CONGRESS, U. S. 



239 



take from the innocent child that he may have 

 left, or from the injured wife of his bosom, the 

 means of support which the framers of the 

 Constitution designed should he left to them, 

 were too familiar with proceedings of 

 they themselves had just before the 

 formation of that instrument been rebels; 

 success made them patriots. It is only from 

 the Constitution that the Senate derives any 

 power on this subject. The Senate can in con- 

 junction with the other House declare war, 

 and they can make rules and regulations for 

 the Government of the land and naval forces ; 

 but they have no power through the forms of 

 law and" by virtue of their legislative character, 

 to transcend the limits of the Constitution, 

 which expressly forbids the confiscation of the 

 estate of any one guilty of treason beyond the 

 traitor's life. There is no exception in favor 

 of the suspension of that provision of the Con- 

 stitution in time of war. Xo department of 

 oment is ever relieved from its obli- 

 maintain the Constitution, which it 

 solemnly swears to do before it enters on the 

 discharge of its duties. The Executive is as 

 much governed by the Constitution in time of 

 war as he is in time of peace. So is the Con- 

 :es. The oath that 



members of Congress take to support the Con- 

 stitution, has in it no exception that it shall 

 not be obligatory in time of war; but, v. 

 looking forward to what those men knew must 

 occur in the history of the Government that 

 they were forming, they declared in the in- 

 strument itself the powers that this Govern- 

 ment should exercise in war as well as in peace. 

 The Senator speaks of his right under the 

 Constitution to shoot down a rebel. > 



aim such right. He cannot go out in the 

 street to-day and shoot down a rebel without 

 being guilty of murder. Xot in his capacity 

 of Senator is he justified in shooting dowr: 

 a ret : .e in the armies of the country, 



then it would become his duty to do so. 



This amendment proposes to repeal a part 

 of a resolution which Congress adopted in order 

 to obtain the signature of the President to the 

 confiscation bilL It was made known to Con- 

 gress, if I am not mistaken in the history of 

 that resolution, and if I am the Senator will 

 correct me it was made known to Congress 

 that that bill could not receive the approval of 

 the President, and could only become a law by 

 the passage of this very joint resolution, a por- 

 tion of which is now proposed to be repealed, 

 and that portion, too, which the President re- 

 quired should be adopted before he would 

 approve it, 



Xow, sir, what is the position in which 

 yon will place your Executive? Well may the 

 Senator from Massachusetts, who feels a deep 

 interest in the passage of this scheme, ask the 

 Senator from Illinois not to load his bill with 

 this proposition.. Unless the President has 

 reread his constitutional duties, unless he un- 

 derstands now differently his constitutional 

 VOL. iv. 19 A 



oath from what he did when he affixed Ids 

 signature to that resolution, he never can sign 

 this bill with this proposition in it. There 

 might have been some excuse for such a propo- 

 sition at that time. Then it was urged on 

 Congress as an auxiliary in the suppression of 

 the rebellion. Xow it cannot be urged for nuy 

 such purpose, 



" I do not intend to prolong this discussion ; 

 I regret that I have felt it my duty to say what 

 I have said; but my object was to call the 

 attention of Senators to it, for I cannot believe, 

 until I see it by a vote, that the Senate has 

 changed its position within the last two years, 

 and that gentlemen read their constitutional 

 powers now differently than they did two 

 - ._ ." 



Mr. Cowan, of Pennsylvania, opposed the 

 resolution, saying: "The Constitution pro- 

 vides that * Xo attainder of treason shall work 

 corruption of blood or forfeiture [of estate], 

 except during the life of the person attainted.' 

 The true question is, whether by any law we 

 can make here, the estates of traitors can be 

 forfeited absolutely and for the fee. Because 

 to repeal the joint resolution of 17th July, 1862, 

 would give tile act it qualifies that operation : 

 if it did not the repeal would be useless and 



Xow I propose to show that from the very 

 nature and necessity of the matter, Congress 

 cannot enact laws of war; to attempt it would 

 be an absurdity. Under ordinary circumstances, 

 it would be enough to say to reasonable men, 

 that one nation or one belligerent could ror 

 make laws of war, because ^he laws of war 

 must bind both belligerents ; and it is mani- 

 festly absurd to suppose that if one belligerent 

 to lay down the law to govern the strug- 

 he other would be bound to obey it. It 

 could only be the law when both agreed to be 

 bound by it ; if they did not, then it would be 

 mere idle proclamation, or, as lawyers say, 

 brutum fttlmeit, 



" Again, even if a foreign nation or nations 

 were to join with the United States in estab- 

 lishing new rules or laws to be added to the 

 international code, Congress would have nothing 

 whatever to do with the matter. 



This can be illustrated in a very simple 

 manner. I have said that the Constitution 

 adopted the international code ready made, by 

 conferring power upon Congress to affix a 

 proper punishment for its violation in certain 

 cases, such as piracy. <tc., to declare war, grant 

 letters of marque and reprisal, and to make 

 rules concerning captures on land and water 

 (that is, what disposition shall be made of 

 prizes. of war, and not what shall be prize of 

 war as has been argued). Here the power of 

 Congress ends and the power of the President 

 and Senate begins. The President appoints, 

 and the Senate confirms ambassadors to foreign 

 courts; they also make treaties; and lastly, 

 the courts decide all cases arising under the 

 laws of nations, especially prize cases. 



