Volume 9 — RIGHTS OF SOVEREIGNTY AND RIGHTS OF WAR: TWO SOURCES OF POWER AGAINST THE REBELLION. (continued 2)

While it is easy to see that these interesting instances are only slightly applicable to our country, yet I do not disown any suggestion of caution or clemency they inculcate. Other instances in our own history are more applicable. All are aware that during the Revolution the property of Tories, loyalists, and refugees was confiscated; but I doubt if Senators know the extent to which this was done, or the animosity by which it was impelled. Out of many illustrations, I select the early language of the patriot Hawley, of Massachusetts, in a letter to Elbridge Gerry, under date of July 17, 1776. “Can we subsist,” said this patriot, “did any state ever subsist, without exterminating traitors?… It is amazingly wonderful, that, having no capital punishment for our intestine enemies, we have not been utterly ruined before now.”[42] The statutes of the time are most authentic testimony. I hold in my hand a list, amounting to eighty-eight in number, which I have arranged according to States. Some are very severe, as may be imagined from the titles, which I proceed to give; but they show, beyond assertion or argument, how, under the exigencies of war for National Independence, the power of confiscation was recognized and employed. Each title is a witness.

1. New Hampshire.—To confiscate estates of sundry persons therein named. November 28, 1778.

2. Massachusetts.—To prevent the return of certain persons therein named, and others who had left that State, or either of the United States, and joined the enemies thereof. 1778.

3. To confiscate the estates of certain notorious conspirators against the government and liberties of the inhabitants of the late Province, now State, of Massachusetts Bay. 1779.

4. For repealing two laws of the State, and for asserting the rights of that free and sovereign Commonwealth to expel such aliens as may be dangerous to the peace and good order of government. March 24, 1784.

5. In addition to an Act made and passed March 24, 1784, repealing two laws of this State. November 10, 1784.

6. Rhode Island.—To confiscate and sequester estates, and banish persons of certain descriptions. October, 1775.

7-13. To confiscate and sequester estates, and banish persons of certain descriptions. February, March, May, June, July, August, October, 1776.

14, 15. To confiscate and sequester estates, and banish persons of certain descriptions. February, October, 1778.

16-20. To confiscate and sequester estates, and banish persons of certain descriptions. February, May, August, September, October, 1779.

21-23. To confiscate and sequester estates, and banish persons of certain descriptions. July, September, October, 1780.

24, 25. To confiscate and sequester estates, and banish persons of certain descriptions. January, May, 1781.

26-28. To confiscate and sequester estates, and banish persons of certain descriptions. June, October, November, 1782.

29-32. To confiscate and sequester estates, and banish persons of certain descriptions. February, May, June, October, 1783.

33. To send out of the State N. Spink and John Underwood, who had formerly joined the enemy, and were returned into Rhode Island. May 27, 1783.

34. To send William Young, theretofore banished, out of the State, and forbidden to return at his peril. June 8, 1783.

35. Allowing William Brenton, late an absentee, to visit his family for one week, then sent away, not to return. June 12, 1783.

36. To banish S. Knowles (whose estate had been forfeited), on pain of death, if he return. October, 1783.

37. Connecticut.—Directing certain confiscated estates to be sold.

38. New York.—For the forfeiture and sales of the estates of persons who have adhered to the enemies of the State. October 22, 1779.

39. For the immediate sale of part of the confiscated estates. March 10, 1780.

40. Approving the Act of Congress relative to the finances of the United States, and making provision for redeeming that State’s proportion of bills of credit to be emitted. June 15, 1780.

41. To procure a sum in specie, for the purpose of redeeming a portion of the bills emitted, &c. October 7, 1780.

42. For granting a more effectual relief in cases of certain trespasses. March 17, 1783.

43. For suspending the prosecutions therein mentioned. March 21, 1783.

44. To amend and extend certain Acts. May 4, 1784.

45. To preserve the freedom and independence of the State, &c. May 12, 1784.

46. New Jersey.—To punish traitors and disaffected persons. October 4, 1776.

47. For taking charge of and leasing the real estates, and for forfeiting personal estates, of certain fugitives and offenders. April 18, 1778.

48. For forfeiting to and vesting in the State the real estates of certain fugitives and offenders. December 11, 1778.

49. Supplemental to the Act to punish traitors and disaffected persons. October 3, 1782.

50. To appropriate a certain forfeited estate. December 23, 1783.

51. Pennsylvania.—For the attainder of divers traitors, and for vesting their estates in the Commonwealth, if they render not themselves by a certain day. March 6, 1778.

52. To attaint Henry Gordon, unless he surrender himself by a given day, and the seizure of his estates by the agents of forfeited estates confirmed. January 31, 1783.

53. Delaware.—Declaring estates of certain persons forfeited, and themselves incapable of being elected to any office. February 5, 1778.

54. Maryland.—For calling out of circulation the quota of the State of the bills of credit issued by Congress. October, 1780.

55. To seize, confiscate, and appropriate all British property within the State. October, 1780.

56. To appoint commissioners to preserve confiscated British property. October, 1780.

57. To procure a loan, and for the sale of escheat lands and the confiscated British property therein mentioned. October, 1780.

58. For the benefit of the children of Major Andrew Leitch. June 15, 1782.

59. To vest certain powers in the Governor and Council. November, 1785.

60. To empower the Governor and Council to compound with the discoverers of British property, and for other purposes. November, 1788.

61. Virginia.—For sequestering British property, enabling those indebted to British subjects to pay off such debts, &c. October, 1777.

62. Concerning escheats and forfeitures from British subjects. May, 1779.

63. For removal of seat of government. May, 1779.

64, 65. To amend the Act concerning escheats and forfeitures. May, October, 1779.

66. To adjust and regulate pay and accounts of officers of Virginia line. November, 1781.

67. For providing more effectual funds for redemption of certificates. May, 1782.

68. Prohibiting the migration of certain persons to that Commonwealth, &c. October, 1783.

69. To explain, amend, &c., the several Acts for the admission of emigrants to the rights of citizenship, and prohibiting the migration of certain persons to that Commonwealth. October, 1786.

70. North Carolina.—For confiscating the property of all such persons as are inimical to the United States, &c. November, 1777.

71. To carry into effect the last mentioned act. January, 1779.

72. Directing the sale of confiscated property. October, 1784.

73. To describe and ascertain such persons as owed allegiance to the State, and to impose certain disqualifications on certain persons therein named. October, 1784.

74. To amend the last mentioned Act. November, 1785.

75. To secure and quiet in their possessions all such as have or may purchase lands, goods, &c., sold or hereafter to be sold by the commissioners of forfeited estates. December 29, 1785.

76. Act of pardon and oblivion. April, 1788.

77. South Carolina.—For disposing of certain estates and banishing certain persons therein mentioned. February 26, 1782.

78. To amend the last mentioned Act. March 16, 1783.

79. To vest land, late property of James Holmes, in certain persons in trust for the benefit of a public school. August 15, 1783.

80. For restoring to certain persons their estates, and for permitting the said persons to return, &c. March 26, 1784.

81. For amending and explaining the Confiscation Act. March 26, 1784.

82. To amend the Confiscation Act, and for other purposes therein mentioned. March 22, 1786.

83. Georgia.—For inflicting penalties on, and confiscating the estates of, such persons as are therein declared guilty of treason, &c. May 4, 1782.

84. To point out the mode for the recovery of property unlawfully acquired under the British usurpation, and withheld from the rightful owners, &c. February 17, 1783.

85. Releasing certain persons from their bargains, &c. July 29, 1783.

86. For ascertaining the rights of aliens, and pointing out a mode for the admission of citizens. February 7, 1785.

87. To authorize the auditor to liquidate the demands of such persons as have claims against the confiscated estates. February 22, 1785.

88. To compel the settlement of public accounts, for inflicting penalties, and for vesting auditor with certain powers. February 10, 1787.[43]

Such is the array which illustrates the terrible earnestness of those times. In their struggle for National Independence, our fathers did not hesitate to employ all the acknowledged Rights of War; nor did they higgle over questions of form with regard to enemies in arms against them. To this extent, at least, we may be instructed by their example, even if we discard their precedents.

In the negotiations for the acknowledgment of National Independence these Acts were much considered. It does not appear, however, that their legality was drawn into question, although, as is seen, they exercised the double rights of sovereignty and of war. The British Commissioner, Mr. Oswald, expresses himself, under date of November 4, 1782, as follows.

“You may remember, that, from the very first beginning of our negotiation for settling a peace between Great Britain and America, I insisted that you should positively stipulate for the restoration of the property of all those persons, under the denomination of the Loyalists or Refugees, who have taken part with Great Britain in the present war: or, if the property had been resold, and passed into such a variety of hands as to render the restoration impracticable, (which you asserted to be the case in many instances,) you should stipulate for a compensation or indemnification to those persons adequate to their losses.”[44]

The American Commissioners, John Adams, Benjamin Franklin, and John Jay, declared in reply, that “the restoration of such of the estates of the refugees as have been confiscated is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands.” As to the demand of compensation for these persons, the Commissioners said: “We forbear enumerating our reasons for thinking it ill-founded.”[45] In the course of the conference, and by way of reply or set-off, gross instances were adduced of outrages by the British troops in “the carrying off of goods from Boston, Philadelphia, and the Carolinas, Georgia, Virginia, &c., and the burning of the towns.” Franklin mentioned “the case of Philadelphia, and the carrying off of effects there, even his own library.” Laurens added “the plunders in Carolina of negroes, plate, &c.”[46] In a letter from Franklin to the British Commissioner, under date of November 26, 1782, the pretension of the loyalists was finally repelled in the plainest words.

“You may well remember, that, in the beginning of our conferences, before the other Commissioners arrived, on your mentioning to me a retribution for the loyalists whose estates had been forfeited, … I gave it as my opinion and advice, honestly and cordially, that, if a reconciliation was intended, no mention should be made in our negotiations of those people; for, they having done infinite mischief to our properties, by wantonly burning and destroying farm-houses, villages, and towns, if compensation for their losses were insisted on, we should certainly exhibit against it an account of all the ravages they had committed, which would necessarily recall to view scenes of barbarity that must inflame, instead of conciliating, and tend to perpetuate an enmity that we all profess a desire of extinguishing.…

“Your ministers require that we should receive again into our bosom those who have been our bitterest enemies, and restore their properties who have destroyed ours,—and this while the wounds they have given us are still bleeding. It is many years since your nation expelled the Stuarts and their adherents, and confiscated their estates. Much of your resentment against them may by this time be abated; yet, if we should propose it, and insist on it, as an article of our treaty with you, that that family should be recalled and the forfeited estates of its friends restored, would you think us serious in our professions of earnestly desiring peace?

“I must repeat my opinion, that it is best for you to drop all mention of the refugees.”[47]

But on this occasion there was a compromise. Instead of positive stipulations in behalf of the loyalists, it was agreed in the treaty, “that the Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties of persons resident in districts in the possession of his Majesty’s arms, and who have not borne arms against the said United States.”[48] Thus, while in every other article of the treaty it was agreed that certain things shall be done, here it was only agreed to recommend that they shall be done; and even the recommendation of restitution was confined to what are called “real British subjects,” and others “who have not borne arms against the United States,”—thus evidently recognizing the liability of those who did not come within these two exceptions.

After the adoption of our Constitution, this article came under discussion between the United States and Great Britain, when Mr. Jefferson, in the most elaborate diplomatic paper of his life, ably vindicated the conduct of our Government. It was on this occasion that he quoted the words of Bynkershoek, that “it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury, … even immovables, as is the practice in regard to movables.”[49] And in the course of his argument he distinctly asserts that “an Act of the Legislature confiscating lands stands in place of an office found in ordinary cases,—and that, on the passage of the Act, as on the finding of the office, the State stands ipso facto possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State.”[50]

This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,[51] where it was declared that “a State may make what rules it pleases, and those rules must necessarily have place within itself,”[52]—that “the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,”[53]—and that “the right acquired by war depends on the power of seizing the enemy’s effects.”[54] The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall, afterwards our honored Chief Justice, in words applicable to our own times.

“It has been conceded that independent nations have in general the right of confiscation, and that Virginia at the time of passing her law was an independent nation. But it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary to show a parallel case in history, since it is incumbent on those who wish to impair the sovereignty of Virginia to establish on principle or precedent the justice of their exception. That State, being engaged in a war, necessarily possessed the powers of war, and confiscation is one of those powers, weakening the party against whom it is employed, and strengthening the party that employs it.”[55]

In closing what I have to say of the confiscation bills of the Revolution, I cannot disguise that they have been thought severe in some cases beyond the acknowledged exigencies of the times; but, admitting their severity, they testify none the less to those Rights of War in which they had their origin.

Such, Sir, are examples of history, so far as I can gather them, to guide on the present occasion. The embarrassment of Hercules is constantly repeated. There are paths to avoid, as well as paths to take; and it is for you to determine, under the lights of the past, how your course shall be directed.

There are considerations of policy, and, I rejoice to believe, of justice also, which furnish illumination such as cannot be found in any other instances of history. If we go astray, it must be from blindness.

In determining what powers to exercise, you will be guided to a certain extent by the object you seek to accomplish. Do you seek really to put down the Rebellion, and to tread it out forever, or do you seek only the passage of a penal statute? Do you seek a new and decisive weapon in the war our country is compelled to wage, or do you seek nothing more than to punish a few rebels? Or, if the object you seek is simply punishment, do you wish it to be sure and effective, or only in name? Are you in earnest to strike this rebellion with all the force sanctioned by the Rights of War, or do you refuse to use anything beyond the peaceful process of Municipal Law? I put these questions sincerely and kindly. You will answer them by your votes. If you are not in earnest against the rebellion now arrayed in war, if you are content to seem without acting, to seem without striking, in short, to seem rather than to be, you will pass a new penal statute, and nothing more.

It is clear that such a statute will be of perfect inefficiency. It will not produce even a moderate intimidation,—not so much as a Quaker gun. With the provision in our Constitution applicable to jury trials in criminal cases, it is obvious that throughout the whole Rebel country there can be no conviction under such statute. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. People talk flippantly of the gallows as the certain doom of the Rebels. This is a mistake. For weal or woe, the gallows is out of the question. It is not possible as a punishment for this rebellion.[56] Nor would any forfeiture or confiscation whatever be sanctioned by a jury in the Rebel country. I think that in this judgment I do not err. But if this be correct, surely we should take all proper steps to avoid such failure of justice. Let Senators see things as they are; let us not deceive ourselves or deceive others. A new statute against treason will be simply a few more illusive pages on the statute-book, and that is all.

I cannot doubt that Senators are in earnest, that they mean what they say, and that they intend to do all in their power, by all proper legislation, to bring the war to a final close. But if this be their purpose, they will not hesitate to employ all the acknowledged Rights of War calculated to promote this end. Two transcendent powers have been exercised without a murmur: first, to raise armies, and, secondly, to raise money. These were essential to the end. But there is another power, without which, I fear, the end will escape us. It is that of confiscation and liberation; and this power is just as constitutional as the other two. The occasion for its exercise is found in the same terrible necessity. An army is not a posse comitatus; nor is it, when in actual war, face to face with the enemy, amenable to the ordinary provisions of the Constitution. It takes life without a jury trial, or any other process of law; and we have already seen, it is by virtue of the same Right of War that the property of enemies may be taken, and freedom given to their slaves. On the exercise of these rights there can be no check or limitation in the Constitution. Any such check or limitation would be irrational. War cannot be conducted in vinculis. Seeking to fasten upon it the restraints of the Constitution, you repeat the ancient tyranny which compelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war, bringing into being other rights which know no master. An Italian publicist has said that there is no right which does not, in some measure, impinge upon some other right. But this is not correct. The Rights of War can never impinge upon any rights under the Constitution, nor can any rights under the Constitution impinge upon the Rights of War. Rights, when properly understood, harmonize with each other.

Assuming, then, what is so amply demonstrated, that the Rights of War are ours without abridgment, and assuming also that you will not allow the national cause, which has enlisted such mighty energies, to be thwarted through any failure on your part, I ask you to exercise these rights in such way as to insure promptly and surely that permanent peace in which is contained all we desire. But to this end mere victory will not be enough. The Rebellion must be so completely crushed that it cannot again break forth, while its authors have penalties to bear, all of which may be accomplished only by such a bill as I have proposed. The reasons of policy, as well as of duty, are controlling.

But while all desire to see the Rebellion completely crushed, there may be difference with regard to the Rights of War to be exercised. Some may be for part; others may be for all. Some may reject the examples of the past; others may insist upon them. It is for you to choose; but, in making election, you will not forget the object in view. At another point I have leaned on the authority of Grotius. Turning now to Vattel, a writer of masculine understanding, who has done much to popularize the Law of Nations, I am influenced by the consideration, that, less austere than others, he seems always inspired by the free air of his native Switzerland, and filled with the desire of doing good, so that what he sanctions cannot be regarded as illiberal or harsh. In grouping the details entering into the object proposed, this benevolent master teaches that we may seek these things:—

1. Possession of what belongs to us;

2. Expenses and charges of the war, with reparation of damages;

3. Reduction of the enemy, so that he shall be incapable of unjust violence;

4. Punishment of the enemy.[57]

And in order to arrive at these results, the Rights of War are ours, to be employed in our discretion. Nor is it to be forgotten that these rights are without any of those limitations which modern times have adopted with regard to the private property of enemies in international war, and that, on reason and principle, which are the foundations of all Public Law, every rebel who voluntarily becomes an enemy is as completely responsible in all his property, whether real or personal, as a hostile Government or Prince, whose responsibility to this extent is unquestioned.

Such in detail is the object that is all contained in the idea of peace. In this work it is needless to say there is no place for any sentiment of hate or any suggestion of vengeance. There can be no exaction and no punishment beyond the necessity of the case,—nothing harsh, nothing excessive. Lenity and pardon become the conqueror more even than victory. “Do in time of peace the most good, and in time of war the least evil possible: such is the Law of Nations.” These are the admirable words of an eminent French magistrate and statesman.[58] In this spirit it is our duty to assuage the calamities of war, and especially to spare an inoffensive population.

But not so should we deal with conspirators. For those who organized this great crime and let slip the dogs of war there can be no penalty too great. They should be not only punished to the extent of our power, but stripped of all means of influence, so that, should their lives be spared, they may be doomed to wear them out in poverty, if not in exile. To this end their property must be taken. Their poor deluded followers may be safely pardoned. Left to all the privileges of citizenship in a regenerated land, they will unite in judgment of leaders who have been to them such cruel taskmasters.

The property of the leaders consists largely of land, owned in extensive plantations. It is just that these should be broken up, so that never again can they be nurseries of conspiracy or disaffection. Partitioned into small estates, they will afford homes to many now homeless, while their peculiar and overbearing social influence will be destroyed. Poor neighbors, so long dupes and victims, will become independent possessors of the soil. Brave soldiers, who have left their Northern skies to fight the battles of their country, resting at last from their victories, and changing their swords for ploughshares, will fill the land with Northern industry and Northern principles.

I say little of personal property, because, although justly liable to confiscation, yet it is easy to see that it is of much less importance than the land, except so far as slaves are falsely classed under that head.

Vattel says that in our day a soldier would not dare to boast of having killed the enemy’s king; and there seems to be similar timidity on our part towards Slavery, which is our enemy’s king. If this king were removed, tranquillity would reign. Charles the Twelfth, of Sweden, did not hesitate to say that the cannoneers were perfectly right in directing their shots at him; for the war would instantly end, if they could kill him; whereas they would reap little from killing his principal officers. There is no shot in this war so effective as one against Slavery, which is king above all officers; nor is there any better augury of complete success than the willingness, at last, to fire upon this wicked king. The illusions through which Slavery has become strong must be abandoned.

The slaves of Rebels cannot be regarded as property, real or personal. Though claimed as property by their masters, and though too often recognized as such by individuals in the National Government, it is the glory of our Constitution that it treats slaves always as “persons.” At home, beneath the lash and local law, they may be chattels; but they are known to our Constitution only as men. In this simple and indisputable fact there is a distinction, clear as justice itself, between the pretended property in slaves and all other property, real or personal. Being men, they are bound to allegiance, and entitled to reciprocal protection. It only remains that a proper appeal should be made to their natural and instinctive loyalty. Nor can any pretended property of their masters supersede this claim, I will not say of eminent domain, but of eminent power, inherent in the National Government, which at all times has a right to the services of all. Declaring the slaves free, you will at once do more than in any other way, whether to conquer, to pacify, to punish, or to bless. You will take from the Rebellion its mainspring of activity and strength; you will stop its chief source of provisions and supplies; you will remove a motive and temptation to prolonged resistance; and you will destroy forever that disturbing influence, which, so long as allowed, will keep this land a volcano ever ready to break forth anew. While accomplishing this work, you will at the same time do an act of wise economy, giving new value to all the lands of Slavery, and opening untold springs of wealth; and you will also do an act of justice, destined to raise our national name more than any triumph of war or any skill in peace. God, in His beneficence, offers to nations, as to individuals, opportunity, opportunity, opportunity, which, of all things, is most to be desired. Never before in history has He offered such as is ours here. Do not fail to seize it. The blow with which we smite an accursed Rebellion will at the same time enrich and bless; nor is there any prosperity or happiness it will not scatter abundantly throughout the land. Such an act will be an epoch, marking the change from Barbarism to Civilization. By old Rights of War, still prevalent in Africa, freemen were made slaves; but by the Rights of War which I ask you to exercise slaves will be made freemen.

Mr. President, if you seek Indemnity for the Past and Security for the Future, if you seek the national unity under the Constitution of the United States, here is the way. Strike down the leaders of the Rebellion, and lift up the slaves.

Then will there be Indemnity for the Past such as no nation ever before was able to win, and there will be Security for the Future such as no nation ever before enjoyed, while the Republic, strengthened and glorified, will be assured forever, one and indivisible.