Mr. SAULSBURY. Mr. President, when I offered the pending amendment it was not my intention to say a word in reference to the proriety of its adoption. When the confiscation was before the Senate in 1862 I took oc casion to present, as fully as I deemed proper, my views in reference to it, and to state my objections to its enactment as a law. Those objections were twofold; 1st, arising out of what I conceived to be certain unconstitutional visions in the bill; and 2nd, because, in my judgment, the measure as a measure of policy was unwise. I have seen no occasion since, although I do not now intend to discuss the question, to change the opinions then formed. Although it was very unpopular then, as I doubt not it is very unpopular now, to express the opinion which I then expressed, and which I still entertain, yet the unpopularity of the utterance will not prevent its repetition. I deny as a question of law that this doctrine which has been asserted here today is true, or that it has any warrant of authority in the history or example of nations situated or circumstanced as we were during the late civilWar. I asserted then, and I maintain now, that the duties of allegiance and protection were recip rocal, and that a Government, however rightful it might be, has no right to punish anyone of its citizens for disobedience to its authority unless that Government at the same time affords to that individual protection; and that where an individual is so circumstanced that he is subject to a Government defacto having power to punish him for disobedience to its commands and to protect him against the consequences of his obedience to its commands, and another Government, claiming to be the Government dejure over him, has not the power to protect him against the consequences of disobedience to it, or is unwilling to afford him that protection, that individual commits no crime and is guilty of no treason. In my judgment this original act of confiscation was misnamed. The title it bore upon its face was “An act to punish treason, ” and it was applied to the whole mass of the southern people of this country., Will you tell me, sir, that you can frame a bill of indictment like this against 8 million people?. such a thing is unknown in the history of the world. When our revolutionary fathers assumed to secede, if you please, from the Government of GreatBritain and to establish an independent government for themselves, the House of Com: mons rang with the cry of “rebels”, and “traitors, ” just as the Halls of Congress have rung with the cry of since; “rebels” and “traitors” but what said the master minds of the British Parliament then? They proclaimed the very doctrine which I proclaim here to day, that you could not indict a whole people, i. of men, for the crime of treason when they were acting under the power and author;ity of a government which had been erected over them a government having the power to protect them, and where GreatBritain could not afford protection in case disobeyed the American governments, which had been set up over them. And, sir, however mad and foolish it was and I have always consid: ered it to have been madness and foolishness on the part of the southern people to have entered upon the recent struggle, I say that the great mass of them did not incur thereby the crime of treason nor subject themselves to its penalties; and I assert no new doctrine. I assert a doctrine which has been maintained in the Federal courts of the U.S. I assert a doctrine which your revolutiona fathers asserted, and which the tribunals o the country which they established asserted and maintained. Why, sir, anyone who will take the trouble to look into Dallas's Reports will find a number of cases. I will refer to a single one, the case of Respublica vs. Samuel. to be found in 1 Dallas, where this very doctrine was judicially decided; and there cannot be found in any American authority, since that day a single dictum, much less a decision, overruling that authority. What was that case? Pennsylvania had established an independent government for itself, and in less than 6 months after the establishment of that government a man by the name of Chapman, an adherent of King George, did an act which was, in the judgment of the courts of Pennsylvania, trea. son against that government. He was a subject of King George, as all our fathers were. but he committed the act after the people of Pennsylvania had established for themselves an independent government. He was brought to trial, not, to be sure, in a Federal court, because there was not then any such tribunal, but in the courts of Pennsylvania, charged with the crime of being guilty of treason against that State, and, after a long and able trial, was convicted and executed. There, sir, is judicial precedent, showing that when a government defacto is established an individual citizen not yielding his obedience to it, but attempting to make war upon it, has, within the limits of this country and by the judgment of a learned legal tribunal, been found guilty and executed for the crime of treason against that government, although he claimed protection on account of what he asserted to be his superior allegiance to the Crown of GreatBritain. But, sir, the doctrine which I maintain is older than the case in Dallas. It is the recognized doctrine of England, and has been for 100s of years. The student even of Black stone is at no loss to know what is the true doctrine on this subject. Turn, sir, if you please, to the 4th volume of Blackstone, page 221, and you will find the following: “A owho has got possession of the throne is a king within the meaning of the statute, as there is a temporary allegiance due to him for his adminis tration of the Government and temporary protection of the o; against Henry VaInd therefore treasons, committed were punished under Edward IV, though all the line of Lancaster had been previously declared usurpers by act of Parliament. When, therefore, a usurper is in possession the subject is excused and justified in obeying and giving his assistance. Otherwise, under a usurpation moman would he safe if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience.” And, sir, the doctrine is found in a principle of common justice which must ever regulate the relation of the citizen to the Government. It is utterly impossible, where there ure 2 Governments claiming obedience from the individual citizen, that he shall be liable to be hanged by the one for disobedience and liable to be hanged by the other for obedience. It is contrary to reason; it is contrary to justice; it is contrary to that reason which Coke says is the perfection of the law, not such reason as every individual man hath, but such a reason as if all the heads of the world were put together they could not form more perfect teason. But, sir, there is authority for this doctrine from him who has been called the father of the Constitution. I refer to Mr. Madison. I presume it will not be contended by anyone that a citizen of any State of this Union owes any higher or more paramount allegiance to the Government of the U.S. than did an inhabitant of one of the 13 colonies of King George to the Government of GreatBritain. That our fathers owed allegiance to the Crown and King of. GreatBritain no one now, or ever did question; but how did they owe it? What was the doctrine of the fathers on this subject? They did not owe it on account of that old doctrine of allegiance, which has no application at all to this Government. I speak now of allegiance in the principles in which it exists and in reference to the circumstances out of which it grew. What is the origin of this doctrine of allegiance? It was founded upon the land and had reference to nothing else. When the conqueror won the land by his sword, he parceled it out among his followers, and in consideration of this parceling out the lands among his followers they became his liege subjects, and by virtue of that bestowal of lands, and nothing else, they came to owe him personal allegiance. But, sir, that is not the doctrine of American allegiance; it is not the doctrine that has ever been contended for in this country; it is not the basis of the American doctrine of allegiance. That arises, not from any distribution of the domain, the territory, but simply and solely from citizenship; it springs from citizenship and nothing else. When a man becomes a citizen then his duty as a citizen imposes upon him the obligation of discharging with fidelity every office incumbent upon him as such citizen. In the sense, therefore, of citizenship we owe allegiance to the Federal Government. But, sir, you must recollect that our system of government is very complex indeed, however simple it may appear to be to some. Here is a Federal Government; and what is it? A Government of limited, delegated powers; a Government owing its existence to whom? I know it has been contended by some that “we, the people of the U.S. “ made this government, and that the people of the whole U.S. are the authors and founders of the Federal Constitution. Not so, sir; they are no such people; in a strict sense they are the people of the several States united together for common, specified objects; and within the scope of the power thus delegated to the Federal government by, not the whole people of the U.S., but by the people of the States respect ively, the authority of the Federal Government is supreme. But, sir, that same constitution, which is the evidence of delegated authority by the States to the Federal Government, also recognizes the existence of those States and reserves to those States or to the people thereof every power not by the constitution delegated. Now, here is a State. You, sir, are a citizen of the State of connecticut; I of Delaware. How did you ever come to owe allegiance to this Federal government, or how did I ever come to owe allegiance to the Federal Government? By virtue of any act of the whole American people? No, sir. Born on the soil of my State, I owe allegiance to her, and through her act, and through her act alone, I owe fidelity, citizenship, allegiance, if you please to call it so, to the Federal Government within the scope and to the extent of its limited and delegated pow ers; and I owe it in no otherwise, by no other means, and to no other extent. Then, sir, I assert the doctrine of Mr. madison to have been, and I assert that to have been the settled doctrine of this country until a very recent period, that when the authority of the particular government to which the citizen owes allegiance and the authority of the Federal Government shall become antagonistic, irreconcileable, if the citizen, in obedience to the command of the particular Government to which he owed primary allegiance yields to that authority, and the Federal Government has not the power and will not protect him, he does not incur the crime of treason and is not subject to its penalties. ow, sir, although I did not intend to say anything on this subject today, inasmuch as have referred to iIt. cite you the authority of Mr. Madison; and it is to be found in no obscure, out of the way place, in no private letter. They were his utterances in the 1st congress of the U.S., and received the action of the HoRep of that Congress in approval of them; and they would have continued, in my judgment, to be . doctrine of the present day had not madness and frenzy seized the hour: had not the southern people, yielding to the counsels, the advice, aye, sir, and to the power of many of the leading men among them, fired upon Fort Sumter and thus incensed the whole nation. But for that, reason would never have so far forgotten the American people as to have charged the whole mass of them as guilty of crime because obedience to authority that they could not resist. I stated that I supposed it would not be contended by anyone that the allegiance which a citizen of any State in this Union owes to the Federal Government, is any greater or any more binding than the allegiance, which our fathers, as subjects of GreatBritain, owed to the Crown and Government of GreatBritain. Assuming that to be the fact, I call your attention to a case which occurred in the early history of this Government and cite to you the opinion of Mr. Madison, whose opinions are authority with the American people and have always been so considered. Before the Revolutionary war broke out, before the DeclarIndep, there was a young man who had not arrived at the age of 21 in SCarolina, by the name of William Smith, who was sent to England and the Continent to be educated. The DeclarIndep was proclaimed. War was raging in the country. Mr. Smith desired to return to SCarolina and share the fortunes of her people. He made an attempt, but was taken upon the ocean and car ried back to GreatBritain. About the close of the war, however, he returned to SCarolina and was elected to the HoRep as a member from that State and was sworn in, and he became one of the most distinguished members of that body. In a short time afterward a Dr. Mitchell, of SCarolina, presented a petition to Congress praying them to eject Mr. Smith from his seat as a member of Congress, on the ground that he had not been a citizen of the U.S. for 7 years, as the Constitution of the U.S. required, and it was in the discussion upon that subject that Mr. Madison uttered the following opinions. As the portion I desira to read is short, I will read the whole of it: “What was the situation of the people of America when the dissolution of their allegiance took place by the DeclarIndep? I conceive that every person who owed this primary allegiance to the particular community, in which he has been born retained his right of birth as a member of a community; that he was consequently absolved fnroemw theoallegiance he had owed to the British sovereign. If he was not a mine r he by became bound brisown act as a member of the society who separated with him from a submission to a foreign country. If he was a mine r, his consent was, involved in the decision of that society to which he belonged by the ties of nature. What was the allegiance as a citizen of SCarolina, he owed to the king of GreatBritain? He owed his allegiance to him as a king of that society to which as a society he owed his pri mary allegiance. When that society separated from GreatBritain he was bound by that act and his allegiance transferred to that, society or the sovereign which that society should, set up, because, it, was floor. his membership of the society of SCarolina that he owed allegiance to “This reasoning will hold goodG, ruenaltesBsritain. it issupposed that the separation which took place between these States and GreatBritain, not only dissolved the union abmetownegen these countries, but dissolved, the union the citizens themselves; that the original compact which madethem altogether one society being dissolved, they could not fall into pieces, each part making an independent society, but must, individually revert into a state of nature; but I do not conceive that this was of necessity to believe such be the ease. a revolution did not absolutely take place. But in supposing that this was the case lies the error of the memorialist. I conceive the colonies remained as a political society, detached from their former connection with another society, without dissolying into a state of nature: but capable of substituting a new form of government in the place of the old one, which they had for special consideration abolished., Suppose the State of SCarolina should think proper to revise, her constitution, abolish that which now exists, and establish another form of government: surely this would not dissolve the social compact? It would not throw them back into a state of nature?. It would not dissolve the union between the individual members of that society? It would leave them in perfect society, changing only the mode of action, which they areoat liberty to arrange. Mr. Smith being then, at the DeclarIndep, a mine r, but being a member of that particular society, he became, in my opinion. bound by the decision of the society with respect to the question of independence and change of Government; and if afterward he had taken part with the enemies of his country, he would have been guilty of treason against that Government to which he ow allegiance, and would have been liable to be prose cuted as a traitor.” Sir, there has been no friend of the much derided doctrine of State rights that has ever uttered language stronger than that to show that their citizens in following the fortunes of the State, especially that portion of their citizens who only yielded obedience to a power which they were incapable of resisting, and yielded obedience to a power against whose authority there was no Government able" or willing to protect them I say there has been no authority cited anywhere stronger than this to show that such men have not incurred the crime of treason; and, sir, I thank God it is so. I thank God that I do not believe in my heart that there are 8 million American people that today have the sin and stain of.. o treason upon their souls. I know that a large portion of my countrymen have acted madly and unwisely and raised the standard of revolution; but, sir, the noblest spirits to which the world ever gave birth have done so in times before. Men may act unwisely, men may act madly, but they may act conscientiously; and though they may act unwisely and madly it does not follow that thereby they have incurred the guilt of the greatest crime known among men. There may be, and there are, bad men and bad citizens in every State of the Union, but they are not confined to anyone State nor to anyone section of this country. Tell me not, sir, that north of the Potomac and the Ohio there resides all the love of country and all the spirit of patriotism to which this country has given birth. Tell me not that north of those streasonsall are perfect angels in purity and the devoted admirers and lovers of civil and constitutional liberty, and that south of those streams, down to the Rio Grande and the Gulf, there are none but traitors. Sir, I believe in no such inhuman doctrine; neither does the law countenance any such doctrine; neither do the o: of the fathers support any such doctrine. hat in that struggle there may have been individual men who incurred the guilt of treason I am not going to question; but that the great mass of the people over whom these governments defacto were established, by yielding obedience to the authority of the particular government under which they lived incurred the guilt of treason I never have believed, and I do not believe today. I regret as much as any man the attempt they made to sever their connection with the Federal Government. It not only brought ruin and wretchedness upon themselves; it not only wasted and desolated their fair habitations, depriving them of the comforts, to say nothing of the elegancies of life, but, sir, to us of the bor der States, who did not follow their example, but who remained true and firm to the old government, it brought distress and misery. It gave the pretexts to a E. which had lately come into power to invoke necessity as the great law of government, to arrest by the strong arm of power, and to drag into forts and bastiles innocent and unoffending men for the gratification of party, spirit and to perpetuate the E. party in power. But, sir, though it rought more distress upon the people of my State than it did upon. States of gentlemen further removed, yet I should be ashamed of myself if I could on that account harbor any resentment or any indulgence of malice, charging millions of my countrymen with the crime of treason. It is true they have no representative on this floor to speak for them. I come, it is true, from my own State to join in the public councils; but when I cast my eye across yonder stream and know that there are not only brave and honest men, but women and innocent children inhabiting its soil, I will not remain silent when I hear the whole mass of that people, or any great portion of them, charged with being guilty of treason. Mr. President, it is time, high time, that wholesale accusations like these had ceased to be made. They can subserve no public good. They will not rekindle and renew the warmth of affection which ought to exist betweenthe people of this whole country. God knows we have had strife enough, suffering enough, misery enough, wretchedness enough. And now, when the country is dissevered by your acts, or kept dissevered at least, I hope that the utterances of such wholesale denun ciation will cease. No, sir; rather throw open your legislative halls to the representatives of a people who are anxious to get back under the protection of the old national flag and in communion with their brethren of other States. Instead of these denunciations let it go forth, “You are not to be taxed without representa.tion, but taxing you we open our doors to your people, ” and one shout of joy will goupthrough out the length and breadth of this land from every true Union and conservative man. Even the little children will join with their fathers and mothers in invoking the blessings of Al mighty God upon your heads. Do it, sir, and where the war has caused desolation there shall spring up flowers of loveliness and beauty; the aching heart shall be made glad; the desponding soul will take hope; and hereafter we will march on together to a common destiny of national glory and renown, a united, prosper ous, and happy people. Thus united we need fear no enemy from without, and if we be true to ourselves we shall have no enemy from within. Mr. President, I have made these remarks more extended than I intended, because I offered the amendment proposing to repeal the whole bill of 1862. That bill treats the whole of these people as traitors, and proposes to confiscate the property of every man among them on the ground that he is a traitor from having been engaged either actively or submissively in the late civilWar. Entertaining the opinion as I do, that such is not the fact, that such is not their condition, I have offered the amendment. I refer to no individual cases; I refer not to the case of Mr. JeffersonDavis, because I have always held that themention of his case in the Senate of the U.S., he being under arrest, and subject to trial, is improper, that he ought to have an opportunity, if he should be brought to trial, to go before a jury of his own country without prejudice, and without the jury and the judge being told beforehand what the legislative dept of the Government expects them to do in the case. I have confined my remarks to the great mass of the southern people. I say that law, justice, humanity, every noble consideration which can promote or control the action of wise legislators should lead to the repeal of this act.