CHAPTER XII.

PROSCRIPTION OF PERSONS AND PROPERTY.

LEGISLATIVE AND EXECUTIVE MODES

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NON-INTERCOURSE - THEORY AND PRACTICE - WAS SECESSION WAR OR NOT - IT WAS A PRACTICAL FACT DILEMMA AS TO "PIRATES" AND PRISONERS OF WAR - LINCOLN'S SOLUTION — ANOMALOUS RIGORS, NORTH AND SOUTH HIGHER LAW NEWLY APPLIED ESOP'S SATYR — AFTER THE WAR - FOLLY OF NON-ACTION SOUTH-TWO DECADES OF TROUBLE MIGHT HAVE BEEN AVERTED— RADICAL PROSCRIPTIONS UNCONSTITUTIONAL - RATIFICATION OF AMENDMENTS - CONFISCATION ACTS — ATTAINDER AND EX POST FACTO LAWS - BELLIGERENT STATUS VIOLATED-TEST OATHS - LOYALTY-CUMMINGS AND PERMOLI CASES IN RE GARLAND – JUSTICE FIELD'S DECISIONS FOURTEENTH AMENDMENT — A BILL OF ATTAINDER-ITS MONSTROSITY. -FORCE BILL AND ITS FATELIBERTY ECLIPSED-TEST OATH REPEALED IN 1884-RAPINE BY LAWDEMOCRATIC PROTESTS AGAINST OSTRACISM AND TYRANNY.

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HEN it was finally determined that no compromise would be offered to the South by the Republican party without an absolute waiver of all the questions affecting slavery, there was no mode left for the settlement of the issue of secession, other than that by force of arms. True, Mr. Lincoln issued, from time to time, his proclamations to the South; but these were always read by the people to whom they were addressed, in the light of past experience. Mr. Lincoln did not, and could not for his party, give any assurance that the grievances of which the South complained would be remedied by submission to Federal authority. Seeing that the idea of compromise was rejected with contempt, the Confederates at once organized a de facto government. That government was republican in form. It had its constitution, and its three departments of authority-the legislative, the executive, and judicial. Armies. were put in the field and a naval force was created to maintain the independence declared by the Southern States. In this condition of affairs, the President of the United States, on April 15, 1861, issues a proclamation to the

states of the Union. It calls for seventy-five thousand of the militia to aid the army and navy in an effort to re-possess the forts and arsenals which had been seized by the Confederate forces, and otherwise to compel submission to the general government. To this the Provisional Congress of the Confederacy responds on May 6, 1861. It passes "An act recognizing the existence of war between the United States and the Confederate States, and concerning Letters of Marque, Prizes, and Prize Goods." This act prescribes rules for the conduct of the war, according to the mode of independent belligerent powers. Shortly afterward, on the 13th of the same month, a state of war is recognized by Her Britannic Majesty's government as existing between the de facto Confederacy and the United States. France and the other powers of Europe follow the same course without delay. The Federal Government protests against this foreign recognition. It denies the right of a foreign power to take cognizance of any local or sectional disputes in this country. It denies that there is a state of war within the nation. It asserts that the existing trouble is of a temporary nature, and that the great mass of the Southern people will not give their support to an outbreak that must soon be suppressed by the Federal Government. The immediate cause, or excuse, for foreign recognition of the Confederacy is the proclamation of President Lincoln, issued on the 10th of April, 1861, declaring a "blockade" of the ports in certain of the seceded states, in pursuance of the "law of nations" and the statutes of the United States " in such case made and provided. Persons acting under the authority of the Confederacy who molest any United States vessel are to be treated as "pirates."

On the 16th of August, 1861, in pursuance of an act of Congress recently passed, President Lincoln issued another proclamation, declaring the inhabitants of the eleven seceding states (except those of West Virginia) to be in a state of insurrection against the United States. It forbade the citizens of other states from holding any commercial intercourse with them. Other executive proclamations and acts of Congress followed. Each of them characterized the Confederacy as a pretended government, and the support given to it as an insurrection or rebellion against the only government, de facto or de jure, within the constitutional limits of the United States. Never once in diplomatic correspondence, or in proclamations, or act of Congress, did the Federal Government directly admit the existence of a state of war in the South. It was in practice only, that war was recognized as existing. The government was compelled by force of circumstances to treat with the Confederacy as a belligerent power. And because of the ability of that power to maintain what is called a war, the Federal Government, both from policy and humanity, was compelled to suppress the "insurrection" or "rebellion," according to the modes of war. A pertinent illustration of this dilemma occurs to the author. In the progress of events, and before practice had regulated the theory, some sailors in the Confederate service were captured. They were not treated

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as prisoners of war. They were sent to Philadelphia. They were indicted as pirates by a United States Court grand jury. They were tried and convicted as felons, for acts of piracy and murder upon the high seas. The Confederate authorities retaliated. Colonel Corcoran and two other Federal military officers of equal rank had been captured at Bull Run. They were at once treated to a like imprisonment, if not worse. They were held as hostages, to be hanged, in case the Confederate seamen were hanged. This painful predicament alarmed their friends and fellow-compatriots. It led the author to introduce and have passed, at the second session of the Thirty-seventh Congress, his resolution for the exchange of prisoners.

In this dilemma, the friends of the imperiled Union soldiers visited Washington. They brought to the President an able presentation of the case from the gifted pen of Charles P. Daly, Chief Justice of the Common Pleas of New-York City. Richard O'Gorman, the distinguished jurist and orator, now upon the bench of that city, was its custodian and interpreter. He called upon the writer to present him and his address to President Lincoln. The writer was then a Representative from Ohio; but through many kindly offices from the President, he was regarded as being specially devoted to the exchange of prisoners so as to mitigate the severities of a war which could not then be stopped. After hearing the matter, the President reserved his decision, but requested the writer to call again. He did call the next day, when a happy thought seemed to end the controversy. It was developed out of the Socratic method of argument.

The author here presents his interrogatories and the responses: "Mr. President, you are endeavoring to put down this insurgent force by force?" "Yes." "You desire to keep alive the patriotic sentiment?" "Yes." "The Irish are a martial race. The Sixty-ninth are Irish. Colonel Corcoran is their favorite. Will you discourage them?" "No." "Will not this threat of retaliation and hanging rob the service of some of its best soldiers, and detract from its gallantry and esprit?" "Yes." "Well, then, Mr. President, if much good and no harm results from relieving our Union officers in durance, South, why not exercise your prerogative?" "Ah! there it is," said the President, "you would have me recognize these pirates as belligerents. Remember that to fight on land is one thing, but on an unstable element like the sea, where men are isolated and helpless, is another." This was, then, the sum of the reasoning against an exchange of prisoners. It had in it no element of humanity or international law. The writer then put one more question: "What is the difference between firing a shot at yonder flag (pointing out of the White House window to the flag flying from one of the forts on the Virginia hills) from Ball's Cross Roads, where you can almost see the 'stars and bars,' and firing a shot at the same sacred emblem from under the same star and bar' bunting upon the mobile element? Are not both shots intended to take the life of the Union? Where is the difference in intent and

conduct? Does the difference consist in one being fired on the soil and the other on the sea? Is it one thing from yonder red banks and another from the blue sea?" The President quizzically pondered a moment over the ad absurdum, and then admitted that there was no substantial difference. He promised relief. It came. Secretary Seward ordered an exchange of the so-called pirates as prisoners of war.

All the heated discussions in Congress and in the press of the country in respect to the course which should be pursued in restoring the Federal relations to all parts of the Union had their source in this anomalous condition. Both Democrats and Republicans agreed that while secession was a fact, its theory was not to be admitted. They further agreed, while secession was a potential fact, that whether admitted or not to the outside world, the United States had become bound to treat the people of the South who were resisting the Federal laws and armies, not as "rebels" and "traitors," but as belligerents. Their belligerent status was irrevocably admitted in the capitulation of the armies of Lee and Johnston. Early in the contest, it became the doctrine of the courts that the Confederacy was a belligerent power, and they applied the principles of the law of nations in the elucidation of all questions arising out of that state of belligerency. After the surrender of these armies, it was claimed by those who desired to treat the late belligerents as a conquered people, that "The law of nations is above the Constitution." It was meant by this, that certain acts of Congress passed during the existence of the Southern Confederacy and the period of reconstruction, and other executive acts, which were contrary to the spirit and letter of the Constitution, were in fact valid because of that "higher law," — the law of nations.

While it is admitted that the law of nations is a part of our judicial system, it has never been regarded by any American jurist as being above the Constitution. We may except, perhaps, some of the extremists whose judgment was warped by passion and partisanship. It is certain that the law of nations has no force against those principles of our organic law which define the powers and duties of the general government in its relations with the states and the people of the Union. This is the doctrine that Mr. Seward stated to the powers which recognized the Confederacy. He protested against recognition on the ground of international law. It is the very corner-stone of all the proclaimed policy of Mr. Lincoln in regard to secession and its consequences. It is the doctrine which the Democratic party asserted and acted upon, from the first to the last, in the great ordeal through which the nation passed. Mr. Reverdy Johnson gave it elaboration and eloquence in his debate with Senator Howe and other Senators on the reconstruction policy, to which allusion is made in subsequent chapters. He said that the armed resistance in the South was a rebellion or insurrection fully provided for in the Constitution. It might be called war by international law, but

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not by constitutional law. True, the logical technical result would be, as Mr. Johnson admitted, that those who aided the Confederacy had violated the laws of their country and were subject to its penalties.

The infliction of severe penalties was the very thing most desired by the radical party. They had, however, a method in their passion. Revenge was sweet, but political ascendency and the power it confers, was far sweeter. Besides this, would it be possible to inflict the penalties of the law on a whole people who had violated the law? Could a criminal intent be attributed to the whole people of a state or of a confederacy? Ought the era of barbarism to be permitted to come back with its cruelties and rigors? There was no disposition on the part of the people who suppressed secession to execute the rigors of the law. Nor would it be sound policy to attempt it. Every instinct of common blood would be in revolt against it. Our concession of belligerent rights to the South was in itself a waiver of the right to prosecute our Southern brethren for their belligerent acts. It would have been simply atrocious, under such circumstances, and after peace was restored, to carry on a system of proscription in the courts, even though it were possible to find judges and juries so depraved as to become its instruments. But by no other mode than this could any citizen, while subject to the jurisdiction of the United States, be deprived of the rights pertaining to citizenship. The war was prosecuted by the United States on the theory that every man, woman, and child in the seceded states owed allegiance to the Federal Constitution and Government. No other theory was at any time admitted in the North. The people of this section would at no time admit that the mode adopted to enforce Federal jurisdiction—the mode of war-estopped them from asserting the unity of the Nation with all its incidents of power. Hence, it logically and constitutionally follows, that no citizen could lawfully be estopped in the defense of his rights as a citizen, on the ground that he had repudiated the government that was created to maintain its sovereignty over him. He could not "attorn" his Federal allegiance.

Here was a predicament for the party of reconstruction. Its shrewd leaders foresaw it early in the conflict. The very men who most bitterly opposed the exchange of prisoners, lest it might be regarded as a recognition of a belligerent power in the South, were the most positive in asserting, after that power had ceased to exist, that in fact and in law it had existed. According to the doctrine of the radical apostles, the Union was abolished. Eleven of its states had in fact, and according to the "higher law," established an independent government, with which the other fragmentary government of the late Union was at war until it came out victorious. Væ victis! they cried. The South was now at the mercy of the party of conquest. It must be governed as a recently acquired province. No, not even that, for a conquered country is allowed to retain its own domestic institutions, when it gives its fealty to the conqueror. The Republican party must be allowed to act in