and the Union of these States. No man can say that either of them is friendly to the rebellion. They have both, publicly and privately, on all occasions denounced the rebellion, and they have by the most gallant achievements in the field shown that they are devoted to the flag and to the Union. That such men as these should be seized and imprisoned without warrant and without trial is a disgrace to the American people. That Lieutenant Governor Jacobs should be thus arrested and taken away and imprisoned, so that none of his friends in the State know where he is, is certainly disgraceful to those who have thus treated him. We desire to know by whose authority these gentlemen were arrested; we desire to know the offenses laid to their charge; and we desire further, and I know that these two noble and gallant soldiers desire, if they have committed any offense, to be brought face to face with their accusers and to be allowed to answer the charges against them. All that their friends ask for them is that before they shall be deprived of their liberty they shall know the cause, and that they shall be brought before some legally-constituted tribunal and there tried in the manner prescribed by the Constitution and laws of their country. There is no man in America, I trust, who desires that these citizens shall languish in prison if they are innocent; and on the other hand, if they have violated any law of the land, there is none who desires them to be free from that punishment which the law inflicts, provided be inflicted in a law

ful manner.

I am amazed that the Senator from Massachusetts [Mr. WILSON] objects to the taking up of this resolution. There is certainly nothing in it to which a man who loves civil liberty should object. Why is it that you desire that citizens of their position and standing, who have shed their blood on many battle-fields in this strife under the Union flag, should be deprived of their liberty and their rights, and one of them taken whither his friends know not? Why do you desire that the President, the Commander-in-Chief of the Army, should not answer such a resolution as this, and say to the Senate where they are and for what they have been arrested?

I say again that I am amazed that the Senator from Massachusetts, or any other Senator, should object to the passage of this resolution. I hope it may be passed, as it certainly ought to be. The Senate owes it to itself to pass the resolution, and let the President answer and give us the information if he has it. It may be, and I believe the fact is, that some of the subordinates of the President have done this thing, perhaps without his knowledge or connivance. If so, let the matter be investigated, and let those guilty violators of the law be punished, for whoever arrested these gentlemen and treated them in this way is certainly a guilty violator of the laws of the land.

It was not my purpose to say a word on this subject, and I should not have said anything now if it had not been for the indication which was manifested to give the resolution the go-by, and not allow it to be passed.

Mr. WILSON. I assure the Senator from Kentucky that I have no objection to acting on his resolution, other than this: we have now pending before us what I regard as a very important bill, to make free the wives and children of the soldiers of the Republic; and I do not wish to displace that bill, which is the order of the day, by taking up this resolution, which may as well be taken up at any other time. That is the reason why I made the objection. Now, however, as the Senator has made his motion, and it is before us, I am ready and willing to take the vote on the resolution; but I propose first to amend it by inserting after the word "Senate" the words, "if in his judgment not incompatible with the public interest." I have no doubt that the President will be disposed to regard the request of the Senate; but it may be that the public interest may require that all the facts should not go to the country. If the resolution be taken up and amended in this way, I shall have no objection to its passuge.

The PRESIDENT pro tempore. The question is on postponing the prior orders and proceeding to the consideration of the resolution indicated by the Senator from Kentucky.

Mr. WILSON. If there be no objection, let

the order of the day be passed over informally to take action on the resolution.

Mr. POWELL. I am willing to do that; I do not wish to displace the order of the day; and I withdraw the call for the yeas and nays, if I am at liberty to do so.

The PRESIDENT pro tempore. The yeas and nays were ordered by the Senate; the order may be withdrawn by unanimous consent. ["Agreed!"'] The call is withdrawn. The question is on the motion of the Senator from Kentucky.

Mr. HOWARD. I do not wish to occupy the time of the Senate on the motion now before it more than a moment; but I must confess that I see no necessity for the passage of the resolution of the honorable Senator from Kentucky. What would he have us do? Does he propose to convert the Senate into a sort of inquisition to use its power in the enforcement of inquiries into matters which pertain, I may say exclusively, to the Executive? Does he intend to use the power of this body to make inquiry into the nature of criminal prosecutions that have been instituted or that may hereafter be instituted against persons offending against the military laws of the United States, or against persons who are in league with the enemy, against spies or any other class of public enemies?

It seems to me that the honorable Senator from Kentucky may very properly take it for granted that there must be some prima facie evidence of criminality against these gentlemen whose names appear in his resolution. He can, I think, without any extraordinary stretch of his charity, believe that the military authorities who have occasioned these arrests have proceeded upon reasonable and sufficient grounds. He cannot presume, as it appears to me, although he seems so to presume, that these arrests are entirely without cause, flagrant and wanton. And, sir, I object to the taking up of such a resolution as this, for the very reason that it is expending the time of the Senate upon a subject-matter in which we can do nothing, and in reference to which I do not understand that the Senator from Kentucky has offered any bill, or is preparing to bring in any measure of legislation to remedy the evil of which he complains. I move, Mr. President, if it be in order, to lay the whole subject on the table.

The PRESIDING OFFICER, (Mr. FOSTER in the chair.) The Chair would suggest that there is nothing now to lay on the table, the motion being to take up the resolution. The resolution itself is not yet before the Senate.

Mr. HOWARD. Very well, sir.

Mr. GRIMES. Mr. President, a gentleman who comes here accredited from the State of Kentucky as the representative of that State, rises in his place and says that two eminent men of that State have been arrested, he knows not by whom, he knows not for what purpose they were arrestd, and he knows not whither they have been taken; and as a representative of that State he asks the Senate of the United States to institute an inquiry that it may be learned by the people of that State what disposition has been made of them. Now I say, sir, that it is the right and the duty of this Senate to give to the Senator from Kentucky the answer that he demands. We are not going to institute judicial proceedings, as the Senator from Michigan seems to indicate; we are not going to pursue any illegitimate or improper inquiry. The Senator from Kentucky representing his State says that two men in that State have been arrested, and he knows not for what they have been arrested. He says that they have been spirited away, and he knows not whither they have been carried. Is it not our duty to make some inquiry in regard to a question of that kind? Are we going to be entirely indifferent to the liberties of the people of this country? I am not sent here, Mr. President, for the purpose of sitting with my arms folded in silence and in quiet, and giving no vote in favor of an inquiry of this kind. I have no doubt that when the inquiry shall be pursued properly there will be a perfect vindication of the officers of the Government; I have no sort of question that these men were properly arrested, and after the statements that have been made here by the Senator from Kentucky, I am anxious that his resolution shall be adopted in order that they may be thoroughly vindicated, and I am satisfied that the inquiry will vindicate them; but if it be otherwise, if these men have

been improperly arrested, then it is the duty of the Senate to say so, and to put its seal of reprobation upon those who have thus improperly arrested them.

Mr. President, I trust that this Senate is not going to sit quietly by and, when charges are made here by a Senator representing a State, of arbitrary conduct on the part of any of the officers of this Government, refuse to make any inquiry because it is claimed that to do so would be a proceeding of a quasi judicial character. It is one of the prerogatives of this bedy to protect the liberties of the people of the States and the rights and interests of the States themselves.

Mr. DAVIS. Mr. President, I am well acquainted with both of the gentlemen who have been arrested: they are both strictly and eminently loyal to the country and to the Government; they both have commanded regiments in the service of the United States in the war to put down this rebellion, and Colonel Wolford served out the term of three years. In the course of his service he has been in upward of three hundred battles and skirmishes; he has received six wounds. He has by his command, the first Kentucky regiment of cavalry, captured more prisoners than any other command of the same strength in the war. He has rendered more service, and successful service, in enlisting soldiers in the Union Army than any man in the State of Kentucky, or, I believe, in the United States. There is no man more firm or unyielding in his support of the war, or in his opposition to and determination to put down this rebellion, than Colonel Wolford. I am at a loss myself to know where he is. I met with a gentleman who was with him in the car between Lexington and Covington, after his arrest, and when he was taken on in the custody of soldiers. He was not allowed to communicate with counsel; he was not allowed to communicate with a friend; he was not allowed to interchange a solitary word with any individual upon the car. I have been informed since that he is in utter ignorance of the cause of his last arrest, and that there have been no charges or complaints of offense or crime made or filed against him to justify that arrest. When he was arrested, he had been elected an elector for the State of Kentucky, for the State at large, in the presidential election. He was arrested without charge, without offense, much less without warrant or process, dragged forcibly from his residence, deprived of the opportunity of performing his legal office as an elector of the State of Kentucky, in casting the vote of that State; carried into imprisonment, where he is now secretly held, and no man, as far as I can learn, has been informed of any charge of any offense against the laws or against military rule or military orders that he has committed.

Now, sir, in relation to Colonel Jacobs: he raised a regiment of mounted men and served twelve months in the war. Both of them have served out their time and have received honorable discharges. Colonel Jacobs was in many battles; he was wounded two or three times; his blood flowed in this cause to support the authority of the Government of the United States. In addition to holding the office of colonel and discharging its duties with signal courage and abil ity on the battle-field, he also held the civil office of Lieutenant Governor of that State, and as such he presides over the Senate of the State of Kentucky. That Legislature is to convene on the first Wednesday in January. As my colleague has well remarked, this man was arrested under the same circumstances that Colonel Wolford was. He was dragged from his residence, he was denied all communication with friends or counsel or countrymen, and has been spirited away, and now is, nobody in Kentucky knows where.

That men of the character of these two gentlemen, holding their official positions, faithful and true to the Government and to the war, and who have rendered such signal and eminent service in the war, should be arrested under such circumstances, is one of the strangest among the strange features of this strange day; and, sir, when their case is brought before the Senate of the United States by resolution, in the terms offered by my colleague, simply asking of the Executive for information in relation to their arrest, by whose authority it was made, the charges or offenses that they had committed, their whereabouts at this time, that the Senate should pause an instant in

passing a resolution asking for such information, is stranger than the arrest and the imprisonment themselves. Sir, if any two negroes in America were arrested under the same circumstances and in the same manner, and were held in secret confinement as these two eminent men and patriots have been and still are, this Senate, a majority of its members, at least, would be glowing with the most virtuous indignation at the enormity of such acts, and would denounce, as they ought to denounce, any attempt to suppress all information in relation to the fact of arrest, the cause of arrest, and the place where the persons arrested were still held in imprisonment.

Sir, I trust that the resolution will pass. In our party zeal, in our efforts to sustain or to oppose this Administration, are we to lose all sense of human right, and of the liberty of the citizen? Are we to become demented by passion, or prejudice, or fury? Sir, a case could not be presented on the part of any individual, however humble, whether black or white, imprisoned under such circumstances, asking information in the terms of this resolution, that I would not feel it my especial and sacred duty to vote for. In asking for the passage of this resolution, we are not asserting the liberty of these two citizens alone, nor that of the white man alone, but we are attempting to uphold and to assert the universal liberty of the people of the United States. It would be monstrous, one of the strangest and most iniquitous exhibitions that the world has ever presented, if men arrested as these have been are still to be held in imprisonment, and no information, no light whatever, be thrown upon their arrest, its cause, or the place of their imprisonment. I hope that the resolution will pass.

Mr. HOWE. Mr. President, I beg leave to say that for one I do not believe the universal liberty of the citizens of the United States depends at all upon a resolution of the Senate, and therefore I do not believe with the Senator from lowa [Mr. GRIMES] that it is any part of our duty as a Senate to vindicate the liberty of the citizens of the United States. I understand that the liberties of the citizens of the United States are already provided for and guarantied by the Constitution of the United States and the laws which have been passed in accordance with that Constitution, and I believe that those liberties are entirely secure under those guarantees, and therefore I do not think that the passage or the defeat of this resolution will add anything to or abstract anything from the measure of the liberty we enjoy. Nevertheless I entirely concur in the advice that is given by the Senator from lowa, and by the Senator from Massachusetts, that this resolution had better be passed since we are invited to pass it-not because any citizen of Kentucky will be safer after it is passed, or any citizen of any other State, but because it is said that certain citizens of the United States have been arrested and certain friends of theirs would like to know, they tell us, why they have been arrested, and if the resolution be amended as suggested by the Senator from Massachusetts, and the President of the United States, supposing he has any information upon the point, is notified that he is to consult the public interests before giving that information, I am entirely willing that he should be called upon to inform the friends of these gentlemen what is the occasion of their arrest.

It is said that that arrest is contrary to law. If it be so, what resolution of the Senate will make the arrest any more illegal? I do understand that the President of the United States, and every officer commanding in any department of the service, civil or military or naval, is bound by the laws of the United States; that he is a mere agent of the people acting within the sphere prescribed to him by existing law, and when he steps outside of those limits he is without any protection in whatever he does, just as much as if any one of ourselves, or any private citizen, did an act which transcended the laws of the land. But it is not for us to vindicate or enforce those laws. It is for us, in conjunction with other tribunals, to enact them. When they are once enacted, it is for very different and distinct tribunals to enforce and to apply them; and if we undertake to do these things, if we undertake to vindicate instead of declare, to protect by specific action the liberties of the citizen instead of declaring what shall be the liberties and the rights

of the citizen, we are usurpers as plainly and as clearly as it is said that those who have made these arrests are usurpers. If, therefore, it were conceded that these arrests were illegal, I really think it would not become the Senate of the United States to call upon the parties making the arrests to state why they had done it, or state the fact of their having done it, for thus we should make them criminate themselves if we had the power to enforce obedience to our resolution, and I do not understand that our laws require any man to criminate himself, either upon a resolution of the Senate or upon an order of a court.

But, because I do not believe this resolution if passed will call for any confession of guilt whatever, and because I am entirely willing that the friends of these gentlemen should be told the cause of their arrest, I think, as has been said by other Senators, we had better let the resolution pass. I believe myself it would have been vastly better if the country had been told specifically in the case of every arrest what the cause of it was. I do not assert that positively, because I do not know that it would not have resulted in laying before the country the story of so much conspiracy, the story of so much plotting, the story of so much of the most cowardly kind of treason that the world has ever witnessed, as would have done more to appall the country than all the open and declared treason, all the avowed and armed treason which we have been called upon to witness. There would have been just that mischief. That it would have laid before the country a vast amount of rottenness I do not doubt, from the little I know myself; but whether it was better to expose the whole or to keep part of it back, I shall not undertake to say; but believing in the sobriety, the wisdom, the integrity, and the purity of the American people as I do, and as all men ought to do after witnessing their action during the last summer, I am inclined to think that it would have been better to tell the whole story and let them see the truth for themselves. I think they would have known how to meet it and deal with it. We have not done this heretofore. My own private opinion is that we had better begin to do it now. So I think it is better to pass this resolution.

Mr. HENDERSON. Iiise merely to express the wish that this resolution may be passed.

The PRESIDING OFFICER. The Chair will suggest that the resolution has not yet been taken up.

Mr. HENDERSON. Well, that it may be taken up and passed, I desire simply to make a remark. Either these two gentlemen have been properly or improperly arrested, as was very appropriately stated by the Senator from Iowa. If they have been arrested for cause, I apprehend that the President will be perfectly able to send the reasons to the Senate; and in doing that he will be able to satisfy the members of this body who are now dissatisfied, and in all probability a large number who are dissatisfied in the country in consequence of arrests for which no reasons are given.

Then, Mr. President, there can be no harm provided the arrests bave been made for cause; but suppose, on the other hand, that these arrests have been made without any cause. I apprehend that the Senate has some right to speak; and if it should so turn out, as I have no idea it will turn out, because I do not believe these arrests have been made without sufficient cause, let us remember that the very same rule may be applied to any one of us tomorrow. If these gentlemen have been arrested without cause may not I be arrested, may not any member of this body be arrested and thrown into prison and there kept during the residue of this war? Why not?

sands of arrests have been made during this war that have done the Union cause an injury, and have done no good whatever. I am satisfied of it. Men are taken and thrown into prison, kept there perhaps for two or three weeks, and their friends and relatives create a very great disturbance in their respective neighborhoods, allege the fact that they have been Union men all the time, and that without cause or reason they have been thrown into the military bastiles of the country. It creates very great sympathy for the party who is imprisoned, and it does the Union cause, in the long run, no good whatever. They are generally kept for a short time and turned loose again, and then they are lionized in the community to a very great extent.

In my impression, the best way to treat the resolution, now that it is before us, is to pass it, and let us ascertain the cause of these arrests. As I have stated, it can do nobody any harm, and it may do a great deal of good.

Mr. President, if there is one thing throughout this broad land to-day that is interfering in a moral point of view with the prosecution of the present war, it is a belief on the part of a great many people that unlawful, illegal, and improper arrests are being indulged in to too great an extent. I do not say that such is the case, but we know that there is a great feeling pervading the country on that subject and in that direction. Now, I think that it is high time, it is the proper time, for us to look into it. It certainly cannot offend the President to ask him to give his reasons for the arrests. These are not men taken in arms; they are men who have performed distinguished service in defense of the country; they are citizens living at home, and one of them is an elector who has been chosen by his State to cast her electoral vote, and I presume in all probability he has not been able to cast the electoral vote of the State. Mr. POWELL. That is so.

Mr. HENDERSON. I did not vote for General McClellan, and were it to be done over again I should vote as I did before, for Mr. Lincoln; but, sir, Kentucky had a right to vote for George B. McClellan if she desired to do so. Now, although every member of this body knows that it is not the desire of the Administration to arrest any man to prevent his casting his vote for its opponents, such charges may be made. I am satisfied that no such feeling actuates the President, and I further feel almost convinced that the President has not ordered these arrests, but they have been made by the military authorities without his knowledge and without his consent. Now, sir, would it not be better, under the circumstances, to let the resolution pass, and let us understand why these men have been arrested?

Mr. POWELL. Mr. President, it was not my purpose to take up the time of the Senate, and I shall now say but a word or two. I desire to return my thanks to the honorable Senator from Iowa for the speech that he has made. The speech of that Senator, in my judgment, was certainly well-timed, and he spoke as a Senator of the United States should speak when the constitutional and civil liberties of the people are involved. I would, sir, that the feelings which animate that Senator animated this whole body; and on the part of my State, and of these two distinguished and gallant soldiers who now languish in prison, I thank him for his speech.

But, Mr. President, I was about to say with reference to the honorable member from Michigan, as well as to the one from Wisconsin, that information of that sort is necessary in order to satisfy the Senate whether it is not important, if the laws as they are now upon the statute-book are not sufficient to meet the exigency, to provide for it by further legislation. We cannot know what the mischiefs are in any other way as authoritatively as we may know it when the President shall send an answer to a resolution of this description. Suppose the President states a wholly unjustifiable cause for keeping these parties in prison, will it not be the duty of the Congress of the United States, the Senate being a component part of the legislative department, to pass a law to cover such cases in the future? And if the President-- I mention it by way of supposition, hypothetically, with no idea that the President will ever be guilty of an offense of that description-if the President shall think proper to violate such a law, then the Constitution furnishes a mode by which the people of the United States can redress the wrongimpeachment, trial, conviction, and dismissal from office.

Mr. President, it is very strange that at this time of day, after we have been, up to the beginning of this rebellion, the freest people upon the face of God's earth, protected by every guarantee deemed at all material to secure individual liberty, we should be seriously disputing whether it is in the power of the Executive of the United States, or anybody professing to act under the authority of the United States, to seize a citizen, and incarcerate him, and punish him without trial. Why, sir, if such a doctrine was announced in the House of Commons, in England, or in the House of Lords, it would strike with dismay and astonishment the men who are entitled to the privileges and the rights of Magna Charta; and our rights are just as extensive, if not more extensive. us then say to the President, if it be necessary to say it to him, but above all, let us say it to those who are acting in subordinate capacities under him, "Your arms shall not be laid upon a single American citizen without cause, and he shall be at liberty, if you assign a cause, to prove its falsehood."

Let

Mr. WILSON. I hope we shall now take a vote on this question.

The PRESIDENT pro tempore. The question is on the motion to postpone the order of the day for the purpose of taking up the resolution which has been indicated.

The motion was agreed to-ayes thirty, noes not counted.

The PRESIDENT pro tempore. There is an amendment offered by the Senator from Massachusetts, [Mr. WILSON,] which is the pending question, to insert after the word "Senate" the words "if not in his opinion incompatible with the public interest;" so that the resolution will then read:

Resolved, That the President be requested to communicate to the Senate, if not in his opinion incompatible with the public interest, all information in his possession bearing on the arrest and imprisonment of Colonel Richard T. Jacobs, Lieutenant Governor of the State of Kentucky, aud Colonel Frank Wolford, one of the presidential electors of that State; particularly by whose order they were arrested and imprisoned, where they are at present confined, and what offenses are charged against them.

The amendment was agreed to.
The resolution, as amended, was adopted.

HOUSE BILL REFERRED.

The bill (H. R. No. 618) to amend the act entitled "An act to provide internal revenue to support the Government, to pay interest on the public debt, and for other purposes," approved June 30, 1864, was read twice by its title, and referred to the Committee on Finance.

COMMITTEE SERVICE.

The PRESIDENT pro tempore announced the following appointments to supply vacancies in committees:

Mr. Dixon as chairman of the Committee on the District of Columbia; and Mr. HALE to fill the vacancy in the Committee on the Judiciary.

MANUFACTURE OF BUNTING.

Mr. SPRAGUE. Mr. President, I rise to submit a motion, but before doing so I ask leave to read an extract from the report of the Secretary of the Navy:

"The chief of the Bureau of Navigation submits the

usual reports of the Naval Observatory, Nautical Almanac office, and the general administration of his department. Nearly all the nautical instruments used in the Navy, which, prior to the war, were procured abroad, are now of American manufacture, not excepting chronometers and comparing watches, The same gratifying advance cannot be stated with reference to material for flags, as we still sail under foreign bunting. Notwithstanding the large quantity used by the Army, the Navy, and the commercial marine, scarcely any progress has been had in inducing American establishments to undertake its manufacture."

My motion is that so much of the report of the Secretary of the Navy as relates to sailing under foreign bunting, and so much of the President's message and its accompanying reports as relate to the manufactures of the country, be referred to the Senate committee on that subject.

American nationality, it will be observed, is recognized and defended under a banner the materials of which are fashioned by the skill and labor of a people who are our only rivals, and whose Government, participating in the doubtful honor with one other, is believed to be our greatest and most dangerous enemy.

Be that belief well or insufficiently grounded, I concur with the views expressed by the Secretary, and I partake of his feeling of dissatisfaction in the failure to induce American citizens to produce materials for the manufacture of the flag of our country.

This sentiment cannot but animate the breast of every Senator. It must have a place in the heart of every American, whether born upon its soil or naturalized into its interests.

Should not the hope be coupled with a resolution that when the next annual report shall be presented to the country our flag will be wrought into its beautiful proportions upon American soil, by heads and hands which are true to the great principles it represents, true to the heroic dead, and to the brave heroes now banded under its folds, and true to the soil, every foot of which, God helping, will soon acknowledge its original sway?

It has become far dearer, far more sacred to loyal hearts, by the great deeds and greater sacrifices which have been offered up under it at the shrine of democratic liberty and republican government. Let it come to us free, free from even the atmospheric contact of a people not pledged to progress and a better civilization; a people not yet freed from decayed aristocracies or modern despotism. I disclaim all sentiment, yet I do not

believe but that our victories will be more triumphant, our peace more permanent, if every fiber of our flag is handled in its construction by brave men and fair women, whose prayers will ascend to a just God to defend it; and while it rests in their hands it may gather some of the strength, resolution, and devotion of a great people, which when it must herald the hour of strife may better inspire its defenders to braver deeds and stronger resolutions in support of the greatest of human struggles.

The PRESIDENT pro tempore. The order of reference will be made if there be no objection.

MESSAGE FROM THE HOUSE.

A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House had passed the bill of the Senate (S. No. 358) to establish the grade of vice admiral in the United States Navy.

The message further announced that the House had passed a bill (H. R. No. 622) to amend an act entitled "An act to incorporate the Metropolitan Railroad Company in the District of Columbia," approved July 1, 1864; in which the concurrence of the Senate was requested.

The message further announced that the House non-concurred in the amendments of the Senate to the bill (H. R. No. 51) to establish a Bureau of Freedmen's Affairs, asked a conference with the Senate on the disagreeing votes of the two Houses, and had appointed Mr. THOMAS D. ELIOT of Massachusetts, Mr. WILLIAM D. KELLEY of Pennsylvania, and Mr. WARREN P. NOBLE of Ohio, managers on its part.

ENROLLED BILL SIGNED.

The message also announced that the Speaker of the House of Representatives had signed the enrolled bill (H. R. No. 380) for the relief of George W. Murray; which thereupon received the signature of the President pro tempore of the Senate.

FREEDOM TO SOLDIERS' FAMILIES.

Mr. WILSON. I now move to proceed to the consideration of the joint resolution which was the special order of the day.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (S. R. No. 82) to encourage enlistments and to promote the efficiency of the military forces of the United States, the pending question being the motion of Mr. DAVIS to refer the joint resolution to the Committee on the Judiciary.

Mr. DAVIS. Mr. President, I would like the Senator from Minnesota, [Mr. WILKINSON,] or any Senator who is a lawyer, and who supports this measure, to inform us of the clause in the Constitution that invests Congress with the power to pass it. I will read two or three lines of the resolution:

Resolved, &c., That, for the purpose of encouraging enlistments and promoting the efficiency of the military and naval forces of the United States, it is hereby enacted that the wife and children, if any he have, of any person that has been, or may be, mustered into the military or naval service of the United States, shall, from and after the passage of this act, be forever free, any law, usage, or custom whatsoever to the contrary notwithstanding, &c.

I want to know what provision of the Constitution confers on Congress the power to pass such a measure. If my friend from Minnesota will answer that question at the present time I will with pleasure give way that he may respond.

The Congress of the United States is not clothed with plenary legislative power. The whole Government is a Government of delegated powers, and Congress can pass no law whatever on any subject unless it has the power delegated to it by the Constitution. That position no gentleman who has any, the smallest, pretensions to legal reading will deny. Congress, though, has two classes of powers. The first are those which are delegated to it by express language. They are enumerated in the instrument, such as to lay and collect taxes, borrow money, regulate commerce, establish a uniform rule of bankruptcy, raise and support armies, &c. Unless the words of the Constitution express or import a power to pass a law, Congress has no power whatever to pass it, except under another clause of the Constitution, which I will read:

Congress shall have power 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."

This clause of the Constitution establishes a large and undefined class of legislative powers, which by Chief Justice Marshall and other judges of the Supreme Court and jurists generally are termed the incidental powers of Congress. Now, sir, I deny that there is any express enumerated power given by the Constitution to Congress which authorizes it to pass this measure, Senator can produce a clause of the Constitution that confers the power in terms, or by language which imports such a power.

and no

We are driven, then, to this conclusion: that if Congress have the power to pass this resolution it is under the clause which vests Congress with the incidental powers to pass all laws necessary and proper to carry those which are expressly enumerated into execution. Does that clause vest

Congress with the power to pass this measure? I maintain that it does not; and why? Because the exercise of that power in this particular case would be in direct conflict with express provisions of the Constitution which guaranty the rights of property to the citizen.

The fifth amendment of the Constitution, which has been quoted countless times within the last two or three years in this body, I will advert to again, and will read:

"Nor shall private property be taken for public use without just compensation."

Now, sir, I state this principle, that where there is a right secured to the citizen by the express language of the Constitution, that right cannot be destroyed or impaired by any implication or by any incidental power which Congress may claim or attempt to exercise. I lay down that proposition in accordance with the opinion of Chief Justice Marshall in the case of McCulloch vs. The State of Maryland. I will read a short paragraph from that opinion:

"We admit, as all must admit, that the powers of the

Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in a manner most beneficial to the people. Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

I concede this principle, that where there is an express power to be executed by Congress, any incidental power appropriate to the execution of that express primary power which is not prohibited by or which is not in conflict with the letter or the spirit of the Constitution, may be adopted as an auxiliary power; but, on the other hand, I maintain as a principle of constitutional law not to be shaken, that where the incidental power . claimed is in direct conflict with an express provision of the Constitution, with a right of the citizen expressly guarantied by it, according to the principle laid down by Chief Justice Marshall, such incidental power is unauthorized by the Constitution, and Congress has no power to adopt it. This principle clearly forbids the passage of the pending resolution. It proposes to set free the wife and children of all negro soldiers who have heretofore, or who may hereafter, enlist into the armies of the United States; to take such property from their owners, not to be put into the service, not to be applied to any public use; although the Government has no power to take private property except for public use, with a positive prohibition to take it for the public service without just compensation to the owner.

I concede that Congress has the express power to raise armies; as an incidental power, can offer bounties in the form of money and land to persons that will enlist in the military service. Why has Congress the power to resort to this incidental means of promoting enlistments in aid of the execution of that great and primary power of raising armies? Because there is nothing in the express provisions or the spirit of the Constitution, there is no right expressly guarantied by it to the citizen, that comes into conflict with the exercise of the incidental power of offering such bounties. But the pending is altogether a different measure. There are express clauses of the Constitution which guaranty to every citizen his rights of property, one of which clauses declares that he shall not forfeit life, liberty, or property except by due process of law, and another, that private property shall not be taken for public use without just compensation, that would be directly and to the extent of a large amount of property infringed by it

Mr. President, the only seeming color of authority on the part of Congress to pass this measure is to promote enlistments in the Army. It presents some analogy to the power of Congress to offer bounties for that purpose. It may be considered as in the nature of a bounty. But the exercise of a power by Congress to offer a bounty in any form is not an express power of Congress, but it is one of its incidental powers, and cannot be exercised or executed in any form so as to abrogate or impair the right of any kind of property.

Now, sir, I might, if I chose, offer an amendment to this joint resolution in something like these terms:

And whereas the State of Massachusetts has had much travail in her efforts to raise her quota of troops to put down the wicked rebellion, and in her great stress she sent agents into many States, both rebel and loyal, to enlist negroes; and into foreign countries to contract with the subjects of alien Governments to become substitutes for her own citizens in the armies of the United States; and whereas some of her sons in high places had a strong disposition, though not quite enough of stomach to do battle in this holy war, whereby much of humiliation, sorrow, and remorse come upon the old Bay State: Now, for remedy thereof, and to encourage enlistments in that State, and to cause the highways and the alleys to swarm with her patriotic sons marching on to put down this accursed rebellion,

Be it further enacted, That any and all persons of the proper military age, who will enlist into and as part of the Massachusetts troops, to serve in the United States Army for the term of three years or during the war, shall after such enlistment, and on so electing and declaring, become a full and equal partner, associate, or incorporator with any individual or individuals, partners, company, corporators, or other associates whatever in said State, whose pursuit and business is or may be banking, brokering, merchandising, shipping, trading, fishing, manufacturing, house-build ing, ship building, of whole or component parts, or making or fabricating anything whatever, whether by hand or by machinery, or by whatever power, agency, or means; such enlistment entitling every person to elect and determine

for himself with what individual or individuals, firms, partnerships, corporations, or other associations, in any form whatever he may attach himself; and thereupon to become as fully interested in all property and estate, real or personal, money, debts, stock, machinery, and every interest and right connected with such business as though he were an original partner, corporator, or associate.

I ask you, sir, if an amendment like that were offered to this joint resolution, would it not have as much and more effect to encourage enlistments in Massachusetts than this joint resolution will have anywhere? Can any man doubt that the prediction of the Governor of Massachusetts, that if a certain measure was adopted by the President of the United States the highways and the alleys would swarm with her patriotic soldiers rushing to the Army, would be realized, and more than realized, if an amendment like this should be adopted as a part of this joint resolution? A proposition authorizing any man who enlisted into the service in Massachusetts, upon the fact of so enlisting to be thereby and thereupon entitled to associate himself as a partner with any individual, firm, partnership, corporation, or association whatever, and to become equally and fully interested in all the estate, property, and means of that individual, firm, partnership, corporation, or association, would be a measure eminently calculated to encourage enlistments. Pass such a measure as that, and its efficiency in calling troops into the military service of the United States would be manifold more operative and successful than the measure under consideration. So far as you waive objections to its constitutionality and its justice, so far as you consider it as a practical measure only, to encourage enlistments, no man can doubt its eminent efficiency.

Sir, why should not this be adopted as an amendment to the pending measure? It also would be a war measure-a measure calculated to fill up the ranks of our Army, to increase its numbers and efficiency, and to bring the rebellion to a more speedy close. In all of its practical operations and results it would be signally an effective war measure. What objection can be made to it? No possible objection except those which I make to the present measure.

I concede that Congress has not the power to pass such a measure as is expressed in this supposed amendment, because of the objections that I have urged to the measure itself. It would be in conflict with the rights of property of the people of Massachusetts guarantied to them by the Constitution, and it would be flagitiously unjust; but in neither respect would it be more flagitiously unjust.

Indeed, any objection that may be made to the proposition which I have just read can be made with more truth and force in principle to the measure under consideration. The great and principal effect of this resolution would be in Kentucky, and upon her people I presume it is so intended. In 1860 we had two hundred and twenty-five thousand four hundred and eighty-three slaves in that State. In my own county we had six thousand seven hundred and sixty-seven. I have no doubt from the number of enlistments that have been made from the slaves of Kentucky that three fourths of that population fit for military service are now in the Army or some employment of the United States. That such is the proportion in my own county I do not entertain a doubt. The military portion of that population in the county of Bourbon was something the rise of six hundred before any of them were recruited. By actual enumeration about six hundred of her slaves have already attached themselves to the Army. They were recruited without any regard to order, form, or principle. The whole object seemed to be to demoralize the institution, and to get every slave man who could be seduced to join the service by any mode of operation whatever, to do so. They sent their recuiting agents, foreigners principally, mostly Dutchmen, all over the county, and pretty well over the State. They received and enrolled every slave negro who could be inveigled to give his consent. Some that were over age and some that were not proper military material because of disease, and females disguised in male clothes, were admitted. At least three fourths of the slaves suited for military service in that county have already attached themselves to the Army. They have enlisted, and they now belong to the armies of the United States, as much so as if their wives and their children were declared to be free.

Pass this measure, and its application would not be to one fourth of the male slave population of Bourbon, or, I believe, of the State of Kentucky to be enlisted, but would be mainly upon those that are now in the military service by freeing their wives and children.

What, then, is the object of the measure? It is not much to encourage enlistments. We have already sent more than our proportion of negroes to the field. We have but a small remnant yet remaining. The measure does not propose to be limited to those who have not enlisted and who may yet be enlisted, but it proposes to comprehend those who have enlisted as well as those who may hereafter enlist. The object is to deprive slave owners of their property; it is still further to demoralize the institution; it is to break it up per fas aut nefas; it is utterly to disregard the Constitution and the laws which secure equally with every other this description of property to their owners, and trample them under foot, lawlessly, unjustly, without answering any wise policy of the Government, and utterly to destroy slave property.

Is the Senate going to lend itself to the passage of such a measure? Before doing so, ought it not to ask seriously and gravely whence is its power to pass so extraordinary a measure?

Sir, the precedents of to-day become the law of to-morrow. The precedents that are set and established by one party are transferred to its successor, and by its successor they are taken up and enforced as law against those who have made them. Are the members of the Senate ready to have this poisoned chalice which they are now concocting and mixing for other lips tendered to their own? Sir, there is a retributive justice even in human affairs. The wrongs and iniquities which one party in power perpetrate upon another out of power sooner or later return to plague themselves. That law of retribution is tardy, but it is certain; it comes sooner or later. Would to God it could come with more promptitude and with full measure in every case.

Sir, I do not contend for this great principle, the inviolability of private property and the guarantee which the Constitution makes to its owner, for myself or the people of my own State alone, nor for this generation alone. It is a great and enduring principle of right and of just and enlightened government. It is one of the principal ends for which government is formed, and no Government that essentially and continuously violates it could ever receive the permanent support of a free, enlightened, and virtuous people.

What does this joint resolution propose to do? Utterly to disregard this great fundamental principle of the Constitution, this guarantee of the right of property to the citizen. Sir, property may be taken from the citizen by the Government in two modes. It may be taken in the form of taxation or in the exercise of the power of eminent domain. In the first place, wise legislation aims at equality, and makes the law imposing the tax bear upon the people as generally, as equitably, and as impartially as possible. But whenever property is taken from a citizen by the exercise of the power of eminent domain, that citizen is asked to contribute to the public service something more than the rest of the citizens are required to render; and there is not a decision in any of the courts of the United States, or in any of the States, upon this point, in relation to taking property from the citizen in the exercise of the power of eminent domain, but what expressly lays down the principle that it is his right to receive a full and fair compensation for his property thus taken. Nearly every State in the Union has decided and maintained that principle; yea, more, they have gone on and decided, further to fortify that sacred right of property, that the citizen cannot be deprived of the possession of his property without payment of its full and fair price, or without that price is then secured to him. This loose practice of the Government from its foundation, to take property upon its own valuation, or even upon the valuation of a court or commissioners, and to make no arrangement, no provision, by law or otherwise, to secure to the owner the value of the property, is an unauthorized and an unconstitutional exercise of power.

Sir, this position will not be controverted by any man who has legal learning at all respectable: that this provision of the Constitution secures