278 



CONGRESS, U. S. 



the ordinary mode of judicial proceeding, in 

 consequence of the rebellion, who, during its 

 existence, should take up arms against the 

 United States, or in anywise aid or abet the re- 

 bellion ; this forfeiture to be enforced against 

 property in the rebellious districts through the 

 military power, and against property in the 

 other portions of the United States in which 

 the judicial power is not obstructed by the re- 

 bellion, through the courts ; and the proceeds 

 of the property of each individual seized and 

 forfeited, subject to the just claims of his loyal 

 creditors, to be held for the benefit of loyal citi- 

 zens despoiled of their property by the rebel- 

 lion, and to defray the expenses incurred in its 

 suppression. The bill also forfeited the claims 

 of all rebels, and those who gave them aid and 

 comfort, to the persons they held in slavery, 

 declared the slaves thus forfeited free, and made 

 it the duty of the President to provide for the 

 colonization of such of them as might be will- 

 ing to go, in some tropical country, where they 

 might have the protection of the Government, 

 and be secured in all the rights and privileges 

 of freemen. The property belonging to traitors, 

 or those giving them comfort, who might be 

 convicted by the judicial tribunals, was to be 

 forfeited on their conviction ; the realty for life, 

 and the personal property for ever." 



Mr. Trumbull thus stated the principles in 

 accordance with which this bill had been 

 framed : 



. " The Constitution declares that Congress 

 shall have power 'to declare war,' 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, sup- 

 press insurrections, and repel invasions,' and 

 ' to make all laws which shall be necessary and 

 proper for carrying into execution the foregoing 

 powers.' Acting under these grants of power, 

 Congress has provided for bringing into service 

 more than half a million of men who are now 

 engaged in suppressing the insurrection ; and 

 has, to some extent, made rules for the govern- 

 ment of these forces, which, as far as they go, 

 are obligatory on them ; but in the absence of 

 any regulation as to how the army is to be used 

 in suppressing the insurrection, its commander 

 would be at liberty to make such use of it, con- 

 sistent with the rules of civilized warfare, as 

 he believed most conducive to the service of 

 the state, and best calculated to secure the end 

 for which it was called into being ; upon the 

 principle that every man intrusted with an em- 

 ployment, or duty, is presumed to be invested 

 with all the power necessary to enable him to 

 perform the service. Hence the authority of the 

 army in the suppression of an insurrection to 

 seize, imprison, or shoot the insurgents, to des- 

 olate the country they occupy, to seize and ap- 

 propriate for the time being their property, and 

 free the persons they hold in bondage, is as 



ample and complete under the Constitution as 

 that of a court in peaceful times to arrest, im- 

 prison, try, and execute a murderer. 



" That the judicial tribunals have no right or 

 power to interfere with the army in the exer- 

 cise of its powers in suppressing an insurrec- 

 tion, either by issuing writs of habeas corpus or 

 otherwise, is apparent, from the fact that the 

 only ground on which the military authority 

 can be invoked at all, is, that the judicial tribu- 

 nals, being overborne, are incompetent to the 

 task. The judicial authority ceases at the very 

 point where the military begins. It may be, 

 and often is, a delicate question to determine 

 this particular point, and decide in what local- 

 ities the military, and in what judicial author- 

 ity should have sway. This the Constitution 

 has left to be provided for by Congress, by de- 

 claring that it shall have authority to call forth 

 the militia to suppress insurrection ; and Con- 

 gress, soon after the adoption of the Constitu- 

 tion, passed an act authorizing the President to 

 call forth the militia for that purpose, when- 

 ever the laws of the United States were ob- 

 structed by combinations too powerful to be 

 suppressed by the ordinary course of judicial 

 proceedings ; and by an act passed at the first 

 session of the present Congress, the President 

 is authorized, in certain cases, to declare the 

 inhabitants of a State, or part thereof, in a state 

 of insurrection, and make use of the army to 

 suppress it. The responsibility, therefore, of 

 determining when and in what districts of the 

 United States the military power may be used 

 to suppress a rebellion, is devolved by Congress 

 on the Executive, and when the military power 

 is called into requisition, the judicial authority 

 can no more interfere with its action, than can 

 the military with the judicial tribunals in time 

 of peace. Under certain circumstances either 

 may be called to the aid of the other. The 

 courts sometimes make use of the military in 

 aid of the execution of their powers, and the 

 military would doubtless have like authority to 

 make use of the aid of the judicial tribunals in 

 districts under insurrectionary control, should 

 they be deemed a proper means by the military 

 power to aid in suppressing the rebellion. In 

 each case the power called to the aid of the 

 other, whether it be the military in time of 

 peace to the assistance of the judicial, or the 

 judicial in time of rebellion to the assistance 

 of the military, would be subordinate to the 

 power making the call." 



. The Constitution defines the offence of which 

 the Southern people have been guilty, and pre- 

 scribes the extent of their punishment. This 

 fact seems to be overlooked by Mr. Trumbull. 

 The bill was referred to the Committee on the 

 Judiciary. On the same day, in the House, 

 Mr. Gurley, of Ohio, offered the following reso- 

 lution, which was adopted : 



Resolved, That the Judiciary Committee be request- 

 ed to inquire if a telegraphic censorship of the press 

 has been established in this city ; if so, by whose 

 authority and by whom it is now controlled : to re- 



