While the bill providing for Confiscation and Liberation was in the hands of the President, and before its signature, it was understood that he objected to it on certain grounds, one of which was that under it real estate was forfeited beyond life. In point of fact, the President had already drawn up a Message stating his objections to its becoming a law.[104] In anticipation of these objections, a joint resolution was adopted, containing the provision, “Nor shall any punishment or proceedings under said Act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.”[105]
Mr. Sumner did not sympathize with the objections, but, in his anxiety to secure the approval of the Act as a step to Emancipation, he did not hesitate to support the joint resolution.
July 16th, he said:—
MR. PRESIDENT,—Our country is in peril. This is much to say, but it must be said, and we must all govern ourselves accordingly. More than ever before, the time has come for an earnest, absolute, controlling patriotism. This is the lesson of the day. In presence of such peril, and under the weight of such duties, there is no pride of opinion which I would not freely sacrifice, nor can I stand on any order of proceeding. I ask no questions, and I make no terms. Show me how an important measure can be secured, which I think vital to the country, and I shall spare no effort to secure it.
Rules are for protection, for defence, and to facilitate business. If in any way they become an impediment, they cease to perform their natural office, and I can easily abandon them, especially when my country may suffer. Therefore, Sir, I am only slightly impressed by the argument that our information with regard to the President is informal. It is enough that a measure we all have at heart as essential to national life may fail to receive his constitutional approval, unless modified in advance by supplementary statute. Anxious for this measure, I think how it may be secured, rather than how the opinions of the President have become known to us.
Of course, Sir, I cannot share the doubts attributed to the President. To me they seem groundless and fallacious. Waiving all question of their accuracy as an interpretation of the Constitution, even in criminal proceedings, I cannot forbear saying that they proceed on the mistaken idea of a procedure by indictment and not by war, subjecting the country to all the constraint of a criminal trial when the exigency requires the ample latitude of war. If soldiers are sent forth to battle, if fields are occupied as camps, and houses are occupied as hospitals, without permission of the owners, it is under the War Powers of Congress, or, in other words, the belligerent rights of this Government. And it is by virtue of these same belligerent rights that the property of an enemy is taken. Now, if he be an enemy, is there in the Constitution any check upon these rights? Whether you choose to take property for life or beyond life, the Constitution is indifferent; for all constitutional limitations are entirely inapplicable to belligerent rights. There are express words ordaining that you must not “abridge the freedom of speech or of the press,” or “infringe the right of the people to keep and bear arms”; nor can you take “life, liberty, or property, without due process of law.” And yet, wherever your armies move, and elsewhere too, you do all these very things in the exercise of acknowledged belligerent rights. As plainly, the right of confiscation, whether for life or beyond life, is also yours.
Unhappily, Sir, our country is engaged in war,—terrible, relentless, unquestionable war,—and if we would not discard success, it must be prosecuted as war, in the full exercise of belligerent rights. If we were dealing with sporadic cases of treason, with simple sedition, or with a mere outbreak, our process would be limited by the Constitution; but with an enemy before us, lashed into fury and led on by “Até hot from Hell,” where is the limit to the powers to be employed? I remember that Burke, in his great effort on Conciliation with America, says: “It looks to me to be narrow and pedantic to apply the ordinary ideas of criminal justice to this great public contest; I do not know the method of drawing up an indictment against an whole people.”[106] But when, on account of a provision in the Constitution obviously intended only for the protection of the citizen, you refuse to take the property of an enemy in open war, then do you substitute the safeguards of criminal justice for war, thus voluntarily weakening your armies and diminishing your power. I am tempted to say, that, in devotion to the form of the Constitution, you sacrifice its substance. I might say, that, in misapplying the text of the Constitution, you sacrifice the Constitution itself.
Pardon me for seeming, even briefly, to argue this question. I do it only because I would not have my vote misunderstood. I shall support the proposition, not because I concur with it, but because its adoption will help secure the approval of the bill that has so much occupied the attention of Congress and the hopes of the country.
Mr. President, I have never, from the beginning, disguised my conviction that the most important part of the bill concerns Emancipation. To save this great part, to secure this transcendent ally, to establish this assurance of victory, and to obtain for my country this lofty crown of prosperity and glory, I willingly abandon all the rest. The navigator is called sometimes to save his ship by casting part of the cargo into the sea.
But whatever the difference between the President and Congress, there are two points on which there is no difference. Blacks are to be employed, and slaves are to be freed. In this legislative proclamation the President and Congress will unite. Together they will deliver it to the country and to the world.