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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Online LibraryBenjamin Franklin ThomasSpeeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) → online text (page 1 of 15)
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C0 mn §rot^xt,

Z\)is Folumc is hxscxihc'H,


^^ I set out with a perfect distrust of my oion abilities ;
a total renunciation of every speculation of my own; and
with a profound reverence for the ivisdom of our ances-
tors, who have left us the inheritance of so hap)py a con-
stitution, and so flourishing an empire, and, what is a
thousand times more valuable, the treasury of the maxims
and principles which formed the one, and obtained the

Burke on Conciliation with America.

N O T E.

The speeches and addresses in this volume cover a x^eriod
of about fifteen months, including the second and third
sessions of the Thirty-seventh Congress and the vacation.
I have put them in this form to meet the wishes of a
few friends, in justice to myself, — that my position may
not be misunderstood — and in the hope, not very buoy-
ant, that they may do good. I am painfully sensible
how fragmentary and defective they are. But the prin-
ciples they seek to illustrate and defend are just and
true, and will weather the storm. They constitute the
traditional poUcy of the country, a return to which is,
in my judgment, its only security. That they are un-
popular at this moment, does not disturb me : the more
imperative is the duty of standing by and upholding
them. The citizen owes to the country, in the hour of
her peril, honest counsel, calmly given, but with the
" love that casteth out fear." Never were freedom of
thought and of the lips and pen so necessary as now.
They have become, not only the most precious of rights,
but the most religious of duties.


In preparing for the printer, I ha\ e corrected a few
of the errors of style. I have not felt at liberty to make
material changes in the thought. In one or two in-
stances (as in the remarks on the Conscription Bill),
I have added, from notes, suggestions omitted at the
time of delivery. The recurrence of the same idea, and
of even the same expression, hi different speeches on
the same or kindred topics, could not well be avoided.

From the remarks on the Trent case, I have stricken
two or three sentences which were thought to breathe a
spirit of vengeance ; a spirit the gospel does not permit
us to indulge, even against the enemies of our country.
Of the expressions of confidence in the conservative
views of the President, I can only say, I believed them
well grounded when they were made.

Jamaica Plain, May 25, 1863.



The Relation of the "Seceded States" (so called) to
THE Union, and the Confiscation of Property, and

Emancipation of Slaves, in such States 1

Confiscation 3^

The Treasury-Note Bili *j6

Recognition of Liberia and Hayti 79

Death of Hon. Goldsmith F. Bailey ^iC

Case of the "Trent" ^'1

Speech at the Mass Meeting for Recruiting, on Boston

Common 1'*"

The Army of the Reserve K'^

Speech at Chelsea ^-^

Remarks on the Border States 141

On the Bill "to raise Additional Soldiers for the

Service of the Government" 14.)

The Louisiana P^lection Cases 1<j4

The Conscription Bill . . 184

jSew England and the Union 19^^



The House being in Committee of the Whole on the State of
the Union, Mr. Thomas said, —

Mr. Chairman, — I avail myself of the indulgence of
the Committee to make some suggestions upon subjects
now attracting the attention of Congress and of the
country, — the relations of the " seceded States " (so
called) to the Union, the confiscation of property, and
the emancipation of slaves, in such States. Sensible
how deeply the interests of the country are involved in
their right decision, I can only say, I have given to
them careful and patient consideration, with an earnest
hope and desire to learn what my duty is, and faithfully
and firmly to discharge it.

The questions are novel as they are momentous.
In the discussion of them, little aid can be derived from
our own precedents, from the history of other nations,
or from writers on constitutional and international law.
The solution of the diificult problems of right and duty



involved must be found in the careful study of the prin-
ciples of the Constitution, and the just and logical ap-
plication of them to this new condition of things.

The peculiar feature of our civil polity is, that we
live under written constitutions, defining and limiting
the powers of Government, and securing the rights of the
individual subject. Our political theory is, that the peo-
ple retain the sovereignty, and that the Government
has such powers only as the people, by the organic law,
have conferred upon it. Doubless these inflexible
rules sometimes operate as a restraint upon measures,
which, for the time being, seem to be desirable. The
compensation is, that our experience has shown, that,
as a general rule and in the long-run, the restraint is
necessary and wholesome.

It is, I readily admit, by no narrow and rigid con-
struction of the words of the" Constitution that the
powers and duties of Congress on these subjects are to
be ascertained. Every provision must be fairly con-
strued in view of the great objects the Constitution was
ordained to effect, and with the full recognition of the
powers resulting from clear implication as well as ex-
press grant. Designed as the bond of perpetual union
and as the framework of permanent government, we
should be very slow to conclude that it lacked any of
the necessary powers for self-defence and self-preserva-

But recognizing the profound wisdom and foresight
of the Constitution, and its adaptation to all the exi-
gencies of war and peace, when a measure is proposed
in apparent conflict with its provisions, we may well


pause to inquire, whether, after'all, the measure is ne-
cessary ; and whether we may not bend to the Constitu-
tion, rather than that the Constitution should give way
to us. "When we make necessity our lawgiver, we are
very ready to believe the necessity exists.

Nor are we to forget that the Constitution is a bill of
rights as well as a frame of government ; that among
the most precious portions of the instrument are the
first ten amendments ; that it is doubtful whether the
people of the United States could have been induced to
adopt the Constitution, except upon the assurance of
the adoption of these amendments, which are our Magna
Carta, embodying in the organic law the securities of
life, liberty, and estate, which, to the Anglo-Saxon
mind, are the seed and the fruit of free government.
Some portions of our history have led to the conclusion,
that the existence of these amendmefits may, in the
confusion of the times, have been overlooked.

In my humble judgment, Mr. Chairman, there has
been, and is now, but one issue before the country; and
that is, whether the Constitution of the United States
shall be the supreme law of the land. That Constitu-
tion was formed by the people of the United States. It
acts, not upon the States, nor, through the States, upon
us as citizens of the several States, but directly upon us
as citizens of the United States ; claiming, on the one
hand, our allegiance, and giving to us,, on the other, its
protection. It is not a compact between the States, or
the peoples of the several States : it is itself a frame
of government ordained and established by the people of
the United States.


The sphere of the Government so established is indeed
limited ; but within that sphere its power is supreme.
It is a Government of delegated powers ; and the powers
not delegated are reserved either to the States or to the
people (Amendments, art. 10).

The powers and functions granted to the National
Government by the Constitution are embraced in three
general classes, — those concerning the relations of the
United States to foreign nations ; those concerning the
relations between the States and their citizens respec-
tively ; and certain powers, which, though belonging to
the home-department of Government, to be useful and
effective, must be general and uniform in their opera-
tion throughout the country. A very large proportion
of the ordinary and necessary powers and functions of
Government is left in the States. The powers of the
National Government do not extend to or include the
domestic institutions or internal police of the States.
The separation and distinction between the respective
spheres of the State and National Governments is an
essential characteristic of our system, and is as old as
the idea of Union itself No Union was suggested,
no project of one for a moment entertained, on any
other basis. The Colonies, in authorizing their dele-
gates to assent to a separation from Great Britain, and
to form a Union for the general defence, expressly
restricted them from consenting to any articles of union
which should take from the Colonies the power over
their internal police and domestic institutions. The
resolutions of the Colonies of New Jersey, Maryland,
and Rhode Island, may be cited in illustration.


The resolution of the Provincial Congress of New
Jersey — passed June 21, 1776, and laid before the
Continental Congress on the 28th of June — empowered
the delegates of that Province to —

" Unite with the delegates of the other Colonies in declaring the
United Colonies independent of Great Britain ; entering into a con-
federation for union and copamon defence ; making treaties with foreign
nations for commerce and assistance ; and to take such other mea-
sures as may appear to them and you necessary for these great
ends ; promising to support them with the whole force of this Pro-
vince ; alioays observing, whatever plan of confederacy you enter
into, the regulating the internal police of this Province is to be reserved
to the Colony Legislature."

The Convention of the Colony of Maryland, by a
resolution (adopted June 28, 1776, and laid before Con-
gress July 1), authorized and empowered the deputies
of the Colony to —

" Concur with the other United Colonies, or a majority of them,
in declaring the United Colonies free and independent, in favoring
such further compact and confederation between them, in making
foreign alliances, and in adopting such other measures as shall be
judged necessary for securing the liberties of America ; and that said
Colony will hold itself bound by the resolutions of the majority of the
United Colonies in the premises ; provided the sole and exclusive right
of regulating the internal government and police of that Colony be re-
served to the people thereof." — Journals of Congress, 1776, pp. 390,
391, 392.

The credentials of the Assembly of Rhode Island,
after giving to the delegates power to enter into union
and confederation, add, —

" Taking the greatest care to secure to this Colony, in the strongest
and most perfect manner, its present established form, and all the
powers of government, so far as relates to its internal police, and con-
duct of our affairs, civil and religious." — Ibid., p. 343.


In the Revolutionary Government, in the Articles of
Confederation, in the Constitution, in its judicial inter-
pretation, in every administration under the Constitu-
tion, and in every department of the Government, the
limitation has thus far been carefully recognized and
faithfully kept. This familiar, well-settled doctrine, as
to the independent respective spheres of the National
and State Government, has never, perhaps, been more
clearly and strongly stated than in one of the resolu-
tions adopted by the Convention which ushered the
present administration into power : —

" Resolved, That the maintenance inviolate of the rights of the
States, and especially the right of each State to order and control its
own domestic institutions according to its own judgment exclusively,
is essential to that balance of powers on which the perfection and
endurance of our political fabric depends."

It is expressed also, with clearness and strength, in
the resolution adopted by the House, near the close
of the last session of Congress, by a nearly unanimous
vote : —

" Resolved, That neither the Federal Government, nor the people
or governments of the non-slaveholding States, have a purpose or a
constitutional right to legislate upon or interfere with slavery in any
of the States of the Union."

These doctrines, as to the supremacy of the National
Government within its sphere and of the reserved
rights of the States, are elementary. BetAveen them
there is no necessary conflict. Each is the complement
of the other, — both vital parts of that political system
under whose admirable distribution and adjustment of
powers the people of the United States have had for


seventy years incomparably the best and most beneficent
Government the world has ever known, — a Govern-
ment now imperilled, not by reason of any inherent
defect or any want of wisdom or foresight in its founders,
not because we have outgrown its provisions, not be-
cause it is behind the age ; but because it has fallen
upon an age not worthy of it, — an age which has failed
to appreciate the spirit of wisdom, prudence, and mode-
ration, in which it was founded.

Such being the relation of the Government of the
United States to its citizens and to the States, the first
question that arises is, how far this relation is aflfected
by the fact that several of the States have assumed, by
ordinances of secession, to separate themselves from the

The people of the United States, in and by the Con-
stitution of the United States, established a National
Government, without limitation of time, " for themselves
and their posterity." It had been provided under the
Articles of Confederation, that the Union should be
perpetual. The Constitution was established to form
"a more perfect union" than that of the Confederation ;
more efficient in power, and not less durable in time.
There is not a clause or word in the Constitution, which
looks to separation. It has careful provisions for its
amendment, none for its destruction ; capacity for ex-
pansion, none for contraction ; a door for new States to
come in, none for old or new ones to go out. An ordi-
nance of secession has no legal meaning or force ; is
wholly inoperative and void. The Constitution, and
the laws and treaties made under it, the people have


declared, " shall be the supreme law of the land ; and
the judges in every State shall be bound thereby, any
thing in the constitution or laws of any State to the
contrary notwithstanding." The act of secession, there-
fore, cannot change in the least degree the legal relation
of the State to the Union. No provision of the Con-
stitution of the United States, no law or treaty of the
United States, can be abrogated or impaired thereby.
No citizen of the United States, residing in the seceded
States, is, by such ordinance of secession, deprived of
the just protection of, or exempted from any of his
duties to, the United States. In contemplation of law,
the reciprocal duties of protection and allegiance remain
unaffected. After the act of secession, the province
and duty of the Government of the United States are
the same, according to the full measure of its ability, as
before, — to enforce in every part of the Union, and
over every inch of its territory, the Constitution and
laws of the United States.

It is the necessary result of these principles, that no
State can abrogate or forfeit the rights of its citizens to
the protection of the Constitution of the United States,
or the privileges and blessings of the Union which that
Constitution secures and makes perpetual. The pri-
mary, paramount allegiance of every citizen of the
United States is to the nation ; and the State authorities
can no more impair that allegiance than a county court
or a village constable. Every proposition, however art-
fully disguised, which seeks to give any effect or vitality
to an ordinance of • secession, for evil or for good, is
itself a confession of the right. To say that an act of


secession is inoperative and void against the Constitution,
and that this void act, sustained by force, is a practical
abdication of the rights of the State under the Con-
stitution, is to blow hot and blow cold, to deny and affirm,
in the same breath ; to state a proposition which is felo
de se.

It is also the plain and necessary conclusion, from
the principles before stated, that a State cannot commit
treason. Under the Constitution of the United States,
persons only can commit treason. How treason may be
committed, and how tried and punished, the Constitu-
tion points out (Constitution, art. 3, sect. 3; Amend-
ments, arts. 5 and 6). The persons who for the time
being hold the offices under a State Government may
individually commit treason ; but the acts of the State
officers, transcending their authority and in conffict with
the Constitution of the United States, involve in their
guilt no man who has not himself levied war against the
United States, or adhered to their enemies, giving them
aid and comfort. It is only we, the subjects, that can
commit treason, or expiate its guilt. No man, or set of
men, can, without our consent, involve us in the awful
crime, or subject us to the awful penalties, of treason.

As a State cannot commit the crime of treason, it
cannot incur a forfeiture of its powers and functions as
the penalty of treason. The punishment provided for
traitors is the result of judicial trial, conviction, and
judgment. How to indict a State, the constitution of
the court, the mode of trial, the form of judgment, and
process of execution, yet exist in (jremio legl's. Nor is
it material that the acts of the State officers have the


sanction and support of the majority of the people of
the State. Within the proper sphere of the State
Government, the rule of the majority will prevail, ex-
cept so far as it is restrained by the organic law ; but
the majority of the voters of the State cannot deprive
the minority of the rights secured to them by the Con-
stitution of the United States. Some of these rights
may be kept in abeyance. Their exercise may be over-
borne by superior physical force. They may sleep ; but
it is not the sleep of death. They are integral parts of
the Constitution, and can only perish when the Consti-
tution perishes.

The State of Tennessee, for example, has passed an
ordinance of " secession." She has allied herself with
the other seceding States. Her vote of secession is
sustained by force. Upon this new and startling theory
of the Constitution, she has already incurred a forfeit-
ure of all those functions and powers essential to the
continued existence of the State as a body politic. The
voice of her eloquent senator is heard in the Capitol ;
her venerable judge sits in the highest judicial tribunal,
and exercises the highest finictions of Government ;
her representatives mingle in our councils ; her loyal
citizens greet with tears of joy the banner of our ad-
vancing liosts, — their hope and our hope, their pride
and our pride. Yet, upon this theory, there is no Ten-
nessee : " tlie Commonwealth itself is past and gone."
Its citizens can no longer be represented in this House
or the Senate. The courts of the United States are
closed against them (Corporation of New Orleans vs.
Winter, 1 Wheaton Rep., 91). The requisition upon


the State for troops was a mistake. The direct tax was
a mistake. Its citizens, under the shield of the Consti-
tution, are outlaws, and in their own homes exiles. If
such be the effects of a void act of secession, we should
be grateful we are not called iipon to witness the results
of a valid one. There is nothing in the doctrines of
nullification or secession more disloyal to the Constitu-
tion, more fatal to the Union, than this doctrine of
State suicide. It is the gospel of anarchy, the philoso-
phy of dissolution. Nor by carrying out this doctrine
of the destruction or forfeiture of the State organization
would any thing be gained for the cause of freedom.
Slavery exists by the local, municipal law ; and would
not be abolished, unless you go one step further, and
hold, that, with the loss of the State organization, the
institutions, laws, and civil relations of the States
X3erish. Now, in case of conquest even, though the
people of the conquered territory change their alle-
giance, their relations to each other and their rights of
property remain undisturbed. The modern usage of na-
tions, which has become law, would be violated if
private property should be generally confiscated and
private rights annulled (United States vs. Percheman,
7 Peters, 51 ; 3 Phillimore, p. 743). When, therefore,
States were reduced to Territories, the National Gov-
ernment could not abolish slavery therein, except under
the right of eminent domain and by giving just com-

If we are right as to the nullity of the acts of seces-
sion, we may proceed to inquire whether the fact, that
the seceding States have attempted to form a new alii-


ance or confederation, will effect the resnlt. Upon
the plainest letter of the Constitution, as well as by its
entire spirit, these acts of confederation are void. Con-
tinuing as States in spite of their ordinances, they were
expressly forbidden to enter into any treaty, alliance, or
confederation, or into any agreement or compact, with
another State or with a foreign power (Constitution, art.
1, sect. 10). Neither by secession nor confederation have
they changed their legal relation to the Union and the
Constitution of the United States. They are still mem-
bers of the Union, foregoing for a time its privileges, but
subject to its duties, bound to it by a cord which the
sword of successful revolution can alone sever.

What, then, it may be asked, is the legal character of
this great insurrection 1 The answer is. It is a rebellion
of citizens of the United States against the Government
of the United States ; an organized effort to subvert and
overthrow its authority, and to establish another Gov-
ernment in its stead. Nothing can be more explicit
than the proclamation of April 15, 1861 : —

" The laws of the United States have been for some time past and
now are opposed, and the execution thereof obstructed, iu the States
of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisi-
ana, and Texas, by combinations too powerful to be suppressed by the
ordinary course of judicial proceedings, or by the powers vested in
the marshals by law.

" Now, therefore, I, Abraham Lincoln, President of the United
States, in virtue of the power in me vested by the Constitution and
the laws, have thought fit to call forth, and hereby do call forth, the
militia of the several States of the Union, to the aggregate number of
seventy-five thousand, in order to suppress said combinatio7is, and to
cause the laws to be duly executed.

" I appeal to all loyal citizens to favor, facilitate, and aid this


effort to maintain the honor, the integrity, and the existence of our
National Union and the perpetuity of popuLar Government, and to
redress ^Tongs already long enough endured."

The State organizations have been found convenient,
and have been used for the purposes of the Rebellion.
Those of counties and cities have been used for the
same ends. In either case, it was an entire perversion
of their functions ; and the action is none the less illegal
and revolutionary on that account. A State, as such,
having no power to engage in war with any other State
or with the United States, cannot interpose its shield
between the Government of the United States and its
subjects committing treason by levying war against it ;
nor is such levying war any the less treason because the
traitors held places of trust in the State Governments,
and perverted the functions of those Governments to

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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 1 of 15)