Mr. DAVIS. I submitted an amendment to strike out that section, and I now propose to say a few words in support of my amendment. It has been my habit from the time I have been a member of the Senate to oppose every measureand every proposition that I deemed to be an infraction of the constitution or an aggression upon the liberties of the people. I intend to persevere in that course; intend to do it persistently, stubbornly; and there is no consideration whateverthat will induce me to ause or to relax a solitary instant in that line of duty according to my judgment and discretion. In conformity to that principle of duty I now proceed to make some remarks in support of the amendment which I have offered. Mr. President, it is a great problem whether there is not national as well as individual insanity. I believe that there is such a thing as national insanity; but when iuSanity seizes upon a nation it is not in the form of general insanity it is only monomania. I am perfectly satisfie that that form of insanity has seized upon this nation, that it rests in the 2 Houses of congress, that it droops over the Senate with fatal mischief to the nation and to the people. Upon that proposition I have no doubt, because I cannot conceive upon any other principle how the legislation of congress, and how the legislation of the Senate, should be in such utter disregard of the constitution of the U.S and of the liberties and the prosperity of the people of America. Mr. President, there are good lawyers in this body, and among the very best is the honorable Senfrom Maryland, [Mr. J oussos] if not the very ablest in the nation. This degree of insanity has reached him, even; and if it is of such a nature that it can approachthe State of Maryland and enchain upon the seat of reason the lofty intellect and the profound legal learning of the honorable Senfrom Maryland, what is to be expected in relation to the lesser lights here thate aim to bejurists, and especially those from that region of the U.S. that is so flagrantly infected by this insanity? Now, I will propound to my honorable friend, the Senfrom M land, one ortwo propositions and I will ask imto debate with himself whether they are not irrefutably true. The 1st is that our constitution creates a Government of limited powers. The 2nd is, that every power not conferred by the constitution upon the U.S. is reserved to the people or the States respectively. From these 2 propositions I know he will not and cannot dissent. I now proceed to propound another proposition, and this is the princial one: in the construction of instruments o writing, of the law, and of the constitution, a universal principle which is never to be departed from is, that where there is positive prohi lition of power or a positive creation of right by the language of the instrument, that right and that prohibition of power can never e subverted by any implied authority. I hold that that principle is as immovable as the eternal hills; t rat it me received the recogmition of all the courts of England and of America, that where an instrument of writing, be it in the form of a contract ora constitution, contains a clause in positive language, that clause cannot be subverted or restricted in its operation by any implied power. Apply that principle of universa construction to the question under consideration, and what does it amount to? In the constitution of the U.S. we find the plainest and most positive guarantees of the rights of property: we find it. asserted in the plainest an most positive lan, age, that no man shall be deprived of life, iberty, or property, except by due recess of law, and that no mans property shal be taken for public use exceptn on just compensation being made. Now, as my honorable friendfrom Illinois, if these are not rights positively guarantied by the plain letter of the Constitutionto every citizen, and I ask him, then, whet. her any power or any right arising by mere implication can have the effect of subverting the right secured by this positive language of the Constitution. Sir, I say that such positive powers are not to be overturned and subverted by implication, and that the SCOTUS, in the great case of McCulloch rs. Maryland, and in many other cases, has sustained that principle. Further, sir, I assert that there is not a respectable State court in America that does not sustain it as ageneral principle, in the construction of all instruments, that a positive, express power cannot be changed or subverted or atfected by an implied power. I have shown, by adverting to the clauses of the constitution, that there is the most express and explicit guarantee of a right of property in that instrument to the citizen. Now, I say that the measure under consideration in the clause which I have moved to strike out imports nothing more nor less than an infringement and total disregard in relation to the subject under consideration of those provasions of the Constitution which guaranty the right of property. My principle, then, would be that Genera Sherman, even while war was pending and he was in the field and occupying a portion of the country as a conqueror, would have no right to raise by implication a military power that would at all conflict with, much llyesssubvert, for the time, these positive guarantees of our constitution, of the rights of propertyin the citizen. But, Mr. President, I do not at present think proper to insist upon the prinnciple to that. extent. I waive it in relation to its up lication to a time of war. I now assume that the country is at peace; the President has said so in his communications here. We all know the fact. It is as palpable as night and daylight at their respective hours in the 24. It is a proposition that nothing but. passion or selfishness or villainy in some form will ever controvert. It cannot be controverted. You might 1866.” 395 as well try to contrevert the fact, in noon day, when the heavens are cloudlcss, that the sun is shining. Now, Mr. President, the country being in peace, the question is, whether. these military possesscry titles, or the more right of possession given by GenlSherman , can be confirmed by the present measure or by any other action o Congress. I say it cannot. It is not my purpose now to impugn GenlSherman . I believe that the only particle of statesmanship that was exhibited by any military commander during the war was exhibited byriiim in his ar rangement with Johnston; and I believe that if that arrangement had been taken up in good faith, and adbeen confirmed and executed by the Government, the restoration of the Union, and not only that, but the harmony and frater nity of the people of the U.S., at this time, would e perfect. My present csition is this: that the possessory rights which GenlSherman granted to, the negroes ceased with the cessation of hostilities. hat principle is a principle of national law, and it would apply at this time, under the present state of circumstances, between independent Powers. I illus trate it in this we: suppose England and the U.S. he been at war, or the U.S and Mexico, and we had made connests in Canada or in some of the provinces of exico, and our commander, General Scott, in the late Mexican war, or any other general, had granted to American citizens, or to any persons whatever, the possession of lands there, precisely in the terms in which GenlSherman has ranted these lands to the negroes in the Sout, the moment that that war ceased the possession conferred by the military commander would terminate, an those who owned the lands previously would be entitled to resume posses sidn of them. I will read a section of law from Phillimore in support of that principle: "The conqueror dethrones the sovereikn and as sumes the dominion of the conqueredterritory; but as a general rule he doesno more.” Now, sir, apply that principle to this intes tine war, and all that was effected as our conquering armies marched through the South and occupied the country was simply to dethrone the power of the confederate government. “The conqueror dethrones the sovereign and assumes the dominion of the conquered territory; but as a general rule he does no more. It has been well laid down by the tribunals of the North American U.S. that the modern usage of nations, that large and important part of the international law, would be viclated the senseof justice and of right, which is felt and acknowledged by the civilized world, would beoutraged, if private property were generally confiscated and private rights annulled. The pen le, indeed. changct eir allegiauco; their relation tot cir ancient sovereign is dissolved; but their relations to each other an their rights of property remain undisturbed.” All the power that Congress has, all the power that the government of the U.S. has, in relation to the late insurrection, is to suppress it. They have not a particle of power outside of that which is imported by that term. The honorable Senfrom Maryland [ML JOHNSON] in his masterly argument drew a correct distinction between the power of war and the power to suppress insurrection under our Government. Eh stated trul, and he established the proposition beyon all doubt, that the one was the war power and the other was the simplepower of police; that the simple power o police applied and inured to the benefitof the Government of the U.S. in putting down this insurrection, in “ suppres sing” it, to use the language of the Constitution, and that the war power, as it was created in the constitution ha no application to the case: and no gentleman on this floor, or out of this Senate, can overturn that position, or shake it. Phillimore, treating of war between independent States, says expresly that where there is a war between independent States, and one country, or a portion o one country is conquered, the only effect is that the conquered country yields its political subjection to the conqueror, and the moment peace is declared and made, that moment the private property of the conquered people reverts to its owners. Mr. President, if that is the law between for cign nations, with how much more force and truth is it the law in relation to our own country, and to our own fellowcitizens who were latel in revolt and who have been subjected to obe ience? If the South had been a portion of the English possessions, or the French possessions, or the possessions of any other foreign Power, according to this plain, explicit, and now universally received principle of national law, when GenlSherman marched into Geor gia and SCarolina, and subdued the country, and reduced it to subjection to the American arms, all the effect o that conquest would have been simply to transfer the political allegiance of the people to the Government of the U.S.; and if he had taken poslession of private property, the moment that peace was made between the countries, that instant this private property, with all the rights of owner ship, would be reinvested in the owners thereof, as though there had been no war at all. This principle demonstrates beyond all doubt or reasonable contradiction that neither the Senate nor the Congress of the U.S. have any power to confirm these possessory titles, or the mere naked right of possession, to this property, kecingoutthe rightfulowners of that property one ay after peace has been declared, one day after peace in fact exists, one day in fact after the suppression of the insurrection. The suppression of the insurrection makes the peace. this only a great riot; it is only a great sedition. Wherever a riot, or sedition, or insurrection occurs in a country, where that country has a government like ours, the police power to que l the riot, to put down the sedition, to suppress the insurrection, applies; and so soon as the riot, or the sedition, or insurrection is put down, the office and power of the Government over the matter ceases; the power then becomes functus ojficio; and all the rights of the citizens, all their obligations to the Government, and all their rights of private proorty immediately apply, as though there had been no riot, no sedition, no insurrection. Now, Mr. President, I will make one further remark and then take my seat. I have heard the cry of “ Mad dog l” “ Mad do, i” and then the multitude shout, ” Kill him! ki lhim! damn him, kill himl” The South has beenla mad dog; the South has acted with folly and great criminality; but the South has been subdued; the South has come back to its allegiance; the South has resumed its reason and its loyalty. The mind and the reason of the South have become satisfied of the impossibility and folly of that insurrection which it made against the Government of the U.S. It has become convinced in its deepest reason that its duty to itself and its safety requires a perfect obedience to the authority of the U.S and to the laws and constitution of the U.S. It offers now, not in its passion, not in its weakness, not in its fears, to come back and render its allegiance to its country and its Government; but in the deepest convictions of its reason, it offers to render noble, manly, just, and propertribute to the supremacy of the Government of the U.S. How is that proposition received 7 All the frenzied people of the North, all the stronminded spinsters of NewEngland, all the fig ting clergy of the northern States who are for lettin slip the dogs of war and crying have c, all the Illack Republican party, dved in the wool, who hold office obtained in this crusade against slavery, and who expect to retain it only by keepin up this crusade and this fierce and irrationa frenzy, all the Jacobins, all the men who belong to “The Mountain ” of Washington city and Americafor we have “ The Mountain ” here as they had itin France in the days of the French ltevolutionall of them are now shouting “Mad do 1 mad do I kill him! kill him! damn him, kil him 1” ir, that spirit does not become a Christian people; it does not become a inst people; it does not become a wise and politic people. No country can ever be permanently reduced to peace and order and fraternity and confidence and love and affection for its Government by pursuing any such policy. We are members of the some national family, and we should treat each other as we would treat our own private family; and the head of a family who would so treat his erring and sinning son, in stead of winning back that son to duty and love, would make him his eternal and unforgiving enemy. Believing that this section is in do and conflict with the constitution and with the laws of nations governing even separate and independent States and securing to them belligerent rights, believing that it is in conflict with both codes of law, the national and constitution al, I move to strike it out from the bill.