clear, that, in every stipulation, private property shall be respected; or that, upon the restoration of places during the war, it shall not be carried away."-4 American State Papers, pp. 116, 117, 122, 123.

A volume might be filled with like citations from modern writers. I will content myself with perhaps the latest expression, and from a great statesman, a native of Massachusetts, and of my own county of Worcester:

"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 upon 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.

Such I believe to be the settled law and usage of nations. A careful examination of the arguments made on this subject has served but to strengthen and deepen this conviction.

I do not forget, Mr. Speaker, that the case of Brown vs. The United States (8 Cranch, 110) has been often referred to in this debate as affirming the contrary rule. The points decided in that case I have before stated to the House. The points, the only points, decided were, that British property found in the United States on land at the commencement of hostilities (war of 1812) could

not be condemned as enemy's property, without an act of Congress for that purpose; and that the declaration of war was not sufficient. Gentlemen have referred to the obiter dicta, the discussions of the judges, as the decision of the court. The distinction is familiar and vital, but has been lost sight of in this debate. Only the points necessarily involved in the result constitute the decision. Let me illustrate the matter by a familiar case, that of Dred Scott. It is the matter outside of the decision, what a distinguished jurist has called the "slopping-over" of the court, that was so fruitful in mischief. The point decided by the majority of the court was, that Dred Scott was not a citizen of Missouri, so as to be able to maintain an action in the courts of the United States, upon the grounds of such citizenship. Under the conflicting decisions in the courts of Missouri, I have always thought that case might have been decided either way, without attracting public attention or animadversion. All that was said outside of that point has no more legal force than the paper on which it was written. Use the sayings of the judges in that case, as they have used those in Brown vs. The United States, and you can establish the rightful existence of slavery in the Territories, the invalidity of the Missouri Compromise, and God only knows how many other errors in history and law. Treat what is said by the majority of the court outside of the point decided as argument, and it is nothing more, and slavery in the Territories is without any legal prop or support. And I may say, in passing, Mr. Speaker, there never was, in my judgment, a plausible argument even to establish the

power and right of the master to take his slave into the Territories, and hold him in servitude. Slavery exists by local law and usage only. It has no extra territorial power. The moment the slave, with the consent of the master, is taken beyond the line of the place where the law tolerates its existence, the chains fall from his limbs. Property in the slave there may be by local municipal law, but not by the law of nature and of nations; not by that universal, immutable law of which Cicero speaks so divinely in the "Republic." May I give the Latin, Mr. Speaker? Nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit. Nobler thought in nobler words never fell from human lips or pen.

But I return from this digression to say, Mr. Speaker, that the distinction sought to be established by the passages cited from the discussions in the case of Brown vs. The United States, between the law of war and the mitigations of that law which the usages of modern nations have introduced, has no foundation in principle. It is in the usages of civilized and Christian nations that we are to seek the law of nations. As the law merchant has grown up from the usages of trade and commerce, so has the modern law of nations grown up from the usages of enlightened States. The ancient barbarous rules of war have been tempered and softened by commerce, by the arts, by diffused culture, and, more than all, by the spirit of the gospel; and all Christian States recognize with joy and with obedience the milder law. In the jurisprudence of nations, as in our own,

the law of pro

there is one law felt above all others, gress. Apparently at rest, it is ever silently moving onward, quickened, purified, and illumined by the inspiration of that higher law, "whose seat is the bosom of God, and its voice the harmony of the world." The great, prophetic thought of Pascal may yet be realized: Deux lois suffisent pour regler la république chrétienne, mieux que toutes les lois politiques, l'amour de Dieu, et celui du prochain.

I do not know that I can more fitly conclude what I can say, in the brief time allotted to me, on the capture and confiscation of the private property of rebels, viewed in the light of international law, than in the words of John Marshall, near the close of his judicial life:

"It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law,"

mark the words, Mr. Speaker, -"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. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?" United States vs. Percheman, 7 Peters, 51.

It is against the light of these considerations and authorities, and against the prevailing law and judg

ment of the Christian world, that it has been so often confidently, I will not say flippantly, asserted on this floor, that there could be no doubt of our power, under the law of nations, to seize and confiscate the entire property of the rebels as public enemies.

I pass to the second branch of the subject, our power, under the Constitution, to pass these bills. It has been often said in the course of this debate, and in terms without qualification, that the rebels hold to us the twofold relation of enemies and traitors, and that we may use against them all the appliances of war and all the penalties of municipal law. To a certain limited extent, the proposition is sound. Treason consists in levying war against the United States. The act of treason is an act of war, and you use the powers of war to meet and subdue traitors in arms against the Government.

It is also true, that, in the relations between the Government and its subjects, the rightful power of punishment does not necessarily cease with the war; but is it also true, that you can exercise both powers at the same time? And is not here the utter fallacy of this whole argument? Take an example. You have been accustomed to exchange flags of truce; you have recognized, to a certain extent, belligerent powers. An officer of the rebel army comes to you under a flag of truce: can you take him from under that flag, and hang him for treason? He stands to you in the double relation of enemy and traitor; but you cannot touch a hair of his head while he is under that white flag. Take another case. You have stipulated for an exchange of prisoners