Benjamin Franklin Thomas.

Speeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) online

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holding any office or agency under any of the States of
the Confederacy, or any of the laws thereof, whether
such office or agency be State or municipal in its name
or character. Every justice of the peace, notary pubHc,
or town-clerk, treasurer, assessor, constable, overseer of
the poor, undertaker even, must resign his functions,
or become a pauper. The result, if successful, is a
suspension of civil order; or, on the other hand, the
severest punishment for a venial offence, if it be an
offence.

The second section includes all persons who, being
engaged in rebellion, or aiding and abetting it, shall
not, within sixty days after proclamation from the Presi-
dent, desist, and return to their allegiance. Sixty days
seems to be a reasonable notice ; but, if the parties are
in such condition that the notice cannot reach them,
then it is not notice. What may be fairly and justly



58



CONFISCATION.



required is, that men shall return to their allegiance
the moment they have reasonable assurance of perma-
nent protection from the National Government. It is
idle to look for it before such protection is possible.
To ask a man in the interior of a cotton State to abjure
the rebel Government and return to his allegiance, in
the present condition of things, is to ask a moral impos-
sibility. To confiscate his property for not doing so, is
itself a crime.

A word upon another harsh feature of the bill.
With respect to every person within its scope, and with-
out the least discrimination as to degrees of guilt, a
clean sweep of property is made. There is no exemp-
tion of necessary household furniture, or of provisions,
or of tools of trade. Nothing is spared ; the bed on
which the wife sleeps, the cradle of the child, the pork,
or flour-barrel. Taken in connection with the fact, that
the bill declares that the President shall cause the
seizure to be made, and not merely that he may ; that
provision is made for the sale of perishable property, and
that none is made for the remission, in whole or part,
of the forfeiture ; and we cannot fail to understand
the spirit in which the bill is conceived, or the impres-
sion it will not fail to make on the friends of this
country abroad, Avho cannot fully appreciate the bitter-
ness which civil conflict engenders; or, if they do, will
not pardon statesmen for yielding to its influence. It is
plain that the angel of mercy never found his way to
the committee-room ; or, if he went in with my friend
from Kentucky [Mr. Mallory] or my friend from New
Jersey [Mr. Cobb], he was politely bowed out, with the



CONFISCATION. 59

assurance that neither rebels, nor those dependent upon
them, had any rights.

I ought, however, to add, Mr. Speaker, that, looking
upon seizure and confiscation as a penalty for crime,
treason, or rebellion, the President, under his general
power of pardon, might remit the punishment. But
then the other conclusion will follow^ that, without trial
by jury, no valid forfeiture can be effected.

The second bill, for the emancipation of the slaves
of rebels, is much broader in its scope, including every
person who shall engage in rebellion, or aid and abet
it. The insertion of the word " wilfully," lawyers will
see, does not affect the legal construction. There are
considerations of humanity in favor of this bill, which
do not apply to the first ; but it is not restricted to slaves
used in the Rebellion, and 110 form of judicial proceed-
ing is provided. The constitutional objections apply to
it with at least equal force.

That the bills before the House are in violation of
the law of nations and of the Constitution, I cannot —
I say it with all deference to others — I cannot enter-
tain a doubt. My path of duty is plain. The duty of
obedience to that Constitution w^as never more impera-
tive than now. I am not disposed to deny, that I have
for it a superstitious reverence. I have " worshipped
it from my forefathers." In the school of rigid disci-
pline by which we were prepared for it ; in the strug-
gles out of which it was born ; the seven years of bitter
conflict, and the seven darker years in which that con-
flict seemed to be fruitless of good ; in the wisdom with
which it was constructed and first administered and set



60 CONFISCATION.

in motion ; in the beneficent Government it has secured
for more than two generations ; in the blessed influences
it has exerted upon the cause of freedom and humanity
the world over, I cannot fail to recognize the hand of
a guiding and loving Providence. But not for the
blessed memories of the past only do I cling to it. He
must be blinded with excess of light, or with the want
of it, who does not see, that to this nation, trembling
on the verge of dissolution, it is the only possible bond
of unity. With this conviction wrought into the very
texture of my being, I believe I can appreciate this
conflict, — can understand the necessity of using all the
powers given by the Constitution for the suppression of
this Rebellion. They are, as I believe, and as the pro-
gress of our arms attests, ample for the purpose. I do
not, therefore, see the wisdom of violating or impairing
the Constitution in the eff'ort to save it, or of passing
from the pestilent heresy of State secession to the
equally fatal one of State suicide. The fruits of
the first are anarchy and perpetual border war ; of the
second, the growth of military power, the loss of
the centrifugal force of the States, the merging of the
States in the central Government : a Republic in name
and form ; in substance and eff"ect, a despotism.

Mr. Speaker, at a time like this, the individual is
nothing ; the country, every thing. He cannot truly
serve or love his country who is anxious about himself.
He cannot have a single eye to the welfare of the
Republic, if both eyes are turned homeward. He can-
not keep step to the music of the Union who is grinding
fantasias for the village of Buncombe. One may



CONFISCATION. 61

desire, however, not to be wholly misunderstood. It
has been said that I am ox3posed to any emancipation
of the slaves of rebels. Nothing can be further from
the truth. The first provision for emancipation, — that
in the statute of Aug. 6, 1861, liberating all slaves
employed in the Rebellion, — I drew with my own
hand ; believing now, as then, that it is valid and just.
For the abolition of slavery in this District, for the
interdiction of slavery in the Territories, for the new
article of war forbidding the officers of the army to
surrender fugitives from service, my votes are on re-
cord. I voted for the resolution recommended by the
President for aid to the States in the work of gradual
emancipation ; though I could not fail to see that it was
on the verge of authority, and must perhaps finally
rest, like the purchase of Louisiana, upon general con-
sent. My views of the power of the Commander-in-
chief on the subject of emancipation are fully stated
in remarks submitted to the House on the 10th of April.
I will not repeat them. They are ample for any emer-
gency. In the bill I introduced " for the more eff"ectual
suppression of the Rebellion," but which, in the pre-
sent temper of the House, I thought it useless to press,
I have indicated a practical method by which the slaves
of rebels may be emancipated, as the penalty for crime,
upon conviction or default of the off"ender. But, Mr.
Speaker, I have kept my eye steadily upon the end for
which this war is waged, — the only end for Avhicli it
can be justified, — the integrity of the Union. I have
firmly resisted, and shall continue firmly to resist, every
efi"ort, open or disguised, to convert this war for the



62 CONFISCATION.

Union into a war for emancipation, at the risk — no,
not at the risk, for the words do not express what I
mean or feel, with the moral certainty — of defeating
the purpose for which the war was begun. With these
convictions, it is scarcely necessary to say, I cordially
approve the course of President Lincoln in modifying
the proclamation of General Fremont, and declaring null
and void the order of General Hunter. For the wisdom
and patriotism which have thus far marked the course
of this magistrate, he has my respect and gratitude.

A word upon the policy and wisdom of these mea-
sures. A great work has been done by this nation. It
is easy to find fault. In operations upon so large a
scale, requiring so many agencies, mistakes and blunders
will be made. But a just criticism, looking upon the
work as a whole, cannot fail to commend the patriotism
of the people and the energy of the Government. I
know it has been prettily said, that we have prosecuted
this war upon " a rose-water policy." I do not know
that I fully comprehend what is meant ; but probably
the rebels, in view of that long blockade, with the fresh
memories of Port Royal, Newborn, Pulaski, Donelson,
Pea Ridge, Shiloh, the Lower Mississippi, and York-
town, and the ever-tightening folds of the constriction,
might say with Juliet, the

" Rose
By any other name would smell as sweet."

Our armies and navies are victorious. The war seems
to be drawing to a close. There is reasonable ground
to hope, that, before the next session of Congress, the
power of the Rebellion will be broken, and the sword



CONFISCATION. 63

have substantially done its work. But I cannot con-
ceal from myself that our great difficulties lie beyond
the conflict of arms. It is the part of wise courage to
look them calmly in the face, to gauge them, and gird
up our loins to meet them. Action will be needed,
not words ; judgment, not passion. Unless there be
calm and fearless statesmanship, your victories will have
been won in vain ; a statesmanship that honors and
respects the people, but is willing to abide its sober
second thought.

Civil wars, like family feuds, have been fierce, bitter,
and unrelenting. The bitterness and ferocity mani-
fested towards us by the rebels cannot but arouse the
spirit of retaliation, and thirst for vengeance. If we
yield to the fierce temptation, the war will become one
of extermination. Thus far, while prosecuting the
war with vigor, we have shown the moderation and
humanity becoming a great people. I pray we may
continue in this course. There is wisdom in the fable
of the sun and the north wind. There is power in for-
bearance, in magnanimity, in obedience to the law we
seek to enforce, in the spirit of forgiveness, in the
" mercy which seasons justice." Christ knew what is
in man : the gospel is not a lie. There never was a
juster war than that Avhich we are waging. It is strictly
a war of self-defence, the defence of a free and bene-
ficent Government against traitors in arms against her.
But we may not forget, that, to those in the Southern
States who believe in the right of secession, this war
cannot but wear the aspect of a war of invasion and
subjugation. This terrible mistake may account for



64 CONFISCATION.

their bitterness, though it is no palliation for their
barbarities.

Mr. Speaker, upon no subject has there been more or
looser declamation than on the causes of this Rebellion.
At one moment, we are assured that slavery is the one
great criminal ; at the next, that it was brought about
by the fraud, falsehood, and violence of a few unprinci-
pled leaders.

Passing this subject now with the remark, that masses
of men are not easily moved, that civil convulsions are
fed by deeper fires, I ask your attention to two facts
which seem to be clearly established. The first is, that,
when the acts of secession were passed, the majority of
the people of the revolting States, with the excej^tion
of South Carolina, were loyal to the Union ; and the
second is, that to-day their feelings are changed, their
loyalty turned to treason, and love to hate. Passion is
eloquent ; but do not content yourselves with bitter
denunciation. Pause, I beseech and adjure you, and
inquire what is the cause.

The war brought to their homes and firesides will
account for much ; but do you not believe that a con-
viction has been settling down into the minds of men,
who at the beginning of our troubles were loyal, that
these extreme measures point to some other end than
the restoration of the Union with the rights of the
States preserved ; that they mean subjugation and
reconstruction " by permission of the military power,
and not before " 1 Once committed to this policy, once
afloat on this sea of revolution, neither you nor I may
live to reach the haven of Union and peace.



t



CONFISCATION. 65

If these measures shall be finally adopted, I pray God
I may prove a false prophet, and that " out of this nettle
danger we may pluck the flower safety ; " that his
strength may be manifested in our weakness ; and that
he may overrule all our errors and shortcomings for the
good of our beloved country.



66



THE TEEASURY-NOTE BILL.



IN THE HOUSE OF REPRESENTATIVES, FEB. 6, 1862.

The House being in Committee of the Whole on the State of
the Union, and having mider consideration the Treasury-note Bill,
Mr. Thomas said, —

Mr. Chairman, — I am anxious to vote for some
measure for the speedy relief of the Government. I
have listened with care to the whole debate, with the
hope that the difficulties which had occurred to my own
mind might be relieved. Nay, more : I have diligently
sought to convince myself that it was in the power of
Congress to pass this bill, including the provision mak-
ing the treasury notes legal tender for all public and
private debts. I have wished to see also that the bill
could be passed, and the good faith of this Government
maintained. I have failed upon both of these points ;
and, with the indulgence of the Committee, will state
briefly some of the reasons which will lead me to vote
against the bill as it now stands.

The question at the threshold of the discussion is
that of legal power, the competency of Congress to pass
the bill. Congress has upon this subject the powers
given to it by the Constitution. This is a Government
of specific powers, supreme in their sphere, but the
sphere confessedly limited.



THE TREASURY-NOTE BILL. 67

We look to the Constitution to see if the power is
given. We do not say the power is not denied, and
therefore exists ; but that it is not granted, and there-
fore does not exist. The powers granted are express or
impHed, are given in terms, or are the reasonable in-
ferences from the express grants. Now, it is conceded
that there is no express power given to Congress to
make the notes or bills of the Government legal tender.
There is a power given to Congress upon the subject-
matter. It has the power " to coin money, regulate the
value thereof and of foreign coins."

These words, "to coin money," have a plain and
obvious meaning. The only coinage is that of the
metals, " hard money." To coin money, and regulate
the value thereof, is to fix its legal value, the value for
which it is to be received as an equivalent in commerce
and in discharge of obligations and contracts. This
constitutional power of coinage was first executed by
the statute of 1792, and that statute has a provision
making the coins legal tender; but there can be no
doubt, that, whenever money is coined by Government
under the Constitution, it becomes ipso facto legal tender.
But, whether legislation be necessary to carry the provi-
sion into effect or not, it is too plain for argument, that
the power to coin money and regulate its value is the
power to say for what value it shall be received.

There being no express power in the Constitution
to make these treasury notes a legal tender, is such a
power to be reasonably inferred from any of the express
powers^ Before answering this question, two things
are to be observed.



68 THE TREASURY-NOTE BILL.

The first is, that, there being an express grant of
power upon this subject of the coining of money and
fixing its legal value, we should not reasonably expect
to find an additional power on the same subject given
by implication. The expression of the one would ordi-
narily be the exclusion of the other. The second thing
to be noted is, that it appears by the debates of the
Constitutional Convention, and by the note of Mr.
Madison, that this subject was before the convention,
and that a grant of power to emit bills of credit, with
the apparent purpose of making them legal tender,
was refused. — Pages 1343-46.

It is said that the power to make these notes a legal
tender is a reasonable implication from the power " to
regulate commerce with foreign nations, among the
States, and with the Indian tribes." The argument is,
and it is entitled to consideration, that money is one
of the great instruments of commerce, as much so as
the ship ; and that the power to regulate the principal
thing is the power to regulate its instrumentalities. I
confess, that, at first, this view of the question impressed
me. But further reflection has satisfied me it is not
sound. If the Constitution were otherwise silent upon
the subject, the implication would doubtless be a strong
one.

But the Constitution has spoken ; has indicated what
shall be money under its provisions, and the power of
Congress over it.

Again : the practical construction of the Constitution
has been, that no such power existed. Though the exi-
gencies of the Government have heretofore been great.



THE TREASURY-NOTE BILL. 69

the experiment has never been tried ; nor, so far as I
know, ever before suggested.

Of the three great statesmen whose minds have been
given to this subject of the currency, and the power of
the National Government over it, no one has asserted
the existence of this power. Mr. Madison and Mr.
Webster have expressly denied its existence. Mr. Web-
ster had, of all our statesmen, except perhaps Mr.
Hamilton, the strongest convictions of the necessity of
a national currency, and of the duty of Congress to con-
trol it ; but, on the want of power in Congress to make
any thing but coin legal tender, his language is clear,
firm, and unequivocal. He says, —

" But if we understand by currency the legal money of the country,
and that which constitutes a legal tender for debts, and is the statute
measure of value, then, undoubtedly, nothing is included but gold and
silver. Most unquestionably, there is no legal tender, and there can be
no legal tender, in this country, under the aidhority of this Government
or any other, but gold and silver, either the coinage of our own mints, or
foreign coins at rates regulated by Congress. This is a constitutional
principle, perfectly plain, and of the very highest importance. The
States are expressly prohibited from making any thing but gold and
silver a tender in payment of debts ; and although no such express
prohibition is applied to Congress, yet, as Congress has no power
granted to it in this respect but to coin money and to regulate the
value of foreign coins, it clearly has no power to substitute paper or
any thing else for coin as a tender in payment of debts and in discharge
of contracts. Congress has exercised this power fully in both its
branches. It has coined money, and still coins it ; it has regulated the
value of foi-eign coins, and still regulates their value. The legal ten-
der, therefore, the constitutional standard of value, is established, and
cannot be overthrown. To overthrow it would shake the whole system.

"But, if the Constitution knows only gold and silver as a legal ten-
der, does it follow that the Constitution cannot tolerate the voluntary
circulation of bank-notes, convertible into gold and silver at the will



70 THE TREASURY-NOTE BILL.

of the holder, as part of the actual money of the country ? Is a man
not only to be entitled to demand gold and silver for every debt, but
is he, or should he be, obliged to demand it in all cases ? Is it, or
should Government make it, unlawful to receive pay in any thing
else ? Such a notion is too absurd to be seriously treated. The
constitutional tender is the thing to be preserved ; and it ought to be
preserved sacredly, under all circumstances. — Webster's Worhs^ vol. iv.
p. 271.

Again he says, —

" I am certainly of opinion, then, that gold and silver, at rates
fixed by Congress, constitute the legal standard of value in this coun-
try ; and that neither Congress 7ior any State has authority to establish
any other standard or to displace this." — Ibid., vol. iv. p. 280.

This is good law and solid sense.

There is, Mr. Chairman, another difficulty in inferring
from the power of Congress to regulate commerce the
power to make treasury notes legal tender, which has
not been adverted to. It is this : The power given to
Congress is to regulate commerce " among the States."
Now, it is clear in principle, and well settled as authority,
that the provision does not extend to and include the
internal commerce of the States. This power is reserved
to the States themselves (Gibbons vs. Ogden, 12 Whea-
ton, 1). Looking at this power to make these notes a
legal tender as incident to the power of Congress to
regulate commerce, the power of the incident cannot
extend beyond the power of the principal. This bill
clearly includes a commerce over which we have no
control. It is scarcely necessary to say that this internal
commerce would include nine out of ten of all the bar-
gains that are made.

It has been said, that, under the power to " borrow



J



THE TREASURY-NOTE BILL. 71

money on the credit of the United States," we have the
power to make the securities given for borrowed money
legal tender ; that is to say, under the power to harrow,
we have the power to create.

It would seem to be a sufficient answer to this posi-
tion to say, that, if the Government had the power to
make its notes money by its superscription only, there
would be no great need to borrow.

It has been argued, that because the power is denied
to the States to make " any thing but gold and silver a
tender in payment of debts," and is not denied in terms
to Congress, it therefore exists in Congress. To this
position the answer is twofold : First, that the express
power has been given to Congress of coining money,
and regulating its value ; the value for which it is to
be received in the marts of commerce in the payment of
debts or the measure of damages. The money so
coined is the only money known, to the Constitution.
The Constitution never confounds, as does this bill,
money with the promise to pay money, the shadow with
the substance, the sign with the thing signified. The
second and obvious answer is, that the power, not
being delegated to Congress, is reserved, under article
ten of the Amendments, to the people. The people,
acting in the light of their own terrible experience,
would neither give the power to Congress, nor permit its
exercise by the States. If the power to make money of
paper is an attribute of sovereignty, as the friends
of this bill aver, the attribute yet rests securely in the
bosom of the sovereign. The people have not parted
with this power of evil.



72 THE TREASURY-NOTE BILL.

Mr. Chairman, though the legal question has not
been judicially settled, I feel compelled to say that the
weight of reasoning and authority is strongly against
the validity of the clause making the treasury notes
legal tender. If the validity of the provision be doubt-
ful even, and it becomes, as it inevitably would, the
subject of contest and litigation in the courts, the effect
upon the credit of the paper will, in my judgment,
be worse than if the tender clause had been wholly
omitted.

I have a word or two to say upon the justice of this
clause of the bill.

To make these notes legal tender for debts, private
and public, contracted before the passage of the bill,
seems to me a clear breach of good faith. Debts are
obligations or promises to pay money, the only money
known to the Constitution and laws ; the universal equi-
valent having not merely intrinsic value, but being the
measure and standard of value. Paper is not "money.
The draft, bill, or note, is the mere sign : money is the
thing signified. Said John Locke, " Men in their bar-
gains contract, not for denominations or sounds, but for
the intrinsic value.''

This bill, Mr. Chairman, changes the condition and
practically impairs the obligation of every existing con-
tract to pay money. When the contract to pay money
matures, this bill compels the creditor to take for his
debt, not money, not even paper convertible into money
on demand, but the promise of Government to pay at a


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Online LibraryBenjamin Franklin ThomasSpeeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) → online text (page 5 of 15)