Senator Trumbull on Confiscation

The bill for the confiscation of Rebel proper[ty] being under consideration in the Senate on the 25^th ult.

Mr. TRUMBULL said:  But what seems to embarrass some minds is the difficulty of treating these men both as citizens and traitors. – These rebels in the Southern States occupy just exactly that position.  When an insurrection assumes such formidable proportions as this has, and when armies are arrayed against the Government and against each other, all the writers on international law agree that the Rebels are entitled to be treated as belligerents and as enemies, and we have been treating the Rebels at the south as belligerents during this present war.  We have sent flags of truce to them and taken them as prisoners, and whenever a rebellion becomes of such magnitude as to be entitled to be called a civil war, the parties are to be governed by the ordinary rules of war, while it lasts, and in the prosecution of the same rules as it would observe if in a war with an independent nation.  But that does not prevent the government, after the war is over, from trying as a traitor any person that may be in its hands, and that is the way, I take it, which this rebellion is finally to be put down.  Nobody expects to try all of the 300,000 men now in arms against the Government and hang them though they are undoubtedly traitors.  But we will give them the rights of belligerents, and take them as prisoners of war, and when they return to their loyalty again, those who have been seduced from it we will release them; but the ringleaders of this rebellion, in the instigators of it, the conspirators who have set it on foot, will I trust, be brought to the halter, and never be discharged unless they are discharged by Petit Jury, who shall say they are not guilty of treason.  These are our rights as against these people, but our right as against an enemy is a right of confiscation.  We have now the right to take the person and property of the enemy and destroy it wholly if necessary.  I know that according to modern usage of civilized nations, total destruction does not follow.  I know that in our modern times prisoners who are captured are not put to death or reduced to slavery, and property has not generally been confiscated; but the right to confiscate property real or personal, for there is no distinction, is undoubted.  Look at the condition of things at Port Royal, where all the inhabitants have fled, and left the country desolate.  Is it to remain unoccupied, and a wilderness, or shall we treat it as the European nations did the places on this continent, when savages fled and left the territory unoccupied?  How does the conduct of the people at Port Royal differ from that of the Aborigines?  They leave everything to waste, abandoning the country and we may take possession of that country and apportion it out among the loyal citizens of the Union; and this act of confiscation by which we do this is not a bill of attainder.  Some have objected to the constitutional power to pass this bill, because they say it is a bill of attainder.  It is not a bill of attainder at all.  It does not corrupt the blood of a person; it operates upon his property.  The Supreme Court has expressly decided, in the case of Brown agt. The United States that Congress has authority to pass a confiscation bill.  And if Congress has the power to confiscate the property of an enemy, then an act of confiscation must be something different from a bill of attainder, for the constitution expressly declares that no bill of attainder shall be passed.  Again, Sir, if Congress declares the property of a rebel forfeited – declares his estate forfeited – I want to know who is to controvert that question?  If it is contended that, according to international law, Congress has no right to confiscate the real estate of a Rebel, who is to interpret international law?  There is no common tribunal to which all nations submit their questions.  International law is nothing more than a uniform usage of civilized nations, and each one at last interprets if for himself, running the hazard it is true, of bringing upon himself the condemnation of other nations.  I suppose if a nation should violate a well settled principle of international law, such as violating the rights of an embassador or of a passport it would bring upon itself the condemnation of other nations.  But to confiscate the property of your enemy is not a violation of the principles of international law.  Suppose Russia in these interminable wars going on between that country and Circassia, should take the land of the Circassians and apportion it out among the Nobles of Russia?  And if other nations would not interfere, who would interfere?  Can our courts give a different construction to international law from what a Sovereign Power gives it? – Certainly not?  The courts are bound by international law as the Nation establishes it. – They cannot overrule an act of Congress, because in their opinion it does not harmonize with international law.  They have no such power.  The Supreme Court said in this case of Johnson agt. McIntosh (5^th Curtis, 513), that conquest gives a title the Courts cannot deny.  That is settled by judicial decision.  It does not lie in the power of Congress to settle international law.  It only involves a question of policy and expediency, and that, I think is so manifest with regard to this bill that I need not to discuss it.

The second section of this bill forfeits the claim of any person to any person held in service or labor, if the person so claiming has in any manner engaged in this rebellion, and makes the person owing such service forever, afterward free.  I take it there can be no doubt of the power of Congress to pass this law. – Congress has the power to raise armies and it may draft soldiers.  It may take from my friend from Kentucky, (Mr. Davis) his hired man, whom he has hired at a stipulated price to work upon his farm for the next year.  Right in the middle of the contract, in the midst of his harvest, the Government of the United States may draft that man into its service. – What becomes of the contract?  Can you keep it?  Can the courts decide that you are entitled to the services of this man, and can the Court give them?  No.  Here comes the paramount authority of the United States and takes this man, if it is necessary to use him for the defense of the country.  It is a question of power, and power to do this cannot be questioned.  Des the master hold his slave by any stronger tenure?  You cannot draw a contract so strong by which one person shall give his time and services to another, that the paramount authority of the Government cannot abrogate that contract, and take from your control that person, and bring him into the service of the country.  This can be done also in reference to your own child.  By the laws of nearly every State in the Union, a parent has control of his child till the age of 21 years, but notwithstanding that, if the public necessity requires it, the Government may take your son at 18 years of age, or even younger, from under your control, and bring him into the army of the United States, and into the battle field, in defense of the honor and integrity of the nation.  And does the master hold his slave by any stronger tenure than this?  Why, the person and property and everything connected with your enemy may be taken and condemned and destroyed if it be necessary for the preservation of the country and not only your enemy, but you may take the property of your friends.  We are taxing the loyal men of this country now to the furthest limit in support of this war, and we may call upon them personally to serve in the army.  While we can do all this, can it be pretended that we cannot control the negroes and the men who fight against the Government?  I know this seems to have been the course pursued.  I know that while loyal men have been suffering in person and property, the property of the disloyalists has been untouched.  I know that while my people are to be taxed to support this war, we are not to touch the property of Rebels in arms against the Government.  But it is said that you cannot enforce the laws in these Southern States now.  True, we cannot till the armies advance, and when they do advance, let us take that property, and make it contribute toward the expenses of this war, and save the property of loyal men; and let the men, who have instigated the war pay the expense.

– Published in The Burlington Weekly Hawk-Eye, Burlington, Iowa, Saturday, March 8, 1862, p. 1