368 



CONGRESS, U. S. 



done in pursuance of them is at the same time 

 under the Constitution and outside the Consti- 

 tution. It is under the Constitution in its 

 beginning and origin. It is outside the Consti- 

 tution in the latitude with which it may be 

 conducted. But, whether under the Consti- 

 tution or outside the Constitution, all that is 

 done in pursuance of the war powers is consti- 

 tutional. 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_ a 

 misapplication, or by a 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 fur- 

 ther authorizes it ' to make all laws which shall 

 be necessary and proper for carrying into exe- 

 cution the foregoing powers.' Here are the 

 precise words: 



The Congress shall have power to declare war, to 

 grant letters of marque and reprisal, to make rules 

 concerning captures on laud 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 in- 

 surrections, and repel invasion ; and 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? There may be 

 other parts of the Constitution open to ques- 

 tion ; but there is no room for question here. 

 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 declara- 

 tion of war is of course war, and ' all laws 

 necessary and proper for carrying into execu- 

 tion ' this declaration are called into being by 

 the war." 



Mr. Browning, of Illinois, took up the posi- 

 tions advanced by Mr. Sumner, thus : " I in- 

 tend to notice a few of the propositions of the 

 Senator from Massachusetts. A fair example 

 of his construction of constitutional provisions 

 is found in his commentaries on this clause : 



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. 



"A custom obtained, a right of war was ex- 

 ercised by the British Government of quar- 

 tering soldiers in private houses for their 

 maintenance ; not putting them in hospi- 

 tals, sick and wounded, to be cared for ; 

 but soldiers who were engaged in the active 

 prosecution of war. They quartered them, 

 without the consent of the owners, upon^the 

 families of citizens, to be supported and main- 

 tained as long as the Government chose at the 

 cost of the citizen and without his consent. 

 The Senator, to make his construction of the 

 Constitution good upon other clauses as well 



as this, tortures this into a clause which would 

 prohibit, if it were enforced, the taking of a 

 rebel house to be used for the purposes of a 

 hospital, or the appropriation of the house of 

 any of our own citizens for hospital purposes. 

 Now, sir, if the Senator really believes that 

 the cases he has cited are within the purview 

 of this clause of the Constitution, I certainly 

 shall despair of ever producing any impression 

 upon him by any constitutional argument I 

 could enter into with him. And yet I think 

 it is a fair specimen of his interpretation of all 

 the clauses of the Constitution upon which he 

 relies to establish his claim of despotic power ; 

 I will not say 'slavish ; ' I will not, as was said 

 the other day, ' bandy words,' but I will say a 

 claim of absolute and despotic power for a 

 single department of the Government. 



' The Senator claims that absolute and des- 

 potic power for Congress in the conduct of the 

 war, and calls with something of an air of tri- 

 umph upon those of us who deny it to point 

 him to the limitation which the Constitution 

 imposes upon the war powers of Congress. 

 Mr. President, I have always understood the 

 Constitution of the United States to be a grant 

 of powers. It is true there are limitations. 

 Its framers were not content with simply with- 

 holding grants; but in some cases and that 

 of confiscation was one not content with 

 witholding a grant of power, the convention 

 did proceed to impose express limitations, and 

 negatived the possession and use of any such 

 power. It did so in several instances. But, 

 sir, the Constitution, instead of being a limita- 

 tion upon the powers of Congress in the sense 

 in which the Senator speaks of it, is a grant of 

 powers, and Congress can exercise no power 

 relating to war or peace that is not expressly 

 granted to it by the Constitution. 



"And now, sir, I ask him, when he claims 

 this unlimited and despotic power for Congress 

 on the conduct of the war, to point me to the 

 grant of power in the Constitution, and not 

 content himself by turning with an air of 

 triumph and saying 'gentlemen have pointed 

 to no limitation in the Constitution upon the 

 war power.' -Where is his grant of power? 

 The only place that he professes to find it, I 

 believe, is here : 



Congress shall have power to make all laws which 

 shall tie necessary and proper for carrying into exe- 

 cution the foregoing powers 



the powers previously granted 

 and all other powers vested by this Constitution in 

 the Government of the United States, or in any de- 

 partment or officer thereof. 



"Mr. President, I ask, is it seriously contend- 

 ed that the powers of Congress are one atom 

 greater by the insertion of this provision than 

 they would have been if it had never appeared 

 in the Constitution at all ? 



" The gentleman insists that the Constitution 

 confers upon Congress all the rights of war. I 

 think I do not state him'too largely. He says, 

 in addition to that, that all the powers that are 



