38

society, the punishment of crime, and the execution of existing
laws.

VII.

The laws of Louisiana, since its re-conquest from rebel rule,
still continue in force, except such ones as are inconsistent with
the rights of the United States, or have been modified or sus-
pended for the time being by the occupying power.

VIII.

The military authority of the United States, during the exist-
ence of the insurrection and the military occupation of Louisiana,
vested in the President as Commander-in-Chief, is competent, on
the theatre of war, to suspend such parts of the local laws as may
be found incompatible with the existing state of affairs, or inju-
rious to the success of our arms.

IX.

The constitution and the laws of Louisiana, her local customs,
usages and institutions, must, in the principle of belligerent
rights, yield to the superior authority of the law martial, until
the war shall be terminated upon her soil.

X.

The President and his military representatives, subject to his
express or implied approval, may put in force this Supreme
Martial Law, by military orders issued for the purpose.

XI.

Such orders are obligatory, not only on the individuals over
whom this Military Government extends, but upon all municipal
authorities, persons in office, and Courts of Justice.

XII.

The Provisional Court for the State of Louisiana, established
by order of the President of the 20th October, 1862, while this

39

State was in insurrection and its people belligerents, and after
the federal arms had recovered from the rebel authorities the
city of New Orleans and other parts of the State, was justified
by the laws of war and of nations, and exercises rightful juris-
diction to the extent of the terms of the order creating it.

XIII.

The efforts of the Commanding General and of the Military
Governor, with the President's sanction, to invite back the insur-
gent population to loyalty, as evidenced by the appointment of
local Judges, the election of several State officers by such persons
as the Commanding General deemed safe to intrust with the
privilege of voters, the summoning of a convention of delegates
to consider of a constitution, afford proof of the desire of the
President to mitigate to the greatest possible extent the rigors
of a state of war; but they have not yet ripened into a state of
peace, nor crushed out the existing rebellion. They combine
political statesmanship with military policy, but the military
rights continue in full force.

XIV.

The same power that called into exercise these auxiliary
agencies, is competent, in its discretion, to supersede and dis-
perse them; and should they happen to become an incumbrance
to the military power, instead of an advantage, they might all
be suspended, including Governor, Judges, and convention.

XV.

The order of Major-General Banks affirming that the funda-
mental law of the State is martial law, is a constitutional expo-
sition of the present state of things, and must be so regarded
while the war is being waged by the two belligerents within the
limits of Louisiana.

From the New York Commercial Advertiser.

It may be, and probably is, a stretch of charity to suppose that those of our contemporaries who are constantly finding fault with the President for his exercise of war powers during a time of war, would willingly be convinced that he is acting within constitutional limits.

Exercising such charity, however, we commend to their careful perusal a pamphlet (150 pp.) on "The War Powers of the President, and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery. By William Whiting." Published by John L. Shorey, of Boston. We think it a most convincing argument, forcibly and lucidly stated. Perhaps it may not be seen in that light by the opponents of the President, but we feel certain that if they will read it with care and candor, it will at least very materially allay their fears — perhaps we should say moderate their protestations — respecting the arrests the chief magistrate has deemed it necessary to make for the public good, and with regard to the proclamation of emancipation, which, after long delay, he finally resorted to as an effectual means of bringing the rebels to their senses, and hastening the conclusion of the disastrous civil war which the insurgents have forced upon the republic, the integrity of which he is sworn to maintain.

Mr. Whiting lays down the principle that if our government was designed to be perpetual, as its authors declared it to be, it will be found upon its fair examination that its constitution contains whatever is essential to carry that design into effect. Accordingly we find that in addition to provisions for adapting it to changing circumstances by amendments, the powers essential to its own perpetuity are vested in the executive and legislative departments, to be exercised according to their discretion, for the good of the country; "powers which, however dangerous, must be entrusted to every government, to enable it to maintain its own existence, and to protect the rights of the people." "In fact, the Union is gone forever, if the constitution denies the power to save it."

From the Boston Daily Evening Traveller.

One of the best works that have appeared in the course of this momentous discussion is that by William Whiting, Esq., entitled "The War Powers of the President, and the Legislative Powers of Congress, in Relation to Rebellion, Treason, and Slavery." Mr. Whiting has long been known as one of the ablest members of the Massachusetts bar, and as employed in those great cases in which the principles of law are involved, as well as its technicalities, but he has been no more connected with politics than are all good citizens who discharge their public duties without having their minds affected by party considerations. He brings, therefore, to the discussion of the most important subject that can now command attention, not only the knowledge necessary to its proper handling, but that judicial impartiality without which all the talent and all the learning in the world would be useless.

We cannot accept the arguments of mere partisans on constitutional questions, no matter how able they may be, without making such allowances as must greatly lessen their value; but those of a citizen whose mind is free from the prejudices created by devotion to party interests and purposes, are of price-less value, if that citizen be a man well versed in law, and of established reputation for ability and integrity.

Such a man Mr. Whiting is, and his arguments and deductions can be accepted with safety by all truth-seeking people. From the beginning of the war, Mr. Whiting's attention has been drawn to the subjects discussed in his work, and as he brought to the discussion a fund of well-arranged knowledge that is seldom found at the command of any citizen, he has performed his task in a manner that renders him a safe and most useful guide to the myriads of men who are not so situated as to go into an examination of all the authorities from whose language is derived the power of government so to act as to put down rebellion and to punish rebels.

ii

PREFACE.

States. The former merely takes away slaves from the possession and control of their masters; the latter deprives the inhabitants of those States of the lawful right of obtaining, by purchase or otherwise, or of holding slaves. Emancipation or confiscation operates only upon the slaves personally; but a law abolishing the right to hold slaves, in the Slave States, operates on all citizens residing there, and effects a change of local law. If all the horses now in Massachusetts were to be confiscated, or appropriated by government to public use, though this proceeding would change the legal title to these horses, it would not alter the laws of Massachusetts as to personal property; nor would it deprive our citizens of the legal right to purchase and use other horses.

The acts for confiscation or emancipation of enemy's slaves, and the President's Proclamation of the 22d of September, do not abolish slavery as a legal institution in the States; they act upon persons held as slaves; they alter no local laws in any of the States; they do not purport to render slavery unlawful; they merely seek to remove slaves from the control of rebel masters. If slavery shall cease by reason of the legal emancipation of slaves, it will be because slaves are removed; nevertheless, the laws that sanction slavery may remain in full force. The death of all the negroes on a plantation would result in a total loss to the owner of so much "property;" but that loss would not prevent the owner from buying other negroes, and holding them by slave laws. Death does not interfere with the local law of property. Emancipation and confiscation, in like manner, do not necessarily interfere with local law establishing slavery.

The right to liberate slaves, or to remove the condition or status of slavery, as it applies to all slaves living at any one time, or the right to abolish slavery in the sense of liberating all existing slaves, is widely different and distinct from the right of repealing or annulling the laws of States which sanction the holding of slaves. State slave laws may or may not be beyond the reach of the legislative powers of Congress; but if they are, that fact

PREFACE.

iii

would not determine the question as to the right to emancipate,
liberate, or to change the relation to their masters of slaves now
living; nor the question as to the right of abolishing slavery, in
the sense in which this expression is used when it signifies
the liberation of persons now held as slaves, from the operation
of slave laws; while these laws are still left to act on other per-
sons who may be hereafter reduced to slavery under them.

It is not denied that the powers given to the various depart-
ments of government are in general limited and defined; nor is
it to be forgotten that "the powers not delegated to the United
States by the constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people." (Const.
Amendment, Art. X.) But the powers claimed for the President
and for Congress, in this essay, are believed to be delegated to
them respectively under the constitution, expressly or by neces-
sary implication.

The learned reader will also notice, that the positions taken in
this pamphlet do not depend upon the adoption of the most liberal
construction of the constitution, Art. I. Sect. 8, Cl. 1, which is deemed
by eminent statesmen to contain a distinct, substantive power to
pass all laws which Congress shall judge expedient "to provide for
the common defence and general welfare." This construction was
held to be the true one by many of the original framers of the
constitution and their associates; among them was George Mason
of Virginia, who opposed the adoption of the constitution in the
Virginia convention, because, among other reasons, he considered
that the true construction. (See Elliott's Debates, vol. ii. 327, 328.)
Thomas Jefferson says, (Jefferson's Correspondence, vol. iv. p. 306.)
that this doctrine was maintained by the Federalists as a party,
while the opposite doctrine was maintained by the Republicans
as a party. Yet it is true that several Federalists did not adopt
that view, but Washington, Adams, Jefferson, Madison, Monroe,
Hamilton, Mason, and others, were quite at variance as to the
true interpretation of that much contested clause. Southern

iv

PREFACE.

statesmen, drifting towards the state-rights doctrines, as time passed on, have generally adopted the strictest construction of the language of that clause; but it has not yet been authoritatively construed by the Supreme Court. Whatever may be the extent or limitation of the power conveyed in this section, it is admitted by all that it contains the power of imposing taxes to an unlimited amount, and the right to appropriate the money so obtained to "the common defence and public welfare." Thus it is obvious, that the right to appropriate private property to public use, and to provide compensation therefor, as stated in Chapter I.; the power of Congress to confiscate enemy's property as a belligerent right; the power of the President, as commander-in-chief, as an act of war, to emancipate slaves; or the power of Congress to pass laws to aid the President, in executing his military duties, by abolishing slavery, or emancipating slaves, under Art. I. Sect. 8, Cl. 18, as war measures, essential to save the country from destruction, do not depend upon the construction given to the disputed clause above cited.

It will also be observed, that a distinction is pointed out in these pages between the legislative powers of Congress, in time of peace, and in time of war. Whenever the words "the common defence" are used, they are intended to refer to a time, not of constructive war, but of actual open hostility, which requires the nation to exert its naval and military powers in self-defence, to save the government and the country from destruction.

The Introduction, and Chapters I. and VIII., should be read in connection, as they relate to the same subject; and the reader will bear in mind that, in treating of the powers of Congress in the first chapter, it is not asserted that Congress have, without any public necessity justifying it, the right to appropriate private property of any kind to public use. There must always be a justifiable cause for the exercise of every delegated power of legislation.

It is not maintained in these pages that Congress, in time of peace, has the right to abolish slavery in the States, by passing

PREFACE.

V

laws rendering the *holding of any slaves* therein illegal, so long as
slavery is merely a household or family, or domestic institution
and so long as its existence and operation are confined to the
States where it is found, and concern *exclusively* the domestic
affairs of the Slave States; and so long as it does not conflict
with or affect the rights, interests, duties, or obligations which
appertain to the *affairs of the nation*, nor impede the execution
of the laws and constitution of the United States, nor con-
flict with the rights of citizens under them. Yet cases might
arise in which, in time of peace, the abolishment of slavery
might be necessary, and therefore would be lawful, in order to
enable Congress to carry into effect some of the express pro-
visions of the constitution, as for example, that contained in Art.
IV. Sect. 4, Cl. 1, in which the United States guarantee to every
State in this Union a republican form of government; or that
contained in Art. IV. Sect. 2, Cl. 1, which provides that citizens
of each State shall be entitled to all the privileges and immuni-
ties of citizens in the several States.

It is asserted in this essay that, when the institution of slavery no longer concerns only the household or family, and no longer continues to be a matter exclusively appertaining to the domestic affairs of the State in which it exists; when it becomes a potent, operative, and efficient instrument for carrying on war against the Union, and an important aid to the public enemy; when it opposes the national military powers now involved in a gigantic rebellion; when slavery has been developed into a vast, an overwhelming war power, which is actually used by armed traitors for the overthrow of government and of the constitution; when it has become the origin of civil war, and the means by which hostilities are maintained in the deadly struggle of the Union for its own existence; when a local institution is perverted so as to compel three millions of loyal colored subjects to become belligerent traitors because they are held as slaves of disloyal masters, — then indeed slavery has become an

vi

PREFACE.

affair most deeply affecting the national welfare and common
defence, and has subjected itself to the severest enforcement of
those legislative and military powers, to which alone, under
the constitution, the people must look to save themselves
from ruin. In the last extremity of our contest, the ques-
tion must be decided whether slavery shall be rooted up
and extirpated, or our beloved country be torn asunder and
given up to our conquerors, our Union destroyed, and our people
dishonored? Are any rights of property, or any claims, which
one person can assume to have over another, by whatever local
law they may be sanctioned, to be held, by any just construction of
the constitution, as superior to the nation's right of self-defence?
And can the local usage or law of any section of this country
override and break down the obligation of the people to maintain
and perpetuate their own government? Slavery is no longer
local or domestic after it has become an engine of war. The
country demands, at the hands of Congress and of the President,
the exercise of every power they can lawfully put forth for its
destruction, not as an object of the war, but as a means of termi-
nating the rebellion, if by destroying slavery the republic may be
saved. These considerations and others have led the author to
the conclusion stated in the following pages, "that Congress
has the right to abolish slavery, when in time of war its abolish-
ment is necessary to aid the commander-in-chief in maintaining
the 'common defence.'"

W. W.

CONSTITUTION

OF THE

UNITED STATES OF AMERICA.

INTRODUCTION.

THE PURPOSE FOR WHICH IT WAS FOUNDED.

THE Constitution of the United States, as declared in the preamble, was ordained and established by the people, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

HOW IT HAS BEEN VIOLATED.

A handful of slave-masters have broken up that Union, have overthrown justice, and have destroyed domestic tranquillity. Instead of contributing to the common defence and public welfare, or securing the blessings of liberty to themselves and their posterity, they have waged war upon their country, and have attempted to establish, over the ruins of the Republic, an aristocratic government founded upon Slavery.

4

CONSTITUTION OF THE UNITED STATES.

"THE INSTITUTION" vs. THE CONSTITUTION.

It is the conviction of many thoughtful persons, that slavery has now become practically irreconcilable with republican institutions, and that it constitutes, at the present time, the chief obstacle to the restoration of the Union. They know that slavery can triumph only by overthrowing the republic; they believe that the republic can triumph only by overthrowing slavery.

"THE PRIVILEGED CLASS."

Slaveholding communities constitute the only "privileged class" of persons who have been admitted into the Union. They alone have the right to vote for their property as well as for themselves. In the free States citizens vote only for themselves. The former are allowed to count, as part of their representative numbers, three fifths of all slaves. If this privilege, which was accorded only to the original States, had not been extended (contrary, as many jurists contend, to the true intent and meaning of the constitution) so as to include other States subsequently formed, the stability of government would not have been seriously endangered by the temporary toleration of this "institution," although it was inconsistent with the principles which that instrument embodied, and revolting to the sentiments cherished by a people who had issued to the world the Declaration of Independence, and had fought through the revolutionary war to vindicate and maintain the rights of man.

UNEXPECTED GROWTH OF SLAVERY.

The system of involuntary servitude, which had received, as it merited, the general condemnation of

INTRODUCTION.

5

the leading southern and northern statesmen of the country, — of those who were most familiar with its evils, and of all fair-minded persons throughout the world, — seemed, at the time when our government was founded, about to vanish and disappear from this continent, when the spinning jenny of Crompton, the loom of Wyatt, the cotton gin of Whitney, and the manufacturing capital of England, combined to create a new and unlimited demand for that which is now the chief product of southern agriculture. Suddenly, as if by magic, the smouldering embers of slavery were rekindled, and its flames, like autumnal fires upon the prairies, have rapidly swept over and desolated the southern states; and, as that local, domestic institution, which seemed so likely to pass into an ignominious and unlamented grave, has risen to claim an unbounded empire, hence the present generation is called upon to solve questions and encounter dangers not foreseen by our forefathers.

### SLAVERY ABOLISHED BY EUROPEAN GOVERNMENTS.

In other countries the scene has been reversed. France, with unselfish patriotism, abolished slavery in 1794; and though Napoleon afterwards reestablished servitude in most of the colonies, it was finally abolished in 1848. England has merited and received her highest tribute of honor from the enlightened nations of the world for that great act of Parliament in 1833, whereby she proclaimed universal emancipation.

In 1844, King Oscar informed the Swedish states of his desire to do away with involuntary servitude in his dominions; in 1846 the legislature provided the pecu-

6

niary means for carrying that measure into effect; and
now all the slaves have become freemen.

Charles VIII., King of Denmark, celebrated the anni-
versary of the birth of the Queen Dowager by abol-
ishing slavery in his dependencies, on the 28th of
July, 1847.

In 1862, Russia has consummated the last and grandest
act of emancipation of modern times.*

While Europe has thus practically approved of the
leading principle of the American constitution, as
founded on justice, and as essential to public welfare,
the United States, as represented by the more recent ad-
ministrations, have practically repudiated and abandoned
it. Europe, embarrassed by conservative and monar-
chical institutions, adopts the preamble to that instru-
ment, as a just exposition of the true objects for which
governments should be established, and accordingly
abolishes slavery — while, in this country, in the mean
time, slavery, having grown strong, seeks by open rebel-
lion to break up the Union, and to abolish republican de-
mocracy.

SLAVERY IN 1862 NOT SLAVERY IN 1788.

However harmless that institution may have been in
1788, it is now believed by many, that, with few but
honorable exceptions, the *slave-masters* of the present
day, *the privileged class*, cannot, or will not, conduct them-
selves so as to render it longer possible, by peaceable
association with them, to preserve "the Union," to
"establish justice," "insure domestic tranquillity, the
general welfare, the common defence, or the blessings
of liberty to ourselves or our posterity." And since the
wide-spread but secret conspiracies of traitors in the

* To the above examples we must add that of the Dutch West Indies,
where the law emancipating the slaves goes into operation in July, 1863.

INTRODUCTION.

7

slave states for the last thirty years; their hatred of the
Union, and determination to destroy it; their abhor-
rence of republican institutions, and of democratic
government; their preference for an "oligarchy with
slavery for its corner stone," have become known to the
people,— their causeless rebellion; their seizure of the
territory and property of the United States; their siege
of Washington; their invasion of States which have
refused to join them; their bitter, ineradicable, and
universal hatred of the people of the free States, and
of all who are loyal to the government, have produced
a general conviction that slavery (which alone has
caused these results, and by which alone the country
has been brought to the verge of ruin) must itself be
terminated; and that this "privileged class" *must be abol-
ished*; otherwise the unity of the American people must
be destroyed, the government overthrown, and consti-
tutional liberty abandoned.

To secure domestic tranquillity is to make it certain
by controlling power. It cannot be thus secured while
a perpetual uncontrollable cause of civil war exists.
The cause, the means, the opportunity of civil war must
be removed; the perennial fountain of all our national
woes must be destroyed; otherwise "it will be in vain
to cry, Peace! peace! There is no peace."

ARE SLAVEHOLDERS ARBITERS OF PEACE AND WAR?

Is the Union so organized that the means of involving
the whole country in ruin must be left in the hands of
a small privileged class, to be used at their discretion ?
Must the blessing of peace and good government be
dependent upon the sovereign will and pleasure of a
handful of treasonable and unprincipled slave-masters ?

8

Has the constitution bound together the peaceable citizen with the insane assassin, so that his murderous knife cannot lawfully be wrenched from his grasp even in self-defence ?

If the destruction of slavery be necessary to save the country from defeat, disgrace, and ruin,—and if, at the same time, the constitution guarantees the perpetuity of slavery, whether the country is saved or lost,— it is time that the friends of the government should awake, and realize their awful destiny. If the objects for which our government was founded can lawfully be secured only so far as they do not interfere with the pretensions of slavery, we must admit that the interests of slave-masters stand first, and the welfare of the people of the United States stands last, under the guarantees of the constitution. If the Union, the constitution, and the laws, like Laocoön and his sons, are to be strangled and crushed, in order that the unreleasant serpent may live in triumph, it is time to determine which of them is most worthy to be saved. Such was not the Union formed by our forefathers. Such is not the Union the people intend to preserve. They mean to uphold a Union, under the constitution, interpreted by common sense; a government able to attain results worthy of a great and free people, and for which it was founded; a republic, representing the sovereign majesty of the whole nation, clothed with ample powers to maintain its supremacy forever. They mean that liberty and union shall be "one and inseparable."

WHY SLAVERY, THOUGH HATED, WAS TOLERATED.

It is true, that indirectly, and for the purpose of a more equal distribution of direct taxes, the framers of the con-

INTRODUCTION.

09

stitution *tolerated*, while they condemned slavery; but they tolerated it because they believed that it would soon disappear. They even refused to allow the character of their own liberties to be polluted by the mention of the word "slave." Having called the world to witness their heroic and unselfish sacrifices for the vindication of their own inalienable rights, they could not, consistently with honor or self-respect, transmit to future ages the evidence that some of them had trampled upon the inalienable rights of others.

### RECOGNITION OF SLAVERY NOT INCONSISTENT WITH THE PERPETUITY OF THE REPUBLIC.

Though slavery was thus tolerated by being ignored, we should dishonor the memory of those who organized that government to suppose that they did not intend to bestow upon it the power to maintain its own authority — the right to overthrow or remove slavery, or whatever might prove fatal to its permanence, or destroy its usefulness. We should discredit the good sense of the great people who ordained and established it, to deny that they bestowed upon the republic, created by and for themselves, the right, the duty, and the powers of *self-defence*. For self-defence by the government was only maintaining, through the people's agents, the right of the people to govern themselves.

### DISTINCTION BETWEEN THE OBJECTS AND THE MEANS OF WAR.

We are involved in a war of self-defence.

It is not the *object and purpose* of our hostilities to lay waste to lands, burn bridges, break up railroads, sink ships, blockade harbors, destroy commerce, capture, imprison, wound, or kill citizens; to seize, approve

2

10

priate, confiscate, or destroy private property; to
interfere with families, or domestic institutions; to
remove, employ, liberate, or arm slaves; to accumu-
late national debt, impose new and burdensome taxes;
or to cause thousands of loyal citizens to be slain in
battle. But, as means of carrying on the contest, it has be-
come necessary and lawful to lay waste, burn, sink, de-
roy, blockade, wound, capture, and kill; to accumulate
debt, lay taxes, and expose soldiers to the peril of deadly
combat. Such are the ordinary results and incidents of
war. If, in further prosecuting hostilities, the liberating,
employing, or arming of slaves shall be deemed con-
venient for the more certain, speedy, and effectual over-
throw of the enemy, the question will arise, whether
the constitution prohibits those measures as acts of
legitimate war against rebels, who, having abjured that
constitution and having openly in arms defied the gov-
ernment, claim for themselves only the rights of bel-
ligerents.

It is fortunate for America that securing the liberties
of a great people by giving freedom to four millions of
bondmen would be in accordance with the dictates of
justice and humanity. If the preservation of the Union
required the enslavement of four millions of freemen,
very different considerations would be presented.

LIBERAL AND STRICT CONSTRUCTIONISTS.

The friends and defenders of the constitution of the
United States of America, ever since its ratification,
have expressed widely different opinions regarding the
limitation of the powers of government in time of
peace, no less than in time of war. Those who have
contended for the most narrow and technical construc-

INTRODUCTION

11

tion, having stuck to the letter of the text, and not appreciating the spirit in which it was framed, are opposed to all who view it as only a *frame* of government, a *plan-in outline*, for regulating the affairs of an enterprising and progressive nation. Some treat that frame of government as though it were a cast-iron mould, incapable of adaptation or alteration — as one which a blow would break in pieces. Others think it a hoop placed around the trunk of a living tree, whose growth must girdle the tree, or burst the hoop. But sounder judges believe that it more resembles the tree itself, — native to the soil that bore it, — waxing strong in sunshine and in storm, putting forth branches, leaves, and roots, according to the laws of its own growth, and flourishing with eternal verdure. Our constitution, like that of England, contains all that is required to adapt itself to the present and future changes and wants of a free and advancing people. This great nation, like a distant planet in the solar system, may sweep round a wide orbit; but in its revolutions it never gets beyond the reach of the central light. The sunshine of constitutional law illumines its pathway in all its changing positions. We have not yet arrived at the "dead point" where the hoop must burst—the mould be shattered—the tree girdled—or the sun shed darkness rather than light. By a liberal construction of the constitution, our government has passed through many storms unharmed. Slaveholding States, other than those whose inhabitants originally formed it, have found their way into the Union, notwithstanding the guarantee of equal rights to all. The territories of Florida and Louisiana have been purchased from European powers. Conquest has added a nation to our borders. The purchased and the

12

conquered regions are now legally a part of the United
States. The admission of new States containing a privi-
leged class, the incorporation into our Union of a for-
eign people, are held to be lawful and valid by all the
courts of the country. Thus far from the old anchor-
age have we sailed under the flag of "public necessity,"
"general welfare," or "common defence." Yet the great
charter of our political rights "still lives;" and the
question of to-day is, whether that instrument, which
has not prevented America from acquiring one country
by purchase, and another by conquest, will permit her
to save herself?

POWERS WE SHOULD EXPECT TO FIND.

If the ground-plan of our government was intended
to be more than a temporary expedient,—if it was de-
signed, according to the declaration of its authors, for a
perpetual Union,—then it will doubtless be found, upon
fair examination, to contain whatever is essential to
carry that design into effect. Accordingly, in addition
to provisions for adapting it to great changes in the
situation and circumstances of the people by amends,
we find that powers essential to its own perpe-
tuity are vested in the executive and legislative
departments, to be exercised according to their discretion,
for the good of the country—powers which, however
dangerous, must be intrusted to every government, to
enable it to maintain its own existence, and to protect
the rights of the people. Those who founded a gov-
erment for themselves intended that it should never be
overthrown; nor even altered, except by those under
whose authority it was established. Therefore they
gave to the President, and to Congress, the means

INTRODUCTION.

13

essential to the preservation of the republic, but none
for its dissolution.

LAWS FOR PEACE, AND LAWS FOR WAR.

Times of peace have required the passage of numer-
ous statutes for the protection and development of
agricultural, manufacturing, and commercial industry,
and for the suppression and punishment of ordinary
crimes and offences. A state of general civil war in
the United States is, happily, new and unfamiliar.
These times have demanded new and unusual legis-
lation to call into action those powers which the con-
stitution provides for times of war.

Leaving behind us the body of laws regulating the
rights, liabilities, and duties of citizens, in time of public
tranquillity, we must now turn our attention to the
RESERVED and HITHERTO Unused powers contained in the
constitution, which enable Congress to pass a body of
laws to regulate the rights, liabilities, and duties of
citizens in time of war. We must enter and explore
the arsenal and armory, with all their engines of defence,
enclosed, by our wise forefathers for the safety of the
republic, within the old castle walls of that constitu-
tion; for now the garrison is summoned to surrender;
and if there be any cannon, it is time to unlimber and
run them out the port-holes, to fetch up the hot shot,
to light the match, and hang out our banner on the
outer walls.

THE UNION IS GONE FOREVER IF THE CONSTITUTION DENIES THE POWER TO SAVE IT.

The question whether republican constitutional gov-
ernment shall now cease in America, must depend upon

14

the construction given to these hitherto unused powers. Those who desire to see an end of this government will deny that it has the ability to save itself. Many new inquiries have arisen in relation to the existence and limitation of its powers. Must the successful prosecution of war against rebels, the preservation of national honor, and securing of permanent peace,—if attainable only by rooting out the evil which caused and maintains the rebellion,—be effected by destroying rights solemnly guaranteed by the constitution we are defending? If so, the next question will be, whether the law of self-defence and overwhelming necessity will not justify the country in denying to rebels and traitors in arms whatever rights they or their friends may claim under a charter which they have repudiated, and have armed themselves to overthrow and destroy? Can one party break the contract, and justly hold the other party bound by it? Is the constitution to be so interpreted that rebels and traitors cannot be put down? Are we so hampered, as some have asserted, that even if war end in reëstablishing the Union, and enforcing the laws over all the land, the results of victory will be turned against us, and the conquered enemy may then treat us as though they had been victors? Will vanquished criminals be able to resume their rights to the same political superiority over the citizens of Free States, which, as the only "privileged class," they have hitherto enjoyed?

Have they who alone have made this rebellion, while committing treason and other high crimes against the republic, a protection, an immunity against punishment for these crimes, whether by forfeiture of life or property, by reason of any clause in the constitution? Can

INTRODUCTION.

15

government, the people's agent, wage genuine and ef-
fectual war against their enemy? or must the soldier of
the Union, when in action, keep one eye upon his rifle,
and the other upon the constitution? Is the power to
make war, when once lawfully brought into action, to
be controlled, baffled, and emasculated by any obliga-
tion to guard or respect rights set up by or for belliger-
ent traitors?

THE LEADING QUESTIONS STATED.

What limit, if any, is prescribed to the war-making
power of the President, as Commander-in-Chief of the
army and navy of the United States? What authority
has Congress to frame laws interfering with the ordi-
nary civil rights of persons and property, of loyal or
disloyal citizens, in peaceful or in rebellious districts;
of the enemy who may be captured as spies, as pirates,
as guerrillas or bush-whackers; as aiders and comforters
of armed traitors, or as soldiers in the battle-field?
What rights has Congress, or the President, in relation
to belligerent districts of country; in relation to slaves
captured or escaping into the lines of our army, or
escaping into Free States; or slaves used by the enemy
in military service; or those belonging to rebels, not
so used? Whether they are contraband of war? and
whether they may be released, manumitted, or emanci-
pated, and discharged by the civil or military authority?
or whether slaves may be released from their obligation
to serve rebel masters? and whether slavery may be
abolished with or without the consent of the masters,
as a military measure, or as a legislative act, required
by the public welfare and common defence? Where
the power to abolish it resides, under the constitution?

16

And whether there is any restraint or limitation upon
the power of Congress to punish treason? What are
the rights of government over the private property of
loyal citizens? What are the rights and liabilities of
traitors? These and similar inquiries are frequently
made among the plain people; and it is for the pur-
pose of explaining some of the doctrines of law appli-
cable to them, that the following suggestions have been
prepared.

PUBLIC USE OF PRIVATE PROPERTY.

17

# CHAPTER I.

THE CONSTITUTIONAL RIGHT OF THE GOVERNMENT TO APPROPRIATE PRIVATE PROPERTY TO PUBLIC USE, EITHER IN TIME OF PEACE OR IN TIME OF WAR.

*The general government of the United States has, in time of peace, a legal right, under the constitution, to appropriate to public use the private property of any subject, or of any number of subjects, owing it allegiance.*

Each of the States claims and exercises a similar right over the property of its own citizens.

## THE RIGHT IS FOUNDED IN REASON.

All permanent governments in civilized countries assert and carry into effect, in different ways, the claim of "eminent domain;" for it is essential to their authority, and even to their existence. The construction of military defences, such as forts, arsenals, roads, navigable canals, however essential to the protection of a country in war, might be prevented by private interests, if the property of individuals could not be taken by the country, through its government. Internal improvements in time of peace, however important to the interests of the public, requiring the appropriation of real estate belonging to individuals, might be interrupted, if there were no power to take, without the consent of the owner, what the public use requires. And as it is the government which protects all citizens in their rights to life, liberty, and property, they are deemed to hold their property subject to the

3

18

claim of the supreme protector to take it from them when demanded by "public welfare." It is under this quasi sovereign power that the State of Massachusetts seizes by law the private estates of her citizens; and she even authorizes several classes of corporations to seize land, against the will of the proprietor, for public use and benefit. Railroads, canals, turnpikes, telegraphs, bridges, aqueducts, could never have been constructed were the existence of this great right denied. And the TITLE to that interest in real estate, which is thus acquired by legal seizure, is deemed by all the courts of this commonwealth to be as legal, and as constitutional, as if purchased and conveyed by deed, under the hand and seal of the owner.

INDEMNITY IS REQUIRED.

But, when individuals are called upon to give up what is their own for the advantage of the community, justice requires that they should be fairly compensated for it: otherwise public burdens would be shared unequally. To secure the right to indemnification, which was omitted in the original constitution of the United States, an amendment was added, which provides, (Amendments, Art. V, last clause,) "Nor shall private property be taken for public use without just compensation."*

The language of this amendment admits the right of the United States to take private property for public use. This amendment, being now a part of the constitution, leaves that right no longer open to question, if it ever was questioned.

* Similar provisions are found in the constitution of Massachusetts, and several other states.

19

In guarding against the abuse of the right to take private property for public use, it is provided that the owner shall be entitled to be fairly paid for it; and thus he is not to be taxed more than his due share for public purposes.

It is not a little singular that the framers of the constitution should have been less careful to secure equality in distributing the burden of taxes. Sect. 8 requires *duties, imposts, and excises* to be *uniform* through-out the United States, but it does not provide that *taxes* should be uniform. Although Art. I., Sect. 9, provides that no *capitation* or other *direct tax* shall be laid unless in proportion to the census, yet far the most important subjects of taxation are still unprotected, and may be unequally assessed, without violating any clause of that constitution, which so carefully secures equality of public burdens by providing compensation for private property appropriated to the public benefit.

"PUBLIC USE."

What is "*public use*" for which private property may be taken?

Every appropriation of property for *the benefit* of the United States, either for a national public improvement, or to carry into effect any valid law of Congress for the maintenance, protection, or security of national interests, is "*public use*." *Public use* is contradistinguished from *private use*. That which is for the *use of the country*, however applied or appropriated, is for public use.

Public use does not require that the property taken shall be actually *used*. It may be *disused, removed, or destroyed*. And destruction of private property may be the best public use it can be put to.

20

Suppose a bridge, owned by a private corporation, were so located as to endanger a military work upon the bank of a river. The *destruction* of that bridge to gain a military advantage would be appropriating it to *public use*.

So also the blowing up or demolition of buildings in a city, for the purpose of preventing a general conflagration, would be an appropriation of them to public use. The *destruction* of arms, or other munitions of war, belonging to private persons, in order to prevent their falling into possession of the enemy, would be applying them to *public use*. Congress has power to pass laws providing for the common defence and general welfare, under Art. I. Sect. 8 of the constitution; and whenever, in their judgment, the common defence or general welfare requires them to authorize the appropriation of private property to public use,— whether that use be *the employment or destruction of the property taken*, — they have the right to pass such laws; to appropriate private property in that way; and whatever is done with it is "public use," and entitles the owner to just compensation therefor.

ALL KINDS OF PROPERTY, INCLUDING SLAVES, MAY BE SO APPROPRIATED.

There is no restriction as to the kind or *character* of private property which may be lawfully thus appropriated, whether it be real estate, personal estate, rights in action or in possession, *obligations for money, or for labor and service*. Thus the obligations of minor children to their parents, of apprentices to their masters, and of other persons owing labor and service to their masters, may lawfully be appropriated to public use, or

21

discharged and destroyed, for public benefit, by Con-
gress, with the proviso that just compensation shall be
allowed to the parent or master.

Our government, by treaty, discharged the claims
of its own citizens against France, and thus appro-
priated private property to public use. At a later
date the United States discharged the claims of certain
slave owners to labor and service, whose slaves had
been carried away by the British contrary to their
treaty stipulations. In both cases indemnity was
promised by our government to the owners; and in
case of the slave masters it was actually paid. By
abolishing slavery in the District of Columbia, that
which was considered for the purposes of the act as
private property was appropriated to public use, with
just compensation to the owners; Congress, in this
instance, having the right to pass the act as a local,
municipal law; but the compensation was from the
treasury of the United States.

During the present rebellion, many minors, appren-
tices, and slaves have been relieved from obligation to
their parents and masters, the claim for their services
having been appropriated to public use, by employing
them in the military service of the country.

That Congress should have power to appropriate every
description of private property for public benefit in time
of war, results from the duty imposed on it by the
constitution to pass laws "providing for the common
defence and general welfare."

Suppose that a large number of apprentices desired
to join the army as volunteers in time of sorest need,
but were restrained from so doing only by reason of
their owing labor and service to their employers, who

22

were equally with them citizens and subjects of this
government; would any one doubt or deny the right
of government to accept these apprentices as sol-
diers, to discharge them from the obligation of their
indentures, providing just compensation to their em-
ployers for loss of their services? Suppose that
these volunteers owed labor and service for life, as
slaves, instead of owing it for a term of years; what
difference could it make as to the right of government
to use their services, and discharge their obligations,
or as to the liability to indemnify the masters?
The right to use the services of the minor, the
apprentice, and the slave, for public benefit, belongs
to the United States. The claims of all American
citizens upon their services, whether by local law, or
by common law, or by indentures, can be annulled by
the same power, for the same reasons, and under the
same restrictions that govern the appropriation of any
other private property to public use.

THE UNITED STATES MAY REQUIRE ALL SUBJECTS TO DO MILITARY DUTY.

Slaves, as well as apprentices and minors, are
equally *subjects* of the United States, whether they
are or are not *citizens* thereof. The government of
the United States has the right to call upon all its
subjects to do *military duty*. If those who owe labor
and service to others, either by contract, by inden-
ture, by common or statute law, or by local usage,
could not be lawfully called upon to *leave* their em-
ployments to serve their country, no inconsiderable
portion of the able-bodied men would thus be ex-
empt, and the constitution and laws of the land

23

providing for calling out the army and navy would be
set at nought. But the constitution makes no such
exemptions from military duty. Private rights cannot
be set up to overthrow the claims of the country to
the services of every one of its subjects who owes it
allegiance.

How far the United States is under obligation to
compensate parents, masters of apprentices, or masters
of slaves, for the loss of service and labor of those
subjects who are enlisted in the army and navy, has
not been yet decided.* The constitution recognizes
slaves as "persons held to labor or service." So also are
apprentices and minor children "persons held to labor
and service." And, whatever other claims may be set
up, by the laws of either of the slave states, to any
class of "persons," the constitution recognizes only the
claim of individuals to the labor and service of other in-
dividuals. It seems difficult, therefore, to state any
sound principle which should require compensation in
one case and not in the other.

WILL SLAVEHOLDERS BE ENTITLED TO INDEMNITY IF THEIR SLAVES ARE USED FOR MILITARY PURPOSES?

It is by no means improbable, that, in the emergency
which we are fast approaching, the right and duty
of the country to call upon all its loyal subjects to aid
in its military defence will be deemed paramount to the
claims of any private person upon such subjects, and that the

* If an apprentice enlist in the army, the courts will not, upon a habeas corpus, issued at the relation of the master, remand the apprentice to his custody, if he be unwilling to return, but will leave the master to his suit against the officer, who, by Stat. 16 Mar. 1802, was forbidden to enlist him without the master's consent. Commonwealth v. Robinson, 1 S. & R. 353; Commonwealth v. Harris, 7 Pa. L. J. 283.

24

loss of *labor and service* of certain citizens, like the loss
of life and property, which always attends a state of
war, must be borne by those upon whom the misfortune
happens to fall. It may become one of the great polit-
ical questions hereafter, whether, if slavery should as a
civil act in time of peace, or by treaty in time of war,
be wholly or partly abolished, for *public benefit*, or *public defence*, such abolishment is an *appropriation of private property* for public use, *within the meaning of the constitution*.

INDEMNITY TO MORMONS.

The question has not yet arisen in the courts of the
United States, whether the act of Congress, which,
under the form of a statute against polygamy abolishes
Mormonism, a domestic institution, sustained like slavery
only by local law, is such an appropriation of the claims
of Mormons to the labor and service of their wives as
requires just compensation under the constitution? A
decision of this question may throw some light on the
point now under consideration.

EFFECT OF NATURALIZATION AND MILITIA LAWS ON THE QUESTION OF INDEMNITY TO SLAVE-MASTERS.

A further question may arise as to the application
of the "compensation" clause above referred to. Con-
gress has the power to pass naturalization laws, by Art.
I. Sect. 8. This power has never been doubted. The
only question is, whether this power is not exclusive.*
Congress may thus give the privileges of citizenship to

* See *Chirac v. Chirac*, 2 Whea. 269; *U. S. v. Villato*, 2 Dall. 372; *Thirlow v. Mass.*, 5 How. 585; *Smith v. Turner*, 7 ib. 556; *Golden v. Prince*, 3 W. C. C. Reports, 314.

25

any persons whatsoever, black or white. Colored men, having been citizens in some of the *States* ever since they were founded, having acted as citizens prior to 1788 in various civil and military capacities, are therefore citizens of the United States.*

Under the present laws of the United States, according to the opinion of the attorney-general of Massachusetts, *colored men are equally with white men required to be enrolled in the militia of the United States*,† although such was not the case under the previous acts of 1792 and 1795. "The general government has authority to determine who shall and who may not compose the militia of the United States; and having so determined, the state government has no legal authority to prescribe a different enrolment.‡ If, therefore, Congress exercise either of these undoubted powers to grant *citizenship* to all colored persons residing or coming within either of the States, or to pass an act requiring the enrolment of all able-bodied persons within a prescribed age, whether owing labor and service or not, as part of the militia of the United States, and thereby giving to all, as they become soldiers or seamen, their freedom from obligations of labor and service, except *military* labor and service, then the question would arise, whether government, by calling its own subjects and citizens into the military service of the country, in case of overwhelming necessity, could be required by the constitution to recognize the private relations in which the soldier might stand, by *local* laws, to persons setting up

* See case of *Dred Scott*; which in no part denies that if colored men were citizens of either of the states which adopted the constitution, they were citizens of the United States.

† See Stat. U. S. July 17, 1862.

‡ 8 Gray's R. 615.

4

26

claims against him? If white subjects or citizens, owe labor and service, even by formal indentures, such obligations afford no valid excuse against the requisition of government to have them drafted into the militia to serve the country. The government does not compensate those who claim indemnity for the loss of such "labor and service." Whether the color of the debtor, or the length of time during which the obligation (to labor and service) has to run, or the evidence by which the existence of the obligation is proved, can make an essential difference between the different kinds of labor and service, remains to be seen. The question is, whether the soldier or seaman, serving his country in arms, can be deemed private property, as recognized in the constitution of the United States?

DOES THE WAR POWER OF SEIZURE SUPERSEDE THE CIVIL POWER OF CONGRESS TO APPROPRIATE PRIVATE PROPERTY TO PUBLIC USE?

That the property of any citizen may, under certain circumstances, be seized in time of war, by military officers, for public purposes, is not questioned, just compensation being offered, or provided for; but the question has been asked, whether this power does not supersede the right of Congress, in war, to pass laws to take away what martial law leaves unappropriated?

This inquiry is conclusively answered by reference to the amendment of the constitution, above cited, which admits the existence of that power in CONGRESS;* but in addition to this, there are other clauses which devolve powers and duties on the legislature, giving them a large and important share in instituting, organizing, carrying on, regulating, and ending war; and these duties could not, under all circumstances, be discharged

* Amendments, Art. V. last clause.

27

in war, without exercising the right to take for public
use the property of the subject. It would seem strange
if private property could not be so taken, while it is
undeniable that in war the government can call into
the military service of the country every able-bodied
citizen, and tax his property to any extent.

REFERENCES AS TO THE CONSTITUTION, SHOWING THE WAR POWERS OF CONGRESS.

The powers of the legislative department in relation
to war are contained chiefly in the following sections
in the constitution: —

Art. I., Sect. 8, Cl. 11. Congress may institute war by
declaring it against an enemy. The President alone
cannot do so. Also, Congress may make laws concern-
ing captures on land, as well as on water.

Art. I., Sect. 8, Cl. 12. Congress may raise and
support armies: and provide and maintain a navy.

Art. I., Sect. 8, Cl. 14. Congress may make laws
for the government of land and naval forces.

Art. I., Sect. 8, Cl. 15. Congress may provide for
calling forth the militia to execute the laws of the Union,
suppress insurrection, and repel invasion.

Art. I., Sect. 8, Cl. 16: And may provide for or-
ganizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the
service of the United States.

The preamble to the constitution declares the objects
for which it was framed to be these: "to form a more
perfect Union; establish justice; insure domestic tran-
quillity; provide for the common defence; promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity." In Art. I., Sect. 8, Cl. 1,

28

the first power given to Congress is to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States. And in the same article (the eighteenth clause) express power is given to Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof."

SLAVE PROPERTY SUBJECT TO THE SAME LIABILITY AS OTHER PROPERTY TO BE APPROPRIATED FOR WAR PURPOSES.

If the public welfare and common defence, in time of war, require that the claims of masters over their apprentices or slaves should be cancelled or abrogated, against their consent, and if a general law carrying into execution such abrogation, is, in the judgment of Congress, "a necessary and proper measure for accomplishing that object," there can be no question of the constitutional power and right of Congress to pass such laws. The only doubt is in relation to the right to compensation. If it should be said that the release of slaves from their servitude would be tantamount to impairing or destroying the obligation of contracts, it may be said, that though states have no right to pass laws impairing the obligation of contracts, Congress is at liberty to pass such laws. It will be readily perceived that the right to abrogate and cancel the obligations of apprentices and slaves does not rest solely upon the power of Congress to appropriate private property to public use; but it may be founded upon their power and obligation to accomplish one of the chief objects for which the Union was formed, viz., to provide for the common defence and general welfare of the United States.

29

IMPORTANCE AND DANGER OF THIS POWER.

The powers conveyed in this 18th clause of Art. I., Sect. 8, are of vast importance and extent. It may be said that they are, in one sense, unlimited and discretionary. They are more than imperial. But it was intended by the framers of the constitution, or, what is of more importance, by the *people* who made and adopted it, that the powers of government in dealing with civil rights in time of peace, should be *defined* and limited; but the powers "to provide for the *general welfare* and the *common defence*" in time of war, should be *unlimited*. It is true that such powers may be temporarily abused; but the remedy is always in the hands of the people, who can unmake laws and select new representatives and senators.

POWERS OF THE PRESIDENT NOT IN CONFLICT WITH THOSE OF
CONGRESS.

It is not necessary here to define the extent to which congressional legislation may justly control and regulate the conduct of the army and navy in service; or where falls the dividing line between civil and martial law. But the power of Congress to pass laws on the subjects expressly placed in its charge by the terms of the constitution cannot be taken away from it, by reason of the fact that the President, as commander-in-chief of the army and navy, also has powers, equally constitutional, to act upon the same subject-matters. It does not follow that because Congress has power to abrogate the claims of Mormons or slaveholders, the President, as commander, may not also do the same thing.

These powers are not *inconsistent*, or conflicting. Congress may pass laws concerning *captures* on land

30

and on the water. If slaves are captured, and are treated
as "captured property," Congress should determine
what is to be done with them;* and it will be the
President's duty to see that these as well as other laws
of the United States are executed.

CONGRESS HAS POWER UNDER THE CONSTITUTION TO ABOLISH
SLAVERY.

Whenever, in the judgment of Congress, the common
defence and public welfare, in time of war, require the
removal of the condition of slavery, it is within the
scope of their constitutional authority to pass laws for
that purpose.

If such laws are deemed to take private property for public use, or to destroy private property for public benefit, as has been shown, that may be done under the constitution, by providing just compensation; otherwise, no compensation can be required. It has been so long the habit of those who engage in public life to disclaim any intention to interfere with slavery in the States, that they have of late become accustomed to deny the right of Congress to do so. But the constitution contains no clause or sentence prohibiting the exercise by Congress of the plenary power of abrogating involuntary service. The only prohibition contained in that instrument relating to persons held to labor and service, is in Art. IV., which provides that, "No person held to labor and service in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation "therein," be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due." Thus, if a slave or appren-

* Constitution, Art. I., Sect. 8, Cl. 11.

31

tice, owing service to his employer in Maryland, escapes to New York, the legislature of New York cannot, by any law or regulation, legally discharge such apprentice or slave from his liability to his employer. *This restriction is, in express terms, applicable only to State legislatures, and not to Congress.*

Many powers given to Congress are denied to the States; and there are obvious reasons why the supreme government alone should exercise so important a right. That a power is withdrawn from the States, indicates, by fair implication, that *it belongs to the United States*, unless expressly prohibited, if it is embraced within the scope of powers necessary to the safety and preservation of the government, in peace or in civil war. It will be remarked that the provision as to slaves in the constitution relates only to fugitives from labor escaping from one state into another; not to the *status* or *condition* of slaves in any of the states where they are held, while another clause in the constitution relates to *fugitives from justice*. Neither clause has any application to citizens or persons who are not *fugitives*. And it would be a singular species of reasoning to conclude that, because the constitution prescribed certain rules of conduct towards persons *escaping from one State into another*, therefore there is no power to make rules relating to other persons who do not escape from one State into another. If Congress were expressly empowered to pass laws relating to persons *when escaping from justice or labor by fleeing from their own States, it would be absurd to infer that there could be no power to pass laws relating to these same persons when staying at home*. The govern-

* Constitution, Art. IV. Sect. 2.

32

ment may pass laws requiring the return of fugitives: they may pass other laws punishing their crimes, or relieving them from penalty. The power to do the one by no means negatives the power to do the other. If Congress should discharge the obligations of slaves to render labor and service, by passing a law to that effect, such law would supersede and render void all rules, regulations, customs, or laws of either State to the contrary, for the constitution, treaties, and laws of the United States are the supreme law of the land. If slaves were released by act of Congress, or by the act of their masters, there would be no person *held to labor* as a slave by the laws of any State, and therefore there would be no person to whom the clause in the constitution restraining State legislation could apply. This clause, relating to fugitive slaves, has often been misunderstood, as it has been supposed to limit the power of Congress, while in fact it *applies in plain and express terms only to the States*, controlling or limiting their powers, but having no application to the general government. If the framers of the constitution intended to take from Congress the power of passing laws relating to slaves in the States or elsewhere, they would have drafted a clause to that effect. They did insert in that instrument a proviso that Congress should pass no law prohibiting the "importation of such persons as any of the States should think proper to admit" (meaning slaves) "prior to 1808."* And if they did not design that the legislature should exercise control over the subject of domestic slavery, whenever it should assume such an aspect as to involve *national* interests, the introduction of the proviso relating to the slave

* Constitution, Art. I. Sect. 9.

33

trade, and of several other clauses in the plan of gov-
ernment, makes the omission of any prohibition of
legislation on slavery unaccountable.

CONCLUSION.

Thus it has been shown that the government have
the right to appropriate to public use private property of
every description; that "public use" may require the
employment or the destruction of such property; that
if the "right to the labor and service of others," as
slaves, be recognized in the broadest sense as "prop-
erty," there is nothing in the constitution which
deprives Congress of the power to appropriate "that
description of property" to public use, by terminating
slavery, as to all persons now held in servitude, when-
ever laws to that effect are required by "the public
welfare and the common defence" in time of war;
that this power is left to the discretion of Congress,
who are the sole and exclusive judges as to the occa-
sions when it shall be exercised, and from whose judg-
ment there is no appeal. The right to "just compen-
sation" for private property so taken, depends upon
the circumstances under which it is taken, and the
loyalty and other legal conditions of the claimant.

NOTE. — As to the use of discretionary powers in other departments, see *Martin v. Mott*, 12 Wheat. 29-31; *Luther v. Borden*, 7 How. 44, 45.

5

## INTRODUCTION TO CHAPTER II.

THE Constitution, Art. I., Sect. 8, clause 18, gives Congress power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof."

Art. II., Sect. 2, clause 1, provides that "the President shall be Commander-in-chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States."

Art. I., Sect. 8, declares that "Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions."

As the President is, within the sense of Art. I., Sect. 8, clause 18, "an officer of government;" and by virtue of Art. II., Sect. 2, clause 1, he is Commander-in-chief of the Army and Navy; and as, by virtue of Art. II., Sect. 2, clause 1, and Art. I., Sect. 8, the power is vested in him as "an officer of the government" to suppress rebellion, repel invasion, and to maintain the Constitution by force of arms, in time of war, and for that purpose to overthrow, conquer, and subdue the enemy of his country, so completely as to "insure domestic tranquillity,"—it follows by Art. I., Sect. 8, clause 18, that Congress may, in time of war, pass all laws which shall be necessary and proper to enable the President to carry into execution" all his military powers.

It is his duty to break down the enemy, and to deprive them of their means of maintaining war: Congress is therefore bound to pass such laws as will aid him in accomplishing that object.

If it has power to make laws for carrying on the government in time of peace, it has the power and duty to make laws to preserve it from destruction in time of war.

**NOTE.**—The reader is referred to the Preface, pages 3 and 4, for remarks upon the Constitution, Art. I., Sect. 8, clause 1, relating to the alleged power of Congress "to provide for the general welfare and common defense," and, in addition to the authorities there cited, reference may be had to the speeches of Patrick Henry, who fully sustains the views of Mr. Jefferson.

34

## CHAPTER II.

### WAR POWERS OF CONGRESS.*

CONGRESS has power to frame statutes not only for the punishment of crimes, but also for the purpose of aiding the President, as commander-in-chief of the army and navy, in suppressing rebellion, and in the final and permanent conquest of a public enemy. "It may pass such laws as it may deem necessary," says Chief Justice Marshall, "to carry into execution the great powers granted by the constitution;" and "necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end."

### RULES OF INTERPRETATION.

The constitution provides that Congress shall have power to pass "all laws necessary and proper" for carrying into execution all the powers granted to the government of the United States, or any department or officer thereof. The word "necessary," as used, is not limited by the additional word "proper," but enlarged thereby.

"If the word *necessary* were used in the strict, rigorous sense, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word, the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation. If no means are to be resorted to but such as

* For references to the clauses of the Constitution containing the war powers of Congress, see *ante*, pp. 27, 28.

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35

are *indispensably* necessary, there can be neither sense nor utility in
adding the word '*proper*' for the *indispensable necessity* would shut
out from view all consideration of the *propriety* of the means.” *

Alexander Hamilton says, —

"The authorities essential to the care of the common defence are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist WITHOUT LIMITATION, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means necessary to satisfy them. The circumstances which endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. . . . This power ought to be under the direction of the same councils which are appointed to preside over the common defence. . . . It must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any matter essential to its efficacy — that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES."

This statement, Hamilton says, —

"Rests upon two axioms, simple as they are universal: the *means* ought to be proportioned to the *end*; the persons from whose agency the attainment of the *end* is expected, ought to possess the *means* by which it is to be attained." †

The doctrine of the Supreme Court of the United
States, announced by Chief Justice Marshall, and ap-
proved by Daniel Webster, Chancellor Kent, and Judge
Story, is thus stated: —

"The government of the United States is one of enumerated powers, and it can exercise only the powers granted to it; but though limited in its powers, it is supreme within its sphere of action. It is the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represents all, and acts for all.

"There is nothing in the constitution which excludes *incidental* or

3 Story's Commentaries, Sec. 122.

† Federalist, No. 23, pp. 95, 96.

36

implied powers. The Articles of Confederation gave nothing to the United States but what was expressly granted; but the new constitution dropped the word expressly, and left the question whether a particular power was granted to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the people vitally depended, must also be intrusted with ample means of their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means. The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The constitution has not left the right of Congress to employ the necessary means for the execution of its powers to general reasoning. Art. I, Sect. 8, of the constitution, expressly confers on Congress the power 'to make all laws that may be necessary and proper to carry into execution the foregoing powers.'

"Congress may employ such means and pass such laws as it may deem necessary to carry into execution great powers granted by the constitution; and necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word necessary admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely or indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should

WAR POWERS OF CONGRESS.

37

in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been foreseen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances. If the end be legitimate, and within the scope of the constitution, all means which are appropriate, and plainly adapted to this end, and which are not prohibited by the constitution, are lawful.”*

Guided by these principles of interpretation, it is obvious that if the confiscation of property, or the liberation of slaves of rebels, be “plainly adapted to the end,” — that is, to the suppression of rebellion, — it is within the power of Congress to pass laws for those purposes. Whether they are adapted to produce that result is for the legislature alone to decide. But, in considering the war powers conferred upon that department of government, a broad distinction is to be observed between confiscation or emancipation laws, passed in time of peace, for the punishment of crime, and similar laws, passed in time of war, to aid the President in suppressing rebellion, in carrying on a civil war, and in securing “the public welfare” and maintaining the “common defence” of the country. Congress may pass such laws in peace or in war as are within the general powers conferred on it, unless they fall within some express prohibition of the constitution. If confiscation or emancipation laws are enacted under the war powers of Congress, we must determine, in order to test their validity, whether, in suppressing a rebellion of colossal proportions, the United States are, within the meaning of

* On the interpretation of constitutional power, see 1 Kent's Com. 351, 352; McCulloch v. The State of Maryland, 4 Wheat. R. 413-420.

38

the constitution, *at war* with its own citizens? whether confiscation and emancipation are sanctioned as belligerent rights by the law and usage of civilized nations? and whether our government has full belligerent rights against its rebellious subjects?

ARE THE UNITED STATES AT WAR?

War may originate in either of several ways. The navy of a European nation may attack an American frigate in a remote sea. Hostilities then commence without any invasion of the soil of America, or any insurrection of its inhabitants. A foreign power may send troops into our territory with hostile intent, and without declaration of war; yet war would exist solely by this act of invasion. Congress, on one occasion, passed a resolution that "war existed by the act of Mexico;" but no declaration of war had been made by either belligerent. Civil war may commence either as a general armed insurrection of slaves, a servile war; or as an insurrection of their masters, a rebellion; or as an attempt, by a considerable portion of the subjects, to overthrow their government—which attempt, if successful, is termed a revolution. Civil war, within the meaning of the constitution, exists also whenever any combination of citizens is formed to resist generally the execution of any one or of all the laws of the United States, if accompanied with overt acts to give that resistance effect.

DECLARATION OF WAR NOT NECESSARY ON THE PART OF THE GOVERNMENT TO GIVE IT FULL BELLIGERENT POWERS.

A state of war may exist, arising in either of the modes above mentioned, without a declaration of war by either of the hostile parties. Congress has the sole power, under the constitution, to make that declaration, and

WAR POWERS OF CONGRESS.

39

to sanction or authorize the commencement of *offensive* war. If the United States commence hostilities against a foreign nation, such commencement is by proclamation, which is equivalent to a declaration of war. But this is quite a different case from a defensive or a civil war. The constitution establishes the mode in which this government shall *commence* wars, and what authority shall ordain, and what declarations shall precede, any act of hostility; but it has no power to prescribe the manner in which others should begin war against us. Hence it follows, that when war is commenced against this country, by aliens or by citizens, no declaration of war by the government is necessary. The fact that war is levied against the United States, makes it the duty of the President to call out the army or navy to subdue the enemy, whether foreign or domestic. The chief object of a declaration of war is to give notice thereof to neutrals, in order to fix their rights, and liabilities to the hostile powers, and to give to innocent parties reasonable time to withdraw their persons and property from danger. If the commander-in-chief could not call out his forces to repel an invasion until Congress should have made a formal declaration of war, a foreign army might march from Canada to the Gulf before such declaration could be made, if it should commence the campaign while Congress was not in session. Before a majority of its members could be convened, our navy might be swept from the seas. The constitution, made as it was by men of sense, never leaves the nation powerless for self-defence. That instrument, which gives the legislature authority to declare war, whenever war is *initiated* by the United States, also makes it the duty of the President, as com-

40

mander-in-chief, to engage promptly and effectually in war; or, in other words, to make the United States a belligerent nation, without declaration of war, or any other act of Congress, whenever he is legally called upon to suppress rebellion, repel invasion, or to execute the laws against armed and forcible resistance thereto. The President has his duty, Congress have theirs; they are separate, and in some respects independent. Nothing is clearer than this, that when such a state of hostilities exists as justifies the President in calling the army into actual service, without the authority of Congress, no declaration of war is requisite, either in form or substance, for any purpose whatsoever. Hence it follows, that government, while engaged in suppressing a rebellion, is not deprived of the rights of a belligerent against rebels, by reason of the fact that no formal declaration of war has been made against them, as though they were an alien enemy,—nor by reason of the circumstance that this great civil war originated, so far as we are parties to it, in an effort to resist an armed attack of citizens upon the soldiers and the forts of the United States. It must not be forgotten that by the law of nations and by modern usage, no formal declaration of war to the enemy is made or deemed necessary.* All that is now requisite is for each nation to make suitable declarations or proclamations to its own citizens, to enable them to govern themselves accordingly. These have been made by the President.

HAS GOVERNMENT FULL WAR POWERS AGAINST REBEL CITIZENS?

Some persons have questioned the right of the United States to make and carry on war against citi-

* See 1 Kent's Com. p. 54.

WAR POWERS OF CONGRESS.

41

zens and subjects of this country. Conceding that the President may be authorized to call into active service the navy and army "to repel invasion, or suppress rebellion," they neither admit that suppressing rebellion places the country in the attitude of making war on rebels, nor that the commander-in-chief has the constitutional right of conducting his military operations as he might do if he were actually at war (in the ordinary sense of the term) against an alien enemy. Misapprehension of the meaning of the constitution on this subject has led to confusion in the views of some members of Congress during the last session, and has in no small degree emasculated the efforts of the majority in dealing with the questions of emancipation, confiscation, and enemy's property.

Some have assumed that the United States are not *at war* with rebels, and that they have no authority to exercise the rights of war against them. They admit that the army has been lawfully called into the field, and may kill those who oppose them; they concede that rebels may be taken captive, their gunboats may be sunk, and their property may be seized; that martial law may be declared in rebellious districts, and its pains and penalties may be enforced; that every armed foe may be swept out of the country by military power. Yet they entertain a vague apprehension that something in the constitution takes away from these military proceedings, in suppressing rebellion and in resisting the attacks of the rebels, the quality and character of warfare. All these men in arms are not, they fancy, "making war." When the citizens of Charleston bombarded Fort Sumter, and captured property exclusively owned by the United States, it is not

6

42

denied that they were "waging war" upon the government. When Major Anderson returned the enemy's fire and attempted to defend the fort and the guns from capture, it is denied that the country was "waging war." While other nations, as well as our own, had formally or informally conceded to the rebels the character and the rights usually allowed to belligerents, — that is, to persons making war on us, —we, according to the constitutional scruple above stated, were not entitled to the rights of belligerents against them. It therefore becomes important to know what, according to the constitution, the meaning of the term "levying war" really is; and as the military forces of this country are in actual service to suppress rebellion, whether such military service is *making war* upon its own citizens; and if war actually exists, whether there is any thing in the constitution that limits or controls the full enjoyment and exercise by the government of the rights of a belligerent against the belligerent enemy?

IS "SUPPRESSING REBELLION" BY ARMS MAKING WAR ON THE CITIZENS OF THE UNITED STATES, IN THE SENSE OF THE CONSTITUTION?

To "repel invasion" by arms, all admit, is entering upon defensive war against the invader. War exists wherever and whenever the army or navy is in active service against a public enemy.

When *rebels* are organized into armies in large numbers, overthrow the government, invade the territory of States not consenting thereto, attack, and seize, and confiscate the property not of the government only, but of all persons who continue loyal, such proceedings constitute war in all its terrors — a war of subjugation

WAR POWERS OF CONGRESS.

43

and of conquest, as well as of rebellion. Far less than
these operations constitutes the *levying of war*, as those
terms are explained in the language of the consti-
tution.

"*War is levied*" on the United States wherever and whenever the crime of *treason* is committed, (see Constitution, Art. III., Sect. 3, Cl. 3,) and under that clause, as interpreted by the Supreme Court, "*war is levied*" when there exists a combination resorting to overt acts to oppose generally the execution of any law of the United States, even if no *armed force* be used. The language of the constitution is clear and express. "*Treason* shall consist only in *levying war* upon the United States, or in giving aid and comfort to the enemy." If, therefore, any person, or collection of persons, have committed the crime of *treason*, the constitution declares them to have *levied war*. As *traitors* they have become belligerent, or war *levying enemies*.

War may be waged *against* the government or *by* the government; it may be either *offensive* or *defensive*. Wherever war exists there must be two parties to it. If *traitors* (belligerents by the terms of the constitution) are one party, the government is the other party. If, when *treason* is committed, any body is at war, then it follows that the United States are at war. The inhabitants of a section of this country have issued a manifesto claiming independence; they have engaged in open war on land and sea to maintain it; they have invaded territory of peaceful and loyal sections of the Union; they have seized and confiscated ships, arsenals, arms, forts, public and private property of our government and people, and have killed, captured, and imprisoned soldiers and private citizens. Of the million of

44

men in arms, are those on one side levying war, and
are those opposed to them *not* levying war?

As it takes two parties to carry on war, either party
may begin it. That party which begins usually de-
clares war. But when it is actually begun, the party
attacked is as much at war as the party who made the
attack. The United States are *AT WAR* with rebels, in
the strictly legal and constitutional sense of the term,
and have therefore all the rights against them which
follow from a state of *war*, in addition to those which
are derived from the fact that the rebels are also
subjects.

REBELS MAY BE TREATED AS BELLIGERENTS AND AS SUBJECTS.

Wars may be divided into two classes, foreign and
civil. In all civil wars the government claims the bel-
ligerents, on both sides, as subjects, and has the legal
right to treat the insurgents both as subjects and as
belligerents; and they therefore may exercise the full
and untrammelled powers of war against their subjects,
or they may, in their discretion, relieve them from any
of the pains and penalties attached to either of these
characters. The right of a country to treat its rebel-
lious citizens *both as belligerents and as subjects* has long
been recognized in Europe, and by the Supreme Court
of the United States. In the civil war between St.
Domingo and France, such rights were exercised, and
were recognized as legitimate in *Rose v. Himely*, 4
Cranch, 272. So in *Cherriot v. Foussatt*, 3 Binney, 252.
In *Dobrie v. Napier*, 3 Scott R. 225, it was held that a
blockade of the coast of Portugal, by the Queen of
that country, was lawful, and a vessel was condemned
as a *lawful prize* for running the blockade. The cases

WAR POWERS OF CONGRESS.

45

of the *Santisima Trinidad*, 7 Wheat. 306, and *United States* v. *Palmer*, 3 W. 635, confirm this doctrine. By the terms of the constitution defining treason, a traitor must be a subject and a belligerent, and none but a belligerent subject can be a traitor.

The government have in fact treated the insurgents as belligerents on several occasions, without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, in express terms, and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded harbors ports of entry. They have relied solely on their belligerent rights, under the law of nations.

Having thus the full powers and right of making and carrying on war against rebels, both as subjects and as belligerents, this right frees the President and Congress from the difficulties which might arise if rebels could be treated only as SUBJECTS, and if war could not be waged upon them. If conceding to rebels the privileges of belligerents should relieve them from some of the harsher penalties of treason, it will subject them to the liabilities of the belligerent character. The privileges and the disadvantages are correlative. But it is by no means conceded that the government may not exercise the right of treating the same rebels both as subjects and as belligerents. The constitution defines a rebel who commits treason as one who "levies war" on the United States; and the laws punish this

46

highest of crimes with death, thus expressly treating
the same person as subject and as belligerent. Those who
save their necks from the halter by claiming to be
treated as prisoners of war, and so to protect them-
selves under the shield of belligerent rights, must bear
the weight of that shield, and submit to the legal con-
sequences of the character they claim. They cannot
sail under two flags at the same time. But a rebel
does not cease to be a subject because he has turned
traitor. The constitution expressly authorizes Congress
to pass laws to punish traitor—that is, belligerent—
subjects; and suppressing rebellion by armed force is
making war. Therefore the war powers of government
give full belligerent rights against rebels in arms.

THE LAW OF NATIONS IS ABOVE THE CONSTITUTION,

Having shown that the United States being actually
engaged in civil war, — in other words, having become a
belligerent power, without formal declaration of war, —
it is important to ascertain what some of the *rights of
belligerents* are, according to the law of nations. It will
be observed that the law of nations is above the con-
stitution of any government; and no people would be
justified by its peculiar constitution in violating the
rights of other nations. Thus, if it had been provided
in the Articles of Confederation, or in the present con-
stitution, that all citizens should have the inalienable
right to practise the profession of *piracy* upon the ships
and property of foreign nations, or that they should be
lawfully empowered to make incursions into England,
France, or other countries, and seize by force and bring
home such men and women as they should select, and,
if these privileges should be put in practice, England

WAR POWERS OF CONGRESS.

47

and France would be justified in treating us as a nest of pirates, or a band of marauders and outlaws. The whole civilized world would turn against us, and we should justly be exterminated. An association or agreement on our part to violate the rights of others, by whatever name it may be designated, whether it be called a constitution, or league, or conspiracy, or a domestic institution, is no justification, under the law of nations, for illegal or immoral acts.

INTERNATIONAL BELLIGERENT RIGHTS ARE DETERMINED BY THE LAW OF NATIONS.

To determine what are the rights of different nations when making war upon each other, we look only to the law of nations. The peculiar forms or rights of the subjects of one of these war-making parties under their own government give them no rights over their enemy other than those which are sanctioned by international law. In the great tribunal of nations, there is a "higher law" than that which has been framed by either one of them, however sacred to each its own peculiar laws and constitution of government may be.

But while this supreme law is in full force, and is binding on all countries, softening the asperities of war, and guarding the rights of neutrals, it is not conceded that the government of the United States, in a civil war for the suppression of rebellion among its own citizens, is subject to the same limitations as though the rebels were a foreign nation, owing no allegiance to the country.

With this caveat, it will be desirable to state some of the rights of belligerents.

48

BELLIGERENT RIGHT OF CONFISCATION OF PERSONAL ESTATE.

Either belligerent may seize and confiscate all the property of the enemy, on land or on the sea, including real as well as personal estate.

PRIZE COURTS.

As the property of all nations has an equal right upon the high seas, (the highway of nations,) in order to protect the commerce of neutrals from unlawful interference, it is necessary that ships and cargoes seized on the ocean should be brought before some prize court, that it may be judicially determined whether the captured vessel and cargo were, in whole or in part, enemy's property or contraband of war. The decision of any prize court, according to the law of nations, is conclusive against all the world. Where personal property of the enemy is captured from the enemy, on land, in the enemy's country, no decision of any court is necessary to give a title thereto. Capture passes the title. This is familiar law as administered in the courts of Europe and America.*

TITLE BY CAPTURE.

Some persons have questioned whether title passes in this country by capture or confiscation, by reason of some of the limiting clauses of the constitution; and others have gone so far as to assert that all the proceedings under martial law, such as capturing enemy's property, imprisonment of spies and traitors, and seizures of articles contraband of war, and suspending the *habeas corpus*, are in violation of the constitution, which declares that no man shall be deprived of life, liberty, or

* Alexander v. Duke of Wellington, 2 Russ. & Mylne, 35. Lord Brougham said that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it. See 1 Kent's Comm. 357.

WAR POWERS OF CONGRESS.

49

property without due process of law;* that private
property shall not be taken for public use without just
compensation;† that unreasonable searches and seizures shall not be made;‡ that freedom of speech and
of the press shall not be abridged;§ and that the
right of the people to keep and bear arms shall not be
infringed.||

THESE PROVISIONS NOT APPLICABLE TO A STATE OF WAR.

If these rules are applicable to a state of war, then
capture of property is illegal, and does not pass a title;
no defensive war can be carried on; no rebellion can
be suppressed; no invasion can be repelled; the army
of the United States, when called into the field, can do
no act of hostility. Not a gun can be fired constitutionally, because it might deprive a rebel foe of his life
without due process of law—firing a gun not being
deemed "due process of law."

Sect. 4 of Art. IV. says, that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature, or of the Executive, when the legislature cannot be convened, against domestic violence."

Art. I. Sect. 8, gives Congress power to declare war,
raise and support armies, provide and maintain a navy;
to provide for calling forth the militia to execute the
laws of the Union, suppress insurrection and repel invasion; to provide for organizing, arming, and disciplin-
ing the militia, and for governing such part of them as
may be in the service of the United States.

* Constitutional Amendments, Art. V.

† Ibid. Art. V.

‡ Ibid. Art. IV.

§ Ibid. Art. I.

|| Ibid. Art. II.

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50

If these rules above cited have any application in a time of war, the United States *cannot protect* each of the States from invasion by citizens of other States, nor against domestic violence; nor can the army, or militia, or navy be used for any of the purposes for which the constitution authorizes or requires their employment. If all men have the right to "keep and bear arms," what right has the army of the Union to take them away from rebels? If "no one can constitutionally be deprived of life, liberty, or property, without due process of law," by what right does government seize and imprison traitors? By what right does the army kill rebels in arms, or burn up their military stores? If the only way of dealing constitutionally with rebels in arms is to go to law with them, the President should convert his army into lawyers, justices of the peace, and constables, and serve "summonses to appear and answer to complaints," instead of a summons to surrender. He should send "GREETINGS" instead of sending rifle shot. He should load his caissons with "pleas in abatement and demurrers," instead of thirty-two pound shell and grape shot. In short, he should levy writs of execution, instead of levying war. On the contrary, the commander-in-chief proposes a different application of the due process of law. His summons is, that rebels should lay down their arms; his pleas are batteries and gunboats; his arguments are hot shot, and always "to the point;" and when his fearful execution is "levied on the body," all that is left will be for the undertaker.

TRUE APPLICATION OF THESE CONSTITUTIONAL GUARANTEES.

The clauses which have been cited from the amendments to the constitution were intended as declarations

WAR POWERS OF CONGRESS.

51

of the rights of peaceful and loyal citizens, and safe-
guards in the administration of justice by the civil tri-
bunals; but it was necessary, in order to give the gov-
ernment the means of defending itself against domestic
or foreign enemies, to maintain its authority and dig-
nity, and to enforce obedience to its laws, that it should
have unlimited war powers; and it must not be for-
gotten that the same authority which provides those
safeguards, and guarantees those rights, also imposes
upon the President and Congress the duty of so carry-
ing on war as of necessity to supersede and hold in
temporary suspense such civil rights as may prove in-
consistent with the complete and effectual exercise of
such war powers, and of the belligerent rights result-
ing from them. The rights of war and the rights of
peace cannot coexist. One must yield to the other.
Martial law and civil law cannot operate at the same
time and place upon the same subject matter. Hence
the constitution is framed with full recognition of that
fact; it protects the citizen in peace and in war; but
his rights enjoyed under the constitution, in time of
peace are different from those to which he is entitled
in time of war.

WHETHER BELLIGERENTS SHALL BE ALLOWED CIVIL RIGHTS UNDER
THE CONSTITUTION DEPENDS UPON THE POLICY OF GOVERNMENT.

None of these rights, guaranteed to peaceful citizens, by the
constitution belong to them after they have become belligerents
against their own government. They thereby forfeit all
protection under that sacred charter which they have
thus sought to overthrow and destroy. One party to
a contract cannot break it and at the same time hold
the other to perform it. It is true that if the govern-

52

ment elects to treat them as subjects and to hold them
liable only to penalties for violating statutes, it must
concede to them all the legal rights and privileges
which other citizens would have when under similar
accusations; and Congress must be limited to the pro-
visions of the constitution in legislation against them
as citizens. But the fact that war is waged by these
miscreants releases the government from all obligation
to make that concession, or to respect the rights to life,
liberty, or property of its enemy, because the constitu-
tion makes it the duty of the President to prosecute
war against them in order to suppress rebellion and
repel invasion.

THE CONSTITUTION ALLOWS CONFISCATION.

Nothing in the constitution interferes with the bel-
ligerent right of confiscation of enemy property. The
right to confiscate is derived from a state of war. It is
one of the rights of war. It originates in the principle
of self-preservation. It is the means of weakening the
enemy and strengthening ourselves. The right of con-
fiscation belongs to the government as the necessary
consequence of the power and duty of making war —
offensive or defensive. Every capture of enemy am-
munition or arms is, in substance, a confiscation, with-
out its formalities. To deny the right of confiscation
is to deny the right to make war, or to conquer an
enemy.

If authority were needed to support the right of con-
fiscation, it may be found in 3 Dallas, 227; Vat. lib.
iii., ch. 8, sect. 188; lib. iii., ch. 9, sect. 161; *Smith v.
Mansfield*, Cranch, 306-7; *Cooper v. Telfair*, 4 Dallas;
*Brown v. U. S.*, 8 Cranch, 110, 228, 229.

WAR POWERS OF CONGRESS.

53

The following extract is from 1 Kent's Com., p. 59 —

"But however strong the current of authority in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country; and it has become definitively settled in favor of the ancient and sterner rule by the Supreme Court of the United States. *Brown v. United States*, 8 Cranch, 110; ibid. 228, 229.

"The effect of war on British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly considered in the case of Brown, and the Circuit Court of the United States at Boston decided as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all vessels and cargoes found afloat in our ports at the commencement of hostilities, were liable to seizure and confiscation; and the exercise of the right vested in the discretion of the sovereign of the nation.

"When the case was brought up on appeal before the Supreme Court of the United States, the broad principle was assumed that war gave to the sovereign the full right to take the persons and confiscate the property of the enemy wherever found; and that the mitigations of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself.

"Commercial nations have always considerable property in possession of their neighbors; and when war breaks out, the question, What shall be done with enemy property found in the country? is one rather of policy than of law, and is one properly addressed to the consideration of the legislature, and not to the courts of law.

"The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation it could not be judicially condemned; and the act of Congress of 1812 declaring war against Great Britain was not such an act. Until some statute directly applying to the subject be passed, the property would continue under the protection of the law, and might be claimed by the British owner at the restoration of peace.

"Though this decision established the right contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right depend upon a special act of Congress."

From the foregoing authorities, it is evident that the

54

government has a right, as a belligerent power, to capture or to confiscate any and all the personal property of the enemy; that there is nothing in the constitution which limits or controls the exercise of that right; and that capture in war, or confiscation by law, passes a complete title to the property taken; and that, if judicial condemnation of enemy property be sought, in order to pass the title to it by formal decree of courts, by mere seizure, and without capture, the confiscation must have been declared by act of Congress, a mere declaration of war not being ex vi termini sufficient for that purpose. The army of the Union, therefore, have the right, according to the law of nations, and of the constitution, to obtain by capture a legal title to all the personal property of the enemy they get possession of, whether it consist of arms, ammunition, provisions, slaves, or any other thing which the law treats as personal property. No judicial process is necessary to give the government full title thereto, and when once captured, the government may dispose of the property as absolute owner thereof, in the same manner as though the title passed by bill of sale: and Congress have plenary authority to pass such confiscation laws against belligerent enemies as they deem for the public good.

MILITARY GOVERNMENT UNDER MARTIAL LAW.

In addition to the right of confiscating personal property of the enemy, a state of war also confers upon the government other not less important belligerent rights, and among them, the right to seize and hold conquered territory by military force, and of instituting and maintaining military government over it, thereby suspending in part, or in the whole, the ordinary civil adminis-

WAR POWERS OF CONGRESS.

55

tration. The exercise of this right has been sanctioned by the decision of the Supreme Court of the United States, in the case of California.* And it is founded upon well-established doctrines of the law of nations. Without the right to make laws and administer justice in conquered territory, the inhabitants would be plunged into anarchy. The old government being overthrown, and no new one being established, there would be none to whom allegiance would be due—none to restrain lawlessness, none to secure to any persons any civil rights whatever. Hence, from the necessity of the case, the conqueror has power to establish a quasi military civil administration of government for the protection of the innocent, the restraint of the wicked, and the security of that conquest for which war has been waged.

It is under this power of holding and establishing military rule over conquered territory, that all provisional governments are instituted by conquerors. The President, as commander-in-chief, has formally appointed Andrew Johnson governor of Tennessee, with all the powers, duties, and functions pertaining to that office, during the pleasure of the President, or until the *loyal* inhabitants of that State shall organize a civil government in accordance with the constitution of the United States. To legalize these powers and duties, it became expedient to give him a military position; hence he was nominated as a brigadier general, and his nomination was confirmed by the Senate. Mr. Stanley acts as provisional military governor of North Carolina, under similar authority. All acts of military government which are within the scope of their authority, are as legal and constitutional as any other military

* Cross v. Harrison, 16 How. 164.

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proceeding. Hence any section of this country, which, having joined in a general rebellion, shall have been subdued and conquered by the military forces of the United States, may be subjected to military government, and the rights of citizens in those districts are subject to martial law, so long as the war lasts. Whatever of their rights of property are lost in and by the war, are lost forever. No citizen, whether loyal or rebel, is deprived of any right guaranteed to him in the constitution by reason of his subjection to martial law, because martial law, when in force, is constitutional law. The people of the United States, through their lawfully chosen commander-in-chief, have the constitutional right to seize and hold the territory of a beligerent enemy, and to govern it by martial law, thereby superseding the local government of the place, and all rights which rebels might have had as citizens of the United States, if they had not violated the laws of the land by making war upon the country.

By martial law, loyal citizens may be for a time debarred from enjoying the rights they would be entitled to in time of peace. Individual rights must always be held subject to the exigencies of national safety.

In war, when *martial law is in force*, the laws of war are the laws which the constitution expressly authorizes and requires to be enforced. The constitution, when it calls into action martial law, for the time changes civil rights, or rights which the citizen would be entitled to in peace, because the rights of persons in one of these cases are totally incompatible with the obligations of persons in the other. Peace and war cannot exist together; the laws of peace and of war cannot operate together; the rights and procedures of peaceful times

WAR POWERS OF CONGRESS.

57

are incompatible with those of war. It is an obvious but
pernicious error to suppose that in a state of war, the
rules of martial law, and the consequent modification
of the rights, duties, and obligations of citizens, pri-
vate and public, are not *authorized* strictly under the
*constitution*. And among the rights of martial law, none
is more familiar than that of seizing and establishing
a military government over territory taken from the
enemy; and the duty of thus protecting such territory
is imperative, since the United States are obligated to
guarantee to each State a republican form of govern-
ment.* That form of government having been over-
thrown by force, the country must take such steps,
military and civil, as may tend to restore it to the loyal
citizens of that State, if there be any; and if there
be no persons who will submit to the constitution
and laws of the United States, it is their duty to
hold that State by military power, and under military
rule, until loyal citizens shall appear there in sufficient
numbers to entitle them to receive back into their own
hands the local government.

A SEVERE RULE OF BELLIGERENT LAW.

"Property of persons residing in the enemy's country is deemed, in law, hostile, and subject to condemnation without any evidence as to the opinions or predilections of the owner." If he be the subject of a neutral, or a citizen of one of the belligerent States, and has expressed no disloyal sentiments towards his country, still his residence in the enemy's country impresses upon his property, engaged in commerce and found upon the ocean, a hostile character, and subjects it to

* Constitution, Art. IV., Sect. 4., Cl. 1.

8

58

condemnation. This familiar principle of law is sanc-
tioned in the highest courts of England and of the
United States, and has been decided to apply to cases
of civil as well as of foreign war.*

Thus personal property of every kind, ammunition,
provisions, contraband, or slaves, may be lawfully
seized, whether of *loyal* or *disloyal* citizens, and is by law
presumed *hostile*, and liable to condemnation, if captured
within the rebellious districts. This right of seizure and
condemnation is harsh, as all the proceedings of war
are harsh, in the extreme, but it is nevertheless lawful.
It would be harsh to kill in battle a loyal citizen who,
having been impressed into the ranks of the rebels, is
made to fight against his country; yet it is lawful to
do so.

Against all persons in arms, and against all property
situated and seized in rebellious districts, the laws of
war give the President full belligerent rights; and
when the army and navy are once lawfully called out,
there are no limits to the war-making power of the
President, other than the law of nations, and such rules
as Congress may pass for their regulation.

"The statute of 1807, chap. 39," says a learned judge,†
"provides that whenever it is lawful for the President
to call forth the militia to suppress an insurrection, he
may employ the land and naval forces for that purpose.
The authority to use the army is thus expressly con-
firmed, but the *manner* in which they are to be used is
not prescribed. That is left to the discretion of the
President, guided by the usages and principles of civil-
ized war."

* *The Venus*, 8 Cranch Rep.; *The Hoop*, 1 Robinson, 196, -- and cases there cited. *The Amy Warwick*, opinion of Judge Sprague.

† Judge Sprague.

WAR POWERS OF CONGRESS.

59

As a matter of expediency, Congress may direct that no property of loyal citizens, residing in disloyal States, should be seized by military force, without compensation. This is an act of grace, which, though not required by the laws of war, may well be granted. The commander-in-chief may also grant the same indulgence. But the military commanders are always at liberty to seize, in an enemy's country, whatever property they deem necessary for the sustenance of troops, or military stores, whether it is the property of friend or enemy; it being usual, however, to pay for all that is taken from friends. These doctrines have been carried into effect in Missouri.

The President having adopted the policy of protecting loyal citizens wherever they may be found, all seizure of their property, and all interference with them, have so far been forborne. But it should be understood that such forbearance is optional, not compulsory. It is done from a sense of justice and humanity, not because law or constitution render it inevitable. And this forbearance is not likely to be carried to such an extent as to endanger the success of the armies of the Union, nor to despoil them of the legitimate fruits of victory over rebels.

CIVIL RIGHTS OF LOYAL CITIZENS IN LOYAL DISTRICTS ARE MODIFIED BY THE EXISTENCE OF WAR.

While war is raging, many of the rights held sacred by the constitution — rights which cannot be violated by any acts of Congress — may and must be suspended and held in abeyance. If this were not so, the government might itself be destroyed; the army and navy might be sacrificed, and one part of the constitution would NULLIFY the rest.

60

If freedom of speech cannot be suppressed, spies cannot be caught, imprisoned, and hung.

If freedom of the press cannot be interfered with, all our military plans may be betrayed to the enemy.

If no man can be deprived of life without trial by jury, a soldier cannot slay the enemy in battle.

If enemy's property cannot be taken without "due process of law," how can the soldier disarm his foe and seize his weapons?

If no person can be arrested, sentenced, and shot, without trial by jury in the county or State where his crime is alleged to have been committed, how can a deserter be shot, or a spy be hung, or an enemy be taken prisoner?

It has been said that "amidst arms the laws are silent." It would be more just to say, that while war rages, the rights, which in peace are sacred, must and do give way to the higher right — the right of public safety — the right which the COUNTRY, the whole country, claims to be protected from its enemies, domestic and foreign — from spies, from conspirators, and from traitors. The sovereign and almost dictatorial powers — existing only in actual war; ending when war ends — to be used in self-defence, and to be laid down when the occasion has passed, are, while they last, as lawful, as constitutional, as sacred, as the administration of justice by judicial courts in times of peace. They may be dangerous; war itself is dangerous; but danger does not make them unconstitutional. If the commander-in-chief orders the army to seize the arms and ammunition of the enemy; to capture their persons; to shell out their batteries; to hang spies or shoot deserters; to destroy the armed enemy in open battle; to send traitors to

WAR POWERS OF CONGRESS.

61

forts and prisons; to stop the press from aiding and comforting the enemy by betraying our military plans; to arrest within our lines, or wherever they can be seized, persons against whom there is reasonable evidence of their having aided or abetted the rebels, or of intending so to do,—the pretension that in so doing he is violating the constitution is not only erroneous, but it is a plea in behalf of treason. To set up the rules of civil administration as overriding and controlling the laws of war, is to aid and abet the enemy. It falsifies the clear meaning of the constitution, which not only gives the power, but makes it the plain duty of the President, to go to war with the enemy of his country. And the restraints to which he is subject when in war, are not to be found in the municipal regulations, which can be administered only in peace, but in the laws and usages of nations regulating the conduct of war.

BELLIGERENT RIGHT TO CONFISCATE ENEMY'S REAL ESTATE.

The belligerent right of the government to confiscate enemy's real estate, situated in this country, can hardly admit of a question. The title to no inconsiderable part of the real estate in each of the original States of the Union, rests upon the validity of confiscation acts, passed by our ancestors against loyal adherents to the crown. Probably none of these States failed to pass and apply these laws. English and American acts of confiscation were recognized by the laws of both countries, and their operation modified by treaties; their validity never was denied. The only authority which either of the States or colonies ever had for passing such laws was derived from the fact that they were belligerents.

62

It will be observed that the question as to the belligerent right to confiscate enemy's real estate situated in the United States, is somewhat different from the question whether in conquering a foreign country it will be lawful to confiscate the private real estate of the enemy.

It is unusual, in case of conquest of a foreign country, for the conqueror to do more than to displace its sovereign, and assume dominion over the country. On a mere change of sovereignty of the country, it would be harsh and severe to confiscate the private property and annul the private rights of citizens generally. And mere conquest of a country does not of itself operate as confiscation of enemy's property; nor does the cession of a country by one nation to another destroy private rights of property, or operate as confiscation of personal or real estate.* So it was held by the Supreme Court in the case of the transfer by treaty of Florida to the United States; but it was specially provided in that treaty that private property should not be interfered with. The forbearance of a conqueror from confiscating the entire property of a conquered people is usually founded in good policy, as well as in humanity. The object of foreign conquest is to acquire a permanent addition to the power and territory of the conqueror. This object would be defeated by stripping his subjects of every thing. The case is very different where confiscation will only break up a nest of traitors, and drive them away from a country they have betrayed.

Suppose that certain Englishmen owned large tracts

* United States v. Juan Richmond, 7 Peters, 51.

WAR POWERS OF CONGRESS.

63

of real estate in either of the United States or territories thereof, and war should break out; would any one doubt the right of Congress to pass a law confiscating such estate?

The laws of nations allow either belligerent to seize and appropriate whatever property of the enemy it can gain possession of; and, of all descriptions of property which government could safely permit to be owned or occupied by an alien enemy, real estate within its own dominion would be the last.

No distinction can be properly or legally made between the different kinds of enemy property, whether real, personal, or mixed, so far as regards their liability to confiscation by the war power. Lands, money, slaves, debts, may and have been subject to this liability. The methods of appropriating and holding them are different — the result is the same. And, considering the foundation of the right, the object for which it is to be exercised, and the effects resulting from it, there is nothing in law, or in reason, which would indicate why one can and the other cannot be taken away from the enemy.

In *Brown v. United States*, 8 Cranch, p. 123, the Supreme Court of the United States say, —

> "Respecting the power of government, no doubt is entertained. That war gives to the sovereign the full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself—that remains undiminished; and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will."

> "It may be considered," they say, "as the opinion of all who have written on the *jus belli*, that war gives the right to confiscate," &c.

64

Chancellor Kent says, —

"When war is duly declared, it is not merely a war between this
and the adverse government in their political characters. Every
man is, in judgment of law, a party to the acts of his own govern-
ment, and a war between the government of two nations is a war
between all the individuals of the one and all the individuals of which
the other nation is composed. Government is the representative of the
will of the people, and acts for the whole society. This is the theory
of all governments, and the best writers on the law of nations concur
in the doctrine, that when the sovereign of a state declares war
against another sovereign, it implies that the whole nation declares
war, and that all the subjects of the one are enemies to all the subjects
of the other."

"Very important consequences concerning the obligations of sub-
jects are deducible from this principle. When hostilities have com-
menced, the first objects that present themselves for detention and
capture are the persons and property of the enemy found within the
territory on the breaking out of war. According to strict authority, a
state has a right to deal as an enemy with persons and property so
found within its power, and to confiscate the property and detain the
persons as prisoners of war."*

We thus see, that by the law of nations, by the prac-
tice of our own States, by the decisions of courts, by
the highest authority of legal writers, and by the deduc-
tions of reason, there can be no question of the consti-
tutional right of confiscation of enemy real estate of
which we may gain possession. And the legal pre-
sumption that real estate situated in rebellious districts
is enemy property, would seem to be as well founded
as it is in case of personal property.†

It is for the government to decide how it shall
use its belligerent right of confiscation. The num-
ber of slaveholders in the rebellious States, who

* 1 Kent's Com., p. 55. See also Grotius, B. III. ch. 3, sect. 9; ch. 4, sect. 8. Burlamaqui, Part IV. ch. 4, sect. 20. Vattel, B. III. ch. 5, sect. 70.

† See page 57.

WAR POWERS OF CONGRESS.

65

are the principal land owners in that region, and
who are the chief authors and supporters of this rebel-
lion, constitute, all told, less than one in one hundred
and twenty eight of the people of the United States,
and less than one fiftieth part of the inhabitants of their
own districts, being far less in proportion to the
whole population of the country than the old tories
in the time of the revolution were to the colonists.*

* In confirmation of these views of the War Powers of Congress, see the chapter on the War Powers of the President, and NOTES thereon.

9

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## CHAPTER III.

### WAR POWER OF THE PRESIDENT TO EMANCIPATE SLAVES.

THE power of the President, as commander-in-chief of the army and navy of the United States, when in actual service, to emancipate the slaves of any belligerent section of the country, if such a measure becomes necessary to save the government from destruction, is not, it is presumed, denied by any respectable authority.*

### WHY THE POWER EXISTS.

The liberation of slaves is looked upon as a means of embarrassing or weakening the enemy, or of strengthening the military power of our army. If slaves be treated as contraband of war, on the ground that they may be used by their masters to aid in prosecuting war, as employees upon military works, or as laborers furnishing by their industry the means of carrying on hostilities; or if they be treated as, in law, belligerents, following the legal condition of their owners; or if they be deemed loyal subjects having a just claim upon the government to be released from their obligations to give aid and service to disloyal and belligerent masters, in order that they may be free to perform their higher duty of allegiance and loyalty to the United States; or if they be regarded as subjects

* It has been shown in a previous chapter that the government has a right to treat *rebels* either as *belligerents* or as subjects, and to subject them to the severities of international belligerent law.

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67

of the United States, liable to do military duty; or if
they be made citizens of the United States, and soldiers;
or if the authority of the masters over their slaves is
the means of aiding and comforting the enemy, or of
throwing impediments in the way of the government,
or depriving it of such aid and assistance in successful
prosecution of the war, as slaves would and could
afford, if released from the control of the enemy,— or
if releasing the slaves would embarrass the enemy, and
make it more difficult for them to collect and maintain
large armies; in either of these cases, the taking away
of these slaves from the "aid and service" of the
enemy, and putting them to the aid and service of the
United States, is justifiable as an act of war. The
ordinary way of depriving the enemy of slaves is by
declaring emancipation.

THE PRESIDENT IS THE SOLE JUDGE.

"It belongs exclusively to the President to judge when the exigency arises in which he has authority, under the constitution, to call forth the militia, and his decision is conclusive on all other persons."*

The constitution confers on the Executive, when in
actual war, full belligerent powers. The emancipation
of enemy's slaves is a belligerent right. It belongs
exclusively to the President, as commander-in-chief, to
judge whether he shall exercise his belligerent right to
emancipate slaves in those parts of the country which
are in rebellion. If exercised in fact, and while the
war lasts, his act of emancipation is conclusive and

* Such is the language of Chief Justice Taney, in delivering the opinion of the Supreme Court, in *Martin v. Mott*, 12 Wheaton, 19.

68

binding forever on all the departments of government,
and on all persons whatsoever.

POWERS OF THE PRESIDENT NOT INCONSISTENT WITH POWERS OF
CONGRESS TO EMANCIPATE SLAVES.

The right of the Executive to strike this blow against
his enemy does not deprive Congress of the concurrent
right or duty to emancipate enemy's slaves, if in
their judgment a civil act for that purpose is required by
public welfare and common defence, for the purpose of
aiding and giving effect to such war measures as the
commander-in-chief may adopt.

The military authority of the President is not incom-
patible with the peace or war powers of Congress; but
both coexist, and may be exercised upon the same sub-
ject. Thus, when the army captures a regiment of
soldiers, the legislature may pass laws relating to the
captives. So may Congress destroy slavery by abolishing
the laws which sustain it, while the commander of
the army may destroy it by capture of slaves, by
proclamation, or by other means.

IS LIBERATION OF ENEMY'S SLAVES A BELLIGERENT RIGHT?

This is the chief inquiry on this branch of the sub-
ject. To answer it we must appeal to the law of
nations, and learn whether there is any commanding
authority which forbids the use of an engine so power-
ful and so formidable — an engine which may grind to
powder the disloyalty of rebels in arms, while it clears
the avenue to freedom for four millions of Americans.
It is only the law of nations that can decide this ques-
tion, because the constitution, having given authority
to government to make war, has placed no limit what-

WAR POWER OF THE PRESIDENT.

69

ever to the war powers. There is, therefore, no legal control over the war powers except the law of nations, and no moral control except the usage of modern civilized belligerents.

THE LAW OF NATIONS SANCTIONS EMANCIPATION OF ENEMY'S SLAVES.

It is in accordance with the law of nations and with the practice of civilized belligerents in modern times, to liberate enemy's slaves in time of war by military power. In the revolutionary war, England exercised that unquestioned right by not less than three of her military commanders — Sir Henry Clinton, Lord Dunmore, and Lord Cornwallis. That General Washington recognized and feared Lord Dunmore's appeal to the slaves, is shown by his letter on that subject.

"His strength," said Washington, "will increase as a snow-ball by rolling faster and faster, if some expedient cannot be hit upon to convince the slaves and servants of the impotency of his designs."

The right to call the slaves of colonists to the aid of the British arms was expressly admitted by Jefferson, in his letter to Dr. Gordon. In writing of the injury done to his estates by Cornwallis, he uses the following language: —

"He destroyed all my growing crops and tobacco; he burned all my barns, containing the same articles of last year. Having first taken what corn he wanted, he used, as was to be expected, all my stock of cattle, sheep, and hogs, for the sustenance of his army, and carried off all the horse's capable of service. He carried off also about thirty slaves. Had this been to give them freedom, he would have done right. ... From an estimate made at the time on the best information I could collect, I suppose the State of Virginia lost under Lord Cornwallis's hands, that year, about thirty thousand slaves."

70

Great Britain, for the second time, used the same
right against us in the war. of 1812. Her naval and
military commanders invited the slaves, by public proc-
lamations, to repair to their standard, promising them
freedom.* The slaves who went over to them were lib-
erated, and were carried away contrary to the express
terms of the treaty of Ghent, in which it was stipulated
that they should not be carried away. England pre-
ferred to become liable for a breach of the treaty rather
than to break faith with the fugitives. Indemnity for
this violation of contract was demanded and refused.
The question was referred to the decision of the Em-
peror of Russia, as arbitrator, who decided that indemn-
ity should be paid by Great Britain, not because she
had violated the law of nations in emancipating slaves,
but because she had broken the terms of the treaty.

In the arguments submitted to the referee, the Brit-
ish government broadly asserted the belligerent right
of liberating enemy's slaves, even if they were treated
as private property. Mr. Middleton was instructed by
Mr. J. Q. Adams, then, in 1820, Secretary of State, to
deny that right, and to present reasons for that denial.
But that in this instance he acted in obedience to the
instructions of the President and cabinet, and against
his own opinions on the law of nations, is shown by his
subsequent statement in Congress to that effect.† The
question of international law was left undecided by the
Emperor; but the assertion of England, that it is a

* For Admiral Cochrane's Proclamation, instigating the slaves to desert their masters, see Niles's Register, vol. vi. p. 242.

† "It was utterly against my judgment and wishes; but I was obliged to submit, and prepared the requisite despatches." See Congressional Globe, XXVII. Cong., 2d sess., 1841-2; vol. ii. p. 424.

WAR POWER OF THE PRESIDENT.

71

legitimate exercise of belligerent rights to liberate enemy's slaves, — a right which had previously been enforced by her against the colonies, and by France against her, and again by her against the United States, — was entitled to great weight, as a reiterated and authentic reaffirmance of the well-settled doctrine.

In speeches before the House of Representatives on the 25th of May, 1836, on the 7th of June, 1841, and on the 14th and 15th of April, 1842, Mr. Adams explained and asserted in the amplest terms the powers of Congress, and the authority of the President, to free enemy's slaves, as a legitimate act of war.* Thus leading statesmen of England and America have concurred in the opinion that emancipation is a belligerent right.

St. Domingo, in 1793, contained more than five hundred thousand negroes, with many mulattoes and whites, and was held as a province of France. Intense commotions had raged for nearly three years between the whites and mulattoes, in which the negroes had remained neutral. The Spaniards having effected an alliance with the slaves who had revolted in 1791, invaded the island and occupied several important military points. England, also, was making a treaty with the planters to invade the country; and thus the possession seemed about to be wrested from France by the efforts of one or the other of its two bitterest foes. One thousand French soldiers, a few mulattoes and loyal slaveholders, were all the force which could be mustered in favor of the government, for the protection of this precious island, situated so far away from France.

* For extracts from these speeches, see *postea*.

72

Sonthonax and Polverel, the French commissioners, on the 29th of August, 1793, issued a proclamation, under martial law, wherein they declared all the slaves free, and thereby brought them over *en masse* to the support of the government. The English troops landed three weeks afterwards, and were repulsed principally by the slave army.

On the 4th of February, 1794, the National Convention of France confirmed the act of the commissioners, and also abolished slavery in the other French colonies.

In June, 1794, Toussaint L'Ouverture, a colored man, admitted by military critics to be one of the great generals of modern times, having until then fought in favor of Spain, brought his army of five thousand colored troops to the aid of France, forced entrance into the chief city of the island in which the French troops were beleaguered, relieved his allies, and offered himself and his army to the service of that government, which had guaranteed to them their freedom. From that hour the fortunes of the war changed. The English were expelled from the island in 1798; the Spaniards also gave it up; and in 1801 Toussaint proclaimed the republic in the Spanish portion of the island which had been ceded to France by the treaty of 1795; thus extending the practical operation of the decree of emancipation over the whole island, and liberating one hundred thousand more persons who had been slaves of Spaniards.

The island was put under martial law; the planters were recalled by Toussaint, and permitted to hire their former slaves; and his government was enforced by military power; and from that time until 1802, the progress of the people in commerce, industry, and gen-

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73

eral prosperity was rapid and satisfactory. But in
1802 the influence of emigrant planters, and of the
Empress Josephine, a creole of Martinique, induced
Napoleon to send a large army to the island, to reës-
tablish the slave trade and slavery in all the other isl-
ands except St. Domingo, with the design of restoring
slavery there after he should have conquered it. But
war, sickness, and disasters broke up his forces, and
the treacherous Frenchmen met the due reward of
their perfidy, and were, in 1804, totally driven from
the island. The independence of St. Domingo was
actually established in 1804. The independence of
Hayti was recognized by the United States in 1862.

From this brief outline it is shown, that France
recognizes the right, under martial law, to emancipate
the slaves of an enemy — having asserted and exer-
cised that right in the case of St. Domingo.* And the
slaves thus liberated have retained their liberty, and
compose, at this day, the principal population of a gov-
ernment who have entered into diplomatic relations
with the United States.

In Colombia slavery was abolished, first by the
Spanish General Morillo, and secondly by the American
General Bolivar. "It was abolished," says John Quincy
Adams, "by virtue of a military command given at the
head of the army, and its abolition continues to this
day. It was abolished by the laws of war, and not by
the municipal enactments; the power was exercised

* For the decree of the French Assembly, see Choix de Rapports—Opin-
ions et Discours prononcés à la Tribune Nationale depuis 1789. Paris, 1821,
t. xiv. p. 425. — See Abolition d'Esclavage, (Colonies Francaises,) par Augus-
tin Cochin. Paris, 1861. Vol. i. pp. 14, 15, &c.

10

74

by military commanders, under instructions, of course,
from their respective governments.”

AUTHORITY AND USAGE CONFIRM THE RIGHT.

It may happen that when belligerents on both sides
hold slaves, neither will deem it expedient, through fear
of retaliation, to liberate the slaves of his adversary;
but considerations of policy do not affect questions of
international rights; and forbearance to exercise a
power does not prove its non-existence. While no au-
thority among eminent ancient writers on the subject
has been found to deny the right of emancipation, the
fact that England, France, Spain, and the South Amer-
ican republics have actually freed the slaves of their
enemies, conclusively shows that the law and practice
of modern civilized nations sanction that right.

HOW FAR THE GOVERNMENT OF THE UNITED STATES UNDER FORMER
ADMINISTRATIONS HAVE SANCTIONED THE BELLIGERENT RIGHT
OF EMANCIPATING SLAVES OF LOYAL AND OF DISLOYAL CITIZENS,

The government of the United States, in 1814, recog-
nized the right of their military officers, in time of war,
to appropriate to public use the slaves of loyal citizens
without compensation therefor; also, in 1836, the right
to reward slaves who have performed public service,
by giving freedom to them and to their families; also,
in 1838, the principle that slaves of loyal citizens, cap-
tured in war, should be emancipated, and not returned
to their masters; and that slaves escaping to the army
of the United States should be treated as prisoners of
war, and not as property of their masters. These prop-
ositions are supported by the cases of General Jackson,
General Jessup, General Taylor, and General Gaines.

WAR POWER OF THE PRESIDENT.

75

"In December, 1814," says a distinguished writer and speaker, "General Jackson impressed a large number of slaves at and near New Orleans, and set them at work erecting defences, behind which his troops won such glory on the 8th of January, 1815. The masters remonstrated. Jackson disregarded their remonstrances, and kept the slaves at work until many of them were killed by the enemy's shot; yet his action was approved by Mr. Madison, the cabinet, and by the Congress, which has ever refused to pay the masters for their losses. In this case, the masters were professedly friends to the government; and yet our Presidents, and cabinets, and generals have not hesitated to emancipate their slaves, whenever in time of war it was supposed to be for the interest of the country to do so. This was done in the exercise of the war power to which Mr. Adams referred, and for which he had the most abundant authority."

"In 1836 General Jessup engaged several fugitive slaves to act as guides and spies, agreeing, if they would serve the government faithfully, to secure to them the freedom of themselves and families. They fulfilled their engagement in good faith. The general gave them their freedom, and sent them to the west. Mr. Van Buren's administration sanctioned the contract, and Mr. Tyler's administration approved the proceeding of the general in setting the slaves and their families free."

The writer above quoted says,—

"Louis, the slave of a man named Pacheco, betrayed Major Dade's battalion, in 1836, and when he had witnessed their massacre, he joined the enemy. Two years subsequently he was captured. Pacheco claimed him; General Jessup said if he had time, he would try him before a court martial and hang him, but would not deliver him to any man. He, however, sent him west, and the fugitive slave became a free men. General Jessup reported his action to the War Department, and Mr. Van Buren, then President, with his cabinet, approved it. Pacheco then appealed to Congress, asking that body to pay him for the loss of his slave. The House of Representatives voted against the bill, which was rejected. All concurred in the opinion that General Jessup did right in emancipating the slave, instead of returning him to his master.

"In 1838 General Taylor captured a number of negroes said to be fugitive slaves. Citizens of Florida, learning what had been done, immediately gathered around his camp, intending to secure the slaves

76

who had escaped from them. General Taylor told them that he had no prisoners but 'prisoners of war.' The claimants then desired to look at them, in order to determine whether he was holding their slaves as prisoners. The veteran warrior replied that no man should examine his prisoners for such a purpose; and he ordered them to depart. This action, being reported to the War Department, was approved by the Executive. The slaves, however, were sent west, and set free.

"In 1838 many fugitive slaves and Indians, captured in Florida, had been ordered to be sent west of the Mississippi. Some of them were claimed at New Orleans by their owners, under legal process. General Gaines, commander of the military district, refused to deliver them up to the sheriff, and appeared in court and stated his own defence.

"His grounds of defence were, 'that these men, women, and children were captured in war, and held as prisoners of war; that as commander of that military department he held them subject only to the order of the national Executive; that he could recognize no other power in time of war, or by the laws of war, as authorized to take prisoners from his possession. He asserted that in time of war all slaves were belligerents as much as their masters. The slave men cultivate the earth, and supply provisions. The women cook the food and nurse the sick, and contribute to the maintenance of the war, often more than the same number of males. The slave children equally contribute whatever they are able to the support of the war. The military officer, he said, can enter into no judicial examination of the claim of one man to the bone and muscle of another, as property; nor could he, as a military officer, know what the laws of Florida were while engaged in maintaining the federal government by force of arms. In such case he could only be guided by the laws of war, and whatever may be the laws of any State, they must yield to the safety of the federal government. He sent the slaves west, and they became free.'"*

On the 26th of May, 1836, in a debate in the House of Representatives upon the joint resolution for distributing rations to the distressed fugitives from Indian hostilities

* This defence of General Gaines may be found in House Document No. 225 of the 2d session of the 25th Congress.

WAR POWER OF THE PRESIDENT.

77

in the states of Alabama and Georgia, JOHN QUINCY ADAMS expressed the following opinions: —

"Sir, in the authority given to Congress by the constitution of the United States to declare war, all the powers incidental to war are, by necessary implication, conferred upon the government of the United States. Now, the powers incidental to war are derived, not from their internal municipal source, but from the laws and usages of nations.

"There are, then, Mr. Chairman, in the authority of Congress and of the Executive, two classes of powers, altogether different in their nature, and often incompatible with each other — the war power and the peace power. The peace power is limited by regulations and restricted by provisions prescribed within the Constitution itself. The war power is limited only by the laws and usages of nations. This power is tremendous; it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of property, and of life. This, sir, is the power which authorizes you to pass the resolution now before you, and, in my opinion, no other."

After an interruption, Mr. Adams went on to say, —

"There are, indeed, powers of peace conferred upon Congress which also come within the scope and jurisdiction of the laws of nations, such as the negotiation of treaties of amity and commerce, the interchange of public ministers and consuls, and all the personal and social intercourse between the individual inhabitants of the United States and foreign nations, and the Indian tribes, which require the interposition of any law. But the powers of war are all regulated by the laws of nations, and are subject to no other limitation. . . . It was upon this principle that I voted against the resolution reported by the slavery committee, 'that Congress possess no constitutional authority to interfere, in any way, with the institution of slavery in any of the States of this confederacy,' to which resolution most of those with whom I usually concur, and even my own colleagues in this house, gave their assent. I do not admit that there is, even among the peace powers of Congress, no such authority; but in war, there are many ways by which Congress not only have the authority, but ARE BOUND TO INTERFERE WITH THE INSTITUTION OF SLAVERY IN THE STATES. The existing law prohibiting the importation of slaves into the United States from foreign countries is itself an interference with the insti-

78

tution of slavery in the States. It was so considered by the founders of the constitution of the United States, in which it was stipulated that Congress should not interfere, in that way, with the institution, prior to the year 1808.

"During the late war with Great Britain, the military and naval commanders of that nation issued proclamations inviting the slaves to repair to their standard, with promises of freedom and of settlement in some of the British colonial establishments. This surely was an interference with the institution of slavery in the States. By the treaty of peace, Great British stipulated to evacuate all the forts and places in the United States, without carrying away any slaves. If the government of the United States had no power to interfere, in any way, with the institution of slavery in the States, they would not have had the authority to require this stipulation. It is well known that this engagement was not fulfilled by the British naval and military commanders; that, on the contrary, they did carry away all the slaves whom they had induced to join them, and that the British government inflexibly refused to restore any of them to their masters; that a claim of indemnity was consequently instituted in behalf of the owners of the slaves, and was successfully maintained. All that series of transactions was an interference by Congress with the institution of slavery in the States in one way — in the way of protection and support. It was by the institution of slavery alone that the restitution of slaves, enticed by proclamations into the British service, could be claimed as property. But for the institution of slavery, the British commanders could neither have allured them to their standard, nor restored them otherwise than as liberated prisoners of war. But for the institution of slavery, there could have been no stipulation that they should not be carried away as property, nor any claim of indemnity for the violation of that engagement."

Mr. Adams goes on to state how the war power may be used: —

"But the war power of Congress over the institution of slavery in the States is yet far more extensive. Suppose the case of a servile war, complicated, as to some extent it is even now, with an Indian war; suppose Congress were called to raise armies, to supply money from the whole Union to suppress a servile insurrection: would they have no authority to interfere with the institution of slavery? The issue of a servile war may be disastrous; it may become necessary for the

WAR POWER OF THE PRESIDENT.

79

master of the slave to recognize his emancipation by a treaty of peace: can it for an instant be pretended that Congress, in such a contingency, would have no authority to interfere with the institution of slavery, in *any way*, in the States? Why, it would be equivalent to saying that Congress have no constitutional authority to make peace. I suppose a more portentous case, certainly within the bounds of possibility — I would to God I could say, not within the bounds of probability —”

"Do you imagine," he asks, "that your Congress will have no constitutional authority to interfere with the institution of slavery, in any way, in the States of this confederacy? Sir, they must and will interfere with it — perhaps to sustain it by war, perhaps to abolish it by treaties of peace; and they will not only possess the constitutional power so to interfere, but they will be bound in duty to do it, by the express provisions of the constitution itself: From the instant that your slaveholding States become the theatre of a war, *civil, servile, or foreign war*, from that instant the war powers of Congress extend to interference with the institution of slavery, in every way by which it can be interfered with, from a claim of indemnity for slaves taken or destroyed, to the cession of States burdened with slavery to a foreign power."

Extracts from the speech of John Quincy Adams, delivered in the United States House of Representatives, April 14th and 15th, 1842, on war with Great Britain and Mexico:—

"What I say is involuntary, because the subject has been brought into the house from another quarter, as the gentleman himself admits. I would leave that institution to the exclusive consideration and management of the States more peculiarly interested in it, just as long as they can keep within their own bounds. So far, I admit that Congress has no power to meddle with it. As long as they do not step out of their own bounds, and do not put the question to the people of the United States, whose peace, welfare, and happiness are all at stake, so long I will agree to leave them to themselves. But when a member from a free State brings forward certain resolutions, for which, instead of reasoning to disprove his positions, you vote a censure upon him, and that without hearing, it is quite another affair. At the time this was done, I said that, as far as I could understand the resolutions proposed by the gentleman from Ohio, (Mr. Giddings,) there were

80

some of them for which I was ready to vote, and some which I must
vote against; and I will now tell this house, my constituents, and the
whole of mankind, that the resolution against which I would have
voted was that in which he declares that what are called the slave
States have the exclusive right of consultation on the subject of
slavery. For that resolution I never would vote, because I believe
that it is not just, and does not contain constitutional doctrine. I
believe that, so long as the slave States are able to sustain their insti-
tutions without going abroad or calling upon other parts of the Union to
aid them or act on the subject, so long I will consent never to interfere.
I have said this, and I repeat it; but if they come to the free States,
and say to them, You must help us to keep down our slaves, you must
aid us in an insurrection and a civil war, then I say that with that call
comes full and plenary power to this house and to the Senate over the
whole subject. It is a war power. I say it is a war power; and
when your country is actually in war, whether it be a war of invasion
or a war of insurrection, Congress has power to carry on the war, and
must carry it on, according to the laws of war; and by the laws of
war, an invaded country has all its laws and municipal institutions
swept by the board, and martial law takes the place of them. This
power in Congress has, perhaps, never been called into exercise under
the present constitution of the United States. But when the laws of
war are in force, what, I ask, is one of those laws? It is this: that
when a country is invaded, and two hostile armies are set in martial
array, the commanders of both armies have power to emancipate all the
slaves in the invaded territory. Nor is this a mere theoretic state-
ment. The history of South America shows that the doctrine has
been carried into practical execution within the last thirty years.
Slavery was abolished in Colombia, first, by the Spanish General
Morillo, and, secondly, by the American General Bolivar. It was
abolished by virtue of a military command given at the head of the
army, and its abolition continues to be law to this day. It was abolished
by the laws of war, and not by the municipal enactments; the power
was exercised by military commanders, under instructions, of course,
from their respective governments. And here I recur again to the
example of General Jackson. What are you now about in Congress?
You are about passing a grant to refund to General Jackson the
amount of a certain fine imposed upon him by a judge, under the laws
of the State of Louisiana. You are going to refund him the money,
with interest; and this you are going to do because the imposition of

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81

the fine was unjust. And why was it unjust? Because General Jackson was acting under the laws of war, and because the moment you place a military commander in a district which is the theatre of war, the laws of war apply to that district.

"I might furnish a thousand proofs to show that the pretensions of gentlemen to the sanctity of their municipal institutions under a state of actual invasion and of actual war, whether servile, civil, or foreign, is wholly unfounded, and that the laws of war do, in all such cases, take the precedence. I lay this down as the law of nations. I say that military authority takes, for the time, the place of all municipal institutions, and slavery among the rest; and that, under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States, but the commander of the army, has power to order the universal emancipation of the slaves. I have given here more in detail a principle which I have asserted on this floor before now, and of which I have no more doubt than that you, sir, occupy that chair. I give it in its development, in order that any gentleman from any part of the Union may, if he thinks proper, deny the truth of the position, and may maintain his denial; not by indignation, not by passion and fury, but by sound and sober reasoning from the laws of nations and the laws of war. And if my position can be answered and refuted, I shall receive the refutation with pleasure; I shall be glad to listen to reason, aside, as I say, from indignation and passion. And if, by the force of reasoning, my understanding can be convinced, I here pledge myself to recant what I have asserted.

"Let my position be answered; let me be told, let my constituents be told, let the people of my State be told, — a State whose soil tolerates not the foot of a slave, — that they are bound by the constitution to a long and toilsome march, under burning summer suns and a deadly southern clime, for the suppression of a servile war; that they are bound to leave their bodies to rot upon the sands of Carolina, to leave their wives widows and their children orphans; that those who cannot march are bound to pour out their treasures while their sons or brothers are pouring out their blood to suppress a servile, combined with a civil or a foreign war; and yet that there exists no power beyond the limits of the slave State where such war is raging to emancipate the slaves. I say, let this be proved — I am open to conviction; but till that conviction comes, I put it forth, not as a dictate of feeling, but as a settled maxim of the laws of nations, that, in such a case, the military super-

11

82

sedes the civil power; and on this account I should have been obliged
to vote, as I have said, against one of the resolutions of my excellent
friend from Ohio, (Mr. Giddings,) or should at least have required that
it be amended in conformity with the constitution of the United States."

## CONCLUSION.

It has thus been proved, that by the law and usage of
modern civilized nations, confirmed by the judgment of
eminent statesmen, and by the former practice of this
government, that the President, as commander-in-chief,
has the authority, as an act of war, to liberate the
slaves of the enemy, that the United States have in
former times sanctioned the liberation of slaves even
of loyal citizens, by military commanders, in time of
war, without compensation therefor; and have deemed
slaves captured in war from belligerent subjects as
entitled to their freedom.*

* GENERAL WAR POWERS OF THE PRESIDENT. It is not intended in this chapter to explain the *general* war powers of the President. They are principally contained in the Constitution, Art. II. Sect. 1, Cl. 1 and 7; Sect. 2, Cl. 1; Sect. 3, Cl. 1; and in Sect. 1, Cl. 1, and by necessary implication in Art. I. Sect. 9, Cl. 2. By Art. II. Sect. 2, the President is made commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the service of the United States. This clause gives ample powers of war to the President, when the army and navy are lawfully in "actual service." His military authority is supreme, under the constitution, while governing and regulating the land and naval forces, and treating captures on land and water in accordance with such rules as Congress may have passed in pursuance of Art. I. Sect. 8, Cl. 11, 14. Congress may effectually control the military power, by refusing to vote supplies, or to raise troops, and by impeachment of the President; but for the military movements, and measures essential to overcome the enemy, — for the general conduct of the war, — the President is responsible to and controlled by no other department of government. His duty is to uphold the constitution and enforce the laws, and to respect whatever rights loyal citizens are entitled to enjoy in time of civil war, to the fullest extent that may be consistent with the performance of the military duty imposed on him. The effect of a state of war, in changing or modifying civil rights, has been explained in the preceding chapters.

What is the extent of the military power of the President over the persons
and property of citizens at a distance from the seat of war — whether he or
the war department may lawfully order the arrest of citizens in loyal states on
reasonable proof that they are either enemies or aiding the enemy—or that
they are spies or emissaries of rebels sent to gain information for their use, or

WAR POWER OF THE PRESIDENT.

83

to discourage enlistments—whether martial law may be extended over such places as the commander deems it necessary to guard, even though distant from any battle field, in order to enable him to prosecute the war effectually—whether the writ of *habeas corpus* may be suspended as to persons under military arrest, by the President, or only by Congress, (on which point judges of the United States courts disagree); whether, in time of war, all citizens are liable to military arrest, on reasonable proof of their aiding or abetting the enemy—or whether they are entitled to practise treason until indicted by some grand jury—thus, for example, whether Jefferson Davis, or General Lee, if found in Boston, could be arrested by military authority and sent to Fort Warren? Whether, in the midst of wide-spread and terrific war, those persons who violate the laws of war and the laws of peace, traitors, spies, emissaries, brigands, bush-whackers, guerrillas, persons in the free States supplying arms and ammunition to the enemy, must all be proceeded against by civil tribunals only, under due forms and precedents of law, by the tardy and ineffectual machinery of arrests by *marshals*, (who can rarely have means of apprehending them,) and of grand furies, (who meet twice a year, and could seldom if ever seasonably secure the evidence on which to indict them)? Whether government is not entitled by military power to PREVENT the traitors and spies, by arrest and imprisonment, from doing the intended mischief, as well as to punish them after it is done? Whether war can be carried on successfully, without the power to save the army and navy from being betrayed and destroyed, by depriving any citizen temporarily of the power of acting as an enemy, whenever there is reasonable cause to suspect him of being one? Whether these and similar proceedings are, or are not, in violation of any civil rights of citizens under the constitution, are questions to which the answers depend on the construction given to the war powers of the Executive. Whatever any commander-in-chief, in accordance with the usual practice of carrying on war among civilized nations, may order his army and navy to do, is within the power of the President to order and to execute, because the constitution, in express terms, gives him the supreme command of both. If he makes war upon a foreign nation, he should be governed by the law of nations; if lawfully engaged in civil war, he may treat his enemies as subjects and as belligerents.

The constitution provides that the government and regulation of the land and naval forces, and the treatment of captures, should be according to law; but it imposes, in express terms, no other qualification of the war power of the President. It does not prescribe any territorial limits, within the United States, to which his military operations shall be restricted; nor to which the picket guard, or military guards (sometimes called *provost marshals*) shall be confined. It does not exempt any person making war upon the country, or aiding and comforting the enemy, from being *captured*, or arrested, wherever he may be found, whether within or out of the lines of any division of the army. It does not provide that public enemies, or their abettors, shall find safe asylum in any part of the United States where military power can reach them. It requires the President, as an executive magistrate, in time of peace to see that the laws existing in time of peace are faithfully executed—and as commander-in-chief, in time of war, to see that the laws of war are executed. In doing both duties he is strictly obeying the constitution.

84

## CHAPTER IV.

### BILLS OF ATTAINDER.

AFTER the authority of government shall have been reëstablished over the rebellious districts, measures may be taken to punish individual criminals.

The popular sense of outraged justice will embody itself in more or less stringent legislation against those who have brought civil war upon us. It would be surprising if extreme severity were not demanded by the supporters of the Union in all sections of the country. Nothing short of a general bill of attainder, it is presumed, will fully satisfy some of the loyal people of the slave States.

#### BILLS OF ATTAINDER IN ENGLAND.

By these statutes, famous in English political history, tyrannical governments have usually inflicted their severest revenge upon traitors. The irresistible power of law has been evoked to annihilate the criminal, as a citizen of that State whose majesty he had offended, and whose existence he had assailed. His life was terminated with horrid tortures; his blood was corrupted, and his estates were forfeited to the king. While still living, he was deemed, in the language of the law, as "*civiliter mortuus*."

#### PUNISHMENT BY ATTAINDER.

The refined cruelty which characterized the punishment of treason, according to the common law of Eng-

ATTAINDER.

85

land, would have been discreditable to the barbarism
of North American savages in the time of the Georges,
and has since been equalled only by some specimens of
chivalry in the secession army. The mode of executing
these unfortunate political offenders was this: —

1. The culprit was required to be dragged on the ground or over the pavement to the gallows; he could not be allowed, by law, to walk or ride. Blackstone says, that *by connivance*, at last ripened into law, he was allowed to be dragged upon a hurdle, to prevent the extreme torment of being dragged on the ground or pavement.

2. To be hanged by the neck, and then cut down
alive.

3. His entrails to be taken out and burned while he
was yet alive.

4. His head to be cut off.

5. His body to be divided into four parts.

6. His head and quarters to be at the king's dis-
posal.*

Blackstone informs us that these directions were, in
former times, literally and studiously executed. Judge
Story observes, they "indicate at once a savage and
ferocious spirit, and a degrading subserviency to royal
resentments, real or supposed." †

ATTAINDERS PROHIBITED AS INCONSISTENT WITH CONSTITUTIONAL
LIBERTY.

Bills of attainder struck at the root of all civil rights
and political liberty. To declare single individuals, or

* 4 Bla. Com. 92.

† Lord Coke undertakes to justify the severity of this punishment by examples drawn from Scripture.

86

a large class of persons, criminals, in time of peace,
merely upon the ground that they entertained certain
opinions upon questions of church or state; to do this
by act of Parliament, without a hearing, or after the
death of the alleged offender; to involve the innocent
with the guilty in indiscriminate punishment,— was an
outrage upon the rights of the people not to be toler-
ated in our constitution as one of the powers of gov-
ernment.

BILLS OF ATTAINDER ABOLISHED.

The constitution provides expressly,* that "no bill of attainder, or ex post facto law, shall be passed by Congress; and that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."† There is, therefore, no power in this country to pass any bill of attainder.

WHAT IS A BILL OF ATTAINDER?

Wherein does it differ from other statutes for the
punishment of criminals?

A "bill of attainder," in the technical language of
the law, is a statute by which the offender becomes
"attainted," and is liable to punishment without having
been convicted of any crime in the ordinary course of
judicial proceedings.

If a person be expressly named in the bill, or comes
within the terms thereof, he is liable to punishment.
The legislature undertakes to pronounce upon the guilt
of the accused party. He is entitled to no hearing,
when living, and may be pronounced guilty when ab-

• Art. I. Sect. 9.

† Art. I. Sect. 10.

ATTAINDER.

87

sent from the country, or even long after his death. Lord Coke says that the reigning monarch of England, who was slain at Bosworth, is said to have been attainted by act of Parliament a few months after his death, notwithstanding the absurdity of deeming him at once in possession of a throne and a traitor.*

A question has been raised, whether any statute can be deemed a bill of attainder if it inflicts a degree of punishment less than that of death?

In technical law, statutes were called bills of attainder only when they inflicted the penalty of death or outlawry; while statutes which inflicted only forfeitures, fines, imprisonments, and similar punishments, were called bills of "pains and penalties." This distinction was practically observed in the legislation of England. No bill of attainder can probably be found which did not contain the marked feature of the death penalty, or the penalty of outlawry, which was considered as equivalent to a judgment of death. Judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, was founded on that which was in law deemed a tacit confession of guilt. †

## BILLS OF PAINS AND PENALTIES.

It has been said that within the sense of the constitution, bills of attainder include bills of pains and penalties; and this view seemed to derive support from a remark of a judge of the Supreme Court. "A bill of attainder may affect the life of an individual, or may confiscate his property, or both." ‡

* See Story on the Constitution, B. III. Sect. 678.

† Standf. Pl. Co. 44, 122, 182. ‡ Fletcher v. Peck, 6 Cranch, R.

88

It is true that a bill of attainder may affect the life
of an individual; but if the individual attainted were
dead before the passage of the act, as was the case with
Richard III., the bill could not affect his life; or if a
bill of attainder upon outlawry were passed against
persons beyond seas, the life of the party would not be
in fact affected, although the outlawry was equivalent
in the eye of the law to civil death. There is nothing
in this dictum inconsistent with the ancient and ac-
knowledged distinction between bills of attainder and
bills of pains and penalties; nothing which would au-
thorize the enlargement of the technical meaning of
the words; nothing which shows that Judge Marshall
deemed that bills of attainder included bills of pains
and penalties within the sense of the constitution.
This dictum is quoted by Judge Story,* who supposed
its meaning went beyond that which is now attributed
to it. But he does not appear to sanction such a view
of the law. This is the only authority to which he
refers; and he introduces the proposed construction
of this clause by language which is used by lawyers
who have little confidence in the result which the au-
thority indicates, viz., "it seems." No case has been
decided by the Supreme Court of the United States
which shows that "bills of attainder," within the sense
of the constitution, include any other statutes than
those which were technically so considered according
to the law of England.

EX POST FACTO LAWS PROHIBITED. BILLS OF PAINS AND PENALTIES, AS WELL AS ATTAINDERS, UNCONSTITUTIONAL.

It does not seem important whether the one or the
other construction be put upon the language of this

* Com. Const. III. Ch. 32, Sect. 3.

ATTAINDER.

89

clause, nor whether bills of pains and penalties be or be
not included within the prohibition; for Congress can
pass no *ex post facto* law; and it was one of the invari-
able characteristics of bills of attainder, and of bills of
pains and penalties, that they were passed for the pun-
ishment of supposed crimes which had been committed
before the acts were passed.

The clause prohibiting Congress from passing any
*ex post facto* law would doubtless have prevented their
passing any bill of attainder; but this prohibition was
inserted from greater caution, and to prevent the
exercise of constructive powers against political of-
fenders. No usurpation of authority in the worst
days of English tyranny was more detested by the
framers of our constitution than that which attempted
to ride over the rights of Englishmen to gratify royal
revenge against the friends of free government. Hence
in that respect they shut down the gate upon this sov-
ereign power of government. They forbade any pun-
ishment, under any form, for crime not against some
standing law, which had been enacted before the time
of its commission. They prevented Congress from pass-
ing any attainder laws, whereby the accused might be
deprived of his life, or his estate, or both, without trial
by jury, and by his political enemies; and whereby
also his relatives would suffer equally with himself.

ATTAINDERS IN THE COLONIES AND STATES.

Bills in the nature of bills of attainder were familiar
to our ancestors in most of the colonies and in the
States which subsequently formed the Union. And
several of these acts of attainder have been pronounced
valid by the highest courts in these States. By the

12

90

act of the State of New York, October 22, 1779, the
real and personal property of persons adhering to the
enemy was forfeited to the State; and this act has been
held valid,* and proceedings under acts of attainder
were, as the court held, to be construed according to
the rules in cases of attainder, and not by the ordinary
course of judicial proceedings;† and these laws ap-
plied to persons who were dead at the time of the pro-
ceedings. ‡

"Bills of attainder," says the learned judge, (in 2 Johnson's Cases,) "have always been construed in this respect with more latitude than ordinary judicial proceedings, for the purpose of giving them more certain effect, and that the intent of the legislature may prevail." "They are extraordinary acts of sovereignty, founded on public policy § and the peace of the community." "The attainted person," says Sir Matthew Hale, "is guilty of the execrable murder of the king." The act of New York, October 22, 1779, attainted, among others, Thomas Jones of the offence of adhering to the enemies of the State. This was a specific offence, and was not declared or understood to amount to treason, because many of the persons attainted had never owed allegiance to the State. ||

Bills of attainder were passed not only in New York,
but in several other colonies and States, inflicting the
penalties of attainder for other crimes than treason,
actual or constructive. And the harsh operation of
such laws, their injustice, and their liability to be abused

* Sleight v. Kane, 2 Johns. Cas. 236, decided in April, 1801.

† *Jackson v. Sands*, 2 Johns. 267.

‡ *Jackson v. Stokes*, 3 Johns. 15. § Foster, 83, 84.

|| *Jackson v. Catlin*, 2 Johns. R. 260.

ATTAINDER.

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in times of public excitement, were understood by those who laid the foundations of this government too well to permit them to disregard the dangers which they sought to avert, by depriving Congress, as well as the several States, of all power to enact such cruel statutes.

If bills of attainder had been passed only for the punishment of treason, in the sense of making war upon the government, or aiding the enemy, they would have been less odious and less dangerous; but the regi- ment of crimes which servile Parliaments had enrolled under the title of "treason," had become so formidable, and the brutality of the civil contests in England had been so shocking, that it was thought unsafe to trust any government with the arbitrary and irresponsible power of condemning by statute large classes of their opponents to death and destruction for that which only want of success had made a crime.

## BILLS OF ATTAINDER, HOW RECOGNIZED.

The consequences of attainder to the estate of the party convicted will be more fully stated hereafter; but it is essential to observe that there are certain char- acteristics which distinguish bills of attainder from all other penal statutes.

1. They always inflict the penalty of death upon the offender, or of outlawry, which is equivalent to death.

2. They are always *ex post facto* laws, being passed after the crime was committed which they are to punish.

3. They never allow the guilt or innocence of the persons attainted to be ascertained by trial; but the guilt is attributed to them by act of Parliament.

4. They always inflicted certain penalties, among

["PUNISHMENT OF TREASON.", "93", "## CHAPTER V.", "RIGHT OF CONGRESS TO DECLARE BY STATUTE THE PUN-\nISHMENT OF TREASON, AND ITS CONSTITUTIONAL LIMI-\NTATIONS.", "### TREASON.", "THE highest crime known to the law is treason. It is \"the sum of all villanies;\" its agents have been branded with infamy in all countries where fidelity and justice have respect. The name of one who betrays his friend becomes a byword and a reproach. How much deeper are the guilt and infamy of the criminal who betrays his country! No convict in our State prisons can have fallen so low as willingly to associate with a TRAITOR. There is no abyss of crime so dark, so horrible, as that to which the traitor has descended. He has left forever behind him conscience, honor, and hope.", "### ANCIENT ENGLISH DOCTRINE OF CONSTRUCTIVE TREASON.", "Treason, as defined in the law of England, at the date of the constitution, embraced many misdemeanors which are not now held to be crimes. Offences of a political character, not accompanied with any intention to subvert the government; mere words of disrespect to the ruling sovereign; assaults upon the king's officers at certain times and places; striking one of the judges in court; and many other acts which did not partake of the nature of treason, were, in ancient times, declared treason by Parliament, or so construed by judges, as to constitute that crime. Indeed, there was nothing to"]

94

prevent Parliament from proclaiming any act of a subject to be treason, thereby subjecting him to all its terrible penalties. The doctrine of constructive treasons, created by servile judges, who held their office during the pleasure of the king, was used by them in such a way as to enable the sovereign safely to wreak vengeance upon his victims under the guise of judicial condemnation. If the king sought to destroy a rival, the judges would pronounce him guilty of constructive treason; in other words, they would so construe the acts of the defendant as to make them treason. Thus the king could selfishly outrage every principle of law and justice, while avoiding responsibility. No man's life or property was safe. The wealthier the citizen, the greater was his apprehension that the king would seize and confiscate his estates. The danger lay in the fact that the nature and extent of the legal crime of treason was indeterminate, or was left to arbitrary determination. The power to define treason, to declare from time to time who should be deemed in law to be traitors, was in its nature an arbitrary power. No government having that power would fail to become oppressive in times of excitement, and especially in civil war. As early as the reign of Edward III, Parliament put an end to these judge-made-treasons by declaring and defining all the different acts which should be deemed treason; and, although subsequent statutes have added to or modified the law, yet treason has at all times since that reign been defined by statute.

POWER OF CONGRESS TO DEFINE AND PUNISH TREASON LIMITED.

It was with full knowledge of the history of judicial usurpation, of the tyranny of exasperated govern-