Part 10

This speech is a supplement to that of May 19th, on the “Rights of Sovereignty and Rights of War.” Its occasion is explained in the Introduction to the latter speech.[82]

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The New York _Independent_ published it at length, and thus characterized it:--

“It is the most complete presentation of the question that can be found within the same compass, and, like all Mr. Sumner’s speeches, is distinguished for accuracy of statement, learning, and sound principle. It is a defence of the present position of our Government, as defined by Act of Congress, to which every citizen owes obedience. In efficacy, that Act will go with our armies, as they advance, and will clear up the perplexities of our Generals, and clear their minds of certain political superstitions by which they have been hampered and hindered, to the great injury of our military operations. Let the people of Massachusetts, in particular, exult, as they observe, in regard to this, as well as most other leading measures of Congress, how the views of their great Senator became, step by step, the recognized and settled policy of the Government; and let them thank God that the good old Bay State has such a representative, and furnishes such a leader in this great extremity.”

MR. PRESIDENT,--Too tardily the house of a Rebel General in Virginia[83] has been taken by the Government, and set apart as a military hospital for the reception of our soldiers, wounded and maimed in battle. At least three churches here in Washington have been seized and occupied for the same purpose. All applaud these acts, which make the house more historic and the churches more sacred than ever before. But pray, Sir, under what authority is all this? Not according to any contract or agreement; not according to any “due process of law”; not even according to any statute. And yet the language of the Constitution is positive: “No soldier shall in time of peace be quartered _in any house_, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” If it be time of peace now, then is the Constitution violated by quartering soldiers in these houses without the consent of the owner. If it be time of war now, then is the Constitution violated by quartering these soldiers in a manner not prescribed by law,--unless we are ready to admit that the provisions of the Constitution are entirely inapplicable to what is done under the military requirements of self-defence, which is a supreme law, above all other laws or constitutions devised by men. But if the Constitution, in a case where it is singularly explicit, can be disregarded without question in the exercise of the Rights of War, it is vain to invoke its provisions in other cases, where it is less explicit, in restraint of the Rights of War.

It is true that the Constitution ambiguously provides against certain forfeitures, as incident to an “attainder of treason”; it also positively prohibits “_ex post facto_ laws”; and it nobly declares that “no person shall be deprived of life, liberty, or property, without due process of law.” But nothing in the House bills for the confiscation of property or the liberation of slaves is obnoxious to either of these provisions. There is no attainder of treason, no _ex post facto_ law, and no taking of property without due process of law; for the judicial proceedings which these bills institute are competent for the purpose. The House bills are not criminal statutes, nor do they institute criminal proceedings. Therefore do I assert unhesitatingly that these bills are above constitutional objection. They are as constitutional as the Constitution itself. It was once said of a subtile spirit of criticism, that it would find a heresy in the Lord’s Prayer; and such a spirit, permit me to say, is needed to find anything unconstitutional in these bills.

Here I assume, as a cardinal principle of Constitutional Law, that, whatever may be the condition of slaves in the States and under State laws, they are, under the Constitution of the United States, _persons_, and not property; so that, in declaring their emancipation, Congress is not constrained by any constitutional requirements with regard to property. Whatever the claims of property, slaves are men; and I but repeat an unquestionable truth of morals, confirmed by the Declaration of Independence, when I say that there can be no property in men. Mr. Winter Davis,[84] of Baltimore, has reminded the country, that Congress, on the motion of Mr. Clay, once undertook to declare the freedom of slaves without any “due process of law”; and the present Congress, by a bill of the last session, setting free slaves actually employed in the Rebellion,[85] has done the same thing; so that the principle is completely established.

Even if the bills seemed obnoxious to certain constitutional provisions,--as they clearly are not,--this objection and every other objection will disappear, when it is understood that they are _war measures_, derived from the capacious War Powers of Congress, applicable only to public enemies, and limited in duration to the war. Considered in these aspects and with these qualifications, these bills are only an agency in the prosecution of the war, and the power to enact them is as clear as the power to raise armies or to levy taxes. An ancient historian, in words adopted by the greatest modern publicist, has told us that “war has its laws, no less than peace.”[86] These words are placed by Grotius at the head of his great work, and they embody a fundamental principle. The Rights of War are not less peculiar than the victories of war, which are so widely different from the victories of peace.

Pray, Sir, where in the Constitution is any limitation of the War Powers? Let Senators who would limit them mention a single section, line, or phrase, which even hints at any limitation. If it be constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battle,--all without trial by jury, or any process of law, or judicial proceeding of any kind,--it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves. Nor can it be doubted on principle, that, if the latter be unconstitutional, then are all other acts of war unconstitutional. You may condemn confiscation and liberation as impolitic, but you cannot condemn them as unconstitutional, unless, in the same breath, you condemn all other agencies of war, and resolve our present proceeding into the process of a criminal court, guarded at each step by the technicalities of the Common Law.

Sir, I speak frankly, according to my convictions, claiming nothing for myself which I do not freely accord to others. In this discussion there is no need of sharp words or of personal allusions; nor can anything be gained by misstatement of the position of another. It is easy to say that Senators who insist upon the War Powers of Congress are indifferent to the Constitution; but I do not admit that any Senator is more anxious for the Constitution than myself. The War Powers are derived from the Constitution, but, when once set in motion, are without any restraint from the Constitution; so that what is done in pursuance of them is at the same time _under_ the Constitution and _outside_ the Constitution. It is under the Constitution in its beginning and origin; it is outside the Constitution in the latitude with which it is conducted; but, whether under the Constitution or outside the Constitution, all that is done in pursuance of the War Powers is constitutional. It is easy to cry out against it; it is easy, by misapplication of the Constitution, to call it in question; but it is only by such misapplication, or by senseless cry, that its complete constitutionality can for a moment be drawn into doubt.

The language of the Constitution is plain and ample. It confers upon Congress all the specific powers incident to war, and then further authorizes it “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Here are the precise words:--

“The Congress shall have power … to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; … to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; … _to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution_ in the Government of the United States, or in any department _or officer thereof_.”

Can language be clearer? Other parts of the Constitution may be open to question; but here is no room for question. The text is full and unequivocal. The powers are enumerated. Without stopping to consider them in detail, it will be seen that the most important are exclusively incident to a state of war, and not to a state of peace. A declaration of war is of course war, and “all laws necessary and proper for carrying into execution” this declaration are called into being by the war. Rules concerning captures on land and water are from necessity dormant, till aroused by war; but when aroused, they are, like other War Powers, without check from those constitutional provisions which, just so long as peace prevails, are the boast of the citizen.

The War Powers conferred upon Congress by the Constitution were well known; they had been conferred upon Congress by the earlier Articles of Confederation. The language of the latter was full and explicit with regard to captures.

“The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, … of establishing rules for deciding in all cases _what captures on land or water shall be legal_, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated, … and establishing courts for receiving and determining finally _appeals in all cases of captures_.”[87]

The language subsequently employed in the Constitution is identical in substance. It is evident that the framers of the Constitution had the Articles of Confederation in mind, when they vested in Congress power to “make rules concerning captures on land and water.”

The bills now under consideration are obviously founded on the War Powers. The first section of the first bill begins as follows.

“That all the estate and property, money, stocks, credits, and effects of the persons hereafter named in this section are hereby forfeited to the Government of the United States, _and are declared lawful subjects of seizure, and of prize and capture, wherever found, for the indemnity of the United States against the expenses of suppressing the present Rebellion_.”

The Senator must be very hardy who denies the power of Congress, in the exercise of belligerent rights, to pass such a bill; and he must be equally hardy, when he insists that belligerent rights are impaired by any limitations of the Constitution.

If the enemies against whom we now wage war were not our own fellow-citizens, if they were aliens unhappily fastened for the time on our territory, there would be no fine-spun question of constitutional immunity. Such immunities are essentially municipal in character; but a public enemy can claim nothing merely municipal. The immunities he enjoys are such only as are conceded by the Rights of War,--nor more, nor less. As a public enemy, he seeks to subvert our Government, its laws and its Constitution; and in this warfare he proceeds according to the Rights of War, indifferent to any mere local law. But if the war on our part were in accordance with mere local law, and in subordination to provisions of the Constitution devised for peace, it is evident that the National Government would be unable to cope with its enemy. It would enter into battle with hands tied behind the back. Of course, in warfare with people of another country Senators would not require any such self-sacrifice.

But the Rights of War are fixed, whether against alien enemies or against enemies whose hostility is aggravated by the guilt of rebellion, with this single difference, that against rebel enemies these rights would seem to be more complete and unsparing. Show me any Right of War which may be employed against alien enemies, and now, in the name of the Constitution, I insist upon its employment against rebels arrayed as enemies. Because enemies are also rebels, they are not on this account any the less enemies. Because rebels are also enemies, they are not on this account any the less rebels. The double character which they bear increases their liabilities, subjecting them to all the penalties of war enhanced by those personal responsibilities which every partaker in rebellion necessarily assumes.

And yet, Sir, the Constitution is cited as a limitation upon these rights. As well cite the Constitution on the field of battle to check the bayonet charge of our armies, or at the bombardment of a fortress to stay the fiery rain of shells; or, to adopt the examples with which I began, as well cite the Constitution to prevent the occupation of churches here in Washington as hospitals for our soldiers, or to save the house of General Lee in Virginia from similar dedication. The Constitution is entirely inapplicable. Sacred and inviolable, the Constitution is made for friends who acknowledge it, and not for enemies who disavow it; and it is made for a state of peace, and not for the fearful exigencies of war, treading down within its sphere all rights except the Rights of War. Born of violence, and looking to violence for victory, war discards all limitations except such as are supplied by the Rights of War. Once begun, war is a law unto itself,--or, in other words, it has a law of its own, which is part of itself. And just in proportion as you seek to moderate it by constitutional limitations do you take from war something of its efficiency. In vain do you equip our soldiers with the best of weapons, or send into the field the most powerful batteries, the latest invention of consummate science, if you direct them all in full career to stand still for an indictment, or other “due process of law,” or, at least, for the reading of the Riot Act. Undertaking to limit the Rights of War by the Constitution, where are you to stop? If the Constitution can interfere with one, it can interfere with all. If the Constitution can wrest from Government the weapons of confiscation and liberation, there is no other weapon in the whole arsenal of war which it may not take also.

Sir, the Constitution is guilty of no such absurdity. It was made by practical men, familiar with public law, who, seeing clearly the difference between peace and war, established powers accordingly. While circumscribing the Peace Powers with constitutional checks, they left untouched the War Powers. They declared, that, in the administration of the Peace Powers, all should be able to invoke the Constitution as a constant safeguard. But in bestowing upon the Government War Powers without limitation, they embodied in the Constitution all the Rights of War as completely as if those rights had been severally set down and enumerated; and among the first of these is the right to disregard the Rights of Peace. In saying this I fail in no sympathy with peace, which I seek and reverence always, but simply exhibit war in some of its essential conditions. Sir, an alien enemy is not admitted even to sue in your courts.

There is a saying of Antiquity, already quoted in this debate, _Silent leges inter arma_,--“The laws are silent in the midst of arms.”[88] Handed down from distant ages, and repeated by successive generations, this saying may be accepted as the embodied result and very essence of human experience. Had it not been true, it would have been forgotten, or at least ceased to be repeated. But it declares a truth to which every war practically testifies, while it is founded in reason and the nature of things, confirmed by centuries as attesting witnesses. The Constitution itself is only a human law; nor can it claim to speak in time of war, and within the sphere of war, more than any other human law.

How vain, then, to adduce against confiscation and liberation, as war measures, an objection derived from the Constitution! and how vain, also, to offer a penal statute, under the Peace Powers of the Constitution, as a war measure! War is war. Better arrest it at once, if it is to be war on the one side and peace on the other,--if our enemies are to employ against us all the Rights of War, while we employ against them only the Rights of Peace. Penal statutes are good for peace, when laws prevail; but in the midst of war, and against enemies, when laws are proverbially silent, they are absurd. What enemy now arrayed in arms can be indicted, or, if indicted, convicted, under the most stringent of penal statutes? Not Jefferson Davis himself. Why, then, painfully construct legislative verbiage? Why new penalties for treason, which, from the nature of the case, cannot be enforced in this hour of need? Why not see things as they are, and do what the moment requires? The War Powers of Congress are ample; but in time of war a mere penal statute against a public enemy is not so much as a pop-gun.

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There are Senators who claim these vast War Powers for the President, and deny them to Congress. The President, it is said, as commander-in-chief, may seize, confiscate, and liberate under the Rights of War, but Congress cannot direct these things to be done. Pray, Sir, where is the limitation upon Congress? Read the text of the Constitution, and you will find its powers vast as all the requirements of war. There is nothing that may be done anywhere under the Rights of War, which may not be done by Congress. I do not mean to question the powers of the President in his sphere, or of any military commander within his department; but I claim for Congress all that belongs to any Government in the exercise of the Rights of War. And when I speak of Congress, let it be understood that I mean _an Act of Congress_, passed, according to the requirements of the Constitution, by both Houses, and approved by the President. It seems strange to claim for the President alone, in the exercise of his single will, War Powers alleged to be denied to the President in association with Congress. If he can wield these powers alone, surely he can wield them in association with Congress; nor will their efficacy be impaired, when it is known that they proceed from this associate will, rather than from his single will alone. The Government of the United States appears most completely in an Act of Congress. Therefore war is declared, armies are raised, rules concerning captures are made, and all articles of war regulating the conduct of war are established by Act of Congress. It is by Act of Congress that the War Powers are all put in motion. When once put in motion, the President must execute them. But he is only the instrument of Congress, under the Constitution.

It is true, the President is commander-in-chief; but it is for Congress to make all laws necessary and proper for carrying into execution his powers, so that, according to the very words of the Constitution, his powers depend upon Congress, which may limit or enlarge them at its own pleasure. Thus, whether you regard Congress or regard the President, you will find that Congress is the arbiter and regulator of the War Powers.

Of the pretension that all these enormous powers belong to the President, and not to Congress, I try to speak calmly and within bounds. I mean always to be parliamentary. But a pretension so irrational and unconstitutional, so absurd and tyrannical, is not entitled to respect. The Senator from Ohio [Mr. WADE], in indignant words worthy of the Senate, has branded it as slavish, and handed it over to judgment. Born in ignorance, and pernicious in consequences, it ought to be received most sternly, and, just in proportion as it obtains acceptance, with execration. Such a pretension would change the National Government from a government of law to that of a military dictator. It would degrade our proud Constitutional Republic, where each department has its appointed place, to one of those short-lived, vulgar despotisms appearing occasionally as a warning to mankind. That this pretension should be put forward in the name of the Constitution is only another illustration of the effrontery with which the Constitution is made responsible for the ignorance, the conceit, and the passions of men. Sir, in the name of the Constitution, which I have sworn to support, and which, according to my ability, I mean to maintain, I protest against this new-fangled effort to foist into it a pretension abhorrent to liberty, reason, and common sense.

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At the risk of repetition, but for the sake of clearness, I repeat the propositions on which I confidently rest.

1. Rights of Sovereignty are derived from the Constitution, and can be exercised only in conformity with the requirements of the Constitution; so that all penal statutes punishing treason must carefully comply with these requirements. This is the case of the bill introduced by the Senator from New Hampshire [Mr. CLARK].

2. Rights of War are under the Constitution in their origin, but outside the Constitution in their execution. In other words, the Constitution confers Rights of War, but sets no limits to them; so that statutes to enforce them are not mere penal statutes, restricted by the Constitution. But these rights belong to a state of war, and necessarily cease with the war. This is the case of the House bill under discussion.

3. All rebels are criminals, liable to punishment according to penal statutes; and in all proceedings against them, as such, they are surrounded by the safeguards of the Constitution.

4. Rebels in arms are public enemies, who can claim no safeguard from the Constitution; and they may be pursued and conquered according to the Rights of War.

5. Rights of War may be enforced by Act of Congress, which is the highest form of the national will.