reign to take the persons and confiscate the property of the enemy wherever found, and the mitigations of the rule which the humane usages of modern times have introduced. With all my reverence for the great magistrate who delivered the opinion of the court, I must be permitted to say, that usage is itself the principal source of the law of nations, and that these humane usages have become the rules of war in Christian States. The law of nations, says Bynkershoek, is only a presumption founded on usage (De foro Legatorum, chap. 18, sect. 6).

It is suggested, that, if the confiscation of private property violated the law of nations, the courts could not overrule the interpretation of that law by the political department of the Government, and that no other power could intervene. Possibly this may be so; but surely it is not intended that we shall violate the law of nations in dealing with our subjects, because there is no appeal or redress for the subject. It is in the exercise of irresponsible power that the nicest sense of justice, and the greatest caution and forbearance, are demanded. In suppressing a rebellion so atrocious, marked by such fury and hate against a Government felt only in its blessings, forbearance seems to us weakness, and vengeance the noblest of virtues; but, in our calmer moments, we hear the Divine Voice: "Vengeance is mine; I will repay."

I conclude what I have to say upon this branch of the subject with the remark, that, in substance and effect, the bills before the House seek the permanent forfeiture and confiscation of property, real and personal, without the trial of the offender. I am unable to see how, under the Constitution, that result can be reached.

The temporary use of property in districts under military occupation, and of estates abandoned by their owners, rests upon distinct principles, which it is not now necessary to consider. We have only to remark, in passing, that the use of such property and the rule in such districts can be provisional only, waiting the regular action of the State governments, and in no way impairing their permanent powers. Upon this subject, I intend, at some future day, to trouble the House with a few suggestions.

I proceed to the question of the deepest interest involved in this discussion, — the emancipation of slaves in the "seceding States." There is no subject on which our feelings are so likely to warp our judgment; in which calmness is so necessary and so difficult, and declamation so easy or so useless. The general principles stated in relation to the power and duty of Congress as to confiscation are applicable to the subject of emancipation.

On the question of policy, the plausible and attractive argument is, that the only effectual way to suppress rebellion is to remove its cause. The position, when thoroughly probed, is, not that the National Government has not the power to put down the rebellion without resort to emancipation, but that the continued existence of slavery is incompatible with the future safety of the Republic. This plainly is not a question of present military necessity, but one affecting the permanent structure of the Government, and involving material changes in the Constitution. This can be done in one. of two ways: in the method the Constitution points out; or by successful revolution on the part of the free States, and the entire subjugation of the slave States.

No man can foresee to-day what policy a severe and protracted struggle may render necessary. It is sufficient to say, that into such a war of conquest and extermination the people of the United States have no present disposition to enter. They have too thorough a conviction of the capacity of the Government to subdue the Rebellion by the means the Constitution sanctions, to be desirous of looking beyond its pale.

Upon the legal aspect of the question, it may be stated, as a general proposition, that Congress, in time of peace, has no power over slavery in the States. By that is meant the institution itself; for the National

Government may, in my judgment, forfeit the right of the master in the labor of the slave, as a penalty for crime of which the master shall be convicted; and, when so forfeited, it may dispose of the right as it sees fit. Nor is there any intrinsic difficulty in the use of this species of property under the right of eminent domain. If the Government were constructing a fort or digging an intrenchment, it might hire this species of labor, or, if necessary, take it, as it might other labor or property, giving reasonable compensation therefor.

The provision as to the return of fugitives from service cannot be deemed an exception to the general rule before stated; for the provision applies to escapes from one State into another, and not to escapes within the State. Of which we may remark, in passing, that, as to the former class, the power of the Government is strictly civil, to be executed by judicial process; and that, as to the latter, the National Government, in time of war or peace, has no concern.

Nor would an act of the National Government liberating the slaves within a State, having the consent of the

State and providing compensation for the masters, militate with the rule. Conventio vincet legem. The consent of the State would relieve the difficulty.

But the question arises, how far the existence of the Rebellion confers upon Congress any new power over the relation of master and slave. Strictly speaking, no new power is conferred upon any department of the Government by war or rebellion; but it may have powers to be used in those exigencies which are dormant in time of peace. Such, for example, are the power to call out the militia (art. 1, sect. 8), to try by martial law cases arising in the militia (Amendments, 5), to suspend the writ of habeas corpus (art. 1, sect. 9), to quarter troops in private houses (Amendments, 3); but, when the National Government is called to the stern duty of repressing insurrection or repelling invasion, may not new power over the relation of master and slave be brought into action? Such, I think, is the result.

A plain case is presented by slaves employed in the military and naval service of the rebels. If captured, they may be set free.

The Government may refuse to return a slave to a master who has been engaged in the Rebellion, or suffered the slave to be employed in it.

It may require the services of all persons subject to its jurisdiction by residing upon its territory, when the exigency arises, to aid in executing the laws, in repressing insurrection, or repelling invasion. This right is, in my judgment, paramount to any claim of the master to his labor, under the local law. There might be a question of the duty of the slave to obey; but the will of the master could not intervene. His claim, if any, would be a reasonable compensation for the labor of his slave.

But, though the power may exist, there is, with prudent and humane men, no desire to use it. Nothing but the direst extremity would excuse the use of a power fraught with so great perils to both races; and the glorious triumphs of our arms, evincing our capacity to subdue the Rebellion without departure from the usages of civilized warfare, have indefinitely postponed the question.

There is one other exigency in which the relation of master and slave must give way to military necessity. If the commander of a military district shall find that the slaves within it, by the strength they give to their rebellious masters, - by bearing arms, or doing other military service, or acting as the servants of those who do, — obstruct his efforts to subdue the Rebellion, he may deprive the enemy of this force, and may remove the obstruction, by giving freedom to the slaves. This, it is apparent, is not a civil or legislative, but a strictly military right and power, springing from the exigency, and measured and limited by it, to be used for the subduing of the enemy, and for no ulterior purpose. If the commander-in-chief and the generals under him shall observe faithfully this distinction, the use of the power ought to be no just ground of complaint. If, in consequence of the protraction of the war, the effect of the use of this power should be to put an end to slavery in any of the States, or to weaken and impair its force, we may justly thank God for bringing good out of evil.

In my judgment, it would be impracticable for the Legislature, even if it had the power, to anticipate by any general statute the exigencies or prescribe the rules for the exercise of this power. The Legislature and the people will be content to leave the matter to the sound