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gated rule of war, there are doubtless exceptions. Of these, Mr. Wheaton says,
“ The exceptions to these general mitigations of the extreme rights of war, considered as a contest of force, all grow out of the same original principle of natural law, which authorizes us to use against an enemy such a degree of violence, and such only, as may be necessary to secure the object of hostilities. The same general rule which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If this be necessary in order to accomplish the just ends of war, it may be lawfully done; but not otherwise. Thus, if the
progress of an enemy cannot be stopped, nor our own frontier secured, or if the approaches to a town intended to be attacked cannot be made, without laying waste the intermediate territory, the extreme case may justify a resort to measures not warranted by the ordinary purposes of war.” – Page 421.
The exceptions growing out of military exigencies, and measured and governed by them, cannot be foreseen and provided for by legislation, but must be left, where the law of nations leaves them, with the military commander.
It has been said that these acts of general confiscation find support under the provision of the Constitution which authorizes Congress “ to make rules concerning captures by land and water.” The Constitution does not define the meaning of the word “captures.” It refers us in such cases to the law of nations, as in others to the common law. Congress has power to declare “ war.” What war is, the just causes of war, the rights and duties of nations in conducting it, are to be found in the law of nations. The “ captures” referred to are very plainly not seizures of property under legal process, confiscation, or forfeiture, but the taking of enemy's property by force or strategy, jure victoria. The title is acquired by capture, and liable to be lost by recapture. To make rules concerning “captures” is not to make rules in conflict with or beyond the law of nations. The extent to which the power conferred by the law of nations shall be exercised, and the disposition to be had of captures when made, are the proper subjects of municipal law, and of the provision of the Constitution.
The case of Brown vs. the United States (8 Cranch, 110) has been cited as expressly deciding that Congress has power to pass a confiscation bill. I submit, with great respect, that it decides no such thing. The only point decided in the case was, that British property found in the United States, on land, at the commencement of international hostilities (war of 1812), could not be condemned as enemy's property, without an act of Congress for that purpose. The court, dealing with a question arising under war with a foreign nation, had no occasion to consider the powers or duties of Congress in the case of rebellion. The discussions of the court recognize a distinction between the right of the sovereign to take the persons and confiscate the property of the enemy wherever found, and the mitigations of the rule which the humane usages of modern times have introduced. With all my reverence for the great magistrate who delivered the opinion of the court, I must be permitted to say, that usage is itself the principal source of the law of nations, and that these humane usages have become the rules of war in Christian States. The law of nations, says Bynkershoek, is only a presumption founded on usage (De foro Legatorum, chap. 18, sect. 6).
It is suggested, that, if the confiscation of private property violated the law of nations, the courts could not overrule the interpretation of that law by the political department of the Government, and that no other power would intervene. Possibly this may be so; but surely it is not intended that we shall violate the law of nations in dealing with our subjects, because there is no appeal or redress for the subject. It is in the exercise of irresponsible power that the nicest sense of justice, and the greatest caution and forbearance, are demanded. In suppressing a rebellion so atrocious, marked by such fury and hate against a Government felt only in its blessings, forbearance seems to us weakness, and vengeance the noblest of virtues; but, in our calmer moments, we hear the Divine Voice: “Vengeance is mine; I will repay.”
I conclude what I have to say.upon this branch of the subject with the remark, that, in substance and effect, the bills before the House seek the permanent forfeiture and confiscation of property, real and personal, without the trial of the offender. I am unable to see how, under the Constitution, that result can be reached.
The temporary use of property in districts under military occupation, and of estates abandoned by their owners, rests upon distinct principles, which it is not now necessary to consider. We have only to remark, in passing, that the use of such property and the rule in such districts can be provisional only, waiting the regular action of the State governments, and in no way impairing their permanent powers.
I proceed to the question of the deepest interest involved in this discussion,—the emancipation of slaves in the só seceding States.” There is no subject on which our feelings are so likely to warp our judgment; in which calmness is so necessary and so difficult, and declamation so easy or so useless. The general principles stated in relation to the power and duty of Congress as to confiscation are applicable to the subject of emancipation.
On the question of policy, the plausible and attractive argument is, that the only effectual way to suppress rebellion is to remove its cause. The position, when thoroughly probed, is, not that the National Government has not the power to put down the rebellion without resort to emancipation, but that the continued existence of slavery is incompatible with the future safety of the Republic. This plainly is not a question of present military necessity, but one affecting the permanent structure of the Government, and involving material changes in the Constitution. This can be done in one of two ways: in the method the Constitution points out; or by successful revolution on the part of the free States, and the entire subjugation of the slave States. No man can foresee to-day what policy a severe and protracted struggle may render necessary. It is sufficient to say, that into such a war of conquest and extermination the people of the United States have no present disposition to enter. They have too thorough a .conviction of the capacity of the Government to subdue the Rebellion by the means the Constitution sanctions, to be desirous of looking beyond its pale.
Upon the legal aspect of the question, it may be stated, as a general proposition, that Congress, in time of peace, has no power over slavery in the States. By that is meant the institution itself; for the National Government may, in my judgment, forfeit the right of the master in the labor of the slave, as a penalty for crime of which the master shall be convicted; and, when so forfeited, it may dispose of the right as it sees fit. Nor is there any intrinsic difficulty in the use of this species of property under the right of eminent domain. If the Government were constructing a fort or digging an intrenchment, it might hire this species of labor, or, if necessary, take it, as it might other labor or property, giving reasonable compensation therefor.
The provision as to the return of fugitives from service cannot be deemed an exception to the general rule before stated; for the provision applies to escapes from one State into another, and not to escapes within the State. Of which we may remark, in passing, that, as to the former class, the power of the Government is strictly civil, to be executed by judicial process; and that, as to the latter, the National Government, in time of war or peace, has no concern.
Nor would an act of the National Government liberating the slaves within a State, having the consent of the State and providing compensation for the masters, militate with the rule. Conventio vincet legem. The consent of the State would relieve the difficulty.
But the question arises, how far the existence of the Rebellion confers upon Congress any new power over the relation of master and slave. Strictly speaking, no new power is conferred upon any department of the