Edward L. Pierce, Memoir and letters of Charles Sumner: volume 4

[75] co-operate enough to constitute self-government? I have positive opinions here. If successful in war, we shall have then before us the alternative: (1) Separation; or (2) subjugation of these States with emancipation. I do not see any escape. Diplomatists here and abroad think it will be separation. I think the latter, under my resolutions or something like.

The confiscation bill consumed a large part of the time of Congress during the session. It was a new field of legislation; and there was great perplexity in determining the source and extent of the power of Congress. It was a period when the most intelligent and foresighted were groping their way as well on points of expediency as of legality. Congress on the last day of the session (July 17) passed a comprehensive act confiscating the real and personal estate of rebels and emancipating their slaves. The same act, and another act concerning the militia which passed the same day, authorized the President to employ persons of African descent for the suppression of the rebellion in such manner as he might judge best, in any military or naval service.

Sumner had no hesitation as to the power of Congress, which, as he argued, combined in the event of rebellion and war both rights of sovereignty and rights of war,—the former governed by the Constitution, but the latter, being outside of the Constitution and not subject to its provisions, limited only by the principles of international law which define the rights of belligerents. The two sources being combined, he saw ample power in Congress to declare and establish the freedom of the slaves within the limits of the rebel States. As those States had in his view ceased to exist, Congress had succeeded to the power to govern the territory and to exercise therein all the functions and incidents of sovereignty; and also holding all the—rights of a belligerent, it could emancipate and protect in their freedom the slaves of enemies, in the exercise of an unquestionable right of war.¹ He took part in the discussion at different times, making two elaborate speeches, and on the day before the session closed spoke in favor of a resolution to explain and construe the confiscation bill so as to meet certain doubts of the President, which, though the senator did not share them, were supposed to stand in the way of its approval.² How much he thought of the policy of freedom embodied in the measure a