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What Happened in April 1862 ©
The Origin And Object Of The War
|The War in the West
The Hornets Nest
Union Control of the Mississippi
Papers of Ulysses S Grant
The War in the East
General McClellan Progression
Editor's Note: State departments of education and, consequently, text book writers, have constructed a false impression over the last one hundred years, of what exactly caused the American Civil War. Invoking a chain of abstractions, they present the cause of the war as a series of economic and political events that induced the North and the South to engage in violent conflict. Resentments over governmental policies of tariffs, taxes, and immigration into the territories, coupled with the splintering of the Democratic Party into factions, they teach, essentially constitute the sum of the complex causes of the Civil War. Yet, the evidence they ignore shows indisputedly that the real cause of the Civil War was simply white racism, a deep virulent prejudice by all but a very few of the white people that inhabited the States both north and south of the Mason-Dixon Line, in 1861.
Nowhere in the textbooks these educators provide, can the intelligent high school or college student find the objective truth of history. As a consequence americancivilwar.com offers those students interested in understanding what was really at the bottom of the war this abridged version, transcribed verbatim in all essential parts, of the Congressional Record of the Second Session of the Thirty-Seventh Congress of the United States, as printed by the court reporter, John Rives, in 1862.
In The United States Senate—Slavery In The District
April 1, 1862
Mr. Wright, of Indiana: Mr. President, I earnestly hoped that when I took my seat here, I would be able to do something that would tend to the putting down of this rebellion; and I had hoped that these embarrassing questions which have disturbed our country for years would at least not be presented in the present unfortunate condition of our country.
I have no tastes which would be gratified by going back to the past. I leave it to other senators to speak of the history of the organization of the Government of our fathers. I know that your fathers and mine had trouble in forming the principles of this Government. This evil which we now have in our land was then among us. And I apprehend that our fathers did the best they could under the circumstances.
What do I find here? Instead of senators avoiding questions which are calculated to enlist the bitterest feelings, bill after bill is presented which is calculated to inflame and irritate and cause sectional discord; and my purpose is today to give my reasons for the votes I will give on them. I am no apologist for slavery. I am opposed to it. But I cannot vote for this bill abolishing slavery in the District.
My reason is that the Senate has decided against the principle of colonization. In Indiana we have settled this question explicitly and firmly by constitutional provision. Illinois is doing it. Ohio will do it. We tell you that the black population shall not mingle with the white population in our States. We tell you that in your zeal for emancipation you must ingraft colonization upon your measure. We intend that our children shall be raised where their equals are; and not in a population partly white and partly black; and we know that equality never can exist between the two races.
The State of Illinois has just ingrafted a provision into its constitution, in these words:
"Sec 1. No negro shall migrate or settle in this State after the adoption of this constitution.
Sec. 2. No negro shall have the right of suffrage, or hold any office in this State."
We in the Northwest feel the force of the idea that was alluded to by my friend from Wisconsin, Mr. Doolittle, when he said that one sixth of all the population in his town was likely to be black, if they took their share of the negroes if emancipation goes through. Thus do we understand the matter; and we do not intend to allow our region of the country to be overrun with the black race. Such is the prejudice, such is the settled conviction of our people, that the wall which we have erected is to stand. We intend to have in our State as far as possible, a white population, and we do not intend to have our jails and penitentiaries filled with the free blacks.
In this connection I allude to the message from the President which proposes that we resolve to inform the slave States that Congress will provide financial help to them if they emancipate their slaves. As far as I know this is the first effort in the history of this country where the Government of the United States has ever proposed to a sovereign State of this Union anything connected with her domestic policy. I remember reading of a distinguished gentleman who, having crossed over the Potomac, and looking at the army of one hundred thousand glittering bayonets, and then looking back at the Capitol, exclaimed: `this is the last of this Government. State lines will be blotted out.' This may be so, but never by my vote.
The Senator from Massachusetts yesterday repeated the sentiment that 'freedom is national, slavery is sectional.' But there is another sentiment—the Constitution is national, and the right of the people of the States to make their own domestic policy is national." The proposition of the President is at variance with all my recognized notions of State rights.
Note: Here is highlighted the essential political fact that what the people of the United States did by civil war was to strip this right from the constitution, transferring the right from the people of the States to the people of the United States, in Congress assembled. Today, one hundred and fifty years later, almost a third, if not half, of the voters seem to desperately wish this right to come back to the States. The wish lies just beneath the surface of the debates over abortion, gay marriage, illegal immigrants, gun and drug control, and other equally unsettling political issues. The question, thus, in our time, recurs: do we as a people want each State to be in exclusive control of its domestic policy, or do we want the Federal Government to impose upon the States collectively one domestic policy. Surely the American Civil War teaches us the answer.
Mr. Jefferson, as early as 1809, was concerned that the Federal Government might swallow up the States. If Mr. Jefferson said that, then, I do not know what he would say now when the House has passed a resolution, suggested by the President, telling the people of a certain section of the country, on a subject of their domestic policy, `do this, and we will do that.' I am for the old-fashioned State rights doctrine. I mean that each State has a right to regulate its domestic policy, including all the social relations and the internal government of the State, and that the national Government has no right to interfere. As Jefferson said, so do I: `The true theory of our Constitution is that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. (Jefferson's Works, Vol 4., p. 331.)'
Note: An obvious attribute of the change caused by the Civil War is seen in the fact that Congress, almost daily, passes laws now which transfer funds to the States for their use, if but only if the States modify their domestic policies as the Congress specifies. Congress, in effect, says, "Do this, and we will do that."
It is my conviction that in ninety days from now, if this Congress will attend to what appropriately belongs to it in this hour, we can have peace in every county in Tennessee, and in ninety days more we may have a Governor in every one of the slaveholding States. If Congress stands by and leaves the Constitution as it is, and leaves the institution of slavery to take care of itself, we shall put down this rebellion.
Mr. Pomeroy of Kansas: I do not wish to vote compensation to slaveholders here in the district. I do not believe we have the right to give away a million dollars from the Treasury for this purpose. The holders of slaves here are running out every day. I live in a State where slavery was abolished at once, on the 29th of March last year, at midnight, every slave in our State passed from a condition of slavery to freedom. They all went to bed slaves, if, indeed, they had any beds, and in the morning they got up and walked about, freemen. I have not seen any trouble arising from that.
Note: Mr. Pomeroy, a Radical Republican, a bit corrupt and in the pocket of the railroads, is ignoring the 5th Amendment to the Constitution which specifies that no person may be deprived of property without due process of law and with "just compensation." Or perhaps not.
Mr. Sumner of Massachusetts: How many were there, I should like to ask the senator?
Mr. Pomeroy: I am unable to say exactly. I suppose there were some hundreds. If we are to give compensation, I say we settle the account between master and slave with justice. The senator from Vermont, Mr. Collamer, said that [in In Re Dred Scott (1856)] the Supreme Court had decided that negroes had no rights that white men were bound to respect. Does the Senate intend to enact that decision of the court? By giving compensation to the slaveholders and dealing out not one dime to the men who have spent their lives in slavery and rendered labor which has been unpaid for, I say that is reenacting the dogma that negroes have no rights that white men are bound to respect.
I call attention to the fact that there are men here who have spent forty years in slavery, and during all this time have never had anything more than was necessary to support them; and now, at an advanced age, this Senate proposes to turn them out without a dollar. I insist that we should weigh out justice to these parties.
Do gentlemen call upon us, because we are prosecuting this war, to forget all we have said, and all we have been struggling to accomplish for years? What, sir, have we been struggling for? It was to place this government in a position where it should not lend its aid to the support of slavery. Since its formation it has been devoted to that object; and what the Republican party contended for was to free the Government from the incubus that had been laid upon it through its unnatural connection with this peculiar institution.
Now, sir, are gentlemen so unreasonable as to ask us that we shall forget all we have tried to attain; that we shall ignore the question of slavery? You are asking too much of us, and the reasoning of the gentlemen who ask this is hardly a fair one. Let me ask the Senator from Virginia, Mr. Willey, does it follow that because we adopt one measure that we mean to adopt another? The honorable Senator has connected all the measures before Congress together, and he views them as parts of a whole. In the first place, here is the recommendation of the President; in the next place, here is the bill for the abolition of slavery in the District; and in the third place, here are the questions regarding the confiscation of property; and the honorable Senator thinks they are parts of a system.
Well, sir, I do not hesitate to say here that I dissent entirely from the conclusions of Senator Sumner, as stated in his resolution to make States territories. I do not look upon the States of this Union as gone and destroyed. The fundamental idea upon which we started in this contest was, that no State could take itself out of the Union; no State could destroy its existence as a State, or change its relations to the Union. We have not recognized State action. From the beginning we have considered all action as individual action, as having nothing whatever to do with the States as such.
Mr. Willey, of "Virginia:" If the honorable senator will allow me, he misstates my point: I say that in the excited state of the country these measures will be construed as parts of a system which, taken together, will destroy the Union sentiment by which it is hoped to reorganize the State governments.
Mr. Fessenden, of Maine: Let me say that that the Congress has no right to touch, by legislation, the institution of slavery in the States where it exists by law. But, sir, I say further that so far as the people have the power under the Constitution to weaken the institution of slavery, to deprive it of its force, to subject it to the laws of the land, to take away political influence, they have the right to do so.
Why, sir, do you suppose we came into power to sit still and be silent on this subject; that we came into power to do nothing; to think nothing; to say nothing lest by some possibility a portion of the people of the country might be offended? That was the argument of the honorable Senator from Indiana, Mr. Wright, this morning, as I understand it.
Sir, reflect: have we not duties to perform with our opinions? Can we defer the consideration of some of these subjects? Are they not before us everyday? Do they not meet us at every turn?
This question of the abolition of slavery in the District of Columbia, I have stated, has been always most nearest my heart. Gentlemen say it is a bad time to take it up. But, sir, whom do we injure? The slaves? The slave will bear the injury. The owner? What claim have the owners of slaves have upon us. They knew one day this day would come. We can say this thing should not exist where we have the power to abolish it.
Let me call attention to one fact. Virginia has as much territory as all New England. It is vastly superior to it in every particular. It has mines, it has water power unequaled, it has facilities for trade which are not surpassed in any quarter; it has all the elements of greatness, for manufacture, for commerce, and for agriculture. In the days of the Revolution it had more population than all New England; more commerce, more wealth. Compare the State of Virginia as it was when the rebellion broke out, with New England, and see the difference between the two. At that day you had less than a million of white population and we had three millions. In all the branches of life we were vastly your superiors. What is the reason for this? Can you give any for the difference except the fact that you had an institution which we had not What I say about Virginia is true of all the slave states. Slavery is a curse and a ruin that the nation can no longer afford.
Note:" Slavery is a curse and a ruin that the nation can no longer afford:" this is the policy statement of the Republican Party. By 1860, the politicians in the Northern and Western States were keenly aware that the vast territory of the United States, west of the Mississippi, was ripe for development which meant millions of people were being drawn into it, and those millions—white people of European ancestry—were infected with an incurable antagonism toward Africans, whether free or not. At the same time, the politicians were seeing the number of free Africans immigrating into their States to be increasing, creating rumblings that were resulting in the passage of laws of exclusion. At the same time, also, they were seeing that the birth rate of the Africans was causing their total population to increase annually. Four million Africans were residing in the United States, in 1860, and it was clear to the Republican politicians that somehow a start had to be made in integrating them into society as free persons, if the country was to maximize its economic potential.
Mr. Morrill, of Maine: There are objections to this bill which cannot stand. An objection is brought that it does not provide for the care and custody of infant children discharged from service, and we are told that this bill turns the children out upon the world as free, without measures to support them. In my investigation, one fact stands out: almost all infants have mothers, though it is a little question about their fathers. If you confer on the black population of the District the boon of freedom, they ask no favors of you; they do not ask your charity; they do not ask you to assign guardians; they do not ask you to find persons to take charge of them. Just take your feet off these people, let them up, give them their rights, and my word for it they will take care of themselves.
Now, in regard to the provision for old men. I admit the price of $150 is arbitrary, but I think all will agree with me that $150 is not too much to take care of persons sixty or seventy years of age. When these people have been used all their lives in the service of another, it seems to me at least to be enlightened charity to provide this much for their support when they are set free.
April 2, 1862
Mr. Sherman, of Ohio: It is proposed to emancipate the slaves of this District. I am informed that the number of slaves in the District is less than fifteen hundred. To add one thousand to the number of free negroes in this District, now about 11,000, is a matter of very small importance. It is the idea of emancipation which makes the issue such a big deal. It is this reason that has excited the hostility of Mr. Davis, of Kentucky, and Mr. Willey, of Virginia.
I would abolish slavery simply for its affect on property. The abolition of slavery in this District will bring here active, intelligent mechanics and laboring men, who never will compete with the labor of slaves, and who, finding none here but free men, will develop the great advantages of this city.
There is another reason. This is the best place to try the experiment of emancipation. We shall set the example which the slave states will surely one day follow.
There is another good reason to begin emancipation in this place. This is a very paradise for free negroes. Here they enjoy more social equality than they do anywhere else. In the State where I live, we do not like negroes. We do not disguise our dislike. As my friend from Indiana, Mr. Wright, said yesterday, the whole people of the northwestern States are opposed to having many negroes among them, and that principle of prejudice has been ingrafted in the legislation of nearly all the northwestern States. Here there is but little prejudice against them, and here they have the best chance of thriving. Here they are the laborers, the hackmen, the servants, and are of great service.
There is the objection raised by the Senator from Maine that the bill does not provide for colonization. If it is our duty to emancipate these slaves, it is equally our duty to give the negroes the right of choice whether they will live here in a land where they will always be held as a subordinate race, or try the experiment of freedom in another and more favorable clime. I think it a just idea that we, as a nation, owe these people the obligation to allow them to develop their freedom and their capacity to govern themselves in a country where they will not be met at every step with caste and prejudice, hate and contumely; where they can exercise no political rights; where they cannot vote; where they cannot serve as jurors; where they cannot exercise any of the rights of freemen. When you give negroes freedom in this country you give them freedom stripped of everything but the name. You make them freemen without the right to govern themselves.
Let me say another thing. We are the majority in this body. We are the majority in the other House. We have a Republican administration. If we do not show to the people of the United States that we have a definite policy, and have manhood to stand by it, we ought to be overthrown. We ought to adopt a policy and adhere to it. We ought now to abolish slavery in the District. We ought religiously to abstain from all interference with the domestic institution of slavery in the States. We ought to stand by the Constitution as it is, by the Union as it is. Whether rebels are in arms or not, our duty is to stand by our pledges, and I, for one, will do it.
Note: Here is the first whiff of the great danger to the liberties of the people that war brings. The experience of one hundred and fifty years of American history demonstrates that the paper limits imposed on Government by the Constitution are ignored by those, whoever they are, in control of the Government when war is instigated.
Mr. Davis, of Kentucky: Will the gentleman permit me a moment. Mr. President, the two gentlemen, Mr. Morrill and Mr. Collomer, when I occupied the floor on this subject a few days ago, propounded several questions to me. I now ask their courtesy to permit me to return the compliment.
Mr. Morrill: Whom does the Senator want to question?
Mr. Davis: Both of you.
Mr. Morrill: You may begin with me.
Mr. Davis: Tell me whether property in slaves can exist or not, whether those who are called the owners of slaves can have a property in them or not? Second whether Congress can take from the citizens of this District who own real estate, that real estate, or not, and if they answer the second question in the negative, to point to the clause in the Constitution that create a different title to slaves and real estate.
Mr. Morrill: If I understand the Senator he inquires of me whether I recognize the right of property in a slave?
Mr. Davis: That is the first question.
Mr. Morrill: Very well, sir; I will answer you in a trice. I do not hold in the common acceptation of the term that an owner has property in his slave. I do not hold that the owner of a slave owns his slave as he owns his horse. I hold that the sense of mankind does not regard property in a slave as in a horse or in lands. That is repugnant to the common sense of mankind throughout the civilized world; and in this instance I hold that the title or claim which the owner of a slave has to his slave in this District rests entirely upon an act of Congress, and that act does not establish the relation of owner and property but establishes the relation of master and slave. Repeal that law and slavery topples and falls instantly to the ground. Therefore, my answer is, that I do not recognize the right of property in slaves; but I do recognize, under the act of Congress of 1801, the relation of master and slave.
Mr. Davis: My friend's answer was not quite as broad as my question. It was not limited to slaves in this District, but it was a question of general application, whether the owners of slaves in the District or out of it have a property in slaves or not.
Mr. Morrill: The principles I have now laid down are applicable to any case in the States. I hold that there is no precise property in slaves, in the sense in which we have property in lands, or property in horses or other animals. It has a different origin; slavery is founded on force, originates in force, never is maintained anywhere except by a statute which is founded in force. Slavery is abhorrent to the common sense of mankind.
Mr. Davis: I laid down a few days ago this proposition—and I defy the Senator from Maine to refute it—that there is no positive written law which establishes property in a slave or in land or in a horse, that the law upon that subject arises, from the uniform custom and usage of the civilized world.
And I laid down this further proposition: that my legal right to my slave was precisely of the same nature and character with my legal right to my land; and that if I were a citizen of the District of Columbia Congress would have no more right to deprive me of the one subject of property than of the other.
The gentleman denies that property can exist in a human being. That is his broad proposition. Upon that point I am totally at issue with him, and I am sustained by the Constitution of the United States wherever the question has been mooted and decided. The Senator now concedes explicitly that Congress has no power to take from the people of this District their houses or their lands, or any property but their slaves, as I understand him. I ask the gentleman for the law or the provision of the Constitution which forms the interdict and he gives me the provision that no citizen's property shall be taken for public use except by due process of law and just compensation. I maintain that that prohibition on the power of Congress applies as legitimately and with as much truth and logic to slaves as it does to real estate.
My proposition a few days ago was that slavery was general and that the abolition of slavery was local; and that proposition I sustained by reading from the opinion of Chief Justice John Marshall in the Antelope case. Marshall decides the principle broadly, that slavery exists by public national law.
Mr. Morrill: I take issue with that point. Slavery is acknowledged by international law only in such nations as recognize it.
Mr. Davis: No, sir. Chief Justice Marshall decided that slavery and the slave trade existed by national law, and that this national law may be repealed locally by the proper legislation of every country upon the earth; and that this national law exists in every country save in those countries where, by positive enactment, it has been repealed.
I do not deny that slavery is contrary to the law of nature, but I say that the law created by the usages of mankind overrules the law of nature in relation to this subject. What is the law of nature? When this traffic in slaves was indulged in by the civilized world, and the States of Massachusetts and Rhode Island were inundating the colonies with slaves torn from Africa, and selling them for a price, what was the law of nature then in Massachusetts that indulged such a traffic; and what was the law of nature in the civilized world? What is the law of nature now in Turkey and in China? What was the law of nature in Europe two centuries ago? What is the law of nature in Utah?
The law of nature varies with the altered condition of civilization and the condition of the world; and what is the law of nature in one age and in one country and in one generation, is not the law of nature universally.
It is because of this want of uniformity in the law of nature, and because there is no common tribunal to define and establish what the law of nature is, that it has been uniformly decreed to be subservient to the positive laws of any country, and to the laws of nations, as established upon the usages of the civilized world.
Let me read from Chief Justice Marshall's opinion:
"That slavery is contrary to the law of nature will scarcely be denied. That every man has the natural right to the fruits of his own labor is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of those was, that the victor might enslave the vanquished."
That was once a principle of the law of nations as recognized by the whole world. I admit that the principle has been exploded by the Christian civilization of this age. Let me read again from Marshall's opinion.
"Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful."
What does Chief Justice Marshall here decide? That although slavery has its origin in force and is against the law of nature, yet as it has been universally recognized by the civilized world, it exists and is acknowledged by the law of nations.
As Marshall says:
"Throughout Christendom this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Through the whole extent of this immense continent, so far as we know of its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims?"
Here is the principle to which the honorable Senator from Maine referred:
"Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.
If we resort to this standard as the test of international law, the question is decided in favor of the legality of slavery and the slave trade. Both Europe and America embarked in it; and for nearly two centuries it was carried on without opposition and without censure. A jurist cannot say that a practice thus supported was illegal, and that those engaged in it might be punished either personally, or by deprivation of property."
In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right lost? Each may renounce it for its own people; but can this renunciation affect others? No principle of general law is more universally acknowledged than the perfect equality of nations. It results from this equality that no one can rightfully impose a rule on another. A right, then, which is vested in all by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it."
Note: Of course, we know that, since World War II, this rule of international law, with the appearance of the United Nations, is in decline. At least the United States Government considers it so. We insist on meddling in the domestic policies of independent nations: North Korea, Iran, Russia, Cuba, and Iraq, to name a few.
Mr. Morrill: Will the gentleman permit me. Slavery was universal because it was made so by the acts of the several nations themselves. It was not a law of nations; it was the law of each nation, and therefore of all; that a nation might repeal it while another does not, shows it is not a law of nations. Another thing, it was never a law of nature. The laws of nature can never change, until nature changes.
Mr. Davis: The gentleman is still mistaken. I admit that the law of nations was made by the practice of nations, and that is what Marshall says. No Senator here can find any positive written law of any nation upon the earth sanctioning the slave trade, except the Constitution of the United States, which continued the traffic until 1808.
I will try another authority; it is Justice McLean, who the Senator from Massachusetts the other day praised so. It was a case of this character. A slave had eloped from Kentucky into Ohio where a certain citizen gave him aid in making his escape to Canada. The owner of the slave sued this citizen for damages for having aided the slave in his escape. Defense counsel argued that there was no positive law, no statute enacted in Kentucky which established slavery. Judge McLean concede that to be the fact; but instead of that being a denial that the right of property existed in the plaintiff, he expressly stated in words that it was no defense at all, pointing out that in our colonial governments no general provision existed for the surrender of slaves. From our earliest history, he said, slavery existed in all the colonies.
How did it exist in the colonies? Not by positive enactment, not by any positive law; it existed only by public, national law, based upon the usage of the civilized world. That is the origin and foundation of the property of the owner of a slave to that slave.
Judge McLean put the principle this way:
"Property takes its designation from the laws of the States. It was not the object of the Federal Government to regulate property. A Federal Government was organized by conferring on it certain delegated powers, and by imposing certain restrictions on the States. Among those restrictions it is provided that no State shall impair the obligation of contract, nor liberate a person who is held to labor in another State from which he escaped. In this form the Constitution protects contracts and the right of the master, but it originates neither."
There is a decision in which the right of the master to his slave is expressly recognized, and yet the honorable Senator from Maine assumes that there can be no property in slaves.
Now, Mr. President, we are entering a new epoch. We have some great heresies attempted to be put into practice in the southern States and they all have their origin in Massachusetts. The State of Massachusetts entered early and largely, and with great profit, into the slave trade; they brought the mass of the slaves that were imported from Africa into the colonies and into the States up to 1808. After having themselves planted this obnoxious weed in society, as soon as the Constitution prohibits them from continuing this lucrative traffic they turn around and want to emancipate the slaves they had before sold to innocent parties!
The honorable Senator from Massachusetts, Mr. Sumner, in his splendid oration upon the subject of slavery the other day, said that slavery was not destroyed by local legislation in the British West Indies but by the national government. That is true. If the people of England had had the same financial interest in slaves as did the West Indies planters, they would have sung a different tune. Suppose the honorable Senator now and every one of us owned two thousand acres of cotton land, and had upon it a hundred slaves, and the annual produce of this estate of land and labor was one thousand bales of cotton, yielding an income of $50,000. Suppose every Senator was thus possessed of this property, I ask how many of these Senators, without regard to their locality or their present opinions, would be willing to give up such an estate for nothing? The man is green indeed who believes that one of them would. (Laughter).
We are the creatures of the circumstances that surround us, and of education. If you and I had been born and reared in Constantinople, we should have been Mussulmans. If we had been brought up in desolate Utah, the honorable Senator from Massachusetts might have been a polygamist. (Laughter)
Now, Mr. President, we have a party in this country called Abolitionists. There is a party in this country who believe that their mission is to overthrow slavery, and they are marching to this work regardless of the Constitution of the United States, of all its compromises, and of all the rights which it secures to the States and to the citizens. Sir, it is in defense of the Constitution, with all its limitations of power, with all the rights that it secures to the States and to the people, with all its restrictions on the Congress, that the great Union party to which I belong has drawn the sword. Mr. President, we stand upon the Constitution as Washington and his associates made it, as it has been expounded by the Supreme Court, and we are fighting this war for those immortal principles of liberty and of security to the rights of property, without which that sacred instrument could never have been formed and agreed to by the States. The Constitution is the ark of our liberty; it is the bond of our Union. When that bond is broken the Union is gone forever. I say to you Abolitionists that you are worse enemies of the Union than Jeff Davis and his hosts in battle.
Note: Here, of course, we see the reason "States Rights" has a bad odor. What we must not ignore, however, is that the fault, if it was a fault in 1787, lies with the framers who inserted the principle into the plain meaning of the Constitution. The Constitution was Mr. Davis's ark of liberty, to the Africans, though, residing in the United States, in 1862, it was the iron hammer that welded their chains.
Mr. President, it has been frequently inquired what brought about this war. I will tell you what I religiously believe, that the States of Massachusetts and South Carolina and their mischievous isms have done more to bring about our present troubles than all other causes. I believe that if it had been possible to unmoor those two States and drift them away into the ocean together, and let them fight out their antagonism side by side in some distant sea, the rest of the States would have got along most harmoniously. I religiously believe that those two States have been the hotbed of ambition, of religious, social, and political heresies and isms, and they have been pressed upon the rest of us with an energy that has brought us to our present great difficulty. If there is any people that ought to be held to special account for the present condition of the country, it is the people of Massachusetts and South Carolina.
Mr. Morrill: I understand the proposition of the honorable Senator from Kentucky to be this: that he has precisely the same right to his slave that he has to his horse or his lands, and that the origin of the right of property in slaves and the origin of the right of property in lands is one and the same.
This is not the notion common to American jurisprudence; nor is it a notion that is common to the country from which we originate. Instead of a man's having the same claim, the same sanction, and the same right to a slave that he has to his property, the law of England, the law of the mother country, has always held that the right to slaves, that property which was claimed in slaves, was in violation of natural right, and was in violation of natural law. Why, sir, the great commentator on English law lays down this proposition—that the origin of the right of property springs from the Deity. That is his distinction. The origin of the right of property springs from the Almighty, maker of heaven and earth; and there is no origin outside of it.
Note: So it's "God's" fault.
The honorable Senator says, `show me a statute on this subject, giving me a right to my horse, which does not give me the same right to my slave.' Well, I will refer him to a positive statute on this subject,
"And God blessed them"—
Mr. Davis: Will the honorable Senator permit me to ask him a question?
Mr. Morrill: When I have read my authority I will.
"And God blessed them, and God said unto them, be fruitful and multiply, and replenish the earth, and subdue it; and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth."
The commentary of the great English commentator runs back to that as the origin of the right of property; and here is the obvious distinction between the right of persons and the right of things. Man has dominion over things; he has no dominion over persons—
Mr. Davis: I will ask the honorable gentleman from Maine if he ever knew any property to be recovered in a court of justice upon that law, or ever knew a claim to property to depend on the law which he has just read, in a court of law?
Mr. Morrill: We never had any occasion to plead that statute in my part of the country, yet it is always recognized. (Laughter) I only state in opposition to the notions of the Senator what every lawyer knows to be the common learning of the law, and that is the distinction between persons and things. Things are subjected to the dominion of man; persons never, never! And let me say that the law of nature never changes. Men may disregard it, communities may disregard it, but the law stands.
Mr. Wilmot: Why does not the gentlemen propose compulsory emigration or colonization? If the races cannot live together, then surely we should adopt compulsory emigration.
Mr. Browning: We are acting upon too small a scale to justify us in broaching so momentous a question as that is at this time. The time may come when compulsory colonization may be found necessary for the good of both races. If we were in a condition to remove the colored race from our midst, and place them elsewhere, where they would be better provided for, where they would be given the full stature of freemen—they never can attain to the full stature of freemen in our midst—if we are prepared to remove them, give them pecuniary aid, settle them, for a time to protect them and school them until they can take care of themselves, I would have no scruple about making it compulsory emigration or colonization. But, sir, the subject now before us is so small a matter, scarcely a drop in the bucket; you may strike off the bonds of every slave in the District today and there is not a slave State in the Union that will feel the effect of it one atom. (nor a free State.)
I further assert what we have often said, that freeing slaves in the District does not justify the charge of any intention of interfering with the institution of slavery in the States. We disclaim the power to do so, we disclaim the right to do so, and we disclaim the intention to do so. With slavery in the States we have nothing on earth to do. It is a thing of local law.
But here in the District we have the right to deal with it. Just as long as they remain among us they are free negroes; they are nothing else; they are a poor, degraded caste, and I am afraid always will be. When you come to propose the admission of the negro to social equality and to family alliance, it is a test that reduces all our sympathies to dross and ashes. It is a test that none of us can bring ourselves up to.
Mr. Bayard: Mr. President, let us look to the Fifth Amendment, that no man shall be deprived of property without due process of law and just compensation. Well, sir, what is the effect of this bill? Gentlemen, when they are abolishing slavery in the District tend to mix up with it their ideas of confiscation. On what principle is it, sir, that you can require of any man if you take his property, a condition that he prove himself loyal to your Government? A man may be guilty of murder; but until his conviction you have no right to confiscate his property. You admit the necessity of compensation but you would have a board of commissioners determine on the question of loyalty and withhold payment if the finding is disloyalty. What is that but punishment, without trial, without offense known to the laws?
Sir, I know that personal liberty is dead in the United States under the stale plea of State necessity, but I am not aware that the Government, in any State in which the courts are open, has undertaken to confiscate the property of a citizen without trial. It is an onward step. It is a further step in the destruction of free government and the establishment of a government of will in this country, depending upon the will of the present administration. No general rule or principle, no written constitution, meant, as it is, to guard against the violation of private rights, seems to have the slightest control over the actions either of the Executive or of Congress.
Mr. President, I am aware that there is a kind of answer given by certain members of this body that slaves are not property. Well, sir, it is not worth an argument. The foundations of property do not rest in the law of nature; they rest on the complex relations of civilized society.
Sir, if this war is to be prosecuted for the preservation of the Constitution, its principles must be adhered to during the prosecution of the war. We are not wantonly to violate it because gentlemen have a theory it will be a benefit to the District to set slaves free here. Honorable Senators may think that adherence to the provisions of the Constitution is of little moment now when they are in power; but I tell them that they will find hereafter that there is a Nemesis in all human affairs, and that it is far easier to throw away the precious jewel of civil liberty than to recover it when it is lost.
I pass now, for a moment, to the issue of the relation of the races. Mr. Sherman expects that the passage of this bill will produce a paradise in the District, but I tell him it will not be so in a few years or so, to the white men. The question of the relation of the races depends upon relative numbers. The honorable Senator from Ohio, with thirty-six thousand negroes in his State out of two millions three hundred and fifty thousand population, can form no opinion as to what would be the effect of emancipation in the State of Maryland with one fourth of the population negroes.
Sir, I tell him that the skilled labor will not come where the black race exists as freemen half as soon as where they exist as slaves. It is the principle of equality which the white man rejects where the negro exists in large numbers. It is that which creates the antagonism of race. The people of Indiana restricted the immigration of the inferior race into their State years ago by constitutional provision. The people of Illinois have done so recently. The people of Ohio will do it yet; the people of New Jersey will do it yet; the people of Pennsylvania will do it yet; and this bill and similar bills will force it on them. You cannot overcome the law of nature; I speak of the primary law of nature, the instinct of race. The white man will not consent in this country, that the mass of the white people shall amalgamate with the blacks, and be reduced to a level with the Mexicans.
Gentlemen may war, if they please, against the law of nature and the characteristics of the race; but though they may have the power today to enforce by legislation doctrines and measures which will be injurious to the country, rely upon it its reacting sense will teach them that their doctrines and their theory are a fallacy.
The Presiding Officer: The question is on the passage of the bill manumitting the slaves in the District of Columbia, upon which the yeas and nays have been ordered.
The Secretary proceeded to call the roll. The result was announced—yeas 29; nays 14. So the bill was passed. (By almost a two to one margin.)
In The House of Representatives Of The United States:
April 10, 1862
Freedom for the Slaves in the District
The CHAIRMAN. The Chair decides that the bill can be laid aside.
The motion was agreed to.
Senate Bill No. 108, being an act for the release of certain persons held to service or labor in the District of Columbia, was next reached on the Calendar.
Mr. Webster: I move that that bill be laid aside. (Laughter)
The motion was not agreed to; and the bill was before the committee for consideration.
Mr. Thomas, of Massachusetts: Mr. Chairman, I avail myself of the indulgence of the committee to say something upon the relation of the `seceded states' to the Union, the confiscation of property, and the emancipation of slaves in such States.
The peculiar feature of our civil policy is, that we live under written constitutions, defining and limiting the powers of Government and securing the rights of the individual subject. Our political theory is, that the people retain the sovereignty and that the Government has such powers only as the people, by the organic law, have conferred upon it. Doubtless these inflexible rules sometimes operate as a restraint upon measures which for the time being seem to be desirable. The compensation is that many times our experience has shown that in the long run the restraint is necessary and wholesome.
Designed as the bond of perpetual union, and as the framework of permanent Government, we should be very slow to conclude that the Constitution lacks any of the necessary powers of self-defense and self-preservation. (Quite a different thing.)
But when a measure is in apparent conflict with the Constitution, we may well pause to consider whether after all the measure is necessary, and whether we may not bend to the Constitution rather than that the Constitution should give way to us. When we make necessity our law-giver, we are very ready to believe necessity exists.
Nor are we to forget that the Constitution is a bill of rights as well as a frame of government; that among the most precious portions of the instrument are the first ten amendments; that it is doubtful whether the people of the United States could have been induced to adopt the Constitution except upon the assurance of the adoption of these amendments; which are our Magna Carta, embodying the securities of life, liberty, and property.
Mr. Chairman, there is but one issue before the country, and that is whether the Constitution shall be the supreme law of the land. The Constitution was formed by the people of the United States. It acts not upon the States, nor through the States upon us as citizens of the several States, but upon us as citizens of the United States, claiming on the one hand our allegiance and giving to us on the other its protection. It is not a compact between the States or the people of the several States. It is itself a frame of Government ordained and established by the people of the United States.
Note: Let's look close at this: How was the Constitution "formed by the people of the United States?" According to the preamble, "We the People of the United States [ordained] and establish[ed] this Constitution of the United States of America." Restating this, does not answer the question, how? The people did not come together in a national convention and ratify it, they came together in their native States, in convention assembled, and each convention, on behalf of the people of their State, assented to join the Union which became known among the nations of the world as the "United States of America."
Mr. Thomas is also plainly wrong in his statement that the Constitution "is not a compact between the States." The instrument, itself, defines expressly the mode in which the framework—the Constitution—was "formed." Article VII reads: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so Ratifying the Same."
Thus, the Constitution became operative upon the consent of less than the whole people residing in North America, in 1789; the "whole" people of the United States at the time the Constitution sprang into operation was the people of the nine states that first ratified it, and these people did so in their sovereign capacity as citizens of their native States. And, in ratifying the instrument, no one can reasonably dispute the plain fact that their States retained sovereignty (and, thus, full control) over their domestic policies.
The very essence of a Nation is found in the fact that it, and only it, controls its domestic policy. Iran is a Nation if but only if it is solely in control of its domestic policy—Let's obtain nuclear power for our people. Other nations may quite legitimately refuse to engage in economic relations with Iran, as a result; but they cannot claim, by the law of nations, the right to wage war against Iran to prevent its domestic policy from gaining the result sought.
What seems to be happening, in terms of the law of nations, is that nations which adopt certain domestic policies are deemed to lose the right to be let alone. When Germany adopted the domestic policy of exterminating Jews, it lost the right to be let alone; and even if it had not invaded France, igniting World War II, the United Nations, in terms of evolving international law, had the right to invade its territory and topple its government and install a substitute in its place. There is nothing in this emerging principle that justifies the United States' invasion of Iraq, or its threats to attack Iran.
Such being the relation of the Government of the United States to its citizens and to the States, the first question that arises is, how far this relation is affected by the fact that several of the States have assumed, by ordinances of secession, to separate themselves from the Union. An ordinance of secession has no legal meaning or force, it is wholly inoperative and void.
Note: Mr. Thomas, in the real world, could hardly be more wrong. Whether lawyers may argue over the nice question of the "legality" of Virginia's ordinance of secession, it clearly had, in fact, force; and it was hardly "inoperative and void." On the basis of it Virginia was at war with the rump of the United States.
The act of secession, therefore, cannot change in the least degree the legal relation of the State to the Union.
Note: As of April 10, 1862, under the law of nations, the "legal relation" of Virginia to the Union was that of a public enemy, a belligerent, entitled to exercise all the rights recognized by the law of war. Whether it might gain the status of a "nation," recognized as such by the law of nations, depended strictly upon its military success in the field. But that is the test all nations must face when their independence is challenged by an aggressor's force of arms.
It is the necessary result of these principles that no State can abdicate or forfeit the rights of its citizens to the protection of the Constitution. The primary, paramount allegiance of every citizen of the United States is to the nation, and the State authorities can no more impair that allegiance than a country court or a village constable.
Note: Again, Mr. Thomas is wrong: allegiance, as the framers understood it, was primarily owed to the State of which a person was a citizen. It was the fact that the person was a citizen of the State that made the person a "citizen of the United States." Mere habitation within a State did not, in 1789, make one a citizen of that State. (The Nature of American Citizenship)
Of course, the people of a State can abdicate or forfeit their rights as citizens of the United States, by meeting in convention assembled and by a majority of votes agree to the secession of their State from the Union. That is how the framers designed the system of national government, in the abstract. In the real world, though, they knew the seceding States would have to defend themselves against the natural threat of conquest the act of secession would create. It seems hardly imaginable, doesn't it, that, had the framers been asked whether they intended the Federal Government to have the power to use force of arms to coerce the people of Virginia to remain subject to its jurisdiction, they would have nodded their assent?
Now, in case of conquest, even though the people of the conquered territory change their allegiance, their rights of property remain undisturbed. The modern usage of nations would be violated if private property should be generally confiscated and private rights annulled. When, therefore, States are reduced to territories, the national Government could not abolish slavery therein, except under the power of eminent domain, and by giving just compensation.
Note: Again, Mr. Thomas is wrong, but he is striving to reach a goal, refuting, with abstract argument, the right of the Congress to free the slaves. The right of property in men (i.e., the right to claim the service or labor of a person) can only be recognized by the domestic policy of the State. If the State is now a mere territory of the United States, it is for the Federal Government to decide its domestic policy.
What, then, it may be asked, is the legal character of this great insurrection? The answer is, it is a rebellion of citizens of the United States against the Government of the United States. Nothing the President said can be more explicit: `I, Abraham Lincoln, in virtue of the power vested in me as President, have thought fit to call forth the militia to suppress [rebellion] and enforce the laws.' Thus, then, this is not a conflict of States, nor is it a war of countries. It is a conflict between Government and its disobedient subjects. (How the framers must turn groaning in their graves: their sons, it turns out, are "subjects" of the "Government" controlled by Republicans.)
The difference between a war and a rebellion is clear and vital. War is the hostile relation of one nation to another, involving all the subjects of both. Rebellion is the relation which disloyal subjects hold to the nation. The legal relation between them is not that of war, though the rebellion has assumed gigantic proportion; the array of numbers does not change the essential legal character. It is still treason—the levying of war against the United States by those who owe it allegiance.
Note: Mr. Thomas needs to read the Constitution more carefully. The definition of "treason" is found in Article III which deals solely with the Judicial Power of the United States. Its provisions inform the Judicial Branch what is and is not "treason." Section 3 reads: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies." The problem of logic for Mr. Thomas lies in the framers' use of the plural pronouns, "them" and "their." The Constitution, as the framers wrote it, did not recognize the entity labeled "The United States" to be an "it."
For example, as long as General Lee was a citizen of Virginia and Virginia was a member of the Union, his allegiance to Virginia required him to avoid "levying war" against the Union of which his native state was a part. Once, Virginia seceded, however, and found herself being invaded by armies of the United States, under the control of the Republican party, General Lee's duty, if he wished to remain a legitimate citizen of Virginia, was to defend her borders against the United States. (Did General Lee commit Treason?)
While using the powers and appliances of war for the purpose of subduing rebellion, we are by no means acting outside the scope of the Constitution. We are using precisely the powers with which the Constitution has clothed us for this end. We are seeking domestic tranquility by the sword the Constitution has placed in our hands.
Note: "We are seeking domestic tranquility by the sword."They, in control of the Federal Government, were using it to conquer the Confederate States of America, reduce them to the status of territories, and thereby take control of their domestic policies.
It is a plain proposition, that in seeking to enforce the law we are, as far as possible, to obey the law. We are not to destroy in seeking to preserve. The people do not desire a bitter and remorseless struggle over the dead body of the Constitution. We may raise armies and pour out treasure and life blood of the people, but we cannot die well for the Republic, unless we keep clearly in view the end of all our labors, the Union of our fathers and the Constitution which is its only bond.
The bills and joint resolutions before the House propose, with some differences of policy and method, two measures: the confiscation of the property of rebels and the emancipation of their slaves. The acts of confiscation proposed would defeat the great end the Government has in view: the restoration of order, union, and obedience to law. They would take from the rebels every motive for submission; they would create the strongest motive for resistance. In the maintenance of the Confederate Government they might find protection, in the restoration of ours, spoliation. You leave them with the great weapon of despair.
Note: At this time, with the Union sweep of Missouri, Arkansas, Kentucky, and western Tennessee, and with McClellan moving toward Richmond on the Yorktown Peninsula, there was a feeling in the Congress that the war might come to a quick end; just a few more months, the conservative men were thinking, and it would be over and things going back to normal.
Apart from the injustice of these acts of sweeping confiscation, I have not been able to find in the Constitution the requisite authority to pass them. The acts are defended on the grounds that they constitute punishment for crime and that they are justified by the war power of the Government. But, as to the concept of "crime," the Constitution expressly denies Congress the power to impose ex post facto laws, and it commands that no person can be deprived of life, liberty, or property without due process of law. To do so, the Government must indict him, and try the issue of his guilt by trial of his peers. As to basing confiscation on the war power, such power is limited by the law of war which does not recognize the right of the Government to seize private property, except in precise circumstances, none of which are applicable here. By the modern usages of nations private property on the land is generally exempt from confiscation.
Note: Mr. Thomas's argument of abstractions was intended to lead the audience to the conclusion that, since the rebels are still citizens of the United States, they are entitled to the rights defined in the Bill of Rights, and thus their private property cannot be taken unless those rights are respected. But, of course, in the real world, it is plain that General Lee and his fellow Virginia citizens are in fact public enemies of the Union which the Republican party through its control of the Union Government means to conquer or destroy. And, yet though they are outside the pale of the Constitution, they are still entitled to the protection afforded them by the usages of nations, the law of war.
To avoid misconstruction, I desire to say that the power of Congress over slavery in the District is absolute; that no limitation exists in the letter or spirit of the Constitution. All that is required for abolishing slavery here is just compensation to the master. Desiring the extinction of slavery with my whole mind and heart, I watch the workings of events with patience. If in pursuit of objects however humane, if impelled by hatred and a desire for vengeance or retribution, we yield to such unconstitutional change, we shall destroy the best hope of freemen and slave, and the best hope of humanity this side the grave.
April 11, 1862
Mr. Nixon, of New Jersey: Mr. Chairman, I am in favor of the general principles of the bill. The gradual emancipation of the slave would have been more in harmony, would be more in accordance with my view of public policy, but if immediate emancipation, with just compensation, be the sentiment of the House, I am prepared to vote to remove the blot of slavery from the Capitol.
I have not risen to comment on the details of the bill, but to throw some light on the maladies afflicting the nation's life. The origin of our national troubles has been traced to various sources. Philosophical gentlemen will tell you that this is a contest between two forms of civilization; in irrepressible conflict between antagonistic ideas of the objects and ends of Government; the one side agreeing to the unity of the race and struggling for its emancipation and political equality, the other side denying its unity, and trying to perpetuate the distinctions of caste. The deduction from this view is that the war must go on until one side annihilates the other. If this be true, if the mere existence of slavery were sufficient to produce rebellion, then the Constitution is a failure; the wisdom of the fathers who framed it, was folly; and the sooner we strike hands with the southern traitors the better for us, and for mankind.
But it is not true. There was no need of such a contest. The history of the world, of our own country, prove that no such necessity existed. It was not the institution of slavery, but the ambition of southern men, that made slavery aggressive. It was not the desire for the emancipation of the slave, but the ambition of northern leaders, struggling to get into power, that made abolition aggressive.
Other differences arise from the confusion of ideas as to the relations of the States to each other and to the Federal Government, and the powers vested in the Government by the Constitution. A large class of southern politicians have long held that the Constitution does not establish a government acting directly on individuals, but that it is a mere compact to which the States are parties, and which may be dissolved at the will of either party.
Note: Of course, considering the issue in an objective light, using cold reason as the guide, it is clear from the undisputed historical evidence that, indeed, the Constitution did not "establish a government acting directly on individuals." Such a fact can only be true, in the application of cold logic and reason, if the Constitution was intended by its framers to control the domestic policy of the State, and not leave control in the hands of the people of the several States; to operate upon individuals, it is hardly likely the framers would have used language that specifies its ratification shall be through "the Conventions of nine States" and that the "Establishment of the Constitution" shall be "between the States ratifying the same." Instead, the framers would have logically specified that the "Establishment of the Constitution shall be between the peoples of the nine States ratifying the same."
The pestilent heresy of secession, with its brood of evils, is the offshoot of this false assumption. Hence, these men regard an ordinance of secession to be valid, absolving them of all allegiance to the Federal Government; and they call this war "coercion of sovereign States." It was just here that the late President (Buchanan, now dead) gave so much aid and comfort to the conspirators.
Note: The objective facts of history show conclusively that the political party in control of the Federal Government until November 1861 (the Democrats) followed reasonably closely the theory of the Union as the framers designed it; that is, "theory" applied in the abstract.
In his message to Congress (in December 1860) President Buchanan said that if a State seceded there was no remedy, because there was no power in the Constitution to coerce a State.
Note: Here, of course, President Buchanan was wrong. The Constitution gives the Federal Government the war power, the power to make war aggressively against any political entity that, in its self-interest, it considers necessary to conquer or destroy. That is the fundamental law of war, and it is that law that justifies, if at all, the Federal Government using the armed forces of the United States to attack independent nations, whether the nation attacked is Germany, Japan, Iraq, Iran, North Korea, or the Confederate States of America.
But it is not the State that is in rebellion and deserving punishment, but individuals who, acted upon by the laws of the United States, forcibly resisted their execution, and owing fealty to the Government, raised their hands for its overthrow. (As it affected them.)
The propositions now pending in this House and the Senate for the organization of territorial governments over the seceded States contain the germ of this fallacious reasoning. It was not so intended by the movers, but these propositions when carried to their logical conclusion, recognize the right in a State to secede. They assume that South Carolina, for instance, is out of the Union, and as she was not able to carry her territory with her, Congress should organize a territorial government over it. But how did South Carolina get out of the Union? Not by an ordinance of secession, because we (Republicans) all agree that these ordinances are void. Nor did she get out by the dissolution of a compact, because the ties that bind cannot be broken unless everyone unanimously agrees.
Note: This is silly. If you repudiate the crucial terms of the agreement—the terms that induced me to agree—your breach excuses me, it gives me just cause to assert the agreement is at an end.
Other propositions look to acts of emancipation of the slaves, not only as one of the objects of the war but also as an efficient means of carrying the war to a successful conclusion. The authority to do this is found by some in the false theory that States lose their right to hold men to service, through their domestic laws, in consequence of their pretended secession; and by others in some vague notion that the right exists as incident to the war power, as if the powers conferred upon Congress were intended by the framers to be elastic, expanding and contracting as the exigencies seem to demand. I do not say that the right of emancipation does not exist. I say it does exist by virtue of the President's war powers.
Note: This view has carried forward to the present day and it has led us to the Congress's present imposition of martial law upon the country; this is manifest in its suspension of the writ of Habeas Corpus, denying American citizens the right to be indicted, the right to communicate confidentially with an attorney, the right to trial by a jury of your peers.
I do not say that because the power is not expressly prohibited, it may be exercised; for every intelligent man will see at once to what consequences such a rule of interpretation would lead us. We do not look to see if the power is granted. We do not say that the power is not denied, and therefore exists. We say that it is not granted, and therefore does not exist.
Note: Mr. Nixon is twisting himself into knots here. Since the Constitution did not expressly prohibit the Federal Government from passing laws emancipating slaves, it necessarily follows, some would argue, that if the result wished for—in this case, emancipation—flows from the exercise of a power that is granted, such as the power to take care that the general welfare of the Union is furthered, then the Congress has the power to achieve the result. But the Constitution, in the Bill of Rights attached to it at the time it was ratified, expressly states that no person's property can be taken by Government without due process of law and without just compensation made. At no time did the Congress pass a law, to abolish slavery anywhere, which carried with it a provision to provide "just (market value) compensation."
This contest was not begun by us, it was forced upon us. As if to fill to the brim the cup of their wickedness, a peaceful vessel (the Star of the West), freighted with provisions for a starving garrison (accompanied by nine U.S. Navy warships and U.S. Army infantry aboard transports) was diverted from her errand of mercy (resupply a U.S. fort positioned inside a South Carolina harbor) by the cannon of the insurgents, and as if to make the cup overflow the fort at Charleston was invested by an army and the flag of the nation insulted and dishonored.
Then, thank God, the reaction came (as Lincoln instigated). The Government and the people woke from their strange apathy. The blood kindled in patriotic veins. The President's proclamation was issued and found a quick response. The President asked for 75,000 volunteers. What for? Not to coerce States, but to put "down combinations too powerful to suppress with the ordinary course of judicial proceedings." Not to emancipate slaves but to repossess the government. Not to execute new arbitrary laws, but to enforce the old laws.
I stand today with the Administration to secure the objects set forth by the President in his proclamation. There is the limit. This war is only justifiable because we intend to live by the Constitution. If we go beyond this limit we are guilty of the very transgressions of which we complain in them, and are making ourselves justly obnoxious to the charge of waging a war outside the Constitution to reduce the South to the will of the majority. It is always easy, in the whirl of fierce excitement, for men and nations to find pretexts to transcend the powers of the fundamental law.
The Constitution, it is alleged, was made for periods of peace. Its framers could not anticipate such a gigantic conspiracy against the national life, and therefore made no provision for it. Besides, the laws are always silent in the midst of arms. Necessity, everybody knows, is above the law.
Note: And here we find ourselves, today, reliving Mr. Nixon's experience. What possible "necessity" justifies the Congress suspending the writ of habeas Corpus, denying an American citizen the protection of the Bill of Right, in our day and age? What makes a cell in Cuba necessary for the incarceration of American citizens, that a cell in Illinois cannot provide? We are allowing the Congress, today, to confound the police power with the war power.
Is the Constitution silent? Did its authors, in their zeal to guard against the encroachments of the Federal Government, overlook the dangers to be apprehended by the encroachments of the people? The Constitution states it is the supreme law. It is the duty of the President to take care that law be executed. Congress has the power of war. It is only the amplification of the marshall's power to enforce the laws.
Mr. Blair, of Missouri: The charge has frequently been made that the President is without a policy. This is false. There can be no dispute as to the object of the war as far as he is concerned. He says in his annual message that he has been anxious that it "shall not degenerate into a violent and remorseless revolutionary struggle." (What else did he think it would be, when he started it?) "I have therefore," he says, "in every case thought it proper to keep the integrity of the Union prominent as the primary object of the contest." But it is objected to by some of those who aided in his election that he has not in aid of this object made the war upon the cause of the war, and decreed emancipation by an order as Commander-in-Chief as an effective agency in suppressing the rebellion.
Note: In April 1862, with huge military success in the field, many in Congress, aside from the radicals, think the war will be ended by June, and so the radicals, although pushing their agenda, are sitting back and waiting for the war to devolve into a remorseless struggle, at which point they will press Lincoln hard to issue a "proclamation" of emancipation for the slaves. Lincoln will do it, only when the pressures of the war make him frightened that Kentucky is about to go over to the Confederacy.
The measure might unquestionably be justified if it were deemed necessary for the purpose of accomplishing his object.
Note: And here we are again, at today. So, by Blair's reasoning, the President may do whatever he deems necessary to accomplish his objective if he can convince who, the Congress, the American people, the world, that his act is "justified" by "necessity?" One need waste no time drilling into the meaning of the Constitution, to an examination of its grants of power, its exceptions, reservations, and limitations; one needs only announce the President "deems" a certain action "necessary?" This is the ground of political science to which Lincoln's actions in instigating civil war has brought us to stand on.
In his canvas for the Senate with Mr. Douglas, Lincoln's views respecting the subject of slavery were very fully developed, and his position led logically to his present attitude. In his declaration, that above all things he desired "a separation of the black and white races," he showed he knew that the excitement occasioned at the South by the idea of emancipation was not due to the fears of the loss of property it would occasion to those holding slaves. His birth in a slave state, and subsequent residence in Indiana and Illinois, among a people a large proportion of whom also sprung from the slaves States, taught him that the greatest repugnance to this measure (emancipation) was to be found among men who had no such property interest at stake. He knew, also, that these men were attached to the Union. This demonstrates it is not a good idea, to think the rebellion can be suppressed by a policy of emancipation.
The rebellion originated chiefly with the non-slaveholder residents of the South, springing from an antagonism of the race and hostility to the idea of equality with the blacks involved in simple emancipation. This idea was naturally of greater intensity in proportion to the number of slaves about them, and its force in extinguishing Union feeling diminished as we approach the high and mountain regions where the slaves are few. It was the negro question and not the slavery question which made this rebellion.
Note: For a hundred and fifty years the educators have been pretending that the war was caused by a slaveholders rebellion, or that it was caused by a number of abstract issues, when in the real world it is plain to see that Mr. Blair is dead right. White racism, European white racism, caused the Civil War. See how this fact emerges in the speeches that follow Blair's.
If the rebellion has grown out of the abhorrence of the non-slaveholders for emancipation and amalgamation, and their dread of "negro equality," how will their discontent be cured by the very measure the mere apprehension of which has driven them into rebellion?
No wise man wishes to increase the number of enemies to the State within the hostile regions, or divide its friends outside. Mr. Lincoln knew a decree of emancipation would certainly have this effect. Such an act, he knew, would strengthen the rebels and weaken the sympathy of a large number of working men of the North, who are not ready to see their brethren in the South put on an equality basis with negroes.
Query: What changed Lincoln's mind, on September 20, 1862, when he published the Emancipation Proclamation?
To disarm the jealousy of race, which he knew lay at the bottom of the rebellion, he recommended in his recent annual message to Congress (December 1861) that homes should be provided in some neighboring county for such of the blacks as should be made free by events of the contest.
The President's policy is fully vindicated by the condition of things. The North is a solid unit, and the South is divided on the question of the Union. The gentlemen who advertise for emancipation think they can get more efficient help from the negroes. If they could show that more negroes would run away because of such a decree, they might have ground for debate. But there is not the slightest reason for supposing this. All run away now who can get away. We cannot reach the remainder by decree but only by force. These considerations demonstrate that, in a military calculation, the President's policy is correct.
The outbreak, as I have already said, sprang from the convictions in the common mind in the disturbed region that the negroes were to be liberated and put upon an equal footing with the whites. The mere idea of this amalgamation was instrumental in producing the rebellion. There was no actual emancipation. The idea of the separation of the races is a complete antidote to that poison.
How will you execute a decree of emancipation which will set free the slaves of the South upon the soil and among a people the whole body of which is opposed to it, and who have taken up arms in rebellion against the very idea of negro equality? It can only be done by the presence of an immense army, and by waging war on the white people to protect the black people. How long will the North endure such a war?
We can make emancipation acceptable to the whites only by a policy of colonization. It is objected that we have no right to remove the negroes. We can send them all the Mexico and South America where they will be happy to live away from us. This is the only true solution to the negro problem.
Mr. Crittenden, of Kentucky: Mr. Chairman, I rise with reluctance to address this House on the question presented by this bill. We are upon no summer sea, sir. We are in the midst of the storm of war, our country convulsed from end to the other, and the issue for a long time doubtful; no man could tell what was reserved for us in the destiny of nations. The situation was novel to the Congress; without a parallel, perhaps, I might say, in the history of the whole world. Where did rebellion ever assume such gigantic proportions as it has assumed here? (Huh? The colonies rebelling against England's King.)
But, sir, I do not mean to waste time on generalities. The immediate question before us is the abolition of slavery in the District. This measure has been repeatedly pressed over the years and has been rejected time after time. Mr. Chairman, I have lived long enough to pay due attention to the past. Why should we do it now?
We are not only engaged in this tremendous war, now, I trust, coming to an end, but we are engaged in a war founded on the apprehension of the people that it is the intention of Congress ultimately to violate the constitutional rights of the different States in adopting or rejecting slavery as they please. It is that apprehension that has kindled this war. No one will dispute that.
The masses of the people were, I say, influenced to unite in this rebellion by the apprehension of such an intention on the part of Congress. They are now laboring under that apprehension. Under that apprehension they have fought us with fury. This is the situation under which we are asked to pass this bill. What will be the effect of it? Will it not strengthen the mind-set of the people that it is the intent of Congress to emancipate the slaves?
You may produce much mischief by this bill. What is the good? Slavery has been disappearing in the District for years. Your bill will not, probably, have more than a thousand slaves to act upon. What, then, is the deep anxiety to pass this bill? Obviously, the views of the gentlemen who press this bill extend far beyond the slaves of the District. No, sir, it is the commencement of a great system; it is the beginning, not the end. You (the Republicans) try your power here. You execute it here. This thing done, it opens the prospect of future action. You are practicing for the greater combat. From this ground, occupied as a sort of camp, you intend to make war on the institution in the States.
There are now on the table some twenty bills, all contemplating the confiscation, or, in terms, the liberation of the slaves of the people of the United States. This is one of them. The public mind cannot help but make the connection. You first attack the weakest link. You carry your point and move on to the next. The people of the United States are alarmed by it. The weary rebels, who are now fainting under the defeats which our armies have inflicted on them, will feel a new desperation. That is the nature of man.
And will it not be said, Mr. Chairman, that we are taking advantage of the disturbed condition of the country, which has banished ten States from this Congress?
There is another principle applicable to this bill we ought not to pass by. There is the question whether there can be property in man. If there can be, all that is valuable in that property, the substance of that property, is in the labor of the slave, is it not? You cannot have more of him. Whether you hire or you buy that is all the value you can have in him. Those that deny there can be property in man cannot deny that there can be property in the service of the man who is apprenticed to you.
Now, whether the property be in man or in the service of man, seems to me to be immaterial. It is not upon any technical question of law that I desire to address upon this bill. Here is by law, constitutional law, a right given to certain States, and in the District, to the services of persons they hold as slaves. To take that from them is as little constitutional as to take any property they own from them. Can you do it in the face of that constitutional command that holds no man can be deprived his property without due process of law and just compensation given? Where do we get the power to confiscate? To liberate? It is not in the Constitution.
The answer you give is that war is supposed to give us this power, which peace does not. The Constitution denies it in time of peace. There is none here so bold to deny this. But the state of war is supposed to give the power to Congress. Mr. Chairman, it seems to me that the Constitution is an utter fallacy, or that it is the same today and tomorrow, in peace and in war. It was made for peace and for war. It was made, as Mr. Madison says, for duration, for all time. It has that power which prohibits it in time of peace to emancipate slaves in a State. Can that power rise up out of any state of things against the Constitution? The Constitution gives you a right to make war, and the Constitution gives you impliedly all of the powers incidental to it. The war power, as it may be called, gives you that. Does it include a power hostile to the Constitution itself? That would have been a strange harmony indeed. No, sir; all must harmonize with the Constitution.
Note: Here, in a nutshell, is the same dilemma of logic being played out in our own time, with the Congress—first, in the control of one party, then another—passing laws under the manufactured excuse "we are in a state of war," which puts American citizens into military custody without indictment, without confidential access to lawyers, without trial by a jury of their peers, without appeal; laws which no sane, educated person can believe are authorized by the language of the Constitution, when interpreted by judges operating in a time of peace. We had better start paying attention to this business about "war on terror." By coining such a phrase, the politicians can use it to trump the Constitution at will.
There are some gentlemen, sir, who seem to me to think that no war measure can be of sufficient energy that does not find its beginning and source somewhere outside the limits of the Constitution. But the Constitution is a tame, sober instrument that yields nothing to peace, or to war. It has no sensations. It has no enthusiasms. It is a calm, steady, cold rule of the Government at all times, through the night and through the day, through storms and sunshine, through peace and war. That is what it is. (The rhetoric sounds good!)
Mr. Chairman, the Constitution is our strength. What has filled the fields with six hundred thousand men in arms in opposition to this rebellion? It is this Constitution, the bond of freemen, the bond of free Government. Let that admonish us that our strength is in the Constitution. The Constitution is the limit of your power, it is the landmark of the rights and privileges of your constituents. Its limits, today, protects me here.
To say, as some men do, that power can be derived of a general and unlimited character from the words, "to provide for the common defense and general welfare" is to subvert the whole Constitution. The Constitution is said to be a Constitution of specific and enumerated powers. What would become of all the specifications and enumerations of power if here is a general provision which gives an unlimited power? What becomes of all the specified powers if these terms give you an unlimited power? This general language was obviously intended only to show the object for which the enumerated powers were given.
As I understand the gentleman from Ohio, Mr. Bingham, he apparently finds in the language "to provide for the common defense and general welfare" an indefinite and unlimited and discretionary power. This, I say, is subversive of the whole spirit of the Constitution. It opens a new source of powers utterly indefinite. Suppose Congress should say that trial by jury is very troublesome in time of war; men must be brought to speedier trial and punishments; courts are too tedious in their processes; abolish them and establish military tribunals or send out commissioners, as the Government of Revolutionary France did, to execute their will, and to judge men on their lives and property. According to the gentleman's argument, it seems to me that this may be done as easily as emancipating slaves.
Note: For those of you that have read this far, and are aware of what has been happening in the world, Mr. Crittenden's hypothetical is the reality of our times.
Let me leave it with Madison who responded to the same argument Mr. Bingham makes, this way: "some argue that the `the power to provide for the common defense and general welfare' amounts to an unlimited commission to exercise every power which may be alleged as necessary for the common defense and general welfare. Had no other enumeration or definition of the powers of Congress been found in the Constitution than the general expressions just cited, those that argue so might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury must be very singularly expressed by the terms `to provide for the common defense.'"
We are now in a condition, or soon will be, to exhibit generosity, to repair, to build up, to consolidate, not our Government, but our Union. That is the great task which now devolves upon the country. (Mr. Crittenden is getting way ahead of events here) Let us take care of the Constitution and it will take care of us.
Mr. Bingham, of Ohio: Mr. Chairman, I had hoped that this House would have gone direct to the question whether the bill should pass, without further debate. This bill is very simple. The grant of power in the Constitution which permits this bill is as comprehensive as words can make it. "Congress shall have power to exercise exclusive jurisdiction over the District." All, then, that remains to be considered is, is the bill wise, is it just? Mr. Crittenden deems it an inauspicious time for the Government to exercise this unquestioned power to legislate for the liberation of the slaves wrongfully deprived of their liberty in the national capital.
The question today before the House is, whether the representatives of the people will faithfully execute their great trust and declare that hereafter, in all the coming future, no American citizen nor human being shall, within the limits of the District, be deprived of life, liberty or property without due process of law.. That, sir, is the great question of today.
At this point Mr. Bingham introduces the concept of Africans being Citizens.
I have said that these persons who are the subject matter of this bill were natural born citizens of the Republic. Shall we hesitate, can we hesitate, within the admitted limits of our power, to do justice to our own citizens by the enactment of this law? I regret that the bill is worded to say, "all persons held to service by reason of African descent." I would have preferred that the bill read, "all American citizens held to service or labor within the District are hereby discharged from such service and are free."
Mr. Bingham now constructs the basis of his theory.
The Constitution leaves no room for doubt upon the subject. The words "natural born citizen of the United States" occur in it, and the other provision also occurs in it that, "Congress shall have power to pass a uniform system of naturalization." To naturalize a person is to admit him to citizenship. Who are the natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth—natural born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend upon complexion. All from other lands who become naturalized are adopted citizens of the United States; all other persons born within the Republic, or parents owing allegiance to the United States, are natural born citizens. (This whole paragraph is argument in a circle detached from context.)
Does not the Constitution provide that the citizens of each State, being ipso facto citizens of the United States, shall be entitled to all the privileges and immunities of citizens of the several States? (The answer is "Yes," but so what?) The Constitution does not read, as I have heard it quoted upon this floor, that the citizens of each State should be entitled to the privileges and immunities of citizens of the several States. (This is correct, but, again, so what?) No, sir, the word used in the Constitution in this clause is not of, but in, the several States. "All privileges and immunities of citizens of the United States in the several States" is what is guaranteed by the Constitution. (Here Bingham misstates the language.) There is an ellipsis in the Constitution, as gentlemen doubtless know, which must be supplied to express clearly its meaning. (The language actually reads, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.")
Note: What Bingham hopes to achieve by conjuring up an "ellipsis" where none exists, escapes intelligence completely. What Bingham pretends to be blind to, here, is that what makes you a citizen of the United States, as the framers wrote the Constitution, is the fact that you are a citizen of a State. As the Supreme Court's opinion, in In Re Dred Scott (1556) makes plain, "African negro slaves" were not recognized by anyone, in 1787, as "citizens" of any State.) Therefore, given the plain language of Article IV, Section 2 of the Constitution, Africans, in 1862, were not "citizens of the United States;" they were alien residents of the States in which they lived. Bingham eventually becomes the "Madison" of the 14th Amendment, and, thus, one of the modern framers of the Constitution.
Already, as we have seen, the Republicans have drafted legislation that is sitting on the table waiting to be debated, the subject of which is to override this Constitution barrier. As the war plays itself out, the Republicans, now having grabbed control of the majority of State Legislatures in the North, and having inserted their agents as military governors in control of the conquered States, turn to the amendment process to eradicate the constitutional barrier. They force down the throat of the conquered States the 13th, 14th, and 15th amendments which radically change the original intent of the founders. From henceforth, unless further amended by the activities of such political groups as the "tea party," the people of the States have given up for all time, in the South solely by force of arms, their right to be in exclusive control of their domestic policy. Now there is but one domestic policy and it is national. This is what the Civil War achieved for Americans. And that is what now has the country divided almost evenly between "blue" and "red" States. Taking back power is a great deal harder than resisting the original grab of it.
Mr. Wickliffe, of Kentucky: But what civil political right does the State of Ohio give to the black man? Does it allow him to vote? Does it allow him to intermarry with the whites?
Mr. Bingham: The gentleman would get a full answer to his question if he would read the statutes of the State of Ohio.
Mr. Wickliffe: I have read them.
Mr. Bingham: Then the gentleman from Kentucky knows that the law of Ohio fully provides for the protection of the right of every citizen, black or white, to life, liberty or property.
Mr. Wickliffe: My question was, What political rights do the black men hold in the State of Ohio?
Mr. Bingham: The right to vote has nothing to do with it. It is a trifling quibble, as if a man's right to breath has anything to do with the right to vote. (at this point Bingham grabs God for his anchor). . . That is not the lesson learned by the founders. They learned their lesson from Him who went about doing good; who made the distant land of his nativity forever sacred to mankind. By his great apostle came to men and nations with a new message declaring the true God, that God who made the world, and hath made one blood all nations of men to dwell on all the face of the earth. What was your declaration at Philadelphia on the 4th of July 1776, that "All men are created equal." But a reiteration of the great truth announced by the apostle of the Nazarene? What but this is the sublime principle of your Constitution, the equality of men before the law?
Note: Setting God aside for the moment—the Framers clearly did not equate Black and White as equal in drafting their constitution—Mr. Bingham, of Ohio, ignores the legal reality of his time. But that's what men do when they have the power.
How did the Constitution originally read, as to the question who exactly is a "Citizen of the United States?" What makes a person, under the constitution as framed, in 1787, a "citizen of the United States?"
In Article I, we learn that to be a representative or senator, a person must be a "citizen of the United States" and, at the time of his election, be an "inhabitant of that State" in which he is elected. In Article II, we learn that the President must be "a natural born citizen, or a citizen of the United State s, at the time of the adoption of this Constitution." In Article III, we learn that the judicial Power extends to "controversies between an State and citizens of another State, and between citizens of different States." Then we come to Article IV, from which Mr. Bingham attempts to find words supportive of his theory that the Constitution included, at the time of its formation, Africans as "citizens of the United States."
Article IV, Section 2 reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In the same section of the Constitution we find this clause: "No person held to service or labor in one State, escaping into another, shall, in consequence of any law therein, be discharged from such service, but shall be delivered up" to his owner. One would have to be blind to the meaning of language not to grasp the fact that the framers did not intend African negro slaves to be recognized as "citizens of the United States" eligible to be representatives, senators, or President of the United States.
But men say the time is not propitious to ameliorate the condition of men who, in flagrant violation of your Constitution, are deprived of the right to enjoy the freedom of their own person; who are deprived of the right to enjoy the product of their own toil; who are deprived of their right to enjoy the comforts of their own homes, and to give their protection and care to their own children. The time never was and never can be unpropitious for an honest endeavor to do right. (i.e., to do the "just," the "moral" thing, regardless of preexisting hard-nosed and cold-blooded political contracts between peoples of States with distinctly different domestic policies.)
Mr. Riddle, of Ohio: Mr. Chairman, a great truth is weakened by what men call elucidation. A great truth is never so strong than when it is left to stand on its simple assertion. The thing right forever remains right, under all possible circumstances and conditions; in all times, places and seasons. So, too, its great opposite, wrong, must forever be wrong, and not right. No matter, though taken from its native hell and enthroned a crowned king; though a universe bows to it, and cry "all hail!" Though Constitutions be written to sustain it; though laws be enacted in its name, and ermined judges wrench the maxims of law to its support.
Note: Of course, Mr. Riddle is correct in his philosophy, but then he must be honest and admit that, in overthrowing the plain political compact the founders made with themselves, he is acting the revolutionary, he is intent on upending the law as it is written and replacing it with a new law, using the wand of "justice"—backed by physical force— to accomplish it. If the truth be told, then, it is plain to see that the Confederates were indeed "rebels," and Lincoln and his party, "revolutionaries."
It is idle to establish to me the inferiority of that sinless race—I see that they are men; useless, by curious physiological and ethnological disquisition, to affirm a difference between the African and Caucasian tribes—for I know that God created both. (God again) It is, to me, blasphemy to attempt to show that the Creator intended this race for slaves, for the very elements of our common nature, which are the common basis upon which God planted the races, gives that dogma the lie. Slavery is a hideous anachronism, coming to us out of the barbarism and the dead night of the past, with no good in it and must be consumed by the heat of our Christian civilization.
Note: Who in our enlightened age argues with this? But Mr. Riddle, of course, is not being fair to history or to his times, is he? The plain fact, as this congressional record proves, was that the white men of the North, as one whole, did not want to live with Africans, whether they were free or not free. At the same time this debate over slavery in the District is going on, there are bills waiting to be debated which provide white men with homesteads in the West, and to build railroads that will carry their families into the Great Plains and beyond, to occupy the homesteads. Had the people of the North been as pure in motive as Mr. Riddle claims for himself, they would have offered the Africans, who, as Mr. Bingham says, are "citizens of the United States" just like them, a place at the table where these great gifts are being handed out. And they would be striking down their own domestic policy which prohibits the presence of Africans in their States, and they would be offering to take some fair percentage of the Africans off the Slave States' hands, helping to disperse the population equally throughout the United States, so that everyone shares in the obvious burdens freedom entails. Who believes the Civil War would have erupted upon Lincoln's election, had the North done these things?
I may here say a word upon this matter of the responsibility of the free States for the existence of slavery. Whatever may be said or claimed as their responsibility for it in the States, they are responsible for it here in the District. Generations of this race have been born and have groaned and died in shackles under the shadow of this dome. Think of it. Think of it. And yet learned and grave men stand here to argue that we should still trudge and stagger on under this fearful load. For one I will not, nor shall my people.
To free fifteen hundred slaves is but to add so many to the free colored population of the country—a matter of itself of no moment. But to emancipate four millions is to change the status of the race, and our relations to it; and one may well feel the profoundest anxiety for the result. I would nonetheless fearlessly commit the country to its consequences. This war, without compromise or concession, will go forward till its end is accomplished. Every day of its continuance, every delay, every dragging moment, makes this end the more inevitable. Every step on slave soil, every battle fought, no matter what temporary result, every musket fired, every sword brandished, every soldier that suffers, and every heart that mourns, but make this result the more absolute.
Note: So there it is: the object of the war is to eradicate slavery in the land and leave the freed Africans as Citizens of the United States, bottled up in the South.
Mr. Fessenden, of Maine: I do not rise to discuss the merits of this bill. The hour of discussion has passed. The hour in which to put it upon the seal of the nation has come. I trust it is, indeed, the harbinger of that brighter, brightest day at hand when slavery shall be abolished wherever it exists in the land. This will be the one finality that will give us a righteous and lasting peace.
To be envied, indeed, would be the transit of the man who had held the office of President of the United States who could bear in his hand to the throne of God the broken fetters of the millions of slaves of this nation as evidence of the welcome obedience to the golden rule.
Mr. Stevens, of Pennsylvania: I move that the committee rise for the purpose of closing debate.
The motion was agreed to. So the committee rose; and the Speaker having resumed the chair, Mr. Dawes reported that the Committee of the Whole on the State of the Union had, according to order, had under consideration bill (S.No. 108) for the relief of certain persons held to service and had come to no resolution thereon.
Mr. Stevens: I move that all debate on the bill shall cease in one minute after the Committee shall resume consideration of same.
Mr. Richardson: I move to amend the motion so as to allow one hour more for debate.
The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 56, nays 73. So the amendment was not agreed to. The question recurred upon Mr. Steven's motion to close debate in one minute. The motion was agreed to.
Mr. Stevens moved that the rules be suspended, and that the House resolve itself into the Committee of the Whole. The motion was agreed to.
So the rules were suspended and the House resumed the consideration of S. No. 108.
Mr. Cradlebaugh, of Nevada: Mr. Chairman, I regret very much that the House has concluded to close debate in one minute after I have gained the floor for the first time since I held a seat here. My regret grows out of the fact that the debate is not complete. I cannot see why—
(Here the hammer fell, amidst much laughter, the one minute allowed for debate having expired.)
So the main question was ordered to be put. The yeas and nays were ordered.
The question was taken; and it was decided in the affirmative—yeas 92, nays 38.
So the bill was passed.
In The Senate of the United States—Confiscation of Property
April 7, 1862
The Senate resumed the consideration of the bill (S.No. 151, to confiscate the property and free the slaves of rebels.
Mr. Trumbull: Those on the other side of the aisle claim that the bill is not necessary to accomplish the purpose of punishing rebels. I will show that this view is wholly untenable and at war with both the spirit and letter of the Constitution. I deny that the Constitution puts the force of the nation into the President's hands, `investing him with the war-making power' which he may direct and control as he pleases, `and only restrained in so far by Congress in that he must depend on it to foot his bills. There is no warrant in the Constitution for the assumption of such powers by the Executive. So far from it, the war-making power is, by the Constitution, expressly vested in another department of government, and, the Supreme Court has decided that the power to confiscate enemy property does not reside in the Executive but in Congress, and nowhere else. There is not a syllable in the Constitution conferring on the President war powers. The Constitution simply makes him Commander-in-Chief of the Army and Navy when called into being, but he has no power to raise the one or provide for the other. As Commander-in-Chief when an army is raised, in the absence of any rules adopted by Congress for its government, he may have the right to control it, according to his discretion, but not violating the established rules of civilized warfare, but he would not have the right to confiscate enemy property because that is a power which can only be exercised by Congress.
And yet, strange as it may seem, these advocates of prerogative, who claim war powers for the President higher and above and beyond the Constitution are alarmed beyond measure at the bare proposal to enact a law whereby rebel property may be appropriated to the expenses of the war.
What is the answer to all this? How is it, in the face of the Fifth Amendment, that Congress may provide for taking the lives and property of rebels without `due process of law?' The answer is to be found in the grants of power in other parts of the Constitution, which declare that Congress shall have power to `declare war, make rules regarding captures, and raise and support armies.' This principle was settled by the Supreme Court.
But it is said that passage of this bill would be inexpedient because it would make the rebels desperate, and unite the South as one man against the Union. How so, let me ask? It does not propose to touch the property of any loyal citizen and why, therefore, should it drive him from the Union?
April 10, 1862
Mr. Henderson: If the Union can be restored in no way except through the instrumentality of arms, and a peace must be conquered at the point of a bayonet, confiscation acts will add nothing to the complete and perfect ruin of the southern people. Whether the southern people in rebellion be regarded as insurgents, rebels, belligerents, or public enemies, according to the technical signification of those terms, I shall not undertake to decide. I deem it merely my duty to examine the rules by which we must be governed as an enlightened nation, existing under a written Constitution, in our conduct towards them.
If they are public enemies, they are entitled to the rules of international law. We cannot put to death those we hold as prisoners of war; we cannot enslave them; we cannot sack their defenseless cities; nor wantonly lay waste to their country; we cannot seize their lands and colonize them with a new people, depriving the present inhabitants of possession, when peace shall have returned; we cannot war upon women and children, nor turn them over to the mercy of the soldiers. I do not mean to say these thing cannot be physically done, for possibly the power of government might accomplish them all.
Note: In one form or another all these things were in fact done under the banner of the Republican party in control of the Federal Government; but that is the nature of war. There is no such thing in the real world as "civilized" warfare.
It cannot escape observation that the whole machinery of this bill carefully excludes any judicial condemnation of the property that may be seized in the rebel States, or as the bill terms it, `in States or districts now in a state of insurrection or rebellion.' I find the proposition to be simply this: a legislative edict is fulminated against a class of persons, stripping them of all their property, which edict would be a `bill of attainder' and therefore unconstitutional, except for the existence of hostilities which is supposed to invest the nation with the extraordinary powers of international law, to which we in common with other civilized nations are subject.
Thus it becomes necessary to inquire what are those rights conferred upon us by the law of nations. Mr. Wheaton, in his Elements of International Law, says that,
"The taking of private property in the storming of cities is now recognized as booty which is not allowed under the laws of war; contributions can be levied upon territory occupied by a hostile army in lieu of a general confiscation of the property belonging to the inhabitants, and that the object of wars by land being conquest or the acquisition of territory, the regard of the victor for those who are to be his subjects, naturally restrains him from confiscating their property generally."
Private property on land is exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field, for example, or in besieged towns, and of military contributions levied upon the inhabitants of a hostile territory. But since the time of the Romans, conquest has been followed by no general or partial transmutation of landed property."
Chancellor Kent, in discussing the rights of belligerent nations, says,
"In the ancient past an enemy was regarded as a criminal and an outlaw, who had forfeited all his rights, and whose life, liberty, and property lay at the mercy of the conqueror. But these barbarous rights of war have been questioned and checked in the progress of civilization."
Such, then, Mr. President, I find to be the limitations upon our (extraconstitutional) power to seize and take property from citizens of the seceded States, if we elect to regard them as belligerents or public enemies.
I speak now of the right of seizure for purposes of confiscation, and not of the proceedings necessary to its condemnation after seizure. By the law of nations, no department of the Government can be authorized to seize for confiscation or to confiscate the real estate of the private citizen, which this bill proposes to do. By that law, also, the right of seizing slaves has been well nigh, if not entirely, abandoned, with the single exception of such property left without our own territory by a nonresident enemy.
By this bill, it is proposed to issue a legislative decree of confiscation against a class of people, depriving them of the right of ownership in all their property, and afterwards to send among them agents to execute that decree by gathering up the booty and spreading desolation and misery, I fear, throughout their land.
I assume, Mr. President, that the authorities cited on the subject make plan that the seizure contemplated by this bill is in direct contravention of the plain principles of international law.
There must be some limit to the powers of our Government, even in the midst of hostilities, when zeal and anger too often disregard the means used in the accomplishment of a desired end. Either the Constitution in its plain language, or that system of reason adopted by the general consent of civilized nations must be the limit of congressional power.
In my judgment, the Constitution is the limit. I believe not only that all can be done that is necessary to crush out the rebellion in strict accordance with that instrument, but I honestly believe that the Union cannot be maintained except by obedience to its provisions. But suppose, for the sake of argument, it be admitted that the existence of a state of hostilities gives some new virtue to the Constitution, which, however dormant in peace, becomes developed in war, and authorizes Congress to do whatever may tend to its successful prosecution, and that the seizure of the enemy's property is an efficient means toward the accomplishment of this end, yet the difficulties in the way of executing other provisions of the bill are not diminished.
It cannot be seriously argued that in the exercise of implied powers, or even to secure the blessings indicated in the preamble of the Constitution, Congress may, in its discretion, usurp powers that are specifically denied in the instrument itself.
For example, ex post facto laws should not be passed as an incident to the power `to define and punish felonies on the high seas,' nor could a `tax be laid on articles exported from a state' under the general power to `lay and collect taxes.' This bill proposes not only to seize the property of the individual, but it assumes of its own force to pass the title from the citizen to the Government.
Let it be granted that when Congress shall have `declared war' such acts may be passed as `shall be necessary for carrying into execution' the said powers, yet it cannot well be urged that this positive prohibition of the Constitution may be disregarded, which, in peace as well as in war, has been found to be one of the most important safeguards to human liberty, which declares, `nor shall any person be deprived of life, liberty or property without due process of law.' The party to be affected is entitled to his day in court, has a right to know the allegations against him and present his defense; to hear his accusers and to have process to show the falsehood of charges against him, and to have his rights adjudged by an impartial tribunal, separate and distinct from the executive or legislative departments of the Government.
Note: Here in a nutshell is what we, in this generation, are allowing our Government to do wrong, in violation of the plain requirements of the Constitution. We are now living, whether we recognize it or not, in a state of martial law where American citizens are taken hold of by the military, kept in a military prison, brought before a classic star chamber, without any of the rights enumerated by Senator Henderson, of Missouri, 150 years ago, and where sentence is pronounced without any real opportunity to appeal.
When by the act of Congress a state of war exists, the President, it is said, is authorized to conduct the war without the control of Congress. In other words, this theory assumes that Congress, having sanctioned the existence of war, has discharged its full powers, so far as concerns its future conduct; that this is left to the executive department; that the President, in his own discretion, may carry it on in such manner as may promise the most speedy and certain success, provided he does not violate those well-settled principles of human reason and morality by which all civilized nations are now governed in the management of hostilities; that, as an incident of war, he made cause seizures to be made on land; but the captured property must be turned over to what is supposed to be an honest and impartial judiciary. But we are told, by Mr. Trumbull, that the military may seize the property and may proceed, itself, to condemn the property and transfer its title to whom it may please.
If the Senator from Illinois is disposed to regard the rebels in the light of alien enemies, personally outside the jurisdiction of the United States, then under the law of nations the enemy's property may be seized but the issue of its title (i.e., the right to possess it) must be resolved in an impartial court of law. But to make this admission—the rebel is an alien enemy—is to concede that the Union is dissolved; to refuse the admission is to destroy the authority of the case.
But, Mr. President, if we elect, on the other hand, to treat the insurgents as rebels against the authority of a good government, we are bound to extend to them the privileges and safeguards which the Constitution has erected for every American citizen. If we all agree that the seceding States are yet States of the Union, then it must be admitted that the citizens of those States are citizens of the United States. Unless this is true, the war should be prosecuted no further. If Georgia and Louisiana are not members of the Union, it must be because ordinances of secession have destroyed that connection. If these ordinances be clothed with such power, the power must have come from the Constitution, and then what right have we to interfere with their discretion?
Note: The power comes from the fact that the people of a State, under the political theory of the Constitution as the framers designed it, retained their sovereignty when, in convention assembled, they ratified the Constitution. This is because what made them "citizens of the United States," under the Constitution, was simply the fact that they were citizens of a State in the Union; their primary allegiance therefore was to their native state, not the Federal Government. And, thus, as a sovereign people they had the natural right, if not the "constitutional," as much as did the framers, to secede from a political union that, to their will, had become oppressive and threatened to destroy their lives, liberty, and happiness. Of course, once they deemed themselves out of the Union, they exposed themselves, as all alien nations do, to the risk the Union would conquer them by force of arms.
No, sir, the ordinances are void and of no effect. They gave no new rights to the States seceding, nor to the citizens thereof; and being absolutely void, they of themselves took away from the citizen no constitutional right to which he previously was entitled. It is only when the citizen, upon whom and not upon the State our Government operates, attempts by force and violence to uphold this void act of secession; it is that that subjects him to the punishment of treason.
Note: The problem for Senator Henderson, as well as the others who argue that the secession ordinances were void, is that the language of the Constitution, in its definition of what "treason" is, makes plain "treason" is the making of war against "them"—that is, against the States collectively, the "United States." The framers did not design the Constitution to mean the "Union" to be synonymous with the "Federal Government." A citizen of Virginia, owing allegiance to it, can hardly be a traitor to the "Union" of which Virginia, by virtue of the sovereign act of its people, is not any longer a part.
There is another express provision of the Constitution that is clearly relevant here; it reads, in pertinent part: "Art. I, Section 9, No State shall, without the consent of Congress, engage in war, unless actually invaded." The Lincoln Government clearly "invaded" Virginia when it sent its army across the Potomac, seized possession of General Lee's home at Arlington, and moved upon Virginia's army standing on the defensive at Bull Run.
This is the reason many of the Republican speakers are making such a big deal out of the difference between fighting the people and fighting the State. A State might call upon Congress for military help in suppressing an "insurrection" or a "rebellion" of the people against the enforcement of the laws (the Detroit and Los Angeles riots, for example); that's one thing. The Congress is sustaining the police power of the State. It is quite another thing, however, when Congress attacks the State, itself, with military force. The war power is not used to attack people—the police power is available for that—it is used, when in the form of massed armies, to attack States. Virginia, a sovereign State, did not need Congress's "consent" to defend itself from invasion.
I am fully aware of the uncontrollable prejudices which this war has excited against the institution of slavery. The agitation has been going on until the two sections have become ignorant of the true character of each other. Northern revolutionaries seized upon the sympathies excited by it to excite hostile convulsions, while many in the other half of the Union were using it as a pretext to cover up personal schemes of ambition. How strange and inconsistent, too, the positions taken. The northern abolitionist taught the equality of the races, and demanded universal emancipation, without attempting to elevate the negro in his own State, and even rejecting all association with him where the practical test of sincerity is applied. In one breath he denounces the Constitution as a `covenant with hell' because it gives sanction to slavery, in the next he blesses it because it gives `liberty' to every human being. For near twenty years he labors for the dissolution of the Union. Suddenly it comes; his hopes are realized and straightaway he invokes the horrors of war to prevent, If possible, the consummation of his own wishes.
It may be that each section is now entertaining views at war with its own best interests. It is possible that the South in upholding slavery is hugging to its bosom a serpent that stings and poisons its vitality. Is not this the belief of every Republican senator in this body? And now, permit me to suggest that the sudden immigration into the Northern states of four million uneducated blacks, as wretched and miserable as their present owners, may prove neither beneficial nor acceptable to your people.
But the war is upon us. The pretext is slavery. It is therefore argued that slavery having produced the war, must be exterminated in order to end it. It seems to me with equal fairness to say that men have seized upon it as an effectual means of arraying sectional parties to gratify personal ambition.
We have proclaimed to the seceded States, the words our President uttered on the day of his inauguration: "I have no purpose to interfere with slavery in the States." After the ordinances of secession were proclaimed, Secretary of State Seward announced: "The citizens of these States remain our kindred and countrymen." And, again, after the fall of Sumter, Seward said, "the rights of the States will be guarded." After the bloody field of Manassas, we were further encouraged by new guarantees of faith, proclaimed in congressional resolutions that "This war is not waged for the purpose of overthrowing slavery."
I have no objection to taking the property of rebels, but let it be according to the Constitution which means guilt must be established under the forms of judicial investigation. I crave this not for the sake of the traitor, but for our own sake and in behalf of constitutional liberty. If we cling to the Constitution, whatever is right will yet be accomplished. If we depart from it no man can tell the excesses of the future. In the midst of storms, the mariner's only trust is in his compass. In the midst of revolution, our only trust is in the Constitution.
April 9, 1862
Great Victory in the West
Mr. Browning: I ask permission to read a telegraphic dispatch received this morning from the theater of operations of our army in Tennessee:
The bloodiest battle of modern times just closed, resulting in complete rout of the enemy, who attacked us on Sunday morning. Battle lasted until Monday, 4:30 p.m. when the enemy commenced their retreat, and are still flying towards Corinth, pursued by large force of our cavalry. Slaughter on both sides immense. Lost in killed, wounded, missing twenty thousand. The fight was brought on by the 25th Missouri Regiment contacting the advance of the enemy. Rebels immediately advanced upon General Prentiss. General Hurlbut's division was thrown forward to support Prentiss, when a desperate conflict ensued. At five o'clock the enemy had driven back our left wing almost to the river, fighting their way forward with desperate courage to drive us into the river, at the same time heavily attacking our right. The gunboats Lexington and Tyler, laying in the river, kept raining shells on the rebels to ward them off. Night fell and during its hours Wallace's division arrived from Crump's Landing and Nelson's division, of Buell's army, crossed the river and took position on our right. The battle began again at dawn and it raged, back and forth, back and forth, all day, when, finally, at sundown came, the rebels left the field.
Confiscation of Property Again
Mr. Willey, of "Virginia:" Allow me to say to the distinguished senator from Illinois, what I think the policy and public voice of his own State have sufficiently indicated, that the two races, the white race and the black race, in this country, can never live together in harmony to the advantage of either race, where, in point of numbers, the races stand anything nearly equal. The black man, the negro, cannot live and prosper in the presence of the white man. He is an inferior. He must be an inferior. If the numbers of the two races in a section are near equal, there will not be peace and security. The negro, whatever we may say about the rights of man, must be forever an inferior race. He never can be socially equal and, after all, that is the distinguishing characteristic of equality.
I have introduced an amendment to this bill, which calls for the President to make provision for the transportation of all freed negroes to some foreign country. I did not introduce the amendment to embarrass the Senator from Illinois at all, but to show that this bill is impossible to execute, without leaving the Africans here.
I will take Virginia by way of example. We have nearly sixty thousand free negroes in the State of Virginia. It is not unreasonable to think that the passage of this bill will throw twice that number of Africans upon our community. Sir, the honorable Senator from Ohio, Mr. Sherman (unlike Mr. Bingham and Riddle in the House) the other day spoke of the fact that he was not willing to receive into his State any more free negroes than exist there; and yet senators are willing to throw broadcast upon Virginia, one hundred thousand of this useless, inferior class of population. Sir, is this just? Is this fair? (ah! "justice" is in the eye of the beholder.)
Now, sir, let us look for a moment into the practical operation of this bill. It will drive Virginia into reenslaving those negroes in the State already free as well as those this bill makes free. That will be the policy in Kentucky, in Maryland, in Delaware.
We made a resolution the other day, offering to help States in the process of gradual emancipation. The operation of this bill will be to throw upon the community all at once a great mass of ignorant, servile, useless, dangerous, disorganizing population. While they state in the abstract that it will be the duty of the Government to help in the removing of this population to another country, they do not now provide the means.
Here you are surrounding us by an impassable barrier of constitutional interdictions against the diffusion of this population, while at the same time you want to manumit our slaves and throw them broadcast upon our community. Sir, the result will be that we will necessarily have to reenslave them.
Mr. Hale, of New Hampshire: Mr. President, I have not said a word about this bill, but I declare I cannot sit still and hear such sentiment as Mr. Willey gives. He states that Virginia and the other border States will reenslave any negroes made free by our bills as well as the colored population now free. I say that when they try it they set themselves against the moral sentiment of the country and the world. I laugh to scorn all attempts and all threats of enslaving this people. I tell you it cannot be done.
Sir, this is a great problem. We are working out today some of the greatest problems that have ever been wrought in the world, and this rebellion is not the greatest. It is the ultimate result that is to grow out of this juxtaposition of these two races here together; and I tell you, sir, that here together they have got to work out this destiny.
The idea of removing the whole colored population from this country is one of the most absurd ideas that ever entered the mind of anyone. Let the rebellion be over, and then take your whole national Navy, and let them do nothing else, and they cannot carry off the annual increase of this black race. (Cries from the gallery of "Oh No!") If any gentleman will take the trouble to look at the figures, he will find that what I say is true. Do Senators know how many are born daily? If they will look at the census and at the actual figures they will be astonished.
Mr. Cowan: What is the annual increase?
Mr. Trumbull: One hundred thousand a year, and more than just that.
Mr. Hale: Well, sir, it will do just as well for gentlemen to say I am wrong as not; the thing will never be tried. (Laughter in the gallery) Any gentleman that will take the tonnage of our national vessels and calculate the number of souls each would carry to Liberia, the number of voyages each vessel could make, and the time that would be necessary, and compute it all out, will find that what I say is no figure of speech, but literally true, that the whole Navy of the United States could not carry off the annual increase, much less the principal. No, sir; this is a problem that we have got to solve.
This is the way Nations should change political power;
So far, in the history of the United States, we can be thankful,
there has never been a crowd of medaled generals standing in this scene.
I remember asking Mr. Barnwell, of South Carolina, some time ago the question: "Have you any theory by which the removal of the Africans from this country might be done?" He waited a moment or two, and told me it was a subject upon which he had reflected much; but he was ready to admit that he did not see any solution of the problem; that he was not wise enough to see an answer. He said, "We take the thing as it exists; we do not educate these people, because we see no better future for them, and no better position than that which they now occupy; we confine ourselves to the duties of the day."
Note: How grossly sad is this: "We do not educate these people because we see no better future for them" Why not? Because we as white people cannot envision a day when we might live in social equality with Africans. The slow, harsh reversal of this began with the outcome of the American Civil War. Name a nation in the world today that has assimilated into what was essentially a completely white society, on equal terms, millions and millions of Africans? Of Asians? Of Hispanics? Making up half, if not more, of the country's current, and continuing to expand, population.
Proud of their past; amazed they are witnesses to the result.
Well, sir, it would be good if we confined ourselves now to the duties of the day. We need not be concerned with the future. My friend from Virginia says that the honorable Senator from Kentucky, Mr. Davis, says that reenslavement will happen.
Mr. Davis: I said that.
Mr. Hale: You are mistaken. At the time of the Romans, the empire consisted of one hundred and twenty millions, half of whom were slaves. It was proposed in the councils of the empire that every slave should wear a peculiar dress, so that he might be known by his costume. The proposition was met with the suggestion that this would be unsafe, because if it were so the slaves would know each and thus know their strength in numbers. Well, sir, here in this case God has done it for you. It doesn't take much thought to realize the result that will follow from reenslavement.
The great law of nature will go on. The Africans are increasing faster than the whites. They are here and despite all your puny efforts they will remain here. They will increase.
Mr. Willey: I certainly had no expectation of provoking this discussion. The nominal boon of freedom to the negro in this country is a mockery and delusion. He will forever be in a condition worse in fact than he would be in sustaining his relation of slave to master.
If it is right to manumit slaves, if they are to remain in this country, if the shackles of the slaves are to be broken off and he is to be set free, if the great doctrine of human rights and human freedom is so sacred that the slave ought to enjoy this high boon, I beg the Senator not to prohibit my slave, when I set him free, from finding a refuge in the rich soil of New Hampshire. Let the Senator not come here to me talking about the abstract right of freedom and the duty of setting slaves free, while his idea of the extent of freedom of the slave is to confine him to the manor where he was born. He may be free while he remains there; but he is to have no freedom, no right to go into Illinois or into Indiana, or Ohio, or New Jersey, or Pennsylvania. That is what I complain of.
Note: Here is the very essence of the cause of the American Civil War. How could Mr. Bingham's "Citizen of the United States" be barred from taking up residence in Illinois, the home of Lincoln? Because the Constitution does not grant the Federal Government the power to interfere with the domestic policy of the States, at least as the original framers wrote it.
Mr. Trumbull: I cannot understand the Senator from Virginia. I do not know how it is that a Senator, who lives in a State where his neighbors have been hunted down, driven from their homes, murdered in the