Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1862-06-12
From the Boston Journal.
JUDGE THOMAS ON CoNFIsCATION.

We have received the full report of the speech
made in the House Of Representatives on the
24h ult., by Hon. B. I. Thomss of this State,
on the bills to confscate the property and free
the slaves of rebels. Its length precludes us from
doing anything more than presenting the course
Of Judge Thomas argument, interspersed with
a few striking quotations.
In opening his Speech in reply to Mr..
Sedgwick of New York, Judge Thomas COM
bats the idea of the suicide of the States, and
maintains that the life of the States is Just as
essential part of this Union as the life of the
central power that their life is indeed one life
"Ihe Union,' he says "is not graveyard for
the burial of dead Commonwealths." He
avows his readiness to do anything to suppress
the rebellion, except to trample on the const-
tuition and violate the rules of civilized warfare
These bills require both. in lis opinion. AS to
the rules of war, the old writer's are not now 10
be followed. The following extract from
Wheaton is quoted as conveying the true ex-
listing rule on this point viz:
"But by the modern usage of nations, which
has not acquired the force of law, temples of
religion, public ediices devoted to civil pur-
poses only, monuments of art and repositories
of science are exempted from the general OPP
eratons of war. Private property or land is
also exempt from confscaion, with the excep-
ton of such as may become booty in special
cases, when taken from enemies in the field or
in lesieged towns, and of military contributions
levied upon the inhabitants OF the hostile ter
rtory. This exemption extends even to the
case of an absolute and unqualified conquest of
the enemys country
Judge Thomas quotes from John Quincy
Adoma and Mr.. Marcy to the same effect. Re
ferring to the oft-quoted remarks of the judges
in the case of Brown e. The United
States, he exposes the folly of relying on
such obiter dicta. The following remarks in
this connection, though off the track of argu-
ment, are so interesting and important, as
coming from man of Judge Thomas standing
that we copy them entire:
"Only the points necessarily involved in the
result constitute the decision. Let me illus
trate the matter by familiar case, that of
Died Scott. 1t is the matter outside OF the
decison-what distinguished jurist has called
the stopping 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 citizen of Missouri, so as to be able to
maintain an action in the courts of the United
States upon the ground of such citizenship.
Under the conflicting decisions in the courts of
Missouri, | 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 ..
The United states, and YOU can establish the
rightful existence of slavery in the Territories,
the invNlidity of'the Missouri Compromise and
God only knows how many other errors in his
tory and law. Treat what is said by the ma
jority 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 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 seryitude.
Slavery exists by local law and usage only. 1t
has no extra territorial power. The moment
the slave, with the consent of the master, is
taken beyond the line of the place whore the
law toerates its existence, the chains fall from
his limbs"
In passing to thep power of Congress to adopt
the confscation and emancipation thus, Judge
Thomas oilirms though in certain sense the
rebels are both enemies and traitors, yet they
cannot be treated as such at the same time
For instance, traitor, who is also n rcEel sol
dier, comes to our lines under flag Of truce
we cannot seize him from under the flag and
hang him for treason. And so in many other
instances, which all admit. But admitting that
municipal law might be fully brought 10 bear
upon the rebels during the war, it could not be
administered in the form Of these bills. The
object of confscalion is punishment-for no
one expects to derive any substantial revenue
from the measure-punishmen for a clearly
defined crime. But the Constitution says
"The trial of all crimes, except in case OF i'm
parchment shall be byJWy" Trial by jury is
excluded from these bills, and the want fatally
vilates them. Other provisions of the Con-
stitution are as hagranty violated
Looking to the positive features of the con-
fscation bill, Judge Thomas finds them practi-
cally retroactive, as they Immediately take ef-
feet, while there are whole States where they
cannot be promulgated, and will be the same as
er post facto Secondly, some of the classes
of persons enumerated may be innocent of do
ing anything toward aiding the rebellion
Thirdly, there is no exemption of necessary
household furniture, or of provisions, or of
tools of trade. "Nothing is Spared--the bed
on which the wife sleeps, the cradle of the
child the pork, or -four barrel" These are
some of the objections which may be urged
against the confscaion bill of the other
Judge Thomas simply says:
"The second bill, tor the emancipation of the
slaves of rebels, is much broader in its seope |
including every person who shall engage in the |
rebellion or aid or abet it. The insertion of !
'wilfully,' lawyers will see, does not affect the |
legal construction. There are considerations of |
humanity in favor of this bill which do not an |
ply to the first but it is not restricted to slaves
used in the rebellion, ard no judicial proceed !
ing is provided. The constitutional objections
apply to it with at lea t equal force"
In proof that his position is taken from no