Part 6

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

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

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

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

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

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

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

* * * * *

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

* * * * *

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

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

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

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

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

* * * * *

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

1. Possession of what belongs to us;

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

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

4. Punishment of the enemy.[57]

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

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

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

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

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

* * * * *

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

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

* * * * *

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

“To tame the proud, the fettered slave to free,-- These are imperial arts, and worthy thee.”

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

NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON.

RESOLUTION AND REMARKS IN THE SENATE, MAY 23, 1862.

May 23d, the Senate proceeded to consider a resolution offered the preceding day by Mr. Sumner:--

“_Resolved_, That the Committee on the District of Columbia be directed to consider what legislation, if any, is needed to protect persons of African descent in Washington from unconstitutional seizure as fugitive slaves, or from seizure by disloyal persons.”

Mr. Sumner said:--

MR. PRESIDENT,--The question presented in this resolution has a practical value to-day, when, here in Washington, we are shocked by efforts of slave-hunters, coming from an adjoining State, to carry off human beings as slaves. This is menaced on a large scale. Whole hecatombs are to be sacrificed. A Philadelphia paper of this morning, “The Press,” which I find on my table, contains, under the telegraphic head, an account of certain proceedings instituted by persons called Commissioners, who have undertaken gravely to decide, that, in a case of human freedom, “it was discretionary with them to allow cross-examination as to identity and ownership.” According to these wise Daniels, a person may be doomed to Slavery, even without any cross-examination of witnesses against him. The statement of this assumption shows the outrage which offends justice and common sense, and, I am happy to believe, the Constitution also, even if it be assumed that anybody now can be treated as a slave in the District.

The much discussed clause of the Constitution bearing on this question provides that “no person held to service or labor _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.” It will be observed that this is limited to escape _from one State into another State_. Nothing is said of escape into Territories, or into the District of Columbia. If made applicable to Territories or the District, it is only by inference and deduction, and not by virtue of any express words.

Notwithstanding this omission in the Constitution, the Act of 1793, providing for the surrender of fugitives from service, was made applicable to escape into Territories, and this questionable precedent was followed in the terrible Act of 1850. But neither of these Acts was made applicable to escape into the District of Columbia. While Slavery prevailed in the District, it was difficult to raise a question with regard to the surrender of fugitive slaves. But since Freedom has happily become the law here, the case is materially changed. Slaves at last are beginning to have rights. And the question arises, whether, in the absence of express power in the Constitution, and also in the absence of express words in any statute, commissioners can undertake to surrender men into Slavery. Even if there were express words in the statute, we should be obliged to find express words also in the Constitution, which is the source of the power. But there are no words applicable to this pretension either in statute or Constitution.

Sir, I have always understood, that, in the interpretation of statutes, and especially of the Constitution, every word is to be interpreted in favor of life and liberty,--_in favorem vitæ ac libertatis_. Indeed, one of the received maxims of the Common Law says strongly, “Impious and cruel is he to be adjudged who does not favor Liberty.”[59] If these maxims are not entirely rejected, it is impossible to find, either in statute or Constitution, any power to gratify the hunters now thronging this District in quest of human prey. It is _casus omissus_ in our texts legislative or constitutional, and no commissioner, in the plenitude of petty power, can undertake to supply words which do not appear in statute or Constitution. It is for them only to administer the law as it is, and not to make it, especially against Freedom. They are not greater than the Constitution; and they should know that human freedom, in the estimation of every civilized jurisprudence, is priceless.

The question which I now raise, if I may employ the language of lawyers, is proper for the courts. A court in Washington, properly inspired, could not hesitate in its conclusion. It would deny any such offensive prerogative, unless sanctioned by clear and positive words. In the absence of such words, it would rejoice to set aside the whole pretension. It would not hesitate or halt, but it would do it gladly, generously, justly, and make a new precedent by which civilization should be advanced. Yet this is too much to expect from the courts of Washington, whose sense of justice has been enfeebled by the atmosphere of Slavery.

This pretension is aggravated by the fact that many of these hunters are notoriously disloyal. Sir, it is hard that our Constitution should be violated, and men hurried into Slavery, at the trumpery process of such offensive characters. I think the Committee will find a remedy.

On motion of Mr. Grimes, the resolution was amended by substituting the Committee on the Judiciary for the Committee on the District of Columbia, and then agreed to.

INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING ARMIES.

RESOLUTION IN THE SENATE, MAY 26, 1862.

Mr. Sumner submitted the following resolution for consideration.

RESOLVED, That the Secretary of War be requested to communicate to the Senate copies of any instructions to commanding generals, in pursuance of the Act of Congress, approved August 6, 1861, setting free slaves who have been employed by the consent of their masters against the Government and lawful authority of the United States; and also to inform the Senate if any steps have been taken to make this statute effective, and to insure its due execution by our advancing armies, for the benefit of slaves who have been so employed.

June 4th, the resolution was considered and agreed to.