48© Pass ZA^t SPEECH HON. W: SAULSBURY, OF DEL., C0ISrFISCA.TI01S "'lini!^''^- ' niKSDAY, JUNE 24, 1862. /y^3 Mr. SAULSBURV said: Mr. President: Nearly sixty years ago, when Napoleon was at the zeuith of his power, M. (le Chateaubriand penned these words : '• When, in the silenoe of abject submiBsiou, w« \w.-av only the chaius of the slaye aad the voice ol tlin iiit'ornier : when all tremble before the tyrant, and it iB as dangeroud to incur favor as to merit diai^race, the historiiin appears to be charged with the vengeance of nutious. It is in vain that Nero triumphs, 'faeitus has been born j in the empire; he {;row» up, uiinotiecJ, near the ashes of Germanicus, and already uncompromising Providence has handed over to au ob.'sciire child the glory of the uiaHter of the vrorld." Sir, let the wicked imitators of the cruelties of the bloody Nero, and .the oppressions of the haughty emperor, ponder well flie utterances of Chateaubriand. History has not only a voice, she bears a .scourge. Some future Tacitus shall yet do justice to the genius of our free but violated institutions, and transmit, embalmed in merited and everlasting infamy, for the execration of future generations, the names and actions of those who, charged with a nation's weal, have produced a nation's woe. If, in anticipating to some extent to-day the historians task, I shall apeak plainly, and with somewhat of unwonted feeling, a deep sen.He of duty to my countrymen will constitute my full justification. The times are sadly out of joint. Ruin and destruction lie immediately in our pathway. The passions, not the judgment uf men, control their action. The fondest hopes of the patriot may in a moment be forever blasted. Whether even now it is possible to escape final and irreti-icviible shipwreck is a problem which the wisest are unable to solve. It is time, high time, that the representatives of the States and of the people should cry aloud aud spare not. It is time that the American people should arouse themselves from the lethargy that enervates and the false security that deludes them. Born to an inheritance of freedom, they should not passively submit to be slaves Unless they mean to shame a uoble ancestry, and bequeath a name of infamy to their posterity, they should at once awake to tlie dangers of the present, and provide against the foreshadowed calamitie.s of the future. Arbitrary and despotic power, not satisfied with trampling upon every con- >?titutional right of the citizen, has profanely dared to invade the temple of justice, ami dragged her minister from her altar, lie who invades the sanctuary of justice and inter- rupts the due course of its administration proves himself a tyrant capable of any assaults upon the liberties of the people. That people are madly blind who, witnessing such acti? y of usurpation, fail to demand witli more than baron-like firmness the reaffirmance of the Magna Charta of their liberties. Under the pretence of suppressing a causeless rebellion, the executive and legislative departments of this Government are, in my opinion, daily engaged in the grossest viola- tions ot (he fundamental law. If in times of peace the Constitution is the surest protection of the citiicji), in time of civil war it is his only hope of safety. When skies are clear, when seas ar« calm, and winds are lulled, the mariner treads with unconcern the deck of liis ocean home. It is only when waves run high and skies are dark and tempeets howl, Mc-Gjll, Wjtherow ii Co., Printers, Waehingtou, ^^^\ £'- f that with unfaltering grasp he trusts the helm to guide him safely through the storm. Sir, darkness and night have set in around us as a nation. Would that " the night were far spent and that day was at hand." But alas! the watchmen can give no signs of promise. The hope of the most hopeful begins to fail him, and a nation is solemnly inquiring whether it must not cease to be. Sir, I propose to-day before the tribunal of my countrymen to make solemn and impartial inquisition of blood. Who are they that have murdered constitutional liberty and destroyed our Federal Union ? Day after day, since this session has commenced, false teachers have uttered their sayings, and false prophets have prophesied to the people. Making wide their political phylacteries, they stand in the chief places of the political synagogue that they may be seen and heard of men. Having deliberately chosen, by the rejection of every honorable and peaceful mode of adjustment, the arbitrament of the sword, they have plunged the country into all the horrors of civil war, and now that the work of their hands is upon them, they shout aloud their devotion to the Union, and evidence their sincerity by attempting the destruction of the liberties of the people. They even assume to sit in judgment upon the motives and action of those who have independence enough to condemn, and love of country enough to resist, the consummation of their schemes for the permanent severance or de?*'-~t=Ti of , I'lie 'BvJ<^n•»J. ITnion. With pharisaical Qoolness they stand in the public pla. piously thank God that they are not a; '* join thcra in their ruthless war upon t and palpably unconstitutional aredelib their propriety, or refuses his support of them, is, according lo Mi'ti^st^nujiravof judgment, "to form a more perfect union, establish justice, insure doln^estic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." the Government thus formed was clothed with ample powers, but it coUld exercise no powers not delegated in the instrument creating it, for it was expressly provided that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The application of these principles to the bill under consideration will hereafter appear. A Federal, common Government, with delegated and strictly-defined powers, having thus been established, the fondest hope of the patriot was at last realized. He looked forward in exultant hope and saw in the not distant future a mighty people, with a domain extend- ing from lakes to gulf and from ocean to ocean, attracting by the free spirit of their insti- tutions the wanderer from every clime, and commanding by their justice and power the admiration and respect of the whole civilized world. For more than thirty years this people were contented, happy, pr'osperous, free. They had not listened to the teachings of a false philanthropy, nor yielded to the suggestions of those governed solely by motives of personal ambition. The fathers lived, and while ihey lived plighted faith was observed and national honor was maintained. To carry into effect that compromise of the Constitution without which even Justice Story admits the Constitution could not have been formed, they passed the first fugitive slave act in 1793, which rec.eived the approval of the Father of his Country, as President of the United States. New States were from time to time admitted into the Union, from the time of its formation until 18li0, with or without slavery, according to the free choice of their citizens. Ver- mont, Kentucky, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, ^labama, and Maine, were so admitted. In 1819, the people of Missouri applied for admission into the Union. Their constitution recognized the relation of master and slave. It was then that political abolitionism attempted to deprive the people of a State of admission into the Union unless they would surrender the dearest constitutional right of American freemen — the right to form and regulate their domestic institutions in their own way — and consent to have those institutions formed and regulated by others. The controversy convulsed the nation, and threatened with destruction the best and freest Government on earth. To escape that destruction, an ignominious and unconstitutional condition was extorted from the patriots of that day, which has had, in its effects and consequences, much to do in involving us in the unhnppy condition in which we are now placed. This was the first instalment of abolitionism towards our country's ruin. The storm passed by, and aboli- tionism slept, but was not dead. From 1838 to 1844 it again disturbed the peace of the country by its repeated appeals to Congress to abolish slavery in the District of Columbia and in the national dock-yards and arsenals. About the same time it clamored against the admission of Texas into the Union until that people would consent to mold their domestic institutions to suit its vitiated taste. We acquired our possessions from Mexico, and true to its instincts for political mischief, it convulsed the land and threatened the Government with destruction unless slavery should be by act of Congress excluded therefrom. The fugitive slave law was amended so as to enable the master to reclaim the possession of the fugitive from service and labor, as was his unquestionable right under the Federal Constitution. Abo- litionism resisted, and by force, the execution of that law, and in many States attempted to nullify, and practically did nullify it, by opposing unconstitutional State legislation denominated personal liberty bills. In every instance from the foundation of the Govern- ment it had been aggressive. Political parties, yielding to its influence to gain a tem- porary advantage, were first corrupted and then destroyed by it. In 1856 a new party arose, many of whose members were honestly opposed to political abolitionism, but her votaries thronged its conventions, made its platforms, and nom- inated its candidates for office. Passing by the distinguished men who gave to it their adhesion, they nominated for the first office in the nation a political adventurer, and declared a general war upon what they were pleased to term "those twin relics of burbarism, polygamy, and slavery." They emerged from the conflict defeated, but surprised at their almost triumphal success. Gaining control of almost if not all the State governments in the North and Northwest, they directed their legislation and inflamed the minds of their people against the institution of domestic slavery. Their representatives thronged the Halls of Federal legislation and clamored for emancipation. Abolition petitions flooded the country and loaded your tables. An abolition press debauched the minds 6f the peo- ple, and abolition orators inflamed their pabsions by reciting to them the horrors of slavery among a distant people. This fanaticism and wickedness culminated in the attempt by abolition emissaries to invade a slaveholding State, for the purpose of stirring up a servile insurrection, and in murdering, with the assistance of their free negro associates, peaceful citizens in the stillness of a Sabbath's night. Abolitionism howled in rage at the failure of bis hellish scheme, and declared his execution a judicial murder. Abolitionists fol- lowed him to 'his grave, and a leading saint proclaimed that the gallows upon which he expiated his crimes was b^ hie death rendered as illustrious as the cross upon which the Saviour died. Thus again, continuously and persistently, has abolitionism been aggressive. In 1860 the Republican party, in a national convention, composed of men some of whom were not and some of whom were abolitionists, adopted a platform aggressive in its charac- ter, in which they, among other things, declared their intention to prohibit the admission of any more slave States into the Union, and also an intention to exclude slavery from the common Territories. Upon this platform they nominated for President of the United States, a man who had previously proclaimed in substance, in allusion to the States com- posing the Federal Union, •' that a house divided against itself cannot stand, that either all the States would become free or all slave, and that the agitation of slavery would continue until the public mind could rest in the assurance that it was in the course of ultimate ex- tinction." He was elected. Then it was that the clouds gathered darkness, and the bowl- ings of the coming storm were distinctly heard in the distance. Wise men, good men, saw those clouds and heard the mutterings of that storm. The opposing elements of political discord were brought face in the Council Chamber of the nation. The representatives of tha South demanded guarantees that their constitutional rights should be respected and observed in the future. The representatives of the North refused to give them. A ven- erable Senator [Mr. Crittenden] who had been almost a cotemporary with the fathers, yet lingered beyond his years among their children. He offered in his place in the Senate a compromise honorable to-all, derogatory to none, guaranteeing rights which had solemnly been decided by the highest and final legal tribunal to exist under the Constitution. The representative^of the South were willing to accept them. The people of the North, by their petitions, requested you to accept them. You refused, and your refusal produced war, deadly war, civil war, remorseless war, war the end of which the wisest cannot foresee, but which threatens to end only in the overthrow of the nation and the destruction of the liberties of the people. When 1 say that your refusal to adopt the Crittenden compromise measures produced war, I do not mean to say that this Government struck the first blow. I mean to say that you knew, were assured, had reason to believe, and, in my opinion, did believe, the war would result from your refusal ; that you had it in your power by honorable compromise to prevent war, and that you deliberately chose war in preference to averting it by com- promise. A number of the southern States assumed to withdraw from the Union. They confederated together and established an independent government. They organized a mili- tary force, seized upon the forts and arsenals within their limits, and failing to receive a recognition of their independence by the Executive, in apprehension that a feeble garrison at Fort Sumter might be reinforced, they demanded its surrender. Being refused, they fired the first gun, and thus precipitated war. Would that the hand that applied that torch had fell paralyzed and withered to the ground. Mr. President, this inauguration of civil war might have been averted by the adoption of the Crittenden compromise. War followed its rejection. Let the responsibility rest where it properly belongs. History will record her verdict. Posterity will judge right- eously. The attack upon Fort Sumter inflamed the passions of the nation. The President called for seventy-five thousand volunteers, •' They came as the winds come when forests are Tended, They came as the waves come when navies are stranded." Congress met. He who would have proposed to avert the further calamities of war, or to have preserved the nation by any other means than war, might expect to be regarded as little better than a traitor Men and money were profusely voted. Armies weie marohe I into the field, and " on to Richmond !" was the cry. On towards Richmond they went, and the bloody field of Manassas evidenced their defeat. On the very day succeeding that battle, Congress unanimously passed the following resolution : "That this war is not waged on their part in any spirit of oppression, nor for any purpose of conquest or sub- jugation, nor purpose of overtlyowiug or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, ©quality, and rights of the several States unimpaired ; and that as scjon as these objects are accomplished tln» war ought to cease." The nation took heart again. Seven hundred thousand volunteers went to the field. Every border slave State that had not seceded resolved to stand by the old flag and by the Federal Union. They sent their sons to swell your armies, and their bones whiten every battle-ground. Congress met in December. How have you kept your blighted faith ? " Let facts be submitted to a candid world." You have abolished slavery in the District of Columbia without the consent of their owners and against their wishes. You have thus created a "paradise for free negroes," to which the slaves of loyal masters in Maryland escape by hundreds. When the owner applies to your court for redress and they afford it, as they are bound to and as far as they can, you turn your military power against the mar- shal and prevent the due execution of legal process. You have made it an oflfence punishable by dismissal from the service for any officer of the Army to return a fugitive slave to his loyal owner. You have refused to make it an oflfence punishable in like manner for such officer to entice or decoy a slave from his loyal owner. You have through your armies decoyed from the service of their owners, loyal and disloyal, or afforded shelter and protection to them, thousands of slaves within the States. You are now feeding and clothing thousands of this class of people out of the public Treasury without warrant of law, and are levying taxes upon the white people of the country to enable you to continue the expenditure. You are now keeping ai the public expense in this city a row of houses in which you sup- port, without authority of law, hundreds of this class of people in idleness. You are pay- ing thousands of negroes as teamsters in your Army at the rate of thirty dollars per month, while your white soldiers are fighting your battles for thirteen dollars per month. You are arming the slaves of the South and enlisting them in your Navy for the murder of their masters. You have, as far as this body could do so, repealed the law prohibiting free negroes from carrying the mail You have legalized the testimony of a negro against a white man. and that of the slave which you have freed as against his master. You have, upon the recommendation of the President, attempted to build up an abolition party in the border slave States by the offer of pecuniary aid which you have neither the ability, consti- tutional authority, or intention to give. As if for the purpose of irritating anl wounding the sensibilities of those whom you have already grievously wronged, you have chosen thin as the most opportune time to establish diplomatic relations with the free uegro republics of Hayti and Liberia. Instead of returning fugitive slaves to their owners, as by law you are bound to do, you have appointed a superintendent over them to prevent their return, and to provide for their comfort out of the taxes levied upon the industry of the country. Instead of avoiding unnecessary legislation in reference to the cause of sectional difl^erence, you have prohibited the existence of slavery, not only in existing territory but in any which may hereafter be acquired. Lest the sincerity of your pledge should not otherwise be sufiioiently evidenced, the Council Chamber of the nation fs converted into a house of wailing over the wroflgs inflicted upon the poor unoffending slave. You have by your bills pro- posed the emancipation of almost the entire slave population in the States, and the bill now before the Senate is to be amended, if possible, so as to accomplish that object. But I turu from the recital of these violations of plighted faith to a consideration of the principles in volved in the measure now before the Senate. In order to understand the character of the bill under consideration, the power of Congress to pass it, and the propriety of its passage, we must consider the nature of the conflict in which we are involved. Loose ideas prevail upon this subject. Some have denominated the resistance of the confederate States sedition. The President considers it an insun-ection . but it ie most generally termed a rebellion. Sedition is defined to be '*B tumult, an insurrection, a popular commotion, an uproar " "That sunshine brew'd a shower for him, That waah'd his father's fortunes forth of France, And heap'd sedition on his crown at home." "In soothing them, we nourish 'gainst our senate The cockle of rebellion, insolence, sedition." The term sedition, therefore, cannot in this instance be properly applied. An insurrec- tion is a seditious rising, a rebellious commotion. Like sedition, it is the act of unorganized individuals. A portion of the people, without the forms of law, may make a sedition or insurrection against the authority of the State ; but States and organized political commu- nities cannot with propriety be said to be seditious or insurrectionary. " Between the acting of a dreadful thing And the first motioti, all the interim is Like a phantasma, or a hidous dream ; The genius, and the moral instruments. Are then in council ; and the state of man, Like to a little kingdom, suffers then The nature of an irwwrreciion." * Insurrections of base people ate commonly more furious in their beginnings. (Bacon's Henry VII.) Neither is rebellion, in the popular sense, a proper term to describe the resistance of those States to Federal authority. Rebellion is resistance to lawful authority, but it is always the voluntary act of individuals, and never is applied to the organized action of political communities. We read and have heard of the whisky insurrection in Pennsyl- vania, and of Shay's rebellion in Massachusetts, but who ever heard or read of the Amer- ican insurrection or the French rebellion. Sir, we are in the midst of a great political revolution or change of government, to which sovereign States, confederated together, not individuals, are parties on one side, and the Government of the United States is party on the other. This fact is necessary to be observed and remembered that we may have a clear perception of the character of mugh of our legislation, consummated and proposed. I shall assume what is conceded, conceded by the Senator from Vermont, [Mr. Collamer,] and also by the Senator from Pennsylvania, [Mr. Cowan,] that the government of the confederate States is a government de facto. Asstiming this, which I think cannot be suc- cessfully denied, I propose to consider the question whether, under existing circumstances, all those who yield obedience to the government of the confederate States, by accepting and exercisipg office under it, or even by bearing arms in its support, can be rightfully regarded and treated as traitors by us. This is a subject that should be approached with an honest and candid purpose, and its consideration freed as far as possible from all the passions and prejudices of the maddened hour. We can gain nothing before the great tribunal of the world, thatt of history, or, eventually, that of our own consciences, by self deception, by the adoption of false prem- ises, or the application of false logic. I am aware, Mr. President, that the opinions I am about to express do not accord with the notions of many blatant patriots of the present times. There is not an Army contractor in the land who will not condemn them. There is not a public plunderer between the two oceans wliose patriotism would not be shocked at them. There is not an abolition Union-slider, from Maine to California, that would not consider them heretical. But, sir, I speak to men of sense, and not to fools. I want the ear of honest Union-loving men, whose action in the past, as well as at the present, evidence the sincerity of their attachment to the Union. I have no message for those who are for the U^ion without slavery, but opposed to a Union in which slavery exists. Such miserable traitors deceive nobody by their cry of Union. I believe that when a revolution is so far completed that a government de facto has be- come established, when the former Government is so far ousted that after having had a full opportunity it has shown itself unable to alFord protection to its adherents in the rev- olutionary government, the duty of allegiance so far ceases that it would be unjust, and therefore illegal, to punish obedience to the commands of the government de facto as treason towards the government c?«y^now it may be said, in reply, that the errors of which I speak are not those of mere ;ab3tract theory, but are productive of immediate practical evils. I admit it ; and since the arbitrament of the sword has unwisely been resorted to as the means of settling our difficulties I do not object to the proper amount of physical coercion. The same would be the case if men under the garb of religion should introduce practices destructive of the peace and order of society. But in such cases the remedy should only be commensurate with the disease. We might justly punish persons for the direct consequences of any of their acts in violation of law, how much soever they might profess to have been actuated by conscientious motives, or to have acted in accordance with their religious theories, but we should never send them to the gallows or the penitentiary ; we should never confiscate their property on account of their errors of opinion and judgment, or of acts done in obe- dience to their dictates, because they had adopted notions and acted upon them which in our opinion were calculated to produce and did produce public mischiefs. So, in the present case, let men be punished for the direct and immediate consequences of their con- duct. If their mistaken theories cause them to rise in arms, let them be put down by the strong arm of power, if it be necessary to invoke war for that purpose ; but when the desired result is attained, when all resistance to the law is overcome, let reason and humanity again resume their sway. It certainly cannot be expedient, upon the principles I have been considering, that he who, from a mistaken political theory, had consented to exercise the functions of civil ofBce and to aid a government that could command his obedience and punish him for dis- obedience, should be made to undergo the punishment of a felon ; nor that he who, hav- ing just grounds of doubt as to his public duty in any other respect, has followed the dic- tates ■of his own judgment and adopted a course which subsequent events have shown to be erroneous, should be visited with all the dire consequences of intentional wickedness. But why argue the question as a matter of law, or assign reasons founded in justice and humanity against the exercise of the power. The whole subject is res adjudicata. Even in England the statute of treason applies to a king de facto, and not de jure. Says Black- stone, vol. 4, p. 221 : '•A usurper who has got possession of the throne is a king within the meaning of the statute, as there is a temporary allegiauee due to him for his administration of the government and temporary protection of the public ; and therefore treasons committed against Henry VX were punished under Edward IV, though all the line of Lancaster had been previously declared usurpers by act of Parliament. When, therefore, a usurper is in possession, the subject is excused and justified in obeying and giving his assista^ice. Otherwise, under a usurpation, no man would be siife if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience." If such be the rule in a consolidated monarchy, where there is no double allegiance to be by force of circumstances antagonized, how much more powerful are the reasons for its recognition and observance in a Government and country like ours, where allegiance is due to State as well as Fedei-al authority ? Observe the reason assigned by Blackstone for the principle which he asserts to be law: "When, therefore, a usurper is in possession, the subject is excused and justified in obeying and giving his assistance; otherwise, under a usurpation no one Would be safe, if the lawful prince had a right to liang him for obedience to the powers in being, as the usurper would certainly do for disobedience." But, sir, this principle is not without judicial recognition in this country. In the case of Respublica t's. Samuel Chapman, (1 Dallas, pages 53 to 00,) decided in 178?, before the recognition of our independence, the court held. Chief Justice McKean delivering the 11 opinion, that the State of Pennsylvania having declared its independence of Great Britain, and having established a Government capable of affording protection to the citizen, high treason might have been committed against it by any person luho was a subject of the common- wealth. The court say : '•Allegiance being due from the 2Sth of November, 1776, when, as already observed, the legislature was con- vened, and the members of Council were appointed, treason, which is nothing more than a criminal attempt to destroy the existence of the Government, might certainly have been committed before the different qualities of the crime were defined and its punishment declared by a positive law." And why ? Because treason being a crime at common law, and protection and allegiance being reciprocal, the power — organized political power — that protects, has the undoubted right to command the obedience of those whom it protects. The court, in this case, also observe : "Pennsylvania was not a nation at war with another nation, but a country in a state oi civil war, and there is no precedent in the books to show what might he done in that case ; except, indeed, where a prince has subdued the people who took arms against him hefcure tliey had formed a regular government, which is likewise inapplicable here." Why inapplicable ? Because, although less than five months had elapsed since the assertion of independence, yet the people of Pennsylvania had "formed a regular govern- ment." The right, therefore, which a prince has to the allegiance of a people in arms against him, and to punish them criminally, they being subdued before a regular govern- ment was formed by them, could not exist after the formation of such government and for such acts as were done in obedience thereto. The correctness of this opinion has never, to my knowledge, been questioned by any subsequent judicial decision. It is supported by reason and acknowledged in the political action of every modern civilized nation. Coke says, and lawyers have ever been proud to repeat it, that " law is the perfection of reason." Now is it reasonable, or can it possibly be law, that a citizen can be answerable, capi- tally, at the same time to two governments for his political conduct ? The government de facto having power and control over him, capable of punishing with death his disobe- dience, commands him to do a certain act. The government de jure has not the power to protect him against the consequences of disobedience to that command, but threatens to punish obedience thereto with death in the future. He yields obedience to the govern- ment (fe/acio ; fortune subsequently places him in your power. Would you, could you, lawfully execute him ? Reason says no ; justice says no ; humanity says no ; and ail civ- ilized nations have said no. I admit that you may arbitrarily declare belligerent acts of a government de facto to be as against you acts of treason on the part of those committing them, and a subservient court, adopting the views of the legislative and executive depart- ments of the Government, might feel constrained to pronounce in favor of the validity of your enactments ; but you cannot rightfully or justly change the nature of things, or influ- ence the judgment of the world in respect to them. All nations profess to be neutral in reference to our existing difficulties. They acknowledge the existence of civil war in this country. Acknowledging the existence of civil war, they cannot consider as criminal those act!? of hostility on the part of the so-called confederate States which war authorizes, and which they may direct against us. We have decided this question ourselves, and cannot complain if other nations shall act upon our decision. In case of the United States vs. Palmer, (3 Wheaton,) the court held that — " Where civil war rages in a foreign nation, one part of which separates itself from the old esta!51ished Gov- ernment and erects itself into a distinct government, the courts of the Union must view such newly constituted government as it is viewed by tlie legislative and executive departments of the Government of the United .States. If the Government of tlie Union remains iieutral but recognizes the existence of civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new govern- ment may direct against the enemy." The court also held that the same testimony which would be sufficient to prove that a vessel or persob is in the service of an acknowledged State is admissible to prove that they are in the service of a newly created government, and .Judge Johnson well remarked, that — "To exempt from the punishment of piracy it was only necessary to prove, first, the existence of open war; and, secondly, that the vessel was owned and commanded as a belligerent vessel." Mr. President, the true theory of our government is this : the Federal Government is the creature of the States. They, being sovereign, made it. Within the sphere of its delegated powers they agreed that it should be supreme. They thereby did not relinquish their own sovereignty, but retained it fully and absolutely- within the sphere of their re- served or non-delegated authority. But that I may not be deemed heretical, I will adopt the language of Roger Sherman : "The Government of the United States being federal, and instituted by a number of sovereign St,ates,they may be considered as so many pillars to support it." I also adopt the language of the men who assisted in making the Federal Constitution, in their joint official report to Governor Huntington. They say : « Those powers (those granted to Congress) extend only to matters respectfug the common interests of the Union, and are specially defined, so that tlie particular .States retain their saotreignty in uU other viatlers. 12 Is it necessary to multiply authorities? They are innumerable. Let the defamers of their living countrymen hear what the fathers and the men who framed the Constitution said in reference to the nature and extent of Federal and State authority. Sir, if the men who made the Constitution were alive to-day the abolition disunionists of the North would call them secessionists. Their theory seems to be that the States, as such, are nothing in our Federal system ; that they are mere provinces ; that their citizens are sub- jects of one great, powerful, consolidated Government, of which Abraham Lincoln is absolute sovereign and William H. Seward prime minister. The principles of these Constitution-destroyers, however, are very flexible. They can resist and advise resistance to the due execution of Federal authority when attempted in their midst ; they can abet and countenance insurrection and treason in Virginia, arm slaves for the murder of their masters, and impiously proclaim that the gallows upon which John Brown was hanged to be as glorious as the cross upon which our Saviour died ; but if abolitionism is to be forced upon an unwilling people, then passive obedience is the highest duty ? and resistance to arbitrary power, even by one who, by command of hi.* State, is forced to resist or die, the Federal authority not being capable of shielding him from the consequences of disobedience, is treason, to be punished with death and confisca- tion of estate. Sir, if Caleb Strong, Christopher Gore, James Wilson, Governor Hunting- ton, Roger Sherman, and many of the political fathers were alive to-day, they would be very fortunate, indeed, if they escaped a compulsory residence in Fort Warren. Says Caleb Strong : "The State Legislatures are the guardians not only of individuals, but of the sovereignty of their respective States." Says Senator Gore : " The Government of the United States can exercise no powers not granted by the Constitution; and so far as this Government can support such as it claims, on this cfiarter it is sovereign. The government of eacli State IS EQUALLY SOVEREIGN With respect to every power of an independent State which it has not delegated to the United States, or is not prohibited to the several States by the Constitution." Says Judge Wilson : "On what pretence can it be alleged, that it was designed to annihilate the State governments? I will un- dertake to prove that upon their existence depends the existence of the Federal plan." But why multiply authorities. The principles already discussed, and authorities cited, convince me of the truth of the following propositions: The Government of the United States was made by the people of the several States, acting in their separate State capacity, and not by a majority of the whole people of the United States, acting in their collective capacity. That the Government thus made is one of delegated limited powers, but that within the scope of those powers it is supreme, and that allegiance is due to it to that extent by every citizen of the United States. That the several States are equally sovereign within the scope of their reserved or non- delegated powers, and that to this extent allegiance is due to them respectively by their citizens. That we are in the midst of a great political revolution in which eleven States are par- ties on eae side and the Federal Government party on the other — those States confede- rating unwisely and wrongfully, as I believe, to withdraw themselves from the Federal Union, and to permanently establish one among themselves. That the events developed by this revolution have antagonized the double allegiance of the citizens of the confederated States. That those States having established a government de facto, and the Federal authority having been so far in fact ousted from those States that it cannot afford protection to the citizen against the consequences of disobedience to the commands of State authority, and the State or confederation of States having the power to punish him even with death for disobedience, he is excused, in the language of Black- stone, in obeying, and thereby incurs neither the penaltjr of death nor confiscation of estate, as a consequence of the crime of treason against the United States. If these principles, Mr. President, be correct, and however unpopular they may be, and however much they may subject me to misrepresentation and abuse by the ignorant, the thoughtless, and the malicious, I honestly believe them to be, there is an end to the bill under consideration. Its only basis of support is gone. Treason is out of the question. It is " an act to confiscate the property of rebels for the payment of the expenses of the present rebellion, and for other purposes." In other words it is an act for the punishment of treason. But there is another view to be taken of this matter which presents the argument I am urging in a still stronger light. While I admit the right of this Government by force of arms to prevent the secession of any of the States of the Union, I deny that such right is derived from or granted by the Constitution of the United States, 1 believe the doctrine 13 of Oliyer Ellsworth to be true, that " this Constitution does not attempt to cotrct. sovirtign States in their political capacity." This right, if it exists, springs from the overruling ne- cessity of self-preservation and the right which one party to a contract, while fulfilling his own obligations under it, has to compel a compliance by the other party to it with his obligations. If these reasons do not justify us, then we are without excuse for all the blood we are now sheddiug. Let those who deny the truth of this proposition point to the article and section and clause in the Constitution which give the power they claim. Congress, it j(? true, has power '' to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, anc^ repel invasion ;" but the action of a sovereign State is not an insurrection within the meaning of this provision. This is clearly inferable froni the direct refusal of the constitutional convention to give authority to the Federal Government to exercise its military power to control the action of the State governments, and also by the recorded opinions of its founders in reference to the extent of authority granted to it. Practically, ho^wver, it makes little difference whether this power of coercion is of con- stitutional origin, or whether it results from the principles before stated so far as its direct consequences are involved. But it makes an essential difference in reference to the ques- tion we are now considering. If the possession of the Island of Cuba were necessary to the safety and existence of this nation, we should be fully justified by the law of nations in seizing it at any hazard. War would be the necessary result ; but*ven this, with all its consequences, would be justified by the great right of self-jjreservation. As far as the necessity of the case should go her commerce might be destroyed, her fields laid waste, her cities ruined, those of her people who should meet us in arms Avould be liable to be slaughtered, but never could they be regarded or treated as rebels or traitors. The law of necessity upon which our justification was founded would impose no obligations upon them. AVe might coerce them into submission, but we could not. regard them as having violated any great moral or political duty. 'J'heir only crime would have been the want of suflfioient physical strength to sustain themselves against our arms. Whether a continuance of the war which we are now waging, will be justifiable or other- wise, will depend upon the purpose and object for which it shall be waged. No one will contend, I presume, that it is necessary to the existence or independence of the adhering States, or of a common Government between them. The right, therefore, to wage it is the same that one party to a contract, fulfilling his own obligations under it, has to a specific performance of it by another party. The party asking for the specific performance must show his own compliance wih its terms and spirit. Showing this, he establishes his right to a decree against a defaulting party. But the complainant cannot have a decree for per- formance on any other terms than those named in the original agreement. He cannot interpolate or take from it. It must be performed in wliole or not at all. If you wage this war, therefore, for the restoration of the Union as it was and the Constitution as it is, ob- serving your own obligations under tli.ir instrument, and infringing no constitutional right of others, you will, since the swoni only can decide, be justified, and^he good and the patriotic everywhere will invoke the blessings of Heaven upon your efl'orts, and hold up 3'our hands when they are feeble. But if, in waging it, you mean to subvert the Constitu- tion, which is the only bond aud obligation of the union, if you mean to destroy or impair the constitutional rights of the States or the people, you wage it under a false pretence and your war is murder and your success treason. If the principles for which 1 ccmtend be correct, it follows that the contest in which we are involved is war, civil war. Sedition, insurrection, rebellion, in the ordinary accepta- tion of those terms, are out of the question. The rights and duties of the parties to the controversy are to be determined by the rules of modern civilized warfare. What those rules justify may and what they forbid may not be done. Those rules are to be learned from institutional writers and the modern practice of nations. The old rule of barbarism, that a nation at war with another was at war with each and all its subjects, has passed away with the ignorance and inhumanity in which it had its origin. The modern rule and the modern practice is, that private property is to be respected, and that public prop- erty alone can be acquired by war. On this principle we acted during the war with Mexico. Robbery of private Mexican citizens was punished, by our order, with death. Private rights, of person and property, were sacredly respected, and in this we but fol- lowed the example of all modern civilized nations. Does the fact that we are now at war with our own kindred change the rule or justify the visitation of punishment upon them which we would not and which we could not rightfully inflict upon a foreign people under similar circumstances? Senators, I am afraid that the existence of negro slavery in the southern States makes all the difference, both in theory and practice. Mr. President, it is no use to attempt to disguise the fact or conceal the truth in this case. Ostrich like, you may stick your heads in the sand and suppose you are concealed. You delude yourselves. Your purposes are known. ■ Your motives are understood. The 14 < present knows Uiem, the future will know Ihctn, and history will record them. Did not slavery exist in the southci'n States you never would have thought of a confiscation bill. You did not think of it in the war of 1812 with England. You did not think of it in the war with Mexico. Why do you think of it now? Your design is to make this a war for the abolition of slavery. You desire to destroy the domestic institutions of the States.' Abolitionism will be satisfied with nothing less than universal emancipation ; and aboli- tionism would not prosecute this war another day or another hour were it not for the hope that these objects may be accomplished. Abolitionism is speculating upon the patriotism of the people. It shouts Union, while meaning, if possible, to destroy the only bond (ff Union. Could it be personified, clotl^ed in flesh, made a living, sentient being, it could be indicted and convicted as a common cheat, as an insidious, dastardly traitor. Sir, I do not believe you could this day pass through the two Houses of Congress by a majority vote of the representatives of the party in power a joint resolution in favor of the Union as it was and the Constitution as it is. Abolitionism demands universal emancipation or disunion. It is as mueh a foe to the constitutional Union of the fathers as is secession. They are twin spi-rits of evil, allies in a common cause, and as such dcsei've the execration of the patriotic everywhere. In such motives, Mr. President, I believe this measure has its origin. It is a measure the principles of which are condemned by modern writers upon international law, and is wholly unknown in th« legislation of other nations in modern times. Even in the case of conquests from foreign nations, no general transmutation of title has occurred since the time of William the Conqueror ; nor has private property, unless under peculiar circum- stances, been interfered with by a coijquering Power. The bill under consideration em- braces not only things corporeal, but stocks, credits, and other efl^ects of an incorporeal nature, and, as if our stupidity and folly shall be evidenced in every possible form and to all future generations, the act declares that these shall be lawful subjects of seizure and of frizc and capture. A debt, a credit, the subject of seizure, of prize, and of capture ! Sir, yva have provided this session that the acts of Congress shall not in future be engrossed on parchment. It is well. Let those of this session be traced in sand, or written in water that our children may not blush at the ignorance of their fathers. There is not a single .modern publicist that would not pronounce the attempt to confiscate choses in. action as contrary to the law of nations ; and there is not, as I believe, a single institu- tional writer of any country who would justify confiscation at the end of a civil war. When Alexander, by conquest, became absolute master of Thebes, he remitted to the Thessalians a hundred talents, which they owed to the Thebans, and this is the origin of this whole doctrine of confiscation. To this orisrin Vattel traces it. The. doctrine is worthy of its origin. PuffendorfiF lays down the doctrine that ^^incorporalia bello no7i ad- quiruntur ; and also remarks : " Unde Bi civis ab hoste captus fuerit, bona istius, quas siDiul capta non fuerunt, iion adquirunter capienti; sed ad eum perveniiint, quem leges ciTiles, ad siiccessionem vocabant Bi esto naturali mortc functus csset." Upon which LorS Ellenborough, in the case of Wolf against Oxholm, (G Maule and Sclwyn, p. 92,) observes: " If thiuRS belonging to a captive enemy, but not actually taken, do not pass to the conquering enemy, how can things belonging to a person not made captive be legally acquired by an enemy vvbo is not a conqueror, either as to the person or the things?" In the case referred to, Lord Ellenborough decided that an ordinance made by the Gov- ernment of l5enmark, pending hostilities with Great Britain, whereby all ships, goods, moneys, and money's worth, of or belonging to English subjects, were declared to be seqtiestrated and detained, and by which all persons were commanded, within three chiys, to transmit am account of debts due to English subjects, in default of which they were to be proceeded against in the exchequer, was not comformable to the usage of nations and was, therefore. Void, and he gave judgment against the defendant, notwithstanding he had pre- viously paid the amount of the debt to commissioners appointed in virtue of the ordinance to receive payment. The conclusion of the opinion in that case is as follows : " Considering, therefore, that the right of confiscating debts contended for on the authority of these citations from Vattel, is not recognized by Grolius, aud is impugned by Puffendorff and others, that such confiscation was not general at any period of time, and that no in.stance of it except the ordinance in question, is to be fo'ind for something more than a century. We think our judgment would lie pregnant of mischief to future times if we did not declare that in our opinion this ordinance and the payment to commissioners appointed under it, do not furnish a defence to the present action ; and if they cannot do this of themselves, neither can they do so by the aid of the proceedings in tlie Danish court. The parties went into that court expecting justice according to the then existing laws of the country, and are not bound by the quashing of their suit in consequence of a suhse- (jMCJii ordinance, not conformable to the usage of nations, and which therefore they could not expect, nor are they or we bound to regard." That confiscation is contrary to the modern law of nations is further evidenced by what occurred in 1853, on behalf of the Lombards, who had been obliged to leave the Austrian do- minions in consequence of the unsuccessful attempt at revolution in Italy in 1848-49. On 15 that occasion the reclamations of Sardinia on belialf of those refugees, and to prevent the confiscation of their property, were earnestly sustained at Vienna, both by England and France. On no other principle could those Powers have interfered than that such confisca- tion was contrary to the law of nations. (See page 168, of the introduction to the last edition of Wheaton.) . • j / Again, sir. the same principle has been decided in this country in an opinion by Judge ' Sprague. He settles the principle that confiscation of property, hot for any use made of it in war, which go not against an offending article of property, but are inflicted for the personal delinquency or crime of the party, are punitive, and that all punishments should be inflicted only on conviction by due process of law for personal guilt. There is the great advantage of the bill proposed by the Senator from New Hampshire [Mr. Clark] over the bill of the House of Representatives, it conforming, to some extent at least, with the provisions of the Constitution in reference to trial by jury ; but for neither of these bills shall I vote. It may be said that the principle for which I contend applies oply to hostilities between foreign nations. But Vattel declares that^" the common laws of war are in civil wars to be observed on both sides. The same reasons which make the obligations between foreign "States renders them necessary in the unhappy circumstances where two exasperated par- tics are destroying their common country ;" and the action of France and England referred to evidences the correctness of the declaration. Let us avoid a like interference by foreign Towers in behalf of humanity by abstaining from those nets which the laws of nations condemns. I am aware of the attempts to disregard the facts which determine the char- acter of the present contest. That our Government, wljile taking advantage of belligerent rights in instituting blockades, and in doing similar acts, has professed to regard the exist- ing state of things as an insurrection merely, and not a civil war. The distinction in this case is nowhere more ably stated than in the chnpter of Vattel to which I have referred, and I believe no foreign publicist will be disposed to deny what Lord Lyons was instructed,, in January, to say to Mr. Seward, that " an insurrection extending over nine States in space and ten months in duration can only be considered as a civil war." But, sir, we ourselves, have determined the character of our present struggle Day after day it has been declared on this floor and in the other House of Congress that wc are engaged in war. On the 22d of July last, in the resolutions adopted by Congress, and before referred to, it was declared that when the supremacy of the Constitution was vin- dicated and the Union preserved, the war ought to cease. We have adopted all the usages and ceremonies of war. What mean your flags of truce, your commissions to negotiate for the exchange and your actual exchange of prisoners ? Were these things ever done • in an insurrection or a rebellion ? Sir, you have acknowledged the existence of w.ar; and war has its laws, its rights, its duties, which nations cannot disregard, but are bound to respect. Mr. President, I will detain the Senate no longer with the discussion of this measure. As means of punishing treason, its provisions ;ive so flagrantly unconstitutional that few will venture to claim for it constitutional authority. Due process of law, trial by jury, and judgments of courts of common-law jurisdiction are wholly ignoi-ed by it. Proceedings in rem are to be the efficient means for the forfeiture of estates and condemnation for treason against the Government. As a war measure, it contravenes the well established principles and violates the practice of all modern civilized nations. As a measure of policy, it is repudiated by reason and condemned by humanity. Its adoption can only prolong the war and render separation final and forever. No happier rebuke has been given to the attempt to barbarize our insane civil war than the remarks of Lord Russell in reference to the stone blockade, as repeated by Lord Lyons to Mr. Seward : " The object of war is peace, and the purposes of peace are mutual good will and advantageous commercial intercourse; but this proceeding would deprive war of its legitimate objects by stripping peace of its natural fruits." In the remarks I have submitted I have had but one object in view : the discharge of a solemn duty to my bleeding and distracted country. Could passion cease to govern and reason be allowed to control our action, we might, in the providence of God, even yet rescue our institutions from destruction and perpetuate them to remotest generations. Whatever shall be the result of this contest, as long as there shall remain a hope for the lireservation of constitutional liberty, I shall remain true to my arllegiance to that Govern- ment to which I owe all that I am and all that I hope to be, even until I shall be gathered to my fathers in the midst of that people among whom both they and I were born. Their" people shall be mv people,' their God my God, and where thoy are buried there also will I finally repose. My fervent prayer is that peace, harmonj', fraternal union may be. again restored, and one flag proudly float from ocean to ocean and from lakes to gulf; that the Federal Government, based upon an unchanged Constitution, may again dispense its blessings to a united, happy, prosperous, and free peoj)le. XI