Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1867-06-26


of the g Confederate States" was treason
against the United States.
1t has been supposed, and by some siren
uOusly maintained, that the North Carolina
ordinance of 1861, which purported to re-
peal the North Carolina ordinance OF l1S9,
by which the Constitution of the [ nited
States was ratified, and to repeal also all
subsequent acts by which the assent OF
North Carolina was given to amendments OF
the Constitution, did, in fact, repeal that or
dinance and those acts, and thereby absolVed
the people Of the State from all Obligation az
citizens of the United States, and made it
impossible to commit treason by lcvying war
against the National Government No clab-
crate discussion of the theoretical question
thus presented seems now to be necessary.
That question, practical one, is at rest,
and is not likely to be revived. 1t is enough
to say here, that in our judgment, the ans
wer which it has received from events is that
which the soundest construction OF the Con-
stitution warrants and requires. Nor can
we agree with some persons, distinguished
by abilities and virtues, who insist that when
rebellion attains the proportions and assumes
the character of civil war, it Is purgcd OF its
reasonable character, and can only be pun
shed by the defeat of its armies, the disap-
pointment of its hopes, and the calamities
incident to unsuccessful war.
Courts have no policy. They can only de
clar the law. On what sound principle,
then, can we say judicially that the levylng
Of war ceases to be treason when the war be-
comes formidable? That. though war levied
by 10 men or l 900 men is certainly treason,
it is no longer such when levied by 10 600
or l 900 900? That the armed attempts of
a few, attended by no serious danger to the
Union, and suppressed by slight exertions of
no IN- VI n
in the Constitutional definition but at
tempts by vast combination, controlling
several States, putting great armies into the
field, menacing with imminent peril the very
life of the Republic, and demanding immense
efforts and immense expenditures of treasure
and blood for their defeat and suppression,
swell beyond the boundaries of the definition,
and become innocent in the proportion of
their enormity?
But it is said that this is the doctrine of the
Supreme Court. We think otherwise. In
modern times it is the usual practice of civil
LIED governments attacked by organized and
formidable rebellion to exercise and concede
belligerent rights. Instead of Furnishing
rebels, when made prisoners in war, as Grim
mails, they agree on cartels for exchange. and
make other mutually beneficial arrange
ments and, instead of insisting upon often
svc terms and designations in intercourse
with the civil military chiefs, treat them,
as far as possible, without surrender of cs-
sential principles, like foreign foes, engaged
in regular warfare. But these are conccs-
sions made by the legislative and executive
departments of Government in the exercise
Of political discretion and in the interest of
humanity, to mitigate yindictiye passions III
famed by civil conflicts, and prevent the
frightful evils OF mutual repriSals and retail
ations. They establish no rights except
during the war
1t is true that when war ceases, and the
authority of the regular government j. fully
reestablishcd, the penalties of violated law
are seldom inflicted on the many. Wise
governments never forget that the crimi-
nalty of individuals is not always or often
equal to that of the acts committed 10y the
organizations with which they are connccte l.
Many carried into rebellion by sincere
though mistaken convictions. or hurried
along bv eXcitements due to social and state
sympathies, and even by the compulsion of n
public opinion not their own. When the
strife Of arms is over, such governments
therefore, exercising still their political dis
erection, address themselves mainly to the
work of consolidation and restoration. and
exert the prerogative of mercy rather than
that of justice. Complete remission i, usual
lv extended to large classes by amnesty. or
other exercise of legislative or executive au-
thority and individuals not included in
these classes, with some exceptions of the
greatest offenders, are absolved hv pardon
either absolutely or upon conditions pre-
scrlbcd by the government.
These principles. common t. all civilized
Isit5Tls fzTthdsc -vsi.ith regulated th., action
Of the government Of the | nitcd States dur
ing the war of the rebellion. and have rcru-
lated it, action since rebellion laid down its
In lac f.,rl .,,- ,,.f4
and liberaity Of the nation exceeded all ex-
ample While ho>tilitics were vet fragrant
one act of Congress practically abolished the
death penalty for treason subsequently, COM
mitted, and another provided lnodc in
which citizens Of rebel states maintaining n
! loyal adhesion t. the Union could recover.
after the war. the value of their captured or
abandoned property The national govern
ment has steadily sought to facilitate restora-
ton with adequate guarantees Of union. or
der, and civil rights.
/ On no occasion. however. and by no act .
have the United States ever renowned their
constitutional jurisdiction over the whole
/ territory, or over all the citizens Of the Re
public, or conceded To citizens in arms
/ against their country the character of alien
enemies. or t. their pretended government.
the character of Il de f0cfO government. In
/ the prize cases the supreme Court simply
asserted the right of the nitcd States to
I treat the insurgents az bellgerc:t~ and to
/ claim from foreign nations the performance
/ of neutral duties under the penalties known
/ t. international law. The decision recog-
nzed, also the fact of the exercise and con-
/ cession Of belligerent rights. and affirmed, a.
a necessary consequence, the proposition that
during the war all the inhabitants of the
country controlled by the rebellion, and all
/ the inhabitants of the country loyal to the
/ Union. were enemies reel procally each Of the
other But there is nothing in that opinion
which gives cOuntenance to the doctrine
which counsel endeavOr to deducc from it d.
that the ineurgent states, by the act Of re-
bellion, and by levying war against the ma
/ ton, became foreig states, and their inhabi-
tants alien enemies
! This proposition being denied. it must
result that in compelling debtors t. pay to
receivers for the support of the rebellion
deots due to any citizen of the United
States the insurgent authorities committed
illegal violence, by which no obligation of
debtors to creditors could be cancelled. or in
any respect affected
Nor can the defense in this derive more
support from the decisions affirming the val
iditv of confscatiOns during the war for in
dependence. That war began. doubtless,
lik the recent civil war, in rebellion. Had
lit termina ted unsuccessfully, and had English
tribunals subsequently affirmed the validity
of colonial confscation and sequestraton of
British property and of debts due to British
subjects. those decisions would be in point
No student of international law or of his
tory needs to be informed how impossible it
is that such decisions could have been made
Had the recent rebellion proved successful,
and had the validity of the confiscations and
representations actually enforced by the in
surgent authorities been afterward questioned
in confederate courts. it is not improbable
/ hot tho 1aciSinpc Of tho state m, 10