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States will remain essential parts of the body politic, “ was one of those bold and audacious propositions which cannot fail to shock the common sense of mankind," I felt that either he or I had wholly misconceived the nature and structure of the Government under which we live. E pluribus unum ; Of many States, one nation. The Union is not a graveyard for the burial of dead commonwealths. The body politic is safer with a severed limb than with a dead one. But the gentleman from New York has made progress in this doctrine of State suicide, and assures the House not only of the death of the States, but that the people, " by permission of the military power, and not before,” can form new governments, and seek again admission here. Mark the words, “ by permission of the military power, and not before.” Where are we drifting, Mr. Speaker? and what is the end? These are not hasty words, but the deliberately uttered language of one, who, no less by culture and capacity than by your appointment, is a leader of the House. By permission of the military power, and not before.” I repeat the question, Where are we drifting? What is the end ?
I was guilty of another audacious act in the view of the gentleman from New York. I awoke - St. Paul from the dead” to give countenance to my doctrine. The gentleman must pardon me, Mr. Speaker. I must be an old fogy. It never occurred to me that the Epistles of Paul were among the dead things of the past. I supposed they were the well-springs of immortal life, and, like the Gospels, the same to-day, yesterday, and for
I am bound to presume. this was a heedless
remark; for I am sure the gentleman can have no sympathy with the new school of philosophy which has outgrown the gospel, and which, making equal war with the Christian Church and with the Union, has issued the new evangel, in which abstract love of the race is substituted for practical love of our neighbor, confusion for social order, freedom from restraint for the liberty of obedience. But let this pass.
Mr. Speaker, no man can desire more earnestly than I do the suppression of this Rebellion, and the restoration of order, unity, and peace. But there are two things I cannot, I will not do. I will not trample beneath my feet the Constitution I have sworn before God to support. I will not violate, even against these rebels, the law of nations as recognized and upheld by all civilized and Christian States. I believe I must do both to vote for these bills, and at the same time do an act unwise, and especially adapted to defeat the end in view, if that end be the restoration of the Union and the salvation of the Republic.
I propose, very briefly, to examine the bills before the House (and especially that as to the confiscation of property), under the law of nations and under the Constitution of the United States, and then to say a word upon their policy.
The positions assumed by the friends of these measures are, that we may deal with those engaged in this Rebellion as public enemies and as traitors ; that, regarding them as enemies, we may use against them all the powers granted by the law of nations, and, viewing them as rebels or traitors, we may use against them all the powers granted by the Constitution ; and that, in either view, these bills can be sustained.
Dealing with them as public enemies, it is said, that, under the existing law of nations, we have a clear right to confiscate the entire private property, on the land as well as the sea, real and personal, of those in arms, and of non-combatants who may in any way give aid and comfort to the Rebellion. This first bill sweeps over the whole ground. I deny the proposition, Mr. Speaker. In the name of that public law whose every humane sentiment it violates ; in the name of that civilization whose amenities it forgets and whose progress it overlooks ; in the name of human nature itself, whose better instincts it outrages, I deny it. Such is not the law of nations.
To give a plausible aspect to the proposition, the advocates of this bill have gone back to Grotius and to Bynkershoek for the rules of war; and even then have omitted to give what Grotius calls the temperamenta, or restraints upon the rules. You might as well attempt to substitute the code of Moses for the beatitudes of the gospel. Any thing can be established by such resort to the authorities. By the older writers, you can prove not only all the property of the vanquished may be taken, but that every prisoner may be put to death. By Grotius, I can show that all persons taken in war are slaves, and that this is the lot even of all found within the enemy's boundaries when the war broke out; that this iron rule applies, not to men only, but to their wives and children; nay, further, that the master has over the slaves the power of life and death. — De Jure
Belli et Pacis, book 3, chap. 7, sects. 1, 2, and 3. I cite a short passage from the chapter referred to:
- The effects of this right are unlimited; so that the master may
do any thing lawfully to the slave, as Seneca says. There is no suffering which may not be inflicted on such slaves with impunity; no act which may not in any manner be commanded or extorted: so that even cruelty in the masters towards persons of servile condition is unpunished, except so far as the civil law imposes limits, and punishments for cruelty. In all nations alike, says Caius, we may see that the masters have the power of life and death over slaves. He adds afterwards, that, by the Roman law, limits were set to this power; that is, on Roman ground. So Donatus in Terence : What is not lawful from a master to a slave ?'"
By Bynkershoek, you may establish that the conqueror has over the vanquished the power of life and death, and the power of selling them into slavery; that every thing is lawful in war,- the use of poison and the destruction of the unarmed and defenceless. War, Duponceau's translation, pp. 2, 18, 19, 20.
But what then, Mr. Speaker ? Does any man suppose that these writers give us the laws of war, as upheld, sanctioned, and used by the Christian and civilized States of to-day? Nothing would be further from the fact. Commerce, civilization, Christian culture, have tempered and softened the rigor of the ancient rules ; and the State which should to-day assume to put them in practice would be an outcast from the society of nations. Nay, more: they would combine, and rightfully combine, to stay its hand. For the modern law of war, you must look to the usages of civilized States, and to the publicists who have explained and enforced them. Those usages constitute themselves the laws of war.
In relation to the capture and confiscation of private property on the land, I venture to say with great confidence, and after careful examination, that the result of the whole matter has never been better stated than by our own great publicist, Mr. Wheaton:
" But by the modern usage of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property 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 levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country." — Elements of International Law, p. 421.
It is not too much to say, that no careful student of international law will deny that this passage from Mr. Wheaton fairly expresses the modern usage and law upon the subject; but you will permit me to refer for a moment to the doctrine stated by my illustrious predecessor, whose name has been so often invoked in this debate, John Quincy Adams. “Our object,” he says in a letter to the Secretary of State, “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 to exemption from capture.'
” – Mr. Adams to the Secretary of State, Aug. 22, 1815.
Again, he says, in a letter 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