great difference is made between the innocent and the guilty. But how can it be said that the States are not at war? Individuals do not make war. Individuals may take life, but they cannot make war. They cannot be recognized as belligerents. War is made by chartered or corporate communities, by nations or States. Phillimore, vol. 3, p. 101, sec. 69, says: Nevertheless, as war is the conflict of societies, that is, of corporate bodies recognizing and governed by law in all their actions, &c.

66

"On page 100, sec. 68, he says:

A war between private individuals, who are members of a society, cannot exist. The use of force in such a case is a trespass or violation of municipal law, and not war.

"The Supreme Court of the United States, in the prize cases decided at its last session,

says:

Hence, in organizing this rebellion, they have act ed as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government."

Mr. Smith: "I do not exactly understand the position of the gentleman, nor do I know that the question which I propose to ask will cause any difference in the result at which the gentleman arrives; but from the remarks already made by him, I desire to ask him this question: whether he takes the ground that a State, and not the individuals of a State, commits the crime of treason against the Government of the United States?"

Mr. Stevens: "I take the ground, sir, that when you cannot punish them as traitors, you can make war with them as belligerents. It is not a question of punishing under the Constitution, but outside of it. These men are enemies, and we are treating them as enemies; and I have no doubt that, as States, they are at war with us."

Mr. Smith: "The question that I mean to put directly, if the gentleman will allow me, is this: whether the Government has power to punish a State in its corporate capacity, and not the citizens of a State as individuals?"

Mr. Stevens: "I mean to say that if a State, as a State, makes war upon the Government and becomes a belligerent power, we treat it as a foreign nation, and when we conquer it we treat it just as we do any other foreign nation. That is my position, very distinctly."

Mr. Smith: "I understand the rule of law to be that a corporation has neither body nor soul; and therefore I would like to ask the question whether we can punish a State which, as a corporation, has neither body nor soul?"

Mr. Stevens: "If the gentleman be right, how then could we punish Great Britain when, we make war upon her? If she has no soul to be damned, she certainly has a body to be lost. When we conquer her we shall take good care, let me tell the gentleman, that she shall be properly punished, if we have any regard for our people at all."

Mr. Bliss: "I ask the gentleman from Pennsylvania, if the seceded States are foreign governments, what right we have to adjudicate upon their private property."

Mr. Stevens: "When we seize it as the property of enemies during a war we have a right to take it."

Mr. Bliss: "And hold jurisdiction over the soil of a foreign country?"

Mr. Stevens: "That is what I should call amphibious action, which the gentleman will understand from my remarks.

All persons residing within this territory whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners.

"This seems to me to settle the question. This may work a hardship on loyal men opposed to the war. But to escape the condition of enemies they must change their domicileleave the hostile State; for I again repeat there can be no neutrals in a hostile State. As the United States are at war with an acknowledged belligerent, with a foreign nation, and as such war has abrogated all former compacts existing between them, neither the United States nor the Confederate States can, as against the other, claim the aid of the Constitution or the laws passed under it. If they still exist, the slaveholder of South Carolina might claim the aid of the fugitive slave law to regain his absconded slave. So Gen. Barksdale with others was murdered, because he was shot down without being tried and condemned according to the provisions of the Constitution.

แ

By the law of nations, the captain and crew of a vessel are supposed to be standing on the soil of the nation whose flag the ship bears, although in distant seas. Those armed vessels that belong to no nation and make war are pirates. The Alabama and its fellows are not treated as pirates, and must therefore belong to an acknowledged nation. That nation is the Confederate States. But if the territory of the Confederate States is our territory, then he who treads the decks of the Alabama or Florida stands on our soil, and plundering on the high seas, is a pirate. We do not so treat them until we have conquered the country held by the Confederate States. Covered by the confederate flag, it is a foreign country. When we do conquer it, it is a conquered country. Any other principle would render all our conduct inconsistent and anomalous.

"If the rebel States are still in the Union I see no reason why they should not elect the next President of the United States. Any number of them might meet and choose electors, who might cast their votes for President and Vice-President, and demand that they should be counted by Congress. Or if the rebels decline to vote, then a hundred loyal men, 'who are the State,' might meet and choose electors. The few loyal men around Fortress Monroe, or Norfolk, or Alexandria, and a few cleansed patches in Louisana, being

one-thousandth part of the States, might choose electors for their whole States.

"The idea that the loyal citizens, though few, are the State, and in State municipalities may overrule and govern the disloyal millions, I have not been able to comprehend. If ten men fit to save Sodom can elect a governor and other State officers for and against the eleven hundred thousand Sodomites in Virginia, then the democratic doctrine that the majority shall rule is discarded and dangerously ignored. When the doctrine that the quality and not the number of voters is to decide the right to govern, then we have no longer a republic, but the worst form of despotism. The saints are the salt of the earth; but the 'salt of the earth' do not carry elections and make governors and presidents. Within the State of South Carolina a rebel's vote weighs just as much as a loyal voter's. We may conquer rebels and hold them in subjection, and legislate for them as a conquered people; but it is mere mockery to say that, according to any principle of popular government yet established, a tithe of the resident inhabitants of an organized State can change its form and carry on government because they are more holy or more loyal than the others.

"From all this the legitimate conclusion is, that all the people and all the territory within the limits of the organized States which, by a legitimate majority of their citizens, renounced the Constitution, took their States out of the Union, and made war upon the Government, are, so far as they are concerned, subject to the laws of the State; and, so far as the United States Government is concerned, subject to the laws of war and of nations, both while the war continues and when it shall be ended.

"If the United States succeed, how may she treat the vanquished belligerent? Must she treat her precisely as if she had always been at peace? If so, then this war on the part of the United States has been not only a foolish but a very wicked one. But there is no such absurd principle to restrain the hands of the injured

victor.

"By the laws of war the conqueror may seize and convert to his own use every thing that belongs to the enemy. This may be done while the war is raging to weaken the enemy, and when it is ended the things seized may be retained to pay the expenses of the war and the damages caused by it. Towns, cities, and provinces may be held as a punishment for an unjust war, and as security against future aggressions. The property thus taken is not confiscated under the Constitution after conviction for treason, but is held by virtue of the laws of war. No individual crime need be proved against the owners. The fact of being a belligerent enemy carries the forfeiture with it.

"To my mind there can be no doubt as to what we have a right to do if, as I will not permit myself to doubt, we should finally conquer the Confederate States. What it will be

policy to do may be more difficult to determine. My mind is fixed. The rebels have waged the most unjust, cruel, and causeless war that was ever prosecuted by ruthless murderers and pirates. They have compelled the Government in self-defence to expend billions of money. Every inch of the soil of the guilty portion of this usurping power should be held responsible to reimburse all the costs of the war; to pay all the damages to private property of loyal men; and to create an ample fund to pay pensions to wounded soldiers and to the bereaved friends of the slain. Who will object to this? Who will consent that his constituents and their posterity shall be burdened with an immense load caused by these bloody traitors? Their lands if sold in fee would produce enough for all these purposes, and leave a large surplus. Such confiscation of course would spare the property of those who took no part in the war, and of the common soldiers, who were compelled by the laws of their States to enter the

army.

"All this done, and yet the half would be left undone. Oppressive as would be the debt and grievous the loss of our loyal citizens, yet if an honorable and safe peace were made our free and prosperous people would bear it without a murmur. But if a disgraceful peace were made, leaving the cause of this rebellion, and the fruitful cause of future wars, untouched and living, its authors would be the objects of the deepest execration and of the blackest infamy. While the Constitution protected the institution of slavery, very few desired to disturb it in the States. There were not three thousand abolitionists, properly so called, in the United States. But since those States have voluntarily thrown off that protection, and placed themselves under the law of nations alone, it is not only our right but our duty to knock off every shackle from every limb."

Mr. Broomall, of Pennsylvania, expressed his views as follows: "There are two positions taken by very opposite parties upon the status of those engaged in the rebellion. One is that they are for all purposes public enemies, and to be treated as such; the other is that for all purposes they are our fellow-citizens, and entitled to the benefits of the Constitution and laws of the United States. I think both these positions erroneous. I think the true theory is this: the rebels are in the wrong by their own voluntary act; they are therefore not entitled to any of the advantages of their position, but are subject to all the disadvantages of it. Against the Government they cannot claim to be either public enemies or subjects, but the Government at its election may treat them in either capacity, sometimes and for some purposes in one, and sometimes and for other purposes in the other. When subjects revolt, the sovereign, if they are few, applies the civil law, and hangs them or pardons them. In theory he may do so without regard to the number of the revolting subjects. But in practice, as the

number increases, the difficulty and the cruelty of enforcing civil law increase, and the more humane laws of war gradually step in. Captives, instead of being hanged for treason, are treated as prisoners of war. Other nations interfere in defence of their subjects. Aiding and abetting traitors is treason; supplying traitors with food and arms is aiding and abetting them. To prevent the consequences of this, other nations require the granting of belligerent rights to insurgents. Thus the laws of war take the place of the civil law. But as between the sovereign and the revolted subjects the right to enforce civil law is not changed. The laws of war are only superadded, to be exercised at the option of the sovereign, subject to the rights of other nations and of humanity. Subject to these rights it is for the sovereign to elect, in every particular case,

under which code of laws he will treat those

in revolt. The Government therefore may seize and confiscate the property of traitors absolutely, under the laws of war; or it may fine and forfeit absolutely under the civil law; but it cannot extend the effects of attainder for treason beyond the life of the attainted."

person

Mr. Wadsworth, of Kentucky, followed, saying: "I am astonished how any gentleman can refer us to the laws of nations in support of this act which the bill now before us proposes to amend, in the support of the amendment or in support of the position taken by the gentleman from Pennsylvania (Mr. Stevens) and those who agree with him.

"Why, sir, the usages of nations in modern times forbid the very means which the gentleman would employ, and the whole policy which he advocates. The laws of nations recognize the right of conquest between the parties to a public war, but do not authorize the seizure and confiscation of private property on land only in excepted cases; they do not authorize the conquest of individual property. On the contrary, they forbid it.

"I am not going into a lengthy citation of authorities. They have been quoted freely in the discussions upon this bill. They were cited fully and pertinently the other day by the honorable gentleman from Ohio (Mr. Finck), and I content myself now, in the main, with a mere reference to them. I rely upon all writers upon the public law who state the rule among civilized nations in modern times. Their testimony is uniform and explicit, uttering a united voice of condemnation upon the policy which the honorable gentleman from Pennsylvania (Mr. Stevens) demands. I rely upon the principles declared by all the civilized nations of the world in modern times, French, British, and American, in State papers, treaties, and diplomatic assemblies, to support the declaration of the elementary writers, that by the usages of the civilized nations of modern times, private property upon land is exempt from the spoliations of war, exempt from seizure and confiscation, except in certain specified cases.

Wheaton states the rule in clear and precise terms:

But by the modern usages of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuempted from the general operations of war. Private ments of art, and repositories of science, are exproperty on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions This exemption extends even to the case of an absolevied upon the inhabitants of the hostile territory. lute and unqualified conquest of the enemy's country.-Elements, &c., p. 421.

"This doctrine is supported by all writers who state the usages of modern nations. 1 forbear to quote. them again to the House. But I call attention to the language of Chief Justice Marshall in United States vs. Perchman, 7 Peters, 86:

the conqueror to do more than to displace the sov It is very unusual, even in cases of conquest, for ereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed.

"In another part of the opinion he speaks of the attempt on the part of the new sovereign to confiscate the private property of the inhab itants occupying the acquired territory as 'a wrong to individuals condemned by the practice of the whole civilized world.' Again, speaking of the eighth article of the treaty by which we acquired Florida, Chief Justice Marshall says:

This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipu lation, have conferred.-Page 88.

"I cite also the letter of a former American Secretary of State of distinguished reputation to the French minister, written in the course of that discussion which grew out of the Paris declarations of 1856. By the laws of nations as previously existing, private property on land was exempt from seizure and spoliation in time of war; and it was proposed by the Paris conference to abolish privateering, and to that extent accord the same immunity to private prop erty on the ocean. This Government was asked to assent to that principle being embodied in the laws of nations. The then Secretary of State (Mr. Marcy) replied very properly in behalf of this Government, that this Government would not assent to the proposition unless the nations represented in the Paris congress would also agree to abolish the right to seize private property on the seas by public armed vessels, placing all private property on the high seas in the same position as private property on land. Mr. Marcy in that letter gives the weight of his

sanction to the principle I now contend for, and I quote a part of it to establish the fact.

The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities. It is a generally-received rule of modern warfare, so far at least as operations on land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual property by an army even in possession of an enemy's country is against the usage of modern times. Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circumstances. Every consideration which upholds this conduct in regard to a war on land favors the application of the same rule to the persons and property of citizens of the belligerents found upon the ocean.-Mr. Marcy to the Count de Sartiges, July 28, 1856.

"The proposition of this Government to extend the principle recognized ås prevailing on land to the sea was declined. On the whole I am inclined to doubt the propriety of the proposed extension so far as we are concerned. I do not know how blockades are to be made effective if private property of the enemy on the high seas is to be exempt from capture; nor does it seem wise to exempt commerce,

the parent of so many wars, from its principal dangers.

"Yet the present Secretary of State, by direction of the President, has offered to accede to the Paris declaration, so great regard has the present Administration for the sanctity of private property not only on land but on the sea also.

"John Quincy Adams, in his correspondence both with the British minister and the American Secretary of State, affirmed the inviolability of private property on land, even in the case of slaves. I call the attention of the

House to this great authority. In a letter to the American Secretary of State, August 22, 1815, he says:

Our object is the restoration of all the property, including slaves, which by the usages of war among civilized nations ought not to have been taken. All private property on shore was of that description. It was entitled by the laws of war from capture.

แ

“Again, to Lord Castlereagh, Feb. 17, 1816: But as by the same usages of civilized nations private property is not the subject of lawful capture in war upon the land, it is perfectly clear that in every stipulation private property shall be respected, or that upon the restoration of places taken during the war it shall not be carried away-4 American State Papers, 116, 117, 122, 123.

"Mr. Adams contended that the British Government had violated the usages of civilized nations in taking away after the war was over, or in capturing during the war, slaves, because they were property upon land. It is known, sir, that by the treaty of 1814 indemnity was accorded by Great Britain for this very violation of the laws of war.

"But it has been said, and there is a caseBrown's case-8th Cranch, referred to often to maintain the position that a nation has a right to do these things which the laws of nations

forbid; that a sovereign accepts the laws of nations as addressed to his reason and justice and morality, but that if he chooses to disregard them he may do so. But, sir, my own opinion on that subject has been so well expressed by a distinguished judge-I mean Judge Hoffman and concurred in by two of the judges upon the supreme bench in the New Almaden mine case (2 Black.), that I beg the attention of the House while I read a short extract from it:

But, if it be admitted that humanity, Christianity, and the usages and rules observed by all civilized nations (which constitute public law), forbid even in war the use of certain means, the discussion whether such rights abstractly exist, would seem to be a disputation savoring rather of the subtility of the schools, than of that practical sense which seeks to discover and establish the actual rules by which nations in a state of war are governed. That the rights of war, as deduced by Bynkershoek, from a consideration of its abstract nature, are mitigated by the laws of war as established by the general consent of nations, with respect to the effects of conquest as well as to the mode of warfare, is proved by the general recognition of the principle that, on the conquest of an enemy's territory, private rights of property are to be protected.

be considered as confiscated, with all that belongs But, if "a nation which has injured another is to

this 'confiscation must extend to private as well to it, to the nation that has received the injury, as public property.-Judge Hoffman, with concurrence of Catron and Wayne, 2 Black, United States vs. Castillero, p. 368.

"I can add nothing to the force of these observations. Let it be remembered that it does

not matter how much power or how little the Constitution gives Congress to seize and confiscate private property on land, the laws of nations and of war stamp the exercise of such power as inhuman, immoral, infamous. "I consider, sir, the maxims of Christian nations in modern times on that subject too well established to detain the House with further reference to them. They deny the right in this Congress, in the exercise of its war powers, or its belligerent powers, to attack temples of religion, to spoil works of art, or in general to seize and confiscate private property upon land, and when we do it we do it in the face of the indignant and protesting Christian world. We are then outside of the pale of Christian nations. We boldly spurn their maxims, and despise and trample under foot their morality; and unless Christian nations reverse the judgments of the best and most enlightened men and multitudes and times, we must stand condemned and disgraced.

"The honorable gentleman takes the position that the eleven States now and formerly subject to the rebel power are out of the Union, and that we may make a conquest of them. Suppose I were to grant it. Shall we then put aside that law of nations which protects private property-a law sanctified by the self-interest of the conqueror, all the dictates of humanity, and the public opinion of the world? No; even conceding, which I do not, his right

of conquest, no right to seize and confiscate private property upon land in general would be conceded.

"But, sir, touching this contest carried on within the State, right of conquest and all other sovereignty rights admitted by the laws of nations are limited and definitely bounded by our Constitution. I must recur to the distinction I have endeavored to establish, or which at all events I have stated-and I cannot do much more than state my position upon this occasion-that we do not look to the law of nations, or the laws of war, for a definition of our rights either in a public or civil war, for that matter. War is the remedy for a violated or obstructed right. We prosecute our right by force; that is, make war. We look to the laws of nations for the rules which are to govern the conduct of the war, but not for the objects for which we may lawfully wage it, or the manner in which we may realize its acquisitions, or the extent of our sovereign rights. Where are our rights declared? Whence do they come? Our rights for which we wield the sword-where do we get them? From the laws of nations? If we get them from the laws of nations one of two things follows: either the laws of nations carry over the conquered country the qualified and limited sovereignty of the United States, or it gives them an unlimited sovereignty.

"I undertake to say that the laws of nations recognize in the conqueror an unlimited sovereignty. In a conquered province the laws of nations consent that you may set up a monarch, found orders of nobility, erect churches dependent upon the State, pass ex post facto laws, strike out equal State representation in the Federal Senate-you may do every thing and any thing you choose to do by your sovereign power. The laws of nations favor this. The laws of nations have no objections to kings, emperors, nobles, bishops. The protest against this infringement of the rights of man comes from America. Almost solitary and alone in the family of nations we are found to protest against the State with a king united to a church with a bishop. Yet, if it is there that we get our right of conquest and our soVereign right to rule the conquest, if it is there we go for a definition of our sovereign rights against a foreign and a domestic foe, and to interpret the manner in which we may enjoy the rights of conquest won either from foreign or domestic foes, to these conclusions must we come at last, or we come to the other, that by the laws of nations the conqueror does not conquer the sovereignty of a hostile Power, but merely substitutes his own sovereignty in place of that which has been expelled.

When Russia conquers Poland she strikes down elective monarchy and substitutes hereditary despotism in its place. If Turkey conquers a Christian province, the crescent is substituted for the cross. England makes a conquest, and by the omnipotence of unlimited

power Parliament governs it according to its will. But if the Republic of America acquires territory, the exercise of sovereign right in that territory depends, not upon the laws of Congress, of nations, of war, but upon the will of the sovereign people of America as expressed in the Constitution.

"I understood the gentleman from Pennsylvania (Mr. Stevens) to inquire where is the sovereignty of this country. The sovereignty of Russia is in the emperor. The sovereignty of Great Britain is in Parliament. Both are unlimited. The sovereignty of the United States is in the President and the army. But should it be there? I deny it. It is in the sovereign American mass, in the people. There is no sovereign but the people. The people of America have delegated a portion of their sovereignty to the States, and another portion they have delegated to the Federal Government, our glorious, and I trust, imperishable Union. The rest they have reserved to themselves. Consult that tenth article of the Amendments, which I believe this House did not quite lay upon the table when I had the honor to move it the other day; consult that and see the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' That sovereignty which in America can do no wrong like the sovereignty of Europe, at least no wrong for which it is criminally responsible, has delegated a portion only of that mighty sovereignty to the Federal Government. And in whom does it rest? In Congress, and not in the President and his army. Conquests made by this country, foreign or domestic-if you admit such a monstrosity as a domestic conquestare to be appropriated and settled and enjoyed and governed according to the laws of Congress, and by Congress admitted to the equal fellowship of States.

"The war powers, whatever they may be, are vested in Congress, and not in the Execu tive; and if the gentleman from Pennsylvania (Mr. Stevens) is as logical in action as in argument, the Executive of the United States must meet with his determined opposition. I understand him, indeed, in the very speech to which I have directed my attention, to sneer at the pretence that the Executive of the United States is vested with the Federal or State sovereignty at all. He denies the right of ten men to govern a hundred by the aid of the army and navy. I deny it, too, and it is an error which will die in the midst of its worshippers sooner or later, unless the central idea of American civilization is a falsehood, and the Declaration of Independence a cheat and delusion.

"If I am correct in the position I have stated, that the sovereignty was in the mass of the American people, and that they delegated a part to the States, and a part to the Federal Government, how then, admitting the principle of