CONGRESS, U. S. 



359 



to go into the State of Virginia or Kentucky 

 and pass a law taking away $10,000 of prop- 

 erty from a man ; but it can impose a punish- 

 ment that shall take it from him. It may not 

 be competent directly to take the slave from 

 him, but it can impose a punishment which 

 shall take it from him. I have not any doubt 

 about it, and that is what this bill seeks to do." 



Mr. Davis : " Will the gentleman permit me 

 to answer that ? " 



Mr Clark : " Certainly." 



Mr. Davis: "I admit that Congress may au- 

 thorize the punishment of treason, and I admit 

 that it may authorize the punishment of treason 

 prospectively by a forfeiture of property for the 

 lifetime of the criminal; but I deny that to 

 take property and not appropriate the proceeds 

 to the public treasury is a forfeiture at all. 

 Every definition of confiscation and forfeiture 

 is to this effect, that a party charged with the 

 commission of a crime or some legal default 

 of duty, loses his interest and estate in the 

 property, and the property is transferred to 

 the nation or to individuals to remunerate 

 them for the real or supposd loss by the de- 

 fault of the person who is charged with the 

 default. That is forfeiture or confiscation." 



Mr. Clark: "Then as I understand it, the 

 objection is not that we take the negro from 

 the master by way of punishment, but that 

 we do not give him to somebody else, or put 

 him into the public treasury." 



Mr. Davis: "Yes, sir; that is the objection; 

 that you do not sell the negro, do not appro- 

 priate the negro as you would other property." 



Mr. Clark: "Now, I want to submit this 

 question to my honorable friend : suppose we 

 had forfeited a horse or a mule, could we not 

 turn it free?" 



Mr. Davis : " I think not. " 



Mr. Clark : " Could we not turn a horse 

 loose if he was expensive to keep ? " 



Mr. Davis: " You might refuse to appropri- 

 ate him, but your duty and the execution of 

 the idea of forfeiture would require you to ap- 

 propriate that property, to sell that property, 

 and put the proceeds into the public treas- 

 ury." 



Mr. Clark: " Very well. Suppose Congress 

 thought that its duty required him to go free : 

 what then? "Who is to judge of the duty! " 



Mr. Davis : " I will answer that, with the 

 gentleman's permission. The term ' forfeiture' 

 is a legal phrase. It is a term of art. It has 

 as precise a legal significance, and had at the 

 time of the adoption of the Constitution, as the 

 term ' ex post facto, ,' or the term 'bill of attain- 

 der,' or any other technical legal term of art 

 My position is that the term ' forfeiture' neces- 

 sarily imports, as the principal and essential 

 idea, that the property is to be disposed of for 

 the benefit of the party that is injured in fact, 

 or supposed to be injured, whether that party 

 be the United States or individuals. I ask the 

 Senator from New Hampshire to bring me a 

 definition of confiscation or forfeiture, or a 



decision of a court where the proceeds of the 

 property confiscated or forfeited were not ap- 

 propriated. Give me a single example. I say 

 that the essence of forfeiture, the main idea of 

 forfeiture, is not so much to deprive the person 

 in default and charged with crime of property 

 as it is to transfer that property to the public 

 or to individuals who are supposed to be in- 

 jured by the act of the criminal." 



Mr. Clark : " Will the honorable Senator 

 permit me to ask him if he has read this sec- 

 tion?" 



Mr. Davis: "Yes, I have." 



Mr. Clark : " Is the word ' forfeiture ' in it ? " 



Mr. Davis : " Certainly not." 



Mr. Clark: " Then I do not understand the 

 necessity of a definition of forfeiture. It simply 

 provides that his slaves shall go free. Sup- 

 pose it provided that he should stand in the 

 pillory?" 



Mr. Davis: "If you were to present a rose 

 and were not to name it, would it not be a rose 

 still ? I suppose that a thing is a thing, wheth- 

 er you give, it a designation or not. I was 

 very much impressed with the objections of the 

 Senator from Illinois, but I do not propose to 

 go into that question. I plant myself upon this 

 ground : that Congress has no power to eman- 

 cipate a slave under the pretence of forfeiture 

 or of punishing a traitor, or under any other 

 pretence whatever ; that the act of emancipat- 

 ing a slave in a State is not within the powers 

 of Congress." 



Mr. Clark : " There the Senator and I entire- 

 ly disagree. He says Congress has no power 

 to do it. I assert the power of Congress to do 

 it ; but this section does not attempt to forfeit 

 a slave. It sets him free. It declares, as a 

 punishment of the master's offence, that the 

 slave shall go free, and that the owner shall not 

 hold him. That, I think, we have a right to 

 do." 



Mr. Davis: "I think not." 



The motions to amend and strike out were 

 both lost. 



Mr. Sumner, of Massachusetts, offered a sub- 

 stitute to the bill, which he sustained in a 

 speech of much length, and concluded by say- 

 ing relative to the liberation of slaves, thus : 



" The slaves of rebels cannot be regarded as 

 property, real or personal. Though claimed as 

 property of their masters, and though too often 

 recognized as such by individuals in the Gov- 

 ernment, it is the glory of our Constitution that 

 it treats slaves always as ' persons.' At home, 

 beneath the lash and local laws, they may be 

 chattels ; but they are known to our Constitu- 

 tion only as men. In this simple and indispu- 

 table fact there is a distinction, clear as justice 

 itself, between the pretended property in slaves 

 and all other property, real or personal. Be- 

 ing men, they are bound to allegiance and en- 

 titled to reciprocal protection. It only remains 

 that a proper appeal should be made to their 

 natural and instinctive loyalty; nor can any 

 pretended property of their masters supersede 



