask, will any man say that we have a right to omit any 
 of the means known to civilized warfare to cripple our enemy and pre- 
 vent his sustaining his army in the field to strike down our fellow-citi- 
 zens who are willing to peril — yea, sacrifice — their lives to uphold the 
 flag and the Union and preserve the Government from the hands of the 
 spoilers ? 
 
 Mr. Speaker: It is also M^ritten in the Constitution of this Govern- 
 ment that we may suppress rebellion. I heard it stated the other day 
 that the framers of the Constitution never did contemplate such a con- 
 dition of things. That, sir, is the greatest mistake in the world. They 
 did contemplate it. They had read the history of the world. They 
 knew what might arise, and they provided for this very case. It was 
 not, I think, quite just to those who framed the Constitution to say 
 that they did not contemplate that a condition of things like that which 
 now distracts the country might occur. The Constitution says that, in 
 order to suppress rebellion, Congress may call out the militia, which is 
 the reliance and the military power of the nation. We may call upon 
 the entire physical power of the Government ; we may put the whole 
 strength of the nation into the field to suppress insurrection or to repel 
 linvasion. We have the same power to suppress rebellion that we have 
 \to repel an invasion by a foreign power. 
 
 The Constitution declares that Congress- shall have power "to declare 
 rar," "to raise and support armies," "to provide for calling forth the 
 
 lilitia to execute the laws of the Union, to suppress insurrections and 
 repel invasions." 
 
 It will be seen that the Constitution contemplates three events in 
 which Congress shall have the power to set in motion the military arm 
 and power of the Government against an armed force : the first, when 
 war is declared by the Government; the second, when a war of insur- 
 rectiou is set on foot within the Union ; the third, when the country 
 
11 
 
 is invaded by a foreign Power. In the latter two, the language is iden- 
 tical, and in the first substantially the same. The object to be attained 
 by the exercise of the war power mentioned in the class of cases just 
 referred to is precisely the same, the protection of the Government; and 
 the rale of construction in considering what power is necessarily im- 
 plied in order to carry into execution either of these express powers 
 must doubtless be the same. The preservation of the Government 
 from destruction by insurrection and rebellion is as important as to 
 preserve it from destruction by an invading Power, and the implied 
 means to accomplish that object are certainly as clearly given in the 
 former as in the latter case. The power to declare war and repel in- 
 vasion carries with it, by clear implication, the right to prosecute a war 
 to the accomplishment of that object, by all the means and in the man- 
 ner recognised by the laws of nations and of war. The right to grant 
 letters of marque and reprisal is given in express terms, and yet so 
 clearl}^ is that power an incident to war, that had it not been mentioned 
 in the Constitution, it would nevertheless have been within the power 
 of Congress. Justice Story, in his opinion in the case of Browm vs. 
 The United States, (8 Cranch,) says : 
 
 " The power to declare war, in my opinion, includes all the powers incident to war, and 
 necessarjr to carry it into effect. If the Constitution had been silent as to letters of marque 
 and captures, it would not have narrowed the authority of Congress. The authority to grant 
 letters of marque and reprisal, and to regulate captures, are ordinary and necessary incidents 
 to the power of declaring war." 
 
 And on the subject of implied powers, Mr. Madison, in commenting 
 on that portion of the Constitution which declares that Congress shall 
 have power to make all laws necessary to carry into execution the 
 powers vested by the Constitution in the Government of the United 
 States, says : 
 
 " Had the Constitution been silent on this head, there can be no doubt that all the particula^ 
 powers requisite as means of executing the general powers would have resulted to the Govern" 
 ment by unavoidable implication. No axiom is more clearly established in law or in reason, 
 than that wherever the end is required, the means are authorized; wherever a general power 
 to do a thing is given, every particular power necessary for doing it is included." 
 
 The doctrine of implied powers has also received the sanction of the 
 Supreme Court of the United States. That court, in the case of the 
 United States vs. Fisher ei ciL, (2 Cranch,) declares the law to be that 
 " Congress must possess the choice of means, and must be empowered 
 to use any means which are in fact conducive to the exercise of a power 
 granted by the Constitution." It would seem that a proposition so 
 consonant with reason could not require further authorities to sus- 
 tain it. 
 
 Mr. Speaker, by this doctrine of implied power when war is once de- 
 clared by Congress, the right and power follows to prosecute the war. 
 by all the means known and recognised by civilized nations to the ac- 
 complishment of the object for which it was declared, and most promi- 
 nent among these means,, as I have, I think, clearly shown, is the right 
 of confiscation of the property of the enemy. The grant of power to 
 suppress a war of insurrection is as ample and unlimited as the power 
 to declare w^ar or repel invasion. The same means are requisite, and the 
 same force necessary, in the former as in the latter case. The object 
 to be attained is the same, and equally important. If, then, the right 
 
12 
 
 of confiscation exists in one case, it certainly does in tLe other. "War 
 in its fullest extent does exist, and is indispensable to suppress the pres- 
 ent rebellion, and for the accomplishment of that object Congress ma}- 
 exercise all the legislative power necessary to effect it ; and in this, as 
 in other wars — and none have been, and I trust never will be, more de- 
 termined and extended than this — the destruction of the enemies' com- 
 merce by blockade and the coniiscation of their property are among 
 the proper and necessary means to be used for that purpose. Sir, we 
 should not ignore the startling facts which present tliemselves on every 
 side, but at once meet them with measures commensurate with the ob- 
 ject' to be attained and the exigencies of the times. No other Govern- 
 ment would hesitate, no other nation would fail promptly to use this 
 powder, so clearly legitimate, in an exigency like this. The history of 
 nations is replete with its exercise. 
 
 The learned writer on TiTational law, Bynkershoek, cites, with appro- 
 bation, numerous cases in which the property, both real and personal, 
 of rebels encfao-ed in civil war, has been confiscated to the State in com- 
 mon with that of foreign enemies; and it any gentleman is curious 
 to see the authority to which I allude, I cite him to "Bynkershoek's 
 Laws of War." 
 
 But, sir, we are not wholly without precedent in our own country. 
 In many of the colonies, in that of Massachusetts in particular, as I 
 recollect the history of the early days of the Republic, the goods and 
 lands of those who adhered to the Crown of Great Britain were confis- 
 cated, and the title by which much real estate in that State is now held 
 springs from colonial confiscation laws. 
 
 It has been said, Mr. Speaker, that there are provisions in the Con- 
 stitution which are inconsistent wnth this view of constitutional power, 
 and which limit the action of Congress in this regard. Let us look 
 for a moment and see if this is not only an assumption of the oppo- 
 nents of the bill, put forth to defeat it, rather than having any exist- 
 ence in fact. Foremost among the provisions which it is claimed limit 
 the power of Congress, is the following : 
 
 "No person shall be depi'ived of life, liberty, or property without due process of la-?r ; nor 
 shall private property be taken for public use without just compensation." 
 
 The term "due process of law" is well understood to mean a pro- 
 ceeding in the judicial tribunals of the country. This, it is assumed, 
 no one will deny. If property cannot be taken without the action of 
 judicial tribunals — and this I understand to be the reasoning of those 
 who deem this measure unconstitutional — how can property be seized 
 in default of the payment of taxes levied by the General Government ? 
 In the mode of collecting taxes heretofore pursued by the Government, 
 and that embodied in the tax bill now before the House, to which no 
 one objects on tlie score of unconstitutionality, there is not the sera- 
 . blance of a trial either of the fact of the non-payment of the taxes, the 
 right to seize the property, or any other fact connected with the trans- 
 action. It would seem that the sticklers for a strict construction of 
 the Constitution, so strict in fact as to deprive the Government of the 
 necessary power of self-preservation, should find in this provision a 
 limitation on the power of Congress to authorize the seizure of proper^ 
 
13 
 
 ty for the non-payment of taxes. But the answer to this proposition 
 is, that by another provision of the Constitution Congress has the 
 " power to hiy and collect taxes." In this, hoAvever, there is no ex- 
 press grant of power to seize, w^ithout trial, the property of a citizen, 
 and unless there is some implied power given to Congress to adopt such 
 means as it may think necessary to carry into execution the general 
 power to lay and collect taxes, most clearly the citizen cannot be de- 
 prived of his property because of the non-payment of his taxes w^lthout 
 a due and regular hearing in the courts of the country. 
 
 But, sir, I assume that every department of the Government, judicial, 
 legislative, and executive, from the commencement of the Government, 
 have decided that the general power "to lay and collect taxes " carries 
 wuth it, by necessary implication, the power in Congress to adopt such 
 means as in its judgment will best secure the object of the general grant 
 of power, which is the collection of the taxes levied ; and thus alone on 
 what may be termed an implied power rests the constitutionality of the 
 mode and method of collecting the revenue of the countrj^ by taxation, 
 and yet it is as clear, well-defined, and certain, as any authority on which 
 we base our action. Precisely analogous is the principle that the gene- 
 ral power to declare war and suppress insurrections by the armed power 
 of the nation carries with it the power to adopt such measures and means 
 as Congress may deem necessary to its accomplishment, and the seizure 
 and sale of property in one, and the confiscation of propertj^ in the 
 other case, are the means that Congress may, and with propriety 
 should adopt. And I think I hazard nothing in saying that on exam- 
 ination of the various grounds assumed by those who deem this measure 
 in conflict with some provision of the Constitution, they will be found 
 as untenable as the one just referred to. 
 
 Mr. Speaker, I will conclude my remarks on this branch of the sub- 
 ject by repeating that the Constitution declares that we may suppress 
 rebellion by the power of war. The courts decide that confiscation of 
 property is an incident to the war power. I say, then, that Congress 
 has the right, under the Constitution, in order to suppress this rebellion 
 by the exercise of the war power, to confiscate the property of our rebel 
 enemies. In all this we see the wisdom of those who shaped and fash- 
 ioned the Government, and indicated and defined its powers. They 
 not only provided for its prosperity and the administration of justice 
 in time of peace, but provided for administering all its power in time 
 of war. They guarded well the rights of loyal citizens, Avhile they 
 provided abundantly the power to protect itself against a foreign foe 
 or a traitorous rebellion; and we are unfaithful to our constituents, 
 untrue to the past, unmindful of the future, and false to ourselves, if 
 we do not employ all the means committed to our keeping to preserve 
 intact the Constitution and the entirety and perpetuity of the Union. 
 
 And now^, sir, having considered the power of Congress, I propose 
 for a few moments to consider the policy of the measure. In consider- 
 ing a measure of this kind with a view to the policy of adopting it, it is im- 
 portant to consider the military power, and the condition and mode of 
 warfare, of the enemy whom it is designed to aftect. The military 
 strength of the enemy I have to some extent considered. Their con- 
 dition is such that seems to point directly to this mode of procedure 
 
14 
 
 against them. Unlike other belligerents, they have no revenues or 
 public property that may be sequestered; all of that character of prop- 
 erty now rightfully belongs to the Government. Hence the impossi- 
 bility of resorting to the confiscation of public property, which is not 
 unfreqnentl}^ resorted to to cripple an enemy and to reimburse the ex- 
 penses of a war. And, therefore, I can hardly consider the objection 
 to the confiscation of private property, under these circumstances, as 
 other than a pretence to effect the defeat of the measure, and an unwilling- 
 ness to strike in this manner an effectual blow at the rebel power. They 
 are a rebel and seditious belligerent armed power within the territorial 
 limits of the United States, possessing the means to sustain and sub- 
 sist armies, and their property is being freely used for that purpose. 
 Under these circumstances, every sense of justice and sound policy 
 would seem to dictate that we should take from them the means of 
 sustaining armies and continuing this most unjust and unparalleled war. 
 We propose to tax the loyal portion of our nation to sustain our army 
 and navy to an amount that savors of confiscation. Why should we 
 not take from the enemy their property and thereby cripple their re- 
 sources, and at the same time compel them to bear their just proportion 
 of the expense of a war inaugurated by them without a shadow of 
 reason, but for purposes only known to the enemies of free constitu- 
 tional Government? 
 
 Their mode of warfare, Mr. Speaker, would seem to justify, if not 
 demand, the most rigorous policy known, to the laws of war. They 
 plunder and destroy the property of Union men wherever they have 
 the physical power to do so. The sad desolation that has marked the 
 march of their armies has left a record of ruthless warfare more dark 
 than that of barbarous ages. In Virginia, Kentucky, Tennessee, and 
 Missouri, the homes of loyal men are made desolate, their dwellings 
 burned, and themselves and families driven from the land, while traitor- 
 ous rebels are secure in their possessions, the laws of the land respect- 
 ing the rights of citizens. The rebels have immunities from violence 
 and wrong that true loyal men are deprived of by the rebel hordes that 
 infest and plunder the country- Smouldering ruins but too plainly 
 mark the place from which loyal men have been driven. Prisoners, 
 that the changing fates of war have })laced in their power, are treated 
 with more than savage cruelty; deprived of wholesome diet, confined in 
 crowded prisons where pestilence ravages and destroys, they are mur- 
 dered in cold blood by a ruthless soldierj^for attempting to inhale, from 
 their prison windows, the pure air of heaven. In the most brutal man- 
 ner have they murdered our wounded soldiers who fell upon the field 
 nobly, bravely defending and fighting under the flag of the Union. 
 They have employed ruthless savages to make war upon our people, 
 and pernntted them, while under their command, to scalp and mutilate 
 the dead, wounded, and dying of our countrymen. They have de- 
 spoiled the grave of its dead ; have digged therefrom, with their unholy 
 hands', the bodies of those who fell in battle, for the hellish purpose of 
 making from their bones articles to adorn their persons; and of the 
 skull of a brave ofiicer they made a drinking cup for use at their revels, 
 where humanity would refuse to enter, and where devils alone did con- 
 gregate. 
 
u 
 
 "When driven from their strongholds, they conceal heneath the sur- 
 face of the earth, in frequented places, infernal machines, which, when 
 pressed by feet of weary soldiers, explode, and thus they murder tliera. 
 Many have fallen victims to this mode of inhuman assassination. Who 
 does not blush for his kind and his country when he reviews the dread- 
 ful record of this civil war ? 
 
 And who will not say that the savage warrior, with the hleeding 
 scalp of his enemy at his girdle, is not an angel of light compared with 
 those who, reared in a civilized and Christian land, can perpetrate such 
 atrocities? For this a dreadful retribution will and must follow. Ven- 
 geance will not always slumber; the hlood of our slain cries from the 
 red field of strife for a deep and terrible retribution. It will come. 
 
 Sir, I would not retaliate ; I would not adopt measures of extreme 
 rigor; but I would take from them the means to again blacken the 
 history of the world by the continuance of such dreadful and unnatural 
 crimes. 
 
 Who can complain of the policy of confiscating the property of rebels 
 in arms ? Certainly they cannot; for they have adopted the policy of 
 capture ajid confiscation in its greatest extent. The Senator from 
 Kentucky [Mr. Davis] introduced and urged the passage of a more 
 stringent confiscation bill than the one now before the House. Many 
 gentlemen of Missouri and Virginia urge the passage of this bill ; and 
 the gentleman from Missouri [Mr. ]!!^oell] advocated the enactment of 
 this bill in an able and eftective speech, as did also his colleague, [Mr. 
 Blair.] Whence, then, comes the opposition ? Mainly from the 
 northern States ; from gentlemen whose constituents are being sacri- 
 ficed by thousands to put down and crush out this rebellion. Let them 
 settle tliat account with their own people when they shall meet face to 
 face, wdien the woe and mourning for those slain in battle shall con- 
 vince them that war is in the land. 
 
 ISTow, what do we propose ? We propose that the really guilty shall 
 be punished and their property confiscated. I desire that those who 
 have instigated this rebellion shall be punished, I care not how severely. 
 Those who have led the southern portion of this Confederacy to mur- 
 derous acts against the Government, and have induced unthinking men 
 to attempt, by violence, its destruction, should be made to bear the 
 penalty of treason and feel the weight and burden of the war they have 
 induced. We should not in our legislation strike at the unthinking 
 and the unwitting dupes of designing men, hut we should strike at 
 those whose heads have conceived and whose hearts have been enlisted 
 in this work. For them I have no sympathy ; to them but little mercy 
 is due ; they are rebels, and they are engaged in a war against a Gov- 
 ernment the best on earth. I propose to reach thein, and them alone. 
 Sir, this bill, forgetting all the past, the horrid past, that wilhstand for 
 all time upon the records of the historj^ of my country, proposes to 
 condemn them to the loss of the very means by which they carry on 
 this war. I would not reach the masses. I would leave them to be 
 wooed back to their allegiance to the Government. You cannot, you 
 should not, sacrifice whole communities, but you can punish the leaders 
 of the rebellion. The history of the world does not furnish an instance 
 in which such a rebellion has been raised against a Government, and 
 
li 
 
 inwhicli its leaders were not punished. I would woo back the men 
 of the South who till their farms — the young men who, under excite- 
 ment, have been led to deeds of disloyalty by the false statements of 
 their leaders. I would m^oo them back, but ask me not to woo back 
 the arch-traitors themselves. As well might you attempt to woo the 
 tiger from his lust of blood, or lure the arch-jSend from his sulphurous 
 home to the realms of light and peace from which he fell by like rebel- 
 lion, as to lure back these men who lead the rebel armies and have in- 
 stigated and continued this war of insurrection. Mr. Speaker, I do not 
 feel at liberty to rest here without doing all in my power to cripple 
 their energies and put an end to this desolating war. I tried to avert 
 it. I wish it could have been averted. I had hoped that they would 
 return to their allegiance. 
 
 But that time has passed, and we are derelict in our duty if we halt 
 and hesitate longer in this emergency. 
 
 It has been my fortune, sir, to visit recently the homes of my con- 
 stituents. "We have sent many thousands to the field. How many of 
 them may return is for the future to determine. Thousands will never 
 return ; they have sealed their devotion to their country with their 
 lives ; the altar of our common country has long been red with the 
 blood of sacrifice. Go where you v/ill through our State, and on the 
 streets you will see maimed and disabled soldiers. Mothers and sisters 
 nurse the sick and wounded, while fathers bury their dead slain in bat- 
 tle. But the heart of that people is sound ; they have no fears of the 
 result of this conflict ; they have set their hearts on the preservation 
 of the Union, and, if need be to accomplish it, they will send one hun- 
 dred thousand more true men to the field. 
 
 But, sir, they expect us to do our duty ; they will do theirs. They 
 will demand of us — they do demand of us — to, in all constitutional 
 ways, strike down the power of those who strike them. Sir, if we are 
 as true to ourselves and our country as are our constituents to the Union 
 we will not hesitate in our action to-day.: 
 
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