number increases, the difficulty and the cruelty of enforcing civil law increase, and the more humane laws of war gradually step in. Captives, instead of being hanged for treason, are treated as prisoners of war. Other nations interfere in defence of their subjects. Aiding and abetting traitors is treason; supplying traitors with food and arms is aiding and abetting them. To prevent the consequences of this, other nations require the granting of belligerent rights to insurgents. Thus the laws of war take the place of the civil law. But as between the sovereign and the revolted subjects the right to enforce civil law is not changed. The laws of war are only superadded, to be exercised at the option of the sovereign, subject to the rights of other nations and of humanity. Subject to these rights it is for the sovereign to elect, in every particular case, under which code of laws he will treat those in revolt. The Government therefore may seize and confiscate the property of traitors absolutely, under the laws of war; or it may fine and forfeit absolutely under the civil law; but it cannot extend the effects of attainder for treason beyond the life of the person attainted." Mr. Wadsworth, of Kentucky, followed, saying: "I am astonished how any gentleman can refer us to the laws of nations in support of this act which the bill now before us proposes to amend, in the support of the amendment or in support of the position taken by the gentleman from Pennsylvania (Mr. Stevens) and those who agree with him.

"Why, sir, the usages of nations in modern times forbid the very means which the gentleman would employ, and the whole policy which he advocates. The laws of nations recognize the right of conquest between the parties to a public war, but do not authorize the seizure and confiscation of private property on land only in excepted cases; they do not authorize the conquest of individual property. On the contrary, they forbid it.

"I am not going into a lengthy citation of authorities. They have been quoted freely in the discussions upon this bill. They were cited fully and pertinently the other day by the honorable gentleman from Ohio (Mr. Finck), and I content myself now, in the main, with a mere reference to them. I rely upon all writers upon the public law who state the rule among civilized nations in modern times. Their testimony is uniform and explicit, uttering a united voice of condemnation upon the policy which the honorable gentleman from Pennsylvania (Mr. Stevens) demands. I rely upon the principles declared by all the civilized nations of the world in modern times, French, British, and American, in State papers, treaties, and diplomatic assemblies, to support the declaration of the elementary writers, that by the usages of the civilized nations of modern times, private property upon land is exempt from the spoliations of war, exempt from seizure and confiscation, except in certain specified cases.

Wheaton states the rule in clear and precise terms:

But by the modern usages of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exproperty on and is also exempt from confiscation, empted from the general operations of war. Private with the exception of such as may become booty in special cases, when taken from enemies in the field levied upon the inhabitants of the hostile territory. or in besieged towns, and of military contributions This exemption extends even to the case of an abso lute and unqualified conquest of the enemy's coun. try.-Elements, &c., p. 421.

who state the usages of modern nations. 1 "This doctrine is supported by all writers forbear to quote them again to the House. But I call attention to the language of Chief Justice Marshall in United States vs. Perchman, 7 Peters, 86:

the conqueror to do more than to displace the sov It is very unusual, even in cases of conquest, for ereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property annulled. The people change their allegiance; their should be generally confiscated, and private rights relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed.

"In another part of the opinion he speaks of the attempt on the part of the new sovereign to confiscate the private property of the inhabitants occupying the acquired territory as 'a wrong to individuals condemned by the practice of the whole civilized world.' Again, speaking of the eighth article of the treaty by which we acquired Florida, Chief Justice Marshall says:

This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred.-Page 88.

"I cite also the letter of a former American Secretary of State of distinguished reputation to the French minister, written in the course of that discussion which grew out of the Paris declarations of 1856. By the laws of nations as previously existing, private property on land was exempt from seizure and spoliation in time of war; and it was proposed by the Paris conference to abolish privateering, and to that extent accord the same immunity to private property on the ocean. This Government was asked to assent to that principle being embodied in the laws of nations. The then Secretary of State (Mr. Marcy) replied very properly in behalf of this Government, that this Government would not assent to the proposition unless the nations represented in the Paris congress would also agree to abolish the right to seize private property on the seas by public armed vessels, placing all private property on the high seas in the same position as private property on land. Mr. Marcy in that letter gives the weight of his

sanction to the principle I now contend for, and I quote a part of it to establish the fact ·

The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities. It is a generally-received rule of modern warfare, so far at least as operations on land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual property by an army even in possession of an enemy's country is against the usage of modern times. Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circumstances. Every consideration which upholds this conduct in regard to a war on land favors the application of the same rule to the persons and property of citizens of the belligerents found upon the ocean. Mr. Marcy to the Count de Sartiges, July 28, 1856.

"The proposition of this Government to extend the principle recognized as prevailing on land to the sea was declined. On the whole I am inclined to doubt the propriety of the proposed extension so far as we are concerned. I do not know how blockades are to be made effective if private property of the enemy on the high seas is to be exempt from capture; nor does it seem wise to exempt commerce, the parent of so many wars, from its principal

dangers.

"Yet the present Secretary of State, by direction of the President, has offered to accede to the Paris declaration, so great regard has the present Administration for the sanctity of private property not only on land but on the sea also.

"John Quincy Adams, in his correspondence both with the British minister and the American Secretary of State, affirmed the inviolability of private property on land, even in the case of slaves. I call the attention of the

House to this great authority. In a letter to the American Secretary of State, August 22, 1815, he says:

Our object is the restoration of all the property, including slaves, which by the usages of war among civilized nations ought not to have been taken. All private property on shore was of that description. It was entitled by the laws of war from capture.

"Again, to Lord Castlereagh, Feb. 17, 1816: But as by the same usages of civilized nations private property is not the subject of lawful capture in war upon the land, it is perfectly clear that in every stipulation private property shall be respected, or that upon the restoration of places taken during the war it shall not be carried away-4 American State Papers, 116, 117, 122, 123.

"Mr. Adams contended that the British Government had violated the usages of civilized nations in taking away after the war was over, or in capturing during the war, slaves, because they were property upon land. It is known, sir, that by the treaty of 1814 indemnity was accorded by Great Britain for this very violation of the laws of war.

"But it has been said, and there is a caseBrown's case-8th Cranch, referred to often to maintain the position that a nation has a right to do these things which the laws of nations

forbid; that a sovereign accepts the laws of nations as addressed to his reason and justice and morality, but that if he chooses to disregard them he may do so. But, sir, my own opinion on that subject has been so well expressed by a distinguished judge-I mean Judge Hoffman-and concurred in by two of the judges upon the supreme bench in the New Almaden mine case (2 Black.), that I beg the attention of the House while I read a short extract from it:

But, if it be admitted that humanity, Christianity, and the usages and rules observed by all civilized nations (which constitute public law), forbid even in war the use of certain means, the discussion whether such rights abstractly exist, would seem to be a disputation savoring rather of the subtility of the schools, than of that practical sense which seeks to discover and establish the actual rules by which nations in a state of war are governed. That the rights of war, as deduced by Bynkershoek, from a consideration of its abstract nature, are mitigated by the laws of war as established by the general consent of nations, with respect to the effects of conquest as well as to the mode of warfare, is proved by the general recognition of the principle that, on the conquest of an enemy's territory, private rights of property are to be protected.

be unsidered as confiscated, with all that belongs

But, if "a nation which has injured another is to

"

this confiscation must extend to private as well to it, to the nation that has received the injury," as public property.-Judge Hoffman, with concurrence of Catron and Wayne, 2 Black, United States vs. Castillero, p. 368.

"I can add nothing to the force of these observations. Let it be remembered that it does not matter how much power or how little the Constitution gives Congress to seize and confiscate private property on land, the laws of nations and of war stamp the exercise of such power as inhuman, immoral, infamous.

"I consider, sir, the maxims of Christian nations in modern times on that subject too well established to detain the House with further reference to them. They deny the right in this Congress, in the exercise of its war powers, or its belligerent powers, to attack temples of religion, to spoil works of art, or erty upon land, and when we do it we do it in in general to seize and confiscate private prop the face of the indignant and protesting Christian world. We are then outside of the pale of Christian nations. We boldly spurn their maxims, and despise and trample under foot their morality; and unless Christian nations reverse the judgments of the best and most enlightened men and multitudes and times, we must stand condemned and disgraced.

"The honorable gentleman takes the position that the eleven States now and formerly subject to the rebel power are out of the Union, and that we may make a conquest of them. Suppose I were to grant it. Shall we then put aside that law of nations which protects private property-a law sanctified by the self-interest of the conqueror, all the dictates of humanity, and the public opinion of the world? No; even conceding, which I do not, his right

of conquest, no right to seize and confiscate private property upon land in general would be conceded.

66 But, sir, touching this contest carried on within the State, right of conquest and all other sovereignty rights admitted by the laws of nations are limited and definitely bounded by our Constitution. I must recur to the distinction I have endeavored to establish, or which at all events I have stated-and I cannot do much more than state my position upon this occasion-that we do not look to the law of nations, or the laws of war, for a definition of our rights either in a public or civil war, for that matter. War is the remedy for a violated or obstructed right. We prosecute our right by force; that is, make war. We look to the laws of nations for the rules which are to govern the conduct of the war, but not for the objects for which we may lawfully wage it, or the manner in which we may realize its acquisitions, or the extent of our sovereign rights. Where are our rights declared? Whence do they come? Our rights for which we wield the sword-where do we get them? From the laws of nations? If we get them from the laws of nations one of two things follows: either the laws of nations carry over the conquered country the qualified and limited sovereignty of the United States, or it gives them an unlimited sovereignty.

"I undertake to say that the laws of nations recognize in the conqueror an unlimited sovereignty. In a conquered province the laws of nations consent that you may set up a monarch, found orders of nobility, erect churches dependent upon the State, pass ex post facto laws, strike out equal State representation in the Federal Senate-you may do every thing and any thing you choose to do by your sovereign power. The laws of nations favor this. The laws of nations have no objections to kings, emperors, nobles, bishops. The protest against this infringement of the rights of man comes from America. Almost solitary and alone in the family of nations we are found to protest against the State with a king united to a church with a bishop. Yet, if it is there that we get our right of conquest and our sovereign right to rule the conquest, if it is there we go for a definition of our sovereign rights against a foreign and a domestic foe, and to interpret the manner in which we may enjoy the rights of conquest won either from foreign or domestic foes, to these conclusions must we come at last, or we come to the other, that by -the laws of nations the conqueror does not conquer the sovereignty of a hostile Power, but merely substitutes his own sovereignty in place of that which has been expelled.

When Russia conquers Poland she strikes down elective monarchy and substitutes hereditary despotism in its place. If Turkey conquers a Christian province, the crescent is substituted for the cross. England makes a conquest, and by the omnipotence of unlimited

power Parliament governs it according to its will. But if the Republic of America acquires territory, the exercise of sovereign right in that territory depends, not upon the laws of Congress, of nations, of war, but upon the will of the sovereign people of America as expressed in the Constitution.

"I understood the gentleman from Pennsylvania (Mr. Stevens) to inquire where is the sovereignty of this country. The sovereignty of Russia is in the emperor. The sovereignty of Great Britain is in Parliament. Both are unlimited. The sovereignty of the United States is in the President and the army. But should it be there? I deny it. It is in the sovereign American mass, in the people. There is no sovereign but the people. The people of America have delegated a portion of their sovereignty to the States, and another portion they have delegated to the Federal Government, our glorious, and I trust, imperishable Union. The rest they have reserved to themselves. Consult that tenth article of the Amendments, which I believe this House did not quite lay upon the table when I had the honor to move it the other day; consult that and see 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.' That sovereignty which in America can do no wrong like the sovereignty of Europe, at least no wrong for which it is criminally responsible, has delegated a portion only of that mighty sovereignty to the Federal Government. And in whom does it rest? In Congress, and not in the President and his army. Conquests made by this country, foreign or domestic-if you admit such a monstrosity as a domestic conquestare to be appropriated and settled and enjoyed and governed according to the laws of Congress, and by Congress admitted to the equal fellowship of States.

"The war powers, whatever they may be, are vested in Congress, and not in the Executive; and if the gentleman from Pennsylvania (Mr. Stevens) is as logical in action as in argument, the Executive of the United States must meet with his determined opposition. I understand him, indeed, in the very speech to which I have directed my attention, to sneer at the pretence that the Executive of the United States is vested with the Federal or State sovereignty at all. He denies the right of ten men to govern a hundred by the aid of the army and navy. I deny it, too, and it is an error which will die in the midst of its worshippers sooner or later, unless the central idea of American civilization is a falsehood, and the Declaration of Independence a cheat and delusion.

"If I am correct in the position I have stated, that the sovereignty was in the mass of the American people, and that they delegated a part to the States, and a part to the Federal Government, how then, admitting the principle of

the gentleman from Pennsylvania of the right of conquest, does the successful conquest of eleven States vest the President with sovereign power in the States?"

Mr. Stevens: "I will interrupt the gentleman one moment to correct him. My position was, that the sovereignty was vested in Congress." Mr. Wadsworth: "That was the position I assumed. I said there was no sovereignty in this country but in the sovereign mass, and that they had vested a portion of that in the States, and a portion in the United States, to be exercised by Congress. We seem, then, to agree. I was only inveighing against the presidential plan, and contended that the gentleman himself should lend his weighty support to overthrowing that plan, and all who plant their feet upon the neck of popular sovereignty. By his own principle Congress should undertake to settle the fate of eleven States. I prefer that Congress should do it. Woe worth the day when the American people consent that that portion of the sovereignty which they delegated to the States shall, by the accidents of fortune, or the malice of men, be vested in one man, and he the holder of the sword and the purse. But it is plain to any man who recurs to first principles, that none of these consequences follow. These States are in the Union, and there is no power short of successful revolution that can drive them out of it; and, Mr. Speaker, it is no longer worth while for men of intellect and courage to deny the fact-rebellion, double damned as it is, has been met on our part and confronted with revolution; a revolution of the Federal Government against the States, of the rulers against the people, the sword against privilege, of power against liberty.

"Sir, this is a much larger business, developing by the logic of events, than African slavery. We have got far beyond that. In this very act which you propose to amend, there are the seeds of ruin that stretch beyond all questions of African slavery. You have heard it proclaimed that it rests upon the right of conquest, the obliteration of eleven-therefore of thirty-four-States. What, then, is in truth the real issue before the country? It is a question whether revolution shall go on, or whether the American people shall arrest it. What a spectacle does it present in this the nineteenth century! A revolution of power against the people, of the ruler against the masses, of the Executive and the army, if I am to believe its representatives on this floor, against the people. Shall the Executive of the United States have these vast powers confided to him? Shall we consent that by the conquest of Louisiana and ten other States he has become lord paramount in that country, the sovereignty of this people vested in him to be parceled out to his sworn adherents, and we to furnish our blood and money to support the ten men against the ninety?"

On motion of Mr. Wilson, the words "except

during his life" were stricken out, and the words "contrary to the Constitution of the United States" inserted in their place in the resolution. On the 5th of February it passed the House by the following vote:

YEAS-Messrs. Alley, Allison, Ames, Anderson, Arnold, Ashley, John D. Baldwin, Baxter, Beaman, Blow, Boutwell, Boyd, Brandegree, Broomall, Amwell, Henry Winter Davis, Thomas T. Davis, Dawes, brose W. Clark, Freeman Clarke, Cobb, Cole, CresDeming, Donnelly, Driggs, Eliot, Farnsworth, Fenton, Frank, Garfield, Gooch, Grinnell, Higby, Hooper, Hotchkiss, Asahel W. Hubbard, John H. Hubbard, Hulburd, Jenckes, Julian, Kasson, Kelley, Francis W. Kellogg, Orlando Kellogg, Loan, Longyear, Marvin, McBride, McClurg, McIndoe, Samuel F. Miller, Moorhead, Morrill, Daniel Morris, Amos Myers, Leonard Myers, Norton, Charles O'Neill, Orth, Patterson, Perham, Pike, Pomeroy, Alexander H. Scofield, Shannon, Sloan, Smithers, Spalding, SteRice, John H. Rice, Edward H. Kollins, Schenck, vens, Thayer, Tracy, Upson, Van Valkenburgh, Elihu B. Washburne, William B. Washburn, Williams, Wilson, Windom, and Woodbridge-83. Augustus C. Baldwin, Jacob B. Blair, Bliss, Brooks, NAYS-Messrs. James C. Allen, Ancona, Bailey, James S. Brown, William G. Brown, Chanler, Clay, Coffroth, Cox, Cravens, Dawson, Dennison, Eden, Edgerton, Eldridge, Finck, Ganson, Grider, Harding, Harrington, Benjamin G. Harris, Herrick, Holman, Hutchins, William Johnson, Kalbfleisch, Kernan, King, Knapp, Law, Lazear, Le Blond, Long, Mallory, Marcy, McDowell, McKinney, Middleton, William H. Miller, James R. Morris, Morrison, Nelson, Noble, Odell, John O'Neill, Pendleton, Pruyn, Radford, Samuel J. Randall, William H. Randall, Robinson, Rogers, James S. Rollins, Ross, Scott, John B. Steele, William G. Steele, Strouse, Stuart, Thomas, Voorhees, Wadsworth, Webster, Whaley, Wheeler, Chilton A. White, Joseph W. White, Winfield, Fernando Wood, and Yeaman-74.

The following is the resolution:

ap

That the last clause of a "joint resolution explanatory of An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' proved July 17, 1862, be, and the same hereby is, so amended as to read: "nor shall any punishment or proceeding under said act be so construed as to work a forfeiture of the estate of the offender contrary to the Constitution of the United States: Provided, That no other public warning or proclamation under the act of July 17, 1862, chapter ninetyfive, section six, is or shall be required than the proclamation of the President made and published by him on the 25th day of July, 1862, which procla mation so made shall be received and held sufficient in all cases now pending, or which may hereafter arise under said act."

In the Senate on February 17th, Mr. Johnson, of Maryland, from the committee on the judiciary reported back the joint resolution of the House, with a recommendation that it do not pass.

On June 27th Mr. Trumbull, of Illinois, offered the following as an additional section to the bill to establish a Freedman's Bureau:

And be it further enacted, That the last clause of a joint resolution explanatory of an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, approved July 17, 1862, be, and the same is hereby, repealed.

Mr. Trumbull said: "The object of the amend

ment is to repeal the last clause of the joint resolution which was passed after the passage of the confiscation act. The Senator from Indiana may remember that a joint resolution was passed explanatory of the confiscation act, the last clause of which was as follows:

Nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. "My amendment proposes to repeal those words, and leave the confiscation to extend to life or to be absolute as the Constitution may be decided to provide. I propose to leave it where the Constitution has left it."

Mr. McDougall, of California, said: "I desire to ask the Senator from Illinois how he can reconcile his position with the provisions of the Constitution?"

Mr. Trumbull replied: "I reconcile it with the Constitution in the same way that I reconcile with it the right to shoot a traitor, to destroy him, to destroy his property and every thing that he has for the purpose of putting down this wicked rebellion. When we are engaged in war we have a right to do whatever is necessary to accomplish the just ends and objects and purposes for which the war is waged, and in order to put down this rebellion we may take the lives of men, their property, and every thing else."

Mr. McDougall again said: "Then I understand that although the Senator has often taken the oath to support the Constitution of the United States and the laws made under it, and although he took that oath upon entering his present office, and although his right to his present place in the Senate is dependent upon that oath, nevertheless he thinks himself justified in trampling upon a plain provision of the Constitution."

Mr. Trumbull again replied: "I say no such thing. I say it is as constitutional to take the rebel's property as his life; and does the Senator from California sit there and pretend that we may not take the life of the rebel without going to a court? What sort of a war would that be which should be prosecuted by jury trials and constables, when your armies are opposing each other, and when hundreds of thousands of men are arrayed against the Government? I am not to be put in any such position as that of advocating an unconstitutional measure. It is clearly and palpably constitutional, and as clearly and palpably right, in my opinion, as it is to exert the power of this Government in any other way to suppress this wicked rebellion."

Mr. McDougall: Mr. President, the provision of the Constitution to which I have called the attention of the Senate was adopted by men who were just out of the struggles of the Revolution, where for a time they occupied the position of rebels against English authority, subject to the laws of attainder and confiscation as they existed under English rule. With the lessons learned in the struggles of the Rev

In

olution, they said then for themselves and for the persons that were to come after them, that the law confiscating the property of persons in arms, guilty of treason, if you please, or rebellion, is an oppressive and unjust law. affirming this opinion they but repeated the expressed judgment of the great teachers of moral, social, and governmental ethics. They laid down the constitutional rule of law with exact reference to questions such as the one now pending, and made it part of the fundamental law of the Republic. It is so plain that he who runs may read it. It cannot be misunderstood; it cannot be misconstrued."

Mr. Carlile, of Virginia, followed, saying: "I confess, Mr. President, that I was not prepared for the proposition submitted by the Senator from Illinois, because, if my recollection is not at fault, that Senator, in his discussion of this subject when it was before this body at the last Congress, maintained the ground that real estate could not be confiscated beyond the life of the owner. That is my recollection of the discussion of this subject when it was before the Senate. The Senator will correct me if I am wrong."

Mr. Trumbull, in reply, said: "The Senator from Virginia is wrong so far as the confiscation of property in the rebel districts of country where there are no courts, is concerned. I always maintained that the clause in the Constitution limiting the effect of a conviction for treason, had nothing in the world to do with the waging of war in a district of country governed by the military power, and where there were no civil tribunals. Í agree now, that if in any of the loyal States an individual were arrested and tried for treason, convicted, and hung, that would be a sufficient punishment; and his real estate, if he had any, might go to his descendants. But I always insisted that the provision of the Constitution applied only to trials in courts of law, and had nothing to do with the prosecution of war where there were no courts of law, and nothing to do with the estates of persons who were not brought to trial in courts of law and could not be. I always insisted that a traitor who es caped from the country, like Slidell or Mason, and left real estate behind, could not therefore escape the punishment of the confiscation of his property because he was beyond our reach to be tried for treason."

Mr. Carlile: "Mr. President, I should like to know from the Senator where he gets his authority to confiscate the property of traitors or anybody else, unless he derives it from the Constitution."

Mr. Trumbull: "I do get it from the Constitution."

Mr. Carlile: "The proposition is now by law, not by armies, not by virtue of the military power of this Government, but under the forms of law to deprive not the traitor, not the rebel, of his property, because the Constitution gives you the power to do that but it is to