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LIBRARY

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CQlSririSO^TEr) PiiOFEIlTY.

SPEECH
HON. L. D. M. SWEAT,
DELIVERED IN THB HOUSE OP REPRESENTATIVES,
FIRSf SDSSION, THIRTY-EIGHTH CONGEESS, '
jANtTARY 20, 1864.-

• The House having under consideration a Joint Bejolution repealing a Joint Resolction
• explanatory of " An act to suppress insurrectipn, to punish treason and rebelUon, to seize
and coilflscate the property of rebels, and for other purposes"—
Mr. SWEAT said :
Mr. Speaker : Radifcalism in these fevered days of war, upon matters pf l^isla-,
tion, is progressing with such linpr'ecedented, and fearful strides that one' can
hardly be excused for allowing himself to be astonished whenever any meashre,
however monstrous or extreme, is pipposdd for coiisideration fcefore a deliberative
asseinbly like this ; but,' air, I must confess that when tHe'Tmeasiire now before the
House was introduced by the gentleman from Iowa (Mr, 'vf ttsoN) t wasastoijished,, '
and I was still more surprised to See the attenji^ts to stifle, or, at all events, to
abridge the discassion upon it, wten he announced that he should put it upon its
passage under a call for the previona question. I think jt is not too mucli for me
tQ say that hig courtesy in finaUy consenting that this measure should remsiin open
for discussion fbr two days might have been slightly stiinulated by the intimation
of the gentleman from Pennsylvania (Mr. Stevens) on hia side of the Hovise, who
told h'm that if fie erpeeted his resolution to piiss withont afnendment he would
find himself wofullymi^tjiJken, fiiiQldth§t. upon thia question, J^n^ upon all other
questions affecting the rights of the citizen under the, Conistitution, we outfit to ,
hare deliberative, free, calm, and full discupsion, so, that,w|ien we come to record
our votgs we may do it intelligfintly, or, at all events, that we may do it after
suCBcient time has been granted to us for 'ithe, b-onest exercis?of oiir judgments.
Tliis is all we ask pf geptlemen upon, the other side of the House, but this we do
demand as pur. riglit,. and as the right of t^e copstitjiencies which we represent
•on thJsflsQjf^. ..„., ^ _, ,
But when I reflect upon the scenes J^gfore us— the resistless whirl of events, so
full pf suffering and anguish ; when the .public mind is so shaken with doubts and
fears, .5Tit^^ frenzied thought and hurjied action, it seems as if all mere human
ntteraiice or expression of ppinion were vain 8.nd Idler-sp. utterly weak and impo-
tent,as jfo^majre Itbut, a ipbckery fpr, any man to raise his voice of waming or
counsel in favor of wise, prudent, and just action. This feeling pervades a much
larger, portion, of oar people than ¦^ould at first appear, and, an hpnest desire not to
do or say anything which might be tortured into opposition to an.earnest prosecu
tion and speedy and just teitaiiiation of ,t^e war, tbe mpsl^terrible' of all earth's
tria.gedieg, closes 'the- mouth of many of our most loyal citizens. .Fear.qf misoon-
striict^Q, and therefore fear , of harm to tile "great cause, has made silence the rule
and aot theexoeptiioB, not only with many among the nlasses of the people, but
also with geniiemenpn tliis floor. They consider sUence. a virtue..
But, sfr, when the republic is writhing undte* the' blows given her by the rebels
arms and^by traitots who are skulking over the land, li^orth as well as^outh,

and when, in additioh to this, the doctrinaires and theorists of the day, born or
revolution, and wliose, natural elements are carnage, hatred, and revenge, are
thrusting forward their poisonous ideasj which, if carried out, would be sure to
leave our country in anarchy and confusion, even after the success of our arms,
which success is as sure as God's judgment ; when these thing's, I say, are before
us,' silence and, inaction are, in my judgment, no longer virtues. They are crimes
for which I, at ieastj feel answerable before God and man. The titiie has come,
arid is pressing ou us with all its awful weight, when honest thought, honest
"action and discussion, honest and prudent^ legislation especially, are demanded in
the great name of constitutional liberty at the hands of every man connected with
the administration of this Government. " Riven by the thunderbolt and scattered
by the storm" as it is, the wreck of our republic is still worthy of every effort to
save, for in it still lives the germ of the people's rights and the true spirit of liberty,
from which in the future may be reared the fabric of the nation's salvation. With
reference, therefore, to what may be saved by prudent legislation, it becomes not
only the right bul: ther duty, of every man to act with earnestness upon the great
matter of respecting the Constitution ani the laws of the land, of crushing speedily
and forever the armed rebellion, and saving the Union.
Before touching directly upon the question under consideration, I may be ex
cused for a passing ¦lyord upon the opening remarks of the gentleman from Mary
land, (Mr. Davis.) 1 propose to treat them of course with fairness, but at the
same time with entire freedom of expression as to the views I entertain of them.
TJiat I may not be misunderstood, and that the gentleman shall not be misun
derstood, either now or in the future,, here or elsewhere, I call the attention of the
House to his' exact language which he has spread abroad, and for which, I pre
sume, he is ready at all times to be answerable. He says :
" With whatever pleasure the gentleman upon this side of the House may have heard the
verjr novel declaration of the gentlethan from Ohio, (Mr. Cox,) that he contemplated support-
ing'in ,all proper'^eas.ures the Administration in the prosecution of the war and the suppres
sion of the reDenion,'it is, perhaps, fortunate that the result of the political elections in the
central slave States has placed the Administration beyond the necessity of relying upop his
support. Were it not so, I incline to think that the kind of support the Administration would
receive from the great majority of gentlemen on the other side of the House was indicated
early in. the session in that resolution proposed by a gentleman from New York, [Mr. Fbb-
NANDo Wood,] which pronounced this an inhuman war."
Now, did he mean to characterize the political tone or temper of this side of the
House from the vote which was given against laying that resolution on the table ?
IWhat was the resolution of the gentleman from New 'y'ork, (Mr. Fkrsando Wood?)
It embraced the idea that it was politic, expedient, and wise for this Government
to send commissioners to treat with the rebel authorities at Richmond ; and thia
was the only object of the resolution. But the point of offence in it with the gen
tleman (Mr. Davis) seems td be that it contained the words " inhuman war ;" and
on this he predicates what would be our action in all matters pertaining to the
war or the support of the Administration, and this, too, when he has had several
opportunities to know the sentiment of tliis side "of the House by their votes
directly on the merits of other resolutions touching the prosecution of the war.
The gentleman has had experience enough in legislative bodies to know that
voting against laying a resolution on the table is not necessarily agreeing with the
sentiments contained in it. If that resolution had been permitted to come before
the Hotise, there would have been a direct vote on its merits, and tfien the gentle
man would liave knoWn our views.
But the gentleman (Mr. Davib) goes on further to say, as follows ;
" For myself, sir., relying on the faot that the people have sent enough of us here for the
purpose pt supporting the Administration, I would suggest that perhaps gentlemen on the
other side of the House had just as wisll exectite the mission with which the constituents
that elected them sent them here, changed to oppose, to embarrass, to libel, and to break
down the Administration, and leave the support of it to the gentlemen whom the people
have sent here to maintain it. With all due respect to the patriotic purposes, the eminent
ability of the gentlemen on the other side, when they tender support I shall look at it with
something of suspicion, and, for myself, shall say, ' Non tali auxtlfo, nee defentoribus Utie.' >>

I take it that he understates the iileaiiing of the lai'gnage whieh he thus uttered
feMessiy- before thi^ Housed He is accustoriied to 'spieaking, and "therefore under-
stodd'.th'e ftill force and effect of it. 'lie charges uot oijly that we embarrass the
Administration, but thkt our cori'stituents sent us here for that purpose— io oppose,
to' eMttrrass, to libel, and to bfeak down the' Admimstration. Ah I is this tJle spirit
with'tvhi'ch gentleiiien 'Extend' to lis the right hand' of fellowship, wlien we come
here' and say to theni'in all honesty' that we are for supporting the Administration
iri eVery act' that "Is cfansistent with .'the cliaracter of a Christian and civilized
country, in putting dotrn 'this 'infamou,5 rebellion?" 1 wisli the gentleman to con-,.
sid'er fii's'"wotd3'." ' '. . ¦
Was that the spirit; meaning, or p'arppse for which 285,000 voter's in New York,
255,000 in Pttnhsylvania, i85,'600 in OhibJ'and 5l,'000 voteirsiri the State which I,
in'^arl,'re!pr&ent herfe, senttheir representatives to' this House? By what authority,
let me ask the g6ntl4m'an from Maryland, does he say that'he does not need pur
aid ? Is" he the fei)ecial' ageiit of attorney of the 'President, and is lie authorized to
come hei-e 'arid tell us that the President does not need our aid ?
Mr. WASHBURNE, of lUirioiki' I "siroiild suggest tb the gentleman ftom Maine ,
that the' gentlem.in from Maryland (Mr. Davis) isnot in his seat. . '
'Mr. SWEAT. It is- not my "fault. I'-wish that he "were in his seat, 'for I woiild
wisb him to have an opportunity of answering me.
Mr. WASHBURNE, of Illinois. Then" I suggest to ttie geiitleman from liiaiBe
that" he withhold Bis remarks until the ^feiitleman frpm Maryland shall be in his seat.
Mi-. SWEAT. It is the diitypf gentlemen -who make such charges on this floor '.
as" the genfletn'an from Ma:rylarid made ' to be in tteif seats at all tiines while the.
Hoiise is in session, and especially on the d4ys immediately succeeding such at
tacks:, he must have known that if we have any manhood, any truth, any self-
respect! on 'this' side" of the House, WG siiould improve the first opportunity to
repel and thrtist bacli Such .charges" iii his teeth, and call upon him to answer.
The gauntlet has been' thrown down by a, 'gentleman on that side ofrthe
HousJe for the-first time. The charge is that we are attempting to embarrass
the Administration, and tliat wo came here. for that purpose. I say here, before
my God arid- before all inen who can hear or read what I say, that the purpose of
my heart, the purpose of my constitueliits; so far as I know anything about it, is
npt to erribarrass'b'ut tonestl'y to, aid the Administration in putting down this un-
. holy and wicked rebellion. nft"Te'we shown any such disposition on this .flooi|[^
Did we make any factious organization when we came here? Did we organize for
the election of speaker or any other officer of this llduse|, Did we, claim', ask for,
or receive any consideration at your hands in the distribution of the favors of this
House? Have onr votes indicated any disposition to embarrass the Administra
tion? You will recollect a resolution offered here at a rexy early day of this ses
sion, for wtiich we uiianimotisly voted, save one gentleriian from Maryland; That
resolution pledged us to aid the (jovernpent by furnishing men and money to an
unlimited extent fer jthe -purpose of putting down this rebellion,, and declare^ that
it was the duty of the people to do it. , Did, the .gen,tlemaii, when he m^do ,that
ch'arge upon liSj remember -what we had dpne 7 If he,,did, it is well that we should
kno'jf;'.'at this .early stage, the feeling which actuates him, but ^vhich I hope',dpea,
not actuate many gentiemen on that side of the Sovise. Examine, if ypu please, fte
roils of your Army, and see if you do not find thata large majority of the men who
, are fighting the battles of the cpuntry, represent and,,are of just siich material as ti^pse ,
against whom the gentleman's charges are made. If the gentleman frpjp Maryland
conid place his ear to the bloqdy graves pf the dead pf Chickamauga, Chickahpminy,
Vicksburg, 'Pprt Hudson,, of t]^e Peninsula, A.ntietam, Gettysburg, and all the other
batlle-grciund's of tlie Republic, he yould hear a voice coming from them saying that
they "Were just snch men as those who havo sent these conswvatlTe and Demo(!r»fie

4
njg^ijibejr,? tp, the; Congress pf l^e nation, ^nd wjio are now maljgned by the .gentle
man from Maryland, as halving been sent here especially for the purpose of libelling,
embarrassing,' and,'brep,king i(>w.a the Administration. Does the gentleman or any
other member from Maryland recollect the, 19th of April,, 1 861 ? What city and
vvhaV pepple ta've the honor-6f having made that day forever memorable ? Balti
more and her people. On the streets, of what city of this Unioni was the first blood
shedin'this w,ar— the blood.pf men ^lio had started with stpnt hearts and strong
arms to .defend the people, enforce the laws, and guard the 'Constitution ? It was
on the streets pf Baltimore,, Maryland, one district of which i.s represented on this
fiooi- by the gentleriian, (Mr. Datis. ) I will say to that gentleman and to his frieiids
that he pomes frpm the -wrong lati-tude to make aiiy such pharges against us as he
ha,s made here. And, if I am correctly informed, if there had been a free, unawed,
uiicpn trolled yot? i^ th§ third ^district of Maryland, we might have had another mem
ber on this side, of ,, the House to ei^barrass the Government. in the way he charges
us,i instead, of the distinguished gentjeman from Maryland ou the other side.
I say, therefore, in conclusion, that the whole style, matter, and manner of his
introdjictpry remarljs failed by a great deal to impress me with the belief that he
brings with him to 'the councils of the nation that degree of forbearance, brotherly
loye. Christian feeling, or staje^pianship which are demanded in these perilous and
distracted times. For myself, andfor those I represent, I utterly deny his charges,
and. turn them over tp him for recojjsideration.
Now, sirr with this preliminary reply to ths introductory remarks of the gentle
man from, Mary land-r7 which I certainly should have omitted had I not considered
his charge upon us ?,nd, upon our constituents, who are unable to reply save
through us, as wanton, unproyoked, imd inexcusable — I propose to examine the
question now before the House.
In order thatwe may understand precisely the question before the House, 1 will
read a portion of the joint resolution of the chairman of the Committee on the
Judid^ry, and also the resolution proposed, by the gentleman from Pennsylvania
(Mr. Stevens) as an amendment. The joint resolution is as follows :
Eesolved by the Senate and Bouse of Representatives of the United States of America in Con-
freis ailembled. That the last clause of a " joint resolution explanatory of ' An act to suppress
insurrection, to punish treason aiid reb.ellion, to seize, and confiscate the property of rebels'
and' for" other ^purposes,"^ apprbved July' 17, 1862, bej and the same hereby is, se amended^ as
to read : '* Nor sh^U any punishment or proceeding under said act be so construed as to work
a forfeiture of the estate of the offender, except during his life." Thia ameiuiment being
intended to' limit "the operation and effect ot the said resolution and act, and the same are
hexeby lUmited, only so far as to make them conformable to section three, of article three, of
thPCoilStitutioh df the United States : Provided, That no otiier public warning or proclama
tion under the act of July 17, 1862, chapter ninety-five, section six, is, or shafl be, required
than the proclamation of the Fresident made and published by him on the SStli day of July,
* 186^, which proclamation so made shall be received and held sufficient in all cases now pend
ing, q^ whicli may hereafter arise under aaid act.
And the following is the proposed amendmeat of the gcutlemajs from Pennsyl
vania, (Mr. STBVBNa) :
Befphed, f/c.. That the joint resolution paased on July 17; 1862, entitled " jpint resolution
explanatory of an act to suppress" insurrection," &c., be, and the same is hereby, repealed.
To ascertain the effect of the passage, of this resolution we must bear in mind
what the confiscation act of July 17, ]8'62, is, and also what the joint resolution
of the same date is, which this resolution now before us proposes to repeal. Not
to take tim^ to read all qf the confiscation act of 1862, I will only say that under
and by virtiie 6f that act the President is authorized to cause the seizure of the
estate of rebel officers, of the President and other oflicers of the so-called Con
federate States, of the governor of any of the said States, and of , other persons
holding offices of honor or trust ; and under that act the courts have power tp make
such orders, establish such forms of decree and sale, and direct such deeds and
conveyances to be executed and delivered where reai estate shall he the subjeot of
sale, as shall vest in the purchasers good arid valid titles thereto. And the joint
reaplutibii of the same date, approved at the same tinip,, .and which is in_ faot a

part of the confiscation act, and which the President insistted should be passed
before he would approve the act, is as follows :
Eeaobied,4!0; "That the provisions of the third clause of the fifth section of 'An act to
suppress insurrection, to punish treason and rebellion, to seize.and confiscate theproperty of
rebels, and for other purpogeg,' shall beso construed as not to apply to a'ny act or acts done
prior to the passage thereof; nor to include any member of a State Legislaturej or judg% of
any State cou^t, who has not in accepting or entering upon his office taken an oatn to support
the constitution of the so-called ' confederate States of America ;' nor shall any punishment or
frocetdfings under aaid act be so construed aa to work afoifeiture ofthe real estate of the.offeiider
eyond Kia natiirat life."
The proposition now before the House is substantiaUy the repeal of the resolu
tion which I have just read. Ifit stands on the statute-book it matters not which
ofthe two constructions of .the Constitution is correct which says : " No attainder
of treason shall work corruption of blood or forfeiture except during tEe life of
the person attainted" — whether the forfeiture is limitrfd,to the life ofthe offender,
or whether it operates after his death, for you will perceive that the language of
the joint resolution which the President insisted should be passed before, he would
approve the bill, is so definite, so clear and precise, as to settle the questiori for-
gBver. It reads : " Nor shall any punishment or proceeding? under said act. be, so
construed as tp work a forfeiture of the real estate of tlie offender beyond his
natural life." The word beyond fixes the limitation wi'th complete certaipty.
Thia is "undoubtedly the meamng of the vvords in the Constitution. Th^ President
so understood it, and so did bpth Houses of Congress.
Two theories are put forth as to the effect of the repeal of this .joint rosolutiou.
One sustained in common by the gentleman fro^n Indiana (Mr. Oeth) and the. gen
tleman from Maryland, (Mr. Davis,') the other especially ad-«)cated by the gentle
man from Maryland, (Mr. Pav^s.) The.first theory is, that after -the rep|.al of the
joint resolution there will be no constitutional objection to so enforcing the confis^
catiog, aot as tp tjajte and dispose, of "the real estate in, .fee^working absolute for-
feit.v^re thereof , and forever, for it is. contended that . the true oonstruction of the
Constitution, is not to limit the forfeiture tp the life of the., offender, while on the
Other hand I understood the gentleman from Maryland, (Mb; Davis, ) iu his addi
tional theory which he alone advocates, to say r that radraittii^ the , Constitution
limits forfeiture to tlie life of the attainted, .thejft is another ' ' due-process .of law, ' '
such as that designated in the confiscation act, by which the estate -of thea'ebela
may be taken i» fee, and.therefore heasks for a repeal of the joint resolution which
now positively forbids forfeiture beyond the life of the offender for any of; .the
causes set forth in the confiscation act. , • , , ; ¦ ¦ J '
I propose for a, few minutes to examine these; two theories, equally unsonnd,
Bftheard-pf, fallaoipus, insidious, and revolutionary, and also to answer theques-r
tion of the chaihnan of the.Committee of Ways and Means (Mr. :Stbvbns). put to
the gentleman from Ohio (Mr Cox) during the running debate last week, and
which, perhaps, was not fully .and directly answered fct theitimew He said :
" The Constitution provides that Congress shall havepower. to degJsriB thejiunishment pf
treason ; but no attainder of treason' shall wori corruption of blood or forfeiture. Now, has
not Congress power to punish. ptsfeer, than by attainder, and if that other punishment Is^he
* forfeiture of estate, does it violate tfie first clause of the Constitiition ?" , ^
In answer to this I reply that if is undpubtedly the prerogative of Congress to
define all crlrhes and offenses against law,, and to attach such penalties, not repug
nant' tP the ConstitutiPn, as become an enlightened, moral, and Christian people;
bht when the Constitution" affixes Umits to any particular mode pr.fornj of pnnish-
Sient Congress has no powei: tp step over that boundary and enlarge or exteiid that
particular method of punishtnent, although they may prescribe other arid different
penalties not fofbiddenby the Constitution. For example, the Constitution says :
" The Cofigress shall have power to declare the punishment of treason, but no ittainder of
treasoii sh.all work corruption\3f blood, or forfeiture .except during tbe life of the Jiersbn
attainted." . ' ¦¦!,..
Nbw," under this authority, Congress has declared the punjshment of treason to
be death; and though not liriiited to' affixing the death penalty, nor prevented

from declaring any other punishment except fprfeiture of estate abselutely, it may
be of some importance in showing the view of every Congress up to that of 1862,
that upon examination of the Statutes at Large you will find no other penalty
affixed tPthat crime from the first enactment of 1790.to"the present hour,,except
it he under the confiscation law of July, 1862. ,
I say, therefore, that Congress may panish treason by death, or by fine and
death, or in any other way not limited or forbidden by the Constitution, but they
cannot affix as a penalty tbe forfeiture of real estate pf the offender beyond his
life, for the plain reason that the Constitution limits that mode, pf punishment.
Why, it is asked, this limitation ? The importance of it was learned from the
bitter lessons of the war for American independence.
In the words of a member bf the, last CpJ^ress, (Mr. Thomas,) — .
'•' The strife ajid hato growing out of the confiscations of the Revolution are yot scarcely
appeased ; and it was- with these confiscations fresh in the memories of theframers of the
Constitution that the limitation of the power of forfeiture was adopted."
The only possible riipde of trying, convicting, and punishing a person guilty of
treason is prescribed by the Constittition. '
Mr. STE"VENS. I would like to understand this matter, and the gentleman will
allow me to interrupt him. What I intended to say was that unless Congress
passed a law and declared a punishment by attainder, they might inflict a punish
ment of death for treason, or any other punishment than death with confiscation.
I want to know whether the confiscation act, in his judgment, is a bill of attainder,
and produces attainder accordirig' to the law of this country ? In the first section
there is no confiscatisn of real estate, and the other sections which declare forfeiture
of real estate have no reference whatever to treascm, but to the property of alien
enemies. . . ¦ i .; . i
Mr. SWEAT. I should' have answered the gehtleirian's question before! firiished
my remarks, and I propose to answer it in that way now. 1 understand hife 'proposi-^
tion to be this: He says -we cannot punish treason under the Constitution, as such;
exdept by the life of the person attainted ; arid he asks whether there' is nnt some
other procras, arid whether we niay not take property in fee for Other offenses."
Mr. STEVENS. I think T did" nPt make myself clear: I ask him tosaywhether
there is anything in that bill which does produce attainder. ' ' ¦
Mr.'SWEAT. I ask the gentleman's -pardon. I think I understand his first
eri^iiiry to be this : He wishes to know whether, in my judgment, the confiscation
act is a bill of attainder, and produces attainder according to the law of this
country ? To which I say, that if it be a bill of attainder, or in the form of one,
or was intended to produce the effect of such a bill, it is moat clearly unconslitu-
titutional; for the expresa' prohibition of Art. 1, sec. 9, is that '"No bill of at
tainder or expostfdetb law shall be passed." Bills of attainder, as they are tech
nically called, are such specM acts of the legislature as inflict capital punishments
upon persons Buppbaed to be guilty bf high offenses, such nstreason ^nd felony,
without any conviction in tho ordinary course of judicial proceedings. Such aets
have often been resorted to iu foreign coilritries as a common engine ot State, and
even in iingland they' have been pushed to the most cxtravagaut extent in bad
times, reaching as well to the absent and' the dead as.to tho living. [Stori/'s Com,,
vol, 3, p. 209 aTid 10.) Such legjislative enactments are fprever, forbidden by the
section of the Constitution above referred to. Again, the gentleman (Mr. ^xev^hs^
says that by the first section of tho oonfiscalion apt (which declares fhe pj^nishjaqnt
of treason) 'there is 'no'sOn^seation o^'real estate. V^hy this limitation, l?t' me a,sk j
Evidently because the Oongresspf 1862' took th(3 same view of the restriction cjause
of the Constitution, Art. 3, sec. 3, ithat we are contending for — tbat treason shonld
not carry with it forfeiture beyond the life of the offender. But he further says,
" the other sections wTiieh declare forfeiture of real ^tjiti? ijftve gp ref^fen(te T^ba^-

ever to treason, but to the property of alien enemies," and therefo^-e he argues, I
suppose, that it rnay beforfeited absplutely. To .TyhiCi'f 1 reply, that upon exami
nation of thosp other sections it will be fpund, that, the pffences 1;lierein described,
although not designated as treason, contain all the substantial elements. of treason,
and must be limited iri their punishment, so far as forfeiture of real estate is con-
cerned, just the same as though they were called by their right name. But sup
pose that the offenses described in the act do npt constitute treason, and that the
persons therein mentioned are to be considered as alien enemies. I submit tjiat
that vievv of the matter by no means modifies or changes our reasoning upon the
constitutional question we a,re considering, for if they are to be treated as alien
enemies then their property is to be disposed of, not under the provisions of the Con
stitution, but under Jjae laws of Nations, which "weare not at present considering.
The only mode of trying and convicting a person of treason is prescribed by the
Constitution : 'r ,
" The trial of allcl'imei, e.Ycept impeachment, shall be by jury."— ^rf. 3; see. 2.
" Treason against the United States shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort. No person shall be convicted of
treason "unless on the testimony of two witnesses to the same overt act, or on confession in
opeu court."— ^r(. 3, aee. 3. , ¦
Again :
" No person shall be held to answer for a capital or otherwise Infamous crime unless on a
presentment or indictment of a grand jury," &c. — Art. 5 Amendments.
The two great elements embraced in these provisidns Of the Constitution are :
first, a presentment or indictment of a grand jury ; second, a trial before a judicial
tribunal and a jury of the country selected according to law. If, then, the per
son charged with treason be tried in thia way and found guilty, the only remain
ing thing to be done, or that can be done, is to impose the penalties attached to
the commission ofthe crime; and as Ii have already .said, any punishment pre
viously declared by Congress may be inflicted, not inconsistent with the limitation
in the Constitution as to the forfeiture of real estate.
I bave said any other punishment may be inflicted not prohibited by the- Consti
tution. I say, therefore, to «he question of the gentleman from Pennsylvania,
whether Congress has not the power to punish otherwise than by attainder, and
whether, if that other punishment is a forfeiture of estate, does it violate the Con
stitution, that in my judgment Congress cannot constitutionally pass a law to inflict
upon a traitor as a punishment of his crime a forfeiture, pf his estate beyond his life.
No such power has ever been" claimed by any jurist in the country down to the
present tinie. The gentleman from Pennsylvania and the gentleman froih Maryland
do not come to a right conclusion in reference to the effect of Art. 1, section 9.
Their reasoning is applicable to Art. 1, sec. 9, and notto Art. 3, sec. 3.
In commenting pn the clause " No attainder of treason shall work corruption of
blood or forfeiture except during the life of. the person-attainted," the. gentleman
from Mairyland (Mr., -Pavi?) says,: ., . • i
" Now I tafee it that the meaning of that clause is that the forfeiture worked shall, must be
effected 'during life. The honoi-able gentleman from Ohio, and those who think with him,
woult^ construe It to be that the. forfeiture when worked shall only endure for the life of the
party! Palpably the latter is the incorrect and the former the, legal meaning. The purpose
assumed is the protection of tte ofi'spriiig from punishment for the guilt of the ancestor.
But a fine is equally taken from the.ofisprlng, _^s land ; yet, no, one denies the right to. fine a
person attainted. ' There -vvas, however, an efi'ect bf attainder that did punish the ofi'spring,
and the ofi'spring alone., Kvery student of Blackstone knows this, that the' iudgnieiit con
victing a person'of treason operated a corruption oJ' .blood. The corruption of blp^d stppped
the transmission of heritable 'blood to any heir of thb person attainted ; so thatthe legal eifect
of.conviction for treason undqr the law of England was, first, to forfeit all the property;* real
and personal, of the person attainted ; and, secondly, to corrupt ,his blood, destroy its herit
able quality, so that he could neither take land by descerlt himself, nor transmit heritable
blood to the person whp wonld, but for his attainder, have been his heirs. He could, in the
language of the law, have no heirs. The attainder corrupted his blood, and there was no
heritable blood, transmitted to them." i - .ii i- ;- . .. ' ¦:
This is substantially a correct historical sketch and exposition of bills of attain
der under the Englisli,law, the evil effects of which it, was intended by. theframers
of our Constitution to avoid ; but the gentleman has fallen into the common error

8
of supposing that the clause of the Constitution now under consideration is the
one to which his argument applies. As a careful lawyer he ought to have ex
amined further and to have read that other provision in the Constitution to which
I will now call his attehtion, by "whiCh he will perceive that the odious features of
bills of attainder "were met and disposed of by another and different claiise than the
one to which he has applied his argument.' ' His extensive practice at the bay ought
to have taught him long ago that the symiiietry of that most perfect of all Ijuman
instruments, the Constitution, can be discovered only by an examination of its
different parts.
The clause upoh which he comments, and to which he has 'made his remarks
applicable is.in article three, section three, of the Constitutipri ; but if he will ex
amine article one, section nine, he will find these words, " No bill of attainder or
ex poit facto law shall be passed."
It was by this restrictive clause in article oue, and not.in article three, that tlie
framers of the Constitution at once and forever abolished the barbarous bill of
attainder of the English law. The quotation which I have made from the gentle
man's speech is applicable as a. commentary on article one and not on article three,
of the Constitution, for, as I have before said, bills of attainder were abolished by
the Constitution in its first article, aud before the third article came up for consid
eration. The citation from Story (volume three, page 210) which has already
been made on thia floor is a commentary on the restrictive clause in the Constitu
tion, article one, section nine, whieh says, "No bill of attainder or ex post facto
aw shall be passed,'- and not upon article three, section three, which says, " No
attainder of treason shall work corruption of blood or forfeiture except during the
life ofthe person attainted."
In his Commentaries, touching this restrictive clause, "bill of attainder and ex
poii/ocio law," he says : ' ' .
" Such acts have been often resorted to in foreign Govemments as a common engine of
state; ,and even in England they have been pushed to the most extravagant extend id bad
times^ reaching as well to the absent and the dead as to the living. Sir Edward Coke has
mentionedit to be among the transcendent powers of Paifiament, ihat an act mav be passed to
attaint a .man after he ta dead. ^And the reigning monarch, who was slain at Bosworth, is
said to have been attainte'd byan 'act -of Parliament a few montha after his deaihj notwith-
. standing the absurdity of deeming .him at once in possession of the throne and a traitor. The
punishment has often been infiicted without calling upon the party accused to answer, or
without even the formality of proof, and- sometimes because the law in its ordinary course
, of proceedings would acquit the ofi'ender, The injustice and iniquity of such acts iu general
constitute an irresistible argument against the existence ofthe power. In a free Government
it wpuld be intolerable, and in the hands of a reigning faction it might be, and probably
would be, abused to the ruin and death of the most virtuous citizens. BiUs of this sort have
been most usually passed in England in times of -rebellion, or of gross subserviency to the
Crown, or of violent political excitements— periods in whicli all nations are most liable (as
well the free as the enslaved) to forget theirduties and to trample upon the rights and lib
erties of others."
That such were tho reasons that induced the framers of the Constitution to in
sert the clause forbidding Congress to pass any bill of attainder or ex post facto
law, I might cite Kent, Eawle, Curtis, and others who have vvritten on the sub
ject. But it cannot be necessary. When fhey said " No bill of attainder or ca:
post facto law shall be passed,'-" they had finished that subject, and may well be
supposed to have known what they had done, and, though they might not have
been so accomplished in the science of philology as the learned gentleman from
Indiana, (Mr. Obth,) it would not be a violent presumption to suppose that when
they came to say in a subsequent clause, "No attainder of treason shall work
corruption of blood or forfeiture except duriug thelife of the attainted," ttey
knew, what th?y intended to say, and said what they intended to in plain English
language, and that they neither meant nor did in fact modify or change in any
way what tbey had said or done in the previous clause : they meant to say except,
and not mleas, nnd the word, with them," had its common, intelligible meaning,
and no question has been made as to its clear intent from that time to this, save

by ttie wise philologists that are cropping put in this Hall aud in other depart
ments of tiie Sovernment,
, The learned gputjlq^au jfrpm, Indiana (Mr. Ob,th) says that the "science of
-Phjlplogy is progressiye, and that the same word in different ages and times may
be used to mean dissimilar things." "Change," he says, "is the irrevocable
l^w of nature, stamped upon everything and appertaining to every department of
knowledge." The gentleman then says that we are told by lexicographers that
tlfe word except is equivalent to the word unless, and then he shows his familiarity
with the Scriptures by several quotations, which another distinguished individual
cciqnected with one of the Depar,tments of the Government has also quoted id his
recpnt review of this subject, to show us that the word " except" means thei word
"unless." He says :
" Numerous instances of this are found in the Holy Bible, where the word feexcept' is
used in sentences in which at the present day we should invariably use the word ' unless ;'
thus : ' , .
' " ' Except the Lord build the house, they labor in vain that build it.'
' " < Except 'the Lord of hosts had left unto us a very small remnant, we should have been
as Sodom.'
'*' * Can two walk together, except they" be agreed ?'
" ' Except a, man be oorn again, he cannot see the kingdom of God.'
" ' Except ye repent, ye shall all likewise perish.'
" In all these instances, and they could be multiplied almost ad infinitum from writings of
t^at age, both. sacred and profane, the word 'except' is used in the sense iu which we ofthe
present day "wou'ld iisy the equivalent word * unless.'
. * "Now, then, let us, in further illustration of my position, substitute the word ' unless' for
the word ' except' in the clause under consideration. Jt will then read :
" ' But no attainder of treason shall work corruption of blood or forfeiture .Unless during
the life of the person attainted. "
Now his construction is a forced one. The wprd eascspi qualifies and relates to
the words immediately following, and not words which must be interpolated in
order to carry out his theory. In order to make his views intelligible and to carry
out his idea, I subnjit that, he should go still further, that he shpuld have the word
"except" or " unless" modify or qualify, not what immediately follows, but
something lie proposes to interpolate^ .so that it shall rea.d :
No attainder of treason shall work corruption of blood or forfeiture unless the offender be
attainted iii:his lifetime^ in which case forieiture of his estate shal^ be absolute.
But this, I think, may well be said to be a fprced construction, and 'clearly not
intended by ¦fte framers ofthe Constitution.
Do the gentlemen give us any. authority for their construction ? There is no
pretense of any. Is it pretended by them that their construction has ever been
. sanctioned by any judicial tribunal? They Claim no such authority, unless it be
that of Judge Underwood, of the United States diatrict court for eastern Virginia,
who has recently acted in accordance with this peculiar construction, and actually
" decreed," as one of our daily papers, announces, the sale of certain real estate
owned by one Hugh Latham, adjudged guilty of treason, and directed its transfer
in fee simple, to the purchaser when the same should he sold under order of court.
He is the first and only judicial officer, since the fonnation pf Pur Constitution, to
construe the word ea;ce/)i as'meaning Mretos. He says.:
'* If we use the word ' except' in the above sense in the constitutional provision, or make
it read ' wnless during the life ofthe person attainted,' we shall at once come to the true intent
and meaning of the provision, to wit : tbat the forfeiture was to be perfected during, and not
o/tcr, the lifetime *)f the party attainted."
And under this shallow biit wicked perversion of the meaning of the Constitu
tion has decreed the forfeiture and transfer in fee of real estate of the of
fender. This he has dpne, too, while the joint resolution, whiph is a part of the
confiscation act, expressly says that for any of the offenses specified in said act,
there shall be no forfeiture of real estate beyond the natural Ufa of the offender.
Whatever construction may be put on the clause of the Constitution, and whatever
powers a judge might ^ave under the epnfiscation act, if thejpint resolution defin
ing the limitation of punishment were not on the statute-book, it is certain that
with this resolutipa in full force and unrepealed, Judge Uuderwood has as clearly

10
violated his oath of pffice in this arbitrary decree as he would by deci^^eing and
putting into execution the punishment of death for the common offense of assault
and battery. And yet he -will not be impeached or removed from office. He l's of
the elect, in the fold, and will remain where he is to try experiments oh the estab
lished rights of citizens.
I think the gentieman (Mr. Orth) might have been able lo give us' at least one
authority, but he did not do us the favor of citing that work which I am satisfied
he must have' examined very thoroughly. There' is an authority — the authority
of a gentleman whose ability; whose legal learning and acumen, whose extensive
knowledge and research' are admitted by all, and above all whose patient and de
voted loyalty to the country can but command the admiration of those who know
him, and whb has taken the same view of the subject which the gentleman frora
Indiana has taken ; and there is such a happy harmony and , beautiful .similarity
of opinion, and in sorae instances of language, that I wonder he did not feel
inclined tp do justice to lihat distinguished individual who has very elaborately
considered this question, and published his views' upon it. I refer to the distin
guished Solicitor ofthe War Deparlment, Mr. William Whiting, of Boston.
Mr. Speaker, I was, say ing that there never hs-d'been but. one construction of
this article three, section three, of the Constitution ; and that was that attainder
of treason should not wxjrk corruption of blood or forfeiture beyond the life ofthe
attainted.* And at the risk of being considered behind 'the times, and of calling
to my aid the opinion of one who in times past commanded respect and attention,
but who must now yield to the^brigbter luminaries of jurisprudence, of the politi
cal, civil, and higher law, and who is considered by the gentleman from Massa/cbu-
setts (Mr. Boutwell) as second rate'when compared withthe geeat men of th^
country. I will venture once more to cite Jbseph Story upon the very point now
Under consideration. Tn commenting on the express power given to Congress to
^ The following is from the National Intelligencer of Jan. 26, 1864 :
" If .13 safqio say, that there were not two opinions in thia country upon the meaning of
this clause, so long as its interpretation was left to depend upon the unbiassed cpnstructipn
and interpretation of its language; but when th*e minds of men came' to consider it uni3ep
the stress .of certain wishes to do what the plain terms of the clause did not allow, a resort
was had to " construction construed "' for the purpose of extorting from it the desired signi-
f fication.: It is, not the first time that the Constitution has been subjected to the rack' arid the
thumbscrew; but we have" never witnessed an instance in which the violence done to its
terms and spirit wa'S kppli6d with less discretion or reason.
*' Disregard^ing .alike, the, plain letter ofthe Constitution, the knoWn scruples of the Presi
dent, the declared weiglit of authority, the admonitions of history, the impulses of natural
justice, and the most obvious 'Cbnsiderations of public expediency^ the advocates of this
change in the policy of the confiscation act seek to impress on the legislation of pur country
under this heau a characrter for ferocity which revives the worst traditions of despotic Gov
ernments in barbirous. agjBS, ¦ Their minds are so filled with thoughts of revenge^ thatj in
meting out punishment to traitors, they seem to forget not only what is due to the Constitu- •
tion hut td themselves. And this innovation on that instrument and on the spirit of the age
is pressed upon the attention of Congress and the country in the hope- we suppose, that fe.w
will be found bi;ave enough to lift their voices in condemnaUon of anything that seems harsh
and violent if professedly directed against ' the enem'ies of the country.'
" There is a class of men who haoitually mistake violence for force, and passion for, earn
estness, or who suppose that the people cannot discriminate between the rant of * loyalty *
and the genuine sentiment. It is assupied by this class that ihey occupy a 'coigne of vantage'
ifthey can take any position which places their antagonists under the odium of seeming to
* ask for tenderness towards rebels.* We should be sorry to think that the species of inoral
cowardice upon jwhich such nien depend for their hopes of success was as prevalent as is
.supposed. We trust thatwe may never live to see the day when we shall lapk the courage to
defend our hdnest opinions because of the odium which it may be falsely Sought to cast upon
them by those who find it more within the range of their limited capacities to impute to us
imjiroper motives than to answer our arguments. But, in truth the present case is not one in
which there 'is room for any such test of dourage or constancy, as it is theS^ who advocate, not
thej who oppose this measure, who are called to exonerate themselves from the suspicion of
acting in the interest ofthe eneiriy, as thiey avowedly act ih opposition to the known views
and declared policy of the President.. ^ Does any one doubt that Jefferson Davis and his co
adjutors desire the passage of sweeping; and unrelenting confiscation acts by the Congress of
the United States ? ^Doefe any one doubt that fftej/ wish success to the new movement made
in this direction.? Or does any one donbt that the necessary— we do, not say the^ designed-
consequences of all such measures is to overleap their aim and to furnish a fresh fulcrum
over which the waning strength of th:: -;"-,": r,:"- V - .i '¦ .'¦•^: . -.-- i- ^— ^ -.-^»-/- — -i-i-
of insurging the Southern raasseB?"

11
punish treason, he touches the' precise point under discussion, when he uses the
words " forfeiture fceyond the life of the offender :"
" TWo motives probably concurred Inintroducing it as an express power. One was not to
leave it open to implicsktibil "whether it was to be exclusively punishable with death, accord
ing to the Icnown rule of the common law, and with the' barbarous accompaniments pointed
out by it, but to cenfiude! the punishment to the discretion of Congress. The other was to im-

crime, withbut talcing from his ofi'spring and relatives tBat prbperty which may be the only
aiSiiis 'of 'saying them from poverty ahd ruin. It is bad policy, too ; for it cuts ofl' all the at
tachments which' these unfortunate victims might otherwise feel for their own Government,
and .prepares them to, engage in any other service by which their supposed injuries may
be redressed or their Ijereditary hatred gratified. Upon these and similar grounds it may be
presumed that the cljause was first introduced into the original draft of the Constitution ; and
after «ome amendm^ts it was adopted withqu| any appargii^ .resistance. 'By the laws since
passed by Congress It is declared that no conviction or judgment, for any capital or other
offenses, shall work corruption of blood, or any forfeiture of estate. The history of other
countries abundantly proves that one of the strong incentives to prosecute offenses as treason
has been the chance or sharing in the plunder cif the victims. ' Rapacity has been thus stim-
ulate^ tq e^eTt itself, in the pervicp of the roost corrupt tyranny , and tyranny has been thus
furnished with new opportunities of indulging its malignity and revenge ; of gratifying its
erfvy of the rich and good ; and of increasing its means to reward fawrites and secure retait-
ers for the worst deeds." — Vol. S, p. 169.
Again,^! ¦will refer to another authority, which the gentleman from Pennsylva
nia (Mri Kelly) seemed to question the other day. Dr. Lieber says :
'¦' The true protection of individual property demands likewise the exclusion of confisca
tion. For although confiscation, as a punishment, is to be rejected on account of the unde
fined character oi the pimishment, depending not upon itself but upon the fact whether the
punished person has any property and how' much, it is likewise inadmissible on the ground
that individual property implies individual transmission, which confiscation totally destroys.
It would perhaps not be wholly unjust to deprive an individual of his property as a punish
ment Tol^'cbr^ain crimes, i/" we «)o«;afaWo«>ii fo pass, to Ais A'eirs. 'We do it in fact wneii we
iraprison a-,man for Utp, and subin.it him to the regular prison discipline, disallowing him
any benefit of the property he may possess ; but it is unjust to deprive his^children or other
heira of tli^individual property, not to speak' of the appetizing eff'ect whieh confiscation of prop.
erty hM (^ten produced upon Governments." — Foi. 1, y. 123. ^
From which it is apparent his construction of the clause under consideration
would be the same as that of Judge Story. . ,
It is true that oir examination of the debates upon the Constitution by the
iramers of it, while in convention, very little can be gathered of their construction
of the language of the plause under consideration, and the gentleman froiu Indiana
(Mr. (5bth) says he has been' able to find no contemporaneous exposition of its
meaning. He had examined Elliot's Debates, and found no light, but I take it he
did not exaraine , the, Federalist very carefully, or ho would have found an
authority upon. the ¦rery point iinder discussion, and whioh to my mind, establishes
¦w-itji mqre certainty the, meaning of art. 3, sec. 3, than any. or ail -commentaries
o;iiit at a'later periods
In one of the papers of James Madison you will |ind the following : •
" As treasoji may be committed, against the United States, the authority of the United States
oii^ht to be eiabled to punish it; but as new-fangled and artificial treasons have been the
great engines by whicb' violent factions, the natural offspring of free Governments, have
usually wreaked their alternate malignity on each other, the Convention have with great
judgment opposed a barrier to this peculiar danger, by inserting a constitutional definition
pf tne crime, fixing the proof necessary for conviction of it, and restraining the Congrfesj,
even in punishing it, from extending the consequences ot guilt beyond the perspn of its au-
tkw."— The Federalist, 1,113. ''
',' ,"It is therefore oleaf' to my mind, Mr. Spealier, that the meaning of this 3d section
ofthe Constitution is to confine forfeiture of estate? to the lives 6f the offenders.
I wish now to say a single word with reference to the other view sustained by
the geiitleman from .'Maryland (Mr. Davis,) and which, as I understand, is sus
tained bj'.hira'al'one. He saya :
" It is wholly immaterial whether, in the event of the partiep being convicted of treason,
Congress can or cannot make a consequence of the judgment the forfeiture of lands in fee
simple, ot is confined to a forfeiture limited in duration by the life of the convict.
, " The question here is whether there is any process of law, however this provision be con
strued, by which we cannot effect a forfeiture of the whole fee in lands. Thatquestion gen
tlemen have nowhere met. , i J ¦»,. . J. » i '/•»!;
" 'The question is whether i by other process of law not connected with indictment ofthe
person, not following upon attainder, the United States Government can say that thoseiwho
have been in arms against it shallforfeit their property, and that the tribunals of the conntry
shall enforcp it in rf-^ -• anH #fi*'-» ,» '¦^t*l-":i,!:7 S^i t^^.luH'.^mii m-ws of the Republic."

12
Again, he says : ¦ t f
" The law of the last Congress prescribed a different process f™'".™"'?^ 'j?*JSLw"o„°t
law of the person guilty of the crime. It provides thatuppn oroceediiigs i».Jie dutriet cmm
in the nature of proceeMnga in admiralty the lands df certain classaj of persons, and all ineir
personal property, shaU be forfeited for the use ofthe Government. T,„W,tp„ without
" And thetonstitution provides that the property of citizens shall not .^« ''^^'ijg""^^
due process of law. Now, the question whfch gentlemen on the ",«ier side of the Mouse
have to argue is, not the law of Attainder, hut wSether the process » tbe district courte or
the United States to conflscate the property of persona provei to be »f t^,^ =Pf •'^fi't^"''*| "
due process of law for depriving a man ofhis property under the "Constitution. II tney c^^^
not maintain that that is not due process cf la& within the meaning of the ConsWution, they
cannot throw the least doubt on the constitutionality of this mode of proceaure.
His question may be somewhat ingenious, but can be easily answered even by
himself, if he ¦svill bring to hear on its consideration one half the legal attainraents
and perception that have hitherto been willingly accorded to him. His mistake is
in supposing that any proceding in rem maybe sustained for an offense purely
pcrsoiidl, hefoiB proceeding against the offender, and establishing his guilt. He
says, admitting that our construction ofthe Constitution is right, that you cannot
confiscate the real eatete of the person attainted with treason, except during the
lifetime of the person so attainted. Is there no other process of Ihw by which you
can proceed against real estate, as you proceed against personal property, in rem,
and confiscate it absolutely ?
I ans-sver that there is no such process of law ; and, if I had the time, I could
make appear most distinctly the difference there js between the two classes of pro
perty. The distinction is briefly this : I say you cannot proceed against any pro
perty in rem unless that property is in some way connected with the subject-matter
of the offense. It must be in sorae way the instrument of the offense; or. to carry
the definition a little further, you cannot proceed- in rem unless you find that pro
perty in delictu — in the wrong — or in same way in default.
The gentleman says : ¦
** If tbis were a new question possibly there might be room for argument. But from the
first Administration down to this day there never has been a day in which, on the statute-
book of the United States, exactly this process to forfeit property for crime without first con
victing the owner on indictment -has not been prescribed. 'The law of 1799, among the first
of the revenue laws, forfeited property brougbt in under fraudulent invoices, without pro
ceeding against the individual personally ; and all the revenue laws from that day to this
enfiorce these provisions by forfeitures and proceedings in' rem."
All this is admitted ; but these are cases where the process Is enforced against
the property without the slightest reference to the guilt of the person. If fraudu
lent invoices are found that is all that is necessary to found a proceeding against
the property^ and the very titles of the actions or suits in court show that it is
not necessary to this proceeding to connect the guilt of any person with it. The
cases are designated. The United States against twenty hogsheads sugar, twenty
tierces of molasses, one thousand boxes tobacco, Qr whatever the article may be,
which is the instrument of offense, or which may be found'en delietu or in default.
, Again, he says :
. " Thei navigation laws of the United States, from the earliest days of tiio Republic, inflict
forfeiture in the district court on proceedings against the vessel for violation of tbose laws
without prosecuting the owner, (hough liable to indictment. 'Who ever heard that s vessel
could not be forfeited unless the master or owner were indicted, or until after they had been
indicted ? Our laws in reference to trade with the Indians make it penal to carry ardent
spirits among them, and they punish the persons guilty and forfeit the property by process
in rem in the district court. Is that unconstitutional ?"
No one has or will contend that you may jiot proceed against the vessel in the
case cited without first indicting the master or owner. By the Constitution, art.
3, section 2, " the judicial power shall extend to all cases of admiralty and mari
time jurisdiction;" and' under this sanction, and the laws of Congress passed in
• pursuance tjiereof, a large class' of cases are designated in which the process is to
be against the property. But all these cases come within the distinctions which J
have made. The vessel in the case cited is the instrument of the offense, and is
proceeded against lathe name of the United Sta,tes without. regard to first estar
hlishing the guilt of the owner or master; and so it is ¦With the "ardent spirits'"

13
sold to the Indians in violatiojl of law. ¦ I. will cite a case which I think' comes
much nearer to the gentleman's position than any which hehas put. Here is land
upon 'which tax,es remain mipaid ; now, unless paid; the.land may be sold; under
the conditions prescribed by law. Now I aniasked if this land is in delictu— 'is it
the instrument of offense ? . It cannot be correctly said it is, but it certainly is in
default. I think the gentleman can ..find no case of a process in rem where the
property proceeded against is not either the instrument of offense, in delictu, or in
default. Does it apply to the real estate o£ ttie rebels ? Is their real estate the
instrument of offense ? Is it in the wrong, or in default 1 Is not the crime of the
rebels entirely personal and unconnected with their land ?
Mr. STEVENS. Without taking up the gentleman's time, I wish to ask him a
single question,. Suppose this property is that of an alien, enemy, does the gentle
man hold that hi? restl estate cannot be confiscated absolutely ?
Mr. SWEAT. If ajlien enemies, perhaps their .property can be confiscated abso-
lately. The law supplying to Such cases is well settled, not by Congress, but by •
the laws of nations, and therefore can have no reference to the subjeot before us.
I am not now discussing the laws of nations. It may be true that under the laws
of nationa the prpperty of alien enemies may be confiscated absolutely, whether
personal Or real ; but this I am not discussing. I am aware that the theory' has
been advanced that those now in arms against this Government are so to be re
garded. That is a question which I have not time to dispuss uow, and which does
not legitimately come up in this discussion.
And! will only say here that I have ever held that as our armies .advance I
would have them take, hold and use any of the property of the rebels, (including
their Slaves, if aiding in resistance to us,) in any way which can conduce to the
accomplishment of the true purposes of the war.
Mr. Speaker, I cannot take up much more of the time of the House under tl^e
rules limiting me to one hour, atthough I have been interrupted in several in
stances, and will close by saying one or two words of a general character. I ask
gentlemen on the other side of the House, who have spoken on this subject, what
is the importance of Urging this measure? what is at the bottom of all this?
I will tell you what it is. It is the formal inauguration in thia House of that
radical theory upon which parties in this country must divide, and on this ques
tion there are really biit two parties. The conservatii^es ou the one side and ex
tremists on the other. The gentleman from Ohio (Mr. Schenck) told us the other
day that there are three parties in this couutry. One in favor of piosecnting the
war ^nd of furnishing men and money to an unlimited extent ; another party op
posed tp continuing the war further upon any terin?,; and a third party in favor
of the war, but opposed to all the, necessary means for carrying iit on.
But if the gentlemen intend to stand by the theory which they have advoqated
in this discussion, if it is their purpose to open up all the lands of the South de novo
for the benefit of speculators, as haa already been done, if the senseless opinions
of Judge Underwood are to be followed, let gentlemen say that such is their inten
tion. In which case I think I migl^t reduce the parties to two, one of which is in
favor of carrying on the war to subduethe armed rebellion and preserve the Union, and
io furniih the Qovernment with all the necessary means to do it, and when tl^is. it done
to receive the Statea back,, leaving all other matters in disptiie to be settled by the courts,
to which one I claim to belong ; while the other ia in favor of making it an abolition
war, cmd would not atop it even though all the rebds ahould lay down their arma and
swear to, obey the lawa of the land, unlesa upon the previoua deatguction of alavery, and
the taking away all State righta, and the rehabilitation of the whole aouthem coantry.
If the gentlemen are willing to stand on this platform, let us know it. Let us
have no more attempts to swindle the people under the cry of the Union. Such

14
seem to be the two grand divisions of parties to which we are fasf ttafdlilgv» It is
the. doctrine of Fred. Douglassjput. forth directly in his resolutions, and which I
know isthe doctrine of manyof the gentlemen on tbeother Side. It is not my
 , : ,1  '  . , I  '  .  a.
» Two days after this speech, the platform oil which they propose to stand. 'was,
clearly announced by Mr. Stevens, chairman' of Committee of Ways and Means,
the acknowledged leader of the Administration party. He said: , ^^
" If the ulnited States succeed, iiow' Aay she treat the vanquished beljigerenn
Most she treat lier precisely as if she had always been at peace ? If so, then this '
war, on the part of the United States, has been not only a foolish but a very '
wicked, one. But there is no such absurd principle to restrain the hands of the. in
jured victor. ' i.i ¦
^'Qf the laws of war the conqueror may seize and convert to his own use every
thing that belongs to the enemy. This may be done while the T^ar is raging to
weaken the enemy, and wheif it is ended the things seized may be retained to pay
the expenses of the war and thedaimageeitused by if. Towns, cities, and'provinces
may.he held as apunishment for ah unjust war, and as security lagainst future ag
gressions. .-The property thus taken is not Confiscated under the Consti tuition after
conviction for treason, but is held by virtue of the laws of war. No individual ,
crim'e need be proved against the owners. The fact of fceing a belligerent enemy,
carries 'the forfeiture with it. Here was the error of the- President When he vetoed
the confiscation bill passed by Congress. In the confusion of business he over
looked the distinction between a traitor and.fi belligerent enemy. , .
» ' » ' « » ^ » » » s » ,
"Every inch ofthe soil ofthe guilty portion of this usurping power should be
held responsible to reimburse all the costs of the war; to pUy all the damages to
private property of loyal men; and.to create an amfde fund ¦to pay pensions to
wounded aqldiers and to the bereaved friends ofthe slain."
Again, after quoting Phillimore as tp the question of " property in man,'? ie
say's : > .' . . ¦ -i •,. . .
"Such, thank God, is at last the national law of the civilized world. And who
is there base enough in this Etepiiblic'to wish it otherwise' or to attempt to evade
it? ' He who nowwishes^'to re-establish 'the Union as it was, ''and to fetain the
' Constitution as it is,'- cannot escape the guiltof attempting to enslave his fellow
men," , . , . , , . ! ...
And, finally, after arguing that the rebel States haw forfeited all rights under
the Constitution, he further says ; '"
"To gentlemen 'yvho were members of the last Congress this is but repetition.
At the extra session of 1S61 I advanced the same suggestions ; and I have repeated
them on all occasions that I deemed proper since.' They were not then quite ac
ceptable to either side of th.e House ; but I am glad to find that the President,
after careful examination, has come to the same conclusion. In details we may
not quite agree; but his plan of reconstruction assumes the same.- general grouilds.
It proposes to treat the rebel territory as a conqueror alone would treat it. His
plan' is wholly outside of and unknown to the Constitution ; but it is within the
legitimate province of the laws of war. His legal mind has carefully studied tho
law of nations, and reached a just conclusion. • ' ,. , .
" The condition of the rebel States having been thus fixed, reconstruction be
comes an easier cfuestion, because we are untrammeled by raunicipal compacts a,nd'
laws— that refuge of conservative sympathizers with our "erring brethren," The
President may not strike as direct a ,blow with a battering-ram ^against this Babel
as some impetuous gentlemen would desire ; but with his usual shrewdness and
cautibn he is picking out tho mortar from the joinb nntil eventually the whole
tower will fall." , .\ .¦¦'.. ¦
The foUowing extract ftom the NeVYork Times of Jan. 23, 1864, shows that,
not all the RepubUcan orgAna' smiian the views Of Mr. Stevens. We commend it
to the attention of the reader :

opinion of Christendora, and will, sooner oTilater.TnduceT ^^c ion Tm^^^l
which Will deprive them of nil h'cncfirial effect. '' " ' • - ¦* f^- H'P" w 7 '
. I* . « * K .- , , , , - .

15
doctrine.. I haye pne simple theory. , I- have had but.one from the beginning of
the i^ar, up to the pj;esent time,. My, theory is, p.rosepnte earnestly, prosecute, vig
orously this war until the armed rebellion js subflued. ; Repeal ,q,ll unconstitutional
laws and pass, none .that are unconstitutional., , And when this armed- rebellion i^,.
put down, fwelpprpe fhe, St^te^ back, and Ipl; ajl the questions-in dispute, which are
now upd,^rtaken ,1ip be| se.ttled in,a,4'>?ancq, hesettled by the proper judicial tribunals ,
o.f the land. This seems tp me to .be the Q'^'y '"''^^ ^°^ ti'"^ course. . I do npt
believe in tlip powers of the, Erpsident, not; in the ppwOTS of Congress, nor in any ¦
power^ outside. pf , the, Constitutiofi, of , blotting, out States and .obliterating State
lines., , , , ' , ,'. , , ,, ,. ,,„.¦'
/ ;Ihe,,l?P?l|AKER, The,gentleman's-hoiirh£|,s expired,.
Mr. ,SWE,AT, Ur. Speaker, I ask,t|ie, unanimous, consent of the House for a
mpment iiipre in which to concludewhs^ Ivhave.tosay.
There was.no objeptipn,,,a,nd it was or(^e'^ed,accordingly. , ,, , , ., i .
,Mr, SV)?J!AT. , Mr. ^ppaker, I say thatl, djp not believe in the ppwer, pf E^ny, of
the departments of.thcAdministration,, or pf tjie wliole Adminstration togptlier,; ,
to, blot out,State lines, or to make them oscillate, upon, the face of tlie partb as the
sh^o-!?a of a wandering maniac. I am fora policy of vigorous, prosecution of ^he
w^r uutij tl^e,F?^^'i9n is cru,sl^ed. I. ain fpr, filling up ,tl(e,ja!;niie^ of, -fhe IJnion,
and willing to, legislate for, that purpose, \yhen ypu have- asked me,to,.vote sup
plies, I have shown you by my example that I am ready to do that. When you
proposed a repeal of the law for paying additional bounties, we voted with you.
We voted for it because it was your suggestion, supposing you knew -whether it
was needed or not. The President and the Secretary of War asked for a reconsid
eration of that matter, so that the bounties might be continued, and,we of this
side of the House voted for it. We wished to put no embarrassment in the way
of the Government, and therefore yielded, to the expressed wishes of the Adminis
tration. Now, Mr. Speaker, I do not propose to go into a political speech or to lay down
any political platform, for there is no time to do this were I so disposed, and such
was not my purpose when I arose to speak on the question before us. I say to gon-
tlemen upon the other side that I am willing, and I believe all on this side the House
are willing to aid them in any legislation that is necessary to put down this armed
rebellion. I hope that we shall not have any more charges from that side of the
House that we are here for the purpose of troubling and impeding the Administra
tion. The only impediment we ftiterpose is that of oppdfeition to any act or measure
which is calculated to obstruct the successful prosecution and just terraination of
" We have not searched history particularly upon the subject, but we can re
call no instance of such sweeping wholesale confiscations as this bill contemplates.
'The old Roman Empire has the name of being about as hard a conqueror as the
world lias seen, and yet its usage was not to confiscate the property of its enemy
entirely, but to reserve for the original proprietor one-third for the subsistence of
himself and family. Cromwell's confiscations in Ireland, which have always fig
ured as particularly severe, were yet attended with allotments in Connaught, such
as the protector deeraed sufficient for family support. Russia's regime over Poland
after the insurrection of 1830 has been considered almost raerciless. Fifty thousand
Poles were sent to Siberia, and about ten thousand estates were confiscated : but
these estates were only a small proportion of the old soil of Poland. In the State
of Virginia alone there are over a hundred thousand freeholds ; within the limits
of the " Confederacy " at least three-fourths of a million. Nearly all of this vast
araount of real estate would be foi-feited forever by its present proprietors if this
confiscation measure were carried out acccording to its terms ; for there is hardly
a real estate owner in the South who has not participated in the rebellion one
way or another. Such sweeping work, were it practicable, would throw into the
shade everything of the kind known to history."

16'
the war, whether that obsti-uotion comes frota the Pre'sident, from this'Cbngress, oir
frota' the pebple. We shalll never consent to havihg the war subordinated to jioli
tics, or in any .way diverted from its legitimate objects. Let ils do as Macaulay,
has said they did at an eventful pe'riod in English history, when Roundheads and
Cavaliers, Episcopalians and PiesbyteriaUs joined in firm union to sustain the la^ws
of the land. X will go with any gehtletaan for that purpose. But on the matter be
fore the House I feel it to be tay duty to vote in the Way t have indicated. If we
have generals iu the field, encourage .them, pay them well, but let ns see that thfey
are on duty, and that they are not upon furlohgh and with6nt commands,' as we
have it reported by the Secretary of War that many of them are at an expense to
the Government of $2'7,000 per month. Let us Undertake to disCbver and' punish
pttblie corruption and fraud ; for I hold that public cMruptiori is private cormp
tion, and that pnbiic sin is pw'OJS''^f'^ '^.d that^'ai«^?espV,::='Ale jufet to the'''
extent that we know it amd do nothiri^'to'prevent and remedy it. I will join the
gentlemen upon the other side of the House, and I think that the gentlemen upon
this side 'will join them, in the actiott^suggested in these desultory remarks for ac
complishing the great object of ending the war and preserving the Union; If we
stand by that proud old flag which is hanging so gracefully above, you, Mr.
Speaker, as full of inspiration to-day as it has ever been, "the gloriotls emhlem
of resistless and beneficient power, "it will assuredly lead u's to glory and to victory.

Gtbson Bros., Printbbs, 2T1 Prnna. Avb.. Waoit,

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