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WAR POWERS
UNDER THE
CONSTITUTION OF THE UNITED STATES.
MILITARY ARRESTS,
RECONSTRUCTION, AND MILITARY GOVERNMENT.
ALSO, NOW FIRST PUBLISHED,
WAR CLAIMS OP ALIENS.
WITH NOTES
OX THE
ACTS OP THE EXECUTIVE AND LEGISLATIVE DEPAKTMENTS
DURING- OUR CIVIL ^V.A.R,
AND A COLLECTION OF
CASES DECIDED IN THE NATIONAL COURTS.
BY WILLIAM WHITING.
FORTY-THIRD EDITION.
BOSTON:
LEE AND SHEPARD, PUBLISHERS
IN-ETW YORK:
LEE, SHEPARD AND DILLINGHAM.
1871.
Entered, according to Act of Congress, in the year 1870,
BY WILLIAM WHITING,
In the Office of the Librarian of Congress, at Washington.
SPfiECKELS
Printed at the University Press, Cambridge, by Welch, Bigelow, £ Co.
STEREOTYPED AT THE BOSTON STEREOTYPE FOUNDRY,
No. 19 Spring Lane.
PREFACE TO THE SECOND EDITION.
WAR POWERS OF THE PRESIDENT, AND LEGISLATIVE POW-
ERS OF CONGRESS, IN RELATION TO REBELLION, TREASON,
AND SLAVERY.
THE following pages were not originally intended for publica
tion, but were written by the author for his private use. He has
printed them at the request of a few friends, to whom the opinions
therein expressed had been communicated ; and he is not unaware
of several errors of the press, and of some inaccuracies of expres
sion, which, in one or two instances, at least, modify the sense of
the statements intended to be made. The work having been
printed, such errors can conveniently be corrected only in
the "errata." This publication was principally written in the
spring of 1862, the chapter on the operation of the Confiscation
Act of July 17th, 1862, having been subsequently added. Since
that time President Lincoln has issued his Emancipation Procla
mation, and several military orders, operating in the Free States,
under which questions have arisen of the gravest importance.
The views of the author on these subjects have been expressed
in several recent public addresses ; and, if circumstances permit,
these subjects may be discussed in a future addition to this
pamphlet.
To prevent misunderstanding, the learned reader is requested
to observe the distinction between emancipating or confiscating
slaves, and abolishing the laws which sustain slavery in the Slave
(iii)
101 5 -12
IV 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 Mas
sachusetts 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 fall 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 pre
vent the owner from buying other negroes, and holding them by
slave laws. Death does not interfere with the local law of prop
erty. 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. V
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 prohibite'd 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. l,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
* Elbridge Gerry, of Massachusetts, founded his chief objections to the Constitution
on the grounds, 1. That the legislature had power to make what laws they might please
to call necessary and proper; 2. To raise armies and money without limit; 3. To establish
tribunals without juries. Other objections he could waive. These he could not. Gerry,
Gov. Mason and Edmund Randolph, Jr., of Virginia, did not vote for the adoption of the
Constitution.
VI PREFACE.
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
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 authorita
tively 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 Chap
ter 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 mili
tary 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 con-
structive 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 prop
erty of any kind to public use. There must always be a justifia
ble cause for the exercise of every delegated power of legislation.
PREFACE. Vll
It is not maintained in these pages that Congress, in time of
peace, has the right to abolish slavery in the States, by passing
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
aifairs 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 gigan
tic rebellion; when slavery has been developed into a vast,
an overwhelming war poioer, which is actually used by armed
traitors for the overthrow of government and of the constitu
tion ; 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 sub-
Vlll PREFACE.
jects to become belligerent traitors because they are held as
slaves of disloyal masters, — then indeed slavery has become an
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?" ™- ^
BOSTON, November 20, 1862.
Note to Tenth Edition. — The reader ia referred to the Preface, pages v. and vi., 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 defence; " 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. See also Story on the Constitution, Sect. 1286.
* See Note to Forty-third Edition, on " Slavery," p. ;J93. Also, Appendix.
WAR POWERS.
PREFACE TO THE FORTY-THIRD EDITION.
OF previous editions of this work, thirty-two have been pub
lished in New York, and ten in Boston. In 1864 the Essays on
" Military Arrests," " Reconstruction," and " Military Govern
ment" were reprinted in one volume with the "War Powers," as
they treated of kindred subjects, and were intended to illustrate
and apply to our national affairs the principles of constitutional
law advocated in the earliest of these publications. A brief Essay
has been added on " Claims against the United States to Com
pensation for injuries inflicted by our military or naval forces
upon aliens who came into or resided in this country during the
rebellion." It was originally prepared in its present form, at the
request of the Secretary of the State Department, and was sub
sequently (1866) printed. Since that time it has been used in
the War, State, and Navy Departments. New notes have been
added for the purpose of giving the reader convenient reference
to some of the proceedings of those departments relating to the
war powers treated of in this work.
Several recent acts of Congress, decisions of the departments,
and opinions, judgments, or official acts of officers and courts of
of the United States are also cited or referred to in the Notes or
printed in the Appendix to this edition, marking our progress in
military jurisprudence, or limiting, defining, and establishing the
war powers of the government.
PREFACE TO THE FORTY-THIRD EDITION.
This comparatively novel and important branch of public law,
developed in our recent civil war, ought not to be overlooked by
jurists or statesmen. It should be made a subject of special in
struction in schools for the education of lawyers. The neglect
of it has proved a national calamity. If southern rebels, with
all their treasonable notions on the subject of State rights, had
recognized and appreciated the war powers of the Union, it is
not probable that they would have attempted armed rebellion.
Had the loyal people of the country and the administration
promptly assumed and with energy employed those powers, trea
son might have been strangled at its birth; and if the judicial
department, unbiassed by political proclivities of individual judges,
shall ultimately sanction a liberal and statesman-like construction
of the sovereign and belligerent rights of the people under our
Constitution, it will, by so doing, strengthen the power of our
government to defend itself against rebellion ; it will increase our
confidence in the stability of the republic, and it will become a
new safeguard against the dangers of civil war.
To maintain the right of the majority to govern, to guard
against future attempts at rebellion, to secure the supremacy of
republican institutions in all parts of a country which contains so
large a foreign population, and includes so vast a territory as
ours, liable as it is to be disturbed by sectional jealousies and
interests, the people must, hereafter, be always prepared to use
promptly, when the occasion imperatively demands it, the war
powers of their government. They must, therefore, not forget
them in time of peace. Our recent civil war has, unfortunately,
forced us to become familiar with them, and to recognize them as
the only means by which the right to continue our existence as a
nation under constitutional government may, and in the last re
sort must, be defended. By them the overthrow of rebel gov
ernments, the return of public enemies to the Union, the restora
tion of disloyal States, have been effected and controlled. By
PREFACE TO THE FORTY-THIRD EDITION. xl
them the civil and political rights of eleven millions of our citizens
have been regulated and established. Upon them the basis of the
reconstructed Union stands. Yet every civil, judicial, or military
act of the government which rests for justification upon the con
stitutional validity of the war power, will probably continue to be
a subject of discussion for years to come — so long as the present
generation of secessionists shall last. They have everything to
gain, and nothing to lose, by repudiating the power which has
conquered them. Though compelled to lay down their arms,
they may continue their efforts to destroy the Union. Hence the
vindication of the rights of the people against their enemies is
still one of the duties of patriotic citizens, and is the only means
of securing to our posterity the inestimable benefits derived from
our civil war. For these reasons, lawyers, judges, statesmen, and
the people of the United States ought never to lose sight of the
war powers of the government under our Constitution.
W. W.
BOSTON, November 10, 1870.
CONTENTS.
WAR POWERS.
PREFACE TO THE SECOND EDITION. iii
Distinction between emancipating slaves and abolishing slavery. . iii
President's Proclamation and the emancipation acts, their effect on
slavery. ........••• iv
Powers not delegated by the Constitution are reserved. v
Powers conferred by the Constitution are limited and defined. . . v
Power to provide for the general welfare and common defence, is not
relied upon in this work as the basis of claim for special power. . v
When and how slavery may be abolished by Congress. . . vi, vii, viii
PREFACE TO THE FORTY-THIRD EDITION ix
INTRODUCTION.
Purpose for which the Constitution was founded 1
How the Constitution has been violated.
Unexpected growth of slavery.
The " privileged class." ......-••
Abolition of slavery by European governments. ..... 3
Slavery in 1862 not slavery in 1788
Are slaveholders arbiters of peax?e and war? .....
Though hated, why slavery was tolerated
Recognition of slavery not inconsistent with the perpetuity of the republic. 7
War, distinction between the objects and the means of. 7
Liberal and strict constructionists of the Constitution
Powers we should expect to find in the Constitution.
The Constitution contains powers to make laws for peace and laws for war.
Result if the Constitution denies the power to save the Union.
Some leading questions under the Constitution stated.
(xiii)
XIV CONTENTS.
CHAPTER I.
The constitutional right of the government to approprite private property
to public use, either in time of peace or in time of war. . . 15
The right is founded in reason. ..... 15
Indemnity is required. ........ IG
" Public use," what it is. ........ 17
All kinds of property, including slaves, may be so appropriated. . 18
The United States may require all subjects to do military duty. . . 20
Will slaveholders be entitled to idemnity if their slaves are used for mil
itary purposes ? ........ 21
Indemnity to Mormons. ......... 22
Effect of naturalization and milita laws on the question of indemnity to
slave masters. ....... 22
Does the war power of seizure supersede the civil power of Congress to
appropriate private property to public use ? 24
References to the Constitution, showing the war powers of Congress. . 25
Slave property subject to the same liability as other property to be ap
propriated for war purposes. ...... 26
Importance and danger of the power conferred by the Constitution.
Art. I., Sect. 8 27
Powers of the President not in conflict with those of Congress. . . 27
When Congress has power under the Constitution to abolish slavery. . 28
CHAPTER II.
War powers of Congress 34.
Rules of interpretation. ......... 34
Are the United States at war ? 38
Declaration of war not necessary on the part of the government to give
it full belligerent powers. ....... 38
Has government full war powers against rebel citizens ? ... 40
Is "suppressing rebellion" by arms making war on the citizens of the
United States, -in the sense of the Constitution? ... 42
Rebels may be treated as belligerents and subjects. . . . .44
The law of nations is above the Constitution 46
International belligerent rights are determined by the law of nations. . 47
Belligerent right of confiscation of personal estate 48
Prize courts. ............ 48
Rights guaranteed by the Constitution. 48
Constitutional guarantees of civil rights to citizens in time of peace not
applicable in time of war. . 49
True application of these constitutional guarantees 50
Civil rights of loyal citizens in loyal districts are modified by the exist
ence of war. .......... 51
Whether belligerents shall be allowed civil rights under the Constitution
depends upon the policy of the government. .... 53
CONTENTS. XV
The Constitution allows confiscation 64
Military government under martial law 56
Civil rights changed by martial law 58
A severe rule of belligerent law 59 >
Belligerent right to confiscate enemy's real estate 62
CHAPTER III.
War power of the President to emancipate slaves. . 66
Why the power exists. .......... 66
The President the sole judge how and when to use it. ... 67
Powers of the President not inconsistent with powers of Congress to
emancipate slaves. ......... 68
Is liberation of enemy's slaves a belligerent right? .... 68
The law of nations sanctions emancipation of enemy's slaves. . . 69
Authority and usage confirm the right. . . .... 74
How far the government of the United States, under former administra
tions, have sanctioned the belligerent right of emancipating slaves
of loyal and of disloyal citizens 74
War powers of the President — in general. ..... 82
CHAPTER IV.
Bills of attainder. 84
Bills of attainder in England
Punishment by attainder. ......... 84
Attainders prohibited as inconsistent with constitutional liberty. . 85
Bills of attainder abolished 86
What is a bill of attainder. ........ 86
Bills of pains and penalties. ......... 87
Ex post facto laws prohibited — bills of pains and penalties, as well as
attainders, unconstitutional. ....... 88
Attainders in the Colonies and States. ....... 89
Bills of attainder, how recognized. .....•• 91
CHAPTER V.
Treason.
Right of Congress to declare by statute the punishment of treason, and
its constitutional limitations. ....•••
Ancient English doctrine of constructive treason. . . • • .95
Power of Congress to define and punish treason limited.
Attainder and ex post facto laws. ....•«« 97
Treason defined by statute. .....-••
Congress has unlimited power to declare the punishment of treason. . 99
XVI CONTENTS.
Consequences of attainder 100
Corruption of blood 101
Savage cruelty of English law. . 101
Forfeitures. ........ . 102
Characteristics of attainders of treason 105
Technical language, how construed. ... ... 106
True meaning of Constitution, Art. III. Sect. 3, Cl. 2. ... 108
If Congress can impose fines, why not forfeitures? . . . .109
Forfeitures for treason not limited to life estates. 110
CHAPTER VI.
Treason, statutes against it, how administered 112
Confiscation act of 1862 113
Confiscation act of 1862 not a bill of attainder, not an ex post facto law. lift
CHAPTER VII.
The right of Congress to declare the punishment of crimes against the
United States other than treason. . . . . . .117
New crimes require new penal laws 117
All attempts to overturn governments should be punished. . . .118
Act of 1862, Sect. 6, does not purport to punish treason. . . .119
Legal construction of the act of 1862. 12Q
The severity of different punishments declared 122
The sixth section of the confiscation act of 1862 is not within the prohi
bition of the Constitution, Art. III. Sect. 1, Cl. 3. ... 123
Treason and confiscation laws in 1862, their practical operation. . . 126
Legal rights of persons accused of treason. ..... 126
Will secessionists indict and convict each other? ..... 127
How the juries are selected, and their powers 127
State rights and secession doctrines in the jury-room. .... 128
Laws are most effective which require no rebel to administer them. . 129
Statutes of limitation will protect traitors. ...... 130>
CHAPTER VIII.
Constitutional rights over slavery not affected by party platforms. . 131
Party platforms cannot alter the Constitution. 131
Slavery considered as belonging to the domestic affairs of States ; can gov
ernment interfere with it? ........ 132
Domestic institutions. .......... 132
What they are, and when they cease to be so 132
Slavery may be interfered with by Congress for its protection. . . 133
CONTENTS. xvii
Slavery may be interfered with by appropriating slaves as private property
to public use, as shown in Chapter I. ..... 134
Slavery may be interfered with by operation of military laws. . .134
Slavery may be interfered with by laws regulating commerce between the
States 134
Congress may interfere against slavery by militia laws 134
Congress may interfere with slavery in the States by cutting off the sup
ply of slaves to such States. ....... 134
Congress may interfere by laws preventing commerce in slaves between
the States 134
Slavery may be interfered with by the power to make treaties. . . 135
Slavery, question as to indemnity of masters. ..... 13G
Slavery may be interfered with by the power to suppress insurrection. 137
Congress may interfere for suppresson of rebellion. .... 137
Congress may interfere to secure domestic tranquillity. . . . 138
Constitution, authoritative construction of. ...... 138
Right to deal with slavery not to be sought in party platforms. . . 139
Opinions of the Supreme Court upon the Constitution. . . . 139
Opinions of the framers of the Constitution. . . . . .139
The Constitution gives all powers necessary to public welfare and com
mon defence. ../....... 140
NOTES ON THE WAR POWERS (Fifth Edition) 141
•Opinion and dissenting opinions of the Supreme Court of the United
States in the prize cases. ........ 141
MILITARY ARRESTS.
PREFACE TO MILITARY ARRESTS. ....... 159
Arrests in loyal States regarded with alarm. 161
Civil liberty 161
Freedom from arrests claimed for public enemies. ..... 162
Changes in our rights effected by civil war. ..... 162
General war powers of the President. ....... 163
Foundation of martial law. ........ 165
Martial law, what it is. . . • . . . . . • 165
The objects and the necessities of war show the proper limit of the means
of war. . . . . . . . . . • 167
Powers and responsibilities of military commanders. .... 167
Limits to all war powers by martial law. ...... 168
Arrests on suspicion. ........•• 169
Abuse of power of arrests. ........ 170
Safeguards against abuse of arrests. 170
c
XV111 CONTENTS.
Safeguards to civil liberty 170
Effects of civil war on courts of law. . . ... . . .171
Military arrests sanctioned by the Constitution. . . . 171
Arrests not forbidden by the Constitution . 173
Arrests without warrant 174
Arrests without indictment .176
Officers making arrests not liable to civil suit or criminal prosecution. 182
Military commanders making arrests not liable to civil suits or criminal
prosecutions Ig2
Powers of military commanders may be delegated ; obedience to orders
a justification. ........ . 182
Arbitrary arrests not consistent with free government. . . . 183
Civil liberty inconsistent with arbitrary power 183
Arbitrary arrests distinguished from discretionary. . . . 184
Military arrests lawful 135
On what grounds military arrests are justifiable. .... 186
Principles of martial law distinguished from arbitrary power. . 187
War powers have definite limits 187
Liability to martial law not inconsistent with liability to civil process. . 188
Civil war makes actions criminal which might not be so in time of peace. 188
Civil war renders persons liable to military as well as civil tribunals. . 188
Necessity of military arrests 188
Definition of military crimes, or crimes of war. ... . 188
Double liability for military crimes, military and civil. . . .188
Acts made military crimes by a state of war 189
Martial law may punish acts which in time of peace would have been
innocent. .......... 189
Resistance to draft of military forces. . . . . . . . 189
Arrests of innocent persons. ...... 199
Arrests to prevent hostilities. ........ 193
Cause of arrest cannot always be disclosed. .... 193
Military commanders need not always disclose cause of arrest. . . 193
Prevention of military crimes is the best use to be made of armies. . 193
Prevention of military crimes is the object of most military operations. 193
Prevention of military crimes is the justification of captures of property
and military arrests ; object for which the President was author
ized, in 1798, to imprison aliens. ...... 195
Prevention of military crimes authorizes the call by the President of the
army and navy into service. ....... 195
Restraint of civil liberty by compulsory military duty exceeds temporary
restraint by arrest. ......... 195
Arrests made by all governments in time of civil war. . . . 196
Necessities of civil war. 197
Who ought and who ought not to be arrested 198
How martial law is instituted or put in force. 202
Duty of military commanders in case of service on them of habeas corpus. 202
War powers of the President to suspend habeas corpus 202
CONTENTS. XIX
War powers of the President to establish martial law. . . . 202
Constitutionality of act for enrolling military forces 205
Military crimes may be committed by persons not amenable to civil pro
cess or indictment. . . . • . • • . .211
Military forces, indemnity claimed by persons arrested by, when to be
granted and when refused. . 211
Instructions of the War Department to military commanders. . . 213
Military forces, how to be treated. 213
How judges violating certain laws of Congress during the war were to
be regarded 213
Order of the War Department relating to them 213
Opinion in Kees v. Governor Tod 216
RETURN OF REBELLIOUS STATES TO THE
UNION.
War of arms and war of ideas. ........ 229
Dangers to be guarded against. ........ 230
Consequences of being outwitted by rebels. ..... 232
State rights in time of civil war 234
Attitude of the government, in the beginning of the war, towards rebels
and towards loyal men in rebel districts 235
Character of the war changed by subsequent events. . . • 235
Consequences resulting from civil territorial war.
When the rebellion became civil territorial war. .... 237
Rights of public enemies since the rebellion became a territorial civil war. 238
Rights of rebels to be settled according to the laws of war.
State rights to be regained only by our consent. ..... 244
State rights not appurtenant to land
Forfeiture not claimed — right of secession not admitted.
The pledge of the cquntry to soldiers and citizens must be kept inviolate. 247
Plan of reconstruction recommended. .....•• 248
Plan adopted by President Lincoln in his message and proclamation of
amnesty. .......•••• 250
CONTENTS.
MILITARY GOVERNMENT OF HOSTILE TER
RITORY IN TIME OF WAR.
PREFACE. 259
CHAPTER I.
War, its methods and its objects. • 261
Government in some form is necessary to secure a conquest. . . 201
Government, why it is essential to secure a conquest. .... 263
Government, military, is a mild form of hostilities. .... 264
There must be military government, or no government. . . . 266
The right to erect military government is an essential part of the war
power, is founded in necessity and sanctioned by authority. . . 267
Leading cases cited 268
CHAPTER II.
The Constitution authorizes the President to establish military govern
ment 269
Power not granted in express terms. ....... 271
Millitary government is an act of war. ....... 272
Right recognized by courts, &c. ....... 273
Duty of the conqueror to govern those whom he has subjugated. . . 273
CHAPTER III.
Distribution of powers under military government. .... 274
Different kinds of law of war — martial law, military law, &c. . . 274
Military tribunals. .......... 275
Power given by the Constitution to Congress to establish courts mar
tial, &c. 276
Power of the President to establish courts of war. . . . .276
Do courts of war exercise judicial power? ...... 277
Would judicial courts be useful as war courts ? . . . . . 278
CHAPTER IV.
Courts martial, legislative history 279
Courts martial, by statutes. ......... 279
Military courts of inquiry. ......... 280
Military courts of inquiry established by statute law. . . . 280
Military commissions. .......... 281
CONTENTS. XXI
Military commissions under General Scott. . . . . 281
Military commissions under our statutes. ...... 281
Similar courts instituted by President Lincoln. .... 283
Courts of civil jurisdiction under military authority. .... 284
General Sbepley, General Butler, Judge Peabody, Sequestration Com
mission. .......*.... 284
Jurisdiction of such courts. ......... 287
Does the Constitution prohibit such procedures ? .... 288
Rebels — what rights they claim. ........ 290
Rebels — what rights are conceded to them. ..... 292
Public enemies — are the inhabitants of seceded States public enemies ? . 293
The question whether the inhabitants of insurrectionary States are to be
deemed public enemies is determined by the political departments
of our government, not by the judiciary. ..... 294
The political departments of our government have finally determined
that they are public enemies. ....... 296
The President; and the acts of the Executive on that subject. . . 296
Congress ; and the acts of the legislative department on that subject. . 299
The judiciary ; and the position of the Supreme Court, which has adopted
the action of the political departments as it was bound by the Con
stitution to do. .......... 304
CHAPTER V.
Delegation of authority. ......... 307
CHAPTER VI.
Military government, how created and controlled, and how terminated by
Congress. 309
Limits of power — conflict between the power of Congress and that of the
President 311
How these governments may be terminated by Congress. . . . 312
When the power of military government will cease 313
CHAPTER VII.
Resume. ............ 316
Jurisdiction of military government established by the Commander-in-
Chief. 316
CHAPTER VIII.
The law administered by military government. ..... 319
As to local laws in conquered districts, whether the municipal laws of
the conquered district remain in force proprio vigore unless al
tered, &c. . 321
XX11 CONTENTS.
What laws of the invading country extend ipso vigore over the subju
gated district. ......... 321
The suppression of the present rebellion is not the conquest of a foreign
country. . . . . . . . . . . .3^1
Distinction between alien and public enemy. ..... 321
President's Proclamation, effect of, in hostile country not under our con
trol. ............ 322
United States judicial courts may be reestablished, but are at present
useless in the rebellious districts. ..... 324
WAR CLAIMS.
PREFACE. 329
War claims against the United States 327-357
Enemies, distinction between alien enemy and public enemy. . . 331
Claims for indemnity depend on political status of claimant. . .331
Difference between loyal citizens' and rebels' claims for indemnity. . 331
Aliens engaged in commerce, or those who come into the belligerent
country, when they become enemies. . . . 332, 335, 352
The character of claims discussed in this essay. ..... 332
How claims are affected by concession of belligerent rights. . . 333
Claims for indemnity classified. ........ 332
Division of aliens into six classes. ....... 333
Belligerent rights conceded by foreign countries to rebels. . . 333, 345
Legal effect of such concession. ... . . 333, 345
Aliens residing in this country owe allegiance to the United States. . 334
Jurisdiction of civil courts of every nation over aliens committing crimes
within its territory. ......... 334
Aliens may be punished by any nation for crimes committed within its
jurisdiction 334
Aliens are subject to the jurisdiction of military courts and to military
government. .......... 334
Enemies coming into a belligerent country before or after the war began. 335
Subjects of belligerents cannot transfer allegiance, flagrante bello, so as
to protect their trade. ........ 334
Confederate States alone liable for injuries to subjects of governments
who have conceded belligerent rights to them. . . . 333, 345
General rules of the law of war 334-336
Foreign enemies engaged in commerce. ...... 335
Who are enemies when two nations are at war 335
Enemies, who are subject to the law of reprisals. ..... 335
When two nations are at war, all members of one nation are enemies of
all members of the other nation. ....... 335
CONTENTS. xxiii
Lord Palmerston's opinion as to liability of the United States for damage
in bombarding Greytown. ........ 336
Opinion of, as to claims under the law of nations for damage in bombard
ing Uleaborg. 336
Opinion of, as to claims for damage done in bombarding Copenhagen. 336
Injuries suffered in bombardment of Greytown. ..... 336
Attorney General's opinion relating to the bombardment of Greytown. 336
Claims of aliens residing within the arena of war. ..... 336
Alien enemies participating in hostilities against the United States. . 337
Indemnity not allowed to aliens in hostility against the United States. 337, 338
Domiciled aliens liable to reprisals. ....... 337
Travellers not liable to reprisals. ....... 337
Rights and liabilities of aliens who join in active hostilities against the
United States. .......... 338
Aliens who have voluntarily enlisted in the service of the United States. 338
Status of non-naturalized aliens resident in the United States in case of
war with their native country. ....... 338
Naturalization, its effect on the rights and liabilities of aliens. . . 338
Aliens naturalized under the laws of the United States. . . . 338
Neutral non-naturalized aliens who have exercised the franchise of citi
zens in the United States liable to do military duty. . . 339
Degree of protection accorded to neutral aliens domiciled in loyal States. 339
Neutral aliens non-naturalized, permanently domiciled in rebel States. 339
When aliens are subject to military duty, and when not so subject. . . 339
What class of aliens is liable to military service of the United States. 339
What class of aliens is not liable to military service of the United States. 339
Liability of aliens to military service who have exercised the elective
or other franchise of citizenship. ...... 339
Indemnity not allowed to aliens who have used the elective franchise. 339
Indemnity allowed in several cases. .... 339, 340, 345, 346
Treaties modifying the law of nations. 340-352
Citizens of the United States, when indemnity is paid to them for proper
ty appropriated. . . . . . . . . . 340
When indemnity is not allowed to citizens of the United States for proper
ty destroyed 340
When indemnity is allowed to neutral aliens, domiciled in loyal States,
for property appropriated 340
Indemnity for property destroyed, when allowed. .... 340
Exceptions to right of withdrawal of travellers 340
Domicile necessary to be determined in all cases. .... 341
Rule for determining domicile. 341
Domicile, constructive or mercantile.. 342
Domicile, distinction between personal and commercial. . . . 342
Citizens of the United States become alien enemies in respect to prop
erty and capacity to sue if permanently residing in hostile country. 342
Exception to this rule in favor of certain citizens of the United States. 342
XXIV CONTENTS.
Enemies, all de facto subjects of the enemy sovereign. . . . 342
Enemies, all permanent residents in the enemy's country. . ... 342
Enemies, all neutral aliens domiciled in rebel States before the war, who
did not withdraw 342
Proclamations and laws relating to alien enemies. ..... 343
Aliens declared subject to non-intercourse acts by proclamation and
statutes. ........... 343
Neutral aliens non-naturalized, domiciled in rebel States before the war,
and not withdrawing themselves and their property, are alien
enemies. .......... 343-352
Proclamations and laws sanctioned by the laws of war. . . . 344
Travellers or aliens having no domicile in the United States. . . . 345
The rights and liabilities of travellers. 345
The claims of travellers if prevented from withdrawing. .... 345
Eight of withdrawal of travellers. 345
Withdrawal of non-domiciled aliens. 345
Aliens if prevented by the United States, or those acting under its au
thority, from withdrawing. ....... 345
Aliens, travellers, or those making temporary sojourn here. . . . 345
Neutral aliens non-naturalized, having temporary domicile in rebel States,
and remaining there during the war. .... 345, 346, 347
Aliens having mercantile domicile in the rebel States. . . . 346
How the right of withdrawal may be lost. ...... 346
How right of non-domiciled aliens or travellers to indemnity is lost. . 346
Domicile does not determine character of property. .... 346
Domicile in neutral country does not protect trade in an enemy's country. 346
Domicile determines national character of person. .... 346
Aliens who withdrew from rebel jurisdiction. ...... 347
Naturalization does not protect property of one, who, by returning to his
native country, regains his citizenship. ..... 347
AJ1 property belonging to a house of trade established in the enemy's
country, enemy's property. ....... 347
Enemy's property even if some of the owners are loyal citizens of the
United States resident in loyal States. ..... 348
Belligerent rights of the United States against property of alien mer
chant, how determined. . 348
All property of consuls engaged in commerce with the enemy, enemy's
property 348
Enemy's property — its character is stamped upon it if in the place where
trade is carried on is hostile. ....... 349
Neutral aliens, whether domiciled here or not, not having exercised any
of the franchises of citizenship, may withdraw. . . . 349
Aliens owning plantation in enemy's country cannot withdraw its pro
duce. ..." 349,350
Aliens, though neutral, if they do not withdraw, but remain subjects de
facto of a hostile government, their property is liable to be treated
as that of an alien enemy. 349-352
CONTENTS. XXV
Opinions of Sir William Scott and of the Supreme Court of the United
Sjtates on the subject of aliens 349
Eight of withdrawal of neutral aliens. . .... 349
Exceptions to the right of withdrawal 349
Belligerent rights, as against neutral aliens, following from the status of
the inhabitants of rebel States — as public enemies. . . 351
When citizens of the United States were declared by law public enemies. 351
Citizens of the United States and aliens in rebel States, who remained
subjects de facto of rebel government. ...... 351
Act of Confederate Congress declaring certain residents alien enemies. 351
Opinion of the Supreme Court as to public enemies 351
Enemy's property includes all property of the inhabitants of the rebel
lious States during the war. 352
Treaties with France. .......... 352
Declaration of war -against the United States by Confederate Congress. 352
Eight of withdrawal under treaties of commerce, etc 352
Aliens engaged in commerce, or those who come into the belligerent
country — when they become enemies. ..... 352
How aliens are affected by treaties of commerce. .... 352-354
Jurisdiction of courts of war and military government over aliens. . 353
Arrested and imprisoned aliens having given reasonable cause for belief
of their hostile purposes. ....... 354, 355
Indemnity of aliens arrested or imprisoned on suspicion of hostile in
tentions. 354, 355
Test questions on examination of claims, by the Departments. • 356, 357
Opinions of the Solicitor of the War Department 357-390
CONTENTS ADDED TO THE PEESENT EDITION.
Notes 390-512
Cases decided in the United States Courts 512-610
Letter of Chief Justice Chase to President Johnson 595
Eemarks of Chief Justice Chase, at Ealeigh 596
War powers under the Constitution used by the goverment in suppress
ing the rebellion, and recognized by the Judicial Department.
See Note 1. 390-392
Slavery — a sketch of the laws of Congress, the acts of the Executive,
and the Amendments of the Constitution by which slavery has been
terminated in the United States, and civil and political rights have
been guaranteed to all citizens without distinction of color, race,
or previous condition of servitude. Note 2 393-400
President Lincoln's Proclamations on the same subject. Note 2. 400-405
Slaves in the army. Policy of the government in regard to compensa
tion to slave-masters. Note 3 405, 406
Confiscation. The views of President Lincoln on this subject, and his
change of opinion. Note 4 407> 409
d
XXVI CONTENTS.
Laws of confiscation passed by the Confederates, and remarks on, show
ing their policy, and opinions as to the war powers under their
Constitution 409-423
Confederate act respecting alien enemies. ...... 409
Confederate sequestration act. . . . . . f . . .411
Confederate act in relation to property which was or might be liable to
sequestration as belonging to alien enemies. .... 417
A further act on the same subject. ....... 418
Remarks on these acts 424
Note on the constitutionality of our confiscation act. .... 425
On belligerents — " whether they should be allowed civil rights depends
on the policy of the government." Note 5. . . . . 425-427
On reconstruction, military and provisional governments, sketch of the
history of, during and since the rebellion, and of the most impor
tant acts of Congress relating thereto. Note 6. . . 427-451
Freedmen's Bureau act » . . . . 428
Act extending the same. ......... 430
Reconstruction act, "for the more efficient government of the rebel
States." 434
Supplemental act for the same purpose. ...... 436
Further supplemental act for the same purpose. ..... 439
The three classes of provisional governments. ..... 442
Sketch of facts which led to the passage of the reconstruction acts. . 442
What has been accomplished by them. 445
Act of Congress confirming the doings of military courts. . . . 446
Confederate laws establishing military courts. . . . 347, 449, 451
Confederate joint resolutions on retaliation. ...... 449
Confederate act to repress the importation of Confederate treasury notes
by the enemies of the Confederacy. ...... 449
Outline of the judicial history of the right of capture of enemy's proper
ty, as recognized by the courts of the United States, and the meas
ures of Congress on this subject. Note 7. . . . . 451-455
Note on the war powers used by the Confederates, and their interpreta
tion thereof 455-459
Confederate act recognizing war with the United States. . . 455-459
Legal effect of Confederate act recognizing war with the United States. 459
Note on the distinction between capture and prize. .... 459
Military commissions, as regarded by the Supreme Court, and by Con
gress. Note 8 460-463
Remarks on Milligan's case. . . . . . . . 460-463
The Emancipation Bureau. Correspondence with Hon. T. D. Eliot.
Note 9 464-466
Letter to Hon. E. B. Washburn, relating to claims against the govern
ment. Note 10 467
Correspondence with Hon. G. W. Julian, as to the true policy of the
government with reference to confiscated lands. Note 11. 469-478
CONTENTS. XXVli
Outline of the history of tjie laws of Congress for raising and organizing
our military forces, including the laws for introducing 'persons of
African descent into the volunteer service, and for equalizing their
pay with that of white soldiers. Note 12 478-511
The debates in Congress in relation to the same subject. . . 493-508
IKDEX. .611
CASES DECIDED IN THE U. S. COURTS
RELATING TO SUBJECTS DISCUSSED IN THIS WORK.
Rhode Island v. Massachusetts, 12 Peters, 651 530
Fleming v. Page, 9 Howard, 614 512
Cross v. Harrison, 16 Howard, 189 516
Jecker v. Montgomery, 18 Howard, 112. ...... 519
Dynes v. Hoover, 20 Howard, 79. . ' 520
Leitensdorfer v. Webb, 20 Howard, 177 522
Ex parte Vallandigham. ......... 524
Cherokee Nation v. Georgia, as stated in 6 Wallace, 73. ... 529
United States v. Moreno, 1 Wallace, 400 531
The Circassian, 2 Wallace, 150 531
The Venice, 2 Wallace, 274 532
Mrs. Alexander's Cotton, 2 Wallace, 417 532
Ex parte Milligan, 4 Wallace, 106 536
Ex parte Milligan (remarks on). ........ 460
Cummings v. Missouri, 4 Wallace, 316. ...... 556
Ex parte Garland, 4 Wallace, 374 565
Mississippi v. Johnson, 4 Wallace, 497. ...... 579
The Peterhoff, 5 Wallace, 60 582
The Gray Jacket, 5 Wallace, 369 582
The William Bagaley, 5 Wallace, 402 583
Mauran v. Insurance Company, 6 Wallace, 14. . . . . . 587
Georgia v. Stanton, 6 Wallace, 63. .. 588
Coolidge v. Guthrie. . . . 591
The Grapeshot, 7 Wallace, 563 598
State of Texas v. White, 7 Wallace, 702 598
The Grapeshot, 9 Wallace, 131 601
United States v. Anderson, 9 Wallace, 64 603
United States v. Keehler, 9 Wallace, 86. 607
Hickman v. Jones, 9 Wallace, 196 608
Bigelow v. Forrest, 9 Wallace, 339 610
See also Kees v. Tod, C. C. P., Ohio 216
Remarks of Chief Justice Chase. 595
XXV111 CONTENTS.
CASES IN THE WAK DEPAKTMENT.
No. 36. Harsbcrg and Steifel, April 20, 1863 358
55. J. W. Seaver, March 6, 1803 358
88. A. Kernahan 359
95. W. & C. K. Herrick, April 18, 1863 359
117. H. H. Thompson, April 24, 1863 360
195. Wy lie & Co., Liverpool, May 28, 1863 362
332. Mrs. Eugenia Bass 363
357. Captain Sherwin, July 1, 1863 365
361. French residents at New Orleans, December 5, 1863. . 364
362. Theodore Moreau, December 3, 1863 368
369. Simon Queyrouse, December 5, 1863. .... 369
467. Soldiers who had shot deserters, March 12, 1864. . . 375
410. As to non-enrolment of slaves in slave States not declared in
rebellion, December 31, 1863 371
433. Alienage 374
448. Alienage 374
487. W. W. Cones, October 1, 1864 . 378
518. Draft of Bill as to alien claims, April 18, 1864. . . .379
522. As to non-liability of navy agents to trial by courts martial,
April 22, 1864 380
531. Capture, May 4, 1864 381
535. Claim for restoration of captured cotton, August 5, 1864. . 382
707. Timothy Dowling (British), July 25, 1864 383
713. As to oath required of aliens, July 26, 1864 384
714. Roniain Dupre, July 28, 1864 384
723. As to General Banks's order respecting gold at New Orleans,
July 28, 1864 385
730. Benjamin Adams, July 26, 1864 386
731. Antoine Carre, December 12, 1864 387
935. George Cameron, November 11, 1864. .... 388
951. Cowen & Dickinson, December 12, 1864 389
1437. Tracy Irwin & Co 389
OFTH£
UNIVERSITY
SLAVERY
UNDER
THE CONSTITUTION
INTRODUCTORY CHAPTER.
THE CONSTITUTION.
THE Constitution of the United States was ordained
and established by the people, in order 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
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.
1
Z SLAVERY UNDER THE CONSTITUTION.
THE "PECULIAR INSTITUTION."
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 privi
leged class of persons who have been admitted into the
Union. They alone have the right to vote for what
they claim to hold as property, while in the free States
citizens vote only for themselves. The former are
allowed to count, as part of their representative num
bers, 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 endan
gered by the temporary toleration of this " institution,"
although it was inconsistent with the principles which
that instrument embodied, and revolting to the senti
ments cherished by a people who had issued to the
world the Declaration of Independence, and had fought
through the revolutionary war to vindicate and main
tain the rights of man.
UNEXPECTED GROWTH OF SLAVERY.
The system of involuntary servitude, which had
received, as it merited, the general condemnation of
SLAVERY UNDER THE CONSTITUTION. 3
leading southern and northern statesmen of this coun
try, who were most familiar with its evils, and of all
fair-minded persons throughout the world, seemed, at
the time wrhen 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, having
swept over and desolated the Southern States, now
threaten to destroy the free States of the North.
Hence we are called on to encounter dangers and
meet emergencies not anticipated by the founders of
our government.
SLAVERY ABOLISHED BY EUROPEAN NATIONS.
In other countries the scene has been reversed.
France, with unselfish patriotism, renounced 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 high
est 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 pecuniary means
for carrying that measure into effect ; and now
all the slaves have become freemen. Charles VIIL,
King of Denmark, celebrated the anniversary of
SLAVERY UNDER THE CONSTITUTION.
the birth of the Queen Dowager by abolishing
slavery in his dependencies, on the 28th of July,
1847. Within the present year (1862) the Emperor
of Russia has consummated the last and grandest act
of emancipation in modern times.* While Europe has
thus adopted and approved the leading principle of
our constitution, as founded on justice, and as essential
to public welfare, the United States have practically
repudiated and abandoned it. Europe, embarrassed by
conservative and monarchical institutions, accepts the
preamble to that instrument, as a just exposition of the
true objects for which governments should be estab
lished, and accordingly abolishes involuntary servitude,
while, in this country, slavery, having grown strong,
seeks by open rebellion to break up the Union, and
to destroy republican democracy.
SLAVERY IN 1862 NOT SLAVERY IN 1788.
However harmless African bondage may have been
in 1788, it is now believed that the slave-masters of
the present day, with few but honorable exceptions,
cannot, or will not conduct themselves 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. The wide-spread but secret conspiracies of
traitors in the slave States within the last thirty years,
their hatred of our government, and determination to
* Note to Tenth Edition. — To the above we may add that Mexico abolished slavery,
and prohibited it in all future time, by a law passed soon after her severance from
Spain, and that the Dutch West Indies have followed these examples, by emancipating-
slaves under laws which went into operation in July, 1863.
Note to Forty-third Edition. — The lirst edict for the gradual emancipation of slaves
in Cuba was passed by the Cortes of Spain, June 23, 1870, and was communicated to the
Captain General of Cuba, July 4, and proclaimed to all interested by Caballero de Rodas,
on the 28th of September, 1870.
SLAVERY UNDER THE CONSTITUTION. 5
destroy it, their abhorrence of republican or democratic
institutions, and their preference for an " oligarchy
with slavery for its corner stone," have now become
known to the people of the North. Their causeless re
bellion, 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, 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 privi
leged class must be abolished ; otherwise the union
may be broken, the government overthrown, and
constitutional liberty destroyed. 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 re
moved ; the perennial fountain of all our national
woes must be destroyed ; otherwise " it will be 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 involv
ing the whole country in ruin must be left in the hands
of a few irresponsible men, to be used at their discre
tion ? Must the blessing of peace and good govern
ment be dependent upon the sovereign will and pleas
ure of a handful of treasonable and unprincipled
* For a brief reference to the legislative acts and constitutional amendments by which
this result has been accomplished, see Notes to the Forty-third Edition, on " Slavery "
p. 393.
0 SLAVERY UNDER THE CONSTITUTION.
slave-masters? Has the constitution so chained and
manacled peaceful citizens that they cannot wrench
the murderous knife from an assassin's grasp, even
in self-defence ? If the destruction of slavery be
necessary to save the country from defeat, dis
grace, and ruin, and if the constitution, fairly inter
preted, guarantees the perpetuity of slavery, whether
the country is saved or lost, it is time that the
friends of the Union 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 pre
tensions of slavery, we must admit that the inter
ests 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 con
stitution, and the laws, like Laocoon and his sons, are
to be strangled and crushed, in order that the unre
lenting 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 PERMITTED.
It is true, that indirectly, and for the purpose of a more
equal distribution of direct taxes, the founders of our
SLAVERY UNDER THE CONSTITUTION. 7
government tolerated, while they condemned slavery ;
but they endured it because they believed that it would
soon disappear. They even refused to allow the char
ter of their own liberties to be polluted by the mention
of the word " slave." Having called the world to wit
ness their heroic and unselfish sacrifices for the vindica
tion of their own inalienable rights, they could not,
consistently with honor or self-respect, transmit to fu
ture ages the evidence that some of them had trampled
upon the inalienable rights of others.
RECOGNITION OF SLAVERY NOT INCONSISTENT WITH THE PERPE
TUITY OF THE REPUBLIC.
Though slavery was thus tolerated by being ignored,
it would dishonor the memory of those who organized
our government to suppose that they did not intend to
bestow upon it the power to maintain its own authority
and the right to overthrow slavery, or any other insti
tution which might endanger its permanence, or destroy
its usefulness. We should discredit the good sense of
our forefathers, who established a free republic, created
by and for themselves, by denying that they conferred
upon it the right, the duty, and the power of self-defence.
For self-defence by the government is only maintain
ing, through the people's agents, the right of the peo
ple 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
lands, burn bridges, break up railroads, sink ships,
blockade harbors, destroy commerce, capture, im
prison, wound, or kill citizens; to seize, appro-
SLAVERY UNDER THE CONSTITUTION.
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
stroy, 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 respecting 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 construe-
SLAVERY UNDER THE CONSTITUTION. 9
tion, not appreciating the spirit in which it was framed,
have kept to the letter of the text, and seemed unable
to regard it as only a frame of government, a plan in
outline for regulating the affairs of an enterprising and
progressive nation. They have supposed it incapable
of adaptation to our changing conditions, as if it were a
form of clay, which the slightest jar would shatter ; or
an iron chain, girdling a living tree, which could have
no further growth unless by bursting its rigid ligature.
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 na
tion, like a distant planet in the solar system, may
sweep round a wide and splendid orbit, but it will not
pass beyond the reach of its central light. The sun
shine of constitutional law will illumine its pathway in
all its changing revolutions. We have not yet ap
proached the " dead point " where the mould must be
shattered, the chain broken, the tree girdled, or the
sun shed darkness instead of light. By a liberal con
struction 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
2
10 SLAVERY UNDER THE CONSTITUTION.
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 amend
ments, 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
SLAVERY UNDER THE CONSTITUTION. 11
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 unlirnber and
run them out the port-holes, to fetch up the hot shot,
to light the match, and 'hang out our banners 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
* " The members of the American family," says the Supreme Court in the case of Rhode
Island v. Massachusetts, " possess ample means of defence under the Constitution, which
we hope ages to come will verify."
12 SLAVERY UNDER THE CONSTITUTION.
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 destroy
ing rights solemnly guaranteed by the constitution
we are defending? If so, the next question will
be, whether the law of self-defence and overwhelm
ing 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 reestab
lishing the Union, and enforcing the laws over all the
land, the results of victory can 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 supe
riority over the citizens of free States, which, as the
only privileged class, they have hitherto enjoyed ?
Have they who are now engaged in this rebellion, and
have committed treason and other high crimes against
the republic, a protection against punishment for these
offences, by reason of any rights, privileges, or immu
nities guaranteed to peaceful citizens by the constitu-
STATEMENT OF LEADING QUESTIONS. 13
tion ? Cannot government, the people's agent, wage
genuine and effectual war against the people's enemy ?
Must the soldier of the Union, when in action, keep one
eye upon his rifle, and the other upon the constitutional
rights of rebels ? Is the power to make war, when
once lawfully brought into action, to be controlled,
baffled, and emasculated by any obligation to guard or
respect rights set up by or for belligerent traitors ?
THE LEADING QUESTIONS STATED.
What limit, if any, is prescribed to the war-making
power of the President, as Command er-in-Chief of the
Army and Navy of the United States ? What are the
rights of our government over the private property and
persons of loyal citizens in time of civil war ? What
authority has Congress to frame laws interfering with
the ordinary civil or political rights of peaceable citi
zens residing in the rebel States ; or laws for the pun
ishment or control of public enemies, who may be cap
tured as spies, as pirates, as guerrillas, as aiders and
comforters of armed traitors, or as Confederate soldiers
on the battle-field ? What are the powers of the Pres
ident or of Congress in relation to the conquest and
government of the inhabitants of belligerent districts of
country ? What laws may be established as to slaves
captured or escaping into the lines of our armies, or
into the free States; or as to slaves belonging to rebels,
and used by them in their military service ? Are slaves
contraband of war ? May they be released from all
obligation to serve rebel masters ? May slavery be
destroyed as a military measure, or abolished by a legis
lative act, required by the public welfare and common
defence, in time of civil war ? In what department of
14 STATEMENT OF LEADING QUESTIONS.
government is the power vested by the constitution to
abolish or destroy slavery ? Is there any limit to the
power of Congress to provide for the punishment of
treason ? What are the rights and liabilities of traitors ?
What are the war powers of the President, and the
legislative powers of Congress in relation to rebellion,
treason, and slavery ? These and similar inquiries are
frequently made among the plain people ; and it is for
the purpose of explaining some of the doctrines of law
applicable to them, thai the following suggestions have
been prepared.
PUBLIC USE OF PRIVATE PROPERTY. 15
CHAPTER I.
THE CONSTITUTIONAL RIGHT OF THE GOVERNMENT TO AP
PROPRIATE PRIVATE PROPERTY TO PUBLIC USE.
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 alle
giance, whenever justified by public necessity. Each of
the States claims and exercises a similar right over the
property of its own citizens.
THIS 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 au
thority, and even to their existence. The construction
of military defences, such as forts, arsenals, roads,
bridges or canals, however important for the protection
of a country in time of war, might be prevented by
private interests, if the property of individuals could
not be lawfully taken for public use. Internal improve
ments in time of peace, however beneficial to the pub
lic, 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 necessities require. And as it is the govern
ment which protects all citizens in their rights to life,
liberty, and property, they are deemed to hold their
property subject to the claim of the supreme protector
16 PUBLIC USE OF PRIVATE PROPERTY.
to take it from them when demanded by " public wel
fare." It is under this quasi sovereign power that the
State of Massachusetts seizes b j 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 that commonwealth to be
as valid, and as constitutional, as if purchased and con
veyed by deed, under the hand and seal of the owner.
INDEMNITY IS REQUIRED.
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 that
private property shall not be taken for public use with
out just compensation.* Similar provisions are found
in the constitutions of Massachusetts and of several
other States, The language of this amendment admits
the authority of the government to take private prop
erty for public use, and, being now a part of the con
stitution, leaves that authority no longer open to ques
tion, if it ever has been questioned.
* See Amendment, Art. V., last clause.
PUBLIC USE OF PRIVATE PROPERTY. 17
%
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 pri
vate 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 inter
ests, is " public user 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, 01
destroyed. And destruction of private property may be
the best public use it can be put to.
3
18 PUBLIC .USE OF PRIVATE PROPERTY.
Suppose a bridge, owned by a private corporation,
to be so located as to endanger our forts upon the
banks of a river. To demolish that bridge for mili
tary purposes, would be to appropriate it to pub
lic use. To raze private buildings in a city, for
the purpose of preventing a general conflagration,
would be to apply them to public use. To de
stroy arms, or other munitions of war, belonging
to private persons, in order to prevent their fall
ing into possession of the enemy, would be to
devote them to public use. Congress has power,
within certain limits, 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, in
a case of public necessity, 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 for that purpose ; and whatever is done with it is
a public use thereof, and entitles the owner to just com
pensation.
ALL KINDS OF PROPERTY, INCLUDING SLAVES, MAY BE SO APPRO
PRIATED.*
There is no restriction as to the kind or character
of private property which may be lawfully thus appro
priated, whether it be real estate, personal estate, rights
in action or in possession, claims 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,
* See the resolutions and the amendments of the constitution proposed by Congress
on the subject of slavery a short time before this essay was written. Note, p. 132. See
also Note to the Forty-third Edition, on " Slavery," p. 393.
PUBLIC USE OF PRIVATE PROPERTY. 19
may lawfully be taken for public use, or discharged
and destroyed, for public benefit, by authority of an act
of Congress, with the proviso that just compensation
shall be allowed to the parent or master. Our gov
ernment, by treaty, discharged the claims of its own
citizens against France, and thus applied their private
property to public use. At a later date the United
States discharged the claims of certain slave own
ers 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
20 PUBLIC USE OF PRIVATE PROPERTY.
were equally with them citizens and subjects of this
government ; would any one doubt that Congress
could authorize it 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
* See Note to Forty-third Edition, p. 478, on " Laws for raising and organizing Military
Forces." Since the publication of the fourth edition Congress has passed the act of
March 3, 1803, and the act of February 24, 1804, which provides for the. enrolment of col
ored men and slaves. See also Kneedlcr v. Lane, 9 Wright, 228.
PUBLIC USE OF PRIVATE PROPERTY. 21
portion of the able-bodied men would thus be exempt,
and the Constitution and laws of the land 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 over
throw the claims of the country to the services of any
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
* 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. March 10,
1802, was forbidden to enlist him without the master's consent. Commonwealth v. Rob
inson, 1 S. & 11. 353; Commonwealth v. Harris, 7 Pa. L. J. 283.
Note to Forty-third Edition. — This question, as it regards slaves, has been decided by
the act of February 24, 1864. See the Note on « Slavery," p. 393; also Index, title " In
demnity;" also the Note on " Compensation to Slave Masters for Slaves enlisted into
Military Service," p. 405; also " Solicitor's Opinions," Records of the War Department,
March 5 and 10, May 20, and July 30, 1864.
22 PUBLIC USE OF PRIVATE PROPERTY.
claims of any private person upon such subjects, and that the
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 pub
lic defence, such abolishment is an appropriation of private
property for public use, ivithin 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 QUES
TION OF INDEMNITY TO SLAVE-MASTERS.
A further question may arise as to the application
of the " compensation " clause above referred to. That
Congress has authority to pass naturalization laws, by
Art. I, Sect. 8, has never been doubted. The only
question is, whether it is not exclusive.* Statutes may
thus be passed which would give the privileges of citi
zenship to any person whatsoever, black or white.
* See Chirac v. Chirac, 2 Wheat. l>09; United States v. Villato, 2 Dall. 372; TJiirlow v.
Mass., 5 How. 5F5; Smith v. Turner, 7 ib. 550 ; Golden v. Prince, 3 W. C. C. Reports, 314.
PUBLIC USE OF PRIVATE PROPERTY.
Colored men, having been citizens in some of the States
ever since they were founded, and having acted as such
prior to 1788, in various civil and military capacities,
are deemed by eminent jurists citizens of the United
States.* Under our present laws, according to the
opinion of the attorney-general of Massachusetts, col
ored men are equally with white men required to be
enrolled in the militia of the United States,f 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. J 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, § &%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 over
whelming necessity, could be required by the constitu
tion to recognize the private relations in which the
soldier might stand, by local laws, to persons setting up
claims against him ? If white subjects or citizens owe
labor and service, even by formal indentures, such
* See the 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,
t See Stat. United States, July 17, 1862. But see Note, p. 478.
t 8 Gray's R. 615. § See Act approved February L>4, 1864.
2 I'CJBLIC USE OF PRIVATE PROPERTY.
obligations afford no valid excuse against the requisition
of government to have them drafted into the militia to
serve the country. No compensation should be allowed
to 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 arid
service) has to run, or the evidence by which the existence
of the obligation is proved, can make an essential differ
ence 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 ;f 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
in war, without exercising the right to take for public
* Note to Forty-third Edition. — This question has been settled by the action of all the
departments of our government,
t Amendments, Art. V., last clause.
PUBLIC USE OF PRIVATE PROPERTY. 25
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 TO THE CONSTITUTION, SHOWING THE WAR POWERS
OF CONGRESS.
The preamble to the Constitution declares the objects
for which it was framed, in the following words: —
" We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity, pro
vide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America."
The war powers of the legislative department are set
forth chiefly in Art. I. Sect. 8 of the Constitution, which
provides that —
" The Congress shall have power, —
I. " To lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the common defence and general wel
fare of the United States ; but all duties, imposts and excises shall
be uniform throughout the United States."
II. " To declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water."
12. " To raise and support armies ; but no appropriation of
money to that use shall be for a longer term than two years."
13. " To provide and maintain a navy."
14. " To make rules for the government and regulation of the
land and naval forces."
15. " To provide for calling forth the militia to execute the
laws of the Union, suppress insurrections and repel invasions."
16. " To provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed
in the service of the United States, reserving to the States respec-
4
26 PUBLIC USE OF PRIVATE PROPERTY.
tively, the appointment of the officers, and the authority of train
ing the militia according to the discipline prescribed by Con
gress."
18. " 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."
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 appren
tices or slaves should be cancelled or abrogated, against
their consent, and if a general law carrying into execu
tion such abrogation, is, in the judgment of Congress,
" a necessary and proper measure for accomplishing
that object," there can be no .question of the constitu
tional power and right of Congress to pass such a law.*
The only doubt is in relation to the right to compensa
tion. If it should be urged that to release slaves from
their servitude would be, in effect, to impair or destroy
the obligation of contracts, it may be replied that
though states have no right to pass laws impairing the
obligation of contracts, Congress is at liberty to pass
such laws. The right to abrogate and cancel the obli
gations of apprentices and slaves does not rest solely
upon the power of Congress to appropriate private
property to public use ; but it necessarily results from
its obligation to use the proper means to accomplish
one of the chief objects for which the Union was formed,
namely, to provide for the common defence and general
welfare of the United States in time of war.f
* Note to Forty-third Edition.— This principle was sanctioned and acted upon by
the Confederate Congress in their Stat. February 17, 1864, Chap. 79, which authorized the
seizure and impressment into their army of free negroes and slaves.
t See Note on " Compensation to Slave-masters," p. 405.
PUBLIC USE OF PRIVATE PROPERTY. 27
IMPORTANCE AND DANGER OF THESE POWERS.
The powers conveyed in the 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 discretion
ary. They are more than imperial. But it was in
tended by the framers of the constitution, or, what is
of more importance, by the people who made and adopt
ed it, that the powers of government in dealing with
civil rights in time of peace, should be defined and lim
ited ; but the powers u to provide for the general ivelfare
and the common defence " in time of war, should be un
limited. 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 repre
sentatives 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 regu
late the conduct of the army and navy in service ; or
to point out 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 rea
son 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 a right 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
and on the water. If slaves are captured, and are treated
PUBLIC USE OF PRIVATE PROPERTY.
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 its constitutional authority to pass laws for
that purpose.-)-
If such laws are deemed to take private prop
erty 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 constitu
tion contains no clause or sentence prohibiting the exercise ~by
Congress of the plenary power of abrogating involuntary servi
tude. 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 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 ; but shall be
delivered up on claim of the party to whom such ser
vice or labor may be due." Thus, if a slave or appren-
* Constitution, Art. I. Sect. 8, Cl. 11.
t Note to Forty-third Edition. — This has been done by a series of acts, and consum
mated by constitutional amendments. See Note on " Slavery," p. 393.
PUBLIC USE OF PRIVATE PROPERTY
29
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 restric
tion 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 Mongs to the United States,
unless expressly prohibited, if it is embraced within
the scope of powers necessary to the safety and pres
ervation 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/11 Neither clause has
any application to citizens or persons who are not
fugitives. And it would be a singular species of rea
soning to conclude that, because the constitution pre
scribed certain rules of conduct towards persons escaping
from one State into another, therefore there is no power
to make rules relating to other persons ivtio 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.
30 PUBLIC USE OF PRIVATE PROPERTY.
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 afl
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 consti
tution restraining State legislation could apply. This
clause, relating to fugitive slaves, has often been misun
derstood, 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 instru
ment a proviso that Congress should pass no law pro
hibiting 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 de~-
sign 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. T. Sect. 9.
01
PUBLIC USE OF PRIVATE PROPERTY.
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 has
* 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,
which is the sole and exclusive judge as to the occa
sions when it shall be exercised, and from that judg
ment there is no appeal. The right to "just compen
sation " for private property so appropriated will depend
upon the circumstances under which it is taken, and
the 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.
* Note to Forty-third Edition. — See Solicitor's Opinions, illustrative of the manner in
which these principles were applied by the War Department during the rebellion
(pp. 357-390.) See also Note on " Slaves in the Army," p. 405.
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 execu
tion 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 Com
mander-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 insur
rections, and repel invasions."
As the President is, within the sense of Art. I., Sect. 8, clause IS, " an
officer of government ;" and by virtue of Art. II., Sect. 2, clause I, he is
Commander-in-cliief 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. /.,
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 exe
cution " 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 destruc
tion in time of war.
(33)
34 WAR POWERS OF CONGRESS.
CHAPTER II.
WAll POWERS OF CONGRESS.*
CONGRESS has power to frame statutes not only for the
punishment of crimes, but also for the purpose of aid
ing the President, as command er-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 car
rying into execution all the powers granted to the gov
ernment 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 Con
gress, see ante, pp. 25, 20.
WAR POWERS OF CONGRESS. 35
are indispensably necessary, there can be neither sense nor utility in
adding the word l 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 sup
port 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." f
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 pow
ers, 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 01
* 3 Story's Commentaries, Sect. 122. t Federalist, No. 23, pp. 95, 96.
36 WAR POWERS OF CONGRESS.
implied powers. The Articles of Confederation gave nothing to the
United States but what was expressly granted ; but the new constitu
tion dropped the word expressly, and left the question whether a par
ticular 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 impor
tant objects designated, and all the minor ingredients left to be de
duced 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 gov
ernment 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 exer
cise by withholding a choice of means. The powers given to the
government imply the ordinary means of execution ; and the govern
ment, 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 necesssary 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 calcu
lated to produce the end. The word necessary admits of all degress
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 legit
imate, and within the scope of the constitution, all means which are
appropriate, and plainly adapted to this end, and which are not pro
hibited by the constitution, are lawful." *
Guided by these principles of interpretation, it is
obvious that if the confiscation of property, or the liber
ation 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 govern
ment, a broad distinction is to be observed between
confiscation or emancipation laws, passed in time of
peace, for the punishment of crime, arid 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 en
acted under the war powers of Congress, we must deter
mine, in order to test their validity, whether, in suppress
ing a rebellion of colossal proportions, the United States
are, within the meaning of the constitution, at ivar with its
* 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 WAR POWERS OF CONGRESS.
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 re
bellion; 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 any of the modes
above mentioned, without a declaration of war by either
of the hostile parties. Congress has the sole power.
* Note to the Forty-third Edition. — See Twiss on the Law of Nations, pp. C5-G9; and
cases decided by the Supreme Court of the United States since the issue of the tenth edi
tion. Appendix, pp. 512-610.
AVAR POWERS OF CONGRESS. 39
under the constitution, to make that declaration, and
to sanction or authorize the commencement of offensive
war. The United States would ordinarily begin hos
tilities against a foreign nation by a public proclama
tion, which would be 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, the author
ity which may authorize, and the declarations which
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 do
mestic. 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 com-
mander-in-chief could not call out his forces to repel
an invasion unless the Legislative department had pre
viously made a formal declaration of war, a foreign
enemy, during a recess of Congress, might send out its
armed cruisers to sweep our commerce from the seas, or
it might cross our borders and inarch, unopposed, from
Canada to the Gulf before a majority of our Repre
sentatives could be convened to make that declaration.
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
* See opinion of the Supreme Court of the United States on this subject, pronounced
since the fourth edition of this work was published. Notes on the War Powers, p. HI.
40 WAR POWERS OF CONGRESS.
to declare war, whenever war is initiated by the United
States, also makes it the duty of the President, as com
mand er-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. Noth
ing is clearer than this, that when such a state of hos
tilities exists as justifies the President in calling the
army into actual service, without the authority of Con
gress, no declaration of war is requisite, either in form or
substance, for any purpose whatsoever. Hence it fol
lows, that government, while engaged in suppressing a
rebellion, is not deprived of the rights of a belligerent
agaimt rebels, by reason of the fact that no formal decla
ration of war has been made against them, as though
they were an alien enemy, — nor by reason of the cir
cumstance that this £reat civil wrar originated, so far as
O O '
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 suita
ble 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-
* Sec 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 rebel
lion places the country in the attitude of making war
on rebels, nor that the commander-in-chief has the con
stitutional right of conducting his military operations
as he might do if he were actually at war (in the ordi
nary sense of the term) against an alien enemy. Mis
apprehension 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, confisca
tion, 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 it; they concede
that rebels may be taken captive, their gunboats may
be sunk, and their property may be seized ; that mar
tial 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. Air these men in arms are not,
they fancy, " maldng war" When the citizens of Charles
ton bombarded Fort Su inter, and captured property
exclusively owned by the United States, it is not
* Reference is here made to the Session of 1SG1-2.
42 WAR POWERS OF CONGRESS.
denied that the enemy were waging war against the
Union. When Major Anderson returned their fire and
attempted to defend the fort and its guns from capture,
it is denied that the Union was waging war against
the enemy. While other nations, as well as our own,
have formally or informally conceded to the rebels the
character and the rights usually allowed to belliger
ents, that is, to persons making war on us, we, accord
ing to the technical scruple above stated, are not enti
tled to the rights of belligerents against them. It
therefore becomes important to define the meaning of
the term " levying war." As the military forces of this
country are now in actual service to suppress rebellion,
is such military service " making war " upon the rebels ?
And if war actually exists, is there anything in the
constitution that limits or controls the full enjoyment
and exercise by the government of the rights of a
belligerent against the insurgents ?
IS SUPPRESSING REBELLION BY ARMS MAKING WAR ON CITIZENS OF
THE UNITED STATES ?
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 ac
tive service against a public enemy. When rebels,
having organized themselves in armies, in large num
bers, overthrow their lawful governments, invade the
territory of States not consenting thereto, attack our
citizens and soldiers, seize and confiscate the prop
erty not of our government only, but of all persons
who continue loyal, such proceedings constitute a civil
war in all its terrors, a war of subjugation and of con
quest, as well as of rebellion. Operations less bloody
WAR POWERS OF CONGRESS. 43
and less revolutionary than there are held to constitute
the levying of war, as those terms are explained in the
language of the constitution. War is levied against
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 op
pose 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 de
clares them to have levied ivar. 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 constitu
tion) 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 in
habitants of a section of this country have issued a mani
festo claiming independence ; they have commenced
hostilities 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 govern
ment and people, and have killed, captured, and im
prisoned soldiers and private citizens. Of the million of
44 WAR POWERS OF CONGRESS.
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 fol
low from a state of war, in addition to those which are de
rived from the fact that the rebels are also subjects.
KEBELS 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:11 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.f 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. Foiissatt, 3 Binney, 252.
In Dobrie v. Napier, 3 Scott E, 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 laivful prize for running the blockade. The cases
* Note to the Forty-third Edition. — See Mauran v. Insurance Company, 0 Wallace, 14,.
and other cases recently decided by the Supreme Court ; also Note ou " The Right of Cap
ture of Enemy's Property," p. 451. f Sec Note A, p. 215.
WAR POWERS OF CONGRESS. 45
of the jSantisima 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 belliger
ent 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 har
bors 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
* Note to the Forty-third Edition. — See cases decided in the Supreme Court, printed in
the Appendix. See Note A, p. 215. Also, T/is Severe, 24 Law Rep. 270; Amy Warwick, Ib.
335-394 ; Tlie Brilliant, 1 1 Am. Law Rep. 334 ; S. C. 2 Black. 035 ; Cole v. Mer. Mut. Ins. Co.
13 Am. Law Reg. 27; Hiawatha, IS Leg. Int. 232; The F. W. Johnson, Ib. 334; also, Note on
the " Right of Capture," p. 451.
46 WAR POWERS OF CONGRESS.
defines a rebel who commits treason as one who u levies
war " on the United States ; and the laws punish this
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 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
* Note to Forty-third Edition. — See U. S. v. Moreno, 1 Wallace, 400. Appendix, p. 531
WAR POWERS OF CONGRESS. 47
home such men and women as they should select, and,
if these privileges should be put in practice, England
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 do
mestic 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 in
ternational 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 cit
izens, 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.
NIV
48 WAR POWERS OF CONGRESS.
BELLIGERENT RIGHTS OF THE GOVERNMENT.
Congress has power to make laws authorizing the
capture of the property of public enemies on land and
water; the confiscation of their real and personal es
tate ; and the military government of the inhabitants
of conquered territory.* 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."}- Cap
ture passes the title. This is familiar law as adminis
tered in the courts of Europe and America, J
BELLIGERENT RIGHTS CONFIRMED BY THE CONSTITUTION.
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
* Sec Stat. 1801, chap. CO. Also the case of Armstrong's Foundry, 6 Wallace, 769;
United States v. Republican Banner Office, 11 Pitts, Leg. Jour. 153.
t Sec Note to Forty-third Edition, p. 459. — This distinction between prize and capture
has been recognized ( 1805) by the Supreme Court. See The. Peterhoff, p. 582. In The Battle
6 \Arallace, 49S, the court say (1807), " Capture as prize of war jure belli overrides all pre
vious liens." See also Coolidye v. Guthrie, p. 591.
J 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
in violation of the constitution, which declares that no
man shall be deprived of life, liberty, or property with
out 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 JNTOT 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 constitu
tionally, because it might deprive a rebel foe of his life
without due process of law — firing guns not being
deemed " due process of law."
Sect. 4 of Art. IY. 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 in
vasion ; 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. t Ibid. Art- v-
t Ibid. Art. IV. § Ibid. Art. I. II Ibid. Art. II.
50 WAR POWERS OF CONGRESS.
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 com-
mander-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 gun
boats ; 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 amend
ments 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.
CIVIL RIGHTS OF LOYAL CITIZENS IN LOYAL DISTRICTS ARE MODI
FIED 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.
52 WAR POWERS OF CONGRESS.
If freedom of speech cannot be suppressed, spies can
not 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, with
out 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 laivs are silent.1'
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 pro
tection from its enemies, domestic and foreign, from
spies, from conspirators, and from traitors.* The sov
ereign and almost dictatorial military powers, existing
only in actual war, ending when war ends, to be used
in self-defence, and to be laid down w7hen no longer
necessary, are, while they last, as lawful, as constitu-
I tional, as sacred, as the administration of justice by
^judicial courts in time of peace. They may be dan
gerous; war itself is dangerous; but danger does not
make them unconstitutional If the commander-in-chief
orders his soldiers to seize the arms and ammunition of
* " Among absolute international rights, one of the most essential and important, and
that which lies at the root of all the rest, is the right of self-preservation. It is not only
a right in respect to other States, but it is a duty in respect to its own members, and the
most solemn and important which a State owes to them."— Wheaton, pp. 115, 110.
WAR POWERS OF CONGRESS. 53
the rebels ; to capture their persons ; to shell out their
batteries ; to hang spies or shoot deserters ; to destroy
insurgents waging open battle ; to send traitors to
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 evi
dence of their having aided or abetted the rebels, or of
intending so to do, the pretension that he thereby
violates 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 wage war, when lawfully declared
or recognized, against the public enemy of his country.
The restraints to which he is subject, when in war, are
not found in municipal regulations, which can be ad
ministered only in peace, but in the laws and usages
of nations regulating the conduct 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 then 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-
* See Note to Forty-third Edition, p. 425, and Index, title " Civil UigUts."
54 WAR POWERS OF CONGRESS.
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 CAPTURE AND 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.
Hi., ch. 8, sect. 188; lib. iii., ch. 9, sect. 161; Smith v.
Mansfield, Cranch, 306-7; Cooper v. Telfair, 4 Dallas;
Brotvn v. U. £, 8 Cranch, 110, 228, 229.
WAR POWERS OF CONGRESS. 55
The following extract is from 1 Kent's Com., p. 59 : —
"But however strong the current of authority in favor of the mod-
•erri and milder construction of tfie 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 posses
sion 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 considera
tion 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
56 WAR POWERS OF CONGRESS.
government has a right, as a belligerent power, to cap
ture 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 judi
cial condemnation of enemy property be sought, in
order to pass the title to it by formal decree of courts,
by mere seizure, arid 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 per
sonal 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.
A SEVERE RULE OF BELLIGERENT LAW.
" Property of persons residing in the enemy's country
is deemed, in law, hostile, and suoject to condemnation
without any evidence as to the opinions or predilections
of the owner." If he is the subject of a neutral, or a
citizen of one of the belligerent States, and has ex
pressed no disloyal sentiments towards his country,
WAR POWERS OF CONGRESS. 57
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
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 government 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.f
" 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-
* The Venus, 8 Cranch Rep.; The Hoop, 1 Robinson, 196, and cases there cited. TJie
Amy Warwick, opinion of Judge Sprague.
f Sec Notes to Forty- third Edition, title " War Powers," pp. 390-392; and cases in the
Appendix.
8
58 WAR POWERS OF CONGRESS.
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."
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 compensa
tion. This is an act of grace, which, though not re
quired by the laws of war, may well be granted. The
commander-in-chief may also grant the same indul
gence. But the military commanders are always at
liberty to seize, in an enemy's country, whatever prop
erty 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 pro
tecting 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 be
cause law or constitution renders 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.
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
* Sec Note to Forty-third Edition, title "Capture," p. 451; "Slaves in the Army,"
p. 105.
WAR POWERS OF CONGRESS. 59
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 coun
tries, 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 bel
ligerents.
•It will be observed that the question as to the belli-
gerent 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 sov
ereign, 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 per
sonal 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 inter-
* United States v. Juan Richmond, 7 Peters, 51.
60 WAR POWERS OF CONGRESS.
fered with. The forbearance of a conqueror from con
fiscating 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 perma
nent addition to the power and territory of the con
queror. This object would be defeated by stripping
his subjects of every thing. The case is very differ
ent 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
of real estate in either of the United States or territo
ries 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 be
tween 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 lia
bility. 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.
WAR POWERS OF CONGRESS. 61
In Broivn 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," &o.
Chancellor Kent says, —
" When war is duly declared, it is not merely a war between, tnis
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." *
* 1 Kent's Com., p. 55. Sec also Grotius, B. III. ch. 3, sect. 9; cb. 4, sect. 8. Burlama-
qui, Part IV. ch. 4, sect. 20. Vattcl, B. III. ch. 5, sect. 70.
62 WAR POWERS OF CONGRESS.
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 .f
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
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 tones
in the time of the revolution were to the colonists.J
MILITARY GOVERNMENT UNDER MARTIAL LAW.
In addition to the right of confiscating the 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 main
taining military government over it, thereby suspend
ing in part, or in the whole, the ordinary civil adminis
tration. The exercise of this right has been sanctioned
by the decision of the Supreme Court of the United
t See page 59.
\ In confirmation of those views of the War Powers of Congress, sec the chapter on
the War Powers of the President, and Notes thereon.
WAR POWERS OF CONGRESS. 63
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 con
quered 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 clue — none to restrain lawlessness,
none to secure to any persons any civil rights what
ever. Hence, from the necessity of the case, the con
queror has power to establish a quasi military civil ad
ministration 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.f
It is under this power of holding and establish
ing military rule over conquered territory, that all
provisional governments are instituted by conquer
ors. The President, as commander-in-chief, has for
mally appointed Andrew Johnson governor of Ten
nessee, with all the powers, duties, and functions per
taining to that office, during the pleasure of the Presi
dent, or until the loyal inhabitants of that State shall
organize a civil government in accordance with the con
stitution 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 gen
eral, and his nomination wras confirmed by the Senate,
Mr. Stanley acts as provisional military governor of North
Carolina, under similar authority .J All acts of military
government which are within the scope of their author-
* Cross v. Harrison, 10 How. 1G4-190.
t See Fleming v. Page, 9 How. 015. Leitensdorfer v. Webb, 20 How. 177. As to Cal
ifornia, see Stat. at Large, vol. ix. p. 452. New Mexico, Stat. at Large, ibid. 440. Hal-
leek on International Law, 781. Story on Const., Sec. 1324. Am. Ins. Co. v. Canter,
1 Pet, S. C. R. 542, 543.
J When this essay was first published (18C2), Mr. Stanley and Mr. Johnson were in office.
64 WAR POWERS OF CONGRESS.
ity, arc as legal and constitutional as any other military
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 govern
ment, and the rights of citizens in those districts are
subject to martial law, so long as the war lasts. What
ever 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 mar
tial law, because martial law, when in force, is constitu
tional laiv. The people of the United States, through
their lawfully chosen commancler-in-chief, have the con
stitutional right to seize and hold the territory of a bel
ligerent 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 de
barred 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
WAR POWERS OF CONGRESS. 65
together ; the Laws of peace and of war cannot operate
together ; the rights and procedures of peaceful times
are incompatible with those of war. It is an ob\ious but
pernicious error to suppose that in a state of ivar, the
rules of martial law, and the consequent modification
of the rights, duties, and obligations of citizens, pri
vate and public, are not authorised 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.-)-
* Constitution, Art. IV. Sect. 4, Cl. 1.
t Note to Fort u -third Edition. — Since the issue of the tenth edition of this book, in
18G4, Congress has sanctioned and actually used the powers claimed on pages 62-65 as
rightfully belonging to it, by passing the Freedman's Bureau Act, March 3, 1865, and
the Reconstruction Acts, March 2, 1807, June 22, 186S (chap. 60), June 2o, 1868 (chap. 70);
and the Supreme Court has decided the case of Georgia v. Stanton. See Notes on. these
subjects.
9
66 LIBERATION OF SLAVES.
CHAPTER III.
WAR POWER OF THE PRESIDENT TO EMANCIPATE S1AVES.
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 belli
gerent section of the country, if such a measure be
comes necessary to save the government from destruc.
tion, 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 strength
ening 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 prose
cuting war, as employees upon military works, or as
laborers furnishing by their industry the means of car
rying 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
reocfs either as belligerents or as subjects, and to subject them to the severities of inter
national belligerent law.
WAR POWER OF THE PRESIDENT. 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 ttie 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 Su
preme Court, in Martin v. Mott, 12 Wheatou, 19.
68 LIBERATION OF SLAVES.
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 concur
rent 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 abolish
ing 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 civil
ized 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 Dun-
more, 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 con
vince 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 horses 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 Corn-
wallis's hands, that year, about thirty thousand slaves."
70 LIBERATION OF SLAVES.
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 indem
nity 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 effectf 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.
f "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 seas.,
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 ex
plained 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 lead
ing statesmen of England and America have concurred
in the opinion that emancipation is a belligerent right.
St. Domingo, in 1793, contained more than five hun
dred thousand negroes, with many mulattoes and
whites, and was held as a province of France. Intes
tine commotions had raged for nearly three years be
tween the whites and mulattoes, in which the negroes
had remained neutral. The Spaniards having ef
fected an alliance with the slaves who had revolted
in 1791, invaded the island and occupied several im
portant 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, scepostea.
72 LIBERATION OF SLAVES.
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 Conven
tion 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 pf that govern
ment, 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-
WAR POWER OF THE PRESIDENT. 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 rees
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 Clioix de Rapports — Opinions et Dis-
cours prononces a la Tribune Nationale depuis 1789. Paris, 1821, t. xiv. p. 425. See
Abolition d'Esclavage (Colonies Francaises),par Augustin Cochin. Paris, 1861. Vol. i.
pp. 14, 15, &c.
10
74 LIBERATION OF SLAVES.
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,
Genera] 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 remon
strated. 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 Con
gress, 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 admin
istration sanctioned the contract, and Mr. Tyler's administration ap
proved 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. Pa
checo 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 be
came 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 opin
ion 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 slave?
76 LIBERATION OF SLAVES.
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 ap*
proved 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 chil
dren 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 be
came free.' " *
On the 26th of May, 1836, in a debate in the House of
Eepresentatives 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 re
stricted 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 prop
erty, 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 peacq 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 author
ity 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 LIBERATION OF SLAVES.
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 inter
ference with the institution of slavery in the States. By the treaty
of peace, Great Britian stipulated to evacuate all the forts and places
in the United States, without carrying away any slaves. If the gov
ernment 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 com
manders ; 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 trans
actions 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 viola
tion 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 ? TV
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 con
stitutional authority to interfere with the institution of slavery, in any
way, in the States of this confederacy? Sir, they must and will in
terfere 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 in
terference 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 Representa
tives, April 14th and 15th, 1842, on war with Great
Britain and Mexico have been reported "as follows :
" 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 man
agement of the States more peculiarly interested in it, just as long as
they can keep within their own bounds. So far, I admit that Con
gress 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 LIBERATION OF SLAVES.
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
WAR POWER OF THE PRESIDENT. 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 con
viction 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 su per
il
82 LIBERATION OF SLAVES.
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, by the law and usage of
modern civilized nations, by the judgment of eminent
statesmen, and by the former practice of this govern
ment, that the President, as commander-in-chief, has
the authority, as an act of war, to liberate the slaves
of the enemy, and 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 princi
pally 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 con
trol 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 mod
ifying 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 mili
tary 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 Bos
ton, 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-rangers,
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
juries, (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 gov
erned 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 ATTAINDER.
CHAPTER IV.
BILLS OF ATTAINDER.
AFTER the authority of government shall have been
reestablished 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 his
tory, tyrannical governments have usually inflicted
their severest revenge upon traitors. The irresistible
power of law has been evoked to annihilate the crimi
nal, 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 punish
ment 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." j-
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.
j Lord Coke undertakes to justify the severity of this punishment by examples drawn
from Scripture.
86 ATTAINDER.
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 Con
gress ; and that no State shall pass any bill of attainder,
ex post facto law, or law impairing the obligation of con
tracts, f 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. f 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 at
tainted 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 out
lawry ; 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 out
lawry 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, f
B^LLS OF PAINS AND PENALTIES,
It has been said that within the sense of the consti
tution, 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." J
It is true that a bill of attainder may affect the life
* See Story on the Constitution, B. III. Sect. G78.
f Standf. PI. Co. 44, 122, 182. } Fletcher v. Peck, 6 Cranch, R-
88 ATTAINDER.
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/1" 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 PENAL
TIES, 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.
t See note to Forty-third Edition, Ex parte Garland, Appendix, 505. Cummings \.
State of Missouri, Appendix, 550. See Index, title " Attainder."
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
sovereign power of tyrants. 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.
Laws 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 ATTAINDER.
act of the State of New York, October 22, 177 9, 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 ; f and these laws ap
plied to persons who were dead at the time of the pro
ceedings. J
"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 cer
tain 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 com
munity." " The attainted person," says Sir Matthew
H-ale, "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 trea
son, 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. Gas. 23G, decided in April, 1801.
t Jackson v. Sands, 2 Johns. 267.
\ Jackson v. Stokes, 3 Johns. 15.
§ Foster, 83, 84.
|| Jackson v. Catlin, 2 Johns. R. 260.
ATTAINDER. 91
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 impose certain penalties, among
92 ATTAINDER.
which are corruption of blood and forfeiture of estate.
The essence of attainder is in corruption of blood, and
without the corruption of blood no person is by the
English law attainted. Unless a law of Congress shall
contain these characteristics, penalty of death, or out
lawry, corruption of blood, and the legislative, not ju
dicial condemnation of the offender, embodied in a law
passed after the commission of the crime it seeks to pun
ish, it is not a bill of attainder within the meaning of
the constitution.*
* Note to Forty-third Edition. — See the opinion of dissenting judges in Ex parte Gar
land, p. 569 ; Drehman v. Stifle, 8 Wallace, 595 ; Bigelow v. Forest, App. 610 ; Cum-
mings v. State of Missouri, App. 556; Index, " Attainder."
INTRODUCTION TO CHAPTER V.
UNDER the English law, prior to the Revolution, there had been three modes
of punishing the crime of Treason. First, by bills of attainder. Second, by
judicial attainder. Third, by statutes of the realm against treason, actual and
constructive. Bills of attainder were acts of Parliament, which declared one or
more persons, whether living or dead, or absent beyond seas, guilty of the crime
of actual or constructive treason. Judicial attainder was effected in the courts
of law by process issued against persons accused of treason, whether living or
dead, or absent beyond seas. The effect of attainder by judicial process was
substantially the same as that of attainder by act of Parliament, in working
corruption of blood, and likewise forfeiture of estates during the life of the
offender, and after he was dead.
Persons accused of treason were punishable under statutes, by death and
total forfeiture of estates ; but no one could be convicted, sentenced, and pun
ished for treason, under statutes. " except during his life," that is to say, while
alive, nor unless he had received a trial in court, conducted according to the
usual forms of procedure.
By our Constitution, all power is taken from the General Government, and
from all the States, to punish treason by passing any bill of attainder, as is
shown in Chapter IV.
Congress has power to authorize courts to punish treason by judicial attain
der ; but the Constitution has limited the time during which such process may
be applied, and its effect, in these words :
" But no attainder of treason shall work corruption of blood or forfeiture
except during the life of the person attainted."
These provisions apply only to judicial attainder, and not to punishments of
treason under ordinary statutes of Congress, which provide for no attainder.
The constitutional power of Congress to authorize proceedings for judicial
attainder of persons who have committed treason, has not been, thus far, car
ried into effect.
No process of attainder of treason, is now known in our municipal law.
To guard against abuse, under which our forefathers in England suffered,
by reason of unjust and arbitrary definitions of treason, the Constitution pre
scribes certain rules for the definition, proof, and punishment of offences under
statute law, which Congress may pass for the punishment of that crime. It
94 INTRODUCTION TO CHAPTER V.
defines treason to be " a levying of war against the United States," thus cutting
off all the other descriptions of treason known to the English law. It requires,
in proof of treason, that there shall be two witnesses to each overt act with
which the accused is charged. A trial by jury in open court, and in the pres
ence of witnesses, is secured, but when one is convicted he is liable to such
punishment as may have been prescribed by the statute, and there is no limit in
the Constitution to the penalty which Congress may provide.
Thus the traitor may be subjected to punishment by death, and to the forfeit
ure of all his estate, or to fine to an unlimited amount. The criminal, how
ever, may not be, and by existing laws is not, attainted, or subject to any of the
effects of attainder, by these proceedings. The limitations of the Constitution
are inapplicable to statutes which do not provide for attainder but only foi
penalties of death and confiscation,
PUNISHMENT OF TREASON. 95
CHAPTER V.
RIGHT OF CONGRESS TO DECLARE BY STATUTE THE PUN
ISHMENT OF TREASON, AND ITS CONSTITUTIONAL LIMI-
TATIONS.
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 for
ever 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 po
litical 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
96 PUNISHMENT OF TREASON.
prevent Parliament from proclaiming any act of a sub
ject to be treason, thereby subjecting him to all its ter
rible 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 ven
geance 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, wrhile 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., Parlia
ment put an end to these judge-made-treasons by de
claring 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-
PUNISHMENT OF TREASON. 97
ments, and of the tendency of rival factions in repub
lics to seek revenge on each other, that the convention
which framed the constitution, having given no power
to the judiciary, like that possessed by English judges,
to make constructive crimes, introduced several pro
visions limiting the power of Congress to define and
punish the political crime of treason, as well as other
offences. The various clauses in the constitution relat
ing to this siibject, in order to a clear exposition of
their meaning, should be taken together as parts of
one system.
v
ATTAINDER AND EX POST FACTO LAWS.
The first and most important limitation of the power
of Congress is found in Art, I, Sect. 9 : "No bill of at
tainder or ex post facto law shall be passed." By pro
hibiting bills of attainder, no subject could be made a
criminal, or be deprived of life, liberty, or property, by
mere act of legislation, without trial or conviction. The
power to enact ex post facto laws having been with
held, Congress could not pass " a statute which would
render an act punishable in a manner in which it was
not punishable when it was committed." No man's life
could be taken, nor could his liberty be abridged, nor
his estate, nor any part of it, be seized, unless for an
act which, previously to the commission thereof, had
been declared by law to be a crime, nor unless the
manner and extent of punishment therefor had been
prescribed.* Hence no law of Congress can make
that deed a crime which was not so before the deed
was done. Every man may know what are the
* See Fletcher v. Peck, 6 Cranch, 138.
13
98 PUNISHMENT OF TREASON.
laws to which he is amenable in time of peace by read
ing the statutes. There can be no retrospective crimi
nal legislation by any State, or by the United States.
TREASON DEFINED BY STATUTE.
These points having been secured, the next step was
to define the CRIME OF TREASON. Countless difficulties and
dangers were avoided by selecting from the English
statutes one crime only, which should be deemed to con
stitute that offence.
The constitution provides that, " Treason against the
United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid
and comfort." * Hence many acts are not treasonable
which were so considered according to the law of Eng
land, and of the colonies and States of this country.
Each State still retains the power to define and punish
treason against itself in its own way.
Nothing but overt acts are treasonable by the laws of
the United States ; and these overt acts must be overt
acts of war.*)- These acts must be proved either by
confession in open court, or by two witnesses to the
same act. J Our ancestors took care that no one
should be convicted of this infamous crime, unless his
guilt is made certain. So odious was the offence
that even a senator or representative could be arrested
on suspicion of it. § All civil officers were to be removed
from office on impeachment and conviction thereof. ||
And a person charged with treason against a State, and
fleeing from that State to another, was to be delivered
* Art. III. Sect. 3. f Ibid. $ Ibid,
§ Art. I. Sect. 6. || Art. II. Sect. 4.
PUNISHMENT OF TREASON. 99
up, on demand, to the State having jurisdiction.* The
crime being defined, and the nature of the testimony
to establish it being prescribed, and conviction being
possible only in " open court," the constitution then
provides, that " Congress shall have power to declare
the punishment of treason, but no attainder of treason
shall work corruption of blood, or forfeiture except dur
ing the life of the person attainted." f
THE POWER OF THE LEGISLATURE TO DECLARE THE PUNISHMENT
OF TREASON IS UNLIMITED.
By Art. III., Sect. 3, above cited, the constitution
has in express terms given to Congress the power to
declare the punishment of treason. As the manner and
extent of that punishment are not prescribed, it may
impose the penalties of fine, or imprisonment, or out
lawry, or banishment, or forfeiture, or death, or of death
and forfeiture of property, personal and real ; and it
might add to all these inflictions the more terrible suf
ferings which follow, as a consequence of attainder of trea
son, under the law of England, had the constitution not
limited the effect and operation of that species of
attainder.
MISINTERPRETATION OF ART. III., SECT. 3.
Some writer, have supposed that this article in the
constitution, which qualifies the effect of an attainder of
treason, was a limitation of the power of Congress to de
clare the punishment of treason. This is an error. A
careful examination of the language used in the in-
* Constitution, Art. IV., Sect. 2.
t Art. III., Sect. 3.
100 PUNISHMENT OF TREASON.
strument itself, and of the history of the English law
of attainder, will make it evident that the framers of
the constitution, in drafting Sect. 3 of Art. III. did not
design to restrain Congress from declaring against the
traitor himself, his person or estate, such penalties
as it might deem sufficient to atone for the highest of
crimes.
Whenever a person had committed high treason in
England, and had been duly indicted, tried, and con
victed, and when final judgment of guilty, and sentence
of death or outlawry, had been pronounced upon him,
the immediate and inseparable consequence, by com
mon law, of the sentence of death or outlawry of the
offender for treason, and for certain other felonies, was
attainder. Attainder means, in its original application,
the staining or corruption of the blood of a criminal
who was in the contemplation of law dead. He then
became " attinctus — stained, blackened, attainted."
CONSEQUENCES OF ATTAINDER.
Certain legal results followed attainder, among
which are the following : The convict was no longer of
any credit or reputation. He could not be a witness
in any court. He was not capable of performing the
legal functions of any other man ; his power to sell or
transfer his lands and personal estate ceased. By anti
cipation of his punishment he was already dead in law,*
except when the fiction of the law would protect him
from some liability to others which he had the power
to discharge. It is true that the attainted felon could
not be murdered with impunity ,f but the law preserved
* 3 Inst. 213. t Foster, 73.
PUNISHMENT OF TREASON. 101
his physical existence only to vindicate its own majesty,
and to inflict upon the offender an ignominious death.
CORRUPTION OF BLOOD.
Among the most important consequences of attainder
of felony, were those resulting from "corruption of blood"
which is the essence of attainder.* Blackstone says/)* —
" Another immediate consequence of attainder is the corruption of
blood, both upwards and downwards ; so that an attainted person can
neither inherit lands or other hereditaments from his ancestors, nor
retain those he is already in possession of, nor transmit them by descent
to any heir ; but the same shall escheat to the lord of the fee, subject
to the king's superior right of forfeiture ; and the person attainted
shall also obstruct all descents to his posterity whenever they are
obliged to derive a title through him, to a remote ancestor."
The distinctions between escheat and forfeiture it is
not necessary now to state, J because, whether the for
feiture enured to the benefit of the lord or of the king,
the effect was the same upon the estate of the criminal. §
By this legal fiction of corruption of blood, the offender
was deprived of all his estate, personal and real ; his
children or other heirs could not inherit any thing from
him, nor through him from any of his ancestors. " If
a father be seized in fee, and the son commits treason
and is attainted, and then the father dies, then the
lands shall escheat to the lord." ||
SAVAGE CRUELTY OF ENGLISH LAW.
By the English system of escheats to the lord and
forfeitures to the king, the innocent relatives of the
offender were punished, upon the theory that it was
* See Co. Litt. 391. f 4 Com. b. 388. J See Co. Litt. 13.
§ Co. Litt. 391. Bla. Com. Vol. II. p. 254. || Co. Litt. 13.
102 PUNISHMENT OF TREASON.
the duty of every family to secure the loyalty of all its
members to the sovereign ; and upon failure to do so,
the whole family should be plunged into lasting dis
grace and poverty. A punishment which might con
tinue for twenty generations, was indeed inhuman, and
received, as it merited, the condemnation of liberal men
in all countries ; * but aristocratic influence in England
had for centuries resisted the absolute and final aban
donment of these odious penalties. The framers of
the constitution have deprived Congress of the power
of passing bills of attainder. They might have pro
vided that no person convicted of treason should be
held to be attainted, or be liable to suffer any of the
common law penalties which resulted from attainder,
but only such penalties as Congress should prescribe
by statute. They have, however, not in terms, abolished
attainders, but have modified their effect, by declaring
that attainder shall not work corruption of blood.
FORFEITURES.
By the law of England, forfeiture of estates was also
one of the necessary legal consequences of attainder of
felony. Real estate was forfeited upon attainder, per
sonal estate upon conviction before attainder. By
these forfeitures all the property, rights, and claims, of
every name and nature, went to the lord or the king.
But forfeiture of lands related back to the time when
the felony was committed, so as to avoid all subsequent
sales and encumbrances, but forfeiture of goods took
effect at the date of conviction, so that sales of person
al property, prior to that time, were valid, unless col-
* See 4 Bla. Com.
PUNISHMENT OF TREASON. 103
lusive.* The estates thus forfeited were not mere
estates for life, but the whole interest of the felon, what
ever it might be. Thus forfeiture of property was a
consequence of attainder ; attainder was a consequence
of the sentence of death or outlawry ; and these penal
consequences of attainder were over and above, and in
addition to, the penalties expressed in the terms of
the judgment and sentence of the court:\ The punishment,
and in many instances the only punishment, to which
the sentence of the court condemned the prisoner, was
death or outlawry. The disabilities which resulted from
that sentence were like the disabilities which in other
cases result from the sentence of a criminal for in
famous crimes. Disability to testify in courts, or to
hold offices of trust and honor, sometimes follows, not
as part of the punishment prescribed for the offence,
but as a consequence of the condition to which the
criminal has reduced himself.
There is a clear distinction between the punishment
of treason by specific penalties and those consequential
damages and injuries which follow by common law as
the result or technical effect of a sentence of death or
outlawry for treason, viz., attainder of treason, and cor
ruption of blood and forfeiture of estates. J To set this
subject in a clearer light, the learned reader will rec
ollect that there were different kinds of attainder:
* See Stat. 13 Eliz. chap. 5; 2 B. & A. 258; 2 Hawkins's P. C.454; 3 Ins. 232; 4Bla. 387;
€o. Litt. 391, b.
t See 2 Greenleafs Cruise on Real Property, p. 145, and note; 2 Kent, 380; 1 Green-
leaf's Cruise, p. 71, sect. 1, and note.
\ There is a provision in the new constitution of Maryland (1851), that " no conviction
shall work corruption of blood or forfeiture of estate." (Decl. of Rights, Art. 24.) The
constitution of Ohio (1851) contains the same words in the 12th section of the Declaration
of Rights. The constitutions of Kentucky, Delaware, and Pennsylvania declare that
104 PUNISHMENT OF TREASON.
1. Attainders in a prcemunire ; in which, "from the convic
tion, the defendant shall be out of the king's protection,
his lands, tenements, goods, and chattels forfeited to the
king, and his body remain in prison during the king's
pleasure, or during life." * But the offences punishable
under the statutes of praemunire were not felonies, for
the latter are punishable only by common "law, and
not by statute.^ 2. Attainder ly bill. 3. Attainders of
FELONY and treason ; and the important distinction be
tween attainders in treason and attainders in prsemu-
nire is this : that in the former the forfeitures are con
sequences of the judgment, in the latter they are part
of the judgment and penalty. BlackstoneJ recognizes
fully this distinction. " I here omit the particular for
feitures created by the statutes of praemunire and
others, because I look upon them rather as a part of
the judgment and penalty inflicted by the respective
statutes, than as consequences of such judgment, as in
treason and felony they are." Lord Coke expresses the
same opinion. § And statutes of prsemunire and at
tainders of treason are both different in law from bills
of pains and penalties ; of which English history affords,
among many other examples, that against the Bishop
attainder of treason shall not work forfeiture beyond the lifetime of the offender. In Ala
bama, Connecticut, Indiana, Illinois, Maine, Missouri, New Jersey, Rhode Island, and
Tennessee, all forfeitures for crime are abolished, either by statutes or constitutions.
" In New Hampshire, Massachusetts, Virginia, Georgia, Michigan, Mississippi, and
Arkansas, there are statutes providing specifically for the punishment of treason and
felonies; but no mention is made of corruption of blood or forfeiture of estate; and
inasmuch as these offences are explicitly legislated upon, and a particular punishment
provided in each case, it may be gravely doubted whether the additional common law
punishment of forfeiture of estate ought not to be considered as repealed by implication."
1 GreenleaPs Cruise Dig. 196, note.
* 1 Inst. 129; 3 Bla. p. 118; and for the severity of the penalties, see 1 Hawk. P. C. 55.
t 4 Bla. 118. j 4 Com. p. 380.
§ Co. Litt. 391, b.
PUNISHMENT OF TREASON. 105
of Rochester ; •)• in the latter the pains and penalties
are all expressly declared by statute, and not left as
consequences of judgment. That clause in the con
stitution which gives power to Congress to make laws
for the punishment of treason, limits and qualifies the
effect of attainder of treason, in case such attainder
should be deemed by the courts as a legal consequence
of such sentence as the statute requires the court to
impose on traitors. This limitation applies, in terms,
only to the effect of attainders of treason.
CHARACTERISTICS OF ATTAINDER OF TREASON.
There is no attainder of treason known to the law
of England, unless, 1. The judgment of death or out
lawry has been pronounced against the traitor. J 2.
Where the crime was a felony, and punishable accord
ing to common law § ; and, 3. Where the attainder was
a consequence of the judgment, and not part of the
judgment and ^penalty. || Congress may pass a law
condemning every traitor to death, and to the conse
quential punishment of " attainder ; " but such attainder
will not of itself operate to corrupt blood or forfeit
estate except during the life of the offender. But unless
Congress pass a law expressly attainting the criminal of
treason, there is not, under the laws of the United
States, any " attainder." The criminal laws of the
United States are all embraced in specific statutes, de
fining crimes and all their penalties. No consequential
* Stat. 9 Geo. I. cliap. 17. t 4 Bla- 387.
J 4 Bla. 387.
§ Ib.; Co. Litt. 391, b. ; 4 Bla. 386.
14
106 PUNISHMENT OF TREASON.
penalties of this character are known to this law. And
if a person is convicted and sentenced to death for
treason, there can be no corruption of blood, nor for
feiture of estate except by express terms of the statute.
The leading principles of the constitution forbid the
making of laws which should leave the penalty of
crime to be determined by ancient or antiquated com
mon law proceedings of English courts. Forfeiture of
estate, by express terms of statute, may be in the nature
of forfeiture by a bill of pains and penalties, or prsemu-
nire, but is not forfeiture by attainder ; nor is it such
forfeiture as is within the sense of the constitution,
which limits the operation of attainders of treason.
This distinction was well known to the framers of the
constitution. They thought it best to guard against
the danger of those constructive and consequential
punishments, giving full power to Congress, in plain
terms, to prescribe by statute what punishment they
should select ; but in case of resort to attainder of
treason, as one of those punishments, that form of pun
ishment should not be so construed as, ex vi termini, to
corrupt blood nor forfeit estate except during the life
of the person attainted.
TECHNICAL LANGUAGE TO BE CONSTRUED TECHNICALLY.
The language of the constitution is peculiar ; it is
technical ; and it shows on the face of it an intention
to limit the technical operation of attainders, not to
limit the scope or extent of legislative penalties. If
the authors of the constitution meant to say that Con
gress should pass no law punishing treason by attainder,
or by its consequences, viz., forfeiture of estate, or cor-
PUNISHMENT OF TREASON. 107
ruption of blood, they would, in plain terms, have said
so ; and there would have been an end to the penalties
of attainder, as there was an end to bills of attainder.
Instead of saying, " Congress shall have power to de
clare the punishment of treason, but shall not impose
the penalties of attainder upon the offender," they
said, " Congress shall have power to declare the punish
ment of treason, but no attainder of treason shall work
corruption of blood, or forfeiture except during the
life of the person attainted."
This phraseology has reference only to the technical
effect of attainder. The " working of forfeitures " is a
phrase used by lawyers to show the legal result or effect
which arises from a certain state of facts. If a traitor
is convicted, judgment of death is passed upon him;
by that judgment he becomes attainted. Attainder
works forfeitures and corruption of blood ; forfeitures
and corruption of blood are, in the ordinary course of
common law, followed by certain results to his rights
of property. But the constitution provides, if the
traitor is attainted, that attainder shall not, ex vi termini,
and of its own force, and without statute to that effect,
"work" forfeiture or corruption of blood. The con
vict may still retain all those civil rights of which he
has not been deprived by the strict terms of the statute
which shall declare the punishment of treason. That
punishment, as provided by the statute of the United
States of April 30, 1790, is death, and nothing more.
Can any case be found, since this statute was enacted,
in which a party convicted and adjudged guilty of
treason and sentenced to death, has been held to be
" attainted " of treason, so that the attainder has worked
108 PUNISHMENT OF TREASON.
forfeiture of any of his estate, real or personal. Would
it not astonish every lawyer if a court of the United
States, having sentenced a traitor to death under the
law of 1790, should announce as a further penalty,
the forfeiture of the real and .personal estate of the
offender, " worked " by the attainder of felony, not
withstanding no such penalty is mentioned in that
statute ? If Congress should pass an act punishing a
traitor by a fine of five dollars, and imprisonment for
five years, who would not feel amazed to learn that
in accordance to the English doctrine of forfeitures
worked by attainders, the criminal would, by operation
of law, be stripped of property worth' thousands of
dollars, in addition to the penalty prescribed in the
statute under which he had been convicted ?
TRUE MEANING OF ART. III. SECT. III. CL. II.
The constitution means that if traitors shall be at
tainted, unlimited forfeitures and corruption of blood
shall not b'e worked by attainders. It means to leave
untrammelled the power of Congress to cause traitors
to be or not to be attainted ; but if attainted, Congress
must provide by statute for the attainder ; and the
constitution settles how far that attainder shall operate
consequentially ; and when the legislature has awarded
one punishment for treason, the court shall not evoke
the doctrine of forfeitures worked by attainder, and
thus, by technical implication, add punishments not spe
cifically set down in the penal statute itself; or if this
implication exist, the results of the technical effect of
attainder shall not be corruption of blood, or forfeiture,
except during the life of the offender. The third ar-
PUNISHMENT OF TREASON. 109
ticle does not limit the power of Congress to punish,
but it limits the technical consequences of a special
kind of punishment, which may or may not be adopted
in the, statutes.
From the foregoing remarks it is obvious that no
person is attainted of treason, in the technical sense,
who is convicted under the United States act of 1790.
There can be no attainder of treason, within the meaning
of the constitution, unless there be, first, a judgment of
death, or outlawry ; second, a penalty of attainder by
express terms of the statute. A mere conviction of
treason and sentence of death, or outlawry, and forfeit
ures of real and personal estate, do not constitute an
attainder in form, in substance, nor in effect, when made
under any of the present statutes of the United States.
IF CONGRESS MAY IMPOSE FINES, WHY NOT FORFEITURES i
No one doubts the power of Congress to make trea
son punishable with death, or by fines to any amount
whatever. Nor would any reasonable person deem any
fine too large to atone for the crime of involving one's
own country in civil war. If the constitution placed
in Congress the power to take life, and to take prop
erty of the offender in one form, why should it deny
the power to take property in any other form ? If the
framers of the constitution were willing that a traitor
should forfeit his life, how could they have intended
to shelter his property ? Was property, in their opin
ion, more sacred than life ? Would all the property
of rebels forfeited to the treasury of the country repair
the injury of civil wrar ?
* See Jefferson's Notes, pp. 162, 163.
110 PUNISHMENT OF TREASON.
FOKFEITURES NOT LIMITED TO LIFE ESTATES.
Could the jurists who drafted the constitution have
Intended to limit the pecuniary punishment of forfeit
ure to a life interest in personal estate, when every
lawyer in the convention must have known that at
• common law there was no such thing as a life estate in
personal property ? Knowing this, did they mean to
protect traitors, under all circumstances, in the enjoy
ment of personal property ? If so, why did they not
say so ? If they meant to prevent Congress from pass
ing any law that should deprive traitors of more than
a life estate in real estate, the result would be, that the
criminal would lose only the enjoyment of his lands
for a few days or weeks, from the date of the judgment
to the date of his execution, and then his lands would
go to his heirs. Thus it is evident, that if the consti
tution cuts off the power of Congress to punish treason,
and limits it to such forfeitures as are the consequence
of attainder, and then cuts off from attainder its penal
consequences of corruption of blood and forfeiture of
property, excepting only the life estate of the offender,
the framers of that instrument have effectually pro
tected the personal and real estate of traitors, and have
taken more care to secure them from the consequences
of their crime than any other class of criminals. If so,
they have authorized far more severity against many
other felons than against them. If such wrere the pur
pose of the authors of the constitution, they would
have taken direct and plain language to say what they
meant. They would have said, " Congress may punish
treason, but shall not deprive traitors of real or personal
property, except for the time which may elapse be
tween sentence of death and execution." Instead
PUNISHMENT OF TREASON. Ill
of this, they gave full power to provide for the punish
ment of treason by fines, forfeitures, death, and attain
der, only limiting the technical effect of the last-men
tioned penalty, if it should be adopted. Thus Congress
has power, under the constitution, to declare, as the
penalty for treason, a forfeiture of the entire estate of
the offender, in his real and personal property, and is
not limited, as has been supposed by some, to a forfeit
ure of real estate for life only.
NOTE. — Since the publication of the seventh edition, it has been decided by Under
wood, J., in the Eastern District Court of the United States for Virginia, in the case of
United States v. Latham, first, that the Confiscation Act above cited is authorized by the
Constitution ; second, that by the terms of that act (dated July 17, 1802, chap. 195), as
modified by the joint resolution of July 27, 1862 (No. 63), the punishment of treason is
not limited to forfeiture of the life estate of the offender, and is not required to be so
limited by the Constitution; but the forfeiture extends to the entire estate in fee simple.
Note to Forty-third Edition. — Judge Underwood's construction of this statute has not
been sustained by the Supreme Court; but its constitutionality is now conceded. Since
this edition was in press, that court has decided in Bigelow v. Forrest (9 Wallace, .'539),
that the Confiscation Act of July 17, 18G2, in connection with the explanatory resolution
of the same date, is to be so construed that upon a decree of condemnation, all that could
be sold was a life estate of the criminal. Appendix, p. 610. This decision, however,
has no bearing upon the question of the constitutional right of Congress discussed iu this
chapter. See Note, p. 409; also Index, " Lincoln, President."
112 STATUTES AGAINST TREASON.
CHAPTER VI.
STATUTES AGAINST TREASON. WHAT THEY ARE, AND HOW
THEY ARE TO BE ADMINISTERED.
THE United States statute of April 30th, 1790,
provides that, —
" If any person or persons, owing allegiance to the United States of
America, shall levy war against them, or shall' adhere to their enemies,
giving them aid and comfort, within the United States or elsewhere,
and shall be thereof convicted, on confession in open court, or on the
testimony of two witnesses to the same overt act of the treason where
of he or they shall stand indicted, such person or persons shall be
adjudged guilty of treason against the United States, and shall suffer
death."
Concealment of knowledge of treason (misprision of
treason) is, by the same act, punished by fine not
exceeding one thousand dollars, and imprisonment not
exceeding seven years. By the statute of January
30th, 1799, corresponding with foreign governments,
or with any officer or agent thereof, with intent to in
fluence their controversies with the United States, or to
defeat the measures of this government, is declared to
be a high misdemeanor, though not called treason, and
is punishable by fine not exceeding five thousand dol
lars, and imprisonment during a term not less than six
months, nor exceeding three years. So the law has
stood during this century, until the breaking out of
the present rebellion.
The chief provisions of the law passed at the last
session of Congress, and approved July, 17th, 1862, chap.
195. are these: —
Section 1. Persons committing treason shall suffer
one of two punishments : 1. Either death, and freedom
J^_v,_
STATUTES AGAINST TREASON. 113
to his slaves; or, 2. Imprisonment not less than five
years, fine not less than ten thousand dollars, and free
dom of slaves ; the fine to be collected out of any
personal or real estate except slaves.
Sect. 2. Inciting rebellion, or engaging in it, or aid
ing those who do so, is punishable by imprisonment not
more than ten years, fine not more than ten thousand-
dollars, and liberation of slaves.
Sect. 3 disqualifies convicts, under the preceding sec
tions, from holding office under the United States.
Sect. 4 provides that former laws against treason
shall not be suspended as against any traitor, unless he
shall have been convicted under this act.
Sect. 5 makes it the duty of the President to cause
the seizure of all the property, real and personal, of several
classes of persons, and to apply the same to the support
of the army, namely : 1. Kebel army and navy offi
cers ; 2. Government officers of Confederate States in
their national capacity ; 3. Confederate State officers ;
4. United States officers turned traitor officers; 5. Any
one holding any office or agency, national, state, or
municipal, under the rebel government, provided per
sons enumerated in classes 3, 4, and 5 have accepted
office since secession of the State, or have taken oath
of allegiance to support the Confederate States ; 6. Per
sons who, owning property in loyal States, in the terri
tories, or in the District of Columbia, shall hereafter
assist, aid, or comfort siich rebellion. All transfers of
property so owned shall be null, and suits for it by such
persons shall be barred by proving that they are within
the terms of this act.
Sect. 6. Any persons within the United States, not
above named, who are engaged in armed rebellion, or
15
114 STATUTES AGAINST TREASON.
aiding and abetting it, who shall not, within sixty days
after proclamation by the President, "cease to aid,
countenance, and abet said rebellion," shall be liable to
have all their property, personal and real, seized by the
President, whose duty it shall be to seize and use it, or
the proceeds thereof. All transfers of such property,
•made more than sixty days after the proclamation, are
declared null.
Sect. 7. To secure the condemnation and sale of
seized property, so as to make it available, proceedings
in rem shall be instituted in the name of the United
States, in any District Court thereof, or in any terri
torial court, or in the United States District Court for
the District of Columbia, within which district or terri
tory the property, or any part of it, may be found, or
into which, if movable, it may first be brought. Pro
ceedings are to conform to those in admiralty or reve
nue cases. Condemnation shall be as of enemy's prop
erty, and it shall belong to the United States; the
proceeds thereof to be paid into the treasury.
Sect. 8. Proper powers are given to the courts to
carry the above proceedings into effect, and to establish
legal forms and processes and modes of transferring
condemned property.
Sect. 9. Slaves of rebels, or of those aiding them,
escaping and taking refuge within the lines of our army;
slaves captured from them ; slaves deserted by them,
and coming under the control of the United States gov
ernment; slaves found in places occupied by rebel forces,
and afterwards occupied by the United States army, shall
be deemed captives of war, and shall be forever free.
Sect. 10. No fugitive slave shall be returned to a
person claiming him, nor restrained of his liberty, except
for crime, or offence against law, unless the claimant
STATUTES AGAINST TREASON. 115
swears that the person claiming the slave is his lawful
owner, has not joined the rebellion, nor given aid to
it. No officer or soldier of the United States shall sur
render fugitive slaves.
Sect. 11. The President may employ, organize, and
use as many persons of African descent as he pleases
to suppress the rebellion, and use them as he judges
for the public welfare.
Sect. 12. The President may make provisions for
colonizing such persons as may choose to emigrate, after
they shall have been freed by this act.
Sect. 13. The President is authorized by proclama
tion to pardon any persons engaged in the rebellion,
on such terms as he deems expedient.
Sect. 14. Courts of the United States have full pow
ers to institute proceedings, make orders, &c., to carry
the foregoing measures into effect.
The joint explanatory resolution of the 17th of July,
1862, declares that this statute applies to no act done
prior to its passage, and to no judge or member of a
State legislature, who has not taken the oath of alle
giance to support the constitution of the Confederate
States ; and that no punishment or proceedings shall
be so construed as to " work forfeiture of the real
estate of the offender beyond his natural life."
The President's proclamation, in accordance with the
above act, was issued July 25th, 1862. Thus all per
sons engaged in the rebellion, who come within the
provisions of the sixth section, will be liable to the
penalties after sixty days from July 25th. This is one
of the most important penal acts ever passed by the
Congress of the United States.*
* Note to Forty-third Edition. — For the laws of the Confederate Congress which pro
vide for confiscation of estates in fee, see Note on " Confiscation," p. 409.
116 STATUTES AGAINST TREASON.
THE CONFISCATION ACT OF 1862 IS NOT A BILL OF ATTAINDER. NOR
AN EX POST FACTO LAW.
This act is not a bill of attainder, because it does not
punish the offender in any instance with corruption of
blood, and it does not declare him, ~by act of legislature.
guilty of treason, inasmuch as the offender's guilt must
be duly proved and established by judicial proceedings
before he can be sentenced. It is not an ex post facto law,
as it declares no act committed prior to the time when
the law goes into operation to be a crime, or to be punish
able as such. It provides for no attainder of treason, and
therefore for none of the penal consequences which
might otherwise have followed from such attainder.*
The resolution, which is to be taken as part of the
act, or as explanatory of it, expressly provides that no
punishment or proceedings under said act shall be so
construed as to work a forfeiture of the real estate of
the offender beyond his natural life. Thus, to prevent
our courts from construing the sentence of death, under
Sect. 1, as involving an attainder of treason, and. its
consequences, Congress has, in express terms, provided
that no punishment or proceeding shall be so construed
as to wrork forfeiture, as above stated. Thus this statute
limits the constructive penalties which result from for
feitures worked by attainders, and perhaps may be so
construed as to confine the punishments to those, and
those only, which are prescribed in the plain terms of
the statute. And this limitation is in accordance
with the constitution, as understood by the President,
although the forfeiture of rebels' real estate might have
been made absolute and unlimited, without exceeding
the constitutional power of Congress to punish treason.f
* So decided by the Supreme Court in 1870, in Bigelow v. Forrest. Appendix, p. 010.
t Note to Forty-third Edition. — The views of President Lincoln on this question were
subsequently changed. See Note on " Conliscatiou," pp. 400-400. Also, note to p. 111.
THE POWER TO PUNISH REBELS. H7
CHAPTER VII.
THE RIGHT OF CONGRESS TO DECLARE THE PUNISHMENT
OF CRIMES AGAINST THE UNITED STATES OTHER THAN
TREASON.*
THE NEW CRIMES OF REBELLION REQUIRE NEW PENAL LAWS.
SEVERAL crimes may be committed not defined as
treason in the constitution, but not less dangerous to
the public welfare. The prevention or punishment of
such offences is essential to the safety of every form
of government; and the power of Congress to impose
penalties in such cases cannot be reasonably questioned.
The rights guaranteed in express terms to private citi
zens cannot be maintained, nor be made secure, without
such penal legislation ; and, accordingly, Congress has,
from time to time, passed laws for this purpose. The
present rebellion has given birth to a host of crimes
which were not previously punishable by any law.
Among these crimes are the following : Accepting or
holding civil offices under the Confederate government ;
"violating the oath of allegiance to the United States ;
taking an oath of allegiance to the Confederate States ;
manufacturing, passing, or circulating a new and illegal
currency ; acknowledging and obeying the authority
of a seceded State, or of the Confederate States ; neg
lecting or refusing to return to allegiance and to lay
down arms after due warning ; attempting to negotiate
treaties with foreign powers to intervene in our affairs ;
* Note to Forty-third Edition. — Most of the crimes enumerated in this chapter have
become, since this essay was published, the subject of penal statutes.
118 THE POWER TO PUNISH REBELS.
granting or taking letters of marque ; conspiracy
against the lawful government; holding public meet
ings to incite the people to the commission of treason ;
plotting treason ; framing and passing ordinances of
secession; organizing and forming new governments
within any of the States, with the intent that they
shall become independent of the United States, and
hostile thereto : the making of treaties between the
several States; refusal to take the oath of allegiance
to the United States, when tendered by proper author
ity ; resistance to civil process, or to civil officers of the
United States, when such resistance is not so general
as to constitute war. Each of these and many other
public wrongs may be so committed as to avoid the
penalty of treason, because they may not be overt acts
of levying war, or of aiding and comforting the enemy,
which the offender must have committed before he can
have rendered himself liable to be punished for treason
as defined in the constitution. These and other similar
offences are perpetrated for the purpose of overthrow
ing government. Civil war must inevitably result from
them. They might be deemed less heinous than open
rebellion, if it were not certain that they are the foun
tain from which the streams of treason and civil war
must flow, sweeping the innocent and the guilty with
resistless tide onward to inevitable destruction.
ALL ATTEMPTS TO OVERTURN GOVERNMENT SHOULD BE PUNISHED.
Of the many atrocious misdeeds which are pre
liminary to or contemporaneous with treason, each and
all may be and should be punishable by law. It is by
no means desirable that the punishment of all of them
should be by death, but rather by that penalty, which,
• THE POWER TO PUNISH REBELS. 119
depriving the criminal of the means of doing harm,
will disgrace him in the community he has dishonored.
Imprisonment, fines, forfeitures, confiscation, are the
proper punishments for such hardened criminals, be
cause imprisonment is a personal punishment, and
fines, forfeitures, &c., merely transfer the property of
the offender to the public, as a partial indemnity for
the wrong he has committed.
When the terrible consequences of the crimes which
foment civil war are considered, no penalty would seem
too severe to expiate them. But it has been erro
neously suggested that, as the levying of war — treason
— itself is not punishable by depriving traitors of more
than a life estate in their real estate, even though they
are condemned to death, it could not have been the
intention of the framers of the constitution to punish
any of the crimes which may originate a civil war, by
penalty equally severe with that to which they limited
Congress, in punishing treason itself. A lower offence,
it is said, should not be punished with more severity
than a higher one. This objection would be more
plausible if the power to punish treason were in fact
limited. But, as has been shown in a previous chapter,
such is not the fact.*
ACT OF 1862, SECTION VI., DOES NOT PURPORT TO PUNISH TREASON.
If the penalty of death be not inflicted on the guilty,
and if he be not accused of treason, no question as to
the validity of the statute could arise under this clause
of the constitution limiting the effect of attainders
of treason. No objection could be urged against its
* Seo Chap. V. p. 93.
120 THE POWER TO PUNISH REBELS. *
validity on the ground of its forfeiting or confiscating
all the property of the offender, or of its depriving
him of liberty by imprisonment, or of its exiling him
from the country.
Section 6 of the act of 1862 does not impose the
penalty of death, but it provides that if rebels in arms
shall not, within sixty days after proclamation by the
President, cease to aid and abet the rebellion, and
return to their allegiance, they shall be liable to have
all their property seized and used for the benefit of the
country.
Suppose the rebels in arms refuse to obey the procla
mation, and neglect or refuse to return to their allegiance;
the mere non-performance of the requisition of this act
is, not levying war, or aiding and comforting the enemy,
technically considered, and so not treason — although,
if they go on to perform overt acts in aid of the rebels,
those acts will be treasonable. Will it be denied that the
rebels in arms ought to be required by law to return
to their allegiance and cease rebellion? If their
refusal to do so is not technically treason, ought they
not to be liable to punishment for violating the law ?
Is any degree of pecuniary loss too severe for those
who will continue at war with their country after warn
ing and proclamation, if their lives are not forfeited ?
LEGAL CONSTRUCTION OF THE ACT OF 1862.
What will be the construction put upon section 6th
of the Act of July 17, ch. 195, 1862, when taken in
connection with the joint resolution which accompanied
it, is not so certain as it should be. The language of
the last clause in that resolution is, " Nor shall any pun
ishment or proceedings, under said Act, be so construed
THE POWER TO PUNISH REBELS. 121
as to work a ' forfeiture ' of the real estate of the offend
er beyond his natural life." There is no forfeiture in
express terms provided for in any part of the Act,
The punishment of treason, in the first section, is either
death and freedom of slaves, or imprisonment, fine, and
freedom of slaves. The judgment of death for treason
is the only one which could, even by the common law,
have 'been so construed as to "work any forfeiture."
It may have been the intention of Congress to limit
the constructive effect of such a judgment. But the
words of the resolution are peculiar ; they declare that
no u proceedings " under said act shall be so construed
as to work a forfeiture, &c. Then the question will arise
whether the " proceedings " (authorized by section 6, in
which the President has the power and duty to seize
and use all the property of rebels in arms who refuse,
after warning, to return to their allegiance) are such
that a sale of such real estate, under the provisions of
sections 7 and 8, can convey any thing more than an
estate for the life of the offender ? But the crime pun
ished by section 6 is not the crime of treason; and
whether there be or be not a limitation to the power
of the legislature to punish that crime, there is no limit
to its power to punish the crime described in this
section.*
Forfeiture and confiscation of real and personal
estates for crimes, when there was and could have been
no treason, were common and familiar penal statutes in
several States or colonies when the constitution was
framed. Many of the old tories, in the time of the
revolution, were banished, and their real estate confis
cated, without having been tried for or accused of
* See Note, p. Ill, United States v. Latham.
16
122 THE POWER TO PUNISH REBELS.
treason, or having incurred any forfeiture by the laws
against treason. Such was the case in South Carolina
in 1776.* In that State, one set of laws was in force
against treason, the punishment of which was forfeiture
ivorJced by attainder. Another set of lawTs were confisca
tion acts against tory refugees who had committed no
treason. These distinctions were familiar to those who
formed the constitution, and they used language re
lating to these subjects with technical precision.
THE SEVERITY OF DIFFERENT PUNISHMENTS COMPARED.
Forfeiture and confiscation are, in the eye of the law,
less severe punishments than death : they are in effect
fines, to the extent to which the criminal is capable of
paying them. It would not seem to be too severe a
punishment upon a person who seeks, with arms in his
hands, to destroy your life, to steal or carry away your
property, to subvert your government, that he should
be deprived of his property by confiscation or fine to
any amount he could pay. Therefore, as the provisions
of section 6, which would authorize the seizure and
appropriation of rebel real estate to public use, are not
within the prohibitions of Art. III. Sect. 3 of the con
stitution, it is much to be regretted that the joint reso
lution of Congress should have been so worded as to
throw a doubt upon the construction of that part of
the statute, if not to paralyze its effect upon the only
class of rebel property which they cannot put out of
the reach of government, viz., their real estate.f
* See Willis v. Martin, 2 Bay 20. See also Hinzleman v. Clarke and AL, Coxe N. J., 1795.
f See Note to Forty-third Edition, on " Confiscation," p. 406.
In Eigelow v. Forrest (9 "Wallace, 339) the Supreme Court has decided this point. See
Appendix, p. 610.
THE POWER TO PUNISH REBELS. 123
THE SIXTH SECTION OF THE CONFISCATION ACT OF 1862 IS NOT
WITHIN THE PROHIBITION OF THE CONSTITUTION, ARTICLE in.
SECTION in.*
Congress cannot, by giving a new name to acts of
treason, transcend the constitutional limits in declaring
its punishment. Nor can legislation change the true
character of crimes. Hence some have supposed that
Congress has no right to punish the most flagrant and
outrageous acts of civil war by penalties more severe
than those prescribed, as they say, for treason. Since a
subject must have performed some overt act, which may
be construed by courts into the " levying of war," or " aid
ing the enemy," before he can be convicted of treason,
it has been supposed that to involve a great nation in
the horrors of civil war can be nothing more, and noth
ing else, than treason. This is a mistake. The consti
tution does not define the meaning of the phrase
" levying war." Is it confined to the true, and genuine
signification of the words, namely, " that to levy war is
to raise or begin war ; to take arms for attack ; " or must
it be extended to include the carrying on or waging
war, after it has been commenced ? f The crime com
mitted by a few individuals by merely levying war, or
beginning without prosecuting or continuing armed
resistance to government, although it is treason, may be
immeasurably less than that of carrying on a colossal
rebellion, involving millions in a fratricidal contest.
Though treason is the highest political crime known to
the codes of law, yet wide-spread and savage rebellion
* See Notes to Forty-third Edition, p. 425.
f To levy war is to raise or begin war ; to take arms for attack ; to attack. — Webster's
Quarto Diet.
To levy is, 1. To raise, as a siege. 2. To raise or collect; to gather. 3. To raise, ap
plied to war. — Worcester's Quarto Diet.
124 THE POWER TO PUNISH REBELS.
is a still higher crime against society ; for it embraces
a cluster of atrocious wrongs, of which the attack upon
government — treason — is but one. Although there
can be no treason unless the culprit levies war, or aids
the enemy, yet it by no means follows that all acts of
carrying on a war once levied are only acts of treason.
Treason is the threshold of war ; the traitor passes over
it to new and deeper guilt. He ought to suffer punish
ment proportioned to his crimes.
It must also be remembered, that the constitution
does not indicate that fines, forfeitures, confiscations,
outlawry, or imprisonment are " severer penalties than
death." The law has never so treated them. Nor is
there any limit to the power of Congress to punish
traitors, as has been shown in a previous chapter.*
Who will contend that the crime of treason is in morals
more wicked, in its tendencies more dangerous, or in
its results more deadly than the conspiracy by which it
was plotted and originated ? Yet suppose the con
spirator is artful enough not to commit any overt act
in presence of two witnesses ; he cannot be convicted
of treason, though he may have been far more guilty
than many thoughtless persons who have been put
forward to execute the " overt acts," and have thereby
become punishable as traitors. Suppose a person to com
mit homicide ; he may be accused of assault and battery,
or assault with intent to kill, or justifiable homicide,
or manslaughter, or murder in either degree. Suppose
the constitution limited the punishment of wilful mur
der to the death of the criminal and forfeiture of his real
and personal estate for life ; would any person contend
that neither of the other above-mentioned crimes could
* See Chap. V. p. 93.
THE POWER TO PUNISH EEBELS. 125
be punished, unless the criminal were convicted of wil
ful murder? If he had committed murder, he must
have committed all the crimes involved in murder.
He must have made an assault with intent to kill;
and he must have committed unjustifiable homicide, or
manslaughter. If the government should, out of leni
ency, prosecute and convict him of manslaughter, and
impose upon him a penalty of fine, or confiscation of
his real and personal estate, instead of sentence of
death, would any one say that the penalty imposed was
severer than death ? or that murder was legislated into
any other crime ? or that any other crime was legis
lated into murder ? Many crimes of different grades
may coexist, and culminate in one offence. It is no
sign of undue severity to prosecute the offender for one
less than the highest. The same course of crime may
violate many of the duties the loyal citizen owes to his
country. To pass laws declaring the penalty for each
and all of these crimes does not transcend the true
scope of the criminal legislation of Congress, where an
offender has brought upon his country the horrors of
civil war by destroying the lives of those who have
given him no cause of offence, by violating the rights
of the living and the dead, by heaping upon his guilty
act the criminality of a thousand assassins and mur
derers, and by striking at the root of the peace and
happiness of a great nation ; it does not seem unduly
severe to take from him his property and his life. The
constitution does not protect him from the penalty of
death ; and it cannot be so interpreted as to protect
him against confiscation of his real estate.
126 THE POWER TO PUNISH REBELS.
TREASON AND CONFISCATION LAWS IN 1862. THEIR PRACTICAL
OPERATION.
To understand the practical operation of the statutes
now in force for the punishment of treason and rebel
lion, and for the seizure and confiscation of rebel prop
erty, it is necessary to observe the effect of other
statutes which regulate the modes of procedure in the
United States courts. Section 1 of the act of 1862,
which, as well as the act of 1790, prescribes the pun
ishment of death for treason ; section 2, which imposes
fines and penalties ; section 3, which adds disqualifica
tion for office ; and, in fact, all the penal sections of
this statute, — entitle the accused to a judicial trial.
Before he can be made liable to suffer any penalty, he
must have been "pronounced guilty of the offence
charged," and he must have suffered "judgment and
sentence on conviction." The accused cannot by law
be subjected to a trial unless he has previously been
indicted by a grand jury. He cannot be adjudged
guilty unless upon a verdict of a petit jury, impanelled
according to law, and by courts having jurisdiction of
the person and of the alleged offence. A brief exami
nation of the statutes regulating such proceedings will
show that treason and confiscation laws will not be
likely to prove effectual, unless they shall be amended,
or unless other statutes shall be so modified as to adapt
them to the present condition of the country.*
LEGAL RIGHTS OF PERSONS ACCUSED OF TREASON.
All judicial convictions must be in accordance with
the laws establishing the judiciary and regulating its
proceedings. Whenever a person accused of crime is
held by the government, not as a belligerent or prisoner
* See notes to p. 130.
THE POWER TO PUNISH REBELS. 127
of war, but merely as a citizen of the United States,
then he is amenable to, and must be tried under and
by virtue of, standing laws ; and all rights guaranteed to
other citizens in his condition must be conceded to him.
WILL SECESSIONISTS INDICT AND CONVICT EACH OTHER?
No person can lawfully be compelled to appear and
answer to a charge for committing capital or other
wise infamous crimes, except those arising in the army
and navy, when in actual service, in time of war or
public danger, until he has been indicted by a grand
jury.* That grand jury is summoned by the marshal
from persons in the district where the crime was com
mitted.
By the statute of September 24, 1789, section 29,
" in all cases punishable with death, the trial shall be
had in the county where the offence was committed ;
or where that cannot be done without great inconve
nience, twelve petit jurors at least shall be summoned
from thence." It has indeed been decided that the
judges are not obliged to try these cases in the county
where the crime was committed, but they are bound
to try them within the district in which they were
perpetrated, f
HOW THE JURIES ARE SELECTED, AND THEIR POWERS.
The juries are to be designated by lot, or according
to the mode of forming juries practised in 1789, so far
as practicable : the qualifications of jurors must be the
same as those required by the laws of the State where
* Constitutional Amendment V.
t United States v. Wilson, Baldw. 117; United States v. Cornell, 2 Mass. 95-98; United
States v. The Insurgents, 3 Dall. 518.
128 THE POWER TO PUNISH REBELS.
the trial is held, in order to qualify them to serve in
the highest court of that State ; and jurors shall be
returned from such parts of the district, from time to
time, as the court shall direct, so as to be most favor
able to an impartial trial. And if so many jurors are
challenged as to prevent the formation of a full jury,
for want of numbers, the panel shall be completed from
the bystanders.
STATE EIGHTS AND SECESSION DOCTRINES IN THE JURY ROOM.
Juries, in criminal trials, are judges of the law and
of the facts, according to the opinion of eminent
legal authorities. Whether this be so or not, their
verdicts, in such cases, are rendered in accordance
with their views of the law, whether right or wrong
Suppose that the judge presiding at the trial is honest
and loyal, and that the jury is composed of men who
believe that loyalty to the State is paramount to loy
alty to the United States ; or that the States had, and
have, a lawful right to secede from the Union. What
ever the opinions of the judge presiding in the United
States court might be on these question's, he would have
no power to root out from the jury their honest belief,
that obedience to the laws of their own seceding State
is not, and cannot be, treason. The first step towards
securing a verdict would be to destroy the belief of
the jury in these doctrines of State rights, paramount
State sovereignty, and the right of secession. To de
cide the issue, according to the conscientious judgment
of the jurymen upon the facts and the law, would re
quire them to find a verdict against the United States.
THE POWER TO PUNISH REBELS. 129
SYMPATHY.
But this is not the only difficulty in the operation
of this statute. The grand jurors and the petit jury
are to be drawn from those who are neighbors, and
possibly friends, of the traitors. The accused has the
further advantage of knowing, before the time of trial,
the names of all the jurors, and of all the witnesses to be
produced against him ; he has the benefit of counsel, and
the process of the United States to compel the attend
ance of witnesses in his behalf* How improbable is it
that any jury of twelve men will be found to take away
the lives or estates of their associates, when some of the
jurymen themselves, or their friends and relatives or
debtors, are involved in the same offence ! Could any
judge reasonably expect a jury of horse thieves to con
vict one of their own number, when either of the jury
men might be the next man required to take his turn
in the criminal box ? Under the present state of the
law, it is not probable that there will ever be a convic
tion, even if laws against treason, and those which con
fiscate property, were not unpopular and odious in a
community against whom they are enacted. When an
association of traitors and conspirators can be found to
convict each other, then these statutes will punish trea
son, but not sooner. f
LAWS ARE MOST EFFECTIVE WHICH REQUIRE NO REBEL TO AD
MINISTER THEM.
Those sections of the act of 1862, empowering gov
ernment to seize rebel property, real, personal, and
mixed, and to apply it to the use of the army, to secure
the condemnation and sale of seized property, so as to
make it available, and to authorize proceedings in rent,
* Statute of April 30, 1790, Sect. 29.
Note to Forty third Edition. — Not one life has yet (1870) been forfeited by any judicial
proceeding under the laws of the United States against treason committed during the late
rebellion, which terminated in 1805.
130 THE POWER TO PUNISH REBELS.
conformably to proceedings in admiralty or revenue
cases, are of a different and far more effective char
acter. Those clauses in the act which allow of the
employment in the service of the United States of
colored persons, so far as they may be serviceable, and
the freeing of the slaves of rebels, whether captured,
seized, fugitive, abandoned, or found within the lines
of the army, may be of practical efficacy, because these
measures do not require the aid of any secession jury
to carry them into effect.*
STATUTES OF LIMITATION WILL PROTECT TRAITORS.
The statutes limiting the time during which rebels
and traitors shall be liable to indictment ought also to be
considered. By the act of 1790, no person can be pun
ished unless indicted for treason within three years after
the treason was committed, if punishable capitally ; nor
unless indicted within two years from the time of com
mitting any offence punishable with fine or forfeiture.
Thus, by the provisions of these laws, if the war should
last two years, or if it should require two or three years
after the war shall have been ended to reestablish reg
ular proceedings in courts, all the criminals in the se
ceded States will escape by the operation of the stat
utes of limitations. It is true, that if traitors flee from
justice these limitations will not protect them ; but this
exception will apply to few individuals, and those who
flee will not be likely to be caught. Unless these stat
utes are modified, those who have caused and main
tained the rebellion will escape from punishment.')'
* See Note to the Forty-third Edition : " The United States may call on all its Subjects
to do Military Duty." pp. 478-493.
• f Note to Tenth Edition. — Several bills were introduced during the session of Con
gress (1863-04) to remedy the difficulties here pointed out.
SLAVERY. 131
CHAPTER VIII.
INTERFERENCE OF GOVERNMENT WITH THE DOMESTIC
AFFAIRS OF THE STATES.
PARTY PLATFORMS CANNOT ALTER THE CONSTITUTION.*
POLITICAL parties, in times of peace, have often de
clared that they do not intend to interfere with slavery
in the States. President Buchanan denied that govern
ment had any power to coerce the seceded States into
submission to the laws of the country. When Presi
dent Lincoln called into service the army and navy,
he announced that it was not his purpose to interfere
with the rights of loyal citizens, nor with their domes
tic affairs. Those who have involved this country in
bloody war, all sympathizers in their treason, and others
who oppose the present administration, unite in deny
ing the right of the President . or of Congress to inter
fere with slavery, even if such interference is the only
means by which the Union can be saved from destruc
tion. No constitutional power can be obliterated by
any denial or abandonment thereof, by individuals, by
political parties, or by Congress.
The war power of the President to emancipate ene
my's slaves has been the subject of a preceding chapter.
Congress has power to pass laws necessary and proper
to provide for the defence of the country in time of war,
by appropriating private property to public use, with
just compensation therefor, as shown in Chapter L;
also laws enforcing emancipation, confiscation, and all
other belligerent rights, as shown in Chapter II. • and
* Note to Forty-third Edition. — See the political platforms of the Republican and of the
Democratic parties during the contest for the presidency between Mr. Lincoln and Mr.
Douglas. Also, the Resolutions of Congress referred to in note to page 133. Also, the
Note on " Slavery," pp. 393-400.
132 SLAVERY.
it is the sole judge as to what legislation, to effect
these objects, the public welfare and defence require ;
it may enact laws abolishing slavery, whenever slavery,
ceasing to be merely a private and domestic relation,
becomes a matter of national concern, and the public
welfare and defence cannot be provided for and secured
without interfering with slaves. Laws passed for that
purpose, in good faith, against belligerent subjects, not
being within any express prohibition of the constitu
tion, cannot lawfully be declared void by any depart
ment of government. Reasons and authority for these
propositions have been stated in previous chapters.
DOMESTIC INSTITUTIONS.
Among the errors relating to slavery which have
found their way into the public mind, — errors traceable
directly to a class of politicians who are now in open
rebellion, — the most important is, that Congress has no
right to interfere in any way ivith slavery. Their assump
tion is, that the States in which slaves are held are
alone competent to pass any law relating to an institu
tion which belongs exclusively to the domestic affairs
of the States, and in which Congress has no right to
interfere in any way whatever.*
From a preceding chapter, (see page 17,) it will be seen,
that if slaves are property r, property can be interfered with
under the constitution ; if slavery is a domestic institution,
as Mormonism or apprenticeship is, each of them can law-
* Note to Forty-third Edition. — Not long before this essay was first published, Congress
had passed by a unanimous vote the following declaratory resolution : " Resolved, That
neither the Federal government, nor the people, nor the governments of the non-slave-
holding States have the right to legislate upon or interfere with slavery in any of the
slavcholding States of the Union; " and had proposed to amend the Constitution so that
Art. XIII. would have read as follows : u No amendment shall be made to the Constitu
tion which will authorize or give to Congress the power to abolish or interfere, within
any State, with the domestic institutions thereof, including that of persons held to labor
or service by the laws of such State."
SLAVERY. 133
fully be interfered with and annulled. But slavery has
a double aspect. So long as it remains in truth "domes
tic? that is to say, according to Webster's Dictionary,
"pertaining to house or home" so long government cannot
be affected by it, and have no ground for interfering
with it ; when, on the contrary, it no longer pertains
only to house and home, but enters into vital questions
of war, aid and comfort to public enemies, or any of
the national interests involved in a gigantic rebellion;
when slavery, rising above its comparative insignifi
cance as a household affair, becomes a vast, an over
whelming power which is used by traitors to overthrow
the government, and may be used by government to
overthrow traitors, it then ceases to be merely domestic ;
it becomes a belligerent potver, acting against the "public
welfare and common defence." No institution continues
to be simply " domestic " after it has become the effec
tive means of aiding and supporting a public enemy.
When an "institution" compels three millions of
subjects to become belligerent traitors, because they
are slaves of disloyal masters, slavery becomes an affair
which is of the utmost public and national concern. But
the constitution not only empowers, but, under certain
contingencies, requires slavery in the States to be inter
fered with. No one who will refer to the sections of
that instrument here cited, will probably venture to
deny the power of Congress, in one mode or another,
to interfere for or against the institution of slavery.
CONGRESS MAY PASS LAWS INTERFERING FOR THE PRESERVATION
AND PROTECTION OF SLAVERY IN THE STATES.
Art. IY. Sect, 2, required that fugitive slaves should be
delivered up, and the fugitive slave laws were passed to
carry this clause into effect.
134 SLAVERY.
Art. I. Sect. 9, required that the foreign slave trade
should not be interfered with prior to 1808, but allowed
an importation tax to be levied on each slave, not ex
ceeding ten dollars per head.
Art. V. provided that no amendment of the constitu
tion should be made, prior to 1808, affecting the pre
ceding clause.
Art. I. Sect. 2 provides that three fifths of all slave
shall be included in representative numbers.
CONGRESS MAY INTERFERE AGAINST SLAVERY IN THE STATES.
Art. I. Sect 8. Congress has power to regulate
commerce with foreign nations, and among the several
States, and with the Indian tribes. Under this clause
Congress can in effect prohibit the inter-state slave trade.
and so pass laws diminishing or destroying the value
of slaves in the border States, and practically abolish
slavery in those States.
CONGRESS MAY INTERFERE WITH SLAVERY BY CALLING UPON THE
SLAVES, AS SUBJECTS, TO ENTER MILITARY SERVICE.
Art. I. Sect. 8. Congress has the power to declare
war and make rules for the government of land and
naval forces, and under this power to decide who shall
constitute the militia of the United States, and to enrol and
compel into the service of the United States all the
slaves, as well as their masters, and thus to interfere
with slavery in the States.
CONGRESS MAY INTERFERE WITH SLAVERY LN THE STATES BY CUT
TING OPF THE SUPPLY OF SLAVES TO SUCH STATES.
The law now prohibiting the importation of slaves,
and making slave trading piracy, is an interference with
slavery, by preventing their introduction into the
SLAVERY. 135
slave States. So also is the treaty with England to
suppress the slave trade, and to keep an armed naval
force on the coast of Africa.
In case of servile insurrection against the laws and
authority of the United States, the government are
bound to interfere ivith slavery r, as much as in an insurrec
tion of their masters, which may also require a similar
interference. The President, with the advice and con
sent of the Senate, has the power to make treaties ;
and, under the treaty-making power, slavery can be
and has been interfered with. In the last war with
Great Britain, a treaty was made to evacuate all the
forts and places in the United States without carrying
away any of the slaves who had gone over to them in
the States. Congress then interfered to sustain the
institution of slavery, for it was only by sustaining
slavery that this government could claim indemnity for
slaves as property. The treaty-making poiuer may abolish
slavery in the whole country, as, by Art. VI., the con
stitution, the laws, and all treaties made or which shall
be made under the authority of the United States,
shall be the supreme law of the land. A clause in any
treaty abolishing slavery would, ipso facto, become the
supreme law of the land, and there is no power what
ever that could interfere with or prevent its operation.
By the treaty-making power, any part of the country
burdened with slavery, and wrested from us by con
quest, could be ceded to a foreign nation who do not
tolerate slavery, and without claim of indemnity. The
principle is well established that "the release of a
territory from the dominion and sovereignty of the
country, if that cession be the result of coercion or
conquest, does not impose any obligation upon the
136 SLAVERY.
government to indemnify those who may suffer loss of
property by the cession." *
The State of New York had granted to her own citi
zens many titles to real estate lying in that part of her
territory now called Vermont. Vermont separated
itself from New York, and declared itself an inde
pendent State. It maintained its claims to such an
extent, that New York, by act of July 14, 1789, was
enforced to empower commissioners to assent to its
independence ; but refused to compensate persons
claiming lands under grant from New York, though
they were deprived of them by Vermont. The ground
taken by the legislature was, that the government was
not required to assume the burden of losses produced by
conquest or by the violent dismemberment of the State.
Supposing England and France should, by armed in
tervention, compel the dismemberment of the United
States, and the cession of the slave States to them as
conquered territory ; and that the laws of the con
querors allowed no slaveholding. Could any of the
citizens of slave States, who might reside in the free
States, having remained loyal, but having lost their
slaves, make just legal claim for indemnity upon the
government ? Certainly not.
Other instances may be cited in which Congress
has the power and duty of interference in the local
and domestic concerns of States, other than those
relating to slavery.f Chief Justice Taney says, —
" Moreover, the constitution of the United States, as far as it has
provided for an emergency of this kind, and authorized the general
government to interfere in the domestic concerns of a State, ha^
treated the subject as political in its nature, and placed the power
in the hands of that department. Art. IV. Sect. 4 of the constitution
of the United States provides that the United States shall guarantee to
* 1 Kent Com. 178. t Luther v. JSorden, 7 How. 42.
SLAVERY. 137
every State in the Union a republican form of government, and shall pro
tect each of them against invasion, and, on the application of the legisla
ture, or of the executive when the legislature cannot be convened, against
domestic violence. Under this article of the constitution it rests with
Congress to decide what government is the established one in a State.
For, as the United States guarantees to each State a republican gov
ernment, Congress must necessarily decide what government is estab
lished, before it can determine whether it is republican or not. And
when senators and representatives of a State are admitted into the coun
cils of the Union, the authority of the government under which they are
appointed, as well as its republican character, is recognized by the
proper constitutional authority, and its decision is binding upon every
other department of the government, and could not be questioned in
a judicial tribunal. So, too, as relates to the clause in the above-men
tioned article of the constitution, providing for cases of domestic
violence. It rested with Congress, too, to determine the means proper
to be adopted to fulfil this guaranty."
Suppose, then, that for the purpose of securing "domes
tic tranquillity " and to suppress domestic violence. Congress
should determine that emancipation of the slaves was a
necessary and proper means, it would be the duty of Con
gress to adopt those means, and thus to interfere with
slavery .* If a civil war should arise in a single State
between the citizens thereof, it is the duty of Congress
to cause immediate interference in the domestic and local
affairs of that State, and to put an end to the war ;
and this interference may be by force of arms and by
force of laws ; and the fact that the cause of quarrel is
domestic and private, whether it be in relation to a pro
posed change in the form of government, as in Dorr's
rebellion,* or a rebellion growing out of any other
domestic matter, the constitution authorizes and
requires interference by the general government.
Hence it is obvious that if slaves be considered prop-
* See Luther v. Borden, 7 How. 42.
18
138 SLAVERY.
erty, and if the regulation of slavery in the States be
deemed in some aspects one of the domestic affairs of
the States where it is tolerated, yet these facts consti
tute no reason why such property may not be inter
fered with, and slavery dealt with by government
according to the emergencies of the time, whenever
slavery assumes a new aspect, and rises from its private
and domestic character to become a matter of national
concern, and imperils the safety and preservation of
the whole country. We are not to take our opinions
as to the extent or limit of the powers contained in the
constitution from partisans, or political parties, nor even
from the dicta of political judges. We should examine
that instrument in the light of history and of reason ;
but when the language is plain and clear, we need no
historical researches to enable us to comprehend its
meaning. When the interpretation depends upon tech
nical law, then the contemporary law writers must be
consulted. The question as to the meaning of the con
stitution depends upon what the people, the plain
people who adopted it, intended and meant at the
time of its adoption.
AUTHORITATIVE CONSTRUCTION OF THE MEANING OF THE CON
STITUTION.
The conclusive authority on its interpretation is the
document itself. When questions have arisen under
that instrument, upon which the Supreme Court have
decided, and one which they had a right to decide,
their opinion is, for the time being, the supreme au
thority, and remains so until their views are changed
and new ones announced ; and as often as the Supreme
Court change their judgments, so often the authoritative
SLAVERY. 139
interpretation of the constitution changes. The Su
preme Court have the right to alter their opinions e\ ery
time the same question is decided by them ; and as
new judges must take the place of those whose offices
are vacated by death, resignation, or impeachment, it is
not unlikely that opinions of the majority of the court
may, upon constitutional as well as upon other questions,
be sometimes on one side and sometimes on the other.
Upon political discussions, such as were involved in
the Dred Scott case, the judges are usually at variance
with each other; and the view of the majority will
prevail until the majority is shifted. The judges are
not legally bound to adhere to their own opinions,
although litigants in their courts are. Whenever the
majority of the court has reason to overrule a former
decision, they not only have the right, but it is their
duty, to do so.
The opinions of the framers of the constitution are
not authority, but are resorted to for a more perfect
understanding of the meaning they intended to convey
by the words they used ; but after all, the words should
speak for themselves ; for it was the language in which
that instrument was worded that was before the people
for discussion and adoption. We must therefore go
back to that original source of our supreme law, and
regard as of no considerable authority the platforms
of political parties who have attempted to import into
the constitution powers not authorized by fair interpre
tation of its meaning, or to deny the existence of
those powers which are essential to the perpetuity of
the government.
A political party may well waive a legal constitu
tional right, as matter of equity, comity, or public pol-
140 SLAVERY.
icy ; and this waiver may take the form of a denial
of the existence of the power thus waived. In this
manner Mr. Douglas not merely waived, but denied,
the power of Congress to interfere with slavery in the
territories ; and in the same way members of the Re
publican party have disclaimed the right, in time of
peace, to interfere with slavery in the States ; but such
disclaimers, made for reasons of state policy, are not
to be regarded as enlarging or diminishing the rights
or duties devolved on the departments of govern
ment, by a fair and liberal interpretation of all the pro
visions of the constitution.
Rising above the political platforms, the claims and
disclaimers of Federalists, Democrats, Whigs, Republi
cans, and all other parties, and looking upon the con
stitution as designed to give the government made by
the people, for the people, the powers necessary to its
own preservation, and to the enforcement of its laws,
it is not possible justly to deny the right of govern
ment to interfere with slavery, Mormonism, or any
other institution, condition, or social status into which
the subjects of the United States can enter, whenever
such interference becomes essential as a means of
" public welfare or common defence in time of war."*
* In several preceding chapters other branches of this subject have been discussed.
See note to page 132.
NOTES ON THE WAR POWERS.
FIFTH EDITION.
MANY of the leading doctrines contained in the foregoing
pages have received, since the publication of the fourth edition,
the sanction of the Supreme Court of the United States, of
whose authoritative and final decision in the prize cases, argued
in the spring of 1863, the following is the substance : —
IN THE SUPREME COURT OF THE UNITED STATES. — Claimant of schoon
ers Brilliant, Crenshaw, barque Hiawatha and others, appellants, vs.
United States.
These causes came up by appeal from decrees in prize, of the Circuit
Courts for the Southern District of New York, and the District of Massa
chusetts, affirming respectively the sentences of condemnation passed upon
the vessels and cargoes by the District Courts for said districts. The fol
lowing opinion is confined to the general questions of law which were raised
by all the cases. It does not discuss the special facts and circumstances of
the respective cases.
March 9th, 1863. Opinion of the Court by GRIER, J.
There are certain propositions of law which must necessarily affect the
ultimate decision of these cases and many others, which it will be proper to
discuss and decide before we notice the special facts peculiar to each. They
are, —
First. Had the President a right to institute a blockade of ports in pos
session of persons in armed rebellion against the government, on the prin
ciples of international law, as known and acknowledged among civilized
States ?
Second. Was the property of persons domiciled or residing within those
States a proper subject of capture on the sea as " enemies' property" ?
I. Neutrals have a right to challenge the existence of a blockade de
facto, and also the authority of the party exercising the right to institute
it. They have a right to enter the ports of a friendly nation for the pur
poses of trade and commerce, but are bound to recognize the rights of a bel
ligerent engaged in actual war, to use this mode of coercion for the purpose
of subduing the enemy.
That a blockade de facto actually existed and was formally declared and
notified by the President on the 27th and 30th of April, 1861, is an admit
ted fact in these cases. That the President, as the executive chief of the
government, and commander-in-chief of the army and navy, was the proper
person to make such notification, has not been, and cannot be, disputed.
The right of prize and capture has its origin in the jus belli, and is gov
erned and adjudged under the law of nations. To legitimate the capture
of a neutral vessel, or property on the high seas, a war must exist de facto,
and the neutral must have a knowledge or notice of the intention of one of
the parties belligerent to use this mode of coercion against a port, city, or
territory in possession of the other.
Let us inquire whether, at the time this blockade was instituted, a state
(141)
142 NOTES.
of war existed which would justify a resort to these means of subduing the
hostile force.
War has been well defined to be " that state in which a nation prosecutes
its right by force." The parties belligerent in a public war are independent
nations. But it is not necessary tq constitute war, that both parties should
be acknowledged as independent nations or sovereign States. A war may
exist where one of the belligerents claims sovereign rights as against the
other.
Insurrection against a government may or may not culminate in an
organized rebellion ; but a civil war always begins by insurrection against
the lawful authority of the government. A civil war is never sol
emnly declared; it becomes such by its accidents — the number, power,
and organization of the persons who originate and carry it on. When the
party in rebellion occupies and holds in a hostile manner a certain portion
of territory, have declared their independence, have cast off' their allegiance,
have organized armies, have commenced hostilities against their former sov
ereign, the world acknowledges them as belligerents, and the contest a war.
They claim to be in arms to establish their liberty and independence, in
order to become a sovereign State, while the sovereign party treats them as
insurgents and rebels who owe allegiance, and who should be punished with
death for their treason.
The laws of war, as established among nations, have their foundation in
reason, and all tend to mitigate the cruelties and misery produced by the
scourge of war. Hence the parties to a civil war usually concede to each
other belligerent rights. They exchange prisoners, and adopt the other
courtesies and rules common to public or national wars.
" A civil war," says Vattel, " breaks the bands of society and govern
ment, or, at least, suspends their force and effect ; it produces in the nation
two independent parties, who consider each other as enemies, and acknowl
edge no common judge. Those two parties, therefore, must necessarily be
considered as constituting, at least for a time, two separate bodies — two dis
tinct societies. Having no common superior to judge between them, they
stand in precisely the same predicament as two nations who engage in a
contest and have recourse to arms. This being the case, it is very evident
that the common laws of war, those maxims of humanity, moderation, and
honor, ought to be observed by both parties in every civil war. Should the
sovereign conceive that he has a right to hang up his prisoners as rebels,
the opposite party will make reprisals, &c., &c. ; the war will be cruel, hor
rible, and every day more destructive to the nation."
As a civil war is never publicly proclaimed, eo nomine, against insurgents,
its actual existence is a fact in our domestic history which the Court is
bound to notice and to know.
The true test of its existence, as found in the writings of the sages of the
common law, may be thus summarily stated : " When the regular course
of justice is interrupted by revolt, rebellion, or insurrection, so that the
courts of justice cannot be kept open, civil war exists, and hostilities may
be prosecuted on the same footing as if those opposing the government were
foreign enemies invading the land." By the constitution, Congress alone
has the power to declare a national or foreign war. It cannot declare war
against a State, or any number of States, by virtue of any clause in the
constitution. The constitution confers on the President the whole execu
tive power. He is bound to take care that the laws be faithfully executed.
He is 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. He has no power to initiate or declare a war, either
against a foreign nation or a domestic State. But by the acts of Congress
NOTES. 143
of February 28th, 1795, and 3d of March, 1807, he is author.zed to call out
the militia, and use the military and naval forces of the United States in
case of invasion by foreign nations, and to suppress insurrection against
the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force. He does not initiate
the war, but is bound to accept the challenge without waiting for any spe
cial legislative authority. And whether the hostile party be a foreign
invader, or States organized in rebellion, it is none the less a ivar, although
the declaration of it be "unilateral" Lord Stowell (1 Dodson, 247)
observes, " It is not the less a war on that account, for war may exist with
out a declaration on either side. It is so laid down by the best writers on
the law of nations. A declaration of war by one country only, is not a mere
challenge, to be accepted or refused at pleasure by the other."
This greatest of civil wars was not gradually developed by popular com
motion, tumultuous assemblies, or local unorganized insurrections. How
ever long may have been its previous conception, it nevertheless sprung
forth suddenly from the parent brain, a Minerva in the full panoply of war.
The President was bound to meet it in the shape it presented itself, without
waiting for Congress to baptize it with a name ; and no name given to it
by him or them could change the fact.
It is not the less a civil war, Avith belligerent parties in hostile array,
because it may be called an " insurrection " by one side, and the insurgents
be considered as rebels or traitors. It is not necessary that the independ
ence of the revolted province or State be acknowledged, in order to con
stitute it a party belligerent in a war, according to the law of nations.
Foreign nations acknowledge it as war by a declaration of neutrality. The
condition of neutrality cannot exist unless there be two belligerent parties.
In the case of Santissima Trinidad, 7 Wheaton, 337, this Court says,
" The government of the United States has recognized the existence of a
civil war between Spain and her colonies, and has avowed her determina
tion to remain neutral between the parties. Each party is, therefore,
deemed by us a belligerent nation, having, so far as concerns us, the sov
ereign rights of war." See also 3 Binn., 252.
As soon as the news of the attack on Fort Sumter, and the organization
of a government by the seceding States, assuming to act as belligerents,
could become known in Europe, to wit, on the 13th of May, 1861, the
Queen of England issued her proclamation of neutrality, " recognizing hos
tilities as existing between the government of the United States of Ameri
ca and certain States styling themselves the Confederate States of America."
This was immediately followed by similar declarations, or silent acquiescence,
by other nations.
After such an official recognition by the sovereign, a citizen of a foreign
State is estopped to deny the existence of a war, with all its consequences
as regards neutrals. They cannot ask a Court to affect a technical igno
rance of the existence of a war which all the world acknowledges to be the
greatest civil war known in the history of the human race, and thus cripple
the arm of the government and paralyze its powers by subtle definitions and
ingenious sophisms.
The law of nations is also called the law of nature ; it is founded on the
common consent as well as the common sense of the world. It contains no
such anomalous doctrine as that which this Court are now, for the first time,
desired to pronounce, to wit : —
That insurgents who have risen in rebellion against their sovereign, ex
pelled her Courts, established a revolutionary government, organized armies,
and commenced hostilities, are not enemies because they are traitors ; and
144 NOTES.
a war levied on the government by traitors, in order to dismember and
destroy it, is not a war, because it is an " insurrection."
Whether the President, in fulfilling his duties as commander-in-chief, in
suppressing an insurrection, has met with such armed hostile resistance,
and a civil war of such alarming proportions, as will compel him to accord
to them the character of belligerents, is a question to be decided by him ;
and this Court must be governed by the decisions and acts of the political
department of the government to which this power was intrusted. "He
must determine what degree of force the crisis demands." The proclama
tion of blockade is itself official and conclusive evidence to the Court that
a state of war existed which demanded and authorized a recourse to such a
measure, under the circumstances, peculiar to the case. The correspond
ence of Lord Lyons with the Secretary of State admits the fact and con
cludes the question.
If it were necessary to the technical existence of a war that it should
have a legislative sanction, we find it in almost every act passed at the
extraordinary session of the Legislature of 1861, which was wholly em
ployed in passing laws to enable the government to prosecute the war with
vigor and efficiency. And finally, in 1861, AVC find Congress, " ex majore
cautela," passing an act, approving, legalizing, and making valid all the acts,
proclamations, and orders of the President, &c., " as if they had been
issued and done under the previous express authority and direction of the
Congress of the United States."
Without admitting that such an act was necessary under the circum
stances, it is plain, if the President had in any manner assumed powers
which it was necessary should have the authority or sanction of Congress,
that the well-known principle of law, " Omnis ratihabitio retrotrahitur et
mandato equip aratur," this ratification has operated to perfectly cure the
defect.
In the case of Brown vs. United States, 8 Cranch, 131, 132, 133, Mr.
Justice Story treats of this subject, and cites numerous authorities, to
which we may refer, to prove this position, and concludes, " I am perfectly
satisfied that no subject can commence hostilities or capture property of an
enemy, when the sovereign has prohibited it. But suppose he did. I
would ask if the sovereign may not ratify his proceedings ; and then, by a
retroactive operation, give validity to them."
Although Mr. Justice Story dissented from the majority of the Court on
the whole case, the doctrine stated by him on this point is correct and fully
substantiated by authority.
The objection made to this act of ratification, that it is ex post facto, and
therefore unconstitutional and void, might possibly have some weight on
the trial of an indictment in a criminal Court. But precedents from that
source cannot be received as authoritative in a tribunal administering pub
lic and international law.
On this first question, therefore, we are of opinion that the President had
a right jure belli to institute a blockade of ports in possession of the States
in rebellion, which neutrals are bound to regard.
II. We come now to the consideration of the second question. What is
included in the term " enemies' property " ?
Is the property of all persons residing within the territory of the States
now in rebellion, captured on the high seas, to be treated as " enemies' prop
erty," whether the owner be in arms against the government or not ?
The right of one belligerent not only to coerce the other by direct force,
but also to cripple his resources by the seizure or destruction of his prop
erty, is a necessary result of a state of war.
Money and wealth, the products of agriculture and commerce, are said to
NOTES. 145
be the sinews of war, and as necessary in its conduct as numbers and phys
ical force. Hence it is, that the laws of war recognize the right of a belli
gerent to cut these sinews of the power of the enemy, by capturing his prop
erty on the high seas.
The appellants contend that the term enemies^ is properly applicable to
those only who are subjects or citizens of a foreign State at war with our
own. They quote from the pages of the Common Law, which say, " that
persons who wage war against the king may be of two kinds, subjects or
citizens. The former are not proper enemies, but rebels and traitors ; the
latter are those that come properly under the name of enemies."
They insist, moreover, that the President himself, in his proclamation, ad
mits that great numbers of the persons residing within the territories in pos
session of the insurgent government, are loyal in their feelings, and forced
by compulsion and the violence of the rebellious and revolutionary party,
and its " de facto government," to submit to their laws and assist in their
scheme of revolution; that the acts of the usurping government cannot
legally sever the bond of their allegiance ; they have, therefore, a correla
tive right to claim the protection of the government for their persons and
property, and to be treated as loyal citizens, till legally convicted of having
renounced their allegiance, and made war against the government by trea
sonably resisting its laws.
They contend also that insurrection is the act of individuals, and not of a
government or sovereignty ; that the individuals engaged are subjects of
law ; that confiscation of their property can be effected only under munici
pal law ; that, by the law of the land, such confiscation cannot take place
without the conviction of the owner of some offence ; and finally, that the
secession ordinances are nullities, and ineffectual to release any citizen from
his allegiance to the national government ; consequently, the constitution and
laws of the United States are still operative over persons in all the States for
punishment as well as protection.
This argument rests on the assumption of two propositions, each of which
is without foundation on the established law of nations.
It assumes that where a civil war exists, the party belligerent claiming to
be sovereign cannot, for some unknown reason, exercise the rights of belliger
ents, although the revolutionary party may. Being sovereign, he can exer
cise only sovereign rights over the other party. The insurgent may be killed
on the battle-field, or by the executioner ; his property on land may be con
fiscated under the municipal law ; but the commerce on the ocean, which
supplies the rebels with means to support the war, cannot be made the sub
ject of capture under the laws of war, because it is "unconstitutional ".' .' /
Now, it is a proposition never doubted, that the belligerent party who claims
to be sovereign, may exercise both belligerent and sovereign rights. (See 4
Cranch, 272.) Treating the other party as a belligerent, and using only the
milder modes of coercion which the law of nations has introduced to miti
gate the rigors of wa& cannot be a subject of complaint by the party to
whom it is accorded as a grace or granted as a necessity.
We have shown that a civil war, such as that now waged between the
Northern and Southern States, is properly conducted, according to the
humane regulations of public law, as regards capture on the ocean.
Under the very peculiar constitution of this government, although the
citizens owe supreme allegiance to the Federal government, they o-vye also
a qualified allegiance to the State in which they are domiciled ; their per
sons and property are subject to its laws.
Hence, in organizing this rebellion, they have acted as States, claiming to
be sovereign over all persons and property within their respective limits,
and asserting a right to absolve their citizens from their allegiance to the
19
146 NOTES.
Federal government. Several of these States have combined to form a new
confederacy, claiming to be acknowledged by the world as a sovereign
State. Their right to do so is now being decided by wager of battle. The
ports and territory of each of these States are held in hostility to the gen
eral government. It is no loose, unorganized insurrection, having no
denned boundary or possession. It has a boundary, marked by lines of
bayonets, and which can be crossed only by force. South of this line is
enemy's territory, because it is claimed and held in possession by an organ
ized, hostile, and belligerent power.
All persons residing within this territory, whose property may be used to
increase the revenues of the hostile power, are in this contest liable to be
treated as enemies, though not foreigners. They have cast oft' their alle
giance, and made war on their government, and are none the less enemies
because they are traitors.
But in defining the meaning of the term " enemies' property," we will be
led into error if we refer to Fleta and Lord Coke for their definition of the
"word " enemy." It is a technical phrase peculiar to prize courts, and
depends upon principles of public as distinguished from the common law.
Whether property be liable to capture as " enemies' property," does not
in any manner depend on the personal allegiance of the owner. " It is the
illegal traffic that stamps it as ' enemies' property.' It is of no consequence
whether it belongs to an ally or a citizen." 8 Cranch, 384. " The owner
pro liac vice is an enemy." 3 Wash. C. C. R. 183.
The produce of the soil of the hostile territory, as well as other property
engaged in the commerce of the hostile power, as the source of its wealth
and strength, is always regarded as legitimate prize, without regard to the
domicile of the owner, and much more so if he reside and trade within its
territory. (See Upton, chap. 3d, et cas. cit.)
The foregoing opinion of the highest judicial tribunal of the United
States was delivered by Mr. Justice Grier, and was concurred in by Justices
Wayne, Swayne, Miller, and Davis. An opinion was delivered by Mr.
Justice Nelson, and concurred in by Chief Justice Taney, and Justices Clif
ford and Catron, who differed from the majority of the Court upon the
question, " whether our civil war began before July 13, 1861 ? " the major
ity holding the affirmative, and the minority the negative.
Both opinions sanction many of the doctrines of international, constitu
tional, and belligerent law set forth in the treatise on the " War Powers of
the President, and the Legislative Power of Congress"
Mr. Justice NELSON, dissenting. The property in this case, vessel and
cargo, was seized by a government vessel on the 20th of May, 1861, in
Hampton Roads, for an alleged violation of the blockade of the ports of the
State of Virginia. The Hiawatha was a British vessel, and the cargo
belonged to British subjects. The vessel had entered the James River
before the blockade, on her way to City Point, upwards of one hundred
miles from the mouth, where she took in her cargo. She finished loading
on the loth of May, but was delayed from departing on her outward voyage
till the 17th for want of a tug to tow her down the river. She arrived at
Hampton Roads on the 20th, where, the blockade in the mean time having
been established, she was met by one of the ships, and the boarding officer
indorsed on her register, " Ordered not to enter any port in Virginia, or
south of it." This occurred some three miles above the place where the
flag ship was stationed, and the boarding officer directed the master to heave
his ship to when he came abreast of the flag-ship, which was done, when
»he was taken in charge as prize.
NOTES. 147
On the 30th of April, flag-officer Pendergrast, U. S. ship Cumberland, off
Fortress Monroe, in Hampton Iloads, gave the following notice : " All
vessels passing the capes of Virginia, coming from a distance and ignorant
of the proclamation (the proclamation of the President of the 27th of
April that a blockade would be established), will be warned off; and those
passing Fortress Monroe will be required to anchor under the guns of the
fort and subject themselves to an examination."
The Hiawatha, while engaged in putting on board her cargo at City
Point, became the subject of correspondence between the British Minister
and the Secretary of State, under date of the 8th and 9th of May, which drew
from the Secretary of the Navy a letter of the 9th, in which, after referring
to the above notice of the flag officer Pendergrast, and stating that it had
been sent to the Baltimore and Norfolk papers, and by one or more published,
advised the Minister that fifteen days had been fixed as a limit for neutrals
to leave the ports after an actual blockade had commenced, with or without
cargo. The inquiry of the British Minister had referred not only to the
time that a vessel would be allowed to depart, but whether it might be
ladened within the time. This vessel, according to the advice of the Secre
tary, would be entitled to the whole of the loth of May to leave City Point,
her port of lading. As we have seen, her cargo was on board within the
time, but the vessel was delayed in her departure for want of a tug to tow
her down the river.
We think it very clear, upon all the evidence, that there was no intention
on the part of the master to break the blockade ; that the seizure under the
circumstances was not warranted, and upon the merits, that the ship and
cargo should have been restored.
Another ground of objection to this seizure is, that the vessel was enti
tled to a warning indorsed on her papers by an officer of the blockading
force, according to the terms of the proclamation of the President ; and
that she was not liable to capture except for the second attempt to leave
the port.
The proclamation, after certain recitals, not material in this branch of the
case, provides as follows : the President has " deemed it advisable to set on
foot a blockade of the ports within the States aforesaid (the States referred
to in the recitals), in pursuance of the laws of the United States and of the
law of nations, in such case made and provided." " If, therefore, with a
view to violate such blockade, a vessel shall approach, or shall attempt to
leave either of said ports, she will be duly warned by the commander of
one of the blockading vessels, who will indorse on her register the fact and
date of such warning, and if the same vessel shall again attempt to enter
or leave the blockaded port, she will be captured and sent to the nearest
convenient port for such proceedings against her and her cargo, as prize,
as may be deemed advisable."
The proclamation of the President of the 27th of April extended that of
the 19th to the States of Virginia and North Carolina.
It will be observed that this warning applies to vessels attempting to
enter or leave the port, and is therefore applicable to the Hiawatha.
We must confess that we have not heard any satisfactory answer to the
objection founded upon the terms of this proclamation.
It has been said that the proclamation, among other grounds, as stated
on its face, is founded on the " law of nations," and hence draws after it the
law of blockade as found in that code, and that a warning is dispensed with
[n all cases where the vessel is chargeable with previous notice or knowledge
that the port is blockaded. But the obvious answer to the suggestion is,
that there is no necessary connection between the authority upon which the
148 NOTES.
proclamation is issued and the terms prescribed as the condition of its pen
alties or enforcement, and, besides, if founded upon the law of nations,
surely it was competent for the President to mitigate the rigors of that code,
and apply to neutrals the more lenient and friendly principles of inter
national law. We do not doubt but that considerations of this character
influenced the President in prescribing these favorable terms in respect to
neutrals ; for, in his message a few months later to Congress (4th July),
he observes, " a proclamation was issued for closing the ports of the insur
rectionary districts " (not by blockade, but) " by proceedings in the nature
of a blockade."
This view of the proclamation seems to have been entertained by the
Secretary of the Navy, under whose orders it was carried into execution.
In his report to the President, 4th July, he observes, after referring to
the necessity of interdicting commerce at those ports where the govern
ment were not permitted to collect the revenue, that " in the performance
of this domestic municipal duty the property and interests of foreigners
became, to some extent, involved in our home questions, and with a view
of extending to them every comity that circumstances would justify, the
rules of blockade were adopted, and, as far as practicable, made applicable
to the cases that occurred under this embargo or non-intercourse of the
insurgent States. The commanders, he observes, were directed to permit
the vessels of foreigners to depart within fifteen days as in case of actual
effective blockade, and their vessels were not to be seized unless they
attempted, after having been once warned off, to enter an interdicted port in
disregard of such warning."
The question is not a new one in this Court. The British government
had notified the United States of the blockade of certain ports in the West
Indies, but " not to consider blockades as existing, unless in respect to par
ticular ports which may be actually invested, and, then, not to capture ves
sels bound to such ports, unless they shall have been previously warned not
to enter them."
The question arose upon this blockade in Mar. In. Co. vs. Woods
(6 Cranch, 29).
Chief Justice Marshall, in delivering the opinion of the court, observed,
" The words of the order are not satisfied by any previous notice which the
vessel may have obtained, otherwise than by her being warned off. This is
a technical term which is well understood. It is not satisfied by notice
received in any other manner. The effect of this order is, that a vessel
cannot be placed in the situation of one having notice of the blockade until
she is warned off. It gives her a right to inquire of the blockading squad
ron, if she shall not receive this warning from one capable of giving it,
and, consequently, dispenses with her making that inquiry 'elsewhere.
While this order was in force a neutral vessel might lawfully sail for a
blockaded port, knowing it to be blockaded, and being found sailing towards
such port, would not constitute an attempt to break the blockade until she
should be warned off."
We are of opinion, therefore, that, according to the very terms of the
proclamation, neutral ships were entitled to a warning by one of the block
ading squadron, and could be lawfully seized only on the second attempt to
enter or leave the port.
It is remarkable, also, that both the President and the Secretary, in refer-
ling to the blockade, treat the measure, not as a blockade under the law of
nations, but as a restraint upon commerce at the interdicted ports under the
municipal laws of the government.
Another objection taken to the seizure of this vessel and cargo is, that
NOTES. 149
there was no existing war between the United States and the States in in
surrection, within the meaning of the law of nations, which drew after it
the consequences of a public or civil war. A contest by force between
independent sovereign States is called a public war ; and, when duly com
menced, by proclamation or otherwise, it entitles both of the belligerent
parties to all the rights of war against each other and as respects neutral
nations. Chancellor Kent observes, " Though a solemn declaration, or pre
vious notice to the enemy, be now laid aside, it is essential that some for
mal public act, proceeding directly from the competent source, should
announce to the people at home their new relations and duties growing out
of a state of war, and which should equally apprise neutral nations of the
fact, to enable them to conform their conduct to the rights belonging to the
new state of things." " Such an official act operates from its date to
legalize all hostile acts, in like manner as a treaty of peace operates from
its date to annul them." He further observes, " As a war cannot lawfully
be commenced on the part of the United States without an act of Congress,
such act is, of course, a formal notice to all the world, and equivalent to
the most solemn declaration."
The legal consequences resulting from a state of war between two coun
tries at this day are well understood, and will be found described in every
approved work on the subject of international law. The people of the two
countries become immediately the enemies of each other — all intercourse,
commercial or otherwise, between them unlawful — all contracts existing at
the commencement of the war suspended, and all made during its existence
utterly void. The insurance of enemies' property, the drawing of bills of
exchange or purchase on the enemies' country, the remission of bills or
money to it, are illegal and void. Existing partnerships between citizens or
subjects, of the two countries are dissolved, and, in fine, interdiction of
trade and intercourse, direct or indirect, is absolute and complete by the
mere force and effect of war itself. All the property of the people of the
two countries on land or sea are subject to capture and confiscation by the
adverse party as enemies' property, M'ith certain qualifications as it respects
property on land (Brown vs. United States, 8 Cranch, 110), all treaties
between the belligerent parties are annulled. The ports of the respective
countries may be blockaded, and letters of marque and reprisal geanted as
rights of war, and the law of prizes, as defined by the law of nations, comes
into full and complete operation, resulting from maritime captures, jure
belli. War also effects a change in the mutual relations of all states or
countries, not directly, as in the case of the belligerents, but immediately
and indirectly, though they take no part in the contest, but remain
neutral.
This great and pervading change in the existing condition of a country,
and in the relations of all her citizens or subjects, external and internal,
from a state of peace, is the immediate effect and result of a state of \\ar:
and hence the same code, which has annexed to the existence of a war all
these disturbing consequences, has declared that the right of making war
belongs exclusively to the supreme or sovereign power of the state.
This power, in all civilized nations, is regulated by the fundamental laws
or municipal constitution of the country.
By our Constitution this power is lodged in Congress. Congress shall
have power " to declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water."
We have thus far been considering the status of the citizens or subjects
of a country at the breaking out of a public war, when recognized or
declared by the competent power.
150 NOTES.
In the case of a rebellion, or resistance of a portion of the people of a
country against the established government, there is no doubt, if in its prog
ress and enlargement the government thus sought to be overthrown sees
fit, it may, by the competent power, recognize or declare the existence of a
state of civil w:ar, which will draw after it all the consequences and rights
of war between the contending parties as in the case of a public war. Mr.
Wheaton observes, speaking of civil war, " But the general usage of
nations regards such a war as entitling both the contending parties to all
the rights of war as against each other, and even as respects neutral na
tions." It is not to be denied, therefore, that if a civil war existed between
that portion of the people in organized insurrection to overthrow this
government at the time this vessel and cargo were seized, and if she was
guilty of a violation of the blockade, she would be lawful prize of war.
But before this insurrection against the established government can be
dealt with on the footing of a civil war, within the meaning of the law of
nations and the Constitution of the United States, and which will draw after
it belligerent rights, it must be recognized or declared by the war-making
power of the government. No power short of this can change the legal
status of the government or the relations of its citizens from that of peace
to a state of war, or bring into existence all those duties and obligations
of neutral third parties growing out of a state of war. The war power of
the government must be exercised before this changed condition of the
government and people and of neutral third parties can be admitted.
There is no difference in this respect between a civil or a public war.
We have been more particular upon this branch of the case than would
seem to be required on account of any doubt or difficulties attending the
subject, in view of the approved works upon the law of nations or from the
adjudication of the courts, but, because some confusion existed on the
argument as to the definition of a war that drew after it all the rights of
prize of war. Indeed, a great portion of the argument proceeded upon the
ground that these rights could be called into operation, enemies' property
captured, blockades set on foot, and all the rights of war enforced in prize
courts, by a species of war unknown to the law of nations and to the Con
stitution of the United States.
An idea seemed to be entertained that all that was necessary to constitute
a war, was organized hostility in the district of country in a state of rebel
lion ; that conflicts on land and on sea, the taking of towns and capture
of fleets, in fine, the magnitude and dimensions of the resistance against
the government, constituted war, with all the belligerent rights belonging
to civil war. With a view to enforce this idea, we had, during the argu
ment, an imposing historical detail of the several measures adopted by the
Confederate States to enable them to resist the authority of the general
government, and of many bold and daring acts of resistance and of con
flict. It was said that war was to be ascertained by looking at the armies
and navies or public force of the contending parties, and the battles lost
and won ; that in the language of one of the learned counsel, " When
ever the situation of opposing hostilities has assumed the proportions and
pursued the methods of war, then peace is driven out, the ordinary authority
and administration of law are suspended, and war in fact and by necessity
is the status of the nation until peace is Restored and the laws resumed their
dominion."
Now, in one sense, no doubt this is war, and may be a war of the most
extensive and threatening dimensions and effects, 'but it is a statement
simply of its existence in a material sense, and has no relevancy or weight
when the question is, what constitutes war, in a legal sense, in the sense of
NOTES. 151
the law of nations, and of the Constitution of the United States ? For it
must be a war in this sense to attach to it all the consequences that belong
to belligerent rights. Instead; therefore, of inquiring after armies and
navies, and victories lost and won, or organized rebellion against the gener
al government, the inquiry should be into the law of nations and into the
municipal fundamental laws of the government. For we find there, that to
constitute a civil war in the sense in which we are speaking, before it can
exist, in contemplation of law, it must be recognized, or declared by the
sovereign power of the state, and which sovereign powers by our Constitu
tion is lodged in the Congress of the United States ; — civil war, therefore,
under our system of government, can exist only by an act of Congress,
which requires the assent of two of the great departments of the govern
ment, the Executive and Legislative.
We have thus far been speaking of the war power under the Constitution
of the United States, and as known and recognized by the law of nations.
But we are asked, what would become of the peace and integrity of the
Union in case of an insurrection at liome or invasion from abroad if this
power could not be exercised by the President in the recess of Congress,
and until that body could be assembled ?
The framers of the Constitution fully comprehended this question, and
provided for the contingency. Indeed, it would have been surprising if
they had not, as a rebellion had occurred in the State of Massachusetts
while the Convention was in session, and which had become so general that
it was quelled only by calling upon the military power of the State. The
Constitution declares that Congress shall have power " to provide for call
ing forth the militia to execute the laws of the Union, suppress insurrec
tions, and repel invasions." Another clause, " 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 ; " and, again, " he shall take care that the laws shall be
faithfully executed." Congress passed laws on this subject in 1792 and
1795. 1 United States Laws, pp. 264, 424.
The last Act provided that whenever the United States shall be invaded,
or be in imminent danger of invasion from a foreign nation, it shall be
lawful for the President to call forth such number of militia most conve
nient to the place of danger, and in case of insurrection in any State against
the government, thereof, it shall be lawful for the President, on the applica
tion of the Legislature of such State, if in session, or if not, of the Execu
tive of the State, to call forth such number of militia of any other State or
States as he may judge sufficient to suppress such insurrection.
The 2d section provides, that when the laws of the United States shall
be opposed, or the execution obstructed in any State by combinations too
powerful to be suppressed by the course of judicial proceedings, it shall be
lawful for the President to call forth the militia of such State, or of any
other State or States as may be necessary to suppress such combinations •
and by the Act 3 March, 1807 (2 U. S. Laws, 443), it is provided tha;
in case of insurrection or obstruction of the laws, either in the United
States or of any State or Territory, where it is lawful for the President to
call forth the militia for the purpose of suppressing such insurrection, and
causing the laws to be executed, it shall be lawful to employ for the same
purpose such part of the land and naval forces of the United States as
shall be judged necessary.
It will be seen, therefore, that ample provision has been made under the
Constitution and laws against any sudden and unexpected disturbance of
th? public peace from insurrection at home or invasion from abroad. The
152 NOTES.
whole military and naval power of the country is put under the control of
the President to meet the emergency. He may call out a force in propor
tion to its necessities, one regiment or fifty, one ship of war, or any number
at his discretion. If, like the insurrection in the State of Pennsylvania in
1793, the disturbance is confined to a small district of country, a few regi
ments of the militia may be sufficient to suppress it. If of the dimension
of the present, when it first broke out, a much larger force would be
required. But whatever its numbers, whether great or small, that may be
required, ample provision is here made ; and whether great or small, the
nature of the power is the same. It is the exercise of a power under the
municipal laws of the country and not under the law of nations ; and, as
we see, furnishes the most ample means of repelling attacks from abroad
or suppressing disturbances at home until the assembling of Congress, who
can, if it be deemed necessary, bring into operation the war power, and
thus change the nature and character of the contest. Then, instead of
being carried on under the municipal law of 1795, it would be under the
law of nations, and the Acts of Congress as war measures, with all the rights
of war.
It has been argued that the authority conferred on the President by the
Act of 1795 invests him with the war power. But the obvious answer is,
that it proceeds from a different clause in the Constitution, and which is
given for different purposes and objects, namely, to execute the laws and
preserve the public order and tranquillity of the country in a time of peace
by preventing or suppressing any public disorder or disturbance by foreign
or domestic enemies. Certainly, if there is any force in this argument,
then we are in a state of war with all the rights of war, and all the penal
consequences attending it every time this power is exercised by calling out
a military force to execute the laws or to suppress insurrection or rebellion ;
for the nature of the power,tcannot depend upon the numbers called out.
If so, what numbers will constitute war and what numbers will not ? It
has also been argued that this power of the President from necessity should
be construed as vesting him with the war power, or the Republic might
greatly suffer or be in danger from the attacks of the hostile party before
the assembling of Congress. But we have seen that the whole military and
naval force are in his hands under the municipal laws of the country. He
can meet the adversary upon land and water with all the forces of the
government. The truth is, this idea of the existence of any necessity for
clothing the President with the war power, under the Act of 1795, is sim
ply a monstrous exaggeration ; for, besides having the command of the whole
of the army and navy, Congress can be assembled within any thirty days,
if the safety of the country requires that the Avar power shall be brought
into operation.
The Acts of 1795 and 1807 did not, and could not under the Constitution,
confer on the President the power of declaring war against a State of this
Union, or of deciding that war existed, and upon that ground authorize
the capture and confiscation of the property of every citizen of the State
whenever it was found on the waters. The laws of war, whether the war
be civil or inter gentcs, as we have seen, convert every citizen of the hostile
State into a public enemy, and treat him accordingly, whatever may have
been his previous conduct. This great power over the business and prop
erty of the citizen is reserved to the legislative department by the express
words of the Constitution. It cannot be delegated or surrendered to the
Executive. Congress alone can determine whether war exists or should be
declared ; and until they have acted, no citizen of the State can be punished
in his person or property, unless he has committed some offence against a
NOTES. 153
law of Congress passed before the act was committed, which made it a
crime, and defined the punishment. The penalty of confiscation for the acts
of others with which he had no concern cannot lawfully be inflicted.
In the breaking out of a rebellion against the established government,
the usage in all civilized countries, in its first stages, is to suppress it by
confining the public forces and the operations of the government against
those in rebellion, and at the same time extending encouragement and sup
port to the loyal people with a view to their cooperation in putting down
the insurgents. This course is not only the dictate of wisdom, but of jus
tice. This was the practice of England in Monmouth's rebellion in the
reign of James the Second, and in the rebellions of 1715 and 1745, by the
Pretender and his son, and also in the beginning of the rebellion of the
Thirteen Colonies of 1776. It is a personal war against the individuals
engaged in resisting the authority of the government. This was the char
acter of the war of our Revolution till the passage of the Act of the Par
liament of Great Britain of the 16th of George Third, 1776. By that act
all trade and commerce with the Thirteen Colonies was interdicted, and all
ships and cargoes belonging to the inhabitants subjected to forfeiture, as if
the same were the ships and effects of open enemies. From this time the
war became a territorial civil war between the contending parties, with all
the rights of war known to the law of nations. Down to this period the
war was personal against the rebels, and encouragement and support con
stantly extended to the loyal subjects who adhered to their allegiance, and
although the power to make war existed exclusively in the King, and of
course this personal war carried on under his authority, and a partial exer
cise of the war power, no captures of the ships or cargo of the rebels as
enemies' property on the sea, or confiscation in Prize Courts as rights of
war, took place until after the passage of the Act of Parliament. Until
the passage of the act the American subjects were not regarded as enemies
in the sense of the law of nations. The distinction between the loyal and
rebel subjects was constantly observed. That act provided for the capture
and confiscation as prize of their property as if the same were the property
" of open enemies." For the first time the distinction was obliterated.
So the war carried on by the President against the insurrectionary dis
tricts in the Southern States, as in the case of the King of Great Britain in
the American Revolution, was a personal war against those in rebellion,
and with encouragement and support of loyal citizens with a view to their
cooperation and aid in suppressing the insurgents, with this difference, as
the war-making power belonged to the King, he might have recognized or
declared the war at the beginning to be a civil war, which would draw after
it all the rights of a belligerent, but in the case of the President no such
power existed ; the war therefore from necessity Avas a personal war, until
Congress assembled and acted upon this state of things.
Down to this period the only enemy recognized by the government was
the persons engaged in the rebellion ; all others were peaceful citizens,
entitled to all the privileges of citizens under the Constitution. Certainly it
cannot rightfully be said that the President has the power to convert a loyal
citizen into a belligerent enemy, or confiscate his property as enemy's
property.
Congress assembled on the call for an extra session the 4th of July, 1861,
and among the first acts passed was one in which the President was author
ized by proclamation to interdict all trade and intercourse between all the
inhabitants of States in insurrection, and the rest of the United States, sub
jecting vessel and cargo to capture and condemnation as prize, and also to
direct the capture of any ship or vessel belonging in whole or in part to
20
154 NOTES.
any inhabitant of a State whose inhabitants are declared by the proclama
tion to be in a state of insurrection, found at sea or in any part of the rest
of the United States. Act of Congress of 13th of July, 1861, sees. 5, 6.
The 4th section also authorized the President to close any port in a Collec
tion District obstructed so that the revenue could not be collected, and provid
ed for the capture and condemnation of any vessel attempting to enter.
The President's Proclamation was issued on the 16th of August follow
ing, and embraced Georgia, North and South Carolina, part of Virginia,
Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida.
This Act of Congress, we think, recognized a state of civil war between
the government and the Confederate States, and made it territorial. The
Act of Parliament of 1776, which converted the rebellion of the Colonies
into a civil territorial war, resembles, in its leading features, the act to
which we have referred. Government, in recognizing or declaring the
existence of a civil war between itself and a portion of the people in insur
rection, usually modifies its effects with a view, as far as practicable, to favor
the innocent and loyal citizens or subjects involved in the war. It is only
the urgent necessities of the government, arising from the magnitude of the
resistance, that can excuse the conversion of the personal into a territorial
war, and thus confound all distinction between guilt and innocence ;
hence the modification in the Act of Parliament declaring the territorial
war.
It is found in the 44th section of the Act, which, for the encouragement
of well affected persons, and to afford speedy protection to those desirous
of returning to their allegiance, provided for declaring such inhabitants of
any colony, county, town, port, or place, at peace with his majesty, and
after such notice by proclamation there should be no further captures. The
Act of 13th of July provides that the President may, in his discretion, per
mit commercial intercourse with any such part of a State or section, the in
habitants of which are declared to be in a state of insurrection (§ 5),
obviously intending to favor loyal citizens, and encourage others to return
to their loyalty. And the 8th 'section provides that the Secretary of the
Treasury may mitigate or remit the forfeitures and penalties incurred under
the act. The Act of 31st July is also one of a kindred character. That
appropriates $2,000,000 to be expended under the authority of the Presi
dent in supplying and delivering arms and munitions of war to loyal
citizens residing in any of the States of which the inhabitants are in rebel
lion, or in which it may be threatened. We agree, therefore, that the Act
13th July, 1861, recognized a state of civil war between the government
and the people of the States described in that proclamation.
The cases of the United States vs. Palmer (3 Wh. 610) ; Divina
Pastora, and 4 Ibid, 52, and that class of cases to be found in the reports
are referred to as furnishing authority for the exercise of the war power
claimed for the President in the present case. These cases hold that when
the government of the United States recognizes a state of civil war to
exist between a foreign nation and her colonies, but remaining itself
neutral, the courts are bound to consider as lawful all those acts which the
new government may direct against the enemy ; and we admit the President,
who conducts the foreign relations of the government, may fitly recognize,
or refuse to do so, the existence of civil war in the foreign nation under the
circumstances stated.
But this is a very different question from the one before us, which is,
whether the President can recognize or declare a civil war, under the Con
stitution, with all its belligerent rights, between his own government and a
portion of its citizens in a state of insurrection. That power, as we have
seen, belongs to Congress. We agree, when such a war is recognized or
NOTES. 155
declared to exist by the war-making power, but not otherwise, it is the duty
of the courts to follow the decision of the political power of the govern
ment.
The case of Luther vs. Sorden, et al. (7 How., 45), which arose out of
the attempt of an assumed new government in the State to overthrow the
old and established government of Rhode Island by arms. The Legislature
of the old government had established martial law, and the Chief Justice, in
delivering the opinion of the court, observed, among other things, that " if
the government of Rhode Island deemed the armed opposition so formida
ble and so ramified throughout the State as to require the use of its military
force, and the declaration of martial law, we see no ground upon which this
court can question its authority. It was a state of war, and the established
government resorted to the rights and usages of war to maintain itself and
overcome the unlawful opposition."
But it is only necessary to say, that the term " war " must necessarily
have been used here by the Chief Justice in its popular sense, and not as
known to the law of nations, as the State of Rhode Island confessedly pos
sessed no power under the Federal Constitution to declare war.
Congress, on the 6th of August, 1862, passed an Act confirming all acts,
proclamations, and orders of the President, after the 4th of March, 1861,
respecting the army and navy, and legalizing them, so far as was competent
for that body, and it has been suggested, but scarcely argued, that this
legislation on the subject had the effect to bring into existence an ex post
facto civil war, with all the rights of capture and confiscation, jure belli,
from the date referred to. An ex pos,t facto law is defined, when, after an
action, indifferent in itself, or lawful, is committed, the Legislature then, for
the first time, declares it to have been a crime, and inflicts punishment upon
the person who committed it. The principle is sought to be applied in this
case. Property of the citizen or foreign subject engaged in lawful trade at
the time, and illegally captured, which must be taken as true if a confirma
tory act be necessary, may be held and confiscated by subsequent legislation.
In other words trade and commerce authorized at the time by acts of Con
gress and treaties, may, by ex post facto legislation, be changed into illicit
trade and commerce with all its penalties and forfeitures annexed and
enforced. The instance of the seizure of the Dutch ships in 1803 by Great
Britain before the war, and confiscation after the declaration of war, which
is well known, is referred to as an authority. But there the ships were
seized by the war power, the orders of the government, the seizure being a
partial exercise of that power, and which was soon after exercised in full.
The precedent is one which has not received the approbation of jurists,
and is not to be followed. See W. B. Lawrence, 2d ed. Wheaton's Element
of Int. Law, pt. 4, ch. 1, sec. 11, and note. But, admitting its full weight,
it affords no authority in the present case. Here the captures were without
any constitutional authority, and void; and, on principle, no subsequent
ratification could make them valid.
Upon the whole, after the most careful consideration of this case which
the pressure of other duties has admitted, I am compelled to the conclusion
that no civil war existed between this government and the States in insur
rection till recognized by the Act of Congress 13th of July, 1861 ; that the
President does not possess the power under the Constitution to declare ^yar
or recognize its existence within the meaning of the law of nations, which
carries with it belligerent rights, and thus change the country and all its
citizens from a state of peace to a state of war ; that this power belongs
exclusively to the Congress of the United States, and, consequently, that
the President had no power to set on foot a blockade under the law of
nations, and that the capture of the vessel and cargo in this case, and in all
156 NOTES.
cases before us in which the capture occurred before the 13th of July, 1861,
for breach of blockade, or as enemies' property, are illegal and void, and
that the decrees of condemnation should be reversed and the vessel and
cargo restored.
Mr. Chief Justice TANEY, Mr. Justice CATRON, and Mr. Justice
CLIFFORD, concurred in the Dissenting Opinion of Mr. Justice NELSON.
From the foregoing opinion of the judges who dissented from the opin
ion of the majority of the Court, it will be seen that the Court were unani
mous on several great questions treated of in the preceding work. The
judges all agree in considering a civil war (with all the consequences to the
residents of the seceding States of & public territorial war) to have existed
since the act of July IWi, 1861, and still to exist. The question on which
the judges differed was, whether the rebellion was or was not a civil terri
torial war prior to this Act of Congress.
Among the points thus authoritatively settled by agreement of all the
judges, are these : —
1. Since July 13th, 1861, there has existed betAveen the United States
and the Confederate States a civil, territorial war.
2. That the United States, since that time, have full belligerent rights
against all persons residing in the rebellious districts.
3. That whether the inhabitants of the rebellious districts are guilty or
innocent, loyal or disloyal, such persons are, in the eye of the law, belliger
ent enemies, and they and their property are subject to the laws of war.
" The laws of war, whether the war be civil or inter gentes. converts every
citizen of the hostile State into a public enemy, and treats him accordingly,
whatever may have been his previous conduct."
4. All the rights of war now may be lawfully and constitutionally exercised
against all the inhabitants of the seceded States.
The following extract from the same opinion shows what some of these
belligerent rights are : —
" The legal consequences resulting from a state of war between two
countries, at this day, are well understood, and will be found described in
every approved work on the subject of international law. The people of
the two countries immediately become enemies of each other ; all inter
course, commercial or othencise, between them unlawful ; all contracts
existing at the commencement of the war suspended, and "all made during its
existence utterly void. The insurance of enemies' property, the drawing of
bills of exchange or purchase in the enemy's country, the remission of bills
or money to it, are illegal and void. Existing partnerships between citizens
or subjects of the two countries are dissolved, and in fine, interdiction of
trade and intercourse, direct or indirect, is absolute and complete by the
mere force and effect of war itself. All the property of the people of the
two countries, on land or sea, is subject to capture and confiscation by the
adverse party, as enemies' property, with certain qualifications as it respects
property on land. (8 Cranch, 110, Brown vs. United States.} All treaties
between the belligerent parties are annulled. The ports of the respective
countaies may be blockaded, and letters of marque and reprisal granted
as rights of war, and the law of prize, as defined by the law of nations,
comes into full and complete operation, resulting from maritime captures
"'ure belli. War also effects a change in the mutual relations of all States
or countries, not directly, as in case of belligerents, but immediately and
indirectly, though they take no part in the contest, but remain neutral.
" The great and pervading change in the condition of a country, and in
the relations of all her citizens and subjects, external and internal, from a
state of peace, is the immediate effect and result of a state of war."
MILITARY ARRESTS
IN
TIME OF WAR.
PREFACE TO MILITARY ARRESTS.
In November, 1862, when the author was first requested by the
Government to act as Solicitor and special counsel of the War Depart
ment, civil suits and criminal prosecutions were pending against mil
itary officers and other persons who, acting under orders of the War
Department, had arrested and detained in custody citizens of the
United States, and aliens. It was a part of the duty assigned to him
to instruct counsel employed in different parts of the country for the
defence of those who had been wrongfully subjected to such proceed
ings by reason of their obedience to orders. As time advanced, suits
and prosecutions multiplied, involving men in high position. Treason
reared its head in many shapes and in many places in the Northern
States. Attempts were constantly made to bring the judicial power
of individual States into collision with the military forces of the
Union.
In all such cases, it was essential to preserve the power and dignity
of the General Government unimpaired, and at the same time to avoid
open rupture with the courts ; hence it was desirable to meet and foil
the secret enemies of their country by the use of judicial weapons.
The stern demands of military necessity were to be reconciled with the
maintenance of civil liberty, and with the preservation of local self-
government. It became necessary to show that when, in time of war,
the life of the body politic was in danger, the surgeon's knife was the
only instrument by which that life could be saved.
The judicial mind was then far from comprehending either the
perilous condition of public affairs, the change wrought by civil war in
the rights, powers, and duties of the bench, or the danger of destroying
the government itself by collision between its Political and Judicial
Departments. The powers of war, the rights of war, and the courts of
war, seemed equally strange and alarming ; and it is a gratifying proof
of the learning and wisdom of the bench, of the bar, and of Con
gress, that recognition and sanction of doctrines of constitutional law,
159
1GO PREFACE TO MILITARY ARRESTS.
which two years ago were confined to a few individuals, have now
become so general among our most eminent judges, lawyers, and legis
lators.
The following pages on Military Arrests were written in the winter
and spring of 1862-8, in order to express, in a form convenient for
transmission to counsel acting under his instructions, the views of the
author on the general legal principles on which military arrests are
justifiable and defensible. They contain in more extended form the
same doctrines of constitutional law expressed in the WAR POWERS,
page 83 ; and were originally published and distributed by order of
the Secretary of War.
w. w
WAR DEPARTMENT,
WASHINGTON, June 30, 1864.
MILITARY ARRESTS.
THE people of the United States, having made great
sacrifices to secure and perpetuate the blessings of civil
liberty, demand, in time of peace, protection and se
curity in the enjoyment of all rights guaranteed to
them by the Constitution. But civil war has com
pelled the government to use its war powers of seizing
property and of capturing persons by military authority.
Such seizures and captures have been regarded as a
wrongful use of arbitrary power, and have, therefore,
been looked upon with alarm. For this reason loyal
citizens have, in some instances, made the mistake
of setting up unjustifiable claims in behalf of public
enemies, asserting for them the privilege of freedom
from military arrest, or of discharge from imprison
ment, and have thus, unintentionally, aided the rebel
lion by striving to prevent our military forces from
temporarily restraining persons acting in open hostility
against them. A careful examination of the powers
and duties of the government will show that arrests of
persons and seizures of property may be made by mili
tary authority, in time of rebellion, without destroying
our liberty or violating the Constitution ; and that we
need not overstate the claims of traitors in order to se
cure the rights of citizens.
21 1G1
162 MILITARY ARRESTS IN TIME OF WAR.
CIVIL WAR CHANGES OUR LIBERTIES.
In time of civil war every citizen must needs be cur
tailed of some of his accustomed privileges. Soldiers
and sailors give up much of their personal liberty by
ren'dering themselves liable to obey the orders of their
commanding officers. All subjects of our government
capable of bearing arms may be enrolled in the forces
of the United States, and are liable to be made sol
diers. Our property is liable to be diminished by unu
sual taxes, or wholly appropriated to public use, or de
stroyed on the approach of an enemy. Trade and
commercial intercourse with our adversaries are no
longer lawful. Civil, municipal, constitutional and in
ternational rights are all affected by the existence of
civil war. Shall those who are disloyal or hostile to the
Union complain that their privileges are also modified
in order to protect the country from their own miscon
duct?
Some reference to the general war powers of the
President being essential to an explanation of the sub
ject of military arrests, it has been found most conven
ient to repeat, in this connection, the following ex
tracts, which may be found in a preceding chapter/11
GENERAL WAR POWERS OF THE PRESIDENT.
" It is not intended (in this chapter) to explain the
general war powers of the President. They are prin
cipally 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
* Chapter III., " War Powers," pp. 82, 83.
MILITARY ARRESTS IN TIME OF WAR.
Cl. 2. By Art. II., Sect. 2, the President is made com-
mander-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 ser
vice.' 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, i
by refusing to vote supplies, or to raise troops, and by I
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 what
ever, rights loyal citizens are entitled to enjoy in time
of civil war, to the fullest extent that may be consistent
with the perf.miicirice of the military duty imposed on
him.*
" 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 ho or the
War Department may lawfully order the arrest of citi
zens 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 to discourage enlistments ; whether
* The effect of a state of war, in changing or modifying- civil rights, is explained in the
" War Powers of the President," &c. See " Civil Eights."
164 MILITARY ARRESTS IN TLA1E OF WAR.
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 supply
ing 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 ineffec
tual machinery of arrests by marshals, who can rarely
have means of apprehending them, and of grand ju
ries, who meet twice a year, and could seldom, if
ever, seasonably secure the evidence on which to in
dict 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 be
trayed and destroyed by depriving any citizen tem
porarily of the power of acting as an enemy, when-
MILITARY ARRESTS IN TIME OF WAR. 165
ever 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 ex
press 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 treat
ment 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 guards or military officers (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 ar
rested, wherever he may be found, whether within, or
beyond 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 Presi
dent, as an executive magistrate, in time of peace, to
see that the laws existing in time of peace are faithfully
166 MILITARY ARRESTS IN TIME OF WAR.
executed ; and as cominander-in-chiefj in time of war,
to see that the laws of war are executed. In doing
both duties he is strictly obeying the Constitution."
MARTIAL LAW IS THE LAW OF WAR.
It consists of a code of rules and principles regulat
ing the rights, liabilities, and duties, the social, munici
pal, and international relations, in time of war, of all
persons, whether neutral or belligerent. These rules
are liable to modification in the United States by stat
utes usually termed " military law," or " articles of
war," and by the " rules and regulations made in pur
suance thereof."
FOUNDATION OF MARTIAL LAW.
Municipal law is founded upon the necessities of so
cial organization. Martial law is founded upon the
necessities of war. Whatever compels a resort to war,
compels the enforcement of the laws of war.
THE LAWFUL MEANS OF WAR AS SHOWN BY THE OBJECTS AND
NECESSITIES OF WAR.
The objects and purposes for which war is inaugu
rated require the use of the instrumentalities of war.
When the law of force is appealed to, force must be
sufficiently untrammelled to be effectual. Military
power must not be restrained from reaching the pub
lic enemy in all localities, under all disguises. In war
there should be no asylum for treason. The aegis of
law should not cover a traitor. A public enemy,
wherever found in arms, may, if he resists, be killed,
or captured, and if captured he may be detained as a
MILITARY ARRESTS IN TIME OF WAR. 167
prisoner. The purposes for which war is carried on
may and must be accomplished. If it is justifiable to
commence and continue war, then it is justifiable to
extend the operations of war until they shall have
completely attained the end for which it was com
menced, by the use of all means employed in accord
ance with the rules of civilized warfare. And among
those means none are more familiar or more essential
than that of capturing, or arresting and confining the
enemy. Necessity arbitrates the rights and the meth
ods of war. Whatever hostile military act is essential
to public safety in civil war is lawful.
POWERS AND RESPONSIBILITIES OF MILITARY COMMANDERS.
" The law of nature and of nations gives to belliger
ents the right to employ such force as may be neces
sary in order to obtain the object for which the war
was undertaken." Beyond this the use of force is
unlawful. This necessity forms the limit of hostile
operations.
We have the same rights of war against the allies
or associates of an enemy as against the principal bel
ligerent.
When military forces are called into service for the
purpose of securing the public safety, they may law
fully obey military orders made by their superior offi
cers. The commander-in-chief is responsible for the
mode of carrying on war. He determines the persons
or people against whom his forces shall be used. He
alone is constituted the judge of the nature of the exi
gency, of the appropriate means to meet it, and of the
hostile character or purposes of individuals whose con
duct gives him cause to believe them to be enemies.
168 MILITARY ARRESTS IN TIME OF WAR,
His right to seize, capture, detain and imprison such
persons is as unquestionable as his right to carry on
war. The extent of the danger he is to provide
against must be determined by him ; he is responsi
ble, if he neglects to use the means of meeting or
avoiding it.
The nature of the difficulty to be met and the object
to be accomplished afford the true measure and limit of
the use of military powers. The military commander
must judge who the public enemy are, where they are,
what degree of force shall be used against them, and
what warlike measures are best suited to conquer or
effectually restrain them from future mischief If the
enemy be in small force, they may be captured by an
other small force ; if the enemy be a single individual,
he may be captured by a provost guard or marshal. If
an officer, in the honest exercise of his duty, makes a
mistake in arresting a friend instead of an enemy, or in
detaining a suspicious person, who may be finally lib
erated, he is not responsible for such error in criminal
or civil courts.
Any other rule would render war impracticable, and,
by exposing soldiers to the. hazard of ruinous litigation
if held liable to civil tribunals, would render obedience
to orders dangerous, and thus would break down the
discipline of armies.
ARRESTS ON SUSPICION.
Arrests or captures of persons whose conduct gives
reasonable cause to suspect that they contemplate acts
of hostility, are required and justified by military and
martial law. Such arrests are precautionary. The
MILITARY ARRESTS IN TIME OF WAR. 169
detention of such suspected persons by military author
ity is, for the same reason, necessary and justifiable.*
Nothing in the Constitution or laws can define the
possible extent of any military danger. Nothing there
fore in either of them can fix or define the extent of
power necessary to meet the emergency, to control the
military movements of the army, or of any detachments
from it, or of any single officer, provost marshal, or pri
vate.
Hence it is worse than idle to attempt to lay down
rules of law defining the territorial limits of military
operations, or of martial law, or of captures and ar
rests.
Wherever danger arises, there should go the military
means of defence or safeguard against it. Wherever a
single enemy makes his appearance, there he should be
arrested and restrained.
ABUSE OF POWER OF ARREST.
The power of arrest and imprisonment is doubtless
liable to abuse. But the liability to abuse does not
prove that the power does not exist. " There is no
power," says the Supreme Court, " that is not suscepti
ble of abuse. The remedy for this, as well as for all
other official misconduct, if it should occur, is to be
found in the Constitution itself. In a free government
the danger must be remote, since in addition to the
high qualities which the Executive must be presumed
to possess of public virtue, and honest devotion to the
public interests, the frequency of elections, and the
watchfulness of the representatives of the nation, carry
* Luther v. Borden, 7 Howard's Supreme Court Reports, p. 1.
22
170 MILITARY ARRESTS IN TIME OF WAR.
with them all the checks which can be useful to guard
against usurpation or wanton tyranny." *
SAFEGUARDS.
Our safeguards against the abuse of military power
are found, not in the denial of its existence, not in de
priving ourselves of its protection in time of public
danger, but in the civil responsibility of officers for
acts not justified by martial law, in the right to im
peach the President if he wilfully fails to execute the
laws, in the frequent change of public officers, in the in
telligence and high character of our soldiers, and in the
legislative power of Congress, which alone can declare
war, raise and support armies, make laws for their gov
ernment while in actual service, and may withhold
supplies, and may regulate or prevent the use of the
army and the navy where and when they might en
danger the public safety.
EFFECT OF WAR UPON THE COURTS AND OF COURTS UPON THE WAR.
Justice should rule over the deadly encounters of the
battle-field ; but courts and constables are there quite
out of place. Far from the centres of active hostilities,
judicial tribunals may still administer municipal law, so
long as their proceedings do not interfere with military
operations. But if the members of a court should im
pede, oppose, or interfere with military operations in
the field, whether acting as, magistrates or as individ
uals, they, like all other public enemies, are liable to
capture and imprisonment by martial law, They have
then lost the right to hold office, and have become ac-
* 12 Wheaton's Reports, p. 32.
MILITARY ARRESTS IN TIME OF WAR. 171
lively hostile. The character of their actions is to be
determined by the military commander, not by the
parchment which contains their commissions. A judge
may be a public enemy as effectually as any other citi
zen. The rebellious districts show many examples of
such characters. Is a judge sitting in a northern
court, and endeavoring to commit acts of hostility un
der the guise of administering law, any less a public
enemy than if he were holding court in South Caro
lina, and pretending to confiscate the property of loyal
men ? Are the black gown and wig to be the protec
tion of traitors ?
General Jackson arrested a judge in the war of 1812,
kept him in prison in order to prevent his acts of judi
cial hostility, and liberated him when he had repulsed
the enemy. The illegal fine imposed on him by that
judge was repaid to the General after many years, un
der a vote of Congress. Why should a judge be pro
tected from the consequences of his acts of hostility
more than the clergyman, the lawyer, or the governor
of a State ?
The public safety must not be hazarded by enemies,
whatever position they may hold in public or private
life. The more eminent their position, the more dan
gerous their disloyalty. Among acts of hostility which
would show a judge to be a public enemy, and would
subject him to arrest, are these : —
1. When a State judge is judicially apprised that a
party is in custody under the authority of the United
States, he cannot lawfully proceed, under a habeas corpus
or other process, to discharge the prisoner.
If he orders the prisoner* to be discharged, it is the
duty of the officer holding the prisoner to resist that
172 MILITARY ARRESTS IN TIME OF WAR.
order, and the laws of the United States will sustain
him in doing so, and in arresting and imprisoning the
judge, if necessary.*
2. So long as the courts do not interfere w^ith military
operations ordered by the cornrnander-in-chief, litigation
may proceed as usual ; but if that litigation entangles
and harasses the soldiers or the officers so as to disable
them from doing their military duty, the judges and the
actors being hostile, and using legal processes for the
purpose and design of impeding and obstructing the
necessary military operations in time of war, the courts
and lawyers are liable to precautionary arrest and con
finement, whether they have committed a crime known
to the statute law or not. Military restraint is to be used
for the prevention of hostilities, and public safety in time
of civil war will not permit courts or constables, colleges
or slave-pens, to be used as instruments of hostility to
the country.
When a traitor is seized in the act of committing
hostility against the country, it makes no difference
whether he is captured in a swamp or in a court-house,
or whether he has in his pocket the commission of a
judge or a colonel.
Commanders in the field are under no obligations to
take the opinions of judges as to the character or ex
tent of their military operations, nor as to the question
who are and who are not public enemies, nor who have
and who have not given reasonable cause to believe
that acts of hostility are intended. These questions
are, by the paramount laws of war, to be settled by the
officer in command.
* AUeman v. Booth, 21 How. 524, 525.
MILITARY ARRESTS IN TIME OF WAR. 173
MILITARY ARRESTS ARE NOT FORBIDDEN BY THE CONSTITUTION.
The framers of the Constitution having given to the
-commander-in-chief the full control of the army when
in active service, subject only to the articles of war,
have therefore given him the full powers of capture
and arrest of enemies, and have placed upon him the
corresponding obligation to use any and all such pow
ers as may be proper to insure the success of our arms.
To carry on war without the power of capturing or
arresting enemies would be impossible. We should
not, therefore, expect to find in the Constitution a pro
vision which would deprive the country of any means
of self-defence in time of unusual public danger.
We look in vain in the Constitution for a clause
which in any way limits the methods of using war
powers when war exists.
Some persons have turned attention to certain pas
sages in the amendments relating, as was supposed, to
this subject. Let us examine them : —
ARTICLE IY. " The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated."
This amendment merely declares that the right of
being secure against unreasonable seizures or arrests
shall not be violated. It does not declare that no ar
rests shall be made. Will any one deny that it is rea
sonable to arrest or capture the person of a public
enemy ?
If all arrests, reasonable or unreasonable, were pro
hibited, public safety would be disregarded in favor ot
the rights of individuals.
174 MILITARY ARRESTS IN TIME OF WAR.
Not only may military, but even civil arrests be
made when reasonable.
ARRESTS WITHOUT WARRANT.
It is objected that military arrests are made without
warrant. The military order is the warrant author
izing arrest, issuing from a commander, in like manner
as the judicial order is the warrant authorizing arrest,
issuing from a court. But even civil arrests at com
mon law may be made without warrant by constables,
or by private persons (1 Chitty, C. L., 15 to 22).
There is a liability to fine and imprisonment if an
offender is voluntarily permitted to escape by a per
son present at the commission of a felony or the inflic
tion of a dangerous wound.
Whenever there is probable ground of suspicion that
a felony has been committed, a private person may
without warrant arrest the felon, and probable cause
will protect the captor from civil liability.
" When a felony has been committed, a constable
may arrest a supposed offender on information, without
a positive charge, and without a positive knowledge of
the circumstances." And Chitty says, page 217, "A
constable may justify an imprisonment, without war
rant, on a reasonable charge of felony made to him,
although he afterwards discharge the prisoner without
taking him before a magistrate, although it turns out
that no felony was committed by any one."
In Wakely v. Hart, 6 Binney, 318, Chief Justice
Tilghman says of the constitution of Pennsylvania,
which is nearly in the same words on this subject as
the Constitution of the United States, —
MILITARY ARRESTS IN TIME OF WAR. 175
" The plaintiffs insist that by the constitution of this State no
arrest is lawful without warrant issued on probable cause, sup
ported by oath. Whether this be the true construction of the
Constitution is the main point in the case. It is declared in the
9th article, section 7, ' that the people shall be secure in their per
sons, houses, papers, and possessions, from unreasonable arrests,
and that no warrant to search any place, or seize any person or
thing, shall issue without describing them as nearly as may be,
nor without probable cause, supported by oath or affirmation.'
" The provisions of this section, so far as concern warrants, only
guard against their abuse by issuing them without good cause,
and in so general and vague a form as may put it in the power of
officers who execute them to harass innocent persons under pre
tence of suspicion ; for, if general warrants were allowed, it must
be left to the discretion of the officer on what persons or things
they are to be executed. But it is nowhere said that there shall
be no arrest without warrant. To have said so would have en
dangered the safety of society. The felon who is seen to commit
murder or robbery must be arrested on the spot, or suffered to
escape. So, although if not seen, yet if known to have committed
a felony, and pursued with or without warrant, he may be arrested
by any person.
" And even where there is only probable cause of suspicion, a
private person may, without warrant, at his peril, make the arrest.
I say at his peril, for nothing short of proving the felony will jus
tify the arrest" (that is, by a private person on suspicion).
"These principles of common law are essential to the welfare of
society, and not intended to be altered or impaired by the Con
stitution."
The right summarily to arrest persons in the act of
committing heinous crimes, has thus been sanctioned
from ancient times by the laws of England and Amer
ica, No warrant is required to justify arrests of per
sons committing felonies. The right to make such
arrests is essential to the preservation of the existence
of society, though its exercise ought to be carefully
guarded. The great problem is to reconcile the neces-
176 MILITARY ARRESTS IN TIME OF WAR.
sities of government with the security of personal
liberty.
If, in time of peace, civil arrests for felonies may be
made by private citizens without warrant, a fortiori,
military arrests in time of war, for acts of hostility,
either executed or contemplated, may be made under
the warrant of a military command. And the pro
vision that unreasonable seizures or arrests are prohibited
has no application to military arrests in time of war.
OBJECTION THAT ARRESTS ARE MADE WITHOUT INDICTMENT.
The 5th article of the amendments, of the Constitu
tion provides that —
" No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia when in actual service in time of war or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb ; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without clue process of law ; nor shall
private property be taken for public use without just compensa
tion."
This article has no reference to the rights of citizens
under the exigencies of war, but relates only to their
rights in time of peace. It is provided that no person
shall be subject for the same offence to be twice put in
jeopardy of life or limb. If rebellion or treason be one
of the offences here alluded to, and a rebel has been
once under fire, and thus been put in jeopardy of life
or limb (in one sense of that phrase), he could not be
fired at a second time without violating the Constitu
tion, because a second shot would put him twice in
jeopardy for the same offence.
MILITARY ARRESTS IN TIME OF WAR. 177
" Nor shall he be deprived of life, liberty, or property
without due process of law." If this provision relates
to the rights of citizens in time of war, it is obvious that
no property can be captured, no rebel killed in battle,
or imprisoned, by martial law.
The claim that " no person shall be held to answer
for a capital or otherwise infamous crime, unless upon a
presentment or indictment of a grand jury, except in
cases," &c., in like manner applies only to the rights of
citizens in time of peace.
What are " cases arising in the land or naval forces,
or in the militia when in actual service in time of war
or public danger " ?
Suppose the Union forces arrest a spy from the ene
my's camp, or catch a band of guerrillas ; neither the spy
nor the guerrillas belong to our land or naval forces.
The enemy are no part of our army or of our militia ;
and while this provision covers offences therein speci
fied, if committed by our troops, and allows them to be
dealt with by martial law, it would (if it is applicable
in time of war) prevent our executing martial law
against such enemies captured in war. We should,
under such a construction, be required to indict and
prosecute our enemy for capital crimes, instead of cap
turing and treating them as prisoners of war, or pun
ishing them according to the laws of war. The absur
dity of such a construction is obvious. The language
cited is inapplicable to a case of military arrest in war
time.
Captured soldiers are not ordinarily held as malefac
tors, but are treated as prisoners of war, to be detained,
released, exchanged, or paroled. They are not ex
pected to plead to any indictment or other civil pro-
23
178 MILITARY ARRESTS IN TIME OF WAR.
cess. They are not held in custody to answer before
any judicial tribunal for any crime, infamous or other
wise. They are treated in strict accordance with the
laws of war. Hence that clause in the Constitution
which provides for trial by jury, the right to be in
formed of the nature and cause of the accusation, &c.,
relates in express terms only to criminal prosecutions
in civil courts, and has nothing to do with military
arrests or the procedures of martial law. Therefore it
is obvious that, while criminal proceedings against per
sons not in the naval or military service are guarded
in time of peace, and the outposts of justice are secured
by freedom from unreasonable arrests, by requiring 'in
dictments to be found by grand jurors, by speedy and
public trial before impartial juries, by information of
the nature of the charges, open examination of wit
nesses, aid of counsel, &c., these high privileges are
not accorded to our public enemy in time of war, nor
to those citizens who commit military offences, which,
not being against any statute or municipal law, cannot
be the foundation of any indictment, punishment, or
trial by jury, and do riot constitute any capital or
otherwise infamous crime, nor to persons who commit
acts which impede, embarrass, and tend to thwart the
military measures of the government.
The safeguards of criminal procedures in courts of
justice in time of peace are not to be construed into
protection of public enemies in time of war.
THE CONSTITUTION SANCTIONS MILITARY ARRESTS.
The Constitution itself authorizes courts martial.
These courts punish for offences different from those
provided for by any criminal statute. Therefore it fol-
MILITARY ARRESTS IN TIME OF WAR. 179
lows that crimes not against statute laws may be pun
ished b}^ law according to the Constitution, and also
that arrests necessary to bring the offenders before
that tribunal are lawful.
In Dynes v. Hoover* the evidence was, that an at
tempt had been made to hold a marshal liable for exe
cuting the order of the President of the United States
in committing Dynes to the penitentiary for an offence
of which he had been adjudged guilty by a naval court
martial.
This case shows that the crimes to be punished, and
the modes of procedure by courts martial are different
from those of ordinary civil tribunals ; that the jurisdic
tion of these classes of tribunals is distinct, and that the
judicial power, and the military power of courts martial,
both authorized by the same Constitution, are inde
pendent of each other, and that courts martial may
punish offences other than those provided for by crim
inal statutes. Therefore it follows that military arrests
may be lawfully made of those who are guilty of such
offences. The law is thus laid down by the Supreme
Court : —
"The demurrer admits that the court martial was
legally organized, and the crime charged was one for
bidden by law ; that the court had jurisdiction of the
charge as it was made ; that a trial took place before
the court upon the charge, and the defendant's plea of
not guilty ; and that, upon the evidence in the case,
the court found Dynes guilty of an attempt to desert,
and sentenced him to be punished, as has been already
stated ; that the sentence of the court was approved
by the Secretary, and- by his direction Dynes was.
* 20 Howard's Supreme Court Reports, p. 65.
180 MILITARY ARRESTS IN TIME OF WAR.
brought to Washington ; and that the defendant was
marshal for the District of Columbia, and that in re
ceiving Dynes and committing him to the keeper of
the penitentiary, he obeyed the orders of the President
of the United States in execution of the sentence.
Among the powers conferred upon Congress by the
8th section of the 1st article of the Constitution are the
following : ' To provide and maintain a navy ; ' ' to
make rules for the government of the land and naval
forces.' And the eighth amendment, which requires a
presentment of a grand jury in cases of capital or
otherwise infamous crime, expressly excepts from its
operation ' cases arising in the land or naval forces/
And by the 2d section of the 2d article of the Consti
tution, it is declared that ' the President shall be com-
mander-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/
" These provisions show that Congress has the power
to provide for the trial and punishment of military and
naval offences in the manner then and now practised by
civilized nations, and that the power to do so is given
without any connection between it and the 3d article
of the Constitution, defining the judicial power of the
United States ; indeed, that the two powers are entirely
independent of each other."
The fact that the power exists of suspending the writ
of habeas corpus in time of rebellion, when the public
safety requires it, shows that the framers of the Con
stitution expected that arrests would be made for
crimes not against municipal law, and that the admin
istration of the ordinary rules of law on habeas* corpus
would require discharge of prisoners, and that such dis-
MILITARY ARRESTS IN TIME OF WAR. 181
charge might endanger public safety. It was to pro
tect public safety in time of rebellion that the right to
suspend the habeas corpus was left in the power of gov
ernment.
MILITARY POWERS MAY BE DELEGATED.
In the course of the preceding remarks the com-
mander-in-chief has been the only military authority
spoken of as authorized to order arrests and seizures.
His powers may be delegated to officers, and may be
used by them under his command. So also the Secre
taries of War and State are public officers, through
whom the President acts in making orders for arrests,
and their acts are in law the acts of the President. It
is necessary to the proper conduct of war that many if
not most of the powers of the President as commander
should be delegated to his secretaries and his generals,
and that many of their powers should be exercised by
officers under them ; and although it not seldom hap
pens that subalterns abuse the power of arrest and de
tention, yet the inconvenience resulting from this fact
is one of the inevitable misfortunes of war.
OBEDIENCE OF ORDERS IS JUSTIFICATION.
Whatever military man obeys the order of his supe
rior officer is justified by law in doing so. Obedience
to orders is a part of the law of the land ; a violation
of that law subjects the soldier to disgraceful punish
ment. Acts done in obedience to military orders will
not subject the agent to civil or criminal liability in
courts of law.* But, on the other hand, any abuse of
* Since the third edition of this essay was in print, Congress passed the act of March 3,
1863, which fully carries out this principle, and since the forty-second edition was in print,
also passed the act of May 11, 1866, and the act of 1868 (chap. 276), covering all cases
which occurred during the war.
182 MILITARY ARRESTS IN TIME OF WAR.
military authority subjects the offender to civil liability
for such abuse, and he who authorized the wrong is
responsible for it.
OFFICERS MAKING ARRESTS NOT LIABLE TO CIVIL SUIT OR CRIMI
NAL PROSECUTION.
That military arrests are deemed necessary for pub
lic safety by Congress is shown by the act of March 3,
1863, ch. 81, wherein it is provided that no person
arrested by authority of the President of the United
States shall be discharged from imprisonment so long
as the war lasts, and the President shall see fit to
suspend the privilege of the writ of habeas corpus.
The 4th section of the same act provides " that any
order of the President, or under his authority, made
at any time during the existence of this present re
bellion, shall be a defence in all courts to any action
or prosecution, civil or criminal, pending or to be com
menced for any search, seizure, arrest, or imprison
ment, made, done, or committed, or acts omitted to be
done under and by virtue of such order, or under color
of any law of Congress ; and such defence may be made
by special plea, or under the general issue."
The same act further provides that actions against
officers and others in tort for arrests commenced in
State Courts may be removed to Circuit Courts, and
thence to the Supreme Court. The jurisdiction of
State courts thereupon ceases, and the rights of the
defendant may be protected by the laws of the United
States, administered by the Supreme Court, thus se
curing immunity for the past and protection for the
future performance of military and civil duties under
orders of the President in time of war. The provisions
MILITARY ARRESTS IN TIME OF WAR. 183
of this act contain an implied admission of the neces
sity to public welfare of arrests for crimes not against
statutes, but endangering public safety, and of impris
onments for offences not known to the municipal laws,
but yet equally dangerous to the country in civil
war.
ARBITRARY POWER NOT CONSISTENT WITH FREE OR CONSTITU
TIONAL GOVERNMENTS.
The exercise of irresponsible powers is incompatible
with constitutional government. Unbridled will, the
offspring of selfishness and of arrogance, regards no
rights, and listens to no claims of reason, justice, policy,
or honor. Its imperious mandate being its only law,
arbitrary power sucks out the heart's blood of civil
liberty. Vindicated by our fathers on many a hard-
fought battle-field, and made holy by the sacrifice of
their noblest sons, that liberty must not be wounded
or destroyed ; and in time of peace, in a free country,
its power should shelter loyal citizens from arbitrary
arrests and unreasonable seizures of their persons or
property.
TRUE MEANING OF « ARBITRARY" AS DISTINGUISHED FROM "DISCRE
TIONARY."
Among the acts of war which have been severely-
censured, is that class of military captures reproach
fully styled arbitrary arrests. What is the true mean
ing of the word " arbitrary " ? When used to char
acterize military arrests, it means such as are made at
the mere will and pleasure of the officer, without right
and without lawful authority. But powers are not
arbitrary because they may be discretionary. The
authority of judges is often discretionary. Although
184 MILITARY ARRESTS IN TIME OF WAR.
judicial discretion is governed by rules, made by the
judges themselves, yet no one can justly claim that
such authority is arbitrary. The existence of an
authority may be undeniable., while the mode of
using it may be discretionary. A power is arbi
trary only when it is founded upon no rightful
authority, civil or military. It may be within
the discretion of a commander to make a military
order, to dictate its terms, to act upon facts and rea
sons known only to himself; it may suddenly and vio
lently affect the property, liberty, or life of soldiers or
of citizens ; yet such an order, being the lawful use of
a discretionary authority, is not the exercise of arbi
trary power. When such orders are issued on the
field, or in the midst of active operations, no objec
tion is made to them on the pretence that they are
lawless or unauthorized, nor for the reason that they
must be instantly and absolutely obeyed. The differ
ence is plain between the exercise of arbitrary power,
and the arbitrary exercise of power. The former is
against law ; the latter, however ungraciously or incon
siderately applied, is lawful.
MILITARY ARRESTS LAWFUL.
The laws of war, military and martial, written and
unwritten, are founded on the necessities of govern
ment, and sanctioned by the Constitution, and have been
recognized as valid in several acts of Congress, and by
the Supreme Court of the United States. Arrests made
under the laws of war are neither arbitrary nor without
legal justification. In Cross v. Harrison, Judge Wayne,
delivering the opinion of the Court,* says, —
* 16 Howard, 189, 190.
MILITARY ARRESTS IN TIME OF WAR. 185
"Early in 1847 the President, as constitutional commander-in-
chief of the array and navy, authorized the military and naval
commanders of our forces in California to exercise the belligerent
rights of a conqueror, and to form a civil government for the con
quered country, and to impose duties on imports and tonnage as
military contributions for the support of the government and of
the army, which had the conquest in possession. No one can
doubt that these orders of the President and the action of our
army and navy commanders in California, in conformity with them,
were according to the law of arms," &c.
So, in Fleming v. Paige,* Chief Justice Taney
says, —
" The person who acted in the character of collector in this in
stance, acted as such under the authority of the military com
mander and in obedience to his orders ; and the regulations he
adopted were not those prescribed by law, but by the President
in his character as commander-iu-chief."
It is established by these opinions that military or
ders in accordance with martial law or the laws of war,
though they may be contrary to municipal laws, and
the use of the usual means of enforcing such orders by
military power, including capture, arrest, imprisonment,
or the destruction of life and property, are authorized
and sustained upon the firm basis of martial law,
which is, in time of war, constitutional law. A mili
tary arrest, being one of the recognized necessities
of warfare, is as legal and constitutional a proce
dure, under the laws of war, as an arrest by civil au
thority, by the sheriff, after the criminal has been
indicted by a grand jury for a statute offence. In
time of peace, the interference of military force is
offensive to a free people. Its decrees seem overbear-
* 9 Howard, 615.
24
186 MILITARY ARRESTS IN TIME OF WAR.
ing, and its procedures violent. It has few safeguards
and no restraints. The genius of republican govern
ment revolts against permanent military rule. Hence
the suspicions of the people are easily aroused upon
any appearance of usurpation. It is for this reason that
some opponents of the government have endeavored to
cripple the war power of the President, by exciting a
natural but unfounded apprehension that military ar
rests, a familiar weapon of warfare, can be employed
only at the hazard of civil liberty.
ON WHAT GROUND FORCE IS JUSTIFIABLE.
When the administration of laws is resisted by an
armed public enemy ; when government is assaulted
or overthrown ; when magistrate and ruler are alike
powerless, the nation must assert and maintain its rights
by force of arms. Government must fight or perish.
Self-preservation requires the nation to defend its rights
by military power. The right to use military power
rests on the universal law of self-defence.
MARTIAL LAW.
When war is waged, it ought not to degenerate into
unbridled brutality, but it should conform to the dic
tates of justice and of humanity. Its objects, means,
and methods should be justifiable in the forum of civil
ized and Christian nations. The laws or rules which
usually govern this use of force are called military and
martial law, or the laws of war.
Principles deducible from a consideration of the na
ture, objects, and means of war will, if understood, re
move from, the mind the apprehension of danger to civil
liberty from military arrests and other employment of
MILITARY ARRESTS IN TIME OP WAR. 187
«
force. When war exists, whatever is done in accord
ance with the laws of war is not arbitrary, and is not in
derogation of the civil rights of citizens, but is lawful,
justifiable, and indispensable to public safety.
WAR POWER HAS LIMITS.
Althc/ugh the empire of the war power is vast, yet it
has definite boundaries, wherein it is supreme. It
overrides municipal laws and all domestic institutions
or relations which impede or interfere with its com
plete sway. It reigns uncontrollable until its legiti
mate work is executed ; but then it lays down its
dripping sword at the feet of Justice, whose wrongs it
has avenged.
It is not now proposed to define the limits and re
strictions imposed by the laws of warfare upon the gen
eral proceedings of belligerents! It is to one only of
the usual methods of war that attention is now di
rected, namely, to the capture and detention of public
enemies.
ARRESTS NECESSARY.
Effectual hostilities could not be prosecuted without
exercising the right to capture and imprison hostile
persons. Barbarous nations only, would justify the kill
ing of those who might fall into their power. It is now
too late to question the authority of martial law, which
sanctions the arrest and detention of those who engage
in foreign or civil war. The imprisonment of such per
sons is much more important to the public safety in
civil, than in international, warfare.
188 MILITARY ARRESTS IN TIME OF WAR.
MILITARY CRIMES.
Military crimes, or crimes of war, include all acts of
hostility to the country, to the government, or to any
department or officer thereof; to the army or navy,
or to any person employed therein : provided that such
acts of hostility have the effect of opposing, embar
rassing, defeating, or even of interfering with, our mili
tary or naval operations in carrying on the war, or of
aiding, encouraging, or supporting the enemy.
According to the laws of war, military arrests may
be made for the punishment or prevention of military
crimes.
DOUBLE LIABILITY.
Such crimes may or may not be offences against
statutes. The fact that an act of hostility is against
municipal as well as martial law, even though it may
subject the offender to indictment in civil tribunals, does
not relieve him from responsibility to military power.
To make civil war against the United States is to
commit treason. Such act of treason renders the
traitor liable to indictment and condemnation in the
courts, and to capture, arrest, or death on the field of
battle. But because a traitor may be hung as a crimi
nal by the sheriff, it does not follow that he may not
be captured, arrested, or shot as a public enemy by the
soldiers. An act of hostility may thus subject the offen
der to twofold liability ; first to civil, and then to military
tribunals. Whoever denies the right to make military
arrests for crimes which are punishable by civil tribu
nals, would necessarily withhold one of the usual and
MILITARY ARRESTS IN TIME OF WAR. 189
most effective and essential means of carrying on war.
Whoever restricts that right to cases where crimes have
been committed in violation of some special statute,
would destroy one of the chief safeguards of public
.security and defence.
ACTS MADE CRIMINAL BY A STATE OF WAR.
The quality of an act depends on the time, place,
and circumstances under which it is performed. Acts
which would have been harmless and innocent in time
of peace, become dangerous, injurious, and guilty in
time of war. The rules and regulations of the mili
tary service contain many illustrations of this fact.
For a soldier to speak contemptuously of a superior
officer, might, as between two civilians, be a harmless
or beneficial use of "free speech ; " but as in time of
war such " free speech " might destroy discipline, en
courage disobedience of orders, or even break up the
confidence of the soldiers in their commanders, such
speaking is strictly forbidden, and becomes a crime.
Many rules and regulations of our army and navy are
such that disregard of them in time of peace would
be attended by no important consequences ; yet a
breach of them, in time of war, might become an of
fence against martial law, such as would lead to disas
trous results. In like manner, a citizen may commit
acts to which he is accustomed in ordinary times, but
which become the gravest crimes in time of war, al
though not embraced in the civil penal code. Actions
not constituting any offence against the municipal code
of a country, having become highly injurious and em
barrassing to military operations, may, and must, be
prevented, if not punished. Such actions, being crimes
190 MILITARY ARRESTS IN TIME OF WAR.
against military or martial law, or the laws of war, can
be repressed only by capture and confinement of the
offender. If an act which interferes with military oper
ations is not against municipal law, the greater is the
reason for resisting it by martial law. And if such an
act cannot be punished or prevented by civil or crimi
nal law, this fact makes stronger the necessity of avoid
ing its evil consequences, by arresting the offender.
Absence of penal law imperatively demands the appli
cation of military preventive process, namely, the cap
ture of public enemies.
AEREST OF INNOCENT PERSONS.
Innocent persons are, under certain circumstances,
liable to military arrest in time of civil war. Suppose
an army retreating from an unsuccessful battle, and
desirous of concealing from the enemy its numbers, its
position, and the direction taken by its forces ; if, in or
der to prevent these facts from becoming known to their
pursuers, the persons who are met on the retreat are
captured and carried away, can any one doubt the
right of making such arrests? However loyal or
friendly those persons may be, yet, if seized by a pur
suing enemy, they might be compelled to disclose facts
by which the retreating army could be destroyed.
Hence, when war exists, and the arrest and deten
tion of even innocent persons are essential to the
success of military operations, such arrest and de
tention are lawful and justifiable. Suppose a loyal
judge holding a court in a loyal State, and a wit
ness on the stand, who knows the details of a pro
posed military expedition which it would be highly
MILITARY ARRESTS IN TIME OF WAR. 191
injurious to the military operations of the army
or navy to have disclosed or made public; would any
one doubt the right of the military commander to
stop the trial on the instant, and, if necessary, to im
prison the judge or the witness, to prevent the knowl
edge of our military plans and expeditions from being
communicated to the enemy ? The innocence of the
person who may, through ignorance, weakness, or folly,
endanger the success of military operations, does not
deprive the commander in the field, of the power to
guard against hazard and prevent mischief. The true
principle is this : a military officer has the power, in
time of war, to arrest and detain all persons within the
field of his command, who, he has reasonable cause to
believe, will, by being at large, impede or endanger the
military operations, for the conduct of which he is re
sponsible. The true test of liability to arrest is, there
fore, not alone the guilt or innocence of the party ; not
alone his nearness to or distance from the places where
battles are impending; not alone whether he is en
gaged in active hostilities, but whether his being at
large will actually tend to impede, embarrass, or hinder
our lawful military operations in creating, organizing,
maintaining, and most effectually using the military
forces of the country. Arrests may be made by reason
of bana fide military necessity, or to punish or prevent
military crimes ; no arrests, made under pretence of
the war power, for other objects, are lawful or justifia
ble. The dividing line between civil liberty and mili
tary power is precisely here : civil liberty secures the
right to freedom from arrests, except by civil process
in time of peace, or by military power when war exists,
and when the exigencies of the case are such that the
192 MILITARY ARRESTS IN TIME OF WAR.
arrest is required in order to prevent embarrassment or
injury to the lona fide military operations of the army or
navy. It is not enough to authorize arrests to say that
ivar exists, or that it is a time of war, unless martial law
is declared. Nor is it necessary, to justify them, that-
active hostilities should be going on at the place of the
capture. It is, however, enough to justify an arrest in
any place, however far removed from the battle-fields of
contending armies, that it is a time of war, and that the
arrest is required by a lawful military court, to punish a
military crime, or is necessary to prevent an act of hos
tility, or even to avoid the danger that military oper
ations of any description may be impeded, embar
rassed, or prevented. In considering this right of
capturing our enemies, it must be borne in mind that
"a person taken and held by the military forces,
whether before, or in, or after a battle, or without any
battle at all, is virtually a prisoner of war. No matter
what his alleged offence, whether he is a rebel, a traitor,
a spy, or an enemy in arms ; he is to be held and pun
ished according to the laws of war, for these have been
substituted for the laws of peace."
CAUSES OF ARREST CANNOT BE SAFELY DISCLOSED.
It cannot be expected, when government finds it
necessary to make arrests for causes which exist dur
ing civil war, that the reasons for making such arrests
should be at once made public ; otherwise the purpose
for which an arrest is made might be defeated. Thus,
if a conspiracy has been formed to commit hostilities,
and one conspirator is arrested, publishing the facts
might enable other conspirators, taking advantage of
their information, to escape. It may be necessary to
MILITARY ARRESTS IN TIME OF WAR. 193
make arrests on grounds justifying suspicion of hostile
intentions, when it might be an act of injustice to the
party suspected, if innocent, to publish the facts on
which such suspicions were entertained • and if guilty,
it might disable the government from obtaining proof
against him, or from preventing the hostile act. Under
these circumstances the safety of civil liberty must
rest in the honesty, integrity, and responsibility of
those who have been for the time clothed with the
high powers of administering the government.
ARRESTS TO PREVENT HOSTILITIES.
The best use of armies and of navies is not to pun
ish criminals for offences against laws, but to prevent
public enemies from committing future hostilities.
Victory and conquest are not for revenge of wrongs,
but for security of rights. Arch traitors and consum
mate villains are not those on whom the avenging
sword is most apt to fall, but the dupes and victims of
their crimes oftenest bear the sharp catastrophe of bat
tles. We arrest and hold an enemy, not to punish, but
to restrain him from acts of hostility ; we hang a spy
not only to deter others from committing a similar
offence, but chiefly to prevent his betraying us to the
enemy. We capture and destroy the property even of
friends, if exposed in an enemy's country, not to injure
those who wish us well, but to withdraw their property
from liability to be used by our opponents. In a
defensive civil war, many, if not most military oper
ations have for their legitimate object the prevention
of acts of hostility. In case of foreign war, an act of
Congress provides that to prevent hostilities by aliens,
they may be arrested. In case of —
25
194 MILITARY ARRESTS IN TIME OF WAR.
"declared war between the United States and any foreign
nation, or of any invasion or predatory incursion being attempted
or threatened against any territory of the United States by any
foreign government, if the President shall make public proclama
tion of the event, all natives, citizens, denizens, or subjects of the
hostile nation or'government, being males of the age of fourteen
years and upwards, who shall be within the United States and
not actually naturalized, shall be liable to be apprehended, re
strained, secured, and removed as alien enemies"
"Power over this subject is given to the President, having due
regard to treaty stipulations, by the act of the 6th of July, 1798 ;
and by this act the President was authorized to direct the con
finement of aliens, although such confinement was not for the
purpose of removing them from the United States, and means
were conferred on him to enforce his orders, and it was not neces
sary that any judicial means should be called in to enforce the
regulations of the President." *
Thus express power is given by statute to the Presi
dent to make military arrests of innocent foreign-born
persons, under the circumstances above stated, for the
purpose of preventing them from taking part in the con
test. While this ample authority is given to the com
mand er-in-chief to arrest the persons of aliens residing
here, as a precautionary measure, a far greater power
over the persons of our own citizens is, for the same
reason, given to the President in case of public danger.
The law of Congress (1795) provides that the army
may be called into actual service not only in cases of
foreign invasion, but when there is danger of invasion.
The President of the United States is the sole arbi
ter of the question whether such danger exists, and
he alone can call into action the proper force to meet
it. He is the sole judge as to the place where the
danger is, and he has a right to march his troops there,
in whatever State or Territory it may be apprehended.
* Lochington v. Smith, Peters, C. C. Rep. 466.
MILITARY ARRESTS IN TIME OF WAR. 195
He may issue orders to his army to take such military
measures as may, in his judgment, be necessary for
public safety, whether these measures require the de
struction of public or private property, the arrest or
capture of persons, or other speedy and effectual mili
tary operations sanctioned by the laws of war. He
may thus subject vast numbers of citizens to military
duty under all the severity of martial law, whereby
they are required to act under restraints more severe,
and to incur dangers more formidable, than any mere
arrest and detention in a safe place for a limited time.
Such is the power of the President under the Consti
tution, and such is the lawful mode of applying it,
according to the principles announced by the Supreme
Court of the United States in the case of Martin v.
Mott,* and affirmed in that of Luther v. Borden.~j*
It is therefore now held as well settled law that,
in time of civil war in a State, the apprehension of
danger, and the right to use military power to pre
vent it, and to restrain the public enemy, are held
to justify the violation of rights of person and prop
erty, invariably held sacred and inviolable in time
of peace.
MILITARY ARRESTS MADE BY ALL GOVERNMENTS IN CIVIL WAR.
Capture of men and seizures of property are, all
over the world, among the familiar proceedings of bel
ligerents. No existing government has ever hesitated,
while civil war was raging, to make military arrests.
* 12 Wheaton's Reports, p. 28.
t 8 Howard's Reports, p. 1.
196 MILITARY ARRESTS IN TIME OF WAR.
Nor could warlike operations be successfully conducted
without a frequent use of the power to take and re
strain hostile persons. Such is the lesson taught by
the history of England and France. While the laws
of war place in the hands of military commanders the
power to capture, arrest, and imprison the army of the
enemy, it would be unreasonable not to authorize them
to capture a hostile individual, when his going at large
would endanger the success of military operations. To
carry on war with no right to seize and hold prisoners
would be as impracticable as to carry on the adminis
tration of criminal law with no right to arrest and im
prison culprits.*
PECULIAR NECESSITIES OF CIVIL WAR.
In foreign wars, where the belligerents are separated
by territorial boundaries, or by difference of language,
there is little difficulty in distinguishing friend from
foe. But in civil war, those who are now antagonists,
but yesterday walked in the same paths, gathered
around the same fireside, worshipped at the same
altar ; there is no means of separating friend from
* See Keys v. Tod. Note, p. 223. Judge Dickey says, " It is not controverted but
that the commander of an army may exercise, in proper cases, the power in question,
over both property and person, within the territory and its vicinity under the control of
the army, although martial law has not been declared, nor the civil law entirely sus
pended. What is it, then, but a partial exercise of martial law? And what gives the
right but a military necessity, or emergency ? And from what source does the power
come, if not from the President, as commander-in-chief ? Now, what good reason can
there be for confining the power to and within the lines of the army, provided a like
urgent necessity and emergency arises or exists at any other point outride of the lines of
the army, and within the territory of the government or nation ? What is the theatre of
the present war in this country ? Is it only that portion of the country included within
the lines of the armies, which extend from the Chesapeake Bay to the spurs of the Rocky
Mountains ? or is it not rather the whole nation, the loyal States upon the one side, and
the disloyal upon the other ? and are not all within the vicinity of the lines of the armies,
as far as that vicinity is to be considered as affecting the exercise of the authority in
dispute?"
MILITARY ARRESTS IN TIME OF WAR. 197
foe, except by the single test of loyalty, or hostility
to the government.
WHO OUGHT AND WHO OUGHT 'NOT TO BE ARRESTED.
All persons who act as public enemies, and all who
by word or deed give reasonable cause to believe that
they intend to act as such, may lawfully be arrested and
detained by military authority, for the purpose of pre
venting the consequences of their acts. No person
in a loyal State can rightfully be captured or detained
unless he has engaged, or there is reasonable cause
to believe that he intends to engage, in acts of hostility
to the United States, that is to say, in acts which may
tend to impede or embarrass the United States in
such military proceedings as the commander-in-chief
may rightfully institute.
MARKS OF HOSTILITY.
It is a sentiment of hostility which in time of war
seeks to overthrow the government, to cripple its
powers of self-defence, to destroy or depreciate its re
sources, to undermine confidence in its capacity or its
integrity, to diminish, demoralize, or destroy its armies,
or to break down confidence in those who are intrusted
with its military operations in the field. He is a pub
lic enemy who seeks falsely to exalt the motives, char
acter and capacity of armed traitors, to magnify their
resources, to encourage their efforts by sowing dissen
sions at home, or by inviting intervention of foreign
powers in our affairs. He who overrates the success,
increases the confidence, and encourages the hopes of
our adversaries, or underrates, diminishes or weakens
our own, and he who seeks false causes of complaint
198 MILITARY ARRESTS IN TIME OF WAR.
against the officers of our government, or inflames
party spirit among ourselves, for the purpose of impair
ing or destroying our power to suppress rebellion, gives
to our enemies that moral support which is more val
uable to them than regiments of soldiers or millions of
dollars. All these ways and means of aiding a public
enemy ought to be prevented or punished. But the con
nections between citizens residing in different sections of
the country are so intimate, the divisions of opinion on
political or military questions are so numerous, the bal
ance of affection, of interest, and of loyalty is so nice in
many instances, that civil war, like that which darkens
the United States, is fraught with peculiar dangers,
requires unusual precautions, and warrants and demands
the most thorough and unhesitating measures for pre
venting acts of hostility, and for the security of public
safety.
INSTANCES OF ACTS OF HOSTILITY.
Among hostile proceedings, which, in addition to
those already suggested, justify military arrests, may
be mentioned contraband trade with hostile districts,
or commercial intercourse with them when forbidden by
statutes or by military orders ; * aiding the enemy by
furnishing them with information which may be useful
to them ; correspondence with foreign authorities with
a view to impede or unfavorably affect the negotia
tions or interests of the government ; f enticing sol
diers or sailors to desertion ; prevention of enlist
ments; obstructing officers whose duty it is to
* See acts June 13, 1861, May 20, 1802, and March 12, 1863.
t See act February 12, 1863, chap. 60.
MILITARY ARRESTS IN TIME OF WAR. 199
ascertain the names of persons liable to do military
duty, and to enroll them ; resistance to the draft, to
the organization or to the movements of soldiers; and
aiding or assisting persons to escape from their mili
tary duty, by concealing them in the country or trans
porting them away from it.
NECESSITY OF POWER TO ARREST THOSE WHO RESIST DRAFT.
The ability to create and organize armies is the
foundation of all power to suppress rebellion and
repel invasion, or to execute the laws and support
the Constitution, when they are assailed. Without
the power to capture or arrest those who oppose the
draft, no army can be raised. The necessity of such
arrests is recognized by Congress in the 75th chapter
of the act of March 3, 1863, for " enrolling the forces
of the United States, and for other purposes," which
provides for the arrest and punishment of those who
oppose the draft. This provision is an essential part
of the general system for raising an army, embodied
in that statute. Those citizens who are secretly hos
tile to the Union may attempt to prevent the board of
enrolment from proceeding with the draft, or may re
fuse, when drafted, to enter the service. Our military
forces may rightfully be called upon to protect the
lawful measures by which our armies are created. If
the judiciary only could be relied on, to overcome
those who resist the draft, then the power to raise ar
mies would depend, in the last resort, upon the physical
force which the judges could or would apply to the
execution of their mandates. Thus, if the posse comitatus
should not be able or willing to overpower those who
200 MILITARY ARRESTS IN TIME OF WAR.
oppose the draft, then no law could be enforced other
than mob law and lynch law. If the power to raise
armies be denied, the government will be broken down;
and because we are too anxious to secure the supposed
rights of certain individuals, all our rights will be
trampled under foot.
TERRITORIAL EXTENT OF MARTIAL AND MILITARY LAW.
It is said that martial law must be confined to the
immediate field of action of the contending armies,
while in districts remote from battle-fields it has no
force. Let us see the difficulty of this view. Is mar
tial law to be enforced only where the movements
of our enemy may carry it ? Do we lose our mili
tary control of a district when the enemy have passed
through and beyond it ? Is not martial law in force
between the base of operations of our army and the
enemy's lines, even though it be a thousand miles
from one to the other ? Must there be two contend
ing armies at close quarters with each other, in order
to sanction the use of martial law? If not, can judges
determine by rules of law, the distance which must
intervene between the hostile forces before that law
will cease to have effect ? Has not every army, where
soever it marches, power to enforce the laws of war ?
If a regiment of cavalry is stationed far from the
scene of active military operations, or if a single file
of soldiers is acting under a commanding officer, are
they not governed by the same law ? Have they not
power, wherever they may be, to capture the enemy ?
Who is the enemy ? Whoever makes war. Who
makes war ? Whoever aids and comforts the rebels
MILITARY ARRESTS IN TIME OF WAR. 201
commits treason ; therefore he makes war.* A raid
into a Northern State, with arms, is no more an act of
hostility than a conspiracy to aid the enemy by North
ern men in Northern States. Whether the enemy is
an army, a regiment, or a single man, be the number
of persons more or less, it is still the enemy.
All drafts of soldiers are made in places remote from
the field of conflict. If no arrest can be made there,
then the formation of the army can be prevented. Can
a spy be arrested by martial law ? Formerly there was
no law of the United States against spies outside of
camps. There was nothing but martial law against
them. A spy from the rebel army, no one could doubt,
should be arrested. Why should not a spy from the
Northern States be arrested? It is obvious that the
President, if deprived of the power to seize or capture
the enemy, wherever they may be found, whether re
mote from the field of hostilities or near to it, cannot
effectually suppress the rebellion. Stonewall Jackson,
it is said, visited Baltimore a few months since in dis
guise. While there, it is not known that he com
mitted any breach of the laws of Maryland or of the
United States. Could he not have been captured, if he
had been found, by the order of the President? If
captured, could the State court of Maryland have or
dered him to be surrendered to its judge, and so turned
loose again ? f Where is the limit within which the
military power of the commander of the army must be
confined, in making war against the enemy ? Wher
ever military operations are actually extended, there
is martial law. Whenever a person is helping the
* See Index, " Treason."
t Sec Million's case, p. 530, and remarks upon it in Notes to Forty-third Edition, p. 460.
26
202 MILITARY ARRESTS IN TIME OF WAR.
enemy, then he may be taken as an enemy ; wherever
such capture is made, there war is going on, there
martial law is inaugurated, so far as that capture is
concerned.
HABEAS CORPUS.*
The military or executive power to prevent prisoners
of war from being subject to discharge by civil tribu
nals, or, in other words, the power to suspend, as to
these prisoners, the privilege of habeas corpus, is an es
sential means of suppressing the rebellion and provid
ing for the public safety, and is therefore, by neces
sary implication, conferred by the Constitution on that
department of government to which belongs the duty
of suppressing rebellion by force of arms, in time of
war. In times of civil war or rebellion, it is the duty
of the President to call out the army and navy to sup
press it. To use the army effectually for that purpose,
it is essential that the commanders should have the
power of retaining in their control all persons captured
and held in prison.
It must be presumed that the powers necessary to
execute the duties of the President are conferred on
him by the Constitution. Hence he must have the
power to hold whatever persons he has a right to cap
ture, without interference of courts, during the war, and
he has the right to capture all persons who, he has rea
sonable cause to believe, are hostile to the Union, and
are engaged in hostile acts. The power is to be exer
cised in emergencies. It is to be used suddenly. The
facts on which public safety in time of civil war de
pends can be known only to the military men, and not,
* The privilege of the writ of habeas corpus was suspended by the Confederate Con
gress by act 1864, chap. 38.
MILITARY ARRESTS IN TIME OF WAR. 203
under ordinary circumstances, to the legislatures. To
pass a law as to each prisoner's case, whenever pub
lic safety should require the privilege of the writ
to be suspended, would be impracticable. Shall
there be no power to suspend the writ, as to any
single person in all the Northern States, unless Con
gress pass a law depriving all persons of that privi
lege ? Oftentimes the exposure of the facts and cir
cumstances requiring the suspension in one case would
be injurious to the public service by betraying our se
crets to the enemy. Few acts of hostility are more
dangerous to public safety, none require a more severe
treatment, either to preventer to punish, than an at
tempt to interfere with the formation of the army by
obstructing enlistments, by procuring desertions, or by
aiding and assisting persons liable to do military duty
in escaping from the performance of it. Military arrest
and confinement in prison during the war are but a
light punishment for a crime which, if successful, would
place the country in the power of its enemies, and sac
rifice the lives of soldiers now in the field, for want of
support. Whoever keeps back the volunteers from
our army strikes at the heart of the country. All
those proceedings which tend to break down the
army when in the field, or to prevent or impede any
step necessary to be taken to collect and organize it,
are acts of hostility which directly tend to impede
the military operations on which the preservation of
the government, in time of war, depends. All per
sons who commit such acts are subject to military
arrest and detention ; and if they are at the same
time liable to prosecutions for violation of municipal
204 MILITARY ARRESTS IN TIME OF WAR.
laws, that fact cannot shelter them from liability
to be treated as public enemies, and to be arrested
and detained, so as to prevent them from perpetrat
ing any further hostile acts.
In determining the character of acts committed in
the free States by persons known to be. opposed to
the war, it must be borne in mind that those who,
in the loyal States, aid and comfort the enemy, are
partakers in the crime of rebellion as essentially as
if present with rebel armies. They are in law parti-
cipes criminis. Though their overt acts, taken alone
and without connection with the rebellion, might not
amount to treason, or to any crime, yet under the
circumstances, many of these acts, otherwise inno
cent, become dangerous, injurious, and criminal. A
person who, by his mere presence, lends support
and gives confidence to a murderer while perpetrat
ing his foul crime, shares in that crime, whether he
is at the time of the murder in the actual presence
of his victim, or stands off at a distance, and is ready
to warn the cutthroat of the approach of danger.
Such was the rule administered in the trial of Knapp
for murdering a citizen of Massachusetts. This is
familiar law. What difference does it make whether
the conspirator is near, or far away from, his associates ;
whether he is in a slave or a free State ? The real
question is whether the person accused has given or
means to give aid or comfort to the enemy of his
country, whether near by or far off; if so, then he is .
an enemy, and may be captured on the doorsteps of a
court-house, or even on the bench itself.
MILITARY ARRESTS IN TIME OF WAR. 205
CONSTITUTIONALITY OF THE ENROLMENT ACT OF MARCH 3, 1863.
No power to arrest or detain prisoners can be con
ferred upon the President or his provost marshals by
an act of Congress which is void because unconstitu
tional. No person can be civilly or criminally liable
to imprisonment for violation of a void statute. Hence
the question may arise whether the enrolment act is a
legitimate exercise by Congress of powers conferred
upon it by the Constitution. That Congress has full
power to pass the enrolment act is beyond reasonable
doubt, as will be apparent from the following refer
ences : * —
The Constitution, article 1, section 8, clause 12, gives
to Congress the power " to raise and support armies."
It must be observed that the Constitution recog
nizes a clear distinction between the army of the United
States and the militia of the several States, even
when called into actual service. Thus, by article 2,
section 2, clause 1, " 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." By ar
ticle 1, section 8, clause 15, Congress has power "to
provide for calling forth the militia to execute the
laws of the Union, suppress insurrections and repel
invasions." By article 1, section 8, clause 16, Congress
has power " to provide for organizing, arming, and dis
ciplining the militia, and for governing such part of
them as may be employed in the service of the United
States, reserving to the States respectively the appoint
ment of the officers, and the authority of training the
* So decided in several cases since the publication of the first edition.
206 MILITARY ARRESTS IN TIME OF WAR.
militia according to the discipline prescribed by Con
gress." In addition to these powers of Congress to call
into the service of the Union the militia of the States by
requisitions upon the respective governors thereof, the
Constitution confers upon Congress another distinct,
independent power, by article 1, section 8, clause 12,
which provides that Congress shall have power " to
raise and support armies, but no appropriation of money
to that use shall be for a longer term than two years."
By article 1, section 8, clause 14, Congress has power
to make rules for the government and regulation of
the land and naval forces. Article 1, section 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." The statutes
of 1795, and other recent acts of 1861 and 1862,
authorizing the enlistment of volunteers, were mainly
founded on the power to receive militia of the States
into the service of the Union, and troops were raised
principally through the agency of governors of States.
The enrolment act of 1863 is an exercise of power
conferred upon Congress, to " raise and support ar
mies," * and not of the power to call out the militia
of the States. Neither the governors nor other State
authorities have any official functions to perform in re
lation to this act, nor any right to interfere with it.
It is an act of the United States, to be administered
by United States officers, applicable to citizens of the
United States in the same way as all other national
laws. The confounding of these separate powers of
* See Note to Forty-third Edition (No. 12), explanatory of this statute.
MILITARY ARRESTS IN TIME OF WAR. 207
Congress and the rights and proceedings derived from
them has been a prolific source of error and misappre
hension.
RULES OF INTERPRETATION AND THEIR APPLICATION TO THIS ACT.
The Constitution, as above cited, provides that Con
gress 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 " neces
sary," as used, is not limited by the additional word
" proper," but is enlarged thereby.
" 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 WITH
OUT LIMITATION, because it is impossible to foresee or to define
the extent and variety of national exigencies, and the correspond
ent extent and variety of the means necessary to satisfy them.
The circumstances which endanger the safety of nations are infi
nite, 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 de
fence 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." * * " The
means ought to be proportioned to the end ; the persons from
whose agency the attainment of the end is expected ought to pos
sess the means by which it is to be attained."
This opinion of Alexander Hamilton has been con
firmed by the Supreme Court of the United States,
in a decision made by Chief Justice Marshall, and
quoted in a former page.
208 MILITARY ARRESTS IN TIME OF WAR.
" 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 ac
tion. 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 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 con
struction 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 out
lines 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 hap
piness 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. 1, sect. 8,
of the Constitution, expressly confers on Congress the power 'to
make all laws that may be necessary and proper for carrying 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 Con
stitution, does not import an absolute physical necessity so strong
MILITARY ARRESTS IN TIME OF WAR. 209
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 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 legisla
ture 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."
These authorities show that Congress, having the
power to raise and support armies, has an unlimited
choice of means appropriate for carrying that power
into execution. The only question is whether the act
of March 3, 1863, is "plainly adapted to the end pro
posed/' namely, "to raise an army? If it is a usual
mode of raising an army to enroll and draft citizens, or,
though unusual, if it is one appropriate mode by which
the end may be accomplished, it is within the con
stitutional authority of Congress to pass that law.
In a republic, the country has a right to the military
service of every citizen and subject. The government
is a government of the people, and for the safety of the
people. No man who enjoys its protection can lawfully
escape his share of public burdens and duties. Public
27
210 MILITARY ARRESTS IN TIME OF WAR.
safety and welfare in time of war depend wholly upon
the success of military operations. Whatever stands in
the way of military success must be sacrificed, else all
is lost. The triumph of arms is the tabula in naufragio,
the last plank in the shipwreck, on which alone our
chance of national life depends. Hence, in the struggle
of a great people for existence, private rights, though
not to be disregarded, become comparatively insignifi
cant, and are held subject to the paramount rights of
the community. The life of the nation must be pre
served at all hazards, and the Constitution must not,
without imperative necessity, be so construed as to de
prive the people of the amplest means of self-defence.
Every attempt to fetter the power of Congress to
call into the field the military forces of the country in
time of war, is only a denial of the people's right to
fight in their own defence. If a foreign enemy were
now to invade the country, who would dare to cavil at
the forms of statutes under which the people sought to
enlist volunteers to repel the invader,? It must not
be forgotten that Congress has the same power to-day
to raise and organize armies to suppress rebellion, that
would belong to it if the Union were called upon to
meet the world in arms.
INDEMNITY TO PERSONS ARRESTED.
Persons who reside in a country engaged in active
hostilities, and who so conduct themselves as to give
reasonable cause to believe that they are aiding and
comforting a public enemy, or that they are partici
pating in any of those proceedings which tend to em
barrass military operations, may be arrested ; and if
such persons shall be arrested and imprisoned for the
MILITARY ARRESTS IN TIME OP WAR. 211
purpose of punishing or preventing such acts of hos
tility, they are not entitled to claim indemnity for the
injury to themselves or to their property, suffered by
reason of such arrest and imprisonment.* If the
persons so arrested are subjects of a foreign govern
ment, they cannot lawfully claim indemnity, because
their own hostile conduct, while it has deprived them
of the shelter of "neutrality," has subjected them
to penalties for having violated the laws of war.f
If a foreigner join the rebels, he exposes himself
to the treatment of rebels. He can claim of this
government no indemnity for wounds received in
battle, or for loss of time, or for suffering by being cap
tured and imprisoned. It can make no difference
whether his acts of hostility to the United States are
committed in open contest under a rebel flag, or in
the loyal States, where his enmity is most danger
ous. If it be said that he has violated no municipal
law, and therefore ought not to be deprived of liberty
without indemnity, it must be remembered that if he
has violated any of the laws of war, he may have
thereby committed an offence more dangerous to the
country and more destructive in its consequences
than any crime defined in statutes. If a person,
detained in custody by reason of his having violated
the laws of war, and for the purpose of prevent
ing hostilities, be liberated from confinement with
out having been indicted by a grand jury, it does
not follow therefrom that he has committed no crime.
He may have been guilty of grave offences, while the
government may not have deemed it necessary to
* Note to Forty-third Edition. — See indemnity acts of Congress. Index, title " Enemy,
t See Solicitor's Opinion in Sherwin's case, p. 3(35.
212 MILITARY ARRESTS IN TIME OF WAR.
prosecute him. Clemency and forbearance are not a
just foundation for a claim of indemnity. An offender
may not have been indicted, because the crime com
mitted, being purely a military crime, or crime against
martial law, may not have come within the jurisdic
tion of civil tribunals. The legality of his arrest and
imprisonment under martial law, justified by military
necessity, cannot be adjudicated by civil tribunals.*
If the person so arrested is the subject of a foreign
power, and claims exemption from arrest and custody
for that reason, he can have no right to indemnity
under any circumstances, by reason of being an alien,
until such fact of alienage is made known to the govern
ment. His claim to indemnity thereafter will depend
on a just application of the principles already stated.
* See Vallandi(jliam>s case, p. 338. See, also, Index, title " Judicial Power."
MILITARY ARRESTS IN TIME OF WAR. 213
INSTRUCTIONS OF THE WAR DEPARTMENT TO OFFICERS HAVING
CHARGE OF DESERTERS.
WAR DEPARTMENT,
PROVOST MARSHAL GENERAL'S OFFICE,
Washington, D. C., July 1, 1863.
[CIRCULAR No. 36.]
The following opinion of Hon. William Whiting, Solicitor of the
War Department, is published for the information and guidance of
all officers of this Bureau:
ARREST OF DESERTERS HABEAS CORPUS.
Opinion.
It is enacted in the 7th section of the act approved March 3, 1863,
entitled " An act for enrolling and calling out the national forces, and
for other purposes," that it shall be the duty of the Provost Marshals
appointed under this act "to arrest all deserters, whether regulars,
volunteers, militia men, or persons called in'o the service under this
or any other act of Congress, wherever they may be found, and to
send them to the nearest military commander, or military post."
If a writ of habeas corpus shall be issued by a State court, and
served upon the Provost Marshal while he holds under arrest a
deserter, before he has had opportunity "to send him to the nearest
military commander, or military post," the Provost Marshal is not
at liberty to disregard that process. " It is the duty of the Marshal,
or other person having custody of the prisoner, to make known to
the judge or court, by a proper return, the authority by which he
holds him in custody. But after this return is made, and the State
judge or court judicially apprised that the party is in custody under
the authority of the United States, they can proceed no further.
" They then know that the prisoner is within the dominion and
jurisdiction of another government, and that neither the writ of habeas
corpus, nor any other process issued under State authority, can pass
over the line of division between the two sovereignties. He is then
within the dominion and exclusive jurisdiction of the United States.
If he has committed an offence against their laws, their tribunals
alone can punish him. If he is wrongfully imprisoned, their judicial
214 MILITARY ARRESTS IN TIME OF WAR.
tribunals can release him and afford him redress. And although, as
we have said, it is the duty of the Marshal, or other person holding
him, to make known, by a proper return, the authority under which
he retains him, it is, at the same time, imperatively his duty to obey
the process of the United States, to hold the prisoner in custody un
der it, and to refuse obedience to the mandate or process of any other
government. And, consequently, it is his duty not to take the
prisoner, nor suffer him to be taken, before a State judge or court,
upon a habeas corpus issued under State authority. No State judge
or court, after they are judicially informed that the party is im
prisoned under the authority of the United States, has any right to
interfere with him, or require him to be brought before them. And
if the authority of a State, in the form of judicial process or other
wise, should attempt to control the Marshal, or other authorized
officer or agent of the United States, in any respect, in the custody
of his prisoner, it would be his duty to resist it, and to call to his
aid any force that might be necessary to maintain the authority of
law against illegal interference. 'No judicial process, whatever form
it may assume, can have any lawful authority outside the limits of
the jurisdiction of the court or judge by whom it is issued ; and an
attempt to enforce it beyond these boundaries is nothing less than
lawless violence.'"
The language above cited is that of Chief Justice Taney in the
decision of the Supreme Court of the United States in the case of
Ableman vs. Booth. — (21 Howard's Reports, 506.)
If a writ of habeas corpus shall have been sued out from a State
court, and served upon the Provost Marshal while he holds the
deserter under arrest, and before he has had time or opportunity to
" send him to the nearest military commander, or military post,"
it is the duty of the Marshal to make to the court a respectful state
ment, in writing, as a return upon the writ, setting forth :
1st. That the respondent is Provost Marshal, duly appointed by
the President of the United States, in accordance with the provisions
of the act aforesaid.
2d. That the person held was arrested by said Marshal as a
deserter, in accordance with the provision of the 7th section of the
act aforesaid. That it is the legal duty of the respondent to deliver
over said deserter "to the nearest military commander, or military
post," and that the respondent intends to perform such duty as soon
as possible.
MILITARY ARRESTS IN TIME OF WAR. 215
3d. That the production of said deserter in court would be incon
sistent with, and in violation of the duty of the respondent as Provost
Marshal, and that the said deserter is now held under authority of
the United States. For these reasons, and without intending any
disrespect to the honorable judge who issued process, he declines to
produce said deserter, or to subject him to the process of the court.
To the foregoing all other material facts may be added.
Such return having been made, the jurisdiction of the State court
over that case ceases. If the State court shall proceed with the
case and make any formal judgment in it, except that of dismissal,
one of two courses must be taken. (I) The case may be carried up,
by appeal or otherwise, to the highest court of the State, and re
moved therefrom by writ of error to the Supreme Court; or, (2) the
judge may be personally dealt with in accordance with law, and
with such instructions as may hereafter be issued in each case.
WILLIAM WHITING,
Solicitor of the War Department.
NOTE A. — For those who desire to examine the practice and authorities on the question
whether a government has the right to treat its citizens while engaged in civil war, as bel
ligerents or as subjects, reference may be had to the following, viz.: (Stephens') Black-
stone's Com., Vol. 4, p. 28(5. Marten's Essai concernant les Armateurs, ch. 2, sect. 11.
See 17 Geo. III. ch. 9 (1777). Pickering's Statutes, Vol. 31, p. 312. See President's Procla
mation, April 19, 18(51. U. S. Stat. at Large, 1861, App. p. ii. See charge of Nelson, J.,
in the report of the trial of the officers, &c., of The Savannah, p. 371. In this case the rebel
privateer put in as a defence his commission to cruise under the Confederate flag; and the
same defence was made before the United States Court in Philadelphia by other persons
indicted for piracy. It was held in both of these tribunals, that they must follow the
decision of the executive and legislative departments in determining the political status of
the Confederate States ; and, that the exercise of belligerent rights by the Federal Gov
ernment did not imply any waiver or renunciation of its sovereign or municipal rights,
or rights to hold as subjects the belligerent inhabitants of the seceded States. See the
report of Smith's Trial, p. 9(5. The pirates tried in New York were not convicted. Those
who were convicted in Philadelphia were not sentenced, but, by order of the Secretary
of State (January 31, 18(52), were sent to a military prison , to be exchanged as prisoners
of war — this being done to avoid threatened retaliation.
See also authorities cited in Chapter II. p. 44.
It has been decided since the tenth edition was in type, that citizens of States in rebel
lion are considered as public enemies, and are not entitled to sue in the courts of the United
States, by Nelson, J., U. S. C. C., of Minnesota. See Nash v. Dayton. A similar decis
ion has been made by the Court of Appeals in Kentucky, and has been approved by Gov
ernor JBramlette. (Sec his Message to the House of Representatives, February 13, 18(54.)
Note to Forty-third Edition. — Nor can public enemies appear as claimants in a case of
prize. ( United States v. The Isaac Ilemmett, 10 Pits. Leg. Jour., 97; United States v. Tlie
Alleghany, Ib. 276 ; United States v. One Hundred Barrels of Cement, 12 Am. L. R. 735.)
In Mrs. Alexander's Cotton case, the Supreme Court say, 1864-5 (2 Wallace, 421), " A
public enemy can have no standing in any court of the United States so long as that
relation exists." See Appendix, p. 532.
216 MILITARY ARRESTS IN TIME OF WAR.
KEES v. TOD.
This case has been decided in Ohio since the seventh
edition of the " War Powers" went to press : —
John W. Kees v ,9. David Tod and others, Pickaway County Common Pleas ;
civil action. On petition to remove the case, for trial, to the United States
Circuit Court.
The defendants, under the Act of Congress of March 3, 1863, present a
sworn petition, stating the facts, clearly within the Act, and tendering surety
as provided by the Act.
Section 4 of the Act provides, "That any order of the President, or under
his authority, made at any time during the existence of the present rebellion,
shall be a defence in all courts to any action or prosecution, civil or criminal,
pending, or to be commenced, for any search or seizure, arrest or imprisonment,
made, done, or committed, or acts omitted to be done, under and by virtue of
such order, or under color of any law of Congress, and such defence may be
made by special plea, or under the general issue."
Section 5 provides, "That if any suit or prosecution, civil or criminal, has
been or shall be commenced in any State court against any officer civil or
military, or against any other person, for any arrest or imprisonment made, or
other trespasses or wrongs done or committed, or any act omitted to be done,
at any time during the present rebellion, by virtue or under color of any
authority derived from or exercised by or under the President of the United
States, or any Act of Congress, and the defendant shall, at the time of entering
his appearance in such court, or, if such appearance shall have been entered
before the passage of this Act, then at the next session of the court in which
such suit or prosecution is pending, file a petition, stating the facts, and verified
by affidavit, for the removal of the cause for trial at the next Circuit Court of
the United- States, to be holden in the district where the suit is pending, and
offer good and sufficient surety for his filing in such court, on the first day of
its session, copies of such process or proceedings against him, and also for his
appearing in such court, and entering special bail in the cause, if special bail
was originally required therein, it shall be the duty of the State court to
accept the surety, and proceed no further in the cause or prosecution, and the
bail that shall have been originally taken shall be discharged, and such copies
being filed, as aforesaid, in such court of the United States, the cause shall
proceed therein in the same manner as if it had been brought in said court by
original process, whatever may be the amount in dispute or the damages
claimed, or whatever the citizenship of the parties, any former "law to the con
trary notwithstanding.
OPINION OF JUDGE DICKEY.
The plaintiff brought his action in this court to recover damages for an
alleged trespass and false imprisonment by the defendants, and filed his petition
MILITARY ARRESTS IN TIME OF WAR. 217
on the 14th of September, 1863, and caused summons to be issued and served,
&c. In his petition he alleges that the defendants, on the 29th day of June,
1862, at the county of Pickaway, unlawfully and maliciously assaulted the
plaintiff, and that the defendants, Bliss, Goodell, and Dougherty, at the instance
and by the procurement of the defendants, Tod and Gregg, seized and laid
hold of the plaintiff, and then and there unlawfully and maliciously, and
without any reasonable and probable cause, arrested and imprisoned said
plaintiff, with intention of having him carried out of the State of Ohio con
trary to the laws thereof, and that defendants Scott and Goodell, then and
there, at the instance and by the procurement of the said Tod, Dougherty, and
Gregg, forced and compelled the said plaintiff to go from and out of his house,
situate and being in said county of Pickaway, into the public street, and so on ;
charging that they compelled him to go out of the State of Ohio, to the
military prison, called the " Old Capitol Prison," in Washington City, and
there the defendants caused him to be unlawfully and maliciously, and against
his will, without reasonable or probable cause, imprisoned for seventeen days,
&c., to his damage, $30,000.
On the 27th of October, 1863, defendants Tod, Gregg, and Dougherty, the
only defendants served with process, filed their petitions against the plaintiff
Kees, stating, in substance, that the plaintiff Kees, on the 12th of September,
1863, filed his petition in the court, and commenced a civil action for the
wrongs, injuries, &c., as stated in plaintiff's petition, making reference to it for
particulars, and then going on to set forth that having been summoned, they
come and enter their appearance to the plaintiff's action, and state, that, so far
as the arrest, imprisonment, wrongs, &c., -were committed, as alleged in plain
tiffs petition, the same was done during the present rebellion, about the 29th
day of June, 1862, and prior to the 3d day of March, 1863, by virtue and
under color of authority derived from and exercised by the President of the
United States, and by virtue of and under an order issued from the War
Department of the United States (a copy of which order is given).
The defendants then, after a full statement of the facts as they claim them,
relating to the authority, &c., further state, that they, desiring to have the case
removed to the next Circuit Court of the United States, to be holden at Cin
cinnati, &c., come and offer good and sufficient surety, &c., and then pray this
court to accept the surety and proceed no further in the case, and to make
such further order as may be necessary for the removal of the case to the
Circuit Court of the United States.
The following is the order of the War Department referred to :
WAR DEPARTMENT, WASHINGTON, D. C.,
June 27, 1862.
SIR : Proceed, with one assistant, by first train, to Circleville, in the State
of Ohio, arrest there, or wherever else he may be found, John W. Kees, editor
and publisher of the " Circleville Watchman," and deliver him to the com
mandant at Camp Chase, permitting no communication with him except by
yourself, and your subordinates charged with his safe keeping, and, if you think
fit, by his family in your presence. Examine all papers, private or otherwise,
28
218 MILITARY ARRESTS IN TIME OF WAR.
found at the office of the paper, the residence of Kees, or on his person, and
bring with you to the department all that may be found of a treasonable or
suspinious nature, as well as a copy of each issue of the " Watchman" during
the last four months. Close the office, locking up the presses, type, paper,
and other material found therein, and place it in charge of a discreet and
trustworthy person, who will see that it is safely kept. If you think any
further aid will be necessary, call on Governor Tod, at Columbus, who will be
requested to give you such information and aid as you may think needful in
enabling you to fulfil your duty.
Let this order be executed promptly, discreetly, and quietly ; and, when
executed, make full report of your doings hereuiider to this department.
By order of the Secretary of War.
(Signed) C. P. WOLCOTT,
Assistant Secretary of War.
It was set forth in defendant's petition that this order was addressed to Wm.
H. Scott, Washington, D. C., and delivered to him, and that he proceeded to
its execution, and called at the Executive office, in Columbus, was given infor
mation in regard to Kees, his paper, and persons, to call on at Circleville, &c.,
by one of the Governor's staff; and that Scott did proceed to Circleville, and
arrest Kees under and by virtue of the command of the order referred to, &c.
And the petition of the defendant, David Tod, further states, that about the 6th
of June, 1862, prior to the issuing of the order, the Circleville Watchman of
that date, edited and published by Kees, was mailed to him as Governor, con
taining marked editorial articles, highly libellous, inflammatory, and treasonable
in their character, well calculated and intended to prevent enlistments, weaken
the military power of the government, and produce opposition to it in its
efforts to crush the rebellion, and excite further rebellion — copies of which
articles, and others of like character issued prior to the order, are shown with
the petition.
The defendant Tod further states that he enclosed the Watchman contain
ing the marked articles by mail to the Secretary of War, with a letter, calling
the Secretary's attention to the marked articles, and hoping that the Secretary
would at once put its editor, John W. Kees with his secession rebel friends, in
Camp Chase prison, where it would be his (the Governor's) pleasure to see
that he (Kees) would be safely kept.
He further states that he has set forth his only connection with the alleged
arrest, &c., and that he did nothing more ; and all he did was in his capacity
as Governor of Ohio, and in performance of his duty to the national
government.
The case has been argued and heard upon the defendant's petitions for the
removal of it to the Circuit Court of the United States.
It nowhere appears in the petition of the plaintiff, that the defendants, in the
commission of the trespasses and wrongs against the person of the plaintiff, as
alleged, were acting under any authority, or color of authority, from any
source whatever. And so far as appears from the petition of the plaintiff, this
Court has complete jurisdiction of the case.
MILITARY ARRESTS IN TIME OF WAR. 219
But, the defendants having filed their petitions for the removal of the case
under the fifth section of the act of Congress, approved March 3, 1863, "relat
ing to habeas corpus and regulating judicial proceedings in certain cases,"
•which, if applicable, and not clearly invalid, so far as applicable, would
require that the prayer of the defendants should be granted, no objection to
the manner and form in which the application has been made having been
raised by the plaintiff.
[Here follows the sections of the law, as quoted above.]
The mere reading of this fifth section, of itself, shows its applicability to the
case before us ; indeed, I believe that is not denied by the council for the
plaintiff.
But it is claimed that the law is invalid, because not authorized by the
Constitution of the United States, and because, when applied to the case in
hand, is ex post facto, the right of action having accrued prior to the passage of
the law. Whatever may be said of the attempt in the fourth section to create
a defence, or provide an indemnity against trespasses committed prior to its
passage, cannot be urged successfully against the fifth section, which only
affects the remedy, and does not, in any manner, touch either the subject-
matter of the action or of the defence.
These sections of the act are so far distinct and separable, that the fifth may
be sustained independent of the fourth.
The object of the fourth section seems to be, to declare what is, or to provide
what shall be, a defence in certain cases, to wit : " any order of the President,
or under his authority." This applies only to cases where there is an order,
and constitutes such order a defence in all courts where it shall be pleaded,
whether in State or Federal Courts. The object of the fifth section is to pro
vide a mode for the transfer of certain cases from the State to the Federal
Courts, to wit : " all suits or prosecutions for act done or committed by virtue
or under color of any authority derived from the President, or any act of
Congress." This section applies to cases not included in the fourth section ;
it applies to all such cases as stated, whether there be any order or not.
In order to secure the benefit of it, its provisions must be strictly followed.
Thus it will be seen that either of these sections may be invoked without the
other, and that the fifth is applicable to cases to which the fourth is not ; and
while the object of the fourth is to provide or declare rights, the object of the
fifth is to regulate the practice in those and certain other cases. For these
reasons, the two sections are so far separable and independent of each other,
that the fifth may be held constitutional and the fourth unconstitutional. And,
as it is not claimed that the fifth section is of itself unconstitutional, but only
becomes so by reason of its inseparable connection with the fourth, I conclude
that, as there is no such connection between them, the argument fails, and the
Court may be justified in holding the fifth valid, without determining the valid
ity of the fourth.
It will not be denied but that the Legislature of Ohio might, even after the
right of an action of trespass in favor of a party had accrued against a Con
stable or Sheriff, pass a law providing that where such Constable or Sheriff had
been sued in trespass, before a Justice of the Peace, as an individual, that if
220 MILITARY ARRESTS IN TIME OF WAR.
such officer desired to justify under a writ, and should make that known to the
J ustice, then it should be his duty to certify the case to a Court of Record
having cognizance of the official acts of such defendant. Neither the subject-
matter of the right of action nor the defence would be in the least interfered
with ; the mode of proceeding and the remedy are changed ; that is all.
A more appropriate tribunal is provided ; and so here this fifth section pro
vides another tribunal — one having cognizance of United States officers, their
official acts, and of the Constitution and laws of the United States, under which
they act : no new defence is created, nor the right of action any way impaired.
This section, therefore, is not invalid on the ground of its being retroactive.
It is, however, claimed that the facts set forth in the petition of defendant
can constitute no defence, as the order under which the arrest was made was
issued without authority under the Constitution of the United States, or the
laws thereof, and that the fourth section of the act cannot support the defence,
although in terms it may include it — for two reasons : first, because that sec
tion attempts to create a defence to a valid cause of action after it arose, and is,
therefore, retroactive ; and, second, because Congress can confer no power on
the President to issue, or cause to be issued, such orders, either in time of war
or peace, by virtue of any grant in the Constitution, by inference or otherwise ;
and that the attempt, therefore, to make such defence, is a nullity, and being so,
the defence and the application to remove must fall together.
As to the first reason, suffice it to say, "sufficient unto the day is the evil
thereof." When the defence provided by the fourth section is set up upon the trial
of the cause upon its merits, either in this court or in the court to which it
may be removed, it will be time enough to decide the question. To do so now
would be to prejudge the case without a full hearing on the merits, and, if
decided for the defendants, there would be no need for a removal, and if for
the plaintiff, the only matter left would be an inquiry into damages ; it would
be equivalent to the decision of a demurrer to defendant's answer, on this pre
liminary application, and would be taking from the tribunal whose jurisdiction
is sought, one of the questions upon which it should pass.
Again, granting that this fourth section is, so far as the case at bar is
concerned, ex post facto in terms, and should be so held when the case is tried
upon its merits, we are brought to consider the second reason given for its
invalidity. Suppose the power to issue the order in question existed in the
President, independent of section fourth, would its enactment annul that power,
or only declare it? The act in question does not attempt to confer the po\ver
on the President to issue, or cause to be issued, such order ; it merely declares
that such orders, when issued shall be a good defence, proceeding upon the
hypothesis, as we suppose, that he always possessed the power ; so that in this
view the fourth section partakes more of the nature of an act declaratory, than
of the enactment of a new law conferring power. Enough, perhaps, has already
been said to justify this court in granting the prayer of the defendants' petitions,
and leave the question as to the authority of the War Department to issue the
order set forth, for decision in the Circuit Court as the appropriate tribunal.
But, inasmuch as it is claimed by the plaintiff, that no such authority, or color
of authority exists, and that therefore there is no foundation for the jurisdictioij
MILITARY ARRESTS IN TIME OF WAR. 221
sought by the defendants, I will proceed to offer reasons and authority, to show
that it is at least a question of serious doubt, and, therefore, proper for the Unit
ed States Court, as the doubt should be resolved in favor of the law.
Then, let us inquire into the power of the President, under the constitution,
as commander-in chief of the army and navy, in time of a fearful rebellion like
the present, to issue, or cause to be issued, such orders of arrest, &c. We all
know the history of the sad times that have fallen upon us. The fact of a most
violent, bloody, and terrific Avar, threatening our entire destruction as a nation —
the imminent and immediate danger which threatens us in all we have and are
in life — and of this contemporaneous history, of course the court should and
will take notice.
In view of this, then, let us turn to the petition of the defendant David Tod,
and ascertain, if we can, something of the cause of the arrest. It appears in the
petition that the defendant, prior to the issuing of the order, wrote a letter to
the War Department, enclosing certain marked editorials of the Watchman, of
which Kees was editor and publisher, calling the attention of the Secretary of
War thereto, and expressing a hope that the Secretary would at once put Kees,
with his secession rebel friends, in Camp Chase Prison, &c. Copies of the
editorials are referred to in, and filed with, the petition. In the article of June
6, 1862, this passage occurs: "We advised all Democrats to stay at home, and
Jet the authors and provokers of this war, the Abolition Republicans, fight out
their own war themselves ; this is what ought to have been done. If such had been
the policy of the Democracy, we would not to-day have a devastated country,
drenched in fraternal blood." Again, in an editorial article of the Watchman,
June 13, 1862, is this question, (after speaking of Ben. Butler m exceedingly
harsh terms,) " Why don't the men of New Orleans shoot the infamous wretch
like they would a reptile or a dog." These, with many kindred extracts, are
filed with the petition, and are characterized in the petition of Governor Tod
as highly libellous, inflammatory and treasonable in character, well calculated
and intended to prevent enlistments, weaken the military power of the govern
ment, and produce opposition to it in its efforts to crush the rebellion, and
excite further rebellion. This is all the information we have as to the cause of
the arrest of Kees ; whether the War Department had other and further foun
dation we know not — the presumption is, so far as this motion is concerned,
that the information it had, whether under oath or otherwise, was deemed
sufficient by it, for his arrest ; sufficient to establish the fact, that the danger
from Kees to the public service, while left at liberty, was immediate and impend
ing, and that the urgent necessity for the public service demanded his arrest.
Whether this was so or not, I do not undertake to say, nor is it necessary to
decide, in disposing of this motion.
Article 3d, Section 2d, of the Federal Constitution provides that "The judi
cial power (of the United States) shall extend to all cases in law and equity
arising under this Constitution and the laws of the United States," &c.
The President is commander in-chief of the army and navy, by express pro
vision of the Constitution. Now, if the power to issue this order of arrest is
incident to his office as Commander-in-chief, then, by necessary implication,
the power is derived from the Constitution, without the aid of the fourth section
222 MILITARY ARRESTS IN TIME OF WAR.
referred to, and, if Kees was arrested by virtue of su^h order, then the case
arose under the constitution, and the United States courts have jurisdiction,
and, as we have seen, it may be transferred in the manner pointed out by the
fifth section of that act, independent of the fourth.
And, if such power belongs to the President, as an incident to his office of
Commander-in-chief, no question but he may transfer it to his subordinates, for
all the war power vested in him may be, and is, distributed to the vast army of
war officers who act under him as his agents. Upon this question there is,
and has been, a great conflict of opinion, both legal and political. The order
by which Mr. Vallandigham was arrested, was from the same source of power.
Judge Leavitt passed upon the question and upheld the power, and Mr. Val
landigham was tried and sentenced under it.
It is claimed that the power in question is exercised under what is called
martial law, or the right of war, and not under military law, which, it is said,
is defined by the articles of war and the decisions under them, and is for the
government of the army, &c. And it is claimed that this martial authority
belongs, as a necessary incident, to the commander-in-chief, and that when
that office is conferred, the necessary incident, in time of war, is conferred with
it, and is as much a part of the office as any other.
Now, if this be so, it follows, of course, that when the office of commander-
in-chief is conferred by the Constitution upon the President, this martial power
is also conferred and secured, as clearly as the right of trial by jury, the liberty
of the person, the freedom of speech and of the press, is secured to the citizen
in time of peace.
The question here is, not whether the power was exercised under proper re
straint, but whether it exists all, and it is not necessary to its exercise that
martial law shall first have been declared. Cases are numerous, both in Amer
ica and in Europe, where the authority, of the nature of the power in question
has been exercised in time of war, by the commander-in-chief and his sub
ordinates, in the absence of the declaration of martial law, and afterwards sus
tained by the civil courts. In the case of Mitchell vs. Harmony, reported in 13
Howard, 115, which was an action brought by the plaintiff" against the defend
ant, to recover damages for the seizure of property, as a commander in the
Mexican war, under the pretext of military necessity, Chief Justice Taiiey, in
delivering the opinion of the court in that case, said, "It is impossible to
define the particular circumstances of danger or necessity in which the power
may be lawfully exercised. Every case must depend on its own circumstan
ces. It is the emergency that gives the right. In deciding upon this necessity,
however, the state of facts, as they appeared to the officer at the time he acted,
must govern the decision, for he must necessarily act upon the information of
others as well as his own observation. And if, with such information as he
had a right to rely on, there is reasonable ground for believing that the peril is
immediate and menacing, or the necessity urgent, he is justified in acting upon
it, and the discovery afterwards, that it was false and erroneous, will not make
him a trespasser." Now, it is urged that the power exercised by the defendants
in the case named, was a partial exercise of martial law, and did not depend
upon time or place, but upon the emergency, and that it was the emergeiicy that
gave the right to exercise it.
/
MILITARY ARRESTS IN TIME OF WAR. 223
Chancellor Kent lays dow^Tthe doctrine that martial law is quite a distinct
thing from military lawj>/that it exists only in time of war, and originates only
in military necessij^'''lt derives no authority from the civil law, no assistance
from the ciyif tribunals, for it overrules, suspends, and replaces them. See
Cipiffffg^s Opinions of Attorney Generals of the United States, vol. 8, page 365,
&c*., and the authorities there cited. See also the case of Luther vs. Borden,
et. al., 1 Howard, page 1.
It is also claimed that Washington's army exercised the power in question,
during the whiskey insurrection of 1794 and 1795, and that General Wilkinson,
under the authority of Jefferson, exercised it during the Burr conspiracy, in
1806; and that General Jackson called it into requisition at New Orleans, in
1814.
In the case of the application of Nicholas Kemp, for a writ of habeas corpus,
the Supreme Court of Wisconsin recently decided against the power it gave
the President to suspend the writ, but recognized the war right, or martial law,
under certain limitations.
See also the case of Brown vs. the United States, book 8, Cranch, page 153,
where Chief Justice Marshall, in delivering the opinion of the court, holds that
" as a consequence of the power of declaring war and making treaties, &c., when
the legislative authority has declared war, the Executive, to whom its execution
is confided, is bound to carry it into effect ; he has a discretion vested in him as
to the manner and extent : but he cannot, morally, transcend the rules of war
fare established among civilized nations."
See Vattel, pages 5 and 6, where the rule is laid down, that " a nation has a
right to every thing that can help to ward off imminent dangers, and keep at a
distance whatever is capable of causing its ruin, and that from the very same
reasons that establish its rights to the things necessary for its preservation. "
He also lays down the rule, that the same rules of war apply to civil as to
foreign wars.
It is not controverted but that the commander of an army may exercise, in
proper cases, the power in question, over both property and person, within the
territory and its vicinity under the control of the army, although martial law
has not been declared, nor the civil law entirely suspended. What is it, then,
but a partial exercise of martial law ? And what gives the right but a military
necessity, or emergency ? And from what source does the power come, if not
from the President, as commander-in-chief ? Now, what good reason can there
be for confining the power to and within the lines of the army, provided a like
urgent necessity and emergency arises or exists at any other point outside of
the lines of the army, and within the territory of the government or nation ?
What is the theatre of the present war in this country ? Is it only that portion
of the country included within the lines of the armies, which extend from the
Chesapeake Bay to the spurs of the Rocky Mountains ? or is it not rather the
whole nation, the loyal States upon the one side, and the disloyal upon the
other ? and are not all within the vicinity of the lines of the armies, as far as that
vicinity is to be considered as affecting the exercise of the authority in dispute ?
The right to impress private property, either for the use of the government,
or to prevent it from falling into the hands of the enemy, arising from urgent
224 MILITARY ARRESTS IN TIME OF AVAR.
necessity, or from immediate impending danger, ;n v ^-vhere within the territory
of the country, although outside the lines of the ai :{iy, ha-3 never, that I am
aware of, been disputed ; but whether the emergent;,
ment was properly made, may be disputed, and is '. >ere
are numerous instances where this }
lines of the army, and no one has doubted
graphs, with their machinery and cm;
into the service of the government, and controlled per force, and the emer-
gency relied upon to justify the act, the whole country acquiescing therein. In
such cases the commander must be the judge of the urgent necessity, and if he
decides that the necessity exists, and issues the order for the impressment, his
subordinates are bound to obey. And it would seem from a well-settled prin
ciple of the common law that such subordinates would be justified, although
their commander may have had but slight foundation for the exercise of the
authority, and this upon the principle that, if the power existed at all, the com
mander, and not the soldier, is to judge of the limitations under which it is to
be exercised. If the order is wanton, the party injured has his remedy against
the commander. If it is said that the recognition of such a doctrine is danger
ous to the liberties and rights of the people, and tends to subvert free govern
ment and establish despotism, the answer is, that the abuse of any power tends
to the same end, and that it is the abuse, and not the legitimate exercise of it,
which makes it dangerous. The limitations are well defined, and if he who
undertakes to exercise it oversteps the bounds, he may be called to an account ;
and if the President corruptly and wantonly exercises it, he may -be impeached,
and at the end of his term the people will correct the error. But it is claimed,
that although the authority may be exercised over property as stated, yet it can
not be so exercised over persons, although the same danger and urgent
necessity may exist ; for the reason that, in the case of the impressment of prop
erty, a compensation is made by the government to the owner, while in the
case of the arrest of the person no such compensation can be made. Now,
does the fact of compensation give the right to impress ? It is not so laid down
by any authority which has come under my notice. Compensation is not the
test of the right, but one of the results of the act. The right arises from a far
higher source, to wit, the right of a nation to do any act which will ward off
a dangerous blow aimed at its existence, and which tends to preserve its life in
time of war.
This test, it is claimed with great force, applies as well to the arrest of a per
son as to the impressment of his property, under proper restraints and in a
proper case.
But, again, it is claimed that the recognition of this doctrine subverts the
guarantees of the Constitution, of the right of trial by jury, and against unrea
sonable search, seizure &c. While, on the other hand, it is argued that the
power is incident to the office of commander-in-chief of the armies in time of
war, and necessarily implied. And, I ask, is this not true when the case arises
within the limits of the army, where its exercise is uncontroverted ? And if
the guarantees of the Constitution are inapplicable in the one case, are they not
equally so in the other ? and if the immediate danger and urgent necessity is
MILITARY ARRESTS IN TIME OF WAR. 225
the foundation of the right, and that may be exercised outside as well as inside
the lines, where is the line of distinction to be drawn ?
Again, was the order of arrest in question issued upon the charge of the
commission of any crime, or only because there was supposed to be imminent
and impending danger that an irreparable injury would be committed, and in
this view may not the government act upon the same principle that civil
courts act in cases of peace warrants ? Where a citizen has been arrested and
brought before the court on a peace warrant, and tried, without a jury, and
the court find that the complainant has just cause to fear, and does fear, that
the accused will kill him, the court will require bail to keep the peace, and, in
default of bail, will imprison the defendant, not for any crime that he has com
mitted, but for fear that he will commit an irreparable injury. Now, shall the
government be denied a remedy in a like case, where an irreparable injury to
it in time of war is threatened and impending, and where the commander-in-
chief, or his subordinates, are convinced that a citizen, inimical to the govern
ment, is about to commit some act against the government and in favor of the
enemy, which, if committed, will be irreparable, and that there is imminent
and immediate danger that the act will be committed ? May not the authorities,
in order to prevent it, take steps to avert it, and, if necessity requires, to re
strain such citizen per force — even by imprisonment — until the danger is past,
although no crime has actually been committed, and this be justified under the
usages of war, or a partial exercise of martial law, it matters not by what name
it is called ?
I do not intend to decide, nor do I wish to be understood as deciding,
whether the Secretary of War was justifiable in issuing the order in question,
or whether the defendants can justify under it, for that, I consider, should be
left for the trial on the merits of the case.
I have made these suggestions, and cited authorities to show, that it would
look like an unwarranted usurpation in this court, more dangerous, perhaps,
than the military power objected to, to pass upon and nullify the fifth section of
the act of Congress, under which the defendants' petitions are filed, in this sum
mary and preliminary proceeding, and thus wrench from the defendants, who
stand in a United States relation to the case, the right to have it heard and
determined by a United States court.
The plaintiff has all the guarantees for a fair and impartial hearing and trial
in that court that he has in the State courts ; and, besides, one principal reason
why such cases should be tried in the Federal courts, is, to secure uniformity in
the rules governing such cases. If it were left to the State courts — as these
cases concerning United States laws, Constitution, and officers arise in every
State — there might be as great a variety of contradictory decisions as there are
State courts. The consequence would be, that no man would or could know
the law governing United States officers, and the affairs of the nation would
run into utter confusion, and the officer would be constantly liable to be ha
rassed in each State, and subject to a different law or rule every time he crossed
a State line. The prayer of the defendants' petitions is granted.
29
RETURN
OF
REBELLIOUS STATES
TO THE UNION.
THE
RETUKN OF REBELLIOUS STATES
TO THE UNION.*
TWOFOLD WAR.
HOWEVER brilliant the success of our military opera
tions has been, the country is encompassed by dangers.
Two wars are still waged between the citizens of the
United States — a war of Arms and a war of Ideas.
Achievements in the field cannot much outstrip our
moral victories. While we fix our attention upon the
checkered fortunes of our brave soldiers, and trace
their marches over hills and valleys made memorable
through all time by their disasters or their triumphs ;
while, agitated by hope and fear, by exultation and
disappointment, we see our brothers and sons mourn-
* During the spring and summer of 1863, efforts were made by certain citizens of Flor
ida, Louisiana, Arkansas, and Eastern Virginia to obtain the assent of the President to
the formation of local State governments, and to the recognition thereof by the Executive
and Legislative Departments. The views on this subject contained in the following pages,
having been communicated verbally to the President, were subsequently embodied in a
letter to the Union League of Philadelphia, published July 28, 1803.
(229)
230 KECONSTRUCTION OF THE UNION.
ing 'the loss of thousands of their companions in arms,
yet marching joyfully to the post of danger and of
honor ; while we follow with intense solicitude the
movements of our vast armies advancing with unfal
tering courage against a powerful and desperate foe, —
let us not forget that more majestic contest waged by
men not less heroic, for victories not less renowned
than those which have been won on battle-fields. The
deadliest struggle in this rebellion is that of barbarism
against civilization, slavery against freedom, aristocracy
against republicanism, and treason against loyalty.
The true patriot will watch with profound interest
the fortunes of this intellectual and moral conflict,
because the issue involves the country's safety, pros
perity, and honor. If victory shall crown the efforts
of those brave men who believe and trust in God,
then shall all this bloody sacrifice be consecrated,
and years of suffering shall exalt us among the
nations ; if they fail, no triumph of brute force
can compensate the world for our unfathomable
degradation. Let us, then, endeavor to appreciate
the difficulties of our present position.
BREAKERS AHEAD.
Of several subjects, to which, were it now in my
power, I would ask your earnest attention, I can speak
of one only. As the success of the Union cause shall
become more certain and apparent to our enemies in
the rebel States, they will lay down arms and cease
fighting. Their intense and relentless hatred of the
Government, of Northern men who are not traitors, and
RECONSTRUCTION OF THE UNION. 231
of Southern men who are loyal, will still remain fes
tering in every fibre of their hearts, and will be
made, if possible, more bitter by the humiliation of
conquest and subjection. The foot of the conqueror
planted upon their proud necks will not sweeten their
tempers. Their defiant and treacherous nature will
seek to revenge itself in murders, assassinations, and
all underhand methods of venting a spite which they
dare not manifest by open war, and in driving out from
their borders all loyal men. To believe that sincere
attachment to the Union will survive in the hearts of
a hostile people who have strained every nerve and
made every sacrifice to destroy it, would require the
most pitiable credulity.
The slaveholding inhabitants of the conquered dis
tricts will begin by asserting their claim to exercise the
powers of government in accordance with their con
struction of State rights ; they will try to get control
of the lands, personal property, slaves, free blacks, and
poor whites, and, through the instrumentality of local
laws, made to answer their own purposes, to acquire
the means of opposing and preventing the execution
of the constitution and laws of the United States,
within the region of country occupied by them. Thus,
for instance, when the people of South Carolina shall
have ceased fighting, they will say to the President,
" We have now laid down our arms ; we submit to the
authority of the United States government. You may
restore your custom-houses, your courts of justice, and,
if we hold any public property, we give it up : wre now
have chosen senators and representatives; we de
mand their admission to Congress, the full recogni-
232 RECONSTRUCTION OF THE UNION.
tion of otir State rights, and the restoration of our
former privileges and immunities as citizens of the
United States." Claims like these will be made by
men who are traitors at heart ; men who hate and
despise the Union ; men who never had a patriotic
sentiment ; men who, if they could, would hang every
friend of the government. But for the sake of get
ting into their own hands, by our concession, power
which they could not obtain by fighting, and to avoid
the penalty of their national crimes, they will at
tempt to destroy the Union under the guise of
claiming State rights.
CONSEQUENCES OF BEING OUTWITTED BY REBELS.
What will be the consequence of yielding to these
demands? Our public enemy will gain the right
of managing their affairs according to their will
and pleasure, and not according to the will and
pleasure of the people of the United States. They
will be enabled, by the intervention of their State
laws and State courts, to put and maintain them
selves in effectual and perpetual opposition to the laws
and constitution of the United States, as they have done
for more than thirty-five years. They will have the
power to pass such local laws as will practically exclude
from the slave States all northern men, all soldiers, all
free blacks, and all persons and things wThich shall be
inconsistent with the theory of making slavery the
corner-stone of their local government ; and they may
make slavery perpetual, in violation of the laws of the
United States and the proclamations of the President.
RECONSTRUCTION OP THE UNION. 233
They may continue the enforcement of that class of
statutes against free speech and freedom of the press,
which will forever exclude popular education, and all
other means of moral, social, and political advancement.
They may send back to Congress the same traitors
and conspirators who have once betrayed the country
into civil war, and who will thwart and embarrass all
measures tending to restore the Union by harmonizing
the interests and the institutions of the people, and so,
under the guise of submission, amnesty, and restora
tion, they may gain by fraud and treason that which
they could not achieve by feats of arms. The insane
theory of State rights will be nourished and strength
ened if we treat a conquered people as our equals,
and its baleful influence cannot be avoided ! To
satisfy traitors, the solemn pledge of freedom offered
to colored citizens by Congress and by the Proclama
tion must be broken, and the country and the govern
ment must be covered with such unspeakable infamy,
that even foreign nations might then justly hold us
guilty of treachery to the cause of civilization and of
humanity.
Suppose that the rebellion had been already quelled,
would you give to your enemy the power of making
your laws ? Eastern Virginia, Florida, and Louisiana
are now (1863) knocking at the door of Congress for
admission into the Union. Citizens from the South
have come to Washington, chosen to office by a hand
ful of associates, elevated by revolution to unaccus
tomed dignity, representing themselves as loyal Union
men, and earnest to have State rights bestowed on
their constituents. If they should be clothed with the
30
234 RECONSTRUCTION OF THE UNION.
power to constitute States in the Union, into whose
hands will their State governments be sure to fall ?
Beware of committing yourselves to the fatal doc
trine of recognizing the existence in the Union, of
States which have been declared by the President's
Proclamation to be in rebellion, else, by this new
device of the enemy, this new version of the poisonous
State rights doctrine, the secessionists will be able to
get back by fraud what they failed to get by fighting.
Do not permit them, without proper safeguards, to
resume in your counsels in the Senate and in the
House the power which their treason has stripped
from them. Do not allow old States, with their con
stitutions still unaltered, to resume State powers. Be
true to the Union men of the South. Trust not
designing politicians in the border States. The rebel
districts contain ten times as many traitors as loyal
men. The traitors will have a vast majority of the
votes. Clothed with State rights under our constitu
tion, they will crush every Union man by the irre
sistible power of their legislation. If you would be
true to the patriots of the South, you must not bind
them hand and foot, nor deliver them over to their
bitterest enemies.
STATE RIGHTS IN CIVIL WAR.
Beware of entangling yourselves with the tech
nical doctrines of forfeiture of State rights, as such
doctrines admit, by necessary implication, the va
lidity of a code of laws, and of corresponding civil
and political rights, which you deny. To preserve
the Union, requires only the strict enforcement
RECONSTRUCTION OF THE UNION. 235
against public enemies of our belligerent rights of
civil war.
ATTITUDE OF THE GOVERNMENT IN THE BEGINNING OF THE WAR
TOWARDS THE REBELS, AND TOWARDS LOYAL MEN IN REBEL DIS
TRICTS.
When the insurrection commenced by illegal acts of
secession, and by certain exhibitions of force against
the government, in distant parts of the country, it was
supposed that the insurgents might be quelled, and
peace might be restored, without requiring a large mili
tary force, and without involving those who did not
actively participate in overt acts of treason.
Hence the government, relying upon the patriotism
of the people, and confident in its strength, exhibited a
generous forbearance towards the insurrection.
When, at last, 75,000 of the militia were called out,
the President, still relying upon the Union sentiment
of the South, announced his intention not to injure
peaceful citizens, but, on the contrary, to regard them
as still under the protection of the constitution. The
action of Congress was in accordance with this policy.
The war waged by this government was then a per
sonal war against rebels ; a war prosecuted in the hope
and belief that the body of the people were well dis
posed towards the Union, and would soon right them
selves by the aid of the army. Hence Congress
declared, and the President proclaimed, that it was not
their purpose to interfere with private rights or domes
tic institutions.
THE PROGRESS OF EVENTS CHANGED THE CHARACTER OF THE WAR,
AND REQUIRED THE USE OF MORE EFFECTIVE WAR POWERS.
This position of the government towards the rebel
lious States was forbearing, magnanimous, and just,
236 RECONSTRUCTION OF THE UNION.
while the citizens thereof were generally loyal. But
the revolution swept onward. The entire circle of the
southern States abandoned the Union, and carried with
them all the border States within their influence or
control.
Having set up a new government for themselves ;
having declared war against us ; having sought foreign
aid ; having passed acts of non-intercourse ; having
seized public property, and made attempts to invade
States which refused to serve their cause ; having raised
and maintained large armies and an incipient navy ;
assuming, in all respects, to act as an independent, hos
tile nation, at war with the United States — claiming
belligerent rights as an independent people alone could
claim them, and offering to enter into treaties of alli
ance with foreign countries and treaties of peace with
ours — under these circumstances they were no longer
merely insurgents and rebels, but became a belligerent
public enemy. The war was no longer against " cer
tain persons " in the rebellious States. It became a
territorial war; that is to say, a war by all persons
situated in the belligerent territory against the United
States.
CONSEQUENCES RESULTING FROM CIVIL TERRITORIAL WAR.
It is a settled rule of public law that whenever two
nations are at war, every subject of one belligerent is a
public enemy of the other.* If we were at war with
England, every Englishman would become our public
enemy, irrespective of his personal feelings towards us.
* See Twiss, Law of Nations, pp. 80-82, sect. 43; Vattel, Droit des Gens, L. II. c. 2;
Prize Cases, p. 141, 248, and cases in the Appendix.
RECONSTRUCTION OF THE UNION. 237
However friendly he might be towards America, his
ships on the sea would be liable to capture, his prop
erty, situated in this country, would be subject to confis
cation, and himself would be liable to be killed in battle.
An individual may be a personal friend, and at the
same time a public enemy, of the United States.
When the civil war in America became territorial,
every citizen residing in the belligerent districts be
came our public enemy, irrespective of his private
sentiments, whether loyal or disloyal, friendly or hos
tile, unionist or secessionist, innocent or guilty. As
public enemies these insurgents claim to be ex
changed as prisoners of war. They deny our right
to hang them as murderers or pirates. As public en
emies they assume authority to make war upon us,
and to repudiate many obligations which they would
voluntarily perform if they should acknowledge the
binding power or seek the protection of our consti
tution. If they had sought to secure State rights,
under that constitution, they would not have violated
every one of its provisions which limit the powers of
States. Asserting no such rights, they claim immunity
as States, as a people, or as individuals, from all obliga
tions to this government or to the United States.
WHEN DID THE REBELLION BECOME A TERRITORIAL WAR?
This question has been settled by the Supreme Court
of the United States, in the case of the Hiawatha,
decided on the 9th of March, 1863. In that case,
which should be read and studied by every citizen of
the Union, the members of the court differed in opinion
as to the time when the war became territorial. The
majority decided, that when the fact of general hostili-
238 RECONSTRUCTION OF THE UNION.
ties existed, the war was territorial, and the Supreme
Court was bound to take judicial cognizance thereof.
The minority argued that, as Congress alone had power
to declare war, so Congress alone has power to recog
nize the existence of war ; and they contended that it
was not until the Act of Congress of July 13, 1861,
commonly called the Non-intercourse Act, that a state
of civil, territorial war was legitimately recognized. All
the judges agree in the position " that since July 13,
1861, there has existed between, the United States and
the Confederate States, civil, territorial war."
WHAT ARE THE EIGHTS OF THE PUBLIC ENEMY SINCE THE REBEL-
LION BECAME A TERRITORIAL CIVIL WAR.
The Supreme Court have decided, in the case above
named, in effect : * « That since that time the United
* If this decision be restricted to its most technical and narrow limits, the
only point actually decided was, that the captured vessels and cargoes were
lawful prize. The parties before the court are alone bound by the judgment.
Viewed in like manner, the only point decided in the case of Dred Scott
was, that the court had no jurisdiction of the matter. Nevertheless, learned
judges have taken occasion to express opinions upon legal or political ques
tions. Their opinions are of great importance, not because they are or are
not technical decisions of points in issue, but because they record the delib
erate judgment of those to whom the same questions will be referred for
final determination. The judge who has pronounced an extra-judicial opinion,
and has placed it upon the records of the court, is not, it may be said,
bound to follow it ; but it is equally true, that the court is never bound to
follow its previous most solemn " decisions. " These decisions may be, and
often have been, modified, overruled, or disregarded by the same court which
pronounced them. If the members of a judicial tribunal, though differing
upon minor questions, agree upon, certain fundamental propositions, it is
worse than useless to deny that these propositions, even though not "techni
cally decided, " have the authoritative sanction of the court. The unani
mous agreement of all the members of a judicial court to certain principles,
affords to the community as satisfactory evidence of their views of the law
as could be derived from a decision in which these principles were technically
the points in controversy. It is for these reasons that it has been stated in
RECONSTRUCTION OF THE UNION. 239
States have full belligerent rights against all persons
residing in the districts declared by the President's
Proclamation to be in rebellion."
That the laivs of war, " whether that war be civil or inter
qualified language " that the Supreme Court have decided in effect " the
propositions quoted from their opinions.
To show wherein all the judges agree, the following extracts are collected
from the Decision and from the Dissenting Opinion.
EXTRACTS FROM THE OPINION OF THE COURT.
" As a civil war is never publicly proclaimed eo nomine, No declaration
, . . . ,, , . of war is neces-
against insurgents, its actual existence is a tact m our sary jn case Of
domestic history, which the court is bound to notice and to cml war-
know. The true test of its existence, as found in the writings Test of its ex-
of the sages of the common law, may be thus summarily
stated : ' When the course of justice is interrupted by revolt,
rebellion, or insurrection, so that the courts of justice can
not be kept open, CIVIL WAR EXISTS, and hostilities may
be prosecuted on the same footing as if those opposing the Rebels to be
r. . . . 7. ,7. 7 -i.c treated as for-
government were foreign enemies invading the land, bee ejgn iavaders.
2 Black R. 667, 668.
" They (foreign nations) cannot ask a court to affect a
technical ignorance of the existence of a war, which all the
world acknowledges to be the greatest civil war known in
the history of the human race, and thus cripple the arm of
the government, and paralyze its powers by subtle definitions
and ingenious sophisms. The law of nations is also called
the law of nature. It is founded on the common sense as
well as the common consent of the world. It contains no
such anomalous doctrine, as that which this court is now,
for the first time, desired to pronounce, to wit, ' that insur
gents, who have risen in rebellion against their sovereign,
expelled her courts, established a revolutionary government,
organized armies, and commenced hostilities, are not enemies,
because they are TRAITORS ; and a war levied on the govern
ment by traitors, in order to dismember and destroy it, is not
a war because it is an " insurrection. "
Whether the President, in fulfilling his duties as command- President must
, . /. . . , . , , decide whether
er-m-cmef in suppressing an insurrection, has met with such the enemy shall
armed hostile resistance, and a civil war of such alarming pro- gerents?Gd belU"
portions, as will compel him to accord to them the character
240 KECONSTKUCTION OF THE UNION.
gentes, converts every citizen of the hostile State into a
public enemy ) and treats him accordingly, whatever may
have been his previous conduct. "
That all the rights derived from the laws of war
Court must fol- of belligerents, is a question to be decided by him, and this
low the decision , , 7 , ,1 j • • i ' PI 7.,
of the President, court must be governed by the decision and acts of the poht-
ical department of the government to which this power
was intrusted. He must determine what degree of force the
crisis demands." The proclamation of blockade is of itself
official and conclusive evidence to the court that a state of
war existed which demanded and authorized a recourse to
such a measure, under the circumstances peculiar to the
case.
Belligerent right " The right of one belligerent, not only to coerce the other
to seizure and T 7. . /. ' 7 , 7 , .77. , ,
destruction of oy direct jorce, out also to cripple his resources by the
ty 6<y allPSnds~ seizure or destruction of his property, is a necessary result
on land or sea. ' Of a state of war. Money and wealth, the products of
agriculture and commerce, are said to be the sinews of
war, and as necessary in its conduct as numbers and phys
ical force. Hence it is, that the laws of war recognize the
right of a belligerent to cut these sinews of the power of the
enemy by capturing his property on the high seas. " Page
671.
CONFISCATION.
All persons re- " All persons residing within this territory (seceded States)
gerenb 'districts whose property may be used to increase the revenues of the
mLfimd0 their hostile power, are, in this contest, liable to be treated as
property liable enemies, though not foreigners. Theii have cast off their
to be captured. 77
allegiance, and made war on their government, and are none
the less enemies because they are traitors. " Opinion,
page 674.
EXTRACTS FROM THE DISSENTING OPINION.
Public war enti- "A contest by force, between independent sovereign States,
tothe rights of *s ca^ed & public war ; and when duly commenced, by procla-
*1118* mation or otherwise, it entitles both of the belligerent parties
to all the rights of war against each other, and as respects
neutral nations. " Page 686, 687.
Legal conse- " The legal consequences resulting from a state of war
queuces of war, , .
shown by inter- between two countries, at this day, are well understood,
national law. an(j w^ ke foun^ described in every approved work on the
subject of international law."
war.
RECONSTRUCTION OF THE UNION. 241
may now. since 1861, be lawfully and constitutionally
exercised against all the citizens of the districts in
rebellion.*
" The people of the two countries immediately become the People of the
enemies of each other, &c. . ... All the property of the bSome^i^
people of the two countries, on land or sea, is subject to enemies.
capture and confiscation by the adverse party as enemies' pro- All enemies'
perty, with certain qualifications as it respects property on andSis subject
land. (Brown vs. U. S., 8 Cranch, 110.) All treaties conffiion. and
between the belligerent parties are annulled." Page 677.
•' This great and pervading change in the existing condi
tion of a country, and in the relation of all her citizens or
subjects, external and internal, is the immediate effect and
result of a state of war." Page 688.
" In the case of a rebellion, or resistance of a portion of The government
the people of a country, against the established government, may recoffnize
there is no doubt, if, in its progress and enlargement, the
government thus sought to be overthrown, sees Jit, it may, by
the competent power, recognize or declare the existence of a
state of civil war, which will draw after it all the conse- Civil war draws
quences and rights of war, between the contending parties, ri^Ms^of^varJ
as in the case of a public war, Mr. Wheaton observes, fforSVar "*
speaking of civil war : " But the general usage of nations
regards such a war as entitling both the contending parties to
all the rights of war, as against each other, and even as
respects neutral nations." Page 688.
" Before this insurrection against the established govern
ment can be dealt with on the footing of a civil war, within
the meaning of the law of nations and the Constitution of
the United States, and which will draw after it belligerent
rights, it must be recognized or declared by the war-making
power of the government. No power short of this can Civil war must
change the legal status of the government, or the relations
of its citizens from that of peace to a state of war, or bring j* ^f'bSlJ^
into existence all those duties and obligations of neutral ent rights. l°
third parties, growing out of a state of war. The war power
of the government must be exercised before this changed
condition of the government and people, and of neutral third
parties, can be admitted. There is no difference in this re
spect between a civil or a public war." Page 689.
* See Lawrence's note to Wheaton, p. 522, and authorities there cited.
31
242 RECONSTRUCTION OF THE UNION.
THE RIGHTS OF REBELS AS CITIZENS OF STATES, AND AS SUBJECTS
OF THE UNITED STATES, ARE, ACCORDING TO THE CONSTITUTION,
TO BE SETTLED BY THE LAWS OF WAR.
Such being the law of the land, as declared by the
Supreme Court, in order to ascertain what are the legal
or constitutional rights of public enemies, we have only
Civil war attach- " It must be a war in a legal sense (in the sense of the
consequences1 of law of nations, and of the Constitution of the United States)
belligerent j-0 attach to it all the consequences that belong to belligerent
once recognized rights. Instead, therefore, of inquiring after armies and
navies, and victories lost and won, or organized rebellion
against the general government, the inquiry should be into
the law of nations, and into the municipal and fundamental
laws of the government. For we find there, that to consti
tute a civil war. in the sense in which we are speaking,
before it can exist in contemplation of law, it must be recog
nized or declared by the sovereign power of the state ; and
which sovereign power, by our Constitution, is lodged in the
Congress of the United States. Civil war, therefore, under
our system of government, can exist only by an act of
Congress, which requires the assent of two of the great de
partments of the government, the executive and the legis
lative." Page 690.
Civil war con- "The laws of war, whether the war be civil or inter gentes,
Iln^fthelfostne as we have seen, convert every citizen of the hostile state
state into a pub- jnlo a public enemy, and treats him accordingly, whatever
lie enemy. .
may have been his previous conduct.
Innocent per- " Congress alone can determine whether war exists or
lawfully bTpSn- should be declared. And until they have so acted, no citizen
lands'confi seated of tbe state can be Punisned in his Person or property unless
as enemies, until he has committed some offence against a law of Congress,
re°o|Szed ^a passed before the act was committed, which made it a crime
state of civil &nd defined the punishment. Until then, the penalty of
confiscation for the acts of others with which he had no con
cern, cannot lawfully be inflicted."
"By the Act of 16 Geo. III., 1776, all trade between the
colonies and Great Britain was interdicted."
Congress did " From this time the war (of the revolution) became a
war^by CAct"of territorial, civil war between the contending parties, with all
July 13, 1861 fa rights Ofwar known to the law of nations."
"The Act of Congress of July 13, 1861, we think recog-
RECONSTRUCTION OF THE UNION. 243
to refer to the settled principles of the belligerent law
of nations or the laws of war.
Some of the laws of war are stated in both the Opin
ions in the case above mentioned. A state of foreign
war instantly annuls the most solemn treaties between
nations.* It terminates all obligations in the nature of
nized a state of civil war between the government and the
Confederate States, and made it territorial." Page 695.
"We agree, therefore, that the Act of the 13th of July,
1861, recognized a state of civil war between the govern
ment and the people of the States described in that Procla
mation (of August 16, 1861). Page 696.
" But this (the right of the President to recognize a state
of civil war as existing between a foreign government and
its colonies) is a very different question from the one before
us, which is, whether the President can recognize or declare
a civil war, under the Constitution, with all its belligerent
rights, between his own government and a portion of its cit
izens in a state of insurrection. That power, as we have Courts must
z, 7 j. n TIT 7 . follow the de-
seen, belongs to Congress. We agree when such a war is cision of the po-
recognized, or declared to exist by the war-making power,
but not otherwise, it is the duty of courts to follow the decis
ion of the political power of the government." Page 697.
" No civil war existed between this government and the Civil war did
States in insurrection till recognized by the Act of Congress July
of July 13, 1861. The President does not possess the power,
under the Constitution, to declare war, or recognize its exist- rights.
ence within the meaning of the law of nations, which carries
with it belligerent rights, and thus change the country and
all its citizens from a state of peace to a state of war. This
power belongs exclusively to the Congress of the United
States, and consequently the President had no power to
set on foot a blockade under the law of nations, and the
capture of the vessel and cargo in all the cases before, in
which the capture occurred before the 13th of July, 1861,
for breach of blockade, or as enemy's property, is illegal
and void." Page 699.
Mr. Chief Justice TANEY and Messrs. Justices CATKON
and CLIFFORD concurred with Mr. Justice NELSON in the
Dissenting Opinion.
* See 2 Twiss, 68, sect. 36.
244 RECONSTRUCTION OF THE UNION.
compacts or contracts, at the option of the party obli
gated thereby. It destroys all claims of one belligerent
upon the other., except those which may be sanctioned
by a treaty of peace. A civil territorial war has the
same effect, excepting only that the sovereign may
treat rebels as subjects or merely as belligerents. Hence
civil war, in which the insurgents have become public
or territorial enemies, instantly annuls all their rights
or claims against the United States, under the con
stitution or laws, whether that constitution be called
a compact, a treaty, or a covenant, and whether the
parties to it were States, in their sovereign capacity, or
the people of the United States, as individuals. Any
other result would be as incomprehensible as it would
be mischievous. A public enemy cannot lawfully claim
the right of entering Congress and voting down the
measures taken to subdue him.* Why not ? Because,
by becoming a public enemy, he has annulled and lost
his rights in the government, and can never regain
them except by our consent/)-
STATE 'RIGHTS ARE UNDER OUR CONTROL.
If the inhabitants of a large part of the Union have,
by becoming public enemies, surrendered and annulled
their former rights, the question arises, Can they re
cover them ? Such rights cannot be regained by rea
son of their having ceased to fight. The character of
public enemies having once been stamped upon them
by the laws of war, remains fixed until it shall have
been, by our consent, removed. To stop fighting does
* By Joint Resolution No. 12 (February 18, 1805), Congress declared that the rebel
States were not entitled to vote for electors of President and Vice-President of the United
States. By the reconstruction acts Congress has placed them under military government,
and has carried into full effect the rights above claimed.
t See Note on " Belligerents," p. 425.
RECONSTRUCTION OF THE UNION. 245
not make them cease to be public enemies, because
they may have laid down their arms for want of powder,
not for want of will. Peace does not restore the noble
dead who have fallen a sacrifice to treason, nor does
it revive the rights once extinguished by civil, territo
rial war. The land of the Union belongs to the people
of the United States, subject to the rights of individual
ownership. Each person inhabiting those sections of
the country declared by the President's Proclamation
to be in rebellion, has the right to what belongs to a
public enemy, and no more. He can have no right to
take any part in our government. That right does not
belong to an enemy of the country while he is waging
war, or after he has been subdued. A public enemy
has a right to participate in, or to assume the govern
ment of the United States, only when he has conquered
the United States. We find in this well-settled doctrine
of belligerent law the solution of all questions in relation
to State rights. After the inhabitants of a district have
become public enemies, they have no rights, either State
or National, as against the United Statejs. They are bel
ligerents only, and have retained only belligerent rights.
STATE RIGHTS ARE NOT APPURTENANT TO LAND.
Suppose that all the inhabitants living in South Caro
lina should be swept off. so that solitude should reign
throughout its borders, unbroken by any living thing;
would the State rights of South Carolina still exist as
attached to the land itself? Can there be a sovereignty
without a people, or a State without inhabitants ? State
rights, so far as they concern the Union, are the rights
of persons, as members of a State, in relation to the
general government ; and when a person has become
a public enemy, then he loses all rights except the
246 RECONSTRUCTION OF THE UNION.
rights of war. And when all the inhabitants have (by
engaging in civil, territorial war) become public ene
mies, it is the same, in legal effect, as though the inhab
itants had been annihilated. So far as this government
is concerned, civil, territorial war obliterates from dis
tricts in rebellion all lines of States or counties; the
only lines recognized by war are the lines which sep
arate us from a public enemy.
FORFEITURE NOT CLAIMED— THE RIGHT OF SECESSION NOT AD
MITTED, SINCE CITIZENS MAY BE DEEMED BELLIGERENTS AND
SUBJECTS.
Do not place reliance upon the common law doc
trine of forfeitures of franchises as applicable to this
revolution, for forfeiture can be claimed only upon
an admission of the validity of the act by which it
has been effected. The belligerent law of civil, terri
torial war, whereby a public enemy loses his rights as a
citizen, does not admit the right of secession. No mere
vote or law of secession can make an individual a public
enemy. A person may commit heinous offences against
municipal law, he may commence hostilities against the
government, without being a public enemy. To be a
personal enemy, is not to be a public enemy to the
country, in the eye of belligerent or international law.
Whosoever engages in an insurrection is a personal
enemy, but it is not until that insurrection has swelled
into territorial war that he becomes a public enemy.
It must also be remembered that the right of secession
is not conceded by enforcement of belligerent law,
since in civil war a nation has the right to treat its
citizens either as subjects or belligerents, or as both.
Hence, while belligerent law destroys all claims of
RECONSTRUCTION OF THE UNION. 247
subjects engaged in civil war, as against the parent
government, it does not release them from their du
ties to that government. By war, they lose their
rights, but do not avoid their obligations. The in
habitants of the conquered districts have abandoned
their civil and political privileges, but cannot escape
their liabilities. Whatever may be left to them besides
the rights of war, will be that which we may choose
to concede. It is for us to dictate to them, not for them
to dictate to us, what immunities they shall enjoy.
THE PLEDGE OF THE COUNTRY TO ITS SOLDIERS, ITS CITIZENS, AND
ITS SUBJECTS, MUST BE KEPT INVIOLATE.
Among the war measures sanctioned by the Presi
dent, to which he has, more than once, pledged his
sacred honor, and which Congress has enforced by
solemn laws, is the liberation of slaves. The govern
ment has invited them to share the dangers, the honor,
and the advantages of sustaining the Union, and has
solemnly promised to secure their freedom. Whatever
disasters may befall our arms, whatever humiliation may
be in store for us, it is earnestly hoped that we may be
saved the unfathomable infamy of breaking the nation's
faith with Europe, and with our colored citizens and
slaves. If the rebellious States shall be allowed to re
turn to the Union with constitutions guaranteeing the
perpetuity of slavery, and if their laws shall be again
revived and put in force against free blacks and slaves,
we shall at once invoke upon our country, in all
its force and wickedness, that very curse which has
brought on the war and its terrible train of suf
ferings. Slaveholders are now fighting for the per-
248 KECONSTRUCTION OF THE UNION.
petuity of slavery. Shall we hand over to them, at
the end of the war, just what they have been fighting
for? Shall all our blood and treasure be spilled use
lessly upon the ground ? Shall the country not protect
itself against the evil which has caused all our woes?
Will you breathe new life into the. strangled serpent,
which, without your aid, will perish ?
If you concede State rights to your enemies, what
security can you have that traitors will not pass State
laws which will render the position of the blacks intol
erable, or reduce them all to slavery?
Would it be honorable on the part of the United
States to free these men, and then hand them over to
the tender mercy of slave laws ?
Will it be possible that local slave laws should exist
and be enforced by slave States without overriding the
rights guaranteed by the laws of the country to all
men, irrespective of color ?
Will you run the risk of these angry collisions of
State and National laws while you have the remedy
and antidote in your own hands ?
PLAN OF HE CONSTRUCTION RECOMMENDED.
One of two things should be done in order to keep
faith with the country and save us from obvious peril.
Allow the inhabitants of conquered territory to form
themselves into States, only by adopting constitutions
such as will forever remove all cause of collision with
the United States, by excluding slavery therefrom, or
continue military government over the conquered dis
trict, until there shall appear therein a sufficient number
of loyal inhabitants to form a republican government,
RECONSTRUCTION OF THE UNION. 249
which, by guaranteeing freedom to all, shall be in ac
cordance with the true spirit of the constitution of the
United States. These safeguards of freedom are requi
site to render permanent the domestic tranquillity of
the country which the constitution itself was formed to
secure, and which it is the legitimate object of this
war to maintain.*
* Note to Forty-third Edition. — Sec page 57, note. See also the Freedman's Bureau
acts, March 3, 1865; the reconstruction acts, March 2, 1867 ; the act for the admission of
Arkansas to representation in Congress, June 22, 18C8 (chap. 09) ; acts for admitting North
and South Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Con
gress, June 25, 1868 (chap. 70). See also Note on "Reconstruction," p. 427- the Pres
ident's Messages, pp. 250-256, 400-405; Note on '« Slavery," p. 393; « Slaves in the Army »
p. 405; Note on "Belligerents," p. 425.
32
250 RECONSTRUCTION OF THE UNION.
EXTRACT FROM THE PRESIDENT'S MESSAGE.
EMANCIPATION AND ITS RESULTS.
WHEN Congress assembled a year ago, the war had already lasted nearly
twenty months, and there had been many conflicts on both land and sea,
with varying results.
The rebellion had been pressed back into reduced limits, yet the tone of
public feeling at home and abroad was not satisfactory. With other signs,
the popular election, then just past, indicated uneasiness among ourselves,
which, amid much that was cold and menacing, the kindest words coming
from Europe were uttered in accents of pity that we were too blind to sur
render a hopeless cause.
Our commerce was suffering greatly by a few armed vessels, built upon
and furnished from foreign shores, and were threatened with such additions
from the same quarter as would sweep our trade from the sea and raise our
blockade. We had failed to elicit from European governments any thing
hopeful on this subject.
The preliminary Emancipation Proclamation, issued in September, was
running its assigned period to the beginning of the new year. A month
later the final proclamation came, including the announcement that colored
men, of suitable condition, would be received in the war service.
The policy of emancipation and of employing black soldiers gave to the
future a new aspect, about which hope, and fear, and doubt contended in
uncertain conflict.
According to our political system, as a matter of civil administration, the
general government had no lawful power to effect emancipation in any
State, and for a long time it had been hoped that the rebellion could be
suppressed without resorting to it as a military measure.
It was all the while deemed possible that the necessity for it might come,
and that if it should, the crisis of the contest would then be presented. It
came ; and, as was anticipated, it \vas followed by dark and doubtful days.
Eleven months having now passed, we are permitted to take another
review. The rebel borders are pressed still further back, and by the com
plete opening of the Mississippi, the country dominated by the rebellion is
divided into distinct parts, with no practical communication between them.
Tennessee and Arkansas have been cleared of insurgents, and influential
citizens in each, owners of slaves, and advocates of slavery at the begin
ning of the rebellion, now declare openly for emancipation in their re-
RECONSTRUCTION OF THE UNION. 251
spective States ; and of those States not included in the emancipation proc
lamation, Maryland and Missouri, neither of which, three years ago, would
tolerate restraint upon the extension of slavery into territory, only dispute
now as to the best mode of removing it within their own limits.
Of those who were slaves at the beginning of the rebellion, full one
hundred thousand are now in the United States military service, about one
half of which number actually bear arms in the ranks, thus giving the
double advantage of taking so much labor from the insurgent cause, and
supplying the places which otherwise must be filled with so many white
men. So far as tested, it is difficult to say that they are not as good soldiers
as any.
No servile insurrection or tendency to violence or cruelty has marked the
measures of emancipation and arming the blacks.
These measures have been much discussed in foreign countries, and con
temporary with such discussion the tone of public sentiment there is much
improved. At home the same measures have been fully discussed, sup
ported, criticised,' and denounced, and the annual elections following are
highly encouraging to those whose official duty it is to bear the country
through this great trial. Thus we have the new reckoning. The crisis
which threatened to divide the friends of the Union is past.
RECONSTRUCTION.
Looking now to the present and future, and with reference to a resump
tion of the national authority with the States wherein that authority has
been suspended, I have thought fit to issue a Proclamation, a copy of which
is herewith transmitted. On examination of this proclamation it will appear,
as is believed, that nothing is attempted beyond what is amply justified by
the Constitution ; true, the form of an oath is given, but no man is coerced
to take it. The man is only promised a pardon in case he voluntarily takes
the oath.
The Constitution authorizes the executive to grant or withhold the par
don at his own absolute discretion, and this includes the power to grant on
terms, as is fully established by judicial and other authorities ; it is also
proposed that if in any of the States named a State government shall be, in
the mode prescribed, set up, such governments shall be recognized and
guaranteed by the United States, and that under it the State shall, on the
constitutional conditions, be protected against invasion and domestic
violence.
The constitutional obligation of the United States to guarantee to every
State in the Union a republican form of government, and to protect the
State in the cases stated, is explicit and full.
But why tender the benefits of this provision only to a State government
set up. in this particular way ? This section of the Constitution contem
plates a case wherein the element within a State favorable to republican
252 RECONSTRUCTION OF THE UNION.
government in the Union may be too feeble for an opposite and hostile
element external to or even within the State, and such are precisely the
cases with which we are now dealing.
An attempt to guarantee and protect a revived State government, con
structed in whole or in preponderating part from the very element against
whose hostility and violence it is to be protected, is simply absurd.
There must be a test by which to separate the opposing elements so as to
build only from the sound, and that test is a sufficiently liberal one which
accepts as sound whoever will make a sworn recantation of his former
unsoundness ; but if it be proper to require as a test of admission to the
political body an oath of allegiance to the Constitution of the United States
and to the Union under it, why not also to the laws and proclamations in
regard to slavery ?
These laws and proclamations were enacted and put forth for the purpose
of aiding in the suppression of the rebellion. To give them their fullest
effect, there had to be a pledge for their maintenance. In my judgment,
they have aided, and will further aid, the cause for which they were intended.
To now abandon them, would be not only to relinquish a lever of power,
but would also be a cruel and astounding breach of faith. I may add at
this point, that while I remain in my present position, 1 shall not attempt
to retract or modify the emancipation proclamation, nor shall I return to
slavery any person who is free by the terms of that proclamation, or by any
of the acts of Congress.
For these and other reasons it is thought best that support of these
measures shall be included in the oath, and it is believed that the Executive
may lawfully claim it in return for pardon and restoration of forfeited rights,
which he has clear constitutional power to withhold altogether, or grant
upon the terms he shall deem wisest for the public interest.
It should be observed, also, that this part of the oath is subject to the
modifying and abrogatory power of legislation and Supreme Judicial
decisions*
The proposed acquiescence of the National Executive in any reasonable
temporary State arrangement for the freed people, is made with the view of
possibly modifying the confusion and destitution which must, at best, attend
all classes by a total revolution of labor throughout whole States.
It is hoped that the already deeply afflicted people in those States may
be somewhat more ready to give up the cause of their affliction, if to this
extent this vital matter be left to themselves, while no power of the national
executive to prevent an abuse is abridged by the proposition.
The suggestion in the proclamation as to maintaining the political frame
work of the States on what is called reconstruction, is made in the hope that
it may do good without danger of harm ; it will save labor and avoid great
* It must not be forgotten that on purely political questions the Supreme Court is bound
to follow the decisions of the executive or legislative departments of government.
RECONSTRUCTION OF THE UNION. 253
confusion ; but why any proclamation now upon this subject ? This ques
tion is beset with the conflicting views that the step might be delayed too
long or be taken too soon. In some States the elements for resumption
seem ready for action, but remain inactive, apparently for want of a rally
ing point — a plan of action. Why shall A adopt the plan of B, rather
than B that of A ; and if A and B should agree, how can they know but
that the general government here will reject their plan ? By the Procla
mation a plan is presented, which maybe accepted by them as a rallying
point, and which they are assured in advance will not be rejected here.
This may bring them to act sooner than they otherwise would.
The objeclions to a premature presentation of a plan by the National
Executive consists in the danger of committal on points which could be
more safely left to further developments. Care has been taken to so shap^
the denouement as to avoid embarrassment from this source, saying that on
certain terms certain classes will be pardoned with rights restored.
It is not said that other classes or other terms will never be included,
saying that reconstruction will be accepted if presented in a specified way.
It is not said it will never be accepted in any other way. The movements
by State action for emancipation in several of the States not included in
the Emancipation Proclamation, are matters of profound giatulation ; and
while I do not repeat in detail what I have heretofore so earnestly urged
upon this subject, my general views remain unchanged, and I trust that
Congress will omit no fair opportunity of aiding these important steps to
the great consummation.
In the midst of other cares, however important, we must not lose sight
of the fact that the war power is still our main reliance. To that power
alone can we look yet for a time to give confidence to the people in the con
tested regions that the insurgent power will not again overrun them.
Until that confidence shall be established, little can be done any where for
what is called Reconstruction.
Hence our chiefest care must still be directed to the army and navy, who
have thus far borne their harder part so nobly and well.
And it may be esteemed fortunate that, in giving the greatest efficiency
to these indispensable arms, we do also recognize the gallant men, from
commander to sentinel, who compose them, and to whom, more than to
others, the world must stand indebted for the home of freedom, disen
thralled, regenerated, enlarged, and perpetuated.
ABRAHAM LINCOLN.
December 8, 1863.
254 RECONSTRUCTION OF THE UNION.
PROCLAMATION OP AMNESTY BY THE PRESIDENT.
THE following Proclamation is appended to the Message : —
PROCLAMATION.
Whereas, in and by the Constitution of the United States, it is provided
that the President shall have power to grant reprieves and pardons for
offences against the United States, except in cases of impeachment ; and
whereas, a rebellion now exists whereby the loyal State governments of
several States have for a long time been subverted, and many persons have
committed, and are now guilty of treason, against the United States ; and
whereas, with reference to said rebellion and treason, laws have been enacted
by Congress declaring forfeitures and confiscation of property and liber
ation of slaves, all upon conditions and terms therein stated, and also
declaring that the President was thereby authorized, at any time thereafter,
by proclamation, to extend to persons who may have participated in the
existing rebellion in any State or part thereof, pardon and amnesty, with such
exceptions, and at such times, and on such conditions, as he may deem expe
dient for the public welfare ; and,
Whereas, the congressional declaration for limited and conditional par
don accords with well-established judicial exposition of the pardoning
power ; and whereas, with reference to said rebellion, the President of the
United States has issued several proclamations with provisions in regard to
the liberation of slaves ; and whereas, it is now desired by some persons
heretofore engaged in said rebellion to resume their allegiance to the
United States, and to re-inaugurate loyal State governments within and for
their respective States,
Therefore, I, Abraham Lincoln, President of the United States, do pro
claim, declare, and make known to all persons who have directly or by
implication participated in the existing rebellion, except as hereinafter
excepted, that a full pardon is granted to them and each of them, with res
toration of all rights of property, except as to slaves, and in property cases
where rights of third parties have intervened, and upon the condition that
every such person shall take and subscribe an oath, and thenceforward keep
and maintain said oath inviolate, and which oath shall be registered for per
manent preservation, and shall be of the tenor and effect following, to wit :
I, , do solemnly swear, in presence of Almighty God, that I will
henceforth faithfully support, protect, and defend the Constitution of the
RECONSTRUCTION OF THE UNION. 255
United States and the Union of the States thereunder, and that I will, in
like manner, abide by and faithfully support all acts of Congress passed
during the existing rebellion witli reference to slaves, so long and so far as
not repealed, or modified, or held void by Congress, or by decree of the
Supreme Court, and that I will in like manner abide by and faithfully support
all proclamations -of the President, made during the existing rebellion,
having reference to slaves, so long and so far as not modified or declared
void by the Supreme Court. So help me God.
The persons excepted from the benefits of the foregoing provisions are
all who are or shall have been civil or diplomatic officers, or agents of the
so-called Confederate Government ; all who have left judicial stations under
the United States to aid rebellion ; all who are or shall have been military
or naval officers of said so-called Confederate Government above the rank
of colonel in the army and of lieutenant in the navy, and all who left seats
in the United States Congress to aid the rebellion.
All who resigned commissions in the army or navy of the United States
and afterwards aided the rebellion, and all who have engaged in any way
maltreating colored persons, or white persons in charge of such, otherwise
than lawfully as prisoners of war, and which persons may have been found
in the United States service as soldiers, seamen, or in any other capacity.
And I do further proclaim, declare, and make known, that, whenever, in
any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee,
Alabama, Georgia, Florida, South Carolina, and North Carolina, a number
of persons, not less than one tenth in number of the votes cast in such
States at the Presidential election of the year of our Lord one thousand
eight hundred and sixty, having taken the oath aforesaid, and not having
since violated it, and being qualified a voter by the election law of the State
existing immediately before the so-called act of secession, and excluding all
others, shall reestablish a State government which shall be republican,
and in no loise contravening said oath, such shall be recognized as the true
government of the State, and the State shall receive these under the benefit
of the constitutional provision, ivhich declares 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, on application of the
legislature, or the executive, where the legislature cannot be convened, and
against domestic violence ; and I do further proclaim, declare, and make
known, that any provisions which may be adopted by such State govern
ment in relation to the freed people of such States which shall recognize
and declare their permanent freedom, provide for their education, and which
may yet be consistent, as temporary arrangement, with their present con
dition as a laboring, landless, and homeless class, will not be objected to by
the National Executive.
And it is suggested, as not impropert that in constructing a loyal State
government in a State, the name of the State, the boundary, the sub
divisions, the constitution, and the general code of laws, as before the
250 RECONSTRUCTION OF THE UNION.
rebellion, be maintained, subject only to the mssdificalion* made necessary
by the conslitiori* ktreinJstfore ttatfJ,, and such others, if any, not contra
vening said condition*, and which may be deemed expedient by those
framing the new State government.
To avoid misunderstanding, it may be proper to say that this proclama
tion, so far as it relates to State government*, has no reference to States
wherein loyal State governments have all the while been maintained.
As for the same reason it may be proper further to say, that vsltsMw
mf/ff^jc/rn : * yr <-,:<•.'. from any Ktale *foM le admitted to tftt*, <;on-
sttiutionaUy rvst% ezdwivdy with tfa repetitive H'suze*, arid rwi to any
exttrd wiik tfa Executive; and still further, that this proclamation is intended
to present the people- of the States wherein the national authority has been
•Ufpended and loyal State governments have been subverted, a m/x£e in
an4 6y ^tc/t </<« nation's I fjuthority awl loyal Ktate government* m/j.y he
established within nwh Hfattz, or in any of them ; and whDe the mode
presented is the best the Executive can suggest, with bin present impres
sions, it muht not be understood that no other possible mode would be
acceptable.
Given under my hand at the City of Washington, the eighth day of
December, A. I), one thousand eight hundred and sixty three, and
of the Independence of the United States of America the eighty-eighth.
ABRAHAM LINCOLN.
MILITARY GOVERNMENT
OF
HOSTILE TEEEITOET
IN TIME OF WAR.
PREFACE TO MILITARY GOVERNMENT.
THE following pages on " Military Government of Hostile Territory in
Time of War," were written early in 1864, in answer to a letter of the
Hon. J. M. Ashley, M. C., of Ohio, to the Secretary of War (dated
December 24, 1863), which enclosed the draft of a bill for a military
provisional government over insurrectionary States, proposed by Mr.
Ashley for consideration by the " Special Committee of the House on
the Rebellious States." In that letter he requested the Secretary "to
make any suggestions he might have to make," or, "if he had not time to
make any, to submit the bill to the Solicitor of the War Department for
his opinion." This communication, with the proposed bill, were accord
ingly referred, as requested, by the Secretary of War.
The subjects discussed are of great and growing importance. Clear
and just views of the rights, powers and obligations of the Government
are necessary to a wise and consistent administration of affairs in the insur
rectionary districts, during their transition from open hostilities to their
former relations to the Union. A careful regard, in the beginning,
to the proper limitations of authority in the respective departments of
this government, will be necessary in order to avoid embarrassment and
confusion in the end; and a just appreciation of the war powers of the
President will tend to relieve patriotic citizens from apprehension, even
if Congress should, for the present, omit further legislation on these
subjects.
The following chapters are only a development of the principles stated
in the "WAR POWERS."
W. W.
WASHINGTON, D. C., March 24, 1864.
MILITARY GOVERNMENT.*
CHAPTER I.
WAR — ITS MEANS AND RESULTS.
A JUST civil war may, by the law of nations, be right
fully continued until the purposes for which it was
begun shall have been accomplished. The overthrow
and destruction of insurgent armies, and the occupa
tion of hostile territory by military force, are but pre
liminary measures, which should lead to the complete
reestablishment of lawful government on foundations
strong enough to insure its continued supremacy. To
attain that result, order must be preserved, and domes
tic tranquillity must be maintained, after active hos
tilities shall have ceased; and means must be devised for
restraining lawless aggressions in hostile districts, and
for securing non-combatant citizens in the enjoyment
of civil rights ; otherwise, the country would be plunged
into anarchy ; successful campaigns would result only
in waste of blood ; conquest, however costly, could not
be made permanent or secure, and legitimate govern
ment could not be successfully restored.
SOME FORM OF GOVERNMENT IS NECESSARY TO SECUR.E A CONQUEST.
Though military power must be used to secure
the possession of that which has been acquired by
arms, yet it is difficult, by aid of any moderate num-
* Note to Forty-third Edition. — See Note on " Military Government and Reconstruc
tion," p. 427. Since the issue of the tenth edition Congress has passed the Freedman's
Bureau act (18G5), the act for the military government of the rebel States (18G7), and the
acts of April 10, 1SG9 (chaps. 17 and 18). The Supreme Court has decided the case of
Georgia v. Stanton, G Wallace, 03 (1868-69). See Appendix, p. 588.
262 MILITARY GOVERNMENT.
ber of troops, to guard and oversee an extended terri
tory ; and it is practically impossible for any army to
hold and occupy all sections of it at the same moment.
Therefore, if its inhabitants are permitted to remain in
their domiciles unmolested, some mode must be adopted
of controlling their movements, and of preventing the
commission of acts of hostility against their conquerors
or of violence against each other. Stragglers from our
army must be protected from murder, commissaries'
supplies must be guarded from capture by guerrillas,
and non-combatants must be secured in their social
rights, and punished for their crimes. The total disor
ganization produced by civil war requires, more even
than that produced by foreign war, the restraints of
martial law. In countries torn by intestine commo
tions, neighbors become enemies ; murders, robberies,
destruction of property, and all forms of lawless vio
lence are common, and, in the absence of military rule,
would go unpunished. Hence, to secure the firm and
peaceful possession of a conquered province, some form
of government must be established, which shall have
power to control its inhabitants, and to prevent them
from committing crimes.
Since war destroys or suspends municipal laws in the
country where hostilities are carried on, no government
is left there but such as is derived from the laws of
war. All crimes must be restrained or punished by
belligerent law, or go unwhipped of justice. Hence
every case of wrong must be dealt with by force of
arms, or must be disposed of by tribunals acting under
sanction and authority of military power.*
* See Notes to Forty-third Edition, on " Military Government," p. 427; Address of
Chief Justice Chase, June 6, 1867 (Appendix, p. 59C) ; Exparte Milligan, p. 560 ; Note on
p. 430 ; the cases of The Venice, Mrs. Alexander's Cotton, The Peterhoff, The William
Bagale.y, and other cases in the Appendix.
MILITARY GOVERNMENT. 263
WHY GOVERNMENT IS ESSENTIAL TO THE SECURITY OF A CONQUEST.
The necessity of provisional or temporary govern
ment will become apparent by observing the condition
of a people who have been overpowered by arms.
Suppose, by way of illustration, that in one of the
border slave States, in time of profound peace, by some
sudden and unforeseen catastrophe all the officers of
civil government were to perish ; that the judges, sher
iffs, juries and all courts of justice were to withdraw
from that region ; that the jails and penitentiaries were
to be set open and the escaped criminals were to reap
pear amid the scenes of their former crimes ; that the
officers of the United States had fled ; that all public
property had been seized by violence and appropriated
to private uses ; that all restraints of law or of force
were taken from wicked and unprincipled men; that
" might made right " ; that debts could not be collected •
that obligations the most solemn could not be enforced ;
that men and women could be shot, hung, or murdered
in cold blood, if they differed in opinion on any ques
tion of religion, of politics, or of settlement of accounts ;
that private malice could be gratified by the midnight
burning of a neighbor's house, and that injuries too foul
and too horrible to mention could be perpetrated with
out means of redress ; that all the laws of civilized soci
ety and the most sacred rights of humanity could be
violated every hour of the day or night, with no protec
tion for the innocent, no punishment for the guilty.
Such a state of things would inevitably result in civil
war. Clans and associations would be formed ; the whole
people would sleep on their arms ; revenge would in
flame them; havoc and slaughter would be wide
spread ; burning villages and smoking towns, devastated
264 MILITARY GOVERNMENT.
lands and general ruin would demonstrate to all ob
servers that order is essential to the social existence of a
community, and that peace can be maintained only by
some government of laws.
As the absence of government in time of peace would
be followed by such calamitous results, how could they
be avoided or escaped by a people already engaged
in civil broils, if unprotected by military force, or mil
itary administration ? In the rebellious States now oc
cupied by our armies, we find a population split into fac
tions, part slave, part free ; traitors fighting against loyal
men ; non-combatants hostile to friends of our govern
ment; officers attempting to collect the revenue and
to enforce the blockade by bloody encounters with
smugglers and freebooters ; banditti and guerillas with
their secret allies, murdering in cold blood our sick or
wounded soldiers ; robbers, plunderers, cutthroats, incen
diaries, and assassins wreaking their inhuman passions
even upon defenceless women and children. Never
was there a society, whose shattered and revolutionary
condition more imperiously required a firm and power
ful provisional government, to be established directly
after the cessation of active hostilities. To lose con
trol of conquered territory, by withdrawing our armies
and by neglecting to organize provisional government
over it, would be to throw away all that has been gained
by war, and basely to violate an obligation under the
laws of war to the people who have been coerced into
submission to our power.
MILITARY GOVERNMENT A MILD FORM OF HOSTILITIES — A CONCES
SION—ITS TENDENCY.
The maintenance of a provisional military govern
ment is an economical mode of continuing hostilities
MILITARY GOVERNMENT. 265
against a subjugated people, by dispensing with the
unnecessary use offeree.
To grant a government of any kind to a conquered
people, while engaged in active hostilities, is a conces
sion, a boon, a benefit, not an unjustifiable assumption
of rights. The law of war justifies the use of brute force
as the means of governing a public enemy. The judges
under that law are military officers and sometimes com
mon soldiers, without aid of law-books, counsellors, ju
ries, codes, statutes, or regulations other than their own
will. From their decrees there is no appeal; judge,
jury, and executioner too often stand embodied in a
single individual at the but-end of a Sharp's rifle.
In the civil war brought upon southern rebels by
their own choice, to permit them to be governed by
rules, regulations, statutes, laws, and codes of jurispru
dence ; to give them jurists able and willing to abide
by standing laws, and thus to restore (as far as is con
sistent with public safety and the secure tenure of
conquest) the blessings of civil liberty and a just ad
ministration of laws — most of which are made by those
on whom they are administered — is an act of magna
nimity worthy of a great people.
Such a government, though founded on and admin
istered by military power, surely tends to restore
the confidence of the disloyal by giving them rights
they could not otherwise enjoy, and by protecting them
from unnecessary hardships and wrongs. It cannot
fail to encourage and support the friends of the Union
in disloyal districts, by demonstrating to all, the for
bearance and justice of those who are responsible for
the conduct of the war.
34
266 MILITARY GOVERNMENT.
THERE MUST BE A MILITARY GOVERNMENT OR NO GOVERNMENT.
When the country can no longer be governed by
the magistrate, it must be handed over to the soldier.
When law becomes powerless, force must be applied.
When civil tribunals fall, military tribunals must rise.
Foreign territory, whether acquired through conquest
or treaty, does not, by force of the Constitution, become
entitled to self-government,* nor does the conquest of
public enemies within the domain of the United States
confer upon them the right of self-government ; for the
military control of the conqueror is alone supreme in
hostile regions. There being in the belligerent dis
trict in the South no power or authority of the enemy
which can be recognized as legitimate by the United
States, our military power must be the basis on which
our control over the affairs of persons living there must
finally rest. By conquest, the local government and
the courts of justice are deprived of their power, be
cause the former is hostile, and the latter derive their
authority from a public enemy. The only provisional
government which can be practically organized, while
war lasts, is that which is established by military power,
and by the right of conquest.^ No local tribunal,
in a conquered district, civil, judicial, political, or
military, has any authority, unless recognized as
lawful by the conqueror. J But as he is clothed
* 3 Story, Comm. 1318. Am. Ins. Co. v. Canter, I Peters, 511, 542, 516.
f See Notes to Forty-third Edition, on " Military Government " and " Reconstruction."
J By the act of July 17, 18C2, it is made the duty of the President to seize the estate,
etc., of all persons acting thereafter as governors of States, members of legislatures, or
of conventions, or judges of courts, of the so-called Confederate States, and of any person,
holding any office under either of the said States. Such persons cannot, therefore, be
recognized by our government otherwise than as criminals.
MILITARY GOVERNMENT. 267
only with military authority, he can establish no goy
ernment other than one of a military character. There
fore, if he finds it expedient to administer civil or mu
nicipal codes of law, he should adopt and apply them
as military law, following therein, as far as practicable,
the rules and forms of civil jurisprudence.
THE RIGHT TO ERECT MILITARY GOVERNMENTS IS AN ESSENTIAL
PART OF THE WAR-POWER, AND IS FOUNDED IN NECESSITY AND
SANCTIONED BY AUTHORITY.
It has been shown that justifiable war ought to
be prosecuted until the object for which it was com
menced has been attained. Our object Js the restora
tion of the authority of the United States over all the
territory and inhabitants thereof, a result which can be
accomplished with the least injury to ourselves and to
our enemies by substituting, as far as safety \vill permit,
a temporary government over them by military law,
instead of continuing the use of mere force.
Keason and experience alike demonstrate the neces
sity of that mode of regulating a hostile community
while passing through the intermediate state from open
and general warfare to the reestablishment of peaceful
institutions. No government other than that author
ized by the law of war is practically useful, or can be
sustained, until peace is so far restored that the enemy
will voluntarily submit to the laws of Congress.
The right to exercise control by armed force in time
of war over hostile regions is a necessary part of the
power of making and prosecuting war. If the people
of a belligerent locality can be lawfully captured and
held as prisoners of war, and can thus be subjected to
the orders of a commanding officer, it would be unrea-
268 MILITARY GOVERNMENT.
sonable to suppose that the same captives could not be
held subject to the same orders, if permitted to go at
large within the limits in which the military power of
that officer was and still is supreme.
Absolute necessity is the foundation and justification
on which the right to enforce military government
rests. That right has been used or practically acknowl
edged by most of the modern civilized nations. It is' a
right founded on reason, indispensable in practice, and
is sanctioned by the authority of writers on interna
tional law, by jurists in Europe, and by the Supreme
Court of the United States.*
* Wheaton, Law of Nations (Lawrence's edition), 99.
Halleck, International Law, 778.
Fleming v. Page, 9 How. 615 (Appendix, p. 512).
Cross v. Harrison, 16 How. 189 (Appendix, p. 516).
Leitensdorfer v. Webb, 20 How. 177 (Appendix, p. 522).
Am. Ins. Co. v. Canter, 1 Peters, S. C. K. 542.
U. S. v. Gratiot, 14 Peters, S. C. R. 526.
Also, see cases in the Appendix.
CHAPTER II.
THE CONSTITUTION AUTHORIZES THE PRESIDENT TO ESTABLISH
MILITARY GOVERNMENTS.
Whenever the President is called on to repel invasion
or to suppress rebellion by force, if the employment of
military government is a useful and proper means of
accomplishing that object, the Constitution confers on
him the power to institute such government for that
purpose.
The power of the President to establish military gov
ernments is derived from the Constitution, Art. II, Sec.
1, Cl. 1, and is a legitimate exercise of his authority as
Commander-in-Chief.
Art. IV., Sec. 4, also provides that, "The United
States shall guaranty to every State in this Union a
republican form of government ; and shall protect each
of them against invasion, and on application of the Leg
islature, or of the Executive (when the Legislature can
not be convened) against domestic violence."
A condition of public affairs like that now existing in
certain rebellious States, renders military government
thereof indispensably necessary to enable the United
States to perform this guaranty of the Constitution.
The authority, therefore, to institute such a government
for that purpose, belongs to the President, because he
is bound to see the laws enforced ; and also, under Art.
I., Sec. 8, Cl. 18, to Congress, because it is bound to
pass all laws necessary and proper to enable the Presi
dent to execute his duties.
269
270 MILITARY GOVERNMENT.
The topics now under consideration do not require
any examination of the nature or extent of the right or
duty of Congress, or of the President as an executive
officer, to carry the Art. IV., Sec. 4, into effect. The
erection and maintenance for a time, by executive au
thority, of a provisional government in any State or
Territory as a " necessary and proper means " of carry
ing the guaranties of the Constitution into effect, may
be the subject of explanation in a future essay.
The right of Congress is beyond question to establish
temporary territorial or provisional governments over
those parts of the country which, having been engaged
in civil war against the United States, have by force of
arms been coerced into submission to our government*
It is not necessary in this place to make further ex
planations of Articles I. and IV., it being sufficient for
our present purpose to refer to the powers conferred by
the second Article.
The Constitution, Article II., Sec. 2, Cl. 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."
This clause by necessary implication, confers upon]
the Commander-in-Chief of the Army and Navy, the
right in time of war to subject public enemies to mili
tary government and regulation. No limits to the
power of the President, acting as a military commander,
are prescribed in the Constitution. The laws of war,
by which alone his operations should be regulated,
establish his right to erect such government, and to
maintain it by force of arms. The war powers of the
* See post, Chap. VI.
MILITARY GOVERNMENT. 271
President are interpreted and controlled only by the
rules of belligerent law.* As authority to call into
active service the army and navy, to capture or kill
our enemies in battle, to seize and destroy their
property, and to take and hold their lands by force,
has been confided to the President without limitation,
by deliberate acts of legislation, would it not seem
inconsistent to withhold from him the right to keep
what he has acquired by arms, and to hold in his
control, while war lasts, those whom it was his duty
to overthrow ?
If it be said that the power thus claimed is not
granted to the President in express terms., it may with
equal correctness be said that the authority to carry on
war, to suppress insurrections or to repel invasions, or
to make captures on land or sea, is not conferred upon
him in express terms. The Constitution enables the~
President to use war powers in no other way than by
authorizing him under certain circumstances to call into
service and to take command of the Army and Navy.
But Congress is empowered to provide for raising and
maintaining armies, and to make rules for captures
on land and sea. Hence no one can doubt that when
an army is raised, and captures are to be made, the
President, being placed in command, has the right to
employ these forces so as to accomplish the purpose for
which they were organized, and therefore has the right
to capture public enemies in arms as unquestionably as
* See cases subsequently cited : —
Fleming v. Page, 9 How. 615 (Appendix, p. 512). \
Cross v. Harrison, 16 How. 189 (Appendix, p. 516). ^
Leitensdorfer v. Webb, 20 How. 177 (Appendix, p. 522).
Wheaton, 99.
See also " War Powers," p. 54.
ZiZ MILITARY GOVERNMENT.
if that right had been conferred on him in plain words
by the Constitution.
There can be no reason to doubt that the army is
placed under the supreme command of the Chief Magis
trate for all purposes for which offensive or defensive
war may be justly waged. If he has authority to com
mit any act of hostility for the suppression of rebellion
or the repelling of invasion, he has a right to commit
all acts of hostility which may in his judgment be re
quired to secure success in his military operations ; and
he has, therefore, the same right to erect a military gov
ernment in hostile territory, under circumstances justi
fying it, as to perform any other military act. The
erection of such government over the territory and
persons of a public enemy in time of war, is an act of
war ; it is, in fact, continuing against them a species of
hostility without the use of unnecessary force. It is a
mode of retaining a conquest, of continuing custody
and supervision over an unfriendly population, and of
subjecting malcontent non-combatants to the will of a
superior force so as to prevent them from engaging in
hostilities or inciting insurrections or breaches of the
peace, and from giving aid and comfort to the enemy.
Large numbers of persons may thus be held in subjec
tion to the moral and physical force of comparatively
few military men. Contributions may be levied, prop
erty may be confiscated, commerce may be restrained
or forbidden, and an unfriendly population may be held
in subjection by military government, for the same rea
sons which would justify the repression of their open
hostilities by force of arms. If the Constitution allows
the President to go to war and to conquer the public
enemy, the greater power must include the less ; the
MILITARY GOVERNMENT. 273
power to make a conquest must include the authority
to keep and maintain possession of it, while war
continues.
No one would doubt our right to occupy a hostile
district of country by military posts, or by soldiers
stationed in commanding positions, or to enforce upon
all its inhabitants the rigid rules of martial law.
How then can the right be questioned to hold the
same territory by a small number of soldiers, administer
ing the same law, under the same authority, whether
these military men be called by their ordinary titles, or
be styled provost marshals or military governors ?
If the humanity of the conqueror allows the rigid
rules of martial law to be relaxed, and permits the forms
of local jurisprudence to be continued under the same
authority, so far as it may be done consistently with the
security of the conquest, on what principle can his right
to do so be denied ?
DUTY OF THE CONQUEROR TO GOVERN THOSE WHOM HE HAS SUB
JUGATED.
In view of the necessity of securing the ends for
which war is waged, and the consequences following
from the absence of government over conquered terri
tory, it is undoubtedly the right and duty of the con
queror to erect and maintain, during war, a provisional
military government over districts which have been sub
jected to his power.
This right is recognized and confirmed by the ac
knowledged laws of war, and by the decisions of the
Supreme Court of the United States ; the propriety and
necessity of its enforcement have been shown by our
experience in New Mexico and California, and in the
States now in rebellion.
35
CHAPTER III.
DISTRIBUTION OF POWERS UNDER MILITARY GOVERNMENT.
Military governments control and regulate a great
variety of public, private, civil, criminal, judicial, legisla
tive and military affairs. Their powers may be concen
trated in a single officer, acting as a military governor,
or they may be distributed among several persons acting
under authority of the Commander-in-Chief, who may
appoint one as commander, another as governor, a third
as chief justice, and others as collectors of customs, in the
same department.
Among the various modes of instituting military gov
ernments, one is by a proclamation of martial law and
by authorizing or appointing courts martial, courts of
inquiry arid military commissions to carry that law into
execution over belligerent districts. These institutions
are best adapted to localities whose inhabitants are too
hostile to admit of milder forms of administration.
The character of the laws, and the organization of the
tribunals now authorized ~by the statutes to administer such
government, will next be considered.
DIFFERENT KINDS OF LAW OF WAR.
Martial Laiu consists of a system of rules and princi
ples regulating or modifying the rights, liabilities, and
duties, the social, municipal, and international relations
in time of war, of all persons, whether neutral or bel
ligerent,*
Military law is that part of the martial law of the
* See " Military Arrests," p. 106.
274
MILITARY GOVERNMENT. 275
land designed for the government of those who are
engaged ki the military service.
Of the rules and principles of martial law, many have
not as yet been reduced to the form of statutes or reg
ulations, although they are familiar to practitioners in
courts martial. The 69th Article of War refers to and
adopts them as part of the martial law. They may be
styled the " lex non scripta" the custom of war, the com
mon law of the army.
In the United States, martial law is modified by
military laws made by Congress as articles of war, by
general regulations for the government of the army,
by all statutes on military subjects which the Consti
tution empowers Congress to pass, and by all lawful or
ders of the President, as Commander-in-Chief, and of the
Secretary of War, or officers acting under them.
Martial law thus modified, is, when in force under
the Constitution, administered within or without the
United States by various military tribunals, including
courts martial, military commissions, and courts of in
quiry.*
MILITARY TRIBUNALS — HOW AUTHORIZED THEIR CHARACTERISTICS.
The war courts now established by statutes and rec
ognized by judicial decisions are called courts martial,
courts of inquiry ', and military commissions.^
The Constitution, Art. L, Sect. 8, Clause 14, gives Con
gress power " to make rules for the government and
regulation of the land and naval forces."
* See Benet on Military Law and Courts Martial, 11; Dehart on Military Law and
Courts Martial, 3.
t See Note to Forty-third edition, p. 400, on " Military Commissions as regarded by
the Supreme Court and in Congress," and on the case of Ex parte Milligan, in the Ap
pendix.
276 MILITARY GOVERNMENT.
The 16th clause declares that Congress shall have
power to "provide for organizing, arming, and disciplin
ing the militia ; and for governing such part of them as
may be employed in the service of the United States."
To provide for disciplining and governing militia in
the service, means to make laws, rules, or regulations for
their discipline and government. The power to make
them would be inoperative, unless means could be em
ployed to administer them. Congress, therefore, has
power to provide means as well as rules for governing.
No uncertainty is left upon this question ; for the 18th
clause of the same section gives Congress power " to
make all laws which shall be necessary and proper to
carry into execution the foregoing powers, and all other
powers vested by the Constitution in the Government
of the United States, or in any department or officer
thereof."
In the execution of this authority, Congress has pro
vided for governing the army by erecting military
courts, which are not merely necessary and proper, but
are the only practical means yet found for carrying into
execution the rules and regulations so enacted. Such
courts are therefore sanctioned as positively as if estab
lished by express language in the Constitution.
POWER OF THE PRESIDENT TO ESTABLISH COURTS OF WAR.
Not only has Congress power to create tribunals to
administer "rules and regulations for governing the
army and the navy," but there exists another indepen
dent power to create and establish courts with juris
diction over a wider range of subjects and of persons.
That power is vested by the Constitution in the Presi
dent, as Commander-in-Chief of the army and navy,
MILITARY GOVERNMENT. 277
when in actual service in time of war, and is a branch
of the power to erect and maintain military govern
ments.
Military courts are a usual and essential part of the
machinery of military government ; the right to insti
tute the one necessarily implies the right to organize
the other. Courts martial have jurisdiction over of
fences not declared punishable by any law of Congress,
and persons out of the reach of any but military pro
cess.
How far it may be within the province of Congress to
control the operations of war courts instituted by the
President, need not be here discussed.
As has been said, one class of courts of war may be
instituted by laws of Congress, and another class may
be created by the President. Both are under his con
trol as military chief of the forces, while at the same
time he is bound to execute the laws of the land.
The right of the Commander-in-Chief, as well as
that of Congress, to create military tribunals, has
been sanctioned by many decisions of the Supreme
Court of the United States *
DO COURTS OF WAR EXERCISE JUDICIAL POWER ?
As the proceedings of war courts in some respects
resemble those of courts of law, it has been ques
tioned whether they exercise any part of the judicial
power of the United States which is vested by the
Constitution (Art. Ill, Sect. 1) in " one Supreme
Court and in such inferior courts as the Congress
may from time to time ordain and establish." It
has been decided by the Supreme Court of the
United States, that military tribunals exercise no part
* See authorities in the Appendix.
278
MILITARY GOVERNMENT.
of the judicial power, but only a portion of the mili
tary power of the Executive. And it has also been
determined that the sentences or other lawful proceed
ings of courts martial of the United States are not the
subject of appeal or revision in any judicial courts of
the States or of the United States.*
WOULD JUDICIAL COURTS BE USEFUL AS WAR COURTS ?
If it be said that judicial courts ought to employed
for the administration of the laws of war, in order there
by to preserve the safeguards of civil liberty, the
answer is that the whole system of judicial courts
would be worse than useless in armies moving from
place to place. Their organization is incompatible with
the administration of military rights and remedies, by
reason of local jurisdiction, jury trials, territorial limi
tations of process, and slowness of procedure, to say
nothing of the inexperience of learned jurists in mili
tary affairs.
* Vallandigham's Case (Appendix, 524); Dynes v. Hoover, 20 How. 81, 82 (Appen
dix, 520).
See Notes to Forty -third Edition. Opinion delivered by Mr. Justice Davis in Ex parte
Milllgan ; and remarks on this decision, Appendix, 4GO, 536.
CHAPTER IV.
DIFFERENT KINDS OF MILITARY TRIBUNALS.
I. COURTS MARTIAL.
Courts martial have been recognized or established
by express laws of Congress.
The Act of February 28, 1795, provided for calling
out the militia and also for the organization of courts
martial, designating the officers of whom they should
be composed, and prescribing punishments by these
tribunals for persons who should fail (in the instances
specified in Sect. 5) to obey the orders of the President.
These courts derived their authority not from any State
law, but only from the statutes of the United States.*
It is, however, not questioned that either of the
States may pass laws providing for the trial of such
delinquents by State courts martial.f
The act of April 10, 1806, enacts articles of war,
regulates (Article 64) the mode of organizing gen
eral courts martial; gives (Art, 65) the power of
appointing them to general officers commanding an
army, or colonels commanding a separate department,
and institutes inferior courts martial (Art, 66) ; limits
and requires confirmation of sentences (Arts. 65, 67), and
* Commonwealth v. Irish, 3 S. & R. 176.
S. C. 5 Hall's Law Jour. 470.
Meade v. Dep. Marsh. Va. Dist. 5 Hall L. J. 536.
f Iloiiston v. Moore, 3 S. & R. 109.
Martin v. Mott, 12 Wh. R. 19.
279
280 MILITARY GOVERNMENT
provides (Art. 69) for the appointment of prosecuting
officers usually called Judge Advocates. This act reg
ulates the oaths of officers composing the court ; the
oath of the Judge Advocate, the punishment of the
accused for standing mute ; it provides for challenges,
punishes misbehavior in court, contempts, or unbecom
ing conduct of persons convicted ; it lays down rules
relating to testimony and to oaths and depositions
of witnesses, and designates (Sect. 99) such crimes or
misconduct as are punishable by courts martial.
The Act of Aug. 5, 1861, gives power to commanders
of divisions or separate brigades to appoint general
courts martial in time of war.
The decisions of these tribunals are required to be
reported to, and to be reviewed by, some superior officer
who may confirm, modify, or set them aside. But the
final judgments of courts martial are not liable to be
reviewed or reversed by any judicial court of the United
States*
When a court martial has once acquired jurisdiction
of the person and the subject-matter, that jurisdiction
is exclusive of civil courts for that offence. But the
same transaction may constitute an offence against
municipal as well as military law, and, in such cases, the
offender is sometimes liable to punishment by both.
II. MILITARY COURTS OF INQUIRY.
The Act of April 10, 1806, regulates the manner of
constituting such courts, their powers and proceedings.
It recognizes the right of organizing them by the gen-
* Dynes v. Hoover, 20 How. 79 (Appendix, p. 520).
Vallandigham's Case, Appendix, p. 524.
MILITARY GOVERNMENT. 281
erals or commanding officers ; power is conferred upon
these courts to summon, examine, and compel attend
ance of witnesses ; the right of the accused to cross-
examine witnesses is secured ; and the mode of authen
ticating proceedings is prescribed.
But courts of inquiry being liable to abuse, are pro
hibited in all cases, except when demanded by the
accused, or ordered by the President of the United
States.
The Act of March 3, 1863, Sect. 25, gives power to
every Judge Advocate of a court of inquiry to issue
process to compel the attendance of witnesses, like that
which State, Territorial, or District Courts issue in places
where said court of inquiry is held.
These and other statutes show that this class of mili
tary courts is fully recognized by the laws of the United
States.
III. MILITARY COMMISSIONS, INSTITUTED BY THE COMMANDER-IN-
CHIEF, OR UNDER STATUTES.
Military commissions were first made familiar to the
people of this country by General Orders No. 287,
issued by General Scott at the head-quarters of the
army in the National Palace of Mexico, Sept. 17, 1847.
During the occupation of Mexico by our army many
crimes were committed by hostile individuals against
soldiers, and by soldiers against the Mexicans, not pun
ishable by courts martial as organized under the Arti
cles of War. As General Scott wrote in his order, "A
supplemental code is absolutely needed. That unwritten
code is martial law, as an addition to the written military
code prescribed by Congress in the Rules and Articles
of War, and which unwritten code all armies in hostile
countries are forced to adopt, not only for their own
36
282 MILITARY GOVERNMENT.
safety, but for the protection of the unoffending inhabi
tants and their property about the theatres of military
operations, against injuries on the part of the army,
contrary to the laws of war. . . . For this purpose it
is ordered that all offenders in the matters aforesaid
shall be promptly seized, confined, and reported for
trial before military commissions to be duly appointed."
These commissions were appointed, governed, and lim
ited, as nearly as practicable, in the same manner as
had been prescribed for the organization of courts
martial; their proceedings to be recorded, reviewed,
revised, disapproved, or confirmed, and their sentences
executed, in nearly the same way as in the cases of the
proceedings and sentences of courts martial, " provided
that no military commission shall try any case clearly
cognizable by any court martial, and provided also that
no sentence of a military commission shall be put in
execution against any individual belonging to this army,
which may not be according to the nature and degree
of the offence, as established by evidence, in conformity
with known punishments in like cases in some one of
the States of the United States of America."
" The administration of justice, both in civil and crim
inal matters, through the ordinary courts of the coun
try," was " nowhere and in no degree to be interrupted
by any officer or soldier, except" in certain specified
cases. Martial, military, and civil or municipal law were
administered in Mexico by General Scott, under such
military commissions, in all the cases above stated.
Courts of this description were instituted, not under the
authority of Congress, but by the general war power of
the Commander-in-Chief, a power which was fully con
firmed and established by the Supreme Court of the
United States. Congress has, however, recognized in ex
press terms "military commissions," in the act of March 57
MILITARY GOVERNMENT. 283
1863^ Chap. 75; and having authorized the appointment
of a Judge Advocate General, required all proceedings
of such commissions to be returned to him for revision
and record. This Act, Section 30, gives military com
missions, equally with courts, martial jurisdiction in
time of war, in cases of " murder, assault and battery
with intent to kill, manslaughter, mayhem, wounding
by shooting or stabbing with an intent to commit mur
der, robbery, arson, burglary, rape, assault and battery
with intent to commit rape, and larceny, when commit
ted by persons who are in the military service of the
United States, and subject to the articles of war."
Spies are also, by the same Act, Section 38, punish
able with death by sentence of a military commission.*
The several statutes above cited show that Congress,
in pursuance of its powers under the Constitution, has
recognized and established courts martial, courts of in
quiry, and military commissions.
Courts of the same denomination, but exercising a
much broader jurisdiction of persons and subjects, have
been organized and established by the President of the
United States, under the war powers delegated to him
by the Constitution, as Commander-in-Chief of the army
and navy ; and the binding authority of such courts
has been admitted and solemnly asserted by the Su
preme Court of the United States. Tribunals instituted
by the war power of the President are those through
which it is most usual to apply the laws of war in ene
my's country, while hostilities are in progress, and for a
certain length of time after a declaration of peace.
All these tribunals constitute usual and necessary
parts of the machinery of warfare, and are the essential
instruments of that military government by which alone
the permanency of conquest can be secured.
* See act of July 22, 1861, sect. 10.
284 MILITARY GOVERNMENT.
IV. COURTS OF CIVIL JURISDICTION UNDER MILITARY AUTHORITY.
In the preceding pages it has been shown that the right
of the President, as Commander-in-Chief of the army, to
organize and administer government in all its branches
by military power, in time of war, over belligerent dis
tricts of country recovered from a public enemy, and his
right to subdivide and delegate those powers to different
persons acting under his orders, are sanctioned by the
Constitution and laws of Congress, by the decisions of
the Supreme Court, and by our practice in former wars.
The same rights have been exercised during the pres
ent civil war. President Lincoln has appointed as Gov
ernor of the State of Louisiana, Brigadier-General Geo.
F. Shepley; as Judge of the Provisional Court of the
same State, Hon. Charles A. Peabody ; * as Military Com
mander of the department containing Louisiana, Maj.-
Gen. B. F. Butler; and General Butler has appointed to
act under him a Sequestration Committee.'}"
The commissions and orders under which they have
acted are as follows : —
COMMISSION AS MILITARY GOVERNOR.
WAR DEPARTMENT, WASHINGTON CITY, )
June 3, 1802. )
HON. GEORGE F. SHEPLEY, &c. &c.
SIR : — You are hereby appointed Military Governor of the State of Lou
isiana, with authority to exercise and perform, within the limits of that State,
all and singular, the powers, duties, and functions pertaining to the office of
Military Governor (including the power to establish all necessary offices and
tribunals and suspend the writ of habeas corpus), during the pleasure of the
President, or until the loyal inhabitants of that State shall organize a civil
government in conformity with the Constitution of the United States.
By the President.
(SEAL) E. M. STANTON,
1 OF (
( u. s. ) Secretary of War.
* Note to the Tenth Edition. — The Trcsidont has recently appointed as a Judge of the
District Court of the United States for the Eastern District of Louisiana, lion. Charles
A. Duvall, whose nomination has heen confirmed by the Senate.
t See The Grctpeshot, 9 Wallace, 131 ( Appendix, p. 598).
MILITARY GOVERNMENT. 285
EXECUTIVE ORDER, ESTABLISHING A PROVISIONAL
COURT IN LOUISIANA.
EXECUTIVE MANSION, )
WASHINGTON, October 20, 1802. \
The insurrection which has for some time prevailed in several of the States
of this Union, including Louisiana, having temporarily subverted and swept
away the civil institutions of that State, including the judiciary and judicial
authorities of the Union, so that it has become necessary to hold the State in
military occupation; and it being indispensably necessary that there shall be
some judicial tribunal existing there capable of administering justice, I have,
therefore, thought it proper to appoint, and I do hereby constitute a Provis
ional Court, which shall be a Court of Record for the State of Louisiana, and
I do hereby appoint CHARLES A. PEABODY, of New York, to be a Provis
ional Judge to hold said Court, with authority to hear, try, and determine all
causes, civil and criminal, including causes in law, equity, revenue, arid ad
miralty, and particularly all such powers and jurisdiction as belong to the
District and Circuit Courts of the United States, conforming his proceedings,
so far as possible, to the course of proceedings and practice which has been
customary in the Courts of the United States and Louisiana — his judgment
to be final and conclusive. And I do hereby authorize and empower the said
Judge to make and establish such rules and regulations as may be necessary
for the exercise of his jurisdiction, and to appoint a Prosecuting Attorney,
Marshal, and Clerk of the said Court, who shall perform the functions of At
torney, Marshal, and Clerk, according to such proceedings and practice as
before mentioned, and such rules and regulations as may be made and estab
lished by said Judge. These appointments are to continue during the pleas
ure of the President, not extending beyond the military occupation of the city
of New Orleans, or the restoration of the civil authority in that city and in
the State of Louisiana. These officers shall be paid out of the contingent
fund of the War Department, compensation as follows :
Such compensations to be certified by the Secretary of War. A copy of this
order, certified by the Secretary of War, and delivered to such Judge, shall
be deemed and held to be a sufficient commission. Let the seal of the United
States be hereunto affixed.
ABRAHAM LINCOLN.
By the President :
WILLIAM H. SEWARD, Secretary of State.
SEQUESTRATION COMMISSION.
GENERAL ORDERS \ HEAD-QUARTERS, DEPARTMENT OF THE GULF, )
No. 91. { NEW ORLEANS, November 9, 1802. \
The Commanding General being informed, and believing, that the district
west of the Mississippi River, lately taken possession of by the United States
troops, is most largely occupied by persons disloyal to the United States, and
whose property has become liable to confiscation under the acts of Congress
286 MILITARY GOVERNMENT.
and the proclamation of the President, and that sales and transfers of said
property are being made for the purpose of depriving the Government of the
same, has determined, in order to secure the rights of all persons as well as
those of the Government, and for the purpose of enabling the crops now grow
ing to be taken care of and secured, and the unemployed laborers to be set at
work, and provision made for the payment of their labor, —
To order, as follows : —
I. That all the property within the district to be known as the " District
of Lafourche," be and are hereby sequestered, and all sales or transfers thereof
are forbidden, and will be held invalid.
II. The District of Lafourche will comprise all the territory in the State
of Louisiana lying west of the Mississippi River, except the parishes of Pla-
quemines and Jefferson.
III. That
Major JOSEPH M. BELL, Provost Judge, President,
Lieut. Col. J. B. KIXSMAX, A. D. C.,
Capt. FULLER (75th N. Y. Vols.), Provost Marshal of the District,
be a commission to take possession of the property in said district, to make
an accurate inventory of the same, and gather up and collect all such per
sonal property, and turn over to the proper officers, under their receipts, such
of said property as may be required for the use of the United States army ;
to collect together all the other personal property, and bring the same to New
Orleans, and cause it to be sold at public auction to the highest bidders, and,
after deducting the necessary expenses of care, collection, and transportation,
to hold the proceeds thereof subject to the just claims of loyal citizens and
those neutral foreigners who in good faith shall appear to be the owners of
the same.
IV. Every loyal citizen or neutral foreigner who shall be found in actual
possession and ownership of any property in said district, not having acquired
the same by any title since the 18th day of September last, may have his
property returned or delivered to him without sale, upon establishing his con
dition to the judgment of the Commission.
V. All sales made by any person not a loyal citizen or foreign neutral,
since the 18th day of September, shall be held void, and all sales whatever,
made with the intent to deprive the Government of its rights of confiscation,
will be held void, at what time soever made.
VI. The Commission is authorized to employ in working the plantation of
any person who has remained quietly at his home, whether he be loyal or dis
loyal, the negroes who may be found in said district, or who have, or may
hereafter, claim the protection of the United States, upon the terms set forth
in the memoranda of a contract heretofore offered to the planters of the par
ishes of Plaquemines and St. Bernard, or white labor may be employed at the
election of the Commission.
VII. The Commissioners will cause to be purchased such supplies as may
be necessary, and convey them to such convenient depots as to supply the
MILITARY GOVERNMENT. 287
planters in the making of the crop ; which supplies will be charged against
the crop manufactured, and shall constitute a lien thereon.
VIII. The Commissioners are authorized to work, for the account of the
United States, such plantations as are deserted by their owners, or are held by
disloyal owners, as may seem to them expedient, for the purpose of saving the
crops.
IX. Any persons who have not been actually in arms against the United
States since the occupation of New Orleans by its forces, and who shall re
main peaceably upon their plantations, affording no aid or comfort to the
enemies of the United States, and who shall return to their allegiance, and
who shall, by all reasonable methods, aid the United States when called upon,
may be empowered by the Commission to work their own plantations, to make
their own crop, and to retain possession of their own property, except such as
is necessary for the military uses of the United States. And to all such per
sons the Commission are authorized to furnish means of transportation for
their crops and supplies, at just and equitable prices.
X. The Commissioners are empowered and authorized to hear, determine,
and definitely report upon all questions- of the loyalty, disloyalty, or neutrality
of the various claimants of property within said district ; and further, to re
port such persons as in their judgment ought to be recommended by the Com
manding General to the President for amnesty and pardon, so that they may
have their property returned ; to the end that all persons that are loyal, may
suffer as little injury as possible, and that all persons who have been heretofore
disloyal may have opportunity now to prove their loyalty and return to their
allegiance, and save their property from confiscation, if such shall be the de
termination of the Government of the United States.
By command of MAJOR-GENERAL BUTLER.
GEO. C. STRONG,
A.A.G., Chief of Staff.
JURISDICTION OF COURTS APPOINTED BY MILITARY AUTHORITY TO
ADMINISTER JUSTICE.
Military courts, being lawfully established by virtue
of the war power of the President, as a part of his mili
tary government over the territory of a public enemy,
with jurisdiction over all persons and things within the
district to which the judge's commission is limited, have
the right to make and enforce rules for the creation and
service of process, and for all other proceedings before
them. Their judgments may be rendered subject to
appeal, if so directed by the President. The orders and
288 MILITARY GOVERNMENT.
decisions of the judges will be final and conclusive upon
all subjects, matters, and persons over whom they have,
by the terms of their commissions, exclusive and final
jurisdiction. From such decisions and judgments there
is no appeal to any judicial court of the United States.*
They must be forever recognized by all departments of
government as valid and conclusive.^
DOES THE CONSTITUTION PROHIBIT SUCH PROCEDURES r J
The question may be asked whether courts admin
istering municipal or local laws, condemning criminals
without previous indictment, trial by jury, limitation of
place in which trial shall be held, and without right of ap
peal, are not within the prohibitions of the Constitution.
The clauses referring to these subjects are as follows: —
Amendment, Art. V.
" No person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in cases
arising in the land or naval forces ; or in the militia, w hen in actual service
in time of war or public danger," &c.
Amendment, Art. VI.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law," &c.
Amendment, Art. VII.
" In suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury shall be otherwise recxamined in any court of the United
States, than according to the rules of the common law."
* Dynes v. Hoover, 20 How. 79 (See Appendix, p. 520) ; Vallandigham's Case, Ap
pendix, p. 524.
t See Notes to Forty-third Edition, on " Military Government and Reconstruction "
(p. 427), and " Military Courts," p. 44G.
J Note to Forty-third Edition. — Since this edition was in type, the constitutional power
of the President to establish provisional courts in rebel States during- the war, has been
affirmed (1870) by a unanimous decision of the Supreme Court of the United States in tho
case of The Grapeshot (9 Wallace, 131), Appendix, p. C01.
MILITARY GOVERNMENT. 289
To understand the true meaning and application of
the fifth, sixth, and seventh articles of the Amendment
above cited, it is necessary to observe that citizens
owing allegiance to the government of the United
States are by civil territorial war divided into two
classes, having different rights and being subject to dif
ferent liabilities ; first, the inhabitants of loyal States
who have upheld the government; and second the in
habitants of rebellious States, who, by inaugurating
civil war, have become our public enemies. There are
also two classes of loyal citizens ; first, those who are
in the military or naval service ; and second, those who
are not. Military courts may be regarded as, first, or
dinary courts, organized and acting under provisions of
statutes, and administering the laws of war upon per
sons engaged in our military service ; second, as courts
established by the war power of the Commander-in-
Chief, while carrying on the domestic government of
territorial public enemies in hostile districts held by our
military forces. But, however organized or established,
such courts exercise no part of the judicial power of the
government under the Constitution. Hence it is ob
vious that the Articles of Amendment above cited have
no application to military courts, or to the proceedings
thereof; but relate only to the exercise of civil and
judicial power conferred on judicial courts.* Art. 5th
expressly excepts from its prohibitions cases arising in
the' land and naval forces, or in the militia when in ac
tual service. Art. 6th secures to the accused a speedy
and impartial public trial in the State, and district where
the crime shall have been committed, but only in case
* See Dynes v. Hoover (Appendix, p. 520); Vallandigham's Case (Appendix, p. 524);
Milligan's Case (Appendix, p. 536); Comments on this case (Appendix, p. 400); also,
p. 278, and Index, title " Supreme Court."
37
290 MILITARY GOVERNMENT.
of judicial proceedings in ordinary criminal courts.
Art. 7th is by its own terms expressly limited to suits
at common law. These regulations of procedures in
judicial courts apply to tribunals of a character totally
different from military courts. The Constitution sanc
tions courts military and courts judicial, and requires
the latter to be conducted according to these Articles
of Amendment, while it places the former under no
such restrictions. The Supreme Court, recognizing this
distinction in the case of Dynes v. Hoover,* says that
" these provisions show that Congress has the power to
provide for the trial and punishment of military and
naval offences in the manner then and now practised
by civilized nations, and that the power to do so is given
without any connection between it and the third article
of the Constitution, defining the judicial power of the
United States ; indeed, that the two powers are entirely
independent of each other." Thus it is evident that
whoever is subject to the jurisdiction of lawful courts
of war, can claim none of the* benefits of these Articles
of Amendment. It has been also shown that citizens
of the United States who have been declared by our
Government public enemies of the country, have no rights
guaranteed to them under any provisions of our Con
stitution.
WHAT EIGHTS THE INSURGENTS CLAIM.
To form correct opinions in relation to the rights of
persons inhabiting that part of the country now subjected
to the government de facto of the so-called Confederate
States, it is proper to ascertain what rights they claim.
Having founded new governments within the terri-
* 20 How. Rep. 79. (Sec Appendix, p. 520.)
MILITARY GOVERNMENT. 291
tory over which our national sovereignty extends, under
the asserted right of revolution ; having ratified those
governments, both confederate and state, by popular con
ventions, by legislative acts of secession, by submission,
by profession of allegiance, and by all other known
modes of expressing assent and adherence thereto, they
have publicly withdrawn from and disclaimed all allegi
ance to the United States. They demand that we diould
treat them as an independent nation. They not only
assert no right to protection under our constitution, but
wage open, barbarous, offensive war against the inhabi
tants of the loyal States and against our government.
They seek recognition from and alliance with foreign
countries, and if successful in arms, they will be entitled
to compel the United States to submit to them as con
querors. Our territory, our government, and our popu
lation will then be subjected to their control. Their
laws and their institutions will then be forced upon us,
and nothing but the overthrow and destruction of their
government can prevent this result.
They have already been recognized by leading Euro
pean powers as BELLIGERENTS. They have demanded and
have received from our government, the concession of
many belligerent rights ; as for instance, the exchange of
prisoners of war captured on land ; the release of con
federate seamen condemned for piracy ; and the recog
nition of flags of truce, and the blockade of seaports,
under the law of nations.
The claim, so far as it can be ascertained, of the
confederate de facto government, is that the United
States should concede to the insurgents full belligerent
rights, and should recognize them as an independent
nation. No demand of any right under our constitu
tion or our laws has ever been made by them. Those
292 MILITARY GOVERNMENT.
who deny their obligation to perform the duties imposed
on all subjects of the United States, have not fallen into
the absurdity of claiming the privileges of citizens.
The confederates claim only such rights as the law of
war, which is a part of the law of nations, secures to
them. That claim this government is bound to concede,
whenever it determines to treat them, not as subjects,
but as belligerents.
Have the insurgents admitted liability on their part
to regard our laws or constitution in carrying on war
against us ? Have they not forsworn their allegiance to
this government, and can they claim protection while
denying allegiance ? Can an enemy justly assert any
right under a constitution he is fighting to destroy ?
The insurgents cleem themselves public enemies to the
United States in open war, and admit their liability to
abide by the stern rules of belligerent law. They de
mand no privilege under a constitution which, by com
mencing war, they have violated in every clause.
Is it not remarkable that persons who profess to adhere
to our government should set up pretensions on behalf of
our adversaries which our adversaries themselves dis
claim ?
RIGHTS CONCEDED TO INSURGENTS.*
Whoever makes war against a nation renounces all
right to its protection. The people of the United
States have founded a government to secure the " gen
eral welfare," by preventing enemies, foreign or domes
tic, from destroying the country. They did not frame a
constitution so as to paralyze the power of self-defence.
They have not forged weapons for their adversaries, or
manacles for themselves.
The Constitution, in fact, guarantees no rights, but only
* See Note, p. 425.
MILITARY GOVERNMENT. 293
declares the liabilities, of public enemies, — if they are
invaders, that they shall be repelled ; if they are insur
gents, that they shall be put down by force ; if they
are rebels, banded together in territorial civil war, then
that civil war shall be fought through, and conquest and
subjugation shall reestablish lawful government. Any
other result must be a destruction of the country, and
therefore an overthrow of the Constitution.
In the enforcement of these hostile measures against
public enemies, the most liberal concession demanded
by the code of civilized warfare, is that traitors should
be deemed belligerents ; but, while enjoying the immu
nities, they must be subject to the liabilities, of war.*
Therefore, whether the Articles of Amendment of the
Constitution, previously cited, apply to martial proceed
ings or not, is immaterial in determining the rights of a
hostile people engaged in civil war against the United
States.
The appeal to arms and the laws of war was forced
upon us, because the insurrectionary districts refused to
submit to the Constitution. They cannot, therefore, justly
complain that under the laws of war they are no longer
sheltered by that constitution which they hare spurned.
ARE THE INHABITANTS OF INSURRECTIONARY STATES PUBLIC ENEMIES ?
Whether persons inhabiting insurrectionary States are
in law to be deemed "public enemies," is apolitical ques
tion, which, like similar questions arising under our form
of government, is to be determined, not by judicial courts
of law, but by the legislative and executive departments.-)"
* See the Prize Cases, 141, 238; also, 2 Black's R. 638.
t Some of the consequences flowing from the status of a public enemy are stated on
pp. 236-244.
See Notes to Forty-third Edition, p. 425. Also, titles " Public Enemies," The " Pol
icy of the Government," and " A brief Statement of the War Powers," p. 390.
294 MILITARY GOVERNMENT.
Among those subjects which, as the Supreme Court
of the United States has already decided, are finally to
be determined by the political departments of govern
ment, are the following, viz. : (a) Questions of boun
dary between the United States and foreign countries.*
"A question like this," says Chief Justice Marshall, "respecting
boundary of nations, is, as has been truly said, more a political
than a legal question ; and in its discussion the courts of every
country must respect the pronounced will of the legislature."
Taney, G. J., says, " The legislative and executive branches hav
ing decided the question, the courts of the United States were
bound to regard the boundary determined on by them as the true
one." f
(b) Questions as to the sovereignty of any foreign
country ; or as to its independence ; or as to the inter
national relations with our government of foreign in
vaders of our country, or of any nation whose provinces
or dependencies are in a state of rebellion, are also
political and not judicial.
" To what sovereignty any island or country belongs," says Judge
McLean, " is a question which often arises before courts.
And can there be a doubt that when the executive branch of the
government, which is charged with our foreign relations, shall, in
its correspondence with a foreign nation, assume a fact in regard
to the sovereignty of any island or country, it is conclusive on the
judicial department? And in this view it is not material to in
quire whether the Executive is right or wrong. It is enough to
know that, in the exercise of his constitutional functions, he has
decided the question. Having done this, under the responsibili
ties which belong to him, it is obligatory on the people and gov
ernment of the United States. * * * In the cases of Foster
v. Nelson and Garcia v. Lee^ this court have laid down the rule
* Foster $ Elam v. Nelson, 2 Pet. 307.
t United States v. Percheman, 7 Pet. 51. United States v. Arredondo (1832), G Pet. 711.
Garcia v. Lee, 12 Pet. 516, 517, 520, 522.
Note to Forty-third Edition. — With regard to the jurisdiction of courts there is a dis
tinction between questions of boundary which involve rights of sovereignty and of
political jurisdiction, or political rights over the territory in question, and those which
involve mere rights of property. See Georgia v. Stanton, Appendix, p. 548.
MILITARY GOVERNMENT. 295
that the action of the political branches of the government, in a
matter that belongs to them, is conclusive." *
(c) Questions relating to the admission of States into
the Union, or to the recognition of local governments as
the governments of States in the Union, belong to the
political, not to the judicial power to decide ; as, for
example, whether the government of Ehode Island
should be recognized by the United States as the duly
constituted government of that State. Therefore the
Supreme Court declared that it had not the power to
try or determine this question, so far as the United
States was concerned. Congress delegated to the Presi
dent, by the Statute of Feb. 28, 1795, the power to decide
for the purposes of that act, whether a government or
ganized in a State was the duly constituted government
of that State, and, after he made his decision, the courts
of the United States were bound to conform to it/j-
(d) Questions as to the legal status of all persons who
shall have engaged in insurrection, rebellion, or civil
war against the United States, are also of a political
character, determinable only by the executive and
legislative branches of our government. J
It will, therefore, be the duty of the President and
* Williams v. Suffolk Ins. Co., 13 Peters, S. C. R. 420 (McLean, J.).
See also Gelston v. Hoyt, 3 Wheaton, 240 ; United States v. Palmer, 3 Wheaton, 610.
t Luther v. Jlorden, 7 Howard, S. C. R. 40, 42-44.
J Luther v. .Borden, 7 Howard, 40, 44; Lawrence's Wheaton, 514; Martin v. Mott,
12 Wheaton, 29, 30; Law Reporter, July, 1861, 148; The Tropic Wind, Opinion of Judge
Dunlop; the prize case Hiawatha and others, 2 Black. 638; War Powers, pp. 141, 215.
See also charge of Nelson, J., on the trial of the officers, &c., of the Savannah, p. 371.
In this case the rebel privateer put in as a defence his commission to cruise under the
confederate flag; and the same defence was made in Philadelphia, by other persons in
dicted for piracy. In both cases it was held that the courts must follow the decision of
the executive and legislative departments in determining the political status of the Con
federate States. See also Smith's Trial, p. 96; Santissima Irinidad, 7 Wheaton, 283, 305.
Upton's Maritime Warfare and Prize, second edition, pp. 44-107.
Note to Forty-third Edition. — Sec also Halleck's Law of Nations, 720, and author
ities there cited; Lawrence's Wheaton, p. 43, note ; Neueva Anna Liebre, 6 Wheaton, R.
193; also, Index, " Policy of the Government; '? and cases recently decided by the Su
preme Court. Appendix, pp. 512-610.
296 MILITARY GOVERNMENT.
of Congress to decide all questions of public policy
which may grow out of the rebellion. Of these, the
most important are, 1. Whether the Confederates shall
have the legal status of mere insurgents, or that of bel
ligerent public enemies. 2. Whether local governments
formed, or to be formed, within the territory in re
bellion, shall be sanctioned by the United States.
3. Whether, when, and on what conditions, a state of
peace shall be established or declared. 4. Whether the
Confederate States shall be recognized by receiving
their commissioners, by acknowledging their indepen
dence, or by any other act of our government. Such
decisions on these and on similar matters are binding
and conclusive upon the Federal courts.
STATUS OF THE INSURGENTS AS DETERMINED BY THE PRESIDENT.
The acts and proclamations of the Executive Depart
ment have stamped as " public enemies " all persons
residing in the insurrectionary States. The President
issued a proclamation on the 15th April, 1861, which
declares that the laws had been opposed and their
execution obstructed, for some time past, in certain
States, by combinations too powerful to be suppressed
by the ordinary course of judicial proceedings. He
called out 757000 of the State militia in order to
suppress said combinations. On the 19th of April,
1861, he proclaimed a blockade of the ports within
certain States, in pursuance of the laivs of nations and
the statutes of the United States in such case pro
vided, and gave warning that vessels breaking or at
tempting to break that blockade should be captured
and condemned as lawful prize. He also declared that any
persons who, under pretended authority of said States,
should molest any United States vessel, should be
MILITARY GOVERNMENT. 297
deemed pirates. This blockade was, by a subsequent
proclamation of April 27, 1861, extended to other
States.
By the proclamation of May 10, 1861, he suspend
ed the privilege of the writ of habeas corpus in the
islands on the coast of Florida.
On the 16th of August, 1861, in pursuance of an
Act of Congress, he declared " that the inhabitants of
the States of Georgia, South Carolina, Virginia, North
Carolina, Tennessee, Alabama, Louisiana, Texas, Arkan
sas, Mississippi, and Florida (excepting the inhabitants
of Western Virginia, etc.), are in a state of insurrection
against the United States, and that all commercial intercourse
betiueen the name and the inhabitants thereof, with the excep
tions aforesaid, and the citizens of other States, and other parts
of the United States, is unlaivfid, and ivill remain unlawful until
such insurrection shall cease, or has been suppressed" He then
declined forfeiture of goods, or conveyances thereof, going
to said States, and, after fifteen days, of all vessels belonging
in ivhole or in part to any inhabitant of any of said States
(except as aforesaid), wherever found.
On the 1st of July, 1862, he again declared the same
States in insurrection and rebellion, so that the taxes could
not be collected therein, in pursuance of the Act of
1861, Chapter 45.
On the 25th of the same month, he gave a further
warning under the provisions of the sixth section of
the Act of July 17, 1862, requiring rebels to "return to
their proper allegiance to the United States, on pain of for
feitures and seizures," as provided for in said Act.
The proclamation of Sept, 22, 1862, was made by
the President as an Executive officer and as Commander-
in-Chief of the Army and Navy, « that the war will be
prosecuted hereafter as heretofore for the purpose," etc,;
38
298 MILITARY GOVERNMENT.
that slaves in States which should be in rebellion on the
first day of the following January should be free, and
that he would, by subsequent proclamation, designate
such States; and at that date (January 1, 1863), the
President did designate such States, and did declare
u that all persons held as slaves within said States, etc., are
and hereafter shall be free," and " that the executive
government of the United States, including the military
and naval authorities thereof, will recognize and main
tain the freedom of said persons.'"'
From an examination of these proclamations issued
by President Lincoln, by virtue of his executive power
and as a military chief, it cannot be doubted that in the
most solemn and formal manner he has recognized the
inhabitants of the insurrectionary States as in civil ivar,
and therefore as public enemies. His proclamation char
acterizes these hostilities as " the war now prosecuted ;"
he requires the rebels to "return to their proper alle
giance to the United States," admitting that they have
renounced such allegiance ; in all his proclamations, ex
cepting the first, he treats the inhabitants of the rebellious
States as in simili statu (with specified exceptions only),
and in the proclamation of Jan. 1, 1863, no exceptions
are made of any class of persons within the designated
districts.
The Executive Department has thus definitely settled
the question that all inhabitants of the designated States
are public enemies, — First, by proclamations depriving
them of slaves, of ships, and of property used in com
merce ; by a blockade and a declaration of non-inter
course ; by claiming against them the rights of tvar ;
and by asserting that the existing hostilities are " WAR."
Second, by extending to the insurgents the usual rights
* See the President's Proclamation, April 2, 1863.
MILITARY GOVERNMENT. 299
and privileges of a belligerent public enemy ; as by re
lease of captured pirates (under the order of the Presi
dent issued from the State Department) as prisoners of
war,* by exchange, by cartel, of prisoners of war captured
on land, by claiming the right of retaliation, and by va
rious other acts, which are legitimate in the conduct of
the war, but irreconcilable with the assumption that the
United States are not engaged in war, but only in enfor
cing the laws against certain criminals who have violated
certain statutes by engaging in insurrection or rebellion.*}*
If these acts and these proclamations do not show that
the Executive Department has declared and determined the
status of the inhabitants in insurrection to be that of public
enemies, it would be difficult to conceive of any course of
executive proceedings that would have had that effect.J
STATUS OF THE INSURGENTS AS DETERMINED BY CONGRESS.
The action of the Legislative Department, which has
been in harmony with that of the President, has in like
manner definitively pronounced the inhabitants of insur
rectionary States to be public enemies. In the war of
1812, between the United States and Great Britain, the
Act of July 6, 1812, and the Act of February 4, 1815,
indicated the character and extent of legislation neces
sary to record the decision of the Legislative Department,
that Great Britain was at that time a public enemy.
But since the present rebellion commenced, Congress
has enacted laws far more stringent and comprehensive
than either of those above cited, against the inhabitants
of the rebellious States. The four chief acts which re-
* See page 215.
t Note to Forty-third Edition. — To these acts may now be added the surrender of the
armies of Generals Lee and Johnston, upon terms which arc deemed obligatory upon the
United States.
J The effect of the President's Message and Proclamation of Amnesty of December 8,
1803, upon the persons, property, and political rights of the inhabitants of rebellious
States, far transcends in importance that of either of his previous executive acts.
300
MILITARY GOVERNMENT.
cord the decision of Congress on the question whether
rebels are public or private enemies, are, —
1. The Act of July 13, 1861, ch. 3.
2. " " " May 20, 1862, ch. 81.
3. " " » July 17, 1862, ch. 195.
3. " " " March 12, 1863, ch. 120.*
In the extraordinary but brief session of the 37th
Congress, which assembled on the 4th of July, 1861, and
lasted but thirty-three days, statutes of the highest im
portance were passed, and among them none will here
after attract more attention than the Act of July 13,
1861, ch. 3. Means were thereby provided for collecting
the revenue in rebellious districts by the use of military
and naval forces, the President was authorized to close
ports of entry, and it was enacted, in the fifth section, —
" That whenever the President, in pursuance of the provisions of the second
section of the act entitled ' An act to provide for the calling forth the militia
to execute the laws of the Union, suppress insurrections, and repel invasions,
and to repeal the act now in force for that purpose,' approved February 28,
1795, shall have called forth the militia to suppress combinations against the
laws of the United States, and to cause the laws to be duly executed, and the
insurgents shall have failed to disperse by the time directed by the President,
and when said insurgents claim to act under the authority of any State or
States, and such claim is not disclaimed or repudiated by the persons exer
cising the functions of government in such State or States, or in the part or
parts thereof in which said combination exists, nor such insurrection sup
pressed by said State or States, then in such case it may and shall be lawful
for the President, by proclamation, to declare that the inhabitants of such State,
or any section or part thereof where such insurrection exists, are in a state of
insurrection against the United States ; and thereupon all commercial inter
course by and between the same and the citizens thereof, and the citizens of
the rest of the United States, shall cease and be unlawful so long as such
condition of hostility shall continue ; and all goods and chattels, wares and
merchandise coming from said State or section into the other parts of the
United States, and all proceeding to such State or section, by land or water,
shall, together with the vessel or vehicle conveying the same, or conveying
persons to or from such State or section, be forfeited to the United States."
* Note to Forty-third Edition. — Several subsequent acts may now be added to the
above. See act of July 2, 1804, which extends the prohibitions of the act of 1861 to all
the inhabitants of the designated States. See also the Appropriation Act, 1865 (Chap. 81).
Also, the Reconstruction Acts, cited in the Notes.
MILITARY GOVERNMENT. 301
Also, in the sixth section, it was enacted, —
" That from and after fifteen days after the issuing of the said proclamation,
as provided in the last foregoing section of this act, any ship or vessel belong'
Jrg in whole or in part to any citizen or inhabitant of said State or part of a
State whose inhabitants are so declared in a state of insurrection, found at
sea, or in any port of the rest of the United States, shall be forfeited to the
United States."
By the Act of May 20, 1862, ch. 81, farther pro
visions were made interdicting commerce between loyal
and disloyal States, and new forfeitures and penalties
were prescribed.
By the Act of July 17. 1862, ch. 195, a new punish
ment for the crime of treason was declared, penalties
were prescribed against all persons who should engage
in, or give aid or comfort to the rebellion or insurrec
tion, and they were declared to be disqualified from
holding office under the United States. By Section fifth
it was enacted, —
" That, to insure the speedy termination of the present rebellion, it shall be
the duty of the President of the United States to cause the seizure of all the
estates and property, money, stocks, credits, and effects of the persons herein
after named in this section, and to apply and use the same and the proceeds
thereof for the support of the army of the United States ; that is to say, —
" First. Of any person hereafter acting as an officer of the army or navy
of the rebels in arms against the government of the United States.
" Secondly. Of any person hereafter acting as president, vice-president,
member of Congress, judge of any court, cabinet officer, foreign minister,
commissioner, or consul of the so-called confederate states of America.
" Thirdly. Of any person acting as governor of a State, member of a con
vention or legislature, or judge of any court of the so-called confederate states
of America.
" Fourthly. Of any person who, having held an office of honor, trust, or
profit in the United States, shall hereafter hold an office in the so-called con
federate states of America.
" Fifthly. Of any person hereafter holding any office or agency under the
government of the so-called confederate states of America, or under any of
the several states of the said confederacy, or the laws thereof, whether such
office or agency be national, state, or municipal in its name or character.
Provided, That the persons, thirdly, fourthly, and fifthly above described,
302 MILITARY GOVERNMENT.
shall have accepted their appointment or election since the date of the pre
tended ordinance of secession of the State, or shall have taken an oath of
allegiance to, or to support the constitution of the so-called confederate
states.
" Sixthly. Of any person who, owning property in any loyal State or Ter
ritory of the United States, or in the District of Columbia, shall hereafter
assist and give aid and comfort to such rebellion ; and all sales, transfers, or
conveyances of any such property shall be null and void ; and it shall be a
Sufficient bar to any suit brought by such person for the possession or the use
of such property, or any of it, to allege and prove that he is one of the per
sons described in this section."
Section sixth provided that if any persons other than
those above named, had engaged in, or aided the armed
rebellion, and should not within a limited time return to
their allegiance, their property should be liable to seizure
and condemnation.
Section seventh provided proceedings for confiscation
of such property, real and personal, —
" And if said property, whether real or personal, shall be found to have
belonged to a person engaged in rebellion, or who has given aid or comfort
thereto, the same shall be condemned as enemies' property^ and become the
property of the United States."
" Slaves escaping, and taking refuge within the lines of the army, and all
slaves captured from, or deserted by, those engaged in rebellion, and coming
under control of the government of the United States, and all slaves of such
persons found or being within any place occupied by rebel forces, and after
wards occupied by forces of the United States, shall be deemed captives of
war," etc.
The Act approved March 12, 1863, ch. 120, § 1, pro
vides that agents may be appointed by the Secretary of
the Treasury to collect all abandoned and captured
property in any State or Territory designated as in
insurrection by the proclamation of July 1, 1862,—
"Provided, that such property shall not include any kind or description
which has been used, or which was intended to be used, for waging or carry
ing on war against the United States, such as arms, ordinance, ships, steam
boats, or other water craft, and the furniture, forage, or other military supplies
or munitions of war."
MILITARY GOVERNMENT. 303
Section fourth of the same statute, provides, —
" That all property coming into any of the United States not declared in
insurrection as aforesaid, from within any of the states declared in insurrec
tion, through or by any other person than any agent, duly appointed under
the provisions of this act, or under a lawful clearance by the proper officer
of the Treasury Department, shall be confiscated to the use of the govern
ment of the United States. And the proceedings for the condemnation
and sale of any such property shall be instituted and conducted under the
direction of the Secretary of the Treasury, in the mode prescribed by the
eighty-ninth and ninetieth sections of the act of March 2, 1799, entitled,
' An act to regulate the collection of duties on imports and tonnage.' And
any agent or agents, person or persons, by or through whom such property
shall come within the lines of the United States unlawfully, as aforesaid, shall
be judged guilty of a misdemeanor, and on conviction thereof shall be fined
in any sum not exceeding one thousand dollars, or imprisoned for any time
not exceeding one year, or both, at the discretion of the court. And the
fines, penalties, and forfeitures accruing under this act, may be mitigated or
remitted in the mode prescribed by the act of March 3, 1797, or in such
manner, in special cases, as the Secretary of the Treasury may prescribe."
From these statutes it is seen that the Legislative De
partment has recognized "certain districts of country,
not only as in a state of insurrection and rebellion," but
as " carrying on a war " against the United States. Com
mercial intercourse has been interdicted between the
insurrectionary and the loyal States, and property found
in transitu is made liable to seizure and confiscation, for
the use of the United States, and property of persons
engaged in the rebellion is to be seized and confiscated
as ENEMIES' property. The inhabitants (that is to say ALL
the inhabitants) of the insurrectionary States, or parts of Slates,
are declared to be in a state of insurrection against the United
States, and any ship or vessel, belonging in ivhole or in part to
any citizen or inhabitant of such State, luhose inhabitants are so
declared in insurrection, found at sea, or in any of the loyal or
disloyal States, shall be forfeited to the United States*
* Note to Forty-third Edition. — See joint resolution approved Feb. 8, 1805. See Notes
in Appendix on the " Reconstruction Acts," " Military Government," and Index — title
" Public Enemies."'
304 MILITARY GOVERNMENT.
Thus belligerent rights derived from the acknowl
edged existence of civil territorial war, have been
plainly asserted and exercised by Congress, and the
insurgents have been declared public enemies in every
form and manner known to legislation, and in lan
guage far more stringent than that used by the Par
liament of Great Britain, when, by the Non-intercourse
Act, our revolutionary rebellion was changed into pub
lic territorial war.*
THE ACTION OF THE SUPREME COURT IN RELATION TO POLITICAL
QUESTIONS.
Has the Supreme Court thus far followed the decis
ions of the political departments of government on the
question as to the status of rebels as public enemies,
that is to say, as enemies within the sense of interna
tional law ? This question will be answered by refer
ence to the cases which have arisen since the begin
ning of the war. By far the most important decisions
on this subject were made in March, 1863, and are com
monly known as " The Prize Cases." f In these opin
ions the judges plainly recognize the insurgents as
public enemies, following, in that respect, as was their
duty, the decision of the Political Department of the
government. How could a judgment, condemning these
vessels as lawful prize, be sustained if the belligerents
were not admitted to be public enemies? Though a vessel,
captured while trading with an enemy, may be lawful
prize, irrespective of the character, whether friendly, neu
tral, or hostile, of the trader to whom it belongs, yet it is
because his vessel, if released, may aid a public enemy, that
it becomes liable to capture. No property of a friendly
or neutral power can be lawfully captured because it
* See Act 16 Geo. .3, 1776, also the dissenting opinion in the Prize cases,
t For the opinion of the Court in the Prize cases, and that of the dissenting judges, see
pp. 140-156. For analysis of these opinions, see pp. 238-243.
MILITARY GOVERNMENT. 305
might aid a criminal, a robber, a pirate, or an insur
gent, while acting merely as a private or personal
enemy of the United States. The law of prize has no
application to the case of personal or private enemies,
and cannot be invoked to justify a capture of private
property, unless there exists a public enemy and a state of
Blockades, under the law of nations, can lawfully
exist only when there is a public enemy to the country
which proclaims and enforces them.
The Circuit Courts of the United States, having ad
judged the inhabitants of States declared in rebellion to
be public enemies, have thus conceded that they are
not entitled to sue in any of the national courts.*
Doubtless the disability to sue in courts of the United
States, and all other disabilities resulting from the status
of a public enemy, may be removed. But it is for the
President and Congress to determine what sound policy
and public safety shall require.
It is a matter of congratulation that there is no want
of harmony between the different departments of Gov
ernment, and that the Supreme Court has not gone
beyond its legitimate functions in time of civil war ; but
has, by following the decisions of the political depart
ments on political questions, given the best evidence
that, even in revolution, it will not be necessary for the
safety of the country to overthrow its judiciary.
Thus it has been shown that the question whether
the inhabitants of the States in insurrection are "public
enemies" and entitled to the rights, or subject to the
liabilities of belligerent law, is to be decided, not by the
* See Bouneau v. Dinsmore, 24 Law Hep. 381. S. C. 19 Leg. Inst. 108. Israel G. Nash
(of North Carolina) Complt. v. Lyman Dayton et al. (decided by Nelson, Judge of the
United States Circuit Court of Minnesota). See U. S. v. The Isaac Hemmett, Legal
Jour. 97; also, U. S. v. The Allegheny, ib. 276, and Mrs. Alexander's Cotton, app.. 534.
39
306 MILITARY GOVERNMENT.
judicial, but by the political departments of this Gov
ernment : that the Executive and Legislative Depart
ments have formally and finally decided that the rebels
are public enemies, and subject to the laws of war : that
the Judicial Department has submitted to and followed
that decision ; and that the question as to the political
status of rebellion is now no longer open for discussion :
that whatever rights, other than the rights of war, may
be conceded to the inhabitants of rebellious territory,
will be bestowed on them from considerations of policy
and humanity, and not from admission of their claims
to rights under our Constitution.*
* Messrs. Fishback and Baxter claimed recognition as United States senators from the
State of Arkansas, a State declared by proclamation of the President to be in rebellion.
Since the first publication of this essay, the Senate, on the 29th of June, 1864, resolved
that they were not entitled to seats therein, — yeas, 8; nays, 25.
Note to Forty-third Edition. — Similar resolves have since been passed in relation to
several other persons who have claimed to be senators or representatives from seceded
States. The principles hero stated have been sanctioned by several laws of Congress,
by acts of the Executive Department, and by decisions of the Supreme Court. See
Notes on Reconstruction, and the collection of decided cases in the Appendix.
CHAPTER V.
DELEGATION OF AUTHORITY.
Judicial authority cannot be delegated, and as the
commander of a department, or other officer who pre
sides over a military tribunal while determining a case
of civil jurisdiction, acts in a quasi judicial capacity, a
question has been made whether the right to hold such
courts can be delegated by the President to his officers.
Although such proceedings of the war courts as com
plaints of parties, pleadings, examination of witnesses,
deliberations and decisions of judges, in many respects
resemble those of judicial courts, yet, as they are not
deemed judicial within the true meaning of the Consti
tution, no valid objection arises from that source, to the
delegation of the power to hold military courts, to such
officers as may be appointed by the President.
This, and nearly all the war powers, must be exercised
through officers acting under the Commander-in-Chief ;
for his authority must be exerted at the same time in
different and distant places ; and as he cannot be omni
present, that authority which could not be delegated
would become comparatively useless. The practice of
the Government has, from the beginning, been in
accordance with this view of constitutional law.
The power of the President is in part delegated to his
Secretary of War, whose acts are deemed in law to be
the acts of the President.* The commanders of military
* Wilcox v. Jackson, 13 Pet. R. 408.
Opinion of Wm. Wirt, Atty Genl. (July 6, 1820).
U. S. v. Eliason, 1(5 Pet. S. C. R. 291.
307
308 MILITARY GOVERNMENT.
departments are clothed with authority transferred to
them by the Commander-in-Chief. Therefore, if that
authority is not limited so as to prevent it, they have
the right, while in the enemy's country in time of war,
to organize military courts martial and commissions, and
to administer all other belligerent laws. Tribunals so
organized may exercise all functions properly conferred
upon them, and their decisions are not only valid, but
are not subject to reversal by any judicial court ; but
only by the final action of the President.
So also, if a military governor is placed over such
hostile district, clothed with the powers of the Com
mander-in-Chief, he may himself administer the laws of
war over those subjected thereto within his precinct, and
may establish courts military and civil, with jurisdiction
over all persons and things therein. And whether he
acts on his own discretion in so doing, under general
orders, or under special orders in each case, he is, ac
cording to military law, responsible only to his superior
officer.
Although no civilian, or civil or merely executive officer,
has a right to institute a military court, unless deriving
special authority to do so from some law of Congress or
from military orders, there seems to be no reason why
any of the war powers, in time of actual service, may
not be delegated to military men by the President, or
by any other military officer who possesses them ; and
no reason for making any distinction between the dif
ferent classes of powers which may be so delegated.
CHAPTEE VI.
HOW MILITARY OR PROVISIONAL GOVERNMENTS MAY BE CREATED
AND REGULATED BY CONGRESS.
The right and duty of administering purely military
government belongs to the war-making power, which is
usually subject only to the rules of the belligerent law.
When that power is regulated by any treaties, constitu
tion, or statutes of the invading country, then military
governments established under it must be conducted in
accordance with the laws of war, as modified by such
legislative, constitutional, or treaty restrictions. Thus,
wherever in the United States such a government shall
be instituted by the Commander:in-Chief, his administra
tion of it may, to a certain extent, and with certain lim
itations, be regulated by acts of Congress.
The right of the United States to acquire territory
by purchase, treaty, or annexation, necessarily implies
the existence in Congress of the power to establish
some form of government over regions thus added to the
country. Conquest itself confers on the conqueror au
thority to make laws for the conduct of people sub
jected to his power. The right of the government
when conqueror in civil territorial war to make rules
and regulations relating to conquest and captures may,
by the Constitution of the United States, be exercised
by the Legislative Department.
A provisional government, partaking in a high de
gree of a martial character, may be ordained and estab
lished over subjugated districts in time of civil war, by laws
309
310 MILITARY GOVERNMENT.
of Congress, and may be administered by civilians or by
military persons, appointed by the President, according
to the requirements of the statutes.
It is also the duty of Congress to pass all laws which
are proper and fit to aid the President in carrying into
effect his obligation to suppress rebellion and enforce
the laws, to secure domestic tranquillity, and to guaranty
to each State a republican form of government.* And
as the creation and administration of military or provis
ional governments are essential means of accomplish
ing these objects, it would seem for this reason also to
be the duty of Congress, in aid of the Commander-in-
Chief, and without interfering with his military opera
tions, to erect governments over the subjugated districts,
clothed with powers adequate to administer the laws of
war, subject to the Constitution and the statutes of the
United States, and to such orders as the President may
from time to time issue, not inconsistent therewith.
Governments thus established rest not alone upon the
military power of the President as Commander-in-Chief
of the army and navy, but upon the war powers of Con
gress, and should be so organized as to endure until the
people of these districts shall be again permitted to
resume self-government, and be again clothed with their
former political rights.^
Therefore, although the President may, while en
gaged in hostilities, and in the absence of laws restrict
ing his authority, enforce belligerent rights against a
public enemy, Congress also may establish rules and
regulations which, without interfering with his powers
* Constitution, Art. 1, Sect. 8, Ch. 18. See ante, p. 269.
f The model of our territorial governments, in time of peace, is the Ordinance of 13th
July, 1787.
See 3 Story, Com. on Const. 1312.
Webster's Speeches, Jan. 1830, pp. 360-364.
MILITARY GOVERNMENT. 311
as commander of the arrny, it will be his duty to admin,
ister.
In a province to be subdued by soldiers, the only
means by which the will of Congress, or the will of the
head of the army can usually be carried into execu
tion, is by force of arms. In one sense, all government,
whether provisional or quasi civil, established under
such circumstances, must assume a military character.
In that view it can be controlled by Congress only
through use of the military power of the army. Yet the
President is bound to execute all laws which Congress
has a right to make ; and so far as the Legislature has
the authority to interfere with or control the President
by laws or by regulations, or by imposing upon him the
machinery of provisional governments, so far he is
bound to administer them according to statute.
LIMITS OF POWER. CONFLICT BETWEEN THE WAR POWERS OF THE
PRESIDENT AND THE LEGISLATIVE POWERS OF CONGRESS.
Though the Executive, Legislative, and Judicial de
partments of our government are to a certain extent
independent of each other, yet no one of these depart
ments is without some control over the others. The
legislature can make no law without the concurrence of
the President, unless passed by two-thirds of the voters
in both houses; and laws, when made, may be pro
nounced unconstitutional by the Supreme Judicial Court.
The judiciary, in deciding purely political questions, are
bound to follow the decisions of the Legislative or Execu
tive departments, and are in other respects controlled by
the action of the coordinate branches of the govern
ment. The Executive can make treaties only by con
currence of the Senate ; and most of the appointments
to high offices must, to be valid, be made with its
312 MILITARY GOVERNMENT.
advice and consent. The President cannot declare
war ; but Congress can. Congress cannot carry on
war ; but the President can. Congress may make rules
and regulations concerning captures, and for the gov
ernment and regulation of the land and naval forces,
when in service, binding upon the President, whose
duty it is to see all constitutional laws faithfully exe
cuted, although he is the supreme commander of the
army and navy.
Questions may therefore arise as to the limitation of
the respective powers of the Commander-in-Chief in
conducting hostilities, and the powers of Congress in
controlling him, by virtue of this legislative right to
make rules and regulations for the government of mili
tary forces, and respecting captures on land and sea.
To determine how far Congress may interfere with
and govern the military operations of the Executive,
when the war power is employed in enforcing local gov
ernment by martial law, without derogating from his
power as Commander-in-Chief of the army, will require
careful consideration, inasmuch as such government can
be in fact maintained and enforced only by military,
and not by legislative authority.
HOW THESE GOVERNMENTS MAY BE TERMINATED.
Military governments may be terminated by the com
manding general at his will, by withdrawal of the officers
who administer it.
As it is in the power of the Legislative Department to
declare war, and to provide or withhold the means of
carrying it on. Congress also may, after hostilities shall
have ceased, declare or recognize peace, terminate mili
tary or provisional governments, or may regulate them
MILITARY GOVERNMENT. 313
and cause them to be modified or wholly withdrawn,
whether originally erected by its own authority or by
the war power of the President, and may institute civil
territorial governments in their place.* Or the people
of any district, in which hostilities have ceased, having
formed a new government for themselves, by permis
sion of the United States, may be admitted into the
Union as a State, and thus the military government
will be displaced.f But military governments are not
of necessity terminated by a declaration of peace be
tween belligerents, or by a cession of territory in dispute,
but may be continued long after war ceases, by pre
sumed assent of the President and of Congress. " The
right inference," says Mr. Justice Wayne, in deliv
ering the unanimous opinion of the Supreme Court, J
" from the inaction of both the President and of Congress,
is, that it (the military government) was meant to be con
tinued until it had been legislatively changed. No pre
sumption of a contrary intention can be made. Whatever
may have been the cause of delay, it must be presumed
that the delay was consistent with the true policy of
the Government." " California and New Mexico were
acquired by conquest confirmed by cession. During the
war they were governed as conquered territory, under
the law of nations, and in virtue of the belligerent rights
of the United States as the conqueror, by the direction
and authority of the President as Commander-in-Chief.
By the ratification of the treaty of Guadalupe-Hidalgo,
on the 20th of May, 1848. they became a part of the
United States, as ceded conquered territory. The civil
governments established in each during the war, and
existing at the date of the treaty of peace, continued in
* Note to Forty-third Edition. — See note on Military Government and Reconstruc
tion, pp. 427-451.
t See Index, " Reconstruction."
I Cross v. Harrison, 16 How. 193.
40
314 MILITARY GOVERNMENT.
operation after that treaty had been ratified. Califor
nia, with the assent and cooperation of the existing gov
ernment, formed a constitution which was ratified by its
inhabitants, and a State government was put in full op
eration in December, 1849, with the implied assent of
the President, the officers of the existing government
of California publicly and formally surrendering all
their powers into the hands of the newly-constituted
authorities. The constitution so formed and ratified
was approved by Congress, and California was, on the
9th of September, 1850, admitted into the Union as a
State. New Mexico also formed a constitution, and ap
plied to Congress for admission ; the application was
not granted, but on the 9th of September, 1850, New
Mexico, and that part of California not included within
the limits of the new State, were organized into terri
tories, with new territorial governments, which took the
place of those organized during the war, and existing
on the restoration of peace." *
Such governments, founded only in and sustained by
war power, are, when peace is officially recognized, en
tirely within the control of Congress.
When the enemy have laid down their arms, and
make no further opposition to the execution of our laws,
there can exist no reason why the President should not
obey and enforce the rules and statutes of Congress,
regulating his own conduct and the military governments
and military tribunals established by him. No reason
could be offered to explain why he should not make
complete and unquestioning submission to the will of
the people. His refusal to do so would subject him to
impeachment.
* Halleck, Int. Law, 828, 829.
MILITARY GOVERNMENT. 315
There seems to be less danger to civil liberty from
the use of military governments and tribunals as tem
porary instruments for carrying on war and of securing
conquest, than from any other mode of employing mili
tary forces.
CHAPTER VII.
IT has been shown in the foregoing chapters, that
the President has authority to establish military gov
ernments over enemy's territory in time of civil war,
because the Constitution, by designating him as Com-
inander-in-Chief of the Army and Navy, confers on him
the right to use, in prosecuting hostilities, all means
which may be necessary and proper for that purpose,
including, as such means, the establishment of military
governments and of military courts, which are not only
the necessary but are the usual means employed by
belligerents in making war, and in securing the objects
for which it has been carried on. This right has been
recognized and sanctioned in several cases by the Su
preme Court of the United States. Our next inquiry
relates to the character and extent of the powers which
may be exercised by military governments.
JURISDICTION OF MILITARY GOVERNMENTS.
To such military governments as are established by
the Commander-in-Chief, in time of war, he may dele
gate more or less power, according to the object for
which he has instituted them.
In the District of Columbia, a military governor has
been appointed for the performance of certain limited
duties essential to the police regulation of the forces
stationed within the defences of Washington, the
treatment of persons under arrest and in prison, and
other important specific duties. In the mean time, the
316
MILITARY GOVERNMENT. 317
sessions of the Supreme Court of the United States, and
of the local courts, and of Congress, and the business of
all the departments of the Government, are undisturbed.
In districts of country declared to be in rebellion,
whose inhabitants are " public enemies," such govern
ments have been commissioned with powers to adminis
ter local, municipal, civil, and criminal law, and with
jurisdiction embracing all persons and all questions
which may arise therein.
There is no other necessary limit to the jurisdiction
of a military governor, than there is to that authority
under which, he received his appointment. The exist
ence of state or municipal governments, or of military,
civil, or ecclesiastical tribunals, established before the
war began, in the rebellious districts, does not affect the
jurisdiction of such governments or courts as may be
erected therein by the war power of the United States.
Since these sections of country have become hostile —
the inhabitants thereof being now public enemies — no
authority of such enemies, executive, judicial, or military,
can be recognized by the conqueror as rightful or legit
imate. No legislature, no judiciary of a public enemy,
can be permitted to retain or exercise any jurisdiction
or control over persons or property found in that region
which is within the military occupation of our army.
The enemy's courts and legislatures derive their right
to ordain and enforce laws from a government at open
war with our own, — one which we refuse to recognize,
and we might as well acknowledge the independence of
the seceding States, and surrender our army and navy
to the insurgents, as to subject ourselves or to allow others
to be subjected to their laws, their courts, or their juris
diction. A public enemy has no right, either by courts
instituted by him, or by any civil, military, or judicial
318 MILITARY GOVERNMENT.
officers appointed by him, to exercise authority in any
locality which is held by our military power. But all
persons and all subjects who are found there, are under
our military control, whether that control be exercised
by soldiers in the field, or by military governors, who
may call to their aid military tribunals, or may even
allow civil tribunals to proceed under military authority.
The only limitations to the jurisdiction of such military
power over persons and property, are such as are de
rived from the laws of war; though in the United
States further limitations may be prescribed by laws of
Congress.
Hence, aliens residing in belligerent districts, non-
combatants, whether neutral, friendly or hostile, persons
engaged in hostility, persons belonging to the invading
country, and accompanying the army, are alike within
the jurisdiction of a military government, and of mil
itary courts duly established therein.
CHAPTER VIII.
THE LAW ADMINISTERED BY MILITARY GOVERNMENTS.
As the powers of a de facto government belong to the
conqueror by the laws of war, he may suspend, modify,
or abrogate all municipal laws of those whom he has
conquered ; he may disregard their former civil rights
and remedies; he may introduce and enforce a new
code of laws, military and municipal, and may carry
them into effect by new military tribunals, having abol
ished all courts and offices held under the authority of
his enemy. *
It has been held by the Supreme Court that " the
laws, whether in writing or evidenced by the usage and
customs of the conquered or ceded country, continue in
force till altered by the new sovereign." *j*
While they continue in force, it is by the express or im
plied permission of the new sovereign, and until altered
by him. They are recognized only as an expression of
the will of the conqueror.J If the law should conflict
with the will of the conqueror, the LAW must yield ;
* Halleck, Int. Law, pp. 830, 831, and cases there cited.
Bovvyer, Universal Public Law, ch. 16, 158.
Fabrigas v. Mostyn, 1 Cowper, 165.
Gardner v. fell, 1 Jacob and Walker, 27.
I 'lemming et al. v. Page, 9 How. 603.
Am. Ins. Co. v. Canter, 1 Peters, 542.
Cross et al. v. Harrison, 16 How. 164.
Heffter, Droit Int'l, sect. 185.
t Strother v. Lucas, 12 Peters, 436, and authorities there cited.
\ For the operation of transfers of territory upon the laws and rights of the inhab-
319
320 MILITARY GOVERNMENT.
otherwise the conqueror would be subjected to the rule
of those whom he has subjugated.
But the local laws of a conquered country may be
changed not only by the law-making power of the con
quering country, but by virtue of the BELLIGERENT rights
of the conqueror.*
All these propositions follow from the fact that the
power of a public enemy to make or administer law is
terminated by the conquest of their territory by a dif
ferent law-making and law-administering power, viz.,
that of the conqueror.
The local laws of a conquered country of which our
army holds military occupation, have no force or effect
whatever, except by our permission.f When such local
laws agree with those of the invading country, such
laws may be, and usually are, adopted and sanctioned
because they do so agree therewith. Thus rules gov
erning the rights of property, the relations of persons,
itants of the territory ceded or conquered, see, among other authorities, the following-,
viz: —
Vattel, B. B. ch. 13, sects. 199, 201.
4 Com. Dig. Ley. (C.)
Calvin's Case, 7 Coke, 170.
Blanhard v. Galdy, 2 Salk. 411 ; S. C. 2 Mod. 222.
Mostyn v. Fabriyas, Cowp. 105.
Hall v. Campbell, Cowp. 204, 209.
Anon. 2 P. Williams, 70.
Exparte Prosser, 2 Br. C. C. 325.
ElpMnstone v. Bedreechund, Knapps, P. C. K. 338.
Exparte Anderson, 5 Ves. 240.
Evelyn v. Forster, 8 Ves. 96.
Sheddon v. Goodrich, 8 Yes. 482.
2 Ves. Jr. 349.
AtVy Gerfl v. Stewart, 2 Meriv. 154.
Gardiner v. Fell, 1 Jac. and W. 77.
8 Wheaton, 589 ; 12 Wheaton, 528-535.
6 Pet. 712; 7 Pet. 80, 87; 8 Pet. 444-405.
9 Pet. 133, 734, 749.
* Cross v. Harrison, 10 How. 199.
t Note to Forty-third Edition. — Several of the seceded States, since the surrender of
the rebel armies, have either passed, or have attempted to enforce, their local laws in
relation to freedmen and colored citizens, which have been forcibly set aside by the
commanders of our military departments under the reconstruction acts.
MILITARY GOVERNMENT. 321
and the laws of crimes in the respective countries of
the belligerents, are often so nearly alike that the ad
ministration of them is permitted to remain unchanged
even in war. But no laws or institutions established
by law are permitted to survive, which are in conflict
with those of the conqueror.
In all cases, the will of the conqueror governs. Hence,
in a ceded or subjugated territory, all laws violating
treaty stipulations with foreign nations, or granting
rank and titles or commercial privileges in conflict with
the institutions of the conqueror, are abrogated.*
It has been asserted that the municipal laws of a
belligerent territory remain in force, "proprio vigore"
until altered by military orders ; but, although such
laws may have been tacitly adopted, or the enforcement
thereof may have been permitted, it is not because
these laws retained any validity " proprio vigor e" Their
only validity was derived from the tacit or express sanc
tion and adoption thereof by the will of the commander-
in-chief of the invading army.
In case of conquest of a foreign country, the ques
tion has been asked, what laws, if any, of the invading
country are ipso vigore, and without legislation extended
over the territory acquired in war ?
The suppression of the present rebellion is not the
conquest of a foreign country. The citizens of the
United States residing in the districts in rebellion are not
alien enemies, though they are public enemies \ and it is
important, in several points of view, to observe the dis-
* Ilalleck, Int. Law, 833, 834, and authorities there cited :
Bowyer, Univ. Pub. Law, ch. 16.
Campbell v. Hall, 1 Cowper, 205.
Fabrigas v. Mostyn, 1 Cowp. 165.
Gardner v. Fell, i Jacob and Walk. 27, 30, note.
Att'y Gen'l v. Stewart, 2 Merivale, 159.
41
322 MILITARY GOVERNMENT.
tinction between enemies who are subjects of a foreign
government, and are therefore called " alien enemies " and
those who are denizens and subjects of the United States,
and being engaged in civil war, are called "public ene
mies"
An alien owes no allegiance or obedience to our
government, or to our constitution, laws, or proclama
tions. A citizen subject is bound to obey them all. In
refusing such obedience, he is guilty of crime against
his country, and finds in the law of nations no justifi
cation for disobedience. An alien, being under no
such obligation, is justified in refusing such obedience.
Over an alien enemy, our government can make no
constitution, law, or proclamation of obligatory force,
because our laws bind only our own subjects, and have
no extra-territorial jurisdiction.
Over citizens who are subjects of this government,
even if they have so far repudiated their duties as to
become enemies, our constitution, statutes, and procla-
tions are the supreme law of the land. The fact that
their enforcement is resisted does not make them void.
It is not in the power of armed subjects of the Union
to repeal or legally nullify our constitution, laws, or
other governmental acts.
The proclamations of the President, issued against
insurgents, in the performance of duties imposed on
him by the Constitution ; the Acts of Congress, in exe
cuting its powers ; and the decisions of the Supreme
Court of the United States, are all, in one respect, " like
the Pope's bull against the comet;" these proclama
tions, laws, and decisions will be alike resisted and
spurned by our adversaries so long as they can carry
on the war. But when the soldiers of the Union
shall have routed and dispersed the last armed
MILITARY GOVERNMENT. 323
force of the rebellion, and when the supremacy of our
military power shall be undisputed, the constitution,
proclamations, laws of Congress, and decisions of the
Supreme Court will at the same time, pari pasm, be
acknowledged and enforced. It is therefore idle to
speculate upon the legal validity and operation of the
proclamation liberating enemies' slaves, in districts not
yet secured by our military possession. It would be
equally useless to attempt to determine the validity and
operation of our constitution, laws, and decisions of
.courts in these rebellious districts. Neither of them
will be enforced upon the enemy until they have been
subjugated. When that event takes place, whether it
be the result of battles or of returning sanity of repent
ant madmen, the army of the United States will then
have actual possession of every portion of the United
States, and of every slave who may be found therein ;
and the right of the slave to his freedom under the con
stitution and under the statutes passed, and the procla
mations issued by the government during the war, will
be secured to him at the same time that other rights
under the same constitution and proclamations will be
secured to the other inhabitants of the country. And
there can be no doubt that in civil war the laws of the
United States, rightfully extending at all times over the
whole country, are to be enforced, so far as applicable,
in time of war, over the belligerent territory as fast as it
comes under our military control ; and that in case of
complete conquest, the constitution and laws of the
Union will be restored to full operation over all the in
habitants thereof. At the same time, the laws of war will
have swept away all local hostile authorities, and all
laws, rights, and institutions resting solely thereon.
324 MILITARY GOVERNMENT.
The Commander-in-Chief has the right, during war
to treat their local laws as inoperative, or to adopt some
and reject others ; to permit the holding of courts by
local authorities acting under military power of the
conqueror, or to forbid them, and to substitute military
courts of his own. Having all the rights of war over
the subjugated inhabitants, he has all the powers of a
government de facto and de jure, and can therefore im
pose upon them whatever laws or regulations may suit
his pleasure, in accordance with the laws of war. The
LAWS OF WAR are the only laws required by the Consti
tution to be laid by military, power upon public ene
mies in time of civil war. Congress may modify by
legislation the hardship of belligerent rights.
But whatever may be done or omitted by the Presi
dent or by Congress, the laws and municipal institutions
of the conquered inhabitants are " swept by the board."
Whatever law is rightfully administered, is law expressly
declared or tacitly permitted by the will of the con
queror.*
JUDICIAL COURTS OF THE UNITED STATES.
The courts judicial, as established by laws of Con
gress in the seceded States, having been closed by civil
war, may be reestablished whenever the districts over
which they have jurisdiction shall be permanently re
duced under the power of the United States.
When the officers of such courts, either by engaging
* For authorities on this question, see
Halleck, Int. Law, 832.
Calvin's Case, Coke's Rep. part 7.
Gardner v. Fell, 1 Jacob and Walker, 22.
Cross v. Harrison, 10 How. 1G5.
Collet v. Lord Keith, 2 East. 260.
Blankard v. Guldy, 4 Mad. 225.
MILITARY GOVERNMENT. 325
in rebellion or otherwise, have become in law public
enemies, their right to exercise judicial or other func
tions under authority of the United States ceased, and
their offices were vacated. If new appointments were
to be made now, it is obvious that the authority of
courts could be enforced only by military power ; their
jurisdiction would be very limited ; such juries as they
could summon would probably be hostile to the Union,
and the powers of judges, under present laws, would be
be totally inadequate to meet the demands of these
turbulent times. Hence it would be worse than useless
to erect judicial courts before peace is completely re
stored.* It would tend to bring the judiciary into con
tempt. Therefore it can hardly be deemed advisable to
interfere with the stern, effective, but necessary gov
ernment of hostile people by military power, until
Congress shall by legislative act recognise a state of
peace.f
* See remarks of Chief Justice Chase, at Raleigh, N. C., in June, 1866: Appendix, 596.
t Note to Forty-third Edition. — Since this was written, the condition of the rebel
States has changed. They have all been restored to the Union under the provisions of
the reconstruction acts, and by the instrumentality ol military governments.
WAR CLAIMS,
AGAINST
THE UNITED STATES
PREFACE TO THE WAR CLAIMS.
THE following essay on claims against the United States for
injuries done to the persons and property of foreigners by our
military and naval forces during the war, was in substance pre
pared while the author was Solicitor of the War Department. In
pursuance of an understanding with Mr. Seward, Secretary of
State, and Mr. Stanton, Secretary of War, a practice was adopted,
and adhered to throughout the war, of referring to the Solicitor
of the War Department for his investigation and opinion such
claims against the United States for damage or indemnity, grow
ing out of our military operations, as had been or should be pre
sented by the ministers or other representatives of foreign powers.
The results of such investigations were transmitted in writing to
the Secretary of State, who was at liberty to make such use of
them as he thought proper in preparing his official correspondence.
The Opinions appended to this essay, which embrace some of
those above mentioned, were written under great pressure of
business. It is hoped that, however imperfect in style, they may
be found correct in substance. The essay on " War Claims " was
composed at the request of the Secretary of State, in order to
facilitate the labors of those on whom, after the author's retire
ment from office, the duty might devolve of examining similar
42
330
PREFACE TO THE WAR CLAIMS.
questions;* and with a view to secure uniformity of decisions by
the government. The first printed edition was issued in 1866,
and was distributed among the officers of the War, State, and
Navy Departments, and has been in use down to the present
time. A request for a new edition has induced the author to add
it to the present publication, with the subject matter of which it
is closely connected.
* The office of Solicitor of the War Department was created by Statute 20 February,
1803, Chap. 44, Sect. 3. The author was appointed Solicitor under this act at the time of
its passage. Although he resigned his office when the war was over (in April, 1865), and
the law which established it was not repealed until the passage of the act of 28th July,
1806, no successor was ever appointed.
WAR CLAIMS
AGAINST
THE UNITED STATES.
THE inhabitants of countries involved in domestic or
civil war are liable to suffer injuries to their property
and to their persons by the military operations of both
belligerents. Whether they have legal claims to in
demnification for losses sustained by them depends
upon their political status, as defined and recognized by
the law of nations, or by treaties, or by the constitu
tions and laws of the community with which they have
been associated. In order to discern with more clear
ness the political relations of the claimants to the gov
ernment, it should be observed that our citizens, when
carrying on war against a foreign enemy, differ widely
from rebels in arms against their lawful government
as to their respective rights and liabilities, as defined
by international or belligerent law and by the consti
tution and laws of the United States. Kebels in civil
war, if allowed the rights of belligerents, are not enti
tled to all the privileges usually accorded to foreign
enemies. An alien enemy is a public enemy ; but a
(331)
332 WAR CLAIMS AGAINST THE UNITED STATES.
public enemy may not be an alien enemy. As the
rightful authority of our government over its rebellious
subjects, who have become public enemies, is far
greater than it would be over alien enemies, it is not
wise or prudent, in the present condition of our coun
try, to surrender or to underrate that authority.
Of persons who now demand indemnity there are two
classes : 1st, Those whose property has been used, cap
tured, or destroyed by rebel armies ; and, 2d, Those who
have suffered similar injuries by the military operations
of the national forces. That the political relations of
this second class to the general government may be
more distinct!}^ defined, it will be found convenient to
arrange these claimants in the following order : —
1. Loyal citizens of the United States domiciled in
the loyal States.
2. Disloyal citizens of the United States who have
given aid and comfort to the rebellion, although they
have retained their domicile in the loyal States.
3. Loyal citizens of the United States domiciled in
the Confederate States.
4. Disloyal citizens of the United States domiciled in
the Confederate States, being such as have aided or
favored the rebellion, or such as have remained non-
combatants.
5. Aliens, within the United States, owing allegi
ance to a foreign government.
Claims to compensation for injuries inflicted on
aliens during the rebellion will be the subject of the
following observations : The rights of our own citi
zens to indemnity may be the subject of a subsequent
examination.
EFFECT OF CONCEDING BELLIGERENT RIGHTS. 333
Foreigners dwelling or being within the United
States during the war may be distinguished as fol
lows : —
1. Those who have given aid to the rebellion.
2. Those who have been naturalized under the laws
of the United States.
3. Neutral non-naturalized aliens who have exer
cised the elective franchise in either of the loyal
States.
4. Neutral non-naturalized aliens who have acquired
a permanent domicile in the United States, and were
inhabitants thereof during the war, either, («.) in the
rebel States, or, (#.) in the loyal States.
5. Neutral non-naturalized aliens, who, when hos
tilities commenced, were merely travellers passing
through the rebel States ; or were inhabitants thereof
for some limited purpose, and had a temporary resi
dence, but not a personal domicile, therein ; of whom
there are, (a.) those who chose to remain during the
war ; and, (#.) those who, within reasonable time,
withdrew their persons and their property from the de
facto rebel jurisdiction.
6. Neutral aliens, whose mercantile domicile was in
the rebel States, whatever may have been the place of
their personal domicile.
With regard to claims for depredations committed
by rebels, it is sufficient to observe that the concession
of belligerent rights to the so-called government of the
Confederate States by a European power, releases the
United States from all claims for injuries inflicted upon
the subjects of that power by the hostile operations of
the Confederate forces. If the acts of our rebellious
citizens, injurious to foreigners, had been deemed and
334 WAR CLAIMS AGAINST THE UNITED STATES.
treated as merely insurrectionary, we might have been
liable to indemnify foreigners against them; but no
liability for their acts exists in cases where rebellious
citizens are clothed by foreign nations with the immu
nity of belligerents, and are admitted to the quasi
national rank of combatants in civil war. If aliens
have any claim for losses or injuries occasioned by the
hostilities of the Confederate government, to that gov
ernment alone they must look for compensation. The
law of war requires no nation to indemnify neutrals for
injuries inflicted on them by its enemy.*
^The practice of modern nations has established cer
tain general rules of public law which declare the rights
of neutrals and of belligerents in civil as well as in
international wars ; and of these the following deserve
especial attention in dealing with the rights and liabil
ities of foreigners.
" Aliens resident here owe allegiance to the United
States ; so if they are abroad and leave their families
here." f
Fhgrante Mlo no subject of a belligerent can transfer
allegiance, or acquire foreign domicile, by emigration
from his own country, so as to protect his trade against
the belligerent laws of that country, or against those
of a hostile power. %
Every nation, whenever its laws are violated by any
one owing obedience to them, whether he be a citizen
or a stranger, has a right, with certain exceptions, to
* See Letter of Mr. Canning to Mr. Del Rios, March 25, 1825. Papers relating to For-
ei-n Affairs, p. 89. Mr. Adams, June 11, 1801. Mr. Black to Lord Lyons, Jan. 10, 1801.
Cong. Doc. 36 Cong. 2d Sess. Wheaton's Int. Law, p. 41, note of Mr. Lawrence.
f 3 Greenlcaf on Evidence, p. 239, note.
\ Ilallcck, Int. Law, 717, sect. 20, and cases there cited.
GENERAL RULES. 335
inflict the penalties incurred upon the transgressor, if
found within its jurisdiction.*
" When a nation is at war with another nation, all the
members of the one nation are the enemies of the other
nation. This rule of joint association in war applies to
adopted citizens equally as to natural born citizens." f
In the language of Grotius, "All the subjects of the
sovereign from whom an injury has been received, who
are such for a permanent cause, are liable to the law of
reprisals, whether they be natives or citizens." J
" Strangers who come into an enemy's country after
a war has been begun and is known to exist, may, un
doubtedly, be treated as enemies ; and those who have
gone thither before the war commenced, may, by the
law of nations, be taken for enemies after a moderate
time within which they should depart." §
" Foreigners who, by acquired domicile, participate in
the commercial privileges of the citizens or subjects of
a country, must also share the inconveniences to which
the latter are subjected." ||
" It is undoubtedly a principle of international law,"
said Lord Palmerston in relation to claims against us
of British merchants, growing out of our bombardment
of Grey town, " that when one government deems it right
to exercise acts of hostility against the territory of an
other power, the subjects and citizens of third powers,
* See Mr. Marcy's Letter to Mr. Jackson, charge d'affaires at Vienna, Jan. 10, 1854.
Con-. Doc. 33 Cong. 1 Sess. H. K. Ex. Doc. 41. Huberus, torn. ii. 1. i. tit. 3, De Conflict.
t Tvviss, Law of Nations, vol. i. p. 82.
i Grotius, DC Jure B. et P., L. III. c. 2, § 8, 2.
§ Grotius, De Jure B. et P., L. III. c. 4, § (5, 7.
|| Wheaton, p. 173, note 59. See answer of Mr. Marcy, Secretary of State, Feb. 20, 1857,
M. de Sartiges, Minister of France, in reply to his application for indemnity for prop
erty of French subjects destroyed by the naval forces of the United States in the bombard
ment of Greytown. See Senate Ex. Doc. No. 9, 35 Con<r 1st Sess
336 WAR CLAIMS AGAINST THE UNITED STATES.
who may happen to be resident in the place attacked,
have no claim whatever upon the government which,
in the exercise of its national rights, commits these acts
of hostility."
In this opinion the attorney-general concurred ; and
he stated that France, as well as England, had refrained
from making demand on the United States for satisfac
tion for losses incident to the destruction of that ill-
famed town. " The principle which governs these cases
is, that the citizens of foreign states who resided within
the arena of war had no right to demand compensation
from either of the belligerents for losses or injuries sus
tained." He alluded to the bombardment of Copen
hagen, as an historical case in point*
To the same effect was Lord Pahnerston's answer in
the House of Commons to the inquiry of Mr. Adams
"whether it was his intention to introduce any measure
enabling Her Majesty's government to compensate
British merchants whose property at Uleaborg, in the
Gulf of Bothnia, had been destroyed on the 2d of June,
1854, by the boats of a squadron under command of
Admiral Plumridge." After referring to his decision
in the case of Greytown, he said " that the British sub
jects holding property at Uleaborg had had such prop
erty destroyed by hostile movements of the British
navy against the Russians; but that they must take
their chance of the protection of the Russian empire :
and if the place where their property was situated
became the scene of hostile operations, no claim could
possibly be set up by these persons, whatever country
* See Hansard, Parl. Deb. 3d Series, vol. cxlvi. pp. 37, 49. Debate iu H. of Com., June
19, 1857.
HOSTILE ALIENS. 337
they might belong to, against the government whose
forces carried on the hostilities by which they had been
made to suffer." *
"By the law of nations all the subjects of an offend
ing power, whether they are natural born subjects or
persons who have acquired a domicile in his territory
by long residence therein, are liable in their persona
and their property to the operation of reprisals made
against that power ; but individuals who may be
only temporarily resident in the country, or travelling
through it, do not thereby incur any liability to re
prisals; for the liability to undergo reprisals is as it
were a liability to share the burden of a public debt to
which those are not liable who are subject to the laws
of a country only for a time." f
1. Aliens engaged in active } hostilities against the
United States, or in aiding the rebellion, forfeit all
rights as neutrals, and are subject to be treated as
alien enemies, according to the law of nations. More
over, by associating themselves with rebels, they violate
certain acts of Congress, and, if convicted, incur the
penalties therein provided. The allegiance they owe
to a foreign government wall shelter them from con
demnation or punishment under our laws against trea
son, but cannot protect them in committing offences
against other statutes. The rebel flag will be no safe
guard to the hostile foreigner who slaughters and plun
ders the citizens and subjects of a country with which
* See Hansard, Parl.Deb., June 17, 1857, vol. cxlvi. p. 1045.
* Twiss, Law of Nations, vol. i. p. 38. Grotius de Jure Belli, L. III. c. 2, § 7. It was
decided in 1853 by a joint commission, to which was referred the claims of Laurent and
other Europeans who were in Mexico when Gen. Scott invaded that country, and who
demanded damages for losses occasioned by the American army, that when a foreigner
holds real estate in a country he identifies himself with the fortunes of the citizens of
that country, in peace or war, and must abide all consequences.
43
338 WAR CLAIMS AGAINST THE UNITED STATES.
his own sovereign is on terms of friendship or neutral
ity. If his body be mutilated, or if his property be
captured or destroyed in the regular prosecution of
hostilities, he can have no moral or legal claim for
indemnity against the government which he has at
tempted to overthrow. He must share the misfortunes
of those with whom he has voluntarily associated him
self, and must blame his own folly or wickedness for
all the evils he may have to endure. No foreign coun
try, which claims to be neutral or friendly^ to the
United States, can lawfully afford protection against
the hazards of war to its citizens who have taken up
arms against us. Such hostile foreigners, being our
enemies, can look for indemnification only to that pre
tended or de facto government in whose service they
have enlisted.*
2. Aliens who have been naturalized under the
laws of the United States have become citizens, and
are by statute entitled to nearly the same rights, and
are charged with the same duties, as native born citi
zens^ although they are (by the 12th Amendment of
the Constitution) not eligible as Presidents or Yice-
Presidents. But if a foreigner, resident in this country,
has not been naturalized according to law, his personal
status will continue to be that of an alien, " and if war
should arise between his native country and the coun
try in which he has established himself, his personal
relation with the latter country will be that of an alien
enemy r J
It is not necessary to consider the rights of aliens
who have become our enemies, or of those who have
* See Solicitor's Opinions, Nos. 95, 357, 707, 713, 935.
t Act H April, 1802, § 1.
J Twiss, Law of Nations, vol. i. p. 90.
ALIENS NATURALIZED, OR NOT NATURALIZED. 339
renounced allegiance to all foreign potentates, since no
claims on their behalf are likely to be presented by
European governments.
3. (#.) Aliens not naturalized, not having renounced
their allegiance to their sovereigns, if they have at
any time assumed to exercise the rights of an American
citizen by voting at any election held under the author
ity of the laws of any State or Territory, or of the
United States, or if they have held any office under
any of such laws, are not exempted from enrolment
or draft under the provisions of the acts for enrolling
and calling out the national forces, and the act amenda
tory thereof. *
The LTWS of the United States do not permit for
eigners to enjoy the privileges without incurring the
obligation of citizens to support and maintain, against
public enemies, that government in the administration
of which they have voluntarily participated. Hence,
whatever loss or damage to person or property may
have been occasioned by, or may have resulted from,
the performance of this duty, does not lay the founda
tion for any claim of indemnification.
3. (#.) Foreigners not naturalized, and not coming
within this exception, being friendly or neutral, and
having committed no act of hostility against the United
States, also being domiciled in the loyal portions of
the country, are not subject to do military duty, nor to
have their property taken from them, nor to suffer
unlawful injury to their persons by the military forces
of the United States otherwise than if they were citi
zens; yet the government is not bound to give their
* See Act 3 March, 1863, and Act 24 Feb., 1864. Proclamation of the President. 8 May,
1863.
340 WAR CLAIMS AGAINST THE UNITED STATES.
persons or their property more protection than it is
required by law to give, under like circumstances, to
its own subjects, unless otherwise obligated by treaty
stipulations. The Constitution provides that private
property of citizens shall not be appropriated to public
use without just compensation ; but this provision has
no application to the capture or destruction of enemy's
property in time of war, whether the enemy are for
eigners or citizens of the United States. The destruc
tion or capture of the property of loyal citizens by
military forces invading the loyal States, is not an
appropriation of property by our government. Nor
are we bound by the Constitution, or by any law of
Congress, to indemnify our own citizens for losses thus
occasioned. Still less clo we owe such indemnity to
foreigners. But if the private property of loyal citizens,
inhabitants of loyal States, is appropriated by our military
forces for the purpose of supplying our armies, and to
aid in prosecuting hostilities against a public enemy,
the government is bound to give a reasonable compen
sation therefor to the owner ; and under like circum
stances, it is obligated to give just compensation to
neutral foreigners. But property of such citizens and
of such foreigners may be destroyed by our military
forces, under certain circumstances, without liability to
pay for it. Thus, if one of our armies marches across a
cornfield, and so destroys a growing crop, or fires a
building which conceals or protects the enemy, or cuts
down timber to open a passage for troops through a
forest, the owner of such property, citizen or alien,
has no legal claim to have his losses made up to him
by the United States. Misfortunes like these must be
borne wherever they fall. If any government is obli-
DOMICILE. 341
gated to guarantee its subjects against losses by casual
ties of public war, such obligation must be founded
upon some constitutional or statute law. Thus far no
such obligations have been recognized in our system
of congressional legislation.
DOMICILE.
In examination of the political status of all classes
of aliens, it will be necessary in nearly every case to
determine the question of domicile of the claimant;
and it may be convenient here to define the meaning
of the word domicile, as now understood by writers on
international law.
" According to the law of nations, when the national
character of a person is to be ascertained, the first
question is, In tvhat territory does he reside, and is he
resident in that territory for temporary purposes, or
permanently ? If he resides in a given territory per
manently, he is regarded as adhering to the nation to
which the territory belongs, and to be a member of the
political body settled therein. If he is only resident in
a given territory for temporary purposes, he is regarded
as a stranger thereto ; and a further question must then
be asked, In what country is his principal establish
ment, and ?6>/^r£, when he has returned, does he consider
himself to be at home ? The country which satisfies
the conditions implied in this further question is desig
nated, in the language of public law, the domicile of the
individual, which Vattel defines as ' a fixed residence
in any place with the intention of always remaining
there.' " *
* Twiss, Law of Nations, vol. ii. p. 233. Grotius, Droit dcs Gens, L. I. § 217.
342 WAR CLAIMS AGAINST THE UNITED STATES.
A foreigner may have his personal or permanent
domicile in one country, and at the same time his
constructive or mercantile domicile in another. The
national character of a merchant, so far as relates to his
property engaged in trade, is determined by his com
mercial domicile.* "All such persons" (viz., all who
have become subjects of the sovereign from whom an
injury has been received, and who are subjects for a
permanent, not transitory cause, whether natives or
citizens ; and all who came to reside within the country
of a belligerent power with knowledge of the existence
of war ; and all who came into the country before the
war, and continue to reside there after the commence
ment of hostilities for a longer time than is necessary
for their convenient departure) "are de facto subjects
of the enemy sovereign, being resident within his ter
ritory, and are adhering to the enemy so long as they
remain within his territory. If, however, they quit the
enemy's territory with the intention of abandoning it,
and resuming a permanent residence in the country of
their origin, they divest themselves of the hostile char
acter at once upon so quitting the enemy's territory." -j-
A neutral, or a citizen of the United States, domi
ciled in the enemy's country, not only in respect to his
property, but also as to his capacity to sue, is deemed
as much an alien enemy as a person actually born under
the allegiance and residing within the dominions of the
hostile nation ; J but a party's putting himself in itinere
* Halleck, Int. Law and Laws of War, p. 714.
t 1 Twiss, L. of N., vol. i. p. 83.
Since the publication of the last edition, Congress has passed the Act 1808, ch. 71 —
which provides that the party asserting- the loyalty of any person in a proceeding in any
court must prove it ; and that voluntary residence in rebel States is prima facie evidence
of having given aid and comfort to the rebellion.
J 2 Gallison, 205, Society v. Wheeler.
ALIENS DOMICILED IN THE UNITED STATES. 343
to return to his native country, will exempt property
from a hostile character acquired by residence where
such property has been engaged in a trade lawful in
the native character, and not otherwise.*
4. In relation to neutral or friendly aliens who have
acquired a permanent personal domicile in the loyal
States before or during the war, few if any questions
have arisen ; and their rights are so well defined under
the settled principles of international law, and by trea
ties of friendship and commerce between the United
States and foreign nations, that their claims to protec
tion or indemnity require no especial attention at the
present time ; but neutral or friendly aliens, who, be
fore the war began, had acquired a permanent personal
domicile in the States declared in rebellion, and who
did not, within reasonable time after the commence
ment of hostilities, withdraw from those States, are
by that law held to be public enemies of the United
States ; themselves and their property are liable to the
same treatment as the persons and property of other
public enemies.*)"
The proclamations of the President, and the acts of
Congress against districts of country engaged in rebel
lion, include all the inhabitants thereof, without exception,
and recognize them as public enemies. J One of these
acts expressly refers to aliens.§
* 1 Gallison, 467, The St. Lawrence. Ibid. 614, TJie Francis.
t Twiss, L. of N., vol. i. p. 82. Grotius, de B. et P., L III. c. 2, § 7.
| Act of Congress, 13 July, 1861, ch. 3. Proclamation, 6 Aug. 1861. Proclamation,
2 April, 1863.
§ Act July 2, 1864, ch, 225, sect. 4.
By this act it is provided that "the prohibitions and provisions of the act approved
July 13, 1861, and of the acts amendatory or supplementary thereto, shall apply to all
commercial intercourse by and between persons residing1 or being within districts within
the present or future lines of national military occupation in the States or parts of
States declared in insurrection, whether with each other or with persons residing or being
344 WAR CLAIMS AGAINST THE UNITED STATES.
The law of nations fully sanctions such legislation
against those foreigners who prefer to take their chance
under the rebel government rather than to rely on the
protection of their lawful sovereign, and to entitle
themselves to that protection by withdrawing from the
enemy's country. They have the moral and legal right
to remain in the hostile jurisdiction ; but so remaining,
they must take the hazards of the community with
which they choose to cast their lot. Their continued
residence in a rebellious district lends voluntary aid
and countenance to the enemies of the Union by their
presence, and by their property, which becomes liable
to contribute, ty taxation and otherwise, to the support
of the rebellion. The means of carrying on war are
thus, in part, supplied by those aliens who continue to
associate themselves with rebels. Their property, found
on the sea, is lawful prize, or if captured on land, it is
lawful capture. It is not material to ascertain whether
the sentiments or conduct of aliens so domiciled are
hostile or friendly towards the Union. The fact of
remaining, without effecting a removal of their persons
and property from the enemy's country within reasona
ble time after the commencement of hostilities, is
conclusive evidence that they are to be deemed in law
public enemies. If the government, of whom they are
subjects, has recognized a state of civil war, and has
conceded to the rebels belligerent rights, all such sub
jects are bound by the act of their government to elect
either to withdraw within reasonable time after such
recognition and concession, or else to be forever after
within districts declared in insurrection, and not within those lines; and that all per
sons within the United States, not native or naturalized citizens thereof, shall be subject
to the same prohibitions in all commercial intercourse with inhabitants of States or
parts of States declared in insurrection, as citizens of loyal States are subject to under said
act or acts."
ALIENS HAVING TEMPORARY DOMICILE HERE. 345
estopped from making any claims for indemnity other
than those which could be rightly made by public ene
mies of the United States.*
5. Another class of neutral aliens consists of those
who, at the commencement of the war, had a tempo
rary residence, or were merely travellers, and had not
acquired a permanent personal domicile in the Confed
erate States. As travellers, or as temporary residents,
they had the right to retire and withdraw their prop
erty from the rebellious districts. They were bound to
do so, or else to be treated as public enemies. After
the war began, and, perhaps, after their own govern
ment had conceded to the rebels the rights of belliger
ents, they were entitled to have reasonable time in
which they might remove from the country. But if they
remained, and, assuredly, so long as they remained,
after the expiration of that time, they could not, and
cannot, complain of being subject to the same treatment
as those with whom they have chosen to associate.
If alien denizens of the Confederate States were pre
vented from leaving the country, or from withdrawing
their property, by the Confederate government, or by
any persons acting under their authority, these aliens
may claim indemnity from that government, if it can
be found ; but the concession of belligerent rights to
the Confederates by a foreign country estops it from
making any claim against us for wrongs inflicted by
our public enemies upon its subjects during the war.
If the United States government, by any law or
authorized act of its officers, military or civil, prevented
the exercise of the right of the alien to withdraw from
* Since the publication of the last edition of this essay, the principles above stated have
been sanctioned by an unanimous decision of the Supreme Court of the United States in
the case of The Peterhoff, 5 Wallace, CO, 180G-7. See also The Venice, 2 Wallace, 274.
44
346 WAR CLAIMS AGAINST THE UNITED STATES.
the country upon an authenticated application made
by such alien to the proper authority, and if injury was
suffered in consequence, the alien is entitled to indem
nity. Yet an alien may lose his right to indemnity if
he violates any of the laws of war, the proclamations
of the commander-in-chief of the army, or the acts of
Congress which regulate intercourse with the enemy.
He cannot invoke to his aid laws which he has violated.
6. The claims to indemnity next to be considered
are those of neutral aliens whose mercantile domicile
was, at the beginning of the war, in the Confederate
States, whatever may have been the place of their
personal domicile.
"In general." says Wheaton,* "the national char
acter of a person, as neutral or enemy, is determined by
that of his domicile ; but the property of a person may
acquire a hostile character independently of his na
tional character, derived from personal residence. Thus
the property of a house of trade established in the
enemy's country is considered liable to capture and
condemnation as prize. This rule does not apply to
cases arising at the beginning of a war in reference
to persons who, during peace, had habitually carried
on trade in the enemy's country, though not resident
there, and are therefore entitled to withdraw from that
commerce. But if a person enters into a house of
trade in the enemy's country, or continues that con
nection during the war, he cannot protect himself by
mere residence in a neutral country"-^
* P. IV. ch. i. sect. 19, p. 573.
f 1 Rob. Adm. Rep. p. 1, The Vigilantia. 2 Ibid. p. 255, The Susa. 3 Ibid. p. 41, The
Portland. 5 Ibid. p. 297, The Jonge Klassina. 1 Wheaton's Rep. p. 159, The Antonia
Johanna. 4 Ibid. p. 105, The Friendschaft.
ALIENS HAVING COMMERCIAL DOMICILE IN UNITED STATES. 347
"A naturalized citizen, for the purposes of trade,
returned to his native country in time of peace, but
with the intention of coming back to his adopted
country. He remained in his native country twelve
months after war had broken out between the two
countries, for the purpose, of closing his business
(though he engaged in no new commercial transactions
with the enemy), and then returned to his adopted
country. It was held by the court that he had
regained a domicile in his native country, and that his
goods, captured after the war, were liable to con
demnation."* The property of all the partners in a
trading house in the enemy's country is lawful prize,
though some of the partners have a neutral residence.
The property of a person may acquire a hostile char
acter although his residence be neutral.f The consul
of a neutral state, residing and trading in a belligerent
country, is domiciled in the belligerent's country, and
his property is liable to capture and confiscation even
if owned in partnership with other neutrals. J
The commercial domicile of a merchant aNt the time
of the capture of his goods determines the character of
those goods.§ If a citizen of the United States estab
lishes his domicile in a foreign country, between which
and the United States hostilities afterwards break out,
property shipped by such citizen before a knowledge
of the war, and captured by an American cruiser after
the declaration of war, must be condemned as lawful
prize.\\ The property of a house of trade established in an
* The Francis, 8 Cranch R. 355.
t The St. Indiana, 2 Gallis, II. 268.
| Arnold v. U. S. Ins. Co., 1 Johns. Cases, 363.
§ TJie Francis, 8 Cranch R. 363.
|| The Venus, 1 Gallis. 11. 253.
C\-
348 WAR CLAIMS AGAINST THE UNITED STATES.
enemy's country is condeinnable as prize, whatever may
be the domicile of the parties.* Goods which appeared
by the ship's papers to be a consignment from alien
enemies to American merchants were condemned in
ioto as prize,, although farther proof was offered that
American merchants VTQTQ jointly interested, and that they
had a lien upon the goods, in consequence of advances
made by them.f A foreign merchant, domiciled in
the country of the enemy, is himself an enemy in
the same sense and to the same extent as a native
subject. J
" The national character of the political agent of a
neutral state, who is resident in a belligerent country,
is not affected by such residence, whatever may have
been the duration of such residence ; but it is otherwise
with a commercial agent. A consul does not participate
in the privilege of extraterritoriality, which a political
enemy enjoys; and if he is personally engaged in
the commerce of a belligerent country, his consular
character affords no protection to his mercantile ad
ventures." §
The belligerent rights of the United States against
the property of an alien merchant are determined by
the hostile or neutral character of the place where his
trade is carried on. Neutral aliens, not naturalized,
* The Friendschaft, 4 Wheat. R. 105. The Antonia Joanna, 1 Wheat R. 169.
t The Francis, 8 Craneh R. 335.
J 3 Phillmore, Int. Law, § 85. 1 Duer on Insurance, 523. 4 Rob. Rep. 119, Anna
Catherina. 3 Ibid. 41, The Portland. 1 Ibid. 14, The Nancy. 4 Wheat. 107, The Friends-
chaff. 2 Gallis. 268, The San Jose Indiana. Halleck on Int. Law, 721.
§ 1 Twiss, 315. Lord Stowell's opinion in Concordia, Lords, 5 Feb., 1782. Het. Huys,
Lords, 16 July, 1784. The Pigou, Lords, 18 July, 1797. The Orion, Admiralty Court,
24 March, 1797. The Sarah Christina, 1 Rob. Chan. 238.
NEUTRAL OR FRIENDLY ALIENS. 349
and not having exercised any of the rights of citizen
ship, whether domiciled in the United States, or only
carrying on trade here at the beginning of the war,
are entitled to withdraw themselves and their property
into another country within a reasonable time after
hostilities, have been commenced. If they do not thus
withdraw, they are liable to be treated, so far as relates
to their property, as alien enemies, and as subjects of
the hostile government de facto under whose dominion
they have carried on their trade.
To the right of neutral or friendly aliens to with
draw property from the enemy's country, there are
some limitations. The produce of an enemy's territory is
to be considered hostile property so long as it belongs
to the oiuner of the soil, whatever may be his national
character in other respects, or whatever may be his
place of residence. This exception to the general rule
is well established in the courts of England and of the
United States.*
" Certainly nothing can be more decided and fixed,"
said Sir William Scott, in pronouncing judgment in the
case of The Phoenix, " as a principle of this court and of
the Supreme Court upon very solemn argument there,
than that the possession of the soil does impress upon
the owner the character of the country so far as the
produce of that plantation is concerned, in its trans
portation to any other country, whatever the local
residence of the owner may be. This has been so
repeatedly decided, both in this and the Superior Court,
that it is no longer open to discussion. No question
* The Venus, 1 Cranch, 8, p. 253. The Phoenix, Robinson's Admiralty K. V. p. 21.
The Vrou Anna Catharina, V. Rob. Adm. R. 1(57.
350 WAR CLAIMS AGAINST THE UNITED STATES.
can be made upon the point of law at this day." " It
cannot be doubted/' says the same judge, in the Anna
Catharina, " that there are transactions so radically and
fundamentally national as to impress upon them the
national character, independent of peace or war, and the
local residence of the parties. The produce of a per
son's own plantation in the colony of the enemy, though
shipped in time of peace, is liable to be considered the
property of the enemy, by reason that the proprietor
has incorporated himself with the permanent interests
of the nation as a holder of the soil, and is to be taken
as a part of that country, in that particular transaction,
independent of his own personal residence and occu
pation."
The Supreme Court of the United States * has con
firmed and extended this doctrine. In the case referred
to, the claimant, a Dane, owned a plantation in Santa
Cruz. That island, then belonging to Denmark, was
captured and held by Great Britain for a time. The
claimant withdrew from it at the date of its surrender,
and returned to his native country. While he was still
in Denmark, his agent at Santa Cruz shipped a cargo
of sugar, which was the produce of his plantation,
and it was captured at sea by a United States cruiser
as enemy property, during our last war with England.
Although Denmark was a friendly power, and the
claimant was also, so far as appears, well disposed
towards the United States, the sugar, being the prod
uce of a plantation in an island which, at the time
of shipment, was in the actual possession and control
of England, then our enemy, was held to be lawful
prize of war, and was condemned as such.
* Thirty Hogsheads of Sugar, Beiizon, claimant, 9 Cranch. K. 191-199.
OPINIONS OF THE SUPREME COURT. 351
" The opinion," says the Court, " that the ownership
of the soil does, in some degree, connect the owner
with the property, so far as respects that soil, was an
opinion which prevailed very extensively. It was not
an unreasonable opinion. Personal property may fol
low the person anywhere ; and its character, if found
on the ocean, may depend on the domicile of the owner.
But land is fixed. Wherever the owner may reside,
that land is hostile or friendly according to the con
dition of the country in which it is placed. It was no
extravagant perversion of principle, nor was it a violent
offence to the course of human opinion, to say, that the
proprietor, so far as respects his interest in the land,
partakes of its character, and that its produce, while
the owner remains unchanged, is subject to the same
. disabilities." *
An act of the Congress of the Confederate States,
approved May 6, 1861, recognized and declared war
with the United States, and authorized the use of
ill their land and naval forces, and the issue of letters
of marque and reprisal. By an act approved Au
gust 8, 1861, all citizens not acknowledging the au
thority of the Confederate government, with certain
exceptions, were ordered to depart from the Confeder
ate States, and were declared public enemies.~[
The Judges of the Supreme Court of the United
States, in the recent case of the Hiawatha and other
prize cases,J having unanimously agreed in the opinion
* Whenton's Int. Law, Part IV. chap. i. § 21.
f Statutes of the Provisional Congress, pp. 100, 101 . Acts of the Provisional Congress,
chap. 19, p. 174.
t 2 Black's S. C. Rep. 638. For analysis of these opinions, see pp. 238-243.
352 WAR CLAIMS AGAINST THE UNITED STATES.
that the districts of country declared by the proclama
tions of the President to be in rebellion, and which
were included in the non-intercourse act of July 13,
1861, were, after the passage of that act, to be treated
by the courts as engaged in civil war, and that the in
habitants thereof were public enemies of the United
States,* and were liable to all the disabilities of belli
gerent enemies, it follows that the principles of law as
above stated inter gentes, equally apply to our civil waivj*
Hence no neutral or friendly alien, whatever his domi
cile during the war, has the right to claim indemnity
for the capture or destruction, by the forces of the
United States, of property which was the produce of his
own plantations in any district of the country which
was declared in rebellion ; nor has he any right to with
draw that property from the belligerent country, unless
by virtue of express treaty stipulations, or special au
thority granted to him in pursuance of the laws of the
land.
Provision has been made by treaties between the
United States and some foreign nations, whereby, in
case of war breaking out between the two nations, it is
stipulated that merchants of either nation, in the towns
or cities which they inhabit, should be allowed six
months after the declaration of war, to collect and
transport their merchandise ; and that, should they suffer
* For an examination of the cases on this subject, and the action of all departments
of our government, see Military Government, pp. 290-306.
t The decision that the inhabitants of those parts of the country which have been
declared in rebellion are, by the laws of war and under the Constitution and laws of the
United States, public enemies, rests upon the authority of the political departments of our
government. That decision is binding on the judiciary, whose duty is to recognise and
conform to it. That duty has been honorably performed by the Judges of the Supreme
Court in the above-cited cases, in which they decide whether certain ships and cargoes
were or were not lawful prizes.
RIGHTS AND DUTIES OF ALIENS. 353
any damage or injury in the mean while, at the hands
of the citizens or subjects of either of the contracting
parties, they should have full and entire satisfaction.
As this privilege, which is deemed, by some authorita
tive writers on international law, a right by the com
mon law of war, is conceded to certain foreigners
when their country is in open hostility to the United
States, it would be inconsistent to refuse that right or
privilege to the same foreigners, if, while preserving
neutrality towards us, they should be overtaken by a
civil war in the United States. A violation of this
privilege by the government, or by any persons act
ing under its authority, should be followed with prompt
and full indemnity.*
" Aliens residing in belligerent districts ; non-com
batants, whether neutral, friendly, or hostile ; persons
engaged in hostility ; persons belonging to the invading
country, and accompanying the army, — are alike
within the jurisdiction of military government, and of
military courts duly established therein." f
Aliens, who are subjects of a foreign government,
having voluntarily enlisted in the service of the United
States as substitutes for drafted men, are not entitled
to be discharged from such service by reason of alien
age ; but may, under the law of nations, be held to
perform their engagements, without giving the govern
ment to whom their allegiance is due, just cause of
complaint.J
* See treaty between the United States and France, 5 Feb., 1778.
t Military Government, p. 318.
J See Opinion, Ko. 448 (p. 374), in the case of deserters from a French corvette,
who were enlisted as substitutes, and whose discharge was claimed by the French
consul.
45
354 WAR CLAIMS AGAINST THE UNITED STATES.
"Service in the rebel army by an alien does not
deprive him of the benefit of the plea of alienage against
any claim of this government for military service.
The volunteering of an alien in the army of the United
States to serve for a given period, subjects him to all
the rules and regulations of the military service during
the term of his enlistment. After his contract of enlist
ment has expired he still has the rights of alienage
against the United States. The proclamation (of neu
trality) of the Queen gives the United States no rights
over British subjects, though its violation subjects them
to the penalties of British laws, and to those of the
laws of war." *
u Persons who reside in a country engaged in active
hostilities, and who so conduct themselves as to give
reasonable cause to believe that they are aiding and
comforting a public enemy, or that they are partici
pating in any of those proceedings which tend to em
barrass military operations, may be arrested ; and if
such persons shall be arrested and imprisoned for the
purpose of punishing or preventing such acts of hos
tility, they are not entitled to claim indemnity for the
injury to themselves or to their property, suffered by
reason of such arrest and imprisonment. If the persons
so arrested are the subjects of a foreign government,
they cannot lawfully claim indemnity, because their
own hostile conduct, while it has deprived them of the
shelter of neutrality, has subjected them to penalties for
having violated the laws of war. If a foreigner join
the rebels, he exposes himself to the treatment of rebels.
* See Opinion, No. 433, p. 374. See also Wilson v. Izard, 1 Paine, 08. Juando v.
Taylor, 2 lb. C52; also, contra, Judge Conkling's Opinion in Matter of Ross (Record
er's Court of Buffalo, 1842). Opinions of the Attorney General, vol. iv. p. 350.
FOREIGNERS NOT ENTITLED TO INDEMNITY. 355
He can claim of this government no indemnity for
wounds received in battle, or for loss of time or suffer
ing by being captured and imprisoned. It can make
no difference whether his acts of hostility to the United
States are committed openly under a rebel flag, or
secretly in the loyal States, where his enmity is most dan
gerous. If it be said that he has violated no municipal
law, and therefore ought not to be deprived of liberty
without indemnity, it must be remembered that if he
has violated any of the laws of war, he may have there
by committed an offence more dangerous to the country,
and more destructive in its results, than any crime
defined in statutes."
" If a person detained in custody in consequence of
having violated the laws of war, and for the purpose
of preventing hostilities, be liberated from confinement
without having been indicted by a grand jury, it does
not follow therefrom that he has committed no crime.
He may have been guilty of grave offences, while the
government may not have deemed it necessary to
prosecute him. Clemency and forbearance are not a
just foundation for a claim of indemnity. An offender
may not have been indicted, because the crime com
mitted, being purely a military crime, or a crime against
martial law, may not have come within the jurisdiction
of civil tribunals. In such a case, the arrest and im
prisonment, founded on martial law, justified by mili
tary necessity, cannot be adjudicated by civil tribunals.
If the person so arrested is the subject of a foreign
power, and claims exemption from arrest and custody
for that reason, he can have no right to indemnity under
any circumstances by reason of being an alien, until the
fact of his alienage is made known to the government.
356 WAR CLAIMS AGAINST THE UNITED STATES.
His claim to indemnity thereafter will depend on a just
application of the principles already stated." *
When a claim of a foreigner is presented for exam
ination, it may be found useful to make investigation
upon the following questions : —
1. What is the proof that the claimant is, in fact, an
alien ?
2. Was the injury complained of caused by the war
like operations of the Union army or navy ?
3. Whether he has given any aid and comfort to
the enemy?
4. Whether he has been naturalized, or has taken
the initial steps for that purpose ? f
5. Whether he has exercised the elective franchise
in any State, or in the United States ?
6. Whether he has acquired a domicile in the Confed
erate States?
7. If not, whether he had a temporary residence
there, and whether he withdrew himself and his prop
erty, or attempted to do so, within reasonable time ?
And if he failed to do so, whether his failure was caused
by the act of the United States, or of those acting by
authority thereof?
8. Whether he had a mercantile domicile, or a house of
trade., in the enemy's country ?
9. Whether the property claimed was the produce
of land owned by the claimant in the hostile districts ?
* Military Arrests, pp. 211, 212, 10th edition. See Opinion, No. 357, in the case of Cap
tain Sherwin, a subject of England, p. 305. Ibid., ]S'o. 362, in the case of Theodore
Moreau, a subject of France, p. 3(58.
t By proclamation 8 May, 1803 President Lincoln disallowed the plea of alienage to all
foreigners who were enrolled among the military forces of the United States, if they
were of lawful age for such service, and had made the usual preliminary oaths for nat
uralization, and who should be found within the States after sixty days, or had exer
cised any political franchise under our laws.
TEST QUESTIONS ON EXAMINATION. 357
10. Has the claimant violated any law of the United
States, having reference to his own conduct, or to the
property in question ?
11. Is there any treaty between the United States
and the country to which the claimant owes allegiance,
whereby the claimant's rights are excepted from the
general law of nations and of war ?
12. Is there any statute of the United States au
thorizing compensation to aliens for the injury com
plained of?
13. Is there any appropriation of money applicable
by law to the satisfaction of the claim proposed ?
OPINIONS.
[THE following opinions, prepared by the author while Solicitor of the "War Depart
ment, have been extracted from the records of his office, and are now added as illustra
tions of the application of some of the principles stated in the essay on War Claims.]
[No. 36.]
HARSBERG & STEIFEL,
Claimants for the value of 400 barrels of flour captured by our troops at
Fredericksburg, and alleged to belong to that firm.
OPINION.
Military supplies, provisions, &c., have been frequently captured by our
troops in insurrectionary districts, and used for the support of the army.
Such supplies, whether the property of loyal men or of the enemy, are con
traband of war, and are subject to lawful capture.
Whether the claimants, if loyal, are entitled to indemnity or not is not
now material, because, no appropriation having been made by Congress for
payment of such indemnity, this Department has no authority to allow or
pay the same.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 20, 1863.
[No. 55.]
J. W. SEAVER,
Petitioner for an order allowing him to collect a debt of $32,000 from
L. N. Lane, of New Orleans, a registered enemy of the United States.
OPINION.
The owner of the property comes within the provisions of the 6th and 7th
sections of the Act of July 17, 1862, ch. 195.
(358)
OPINIONS. 359
In this case, it is the duty of the President to seize such property, and by
proceedings in rem to have it converted into money and paid over to the
Treasurer of the United States.
There is no provision in the Act saving the rights of creditors ; but all
conveyances made against the express provisions of this Act are void in
law. A conveyance such as is requested would be void. The Secretary has
no power to set aside an Act of Congress, and cannot sanction such convey
ance, however strong the equity of the case may be.
The precedent would be a dangerous one, even if the law would sanction
it, as the door would be open to innumerable frauds and evasions of the
confiscation laws.
The remedy of the petitioner is by application to Congress.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
March 6, 1863.
[No. 88.]
A. KERNAHAN.
The Hon. Secretary of State enclosed letter of Lord Lyons relative to the
claim of A. Kernahan, a British subject, for property seized by order of
General Butler.
MEMORANDUM.
Kernahan appears to have aided and abetted the enemy in several ways,
and to have forfeited all claim to be treated as a neutral British subject.
(Signed) W. W.
[No. 95.]
Claim against Confiscated Property.
W. & C. K. HERRICK.
Claimants against the confiscated property of Bloomfield & Steel, of New
Orleans.
OPINION.
I am not aware of any provision of the Statutes of the United States
which would authorize you, as creditors of Bloomfield & Steel, to recover
your claims from the United States out of the proceeds of the property of
such debtors after it has been lawfully confiscated.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 18, 1863.
See letter to Herrick of April 18.
360 OPINIONS.
[No. 117.]
CLAIM FOR CORN CONDEMNED.
Claim of H. H. Thompson for proceeds of 5607 bushels of corn con
demned as lawful prize, and forfeited to the United States.
By Samuel H. Treat, District Judge, Southern District, Illinois.
Lawrence Weldon, Esq., District Attorney.
OPINION.
It appears from the papers in this case, that " in an expedition sent out
through Southeastern Missouri, our troops captured a quantity of corn, as
property of a rebel (one Shelby Thompson) ; that H. H. Thompson, the
claimant, was captured as a rebel, having been caught near the same place
in which the corn was seized, and which belonged to a relative of his, then
in the rebel service.
The corn was appropriated, as is usual in such cases, to the use of the
army. Subsequently, on the 22d October, 1861, an information appears to
have been filed, in the District Court of the United States for the Southern
District of Illinois, against this corn, by Lawrence Weldon, District At
torney of the United States for that district ; and it appears that the Mar
shal of the United States had attached 5607 bushels of corn (presumed to
be the same), upon process issued in pursuance of said libel.
How the corn came to be removed from Missouri into Illinois does not
appear ; but it is probable that it was transported thither by the captors,
and was used by them as part of their military supplies.
The legal proceedings in this case are presumed to have been instituted
under the provisions of the " Act to confiscate property used for insur
rectionary purposes," approved August 6, 1861.
Whether the property captured came within the provisions of that Act
is not shown upon the evidence, as it does not appear that the owner of
the corn, though himself a rebel, purchased, sold, kept, used or employed
it for the purpose of aiding the rebellion, or the rebels.
It appears that the corn was found on the farm where it was or might
have been raised, and for all that appears, it may have been the intention
of the owner to prevent its being used by rebels, or in aid of the rebellion.
That the property was lawfully captured, on other grounds and by other
authority than that claimed in this statute, is not material to the rights of
this claimant, who can maintain his claim only under this statute.
The next question is as to the claim of H. H. Thompson.
He was arrested as a rebel, but, though discharged, there is no evidence
of his, loyalty.
The information was filed by the United States Attorney, in accordance
OPINIONS. 361
with the 3d section of the Act above cited, which provides, " That the At
torney-General, or any District Attorney of the United States in which said
property may at the time be, may institute the proceedings of condemna
tion, and in such case they shall be wholly for the benefit of the United
States. Or any person may file an information with such Attorney, in
which case the proceedings shall be for the use of such informer and the
United States in equal parts."
There is no provision in this Act for the substitution of an informer
for the Attorney of the United States after an information has been filed,
and a fortiori after condemnation.
The Attorney of the United States must be presumed to have intended to
perform his official duty in filing the information as required by law. By
what right, after condemnation, the Court, or Attorney of the United States,
have allowed a new party to be introduced into the record, and thereby to
allow him to deprive the United States of one half of the value of the
property captured and condemned, does not appear ; and when it is more
than suspicious that the claimant is himself disloyal, the whole transaction
is such as to require explanation on the part of the presiding Judge and
the Attorney for the United States.
It is obvious that when enemy's property is captured on land, the title
of the United States thereto is completed by capture itself, without legal
proceedings. This is a well-settled principle of international belligerent
law, and is applicable to a civil war such as now exists. If the army could
not use military supplies captured from the enemy until after legal con
demnation thereof, one of the most effective means of war would be lost,
viz., the right to subsist upon the enemy. The power of the Union would
be crippled by such legal entanglements. But in fact, the government
is in the lawful exercise of full belligerent rights against those sections
of country which are in rebellion ; and of those rights, none are more
unquestionable than that of acquiring legal title to enemy's property on
land, by capture, without judicial proceedings.
The object and purpose of the statute of August 6, 1861, which was
passed near the commencement of hostilities, was not to deprive the coun
try of its belligerent rights, but to render liable to capture and prize certain
classes of property owned by persons who should buy, sell, or hold it, or
allow its use with an intent to aid the rebellion thereby, wherever such
property might be found. This statute was only a step towards the ap
plication of belligerent law — a precautionary or preventive act calculated
to deprive the enemy of such things as were likely to be applied to their use
in carrying on war.
If such property be seized by the civil authority, as by the Marshal of
the United States, there would be great propriety in requiring it to be con
demned by civil tribunals, as title would not otherwise pass ; but it cannot
be deemed requisite that after lawful capture has been made by military
46
362
OPINIONS.
forces in the army, the civil authorities should recapture it, or, in the words
of the statute, " That it shall be the duty of the President to cause the same
to be seized, confiscated, and CONDEMNED."
If this view of the statute be erroneous, if all captures of personal proper
ty on land by military forces must also be seized by the Marshal, confiscated
and condemned, then the President must commence a lawsuit every time a
detachment of troops captures a gun, a bushel of corn, or a stack of forage
from the enemy, and he must share the fruits of victory with an army of
informers before he can feed his soldiers with the provisions they have
captured. Such a mode of carrying on war is unheard of, and is im
practicable.
As the title to the corn was perfect without the proceeding in Court, as
above stated, it would seem that the institution thereof was unnecessary,
and without justification. The only result or effect it could have was to
make costs, and deprive the United States of that which was already legally
and justly their own.
The claimant has been deprived of the expected fruits of his legal pro
cess ; and if there were no other objection to his claim, there is no appro
priation from which this Department would feel at liberty to pay the same.
It is recommended that payment be refused.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 24, 1863.
[No. 195.]
CROW, WYLIE, & CO.
The Secretary of State asks attention to the enclosed copy of a note from
Lord Lyons relative to certain lumber at Pensacola, the property of Messrs.
Crow, Wylie, & Co., of Liverpool, who desire to remove the same, it having
been bought before the outbreak of the war and the establishment of the
blockade.
OPINION.
There is not sufficient or satisfactory evidence that the title to the lumber,
&c., was, at the time when hostilities commenced, legally vested, in part or
in whole, in the claimants.
There was an efficient blockade upon Pensacola before any attempt to
export said timber, &c., was made by or for said claimants, of which they
had notice, and which still remains in force.
For these and other reasons, I recommend that this Department decline
to interfere in relation to the claim of Messrs. Crow, Wylie, & Co.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
May 28, 1863.
OPINIONS. 363
[No. 332.]
Claim for Seized Property.
MRS. EUGENIA P. BASS.
Claimant for property taken by the United States army from her plantation
in Mississippi, for the public service.
OPINION.
Mrs. Eugenia P, Bass, claimant against the United States for property
alleged to have been taken by the forces of the United States from her
plantation in Mississippi, in February and April, 1863.
The only evidence offered in support of the claim of Mrs. Bass is her
own affidavits, in which she testifies to her belief of facts of which she has
been informed.
From this testimony, it would appear that the forces of the United States
have captured certain mules, oxen, beef cattle, bacon, chickens, potatoes,
wines, sheep, horses, cotton, &c., in the months of February and April,
1863, from the plantation of the claimant in the State of Mississippi.
That this property was captured, would appear probable from the fact
that receipts were demanded, as the claimant says, and were refused. The
items charged are not known by the affiant to be correct, either as to
quality, quantity or value of the things alleged to have been taken. Her
testimony is in accordance with the best information she can obtain, as she
alleges.
Her loyalty to the United States is averred, and in confirmation she pro
duces a copy of an oath alleged by her to have been taken voluntarily and
subscribed ; and she also produces a certificate of permission given by Gen
eral Grant to ship and sell certain cotton.
But the property captured had been seized in February and April, 1863,
and the oath does not purport to have been taken until some weeks after
wards, viz., May 22, 1863.
The permission of General Grant was dated September, 1863 ; and hence
it is obvious that neither the oath nor the permission proves the loyalty of
the claimant in the preceding period of February and April. The oath
merely pledges Mrs. Bass to loyalty from and after the date thereof, but
does not allege that she had been loyal previously, nor that she had taken
no part with the rebels prior to that time. It may have been sincerely
taken, pledging her future loyalty, with a view to recover the property
which had been previously captured.
In relation to the permission given by General Grant to the claimant to sell
cotton she then had, no evidence is offered to show what representations
were made to him, whereby that permit was issued, nor is it probable that
he intended to have such permit used as evidence to sustain the present claim.
No report has been asked for or obtained from the military authorities
364 OPINIONS.
by whom the capture is alleged to have been made, and it would be im
practicable to protect the rights of the government if this case were to be
adjudicated on the evidence as it now stands.
If property of the character above named is seized by the forces of the
United States in time of war in a belligerent district, it is a fair presumption
that it has been lawfully captured. It is true that this presumption may be
overcome by proof. But if property contraband of war has been captured in a
district which is engaged in a territorial civil war against the United States,
even if the owner of it is friendly to the United States, and if he has taken
no part in the rebellion, I am not prepared to say that he has any legal claim
for indemnity therefor, without further legislation by Congress. Congress
has, as yet, made no appropriation for payment of such claims.
For the reasons therefore,
1. That the proof of quality, quantity, and ownership of the property in
question is insufficient ;
2. That the loyalty of the claimant at the time the property was taken is
not sufficiently proved ;
3. That if these two points were established, there will still be no legal
claim for indemnity for property contraband of war captured in a belligerent
district ;
4. And that there is no appropriation in this Department which can be
applied to the liquidation of such claims, —
I recommend that the claim of Mrs. Bass be not allowed.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
[No. 361.]
INDEMNITY TO FRENCH SUBJECTS.
The Secretary of State forwards a translation of a communication of Vis
count Treilhard, who writes on behalf of the French Minister respecting the
claims of some French residents of New Orleans, from whom the Federal
authorities are alleged to have forcibly taken arms which have not been
paid for.
OPINION.
The communication addressed to the Secretary of State from the Lega
tion of France, asking attention to the claims of certain French residents
of New Orleans, has received a careful examination. The statements of loss,
and consequent claims, are preferred by four persons, viz. : —
1. Pierre Mattie.
2. A. Chievre.
3. B. Phillipe, and
4. J. Gilbaux.
OPINIONS. 365
From the report of the Provost Marshal-General in New Orleans, it appears
that all the persons named above are unknown to the Consul of France at
New Orleans, and that in the cases of Mattie, Chievre, and Phillipe, no
evidence has been produced, or could be procured, either of the identity,
citizenship, conduct, or losses of these persons. I cannot, therefore, recom
mend any action in regard to them at the present time, and in the present
state of the proofs.
In regard to the case of J. Gilbaux, it appears from the evidence and
papers submitted that the articles taken from his shop on the 17th May,
1862, were contraband of war, and intended in part for the equipment of a
Confederate battery ; that he had been engaged in making up and furnish
ing to the Confederates, goods of a similar character, down to the time of the
occupation of New Orleans by the forces of the United States ; that the
goods taken from his shop, as above stated, were, in part at least, used for
the equipment and service of cavalry of the United States ; and further,
that the whole value of the goods so taken, instead of being about nine
thousand dollars, as represented by said claimant, would not be much, if
any, in excess of two hundred dollars.
There is no proof of the nationality of the claimant, or that the goods
taken were his property, and he seems to have forfeited any right that he
might otherwise have had to favorable consideration as a French citizen,
by violation of his duty as a neutral, and by aiding the rebellion. I would
say, also, that even if the results of further inquiries should bs favorable
to the several claimants above named, this Department would be unable to
satisfy those claims, as there is now no appropriation in its control from
which they could lawfully be paid.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
December 5, 1863.
[No. 357.]
CAPTAIN SHERWIN.
The Secretary of State, June 10, 1863, addressed a letter to the Secre
tary of War, requesting the opinion of the Solicitor of the War Depart
ment in reference to a reply to Lord Lyons's note of May 27, in relation
to the case of Captain Sherwin.
On the 1st of July, 1863, Mr. Whiting submitted to the Secretary of
State his views on the subject in an opinion in extenso, which is on record.
On the llth of November, 1863, the Secretary of State communicated
a copy of a note from Lord Lyons, in which he renews the demand for ade
quate compensation in the case of Captain Sherwin, and suggests its refer
ence to Mr. Whiting for examination.
366 OPINIONS.
WAR DEPARTMENT, SOLICITOR'S OFFICE, >
WASHINGTON, D. C., July 1, 1863. i
The Hon. WILLIAM H. SEWARD,
Secretary of State.
SIR : The letter addressed by you to the Hon. Edwin M. Stanton, Secre
tary of War, dated June 10, 1863, has been referred to me, in which you
did me the honor to request any suggestions that might occur to the Solici
tor of the War Department, with a view of answering Lord Lyons's note of
the 27th ultimo, in relation to the case of Captain Sherwin, an alleged British
subject.
The pressure of other engagements has prevented an earlier reply. I
now submit, with great deference and respect, the following memoranda for
your consideration.
I have the honor to be, sir,
Your obedient servant,
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
A claim against the government of the United States having been made
by Her Majesty's government, in behalf of Captain John Sherwin, an alleged
British subject, for damages suffered by him in consequence of an arrest
and detention by military authority, in a time of active hostilities, during a
rebellion involving a large portion of the inhabitants of this country, and
there being no question of the fact that such arrest and imprisonment were
so made, and that he was discharged therefrom without being held to answer
over to any indictment of a grand jury, and that such imprisonment was, to
a certain extent, injurious to him, the question remaining to be determined
is, whether he is entitled, through the agency of Her Majesty's government,
to claim indemnity from the United States.
To establish such claim, Captain Sherwin must offer reasonable proof that
he was, at the time of his arrest, a British subject.
In recurring to the evidence on that point, it will be observed that there
is no allegation in the letter of the Hon. William Stewart to the Hon. Wil
liam H. Seward, Secretary of State, that Captain Sherwin was, or ever had
been, a British subject.
An examination of the correspondence will show that it was not until the
27th of May, 1863, and in the letter of Lord Lyons of that date, that the
fact of Captain Sherwin's citizenship for the first time appeared to be as
sumed or taken as true.
In addition to this circumstance, which, doubtless, may be attributable to
accidental oversight, no evidence is offered of the clearances or other
papers connected with the voyage of the Rowena, and of the Dixie, in
which Captain Sherwin had sailed, being American ships trading with
OPINIONS. 367
American ports, whereby he might show whether he had or had not repre
sented himself as a British subject.
The fact, however, on which much reliance is placed, making it more
necessary that proof of nationality should be furnished, is this, namely :
that at the time of his arrest, and during the whole period of his imprison
ment, he did not make known to this government that he claimed to be a
subject of Great Britain, and did not request his release on that ground.
Supposing, however, proof should be satisfactory on that question, other facts
must then be considered.
It appears from the evidence in the possession of the War Department,
that Captain Sherwin, in the year 1862, was engaged in a clandestine and
unlawful manner in taking on board of a ship, navigated by him and called
the Dixie, and in transporting from Reedy Island, in Delaware River, cer
tain persons whom he had reasonable cause to believe and to know were
public enemies of the United States, for the purpose of enabling them to
join those who were in arms against the government.
He left, the port of Philadelphia without having obtained license to carry
passengers ; he reported to the revenue cutter which overhauled his vessel
after leaving port, that he had no passenger on board ; but after that time he
took up five persons at the island aforesaid, who were notorious secession
ists, and who had been secreted several days ; carried them out of the country,
and transferred them at sea to a vessel bound for Nassau, N. P., with a
view of enabling them to join their confederates in the rebellious States,
or, at least, with the intention of enabling them to escape the performance of
their legal obligation to serve as a part of the forces of the United States
in the present war, they being subject to be drafted therein according to law.
These proceedings were in direct violation of the laws of the United States
and the Proclamation of the President, and were acts of hostility, according
to the law martial.
Having arrived at Nassau, Captain Sherwin there sold his vessel, returned
to Philadelphia, and purchased another vessel.
Under these circumstances there was good and reasonable cause known to
the government for suspecting and believing that Captain John Sherwin was
actively engaged in aiding and abetting public enemies of the United
States to gain access to their allies, or at least to avoid a duty which they were,
if loyal citizens, legally bound to perform, while at the same time he was
violating the municipal laws thereof, in associating with those who were
friendly to the insurgents, if not themselves active participants with them.
The nature of the cargo of the Rowena, her place of destination, taken
in connection with the former voyage to Nassau, and the sale of his vessel
in a port which has furnished shelter and protection to the armed cruisers
of the secessionists, and is the chief nucleus to which those persons resort
who violate the Proclamation of Her Majesty and the blockade of the south
ern coast of the United States ; and the other features of Captain Sherwin's
368 OPINIONS.
proposed expedition, so plainly indicated his intention of renewing his former
offences, as to afford justifiable cause for the seizure of his vessel, and the
arrest and detention of his person in time of civil war.
Under these circumstances, Captain Sherwin was arrested as a military
prisoner, for the purpose of preventing him from continuing in hostile prac
tices against the United States, and having been detained until it was
believed that he might again be set at liberty without endangering the
public safety, and that he would thereafter refrain from repeating his former
offences, he was then discharged without punishment.
[No. 362.]
Indemnity to a French Subject.
THEODORE MOREAU.
The Secretary of State invites attention to the letter of the French Min
ister, relative to the complaint of Mons. Theodore Moreau, a French subject,
tenant of one of the houses of Mr. Slidell, at New Orleans, who finds him
self constrained, in consequence of the conscription law, to pay a second
time to the Federal authorities, rents satisfied by him up to the expiration
of his liability to Mr. Slidell.
OPINION.
In regard to the claim of Theodore Moreau, presented by the Minister
of France to the Secretary of State, I have the honor to submit that, upon
examination of the documents laid before me, I find the facts to be as fol
lows : —
Theodore Moreau, a French citizen (and now resident in Paris), has through
his agent, one Dumargeau, occupied for purposes of trade, a store in New
Orleans, No. 36 St. Charles Street, belonging to Mr. John Slidell. This agent
now complains that on the second day of July, he was compelled to pay to
Captain McClure, Quarter-master in the service of the United States, the
sum of $480, as rent for said property from November 1, 1862, to July 1,
1863, eight months, at the rate of $60 per month, " although he had a writ
ten lease " from Mr. Slidell " arranged for by notes."
He further alleges that he refused to pay this rent to the Quarter-master,
when it was demanded, but was compelled to pay under protest, because his
store was forcibly closed by military order. He does not allege any loss or
damage arising from such closing.
This claim was referred to the general commanding the Department of
the Gulf for examination, and the report made by his order shows that this
property, No. 36 St. Charles Street, New Orleans, had been leased by Mr.
John Slidell to ]\Ir. T. Moreau for a term of years ; that this term expired
November 1, 1862, and that Captain McClure, Quarter-master then in charge,
OPINIONS. 369
made a contract with Moreau's agent, Dumargeau, to let it to him at a
reduced rate, viz., at $60 per month, instead of $150 per month, which had
been the stipulated rent up to that time ; that Moreau's agent occupied the
premises from November 1, 1862, to July 1, 1863, in pursuance of the said
contract. He was then called on to pay the rent for the eight months which
had elapsed, viz., $480 ; but this he refused to do.
This refusal continuing, on the second day of July, the Quarter-master
ordered the guard to close the store. This was done. On the third day
of July Mr. Dumargeau, as Moreau's agent, paid the rent, and his store was
again put in his possession without damage or loss.
It further appears from the report, that at or about the time of the expi
ration of the lease from Slitfell to Moreau, viz., November 1, 1862, Captain
McClure, the Quarter-master, having charge of the Property Department,
had, under the order confiscating Slidell's property, received from his agent
the lease referred to and several of the notes given by Moreau in advance
payment for the rent of this and an adjoining property, amounting to $3125 ;
and as Moreau remained in occupation of the premises, his agent was called
on to pay these notes. He professed inability, " plead poverty," and the
United States authorities, upon his paying $1500, gave him up the whole
of the notes, amounting, as above stated, to $3125, thus releasing him from
a binding pecuniary obligation to the extent of $1625. The Quarter-master
then reduced his rent, which had been, for this property, $150 per month, to
$60 per month ; and it is the enforced payment of the eight months' rent
at the reduced rate, of which he now complains.
The evidence shows further, that this Dumargeau was abusive and irri
tating in his language, denying the right of the United States authorities to
collect the rent, and defying openly their power.
It is not claimed, on behalf of Moreau, that he has as yet been compelled
to pay double rent to any one, and he shows no pecuniary damage.
On the contrary, it does appear that his notes to the amount of $1625
have been surrendered to him without payment ; and his rent for a period of
eight months has been reduced from $150 to $60 per month, being a saving
of $720 additional.
It may be remarked that Mr. Dumargeau alleges that this lease extended
to October, 1863, but Captain McClure states positively that it expired
November 1, 1862, and that the lease itself was given to him by Slidell's
agent. Even if the term specified in the lease had not expired, Moreau's
agent — by contracting with Captain McClure, paying him $1500 for the notes,
and receiving a surrender of the balance of $1625, and entering into a new
contract to pay to the United States $60 per month — has lost any right
that he might have had under the original lease, even if his own statement
of the time be true.
Mr Dumargeau further complains that the rents of certain parts of this
47
370 OPINIONS.
same property — which had been underlet by him, and for which, under pro
test, as above stated, he has now paid the rent to the United States — have
been collected by the Quarter-master, from the under-tenants, and that thus
the United States government had been in receipt of double rent ; but he
does not allege that he, or his principal, has suffered any loss of rent due,
or that any under-tenant has refused to pay him what rents might be law
fully demanded.
No evidence is adduced, on the part of Moreau, to support this last com
plaint, except the written statement, not under oath, of the agent, Dumar-
geau. And these allegations are fully disproved by the report and official
statement of Captain McClure, the Quarter-master in charge.
From the foregoing statement, it appears that Slidell, the lessor, a well-
known traitor, now residing in France, and engaged in open hostilities
against the United States, is the owner of the property in question ; that it
has been seized, and is now held, as enemy property by our military forces ;
that the said real estate had been leased by Slidell to Theodore Moreau ;
that Moreau had given Slidell his notes in advance, for payment, or security
for the payment, of the rent ; that the lease expired November 1, 1862, and
that thereupon all right of said lessee ceased, and the occupant became
tenant under the United States.
A part of the notes aforesaid, amounting to the sum of $3125, have been
taken into the possession of the United States and surrendered to the lessee,
without even making a payment of more than one half the amount thereof:
so that while he, on his part, has enjoyed the full consideration of the bar
gain, he has not performed the corresponding obligation to pay the notes.
It appears distinctly that Mr. Moreau has not been called upon to pay his
notes a second time to the Federal authorities, but on the contrary, as above
stated, has been relieved from payment of a considerable proportion of the
sum for which he had given his obligation to Mr. Slidell.
The hardship, if any, exists on the part of the United States, who have
not received the full value of the rents due to them. Since the lease expired,
the occupant, having become tenant to the United States directly, cannot
complain that he is required to pay rent. Still less is such complaint well
founded, if it be considered that the amount paid by him is much less than
what he was to pay under the lease, and that his liability to pay anything
could have been avoided by him, by giving up the premises to their rightful
owner, the government of the United States.
I therefore have the honor to recommend that no allowance should be
made to the applicant.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
December 3, 1863.
OPINIONS. 371
[No. 369.]
Claim for Cotton seized.
SIMON QUEYROUSE,
A French subject, claims pay for fifty-six bales of cotton taken from him
by the United States.
OPINION.
The memorial of Simon Queyrouse shows that he was, in September, 1862,
an alien resident in New Orleans, within the lines of the United States army ;
that at some time previous he had purchased of one Lestrapes, resident
within the rebel lines, fifty bales of cotton ; that this cotton was then stored
in the enemy's country.
In May, 1863, these fifty bales, with six others, were captured by the
United States forces under command of Major-General Banks.
There is thus disclosed a case of apparently unauthorized trading with
the enemy, contrary to the Proclamation of the President issued August 16,
1861 ; and by virtue of that Proclamation this merchandise, if brought within
States not in insurrection, or if captured, would be forfeited.
Under the Act approved March 12, 1863, and the orders of the Secretary
of War made in pursuance thereof, captured property is to be turned over to
the special agents appointed by the Secretary of the Treasury, to be disposed
of by them according to law. The capture complained of by Mr. Queyrouse
was made since the passage of this Act.
I cannot advise, therefore, that this Department interfere with the disposal
of this cotton by the special agents of the Treasury Department, or sanction
any claim for compensation for the property delivered, or to be delivered, to
them.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
December 5, 1863.
[No. 410.]
Senate Resolution as to Enrolment of Slaves.
Enrolment of slaves in Maryland, Delaware, West Virginia, Kentucky,
and Missouri.
Resolution of the Senate inquiring of the Secretary whether the slaves in
the above States have been enrolled ; and if not, why not ?
Letter to the Senate, in answer to the resolution, prepared for the signa
ture of Secretary of War December 31, 1863.
COPY OF LETTER.
... As the resolution is understood, " persons held to service or labor
by the laws of Delaware, Maryland, West Virginia, Kentucky, and Missouri "
372 OPINIONS.
are slaves still, under the personal control and possession of their masters,
within either of the aforesaid States, under the laws thereof.
In answer to the inquiry of the resolution, the Secretary of War has the
honor to inform the Senate that such slaves have not been enrolled among
the military forces of the United States, under any provision of the " Act for
enrolling and calling out the forces of the United States and for other pur
poses," approved on the 3d day of March, 1863.
In answer to the inquiry " why such enrolment has not been made ? " the
Secretary of War has the honor to say, that, in his opinion, the laws of the
United States do not allow the enrolment and calling into service of slaves
held in the actual possession of loyal persons, who, being citizens of the
United States, are also citizens of and resident in either of the aforesaid
States. Therefore such enrolment has not been made.
The Act of March 3, 1863, ch. 75, restricts the enrolment to able-bodied
citizens of the United States, and persons of foreign birth who shall have
declared on oath their intention to become citizens. The question whether
there is any power to enroll slaves under the provisions of the laws as they
now stand, depends on the construction given to the term " citizen of the
United States." By the laws of each of the States named in the resolution,
slaves are not citizens of such States, nor deemed to hold the rights of cit
izens of the United States.
By the opinion of the State Department, as stated in the letter of Mr.
Thomas, then Secretary of State, to Mr. Rice, dated November 4, 1856, it
was held, " that there can be no doubt that negroes are not citizens of the
United States."
According to the opinion of the Hon. Edward Bates, Attorney-General
of the United States, dated November 29, 1862, a colored man may be a
citizen of the United States, and therefore competent to command an Amer
ican vessel. But no opinion has been expressed by him whether slaves can
or cannot be deemed citizens of the United States.
In the case of Dred Scott, heard before the Supreme Court of the United
States in 1856, it was alleged that " Dred Scott was not a citizen of the
State of Missouri, because he was a negro of African descent, his ancestors
were of pure African blood, and were brought into the country and sold as
negro slaves ; " and on these facts, it was pleaded that the court below had
no jurisdiction. The Supreme Court sustained the plea, and decided, " upon
the whole, therefore, it is the judgment of this court that it appears by the
record before us that the plaintiff in error is not a citizen of Missouri in the
constitution, and that the Circuit Court, for that reason, had no jurisdiction
in the case, and could give no judgment in it. Its-judgment for the defendant
(Scott) must consequently be reversed, and a mandate issued directing the
suit to be dismissed for want of jurisdiction." This decision applies to a
colored person, who, having once been a slave, then claimed his freedom,
but was denied the right to become a party before the court, because he was
OPINIONS. 373
not, as the court held, a citizen of Missouri, and, therefore, not a citizen of
the United States.
That decision has not yet been reversed ; and if persons of African descent,
being, or claiming to be, free, are not citizens of any States, nor of the
United States, a fortiori, slaves of similar descent would not be construed
by the same court as citizens of the United States, should any attempt be
made to enroll them as such.
The laws of Congress also indicate that slaves within the loyal States were
not intended to be enrolled in the forces of the United States.
The Act known as the Fugitive Slave Law, approved September 18,
1850, ch. 60, is still in force, whereby fugitive slaves, from either of the afore
said loyal States, may be reclaimed ; and though the military forces of the
country are forbidden to do so, yet peaceful citizens are still bound by law
to aid in a prompt and efficient execution of this slave law, by recapturing
and returning fugitive slaves to their masters, whenever their services are
required for that purpose.
This law still recognizes the right of the slave master to retain or to re
gain possession of his slave who attempts to escape from personal outrage,
or through love of country, seeks to join the army of the Union.
The Act of 1862, approved April 16, for abolishing slavery in the Dis
trict of Columbia, appropriated money to pay the claims of slave masters,
thereby showing an intention, on the part of Congress, to recognize their
right to compensation for the labor and service of slaves, when deprived
thereof by law.
The Act of July 17, 1862, ch. 195, again recognized the right of such
masters as had been loyal, had not borne arms against the United States,
or given aid and comfort to the enemy, to regain their escaped slaves.
These Acts have not been repealed. They are inconsistent with the treat
ment of slaves in loyal States, as citizens of the United States, required to
be enrolled under the Act of 1863.
The Proclamations of the President have forborne to call upon slaves of
loyal masters in loyal States, for military service, without the assent of
such masters. Taking into view, therefore, the authoritative decision of the
Supreme Court, the legislation of Congress, conservative of the alleged
rights of loyal slave owners, and the previous action of the Executive, the
Secretary of War has felt constrained to forbear to enroll slaves in the mili
tary forces under the provisions of the Act of 1863.
That the government has the right to call into military service every subject
owing it allegiance, whether citizen of the United States or not, whether bond
or free, it is not supposed that any loyal man can reasonably doubt ; and
if it be the will of Congress, it has the power to exercise that right, and,
doubtless, will pass such laws as it may deem proper in the present con
dition of public affairs.
374 OPINIONS.
[No. 433.]
ALIENAGE.
How does service in the Federal or Rebel army affect the plea of alien
age?
J. H. Foster, Paymaster, Twenty-second District, Pennsylvania, reports
two cases, in one of which he has received instructions that service in the
rebel army does not deprive a man of the right to exemption on the plea of
'alienage ; while in the other he is told that service in the Federal army does
deprive him of that right, and he asks how the Board should act on these cases.
OPINION.
Service in the rebel army, by an alien, does not make him a citizen of the
United States, nor deprive him of the benefit of the plea of alienage against
any claim of this government for military service. The volunteering of an
alien in the army of the United States, to serve for a given period, subjects
him to all the rules and regulations of the military service, during the term
of his enlistment. After his contract of enlistment has expired, he still has
the rights of alienage, as against the United States.
The Proclamation of the Queen gives the United States no rights over
British subjects, though its violation subjects them to the penalties of Brit
ish laws, and to the laws of war.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
[No. 448.] '
ALIENAGE.
Colonel Fry, Provost Marshal-General, submits the case of two deserters
from a French corvette, who have enlisted in the United States service as
substitutes, and who are claimed by the French consul as French subjects,
and deserters from the French service.
OPINION.
Aliens, who are subjects of a foreign government, having voluntarily en
listed in the service of the United States, as substitutes for drafted men, are
not entitled to be discharged from such service by reason of alienage ; but
may, under the law of nations, be held to perform their engagements, with
out giving the government to whom their allegiance is due just cause of
complaint.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
OPINIONS. 375
[No. 467, a.-]
OPINION
As to the proper course to be taken in behalf of soldiers who shot deserters.
LETTER AND ANSWER.
WASHINGTON CITY, i
March 12, 1804. i
Hon. WILLIAM WHITING,
Solicitor of War Department.
DEAR SIR : I have just received a letter from Thomas Wilson, Esq.,
Attorney at Law, Davenport, Iowa, from which I make the following
extracts : —
" You remember the men (soldiers) who shot the colored man in Daven
port on December 25, 1863. I. W. Stewart and myself are for the
defence. Frazer (the corporal) pleaded guilty of assault and battery, and
got thirty days in jail. Knapp, Company H., Fifth Iowa Infantry, who
did the shooting, has a change of venue to Clinton county. Court com
mences to-morrow (March 6), and the trial will possibly commence on
March 19. These men were soldiers actually on duty, as Provost Guard
from Camp McClellan. Frazer was the corporal in command, and com
manded the arrest, and in making the arrest the shooting occurred. This
would be a good defence in Knapp's case before a military court, but
not before a civil tribunal.
" We wish to get Knapp turned over to military authority, under section
30, Conscription Act, May 3, 1863, and to that end I have written (in
Knapp's name) to General Sully, who refused to demand him from the
civil authorities, and I sent the communication to the Adjutant General
United States Army.
"I then made the same demand on Lieutenant-Colonel Greer, who trans
mitted it direct to Adjutant-General United States Army, both asking
opinion of the Solicitor, Mr. Whiting, of said section 30. Three weeks
have passed, and we have not heard from it. If two weeks more pass, he
will have been tried and convicted by civil court.
" Will you be kind enough to see Mr. Solicitor Whiting, if he has re
ceived the communications, and will answer.
" The legal proposition is this : —
" If a soldier in the United States service, amenable to the articles of
war, engaged in performance of actual duty, under the command of an
officer, commits one of the crimes, say murder, mentioned in section 30, in
the State of Iowa, and does it by the express command of his officer, will he
be taken and tried by a military court, under the provisions of said section
30, or will he be allowed to remain in the hands of the civil authority t
376 OPINIONS.
" Mr. Solicitor Whiting has published a small book, being his opinions on
military arrests. It has some good authorities for us ; will you be kind
enough to obtain a copy for us, to be used on the trial, and send to me."
An early answer to the foregoing will much oblige,
Very truly yours, &c.,
(Signed) H. PRICE.
WAR DEPARTMENT, SOLICITOR'S OFFICE, )
WASHINGTON, D. C., March 14, 1SG-L >
H. PRICE, Esq.
DEAR SIR : Yours of the 12th instant has been received, containing ex
tracts from letter of Thomas Wilson, Esq., of Davenport, Iowa, inquiring,
" If a soldier in the United States service, amenable to articles of war,
engaged in performance of actual dutyj under the command of an officer,
commits one of the crimes, say murder, mentioned in section 30, in the
State of Iowa, and does it by the express command of his officer, will he be
taken and tried by a military court, under the provisions of said section 30,
or will he be allowed to remain in the hands of civil authority ? "
In answer to this, and other inquiries contained in your letter, I have the
honor to reply, —
That the 30th section of the Act of March 3, 1863, ch. 81, gives jurisdic
tion to general courts martial and military commissions, over persons in the
military service of the United States, who, being subject to the articles of
war, shall have committed in time of war, insurrection, or rebellion, either
of the crimes therein enumerated, including the crime of murder. But
this jurisdiction is not exclusive of, but is concurrent with, that of civil
tribunals.
Under the fifth amendment to the Constitution, no person shall " be sub
ject, for the same offence, to be twice put in jeopardy of life or limb."
Therefore, no person can be lawfully condemned by any court, military or
civil, for a crime of which he has previously been convicted or acquitted
by a court having jurisdiction of the person and of the offence. Where
courts have concurrent, but not exclusive jurisdiction, that court which first
gains jurisdiction, excludes all others therefrom.
If a soldier in service, accused of " murder," is first indicted and arrested
by the proper civil authorities of Iowa, they exclude the jurisdiction of the
military courts over that crime ; so if the soldier had been arrested for
trial for that offence by a court-martial, the civil tribunals would have no
right to interfere. It is not doubted that in time of war, military necessity
will, under certain circumstances, justify the interruption of all proceedings
by courts of law, which may in any way burden, impede, or oppose military
movements, or aid and comfort the enemy. Nor is it doubted that, with
out the assent of military authorities, no civil court, or other civil authority
of any State, can subject soldiers, in the service of the United States, to
OPINIONS. 377
their commands, or can in any other way interfere with the strict perform
ance of their military duties.
But when the commander of a Department finds it not incompatible with
his military duties to permit the soldier to be tried by civil courts, he usually
does so, out of respect to local authorities, and with a view of interfering
as little as possible with the ordinary course of the administration of justice.
It is obvious that there ought to be some way by which, in all cases, officers
who have committed homicides, or other acts of violence, in the discharge
of their duties, should be protected under the law ; and some procedures by
which the same rules of law should be applied in all parts of the country.
It would be discreditable to the administration of justice if the same act
should be pronounced a crime in one State, and a justifiable act of duty in
another. Hence there ought to be some mode of applying uniform rules of
law, by one tribunal, to all like cases,, wherever they arise.
This purpose has been effected by the oth section of the Act of March 3,
1863, ch. 81, which provides for the removal of all actions, civil or criminal,
commenced in any State court, against any person, for any arrest or impris
onment made, or other trespasses or wrongs done or committed, or any act
omitted to be done, at any time during the present rebellion, by virtue or
under any color of any authority derived from or exercised by the President
of the United States, or any Act of Congress, and this section prescribes
also the proceedings for such removal, and forbids proceedings in the case
by State courts after such removal, and transfers them to the courts of the
United States.
The 6th section removes, in cases of error, the final decisions to the Su
preme Court of the United States.
Therefore, while civil courts are allowed to retain concurrent jurisdiction
of persons in the service, who have committed crimes punishable by mil
itary tribunals, the accused are thus made certain of securing impartial jus
tice, administered under uniform rules, and are freed from the dangers of
prejudice, by excitement of local juries, or by the errors of hostile or unin
formed judges.
I recommend that the cases of the soldiers (who shot the deserter) should
be removed from the State court of Iowa, to the United States Court, and
that there should be, under the circumstances, no interference with the civil
tribunals by military authority.
This recommendation is made, not because I have any want of respect or
confidence in the eminent judge before whom the case is pending, but be
cause it is desirable that the practice should be uniform.
I forward herewith some copies of the Essay on Military Arrests, and I
trust that they will indicate the grounds of defence which will be of avail to
the accused. Very respectfully,
Your obedient servant,
(Signed) WILLIAM WHITING,
48 Solicitor of the War Department.
378 OPINIONS.
[No. 487.]
Claims for Cotton seized.
W. W. CONES.
A number of claims for cotton seized and sold at Memphis, Tennessee,
presented by Mix & Co.
OPINION.
The claim of W. W. Cones, referred to me, is for the proceeds of 252
bales of cotton seized by the forces of the United States in December, 1862,
in La Fayette county, in the northern part of the State of Mississippi, trans
ported thence to Memphis, Tennessee, and there, by order of General Grant,
sold at auction, for the benefit of the United States, at SOJ cents per pound.
The net proceeds of sale were paid over by the Rental Officer to the Quar
ter-master's Department.
Mr. Cones has never been in possession of the cotton, but alleges that he
had a good title by lawful purchase from loyal owners, within the lines of
trade, established by law under the Regulations of the Treasury.
In support of this title, he produced copies of certain documents, of
licenses issued to him to buy cotton, of agreements for sales of cotton made
by one Denton, professing to be an agent of Cones, of bills of sale receipted,
of certificates, letters, &c., — of all of which the originals should be required
if the claim be further urged.
Dealing, however, with these copies as if they had been originals, Mr.
Cones has not presented evidence sufficient to maintain his claim.
1. It does not appear that the agent, Denton, with whom the contracts
relied on were made, had authority from the original owners of the cotton
to make sales of it, at any time previous to its seizure by the United States.
2. It does not appear that Cones, on his part, had the right to exercise
the privilege of trading under a Treasury license, by means of an agent or
agents. This privilege was personal, granted to him because he was sup
posed to be a loyal, discreet, and honest man, and it could not be exercised
at his pleasure, by deputies of any character, or in any numbers, unknown
to the Treasury Department.*
3. It does not appear that, at the date of the contract, W. A. Thornburgh,
who undertook to act in Cone's behalf, had, in fact, been authorized by him
to purchase cotton under his license.
4. It does not appear that the cotton itself was, at the time of the alleged
purchase, within the lines of the army of the United States, as established -
by the order of Major-General Grant ; but it is probable, upon the evidence,
that it was without — south of, and beyond, those lines ; and therefore not
the subject of lawful trade between loyal citizens and public enemies.
5. It does not appear that the cotton had not been actually seized by the
United States troops, when Denton, as agent of the planters, undertook to
* See Ouachita case, fi Wallace, ; McKee v. United States, 9 Wallace, 166.
OPINIONS. 379
sell it. The precise time of seizure is not stated ; but the evidence tends
strongly to show that the seizure preceded the attempted sale. If so, the
claim now presented cannot be maintained.
6. The alleged payment by Cones of the agreed price, twenty-five cents
per pound, to the agent of the planters, is not sufficiently proved; but if
made, it gave Cones no title to the cotton, if he had not a valid one before.
It was made voluntarily, with full knowledge of the facts that the plant
ers could not perform their part of the contract, and that the cotton had
been seized and ordered to be sold, by the highest military authority in
that Department. If Cones paid in his own wrong, he must look for reim
bursement to the parties who received his money, and not to the United
States.
7. If the character of the several planters by whom the cotton was raised
and for whom it was sold, be considered, the proof of their loyalty is not
sufficient ; indeed, it is admitted that two of them were in the rebel army.
I recommend, therefore, that no action be taken by this Department con
cerning this claim.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
October 1, 1864.
[No. 518.]
Draft of a Bill for Adjustment of the Claim of Aliens against the United
States, arising since the War.
The Secretary of State submits to the Secretary of War, a Bill for the
above purpose, for suggestion and amendment.
OPINION.
I have the honor to report that the Bill was framed by me, at the request
of the Hon. Mr. Seward, aided by suggestions from him, and improved by
one or two amendments subsequently made by him, and.it appears to me
to be carefully considered, and well calculated to answer the purposes for
which it was drawn.
I had supposed that the Secretary of State would take occasion to confer
personally with you upon the question of the expediency of adopting this, or
any other plan, at the present time, for establishing a tribunal with power
to adjust foreign claims. That conference not having as yet occurred, I
deem it my duty to suggest, for your consideration, the questions, —
1. Whether it is expedient to inaugurate a system providing for the ad
justment and payment of foreign claimants, prior to, and independent of, any
measures of legislation looking to the settlement of claims of our own
citizens.
2. Whether it will be profitable to protect the interests of the United
380 OPINIONS.
States by .referring claims arising out of the conduct of our military opera
tions, to a tribunal which, being totally disconnected from, and independent
of the War Department, cannot have such knowledge of facts or of the
means of obtaining them, as will be absolutely necessary to protect the in
terests of the United States in controversies of this character.
Claims will be brought before these commissioners whose sessions may
be in places remote from Washington. The War Department may have no
knowledge of such claims, and, having no responsibility, will have no occasion
to require them to be investigated by its officers ; so that vast amounts
may be awarded against the government, by default of proofs, and the facts
in defence may be known only to those military officers who took part in
making the seizures complained of.
These and other similar objections will, I doubt not, be weighed by you
and by the Secretary of State. I have thought it proper merely to call atten
tion to them.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 18, 1864.
[The draft of the bill above referred to was presented in the Senate, and
referred to a committee ; but its action upon the subject was designedly
postponed.]
[No. 528.]
Liability of Navy Agents, &c., to Trial by Courts-Martial.
The Secretary of the Navy, by G. V. Fox, his Assistant, submits to the
Solicitor of the War Department the following question : Whether navy
agents, naval storekeepers, and the clerks of naval storekeepers, " deliver
ing certificate vouchers, or receipts, without having full knowledge of the
truth of the facts stated therein, and with intent to cheat, defraud, or injure
the United States," are subject under the Act (of March 2, 1863), or any other
act, to the rules and regulations made for the government of the military and
naval forces, and whether they are subject to trial by courts-martial ?
OPINION.
The first section of the Act passed March 2, 1863, refers to persons in
the land or naval forces of the United States, or in the " militia in actual
service." The navy agents, storekeepers, and their clerks, belong to. or
are classed with the civil establishment at the navy yards and stations, hav
ing specific duties assigned them of a clerical or administrative nature, to
be performed on land, under instructions from the Secretary of the Navy,
as prescribed by statutes; and being without rank or command over
enlisted men, and not being enlisted as in the naval service, are not held
by law as part of the naval forces, and therefore are not, under the Act of
OPINIONS. 381
1863 referred to, or under any other statute known to me, liable to trial by
a court-martial for the offences specified.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 22, 1864.
[No. 531.]
Coin on the Person of a Public Enemy on Land, its Liability to Capture.
William Price, Esq., United States District Attorney, Baltimore, writes
to Mr. Whiting, enclosing an opinion of Judge Giles, upon the right of the
government to condemn money as enemy's property, when taken from the
person of an enemy on land, in our own territory. The Judge decides
against the right. Mr. Price asks whether he shall take an appeal.
OPINION.
I have received your letter of the 22d instant, enclosing a copy of the
decision of Judge Giles in the case of the United States vs. " A Canoe and
certain Merchandise and Money," libelled in the District Court.
It appears that the specie found upon the person of the captured rebel is
not regarded by Judge Giles as liable to condemnation, because the statutes
referred to as those upon which the libel was brought, viz., the Acts of July
13, 1861, and May 20, 1862, do not provide for or authorize the seizure
or confiscation of money, but only of merchandise, goods and chattels, and
the vehicles conveying them.
The Act of July 17, 1862, is referred to by Judge Giles ; but he says that
the captured rebel is not " shown to have been engaged in armed rebellion,"
and that the present is not a proceeding under that Act.
The facts in the case are but briefly stated by Judge Giles ; but enough, I
think, appears, or may be fairly presumed from,what is admitted, to make
it advisable to institute some new proceeding, based upon the sixth and
seventh sections of the Act of July 17, 1862, chapter 195, and also upon the
4th section of the Act of March 12, 1863, chapter 120.
That the owner of this gold was " aiding and abetting the rebellion,"
even if he was not actually "engaged in armed rebellion," can hardly be
doubted when the facts connected with his capture are fairly considered ; and
this brings him within the terms of the Act of 1862.
It may be found, upon inquiry, that this gold was brought from one of
the States declared in insurrection, into Maryland ; and it is certain that the
owner was not a Treasury agent, who alone under the statute of 1863, is
authorized to bring such property across the lines, without a lawful clear
ance, and it is also certain that he had no such- clearance. If, therefore,
" property," as the term is used in the statute, includes specie, and if the
382 OPINIONS.
gold in question was brought from Virginia, as may be presumed from the
residence of the owner, if no evidence to the contrary be adduced, it is liable
to condemnation under section 4 of the statute of 1863, chapter 120.
If these positions appear to you to be maintainable, and the money is still
where Judge Giles ordered it to be placed, or where it can be reached by
process, I would suggest the inquiry, whether it would not be well to take
such course as will enable you to obtain the judgment of the court upon
this view of the facts arid law, either by filing a new libel, or otherwise, as
you may find practicable and expedient.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
April 30, 1864.
[No. 532.]
Payment of Creditors' Claims out of Proceeds of Confiscated Property.
Messrs. McGraw and Wills, attorneys for the creditors of C. C. Spaulding,
request payment of their claims out of the proceeds of property confiscated
on account of his having been engaged in illegal traffic with the enemy.
OPINION.
When the property of public enemies, or of one who has given aid and com
fort to public enemies, by engaging in illegal commerce with them, has been
vested in the United States by capture, forfeiture, confiscation, or other
process, military or judicial, there is no provision of martial or of muni
cipal law by which the government is required or allowed to distribute the
proceeds of that property among those who may have pecuniary claims
against such enemies or such delinquents. The law requires such proceeds
to be otherwise appropriated.
I therefore recommend the Secretary of War to decline action on the
petition. ,
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
May 4, 1864.
[See also, on the same subject, the case of Tracy Irwin & Co. No. 1437.]
[No. 535.]
JAMES SHEPPARD
Claims restoration of cotton and other property seized upon his two
plantations near Pine Bluff, on the Arkansas River, by the forces of the
United States as abandoned property, alleging that he has taken the oath
of amnesty, and has always been a Union man, and that his plantations in
Arkansas were not abandoned.
OPINIONS.
OPINION.
383
The application of James Sheppard, lately resident in Henrico County,
Va., for the restoration of certain bales of cotton claimed by him as the
produce of his plantations in Arkansas, with indorsements filed by him in
support of his claim, and also the application of W. P. Grace, heretofore re
ferred to me, claiming the same cotton by purchase, are new returned, upon
the application of the parties, for the reason that the property is now said to
be in the possession of an agent of the Treasury, and one of the claimants
wishes that it may be sold, and that his claims to the proceeds may be con
sidered by the Treasury Department. To this course I see no objection,
and recommend that these applications, and the accompanying documents,
be accordingly transmitted to the proper officers of the Treasury.
In this, as in some similar cases, I have hesitated to express a definite
opinion, in advance of the promulgation of some general rule or the
adoption of some uniform policy on the part of the government of the
United States in relation to property captured, destroyed or damaged in
the States in rebellion, not wishing, on the one hand, to discourage per
sons who might be thought to have some equitable claims to a liberal or
lenient treatment, if such should seem good to the general government, or,
on the other hand, to put any obstacle, however slight, in the way of the
exercise of the legal rights of the United States against their enemies, if
the condition of the country during the war, or after its close, should render
it advisable to insist upon the strict enforcement of those rights.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
August 5, 1864.
[No. 707.]
CLAIM FOR DAMAGE TO PROPERTY.
The Secretary of State encloses a copy of a communication from the Brit
ish Minister, presenting the claim of Mr. Timothy Dowling, for damages
done to his property in Vicksburg, Mississippi, by persons in the United
States service.
OPINION.
I concur in the opinion of the Military Commission, which examined the
case, that the government is not responsible for the damages claimed, though
for reasons widely different from those stated by the Commission ; I do not
admit that, as an alien permanently resident in the United States, the com
plainant has any claim for indemnity for property used or injured in the
prosecution of the war.
Whether a private claim exists against Major General Ord, and the officers
384 OPINIONS.
under his command, as assumed in the finding of the Commission, it is not
deemed proper to express an opinion.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
July 25, 1864.
[No. 713.]
OATH REQUIRED OF ALIENS.
The Hon. Secretary of State encloses a copy of a communication from the
British Minister, relative to an objectionable oath exacted from foreigners
in the Department of the Gulf.
OPINION.
The oath required of alien British subjects imposes, upon those who
take it, a moral obligation to observe in good faith Her Majesty's procla
mation of neutrality, and to do nothing directly or indirectly to aid and
comfort the enemies of the United States, so long as Great Britain and the
United States shall remain at peace.
To open to foreign commerce the port of New Orleans, during the prog
ress of the civil war, was an act of national courtesy, which might lawfully
have been withheld or refused.
Those who avail themselves of the act may justly be required to give to
this government assurance of the sincerity of their neutrality ; and they
ought not to avail themselves of a privilege without abandoning any inten
tion to use that privilege against the government which grants it.
Those aliens who intend to become enemies of the United States, in vio
lation of Her Majesty's proclamation, and of the laws of nations, ought not
to be permitted to enter any port of the United States while the war lasts.
Those who take the oath do not forfeit thereby any right guaranteed by
the laws of England or by the laws of nations.
In any event, the privilege of commercial intercourse may, by the law of
nations, be restricted in time of war by the United States, in such manner
as public safety requires, and the required oath may be deemed one of those
restrictions.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
July 26, 1864.
[No. 714.]
ROMAIN DUPRE.
The Hon. Secretary of State transmits a copy of a note from the Charge
d' Affaires of France, presenting the claim of Romain Dupre for six bales of
cotton seized on his plantation in Placquemine, Louisiana, by Major Ham
ilton, of the One Hundred and Tenth New York Volunteers.
OPINIONS. 385
OPINION.
1. It is not sufficiently shown that the claimant is a subject of France.
2. It is not shown that the claimant does not come within the provisions
of the Act of February 24, 1864.
3. It is not shown that, as Dupre was a permanent resident of Louisiana,
the property of the claimant is not liable to capture as that of a public
enemy, he not having withdrawn from the country within a reasonable .time
after the war broke out.
With these views, the Department is not advised to act upon the present
information.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
July 28, 1864.
[No. 723.]
GENERAL BANKS'S ORDER RESPECTING GOLD.
The Hon. Secretary of State encloses a copy of a communication from the
British Minister relative to an order of the 18th ult., issued by Major Gen
eral Banks, respecting gold, requiring it to be deposited under supervision
of the military force of the United States.
OPINION.
The order of General Banks has been found necessary for the purpose of
preventing imported gold from being used for the aid and comfort of the
insurgents against the United States.
It is a matter of favor on the part of the United States, to open to foreign
commerce any port which has been effectually blockaded, especially when
the introduction of gold or of merchandise may be prejudicial to the inter
ests of the country, by giving aid and comfort to its public enemy.
Commerce may be allowed, with or without restrictions, to the subjects of
neutral countries in time of civil war, according to the necessities of the case,
and certainly without infringement of any treaty between the United States
and Great Britain.
It would be extraordinary if, in fact, the government which admits the im
portation of foreign gold only on condition that neutrals will not abuse a
privilege extended to them in good faith, and in full reliance upon their
neutrality, should be deprived of the power of taking proper precautions
for the preservation of that good faith, and for its own protection against
the misuse of that privilege.
All that is required of importers of gold is the temporary deposit of it in
the Treasury, with the assurance that when withdrawn, it shall not be used
illegally, or in violation of the neutral obligations of its owner.
49
386 OPINIONS.
No good reason is presented why any bona fide neutral should object to
this order.
But whether objected to or not, it is justifiable, because required in a civil
war and under the peculiar circumstances of the Department in which New
Orleans is situated, as a necessary safeguard over the privilege of commerce
extended to foreign citizens at that port.
No elaborate argument is offered to vindicate the right of our government
to make and enforce the order of General Banks, because such argument
is not called for. Its reasonableness and necessity alone are shown, and
furnish sufficient grounds for its justification.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
July 28, 1864.
[No. 730.]
JOHN H. SOTHORON'S CREDITORS.
OPINION.
In the matter of Benjamin Adams and others, alleged creditors of John
H. Sothoron, referred to me, without date, it appears that Sothoron is the
secession rebel who, with his son, murdered the lieutenant who was recruit
ing colored men on his farm, in St. Mary's County, Maryland, and fled to
Richmond ; that for these reasons his property was sequestered and used
for the benefit of the United States.
It also appears that subsequent to such sequestration, attachments were
issued, at the instance and for the benefit of the alleged creditors of Sothoron,
by the Circuit Court of said County of St. Mary's — one of whom, the above-
named Benjamin Adams, had violently taken sides with Sothoron.
They now claim that these attachments constitute a lien upon said prop
erty, entitled to priority, and that the decision of the judicial tribunal should
prevail in their behalf, without prejudice from the acts of sequestration by
the government of the United States.
In this state of facts, I am of the opinion, that,
1. One of the claimants is disloyal, if not an active enemy.
2. The appropriation of Sothoron's property in liquidating his debts,
would enure to his benefit as effectually as restoration thereof to himself.
3. The sequestration, being commenced before the attachment, is, in any
event, a prior lien, and proceedings under the same must take precedence.
4. The sequestration is a process authorized and required by the statute,
and no provision is made by law for payment of creditors' claims out of the
estate sequestered.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
July 26, 1864.
OPINIONS. 387
[No. 731.]
ANTOINE CAIRE.
Claim for Cotton seized.
The Secretary of State, May 18, 1864, encloses a translation of a note from
the French Minister, relative to a claim for one Antoine Caire, of New Or
leans, for indemnity for 188 bales of cotton seized by Lieutenant-Colonel
S. B. Holabird, in June, 1863.
Referred, July 21, 1864, to the Solicitor for opinion.
4
OPINION.
In the matter of Antoine Caire, an alleged French subject, referred to me
on the 21st instant, for my opinion upon the validity of his claim presented
through the Minister of France, for $43,261^, the estimated value of 188
bales of cotton said to have been purchased by him on the 7th April, 1862,
of C. W. Allen, planter, residing in the Parish of Pointe Coupe'e, Louisiana,
and taken from the plantation of said Allen by order of Colonel S. B. Hol
abird, Chief Quartermaster, and sold under his authority by Prize Commis
sioner George E. Tyler, at New Orleans, July 30, 1863, I am of the opinion,—
1. Thai; it is not sufficiently proved that the claimant is a subject of France,
the consular certificate, affirmed in his affidavit to be of registry at New
Orleans, not being deemed conclusive proof, inasmuch as the character of
evidence and the principles governing the consul as to the nationality of
claimant, are not known to the Department, and cannot, therefore, bd affirmed
or denied.
2. It is not shown that the claimant does not come within the provisions
of the Act of February 24, 1864.
3. The proof of ownership is not made out, and the sale may be not bona
fide, as the terms of it and the papers which passed, are not produced.
4. The question whether this species of commerce is lawful, under the
statutes of the United States, cannot be settled, on the facts .stated, without
further investigation.
5. It is not shown that the claimant was a resident of Louisiana ; if he
was, it does not appear whether, as such resident, his property is not liable to
capture, as that of a public enemy, he not having withdrawn from the
country within a reasonable time after the war broke out.
With these views, the Department is not advised to act on present infor
mation.
(Signed) WILLIAM WHITING,
July 22, 1864. Solicitor of the War Department.
388 OPINIONS.
[No. 935.]
CASE OF GEORGE CAMERON.
The Secretary of State, by letter to the Secretary of War, under date of
October 6, 1864, refers to a note from the Department of State, of the 1st
instant, and its accompaniments, relative to the case of George Cameron, now
in " Prisoners' Carnp " at Elmira ; and encloses a copy of a note of the 21st
ultimo, from J. Hume Bromly, Esquire, which represents that said Cameron
was forced into the rebel service, under his written protest as a British sub-
jecjt ; and proposes that a bond, with surety, be accepted from Cameron
" that he will leave the country for Scotland, and not return to the South,
or in any way aid the Confederates." (See 717.)
Received by the Solicitor, November 11, 1864.
OPINION.
George Cameron was captured as a prisoner of war, at Petersburg, in
arms with the forces of the Confederates. He now asserts that he is a
neutral British subject, and that he was forced into the rebel service against
his will. His assertion is not accompanied by any proofs.
If Mr. Cameron was in fact a neutral British subject and denizen of the
Confederate States, at the commencement of our civil war, he had a right
to withdraw from the belligerent territory within a reasonable time, and
would have preserved, by such withdrawal, his claim to be regarded as a
neutral alien by the United States. Having voluntarily remained a denizen
of the Confederate States, and having thereby subjected himself to the con
trol of rebels in arms, claiming a de facto right to enforce their municipal
law, he has lost his right to be treated by the United States as a subject of
Her Majesty, not only by such voluntary continuance of residence, but by
engaging in active hostilities, which he might have avoided by leaving the
country in due season.
Being thus captured as a prisoner of war, he may be lawfully held or ex
changed as such ; but, as it appears from his own statement that he was
forced into the rebel army against his will and against his written protest,
and as he is willing to leave the United States to go to Scotland, not to return
to any of the Confederate States, or in any wise to aid or abet the rebellion in
the United States or elsewhere, and as he proposes to give security ac
cordingly, I recommend that Mr. Cameron be discharged, provided that he
shall first make it appear, upon satisfactory evidence, by affidavits or other
wise, that he is bonajide a British subject, and was compelled to take up
arms on behalf of the rebels against his will, and under protest ; and further,
that he shall give his sworn parole not to aid or abet the rebellion in the
United States or elsewhere, directly or indirectly, or any person or persons
sympathizing therewith, and to proceed with reasonable despatch to Scotland,
OPINIONS. 389
and not to return to any State in rebellion during the present war, and pro
vided also that he shall give bond in the sum of fifteen thousand dollars,
with two sureties, approved by the Attorney of the United States, in the
Southern District of New York, for the faithful keeping of his parole.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
November 15, 1864.
[No. 951.]
Claim of Cowen & Dickinson for Indemnity for Two Hundred and Fifty -six
(256) Bales of Cotton, taken by the United States Forces, for Use on the
Fortifications at Knoxville, during the Siege of that City.
Referred to the Solicitor " for his opinion as to the validity of this claim
against the United States ; and also whether there be any existing appro
priation out of which it can be paid."
November 30, 1864.
OPINION.
It is one of the belligerent rights of the army to capture, seize, and use
in prosecution of the war, cotton, as well as any other personal property
belonging to the inhabitants of districts which have been declared in rebel
lion by the Political Departments of this government.
The owners thereof, whether loyal or disloyal to the Union, are deemed
in law as public enemies, and therefore they are not, by any existing stat
ute, entitled to payment, at this time, for property so seized or captured.
What provision, if any, shall hereafter be made for payment to those who,
being loyal, shall have held themselves aloof from the rebellion, or to those
who shall have supported the Union, must be hereafter determined by the
government.
The facts in this case, as to the loyalty of Messrs. Cowen & Dickinson,
and their alleged losses, and as to the actual disposition made of their cot
ton, are, upon the evidence, left somewhat in doubt ; but if they were fully
established, as stated, there is no statute of the United States, and no exist
ing appropriation, by virtue of which their claim can now be paid.
I therefore recommend that this Department take no further action in
regard to said claim.
(Signed) WILLIAM WHITING,
Solicitor of the War Department.
December 12, 1864.
[No. 1437.]
TRACY IRWIN & CO.
See No. 532.
NOTES TO THE FORTY-THIRD EDITION.
[No. I.]
WAR POWERS.
War Powers under the Constitution used by the Government in suppressing
tlie Rebellion, and recognized by the Judicial Department.
(1.) In case of insurrection, the President, as commander-in-chief of the
army and navy (Const. Art. II. Sect. 2), may call into actual service the mil
itary and naval forces of the United States, in accordance with the laws of
Congress (Const. Art. I. Sect. 8).
(2.) Congress may by law provide for raising forces by enlistments into
the regular army and navy, or into the volunteer service of the United States.,
or by mustering into that service the militia of the several States, or by draft
or conscription of all persons who are liable to do military duty.
(3.) If the insurrection shall be suppressed without a declaration or recog
nition of war, by the political departments of the government, the insurgents
will retain their constitutional rights, privileges, and immunities as citizens
of the United States, subject only to punishment for violation of municipal
laws.
(4.) If the insurgents acquire firm, exclusive military possession and con
trol over a district of the country, the government may declare or recognize
a state of civil war, and may, thereupon, lawfully assume and enforce the
rights of war against all the inhabitants of that district ; and may treat them,
individually or collectively, at its own will and pleasure, as subjects, or as
belligerents ; or it may concede to them certain belligerent rights and with
hold others.
(5.) When a state of civil war is recognized or declared by the govern
ment, the privilege of the writ of habeas corpus may be wholly or partially
suspended by acts of Congress. Martial law may be declared and enforced
in certain districts and under certain circumstances. All communication
with the belligerents may be suspended and made unlawful, whether for the
purposes of commerce or otherwise, and many rights, privileges, and iinmu-
(390)
NOTES TO THE FORTY-THIRD EDITION. 391
nities guaranteed by the constitution to loyal citizens in time of peace may
then be suspended by law without violating those guarantees.
(6.) Even if the government has declared or recognized a state of civil
war, it is not, therefore, bound to concede or to use its belligerent rights ;
it may, at its discretion, treat its revolted subjects as insurgent criminals,
who have incurred the penalties of municipal laws. In that case, they may
be held liable under our statutes to trial and punishment for
(a.) Treason against the United States.
(&.) For misprision of treason.
(c.) For exciting, engaging in, or giving aid and comfort to the rebellion.
(d.) For violation of blockades or of non-intercourse acts ; and,
(e.) For breach of other laws of the United States.
Such insurgents become also liable to the penalties of confiscation acts, and
to arrest, capture, or imprisonment by our military forces during the war.
If they have slain their enemy in battle, they are indictable for manslaughter
or murder ; if they have inflicted wounds upon him, they are subject to pros
ecution for assault with intent to kill. If, as seamen on board a rebel
cruiser, they have attacked a United States vessel, they may be convicted
of piracy. They are also responsible, individually, in civil actions for all
damages inflicted by them upon the persons or property of other citizens.
The fact that in violating laws they were acting under military orders of a
de facto rebel government, then at war with ours, will not be a legal defence
to such actions. They will also be amenable to all penal laws of Congress
not prohibited by the constitution.
(7.) When the government, having recognized or declared any district of
the country to be in the status of civil war, has determined to exercise its
belligerent powers, it has the constitutional right to treat all the inhabitants
of that district as public enemies of the United States, and $p subject them
to the rules of war. By acts of Congress it may forbid to such public en
emies all intercourse between them and the people of the loyal states, and
may repeal all laws by which seaports in rebel districts have been designated
ports of entry under our revenue system. The President, as commander-in-
chief of our military and naval forces, may declare and maintain blockades
of enemy seaports under the law of nations.
(8.) The property of insurgents, recognized as public enemies, may be
captured on the ocean, or on navigable waters, as prize of war, and may be
condemned as such in our prize courts, their personal property on land may be
destroyed by our military or naval forces, it may be used by the captors for war
purposes, it may be seized and confiscated under confiscation acts, or it may
be captured, and used or sold, or appropriated for the public benefit in any
manner which may be provided for by laws of Congress, without indem
nity. The slaves of public enemies may be captured and freed, or eman
cipated. Their lands situated within the jurisdiction of the United States
may be seized and held, and used by the government during the war, or
392 NOTES TO THE FORTY-THIRD EDITION.
may be confiscated, and sold for the benefit of the United States, in accord
ance with the laws of Congress.
(9.) Our public enemies are subject to martial and military law. They
may be captured as prisoners of war, or wounded, or slain in battle. They
may be tried by courts martial, or by military commissions. They may be
held, after active hostilities have ceased, as prisoners of war, as captives,
or as a conquered people. They may be controlled by military governments,
erected by the President, as commander-in-chief, while the war is flagrant ;
and, when hostilities have ceased, by military or civil governments, erected
in accordance with the laws of Congress.
(10.) As public enemies, they are entitled only to the rights of war, and
therefore hold no civil or political rights under the Constitution, as citizens
of the United States.
(11.) Whether, when, and on what terms peace shall be restored, de
clared, or recognized, depends upon the will of the political department of
government, which alone has the power to declare war, and make peace.
(12.) Whether any of the civil or political rights guaranteed to citizens
of the United States, under the Constitution, in time of peace, shall be re
stored to ihe public enemies of the country, will depend upon the will and
pleasure of Congress, which has the power to withhold them, or to restore
them, upon whatever terms or conditions it may prescribe by law.
(13.) The judicial department, which now consists of the Supreme,
Circuit, and District Courts, is bound by the Constitution to follow, respect,
and conform to the decisions of the political departments of the govern
ment upon all political questions, and to declare and administer the law in
accordance therewith. Among these political questions, the most important
are these, viz. When civil war shall be declared or recognized; when,
and on what tej:ms and conditions, peace shall be declared or recognized ;
whether, and on what terms, the insurgents may be restored to their original
constitutional relations to the government?
When civil war has been declared or recognized, and when the inhabitants
of a portion of the country have been lawfully declared or recognized as
public enemies, the courts of the United States have no authority to treat
any inhabitant of that portion of the country otherwise than as a public
enemy. Such courts are by law closed against enemies of the country,
who, having lost all civil and political rights in or against our government,
have no lawful authority, so long as they retain that character or legal
status, to appear or to act in our judicial tribunals as judges, officers,
lawyers, suitors, or claimants.
(14.) The political departments may extend pardons, amnesty, or res
toration of personal, civil, or political rights to all enemies according to law.
The courts are bound to recognize and apply the decisions of these depart
ments to all cases and persons affected by them.
NOTES TO THE FORTY-THIRD EDITION. 393
[No. 2. Preface, p. v., and pp. 28-132.]
OT At7tT'~DV
SLAVERY
A brief Sketch of the Laws of Congress, the Acts of the Executive, and the
Amendments of the Constitution, l>y which Slavery has been terminated in
the United States, and Civil and Political Eights have been guaranteed to
all Citizens, without Distinction of Color, Race, or previous Condition of
Slavery.
As slavery was the prime cause of rebellion, any further toleration of it
seemed inconsistent with the preservation of our government. Hence it
was one of the leading objects of the author to prove that, by virtue of the
powers devolved upon the President and upon Congress by the existence
of' civil war, they had, for the first time since the formation of the Union,
an unquestionable right to give freedom to slaves, without violating any
clause of the Constitution. In the preceding essays, several modes of
accomplishing this object were indicated, of which either one or all might
be rightfully adopted in accordance with principles sanctioned by jurists
and publicists of the highest authority, on questions of international law as
applied to cases of civil. war.
At the present time (A. D. 1870), after a lapse of more than eight years
since the publication of the first edition of the " War Powers," a brief
reference to the most important measures by which slavery has been actu
ally overthrown and extirpated, will show how far the legal, political, and
constitutional principles advocated in this work have received the subse
quent indorsement and approval of the several departments of our govern
ment.
Just before the rebellion broke out, Congress had passed, by a unanimous
vote, the following declaratory resolution : —
" Resolved, That neither the Federal government, nor the people, nor the
governments of the non-slaveholding States, have the right to legislate upon,
or interfere with, slavery in any of the slaveholding States in the Union."
The sacrifice to slavery demanded as a prelude to rebellion by the south
ern leaders of the democratic party, which then had control of the govern
ment, a sacrifice which was actually submitted to by republicans, in hope of
saving the Union by averting the calamities of war, is recorded in the joint
resolution which passed the Senate, 24 to 12, and the House, 133 to 65, on
the 2d of March, 1861. It was in these terms : —
" That the following articles be proposed to the legislatures of the several
States, as an amendment to the Constitution of the United States, which,
when ratified by three fourths of said legislatures, shall be valid, to all in
tents and purposes, as part of the said Constitution.
" ART. XIII. No amendments shall be made to the Constitution which will
authorize or give to Congress the power to abolish or interfere, within any
-60
394 NOTES TO THE FORTY-THIRD EDITION.
State, with the domestic institutions thereof, including that of persons held
to labor or service by the laws of said States."
The attack of the rebels upon Fort Sumter, on the 14th of April, 1861,
put an end to all further movements of leading republicans of the free States
in Congress, tending to the perpetuation of slavery.
On the 20th of July, 1861, Mr. Trumbull, of Illinois, chairman of the
Senate committee on the judiciary, reported a bill by order of that com
mittee, to confiscate the property used for insurrectionary purposes. He
afterwards offered an additional section as an amendment, which provided
for the forfeiture of all " claims to labor or service," under State laws, of
slaves employed in aiding or promoting insurrection. This amendment
passed the Senate by a vote of 33 to 6. In the House, on the 3d of August,
1861, the bill was reported by Mr. Bingham, from the committee on the
judiciary, with an amended section, which was more effective, and secured
forfeiture of and freedom to all slaves who should thereafter be required or
permitted by their masters to do any work in or on any fort, navy yard,
dock, armory, ship, or intrench ment, or in any military or naval service
whatever, against the government and lawful authority of the United States.
This amendment was adopted ; ayes 53, nays 42 ; and the bill passed the
House ; yeas 60, nays 48 ; and as amended passed the Senate, and was
approved August 6, 1861. (Chap. 60.)
Mr. Eliot, of Massachusetts, December 2, 1861, introduced, on leave, a
joint resolution setting forth that, while we disclaim all power under the
Constitution to interfere by ordinary legislation with the institutions of the
States, yet the war now existing must be conducted according to the usages
and rights of military service. " That, therefore, we do hereby declare the
President as commander-in-chief of our army, and the officers under him have
the right to emancipate all persons held as slaves in any military district in
a state of insurrection against the national government ; and that we re
spectfully advise that such order of emancipation be issued, whenever the
same will avail to weaken the power of the rebels in arms, or to strengthen
the military power of the loyal forces." This resolution was rejected by
Congress.
December 5, Mr. Trumbull, of Illinois, introduced a bill into the Sen
ate, which provided that the slaves of persons who should take up arms
against the United States, or in any manner aid or abet the rebellion, should
be made free.
December 11, Mr. Morrill, of Maine, introduced into the Senate a joint
resolution to confiscate the property of rebels and satisfy the just claims of
loyal persons. This also provided for the freedom of slaves of rebels op
posed to the government. Several other bills, resolutions, and amendments
were offered by senators, all having the same general object, and the same
limitations. All these bills and resolutions were referred to a committee.
In the House Mr. Eliot's joint resolution and various other measures were
NOTES TO THE FORTY-THIRD EDITION. 395
in like manner referred to a committee of the House, of which Mr. Eliot
was a member. Subsequently, by unanimous consent of the House, he
introduced two bills, of which one was, " To "confiscate the property of
rebels for the payment of the expenses of the present rebellion, and for
other purposes ; " the other was a bill to free from servitude the slaves
of rebels engaged in abetting the existing rebellion against the government
of the United States. These bills, having been referred to a committee,
were reported back on the 20th of April, 1862, and were then, and for sev
eral succeeding days, debated in the House. Mr Sedgwick, of New York,
offered an amendment which made it the duty of every commanding officer
of a naval or military department within any portion of the rebel States, by
proclamation, or in some other way, to invite all slaves to come within our
lines and to be enrolled in the service of the United States. " And by that,"
he said, " I mean any service they can render, civil or military ; and that it
shall be the duty of such commanding officer to enroll every such person,
and employ such of them as may be necessary in the service of the United
States, and to reward these services with freedom to them and to their de
scendants forever. I include in that the slaves not only of rebels, but of
persons claiming to be loyal ; but I propose for these, compensation, and I
also propose compensation for the services of all such as may be claimed by
widows and minors." This amendment of Mr. Sedgwick received only
thirty-two votes, while negative votes were one hundred and sixteen.
After these confiscation and partial emancipation measures had passed
through an unusual variety of transformations, they came before a commit
tee of conference between the House and Senate, which filially reported in
substance the Senate amendment prepared by Mr. Clark, of New Hamp
shire, which combined the confiscation and emancipation measures in one
bill, and this received the approval of the President July 17, 1862. (Chap. 19<3.)
This act provides that slaves of persons who gave aid and comfort to the
rebellion, refugees to our lines, slaves captured from or those deserted by
rebels, slaves found by our troops in places which had been held by rebels,
should be deemed captives of war, and be made free; that fugitive slaves
should not be returned to rebel masters ; that our military officers should
not return fugitive slaves even to loyal owners ; and that the President might
employ persons of African descent for the suppression of the rebellion, &c.
This act was confined to slaves who might be deemed captives of war ; and
to them alone it gave freedom.
December 16, 1861, Mr. Wilson, of Massachusetts, introduced a bill into
the Senate " for the release of certain persons held to service or labor in
the District of Columbia." It passed the Senate April 3, 1862, and the
House, 92 to 39, April 11, and was approved April 16, 1862. (Acts of 1862,
Chap. 54.)
On the 23d of December, 1861, Mr. Wilson, of Iowa, introduced a reso
lution, " That the committee on military affairs be requested to report a
396 NOTES TO THE FORTY-THIRD EDITION.
bill to this House for the enactment of an additional article of war, where
by all officers in the military service of the United States should be
prohibited from using any portion of the forces under their respective com
mands for the purpose of returning to their masters fugitives from service
or labor, and to provide for the punishment of such officers as may violate
said article by dismissal from the service." A bill was accordingly reported
and passed, and was approved March 13, 1862. (Chap. 40.)
President Lincoln recommended in his Message of March 6, 1862, to
Congress, the adoption of a resolution, " That the United States ought to
cooperate with any State which may adopt gradual abolishment of slavery,
giving to such State pecuniary aid, to be used by such State in its discre
tion, to compensate for the inconveniences, public and private, produced by
such change of system."
March 10, 1862, Mr. Conkling, of New York, asked leave to introduce
into the House a joint resolution to that effect. Leave was granted, and
the resolution, having been introduced, passed the House March 11 (89 to 31).
On the 2d of April it passed the Senate (32 to 10) ; and was approved April
10, 1862. (Joint Res. No. 26.)
Mr. Arnold, of Illinois, introduced into the House, March 24, 1862, a bill
to prohibit slavery in the territories of the United States. It was reported
back from the committee on territories, to whom it had been referred, with
amendments, and was passed by the House, May 12 (85 to 50). In the
Senate, the bill was referred to the committee on territories, and amended
by striking out all after the enacting clause, and inserting, " That from and
after the passage of this act, there shall be neither slavery nor involuntary
servitude in any of the territories of the United States, now existing, or
which may at any time hereafter be formed or acquired by the United States,
otherwise than in punishment of crimes, whereof the party shall have been
duly convicted." This bill, so amended, passed the Senate (28 to 10) on the
9th of June, 1862, and on the 17th passed the House, and was approved
June 19, 1862. (Chap. 111.)
By a bill which was introduced by Mr. Grimes, of Iowa, April 29, 1862,
the school tax on property of colored persons residing in the District of
Columbia, which had previously been expended in maintenance of schools
for white children, was to be in future applied to maintain schools for
colored children ; and by an amendment proposed by Mr. Wilson, of Mas
sachusetts, persons of color in that district were placed on the same footing
with white persons as to their laws, trials for offences, and punishment for
crimes. This act was approved May 21, 1862. (Chap. 83.)
June 12, 1862, Mr. Sumner introduced a bill to carry into effect the treaty
with Great Britain for the suppression of the slave trade. This was ap
proved July 1, 1862.
June 23, 1862, Mr. Lovejoy, of Illinois, introduced a bill to provide for
the inauguration in the District, of a system of public schools for the edu-
NOTES TO THE FORTY-THIRD EDITION. 397
cation of colored youth ; creating a board of trustees, who possess tne same
powers in relation to colored children as the trustees of public schools
in Washington and Georgetown. This bill was approved July 11, 1862.
(Chap. 151.)
July 8, 1862, Mr. Foster, of Connecticut, introduced a bill authorizing the
President to make certain humane provisions for persons of color, delivered
from on board vessels seized in the prosecution of the slave trade by com
manders of United States vessels. This was passed, and approved July 17,
1862.
An additional act, introduced by Mr. Wilson, of Massachusetts, and
amend-ed on motions of Mr. Grimes and Mr. Sumner, to remove some of the
vestiges of slavery in the District,. was approved July 12, 1862. It provides,
among other things, that slaves employed in the District after April 16, 1862,
shall be free ; and that color shall not exclude witnesses in any judicial pro
ceedings of the courts of the District. (Chap. 155.)
July 8, 1862, Mr. Wilson, of Massachusetts, reported from the committee
on military affairs a bill to " amend the act of February 28, 1795, for calling
forth the militia to execute the laws of the Union, suppress insurrection, and
repel invasion." Mr. Grimes, of Iowa, moved to amend it by adding provis
ions that there should be no exemption from military duty on account of
color ; that when the militia should be called into service, the President
should have full power and authority to organize them according to race and
color. Mr. King, of New York, moved to strike out the first two sections
of Mr. Grimes's amendment, and to insert two new sections : —
" That the President be, and he is hereby, authorized to receive into the
service of the United States, for the purpose of constructing intrenchments
or performing camp service, or any other labor, or any war service for which
they may be found competent, persons of African descent ; and such per
sons shall be enrolled and organized under such regulations, not inconsistent
with the constitution and laws, as the President may prescribe ; and they
shall be fed, and paid such compensation for their services as they may agree
to receive when enrolled.
" That when any man or boy of African descent shall render any such
service as is provided for in the first section of this act, he, his mother, and
his wife and children shall forever thereafter be free, any law, usage, or cus
tom whatsoever to the contrary notwithstanding."
A violent and continuous discussion arose upon this bill between those
who would have colored persons introduced as soldiers into our army and
those opposed to that measure, although there was but little objection to
their employment as laborers. This bill was passed and approved July 17,
1862. (Chap. 201.) And under it, for the first time in the history of this coun
try since the adoption of the Constitution, persons of African descent could,
by law of Congress, be introduced into the military service as soldiers. They
were by subsequent acts required to be enrolled in the same manner as white
men, and were made part of the militia of the United States. Their pay —
which was at first ten dollars per month, and rations, and the freedom of
398 NOTES TO THE FORTY-THIRD EDITION.
themselves, and under certain conditions the freedom of their families, was,
by subsequent acts, equalized with that of other soldiers from and after Jan
uary 1, 1864. (See Note on the laws for raising and organizing military
forces, p. 478.)
On the 17th of February, 1863, Mr. Wilson, of Massachusetts, introduced
a bill to incorporate " an institution for the education of colored youth," to
be located in the District of Columbia ; and it passed the Senate (29 to 9), and
having on the 2d of March passed the House, was approved March 3, 1863.
June 25, 1864, the President approved an act which made it the duty of
the school commissioners in the District to establish public schools for col
ored children, to provide school-houses, to employ teachers, and to appro
priate a proportion of the school fund, to be determined by the number of
white and colored children between the ages of six and seventeen years.
About thirty-five hundred colored children obtained by this law the same
privileges as white ones in public schools at Washington and Georgetown.
One of the important acts of Congress was that by which the Freedman's
Bureau was established under the war power of the government. The bill
to erect a bureau for freedmen and refugees was first introduced into the
House by Mr. Eliot, of Massachusetts, December, 1863. It passed the
House, but failed in the Senate. In 1864 it was again brought forward,
with some amendments, and was passed ; and was approved March 3, 1865.
(For Letter of Mr. Eliot, relating to the act, see Note No. 9, page 464.)
Of all measures taken by Congress in relation to slavery, the most im
portant was the resolution for submitting to the States a proposition to
amend the Constitution by prohibiting slavery forever. On the 14th De
cember, 1863, Mr. Ashley, of Ohio, and Mr. Wilson, of Iowa, presented
resolutions to that effect, both of which were referred to the committee on
judiciary, of which Mr. Wilson was chairman. In the Senate, Mr. Hen
derson, of Indiana, on the llth of January, and Mr. Sumner, of Massa
chusetts, on the 8th of February, 1864, introduced similar resolutions, which
were referred to the judiciary committee. February 10, Mr. Trumbull,
chairman of that committee, reported adversely on Mr. Sumner's resolution,
and on Mr. Henderson's, but reported a resolution, —
" That the following article be proposed to the legislatures of the several
States, as an amendment of the Constitution of the United States, which,
when ratified by three fourths of said legislatures, shall be valid, to all in
tents and purposes, as a part of the said Constitution — namely,
"'Art. XIII. Sect. 1. Neither slavery nor involuntary servitude, except
as a punishment for crime, whereof the party shall have been duly con
victed, shall exist within the United States, or any place subject to their
jurisdiction.
" ' Sect. 2. Congress shall have power to enforce this article by appropri
ate legislation.' "
In this form the resolution passed the Senate (38 to 6), although it failed
at that time in the House ; but it was subsequently (January 27, 1865)
passed in the House by the requisite two thirds vote, and was approved
NOTES TO THE FORTY-THIRD EDITION. 399
February 1, 1865 (Resolution No. 11, Stat. 1865, page 567), and has been
subsequently ratified, and is now a part of our Constitution.
The " Act to protect all persons in the United States in their civil rights,
and furnish the means of their vindication " (approved April 9, 1866), de
clared that all persons should be deemed citizens of the United States
who were bora in the United States, and not subject to any foreign power
(excluding only Indians not taxed), including persons of every race and
color, without regard to any previous condition of slavery. It declared that
they should all have the same rights of persons and property, and be liable
only to the same penal laws as white citizens ; and it made any violation of
these rights a penal offence. It provided effective machinery for the ex
ecution of the law in all parts of the country. This law was of vast im
portance in securing justice and liberty for the colored race in the Southern
States. With this act, which was the precursor of the amendment of the
Constitution which embodies the same principles, the names of Mr. Trum-
bull, of Illinois, and of Mr. Bingham, of Ohio, are indissolubly connected.
This act was followed by the joint resolution of 16th June, 1866, proposing
the following amendment to the Constitution, which was subsequently rat
ified, and*duly proclaimed by the Secretary of State.
4fe
AMENDMENT XIV.
Sect. 1. All persons born or naturalized in the United States, and sub
ject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States ;
nor shall any State deprive any person of life, liberty, or property, without
due process of law, nor deny to any person within its jurisdiction the equal
protection of the laws.
Sect. 2. Representatives shall be apportioned among the several Mates
according to their respective numbers, counting the whole number of per
sons in each State, excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for President and Vice-Presi
dent of the United States, representatives in Congress, the executive and
iudicial officers of a State, or the members of the legislature thereof, is de
nied to any of the male inhabitants of such State, being twenty-one years
of age, and citizens of the United States, or in any way abridged, except
for participation in rebellion or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one years
of age in such State.
Sect. 3. No person shall be a senator, or representative in Congress,
or elector of President or Vice-President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken
an oath, as a member of Congress, or as an officer of the United States, or as
a member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have en
gaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of two thirds of each
House, remove such disability.
Sect. 4. The validity of the public debt of the United States, author-
400 NOTES TO THE FORTY-THIRD EDITION.
ized by law, including debts incurred for payment of pensions and bounties
for services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States, nor any State, shall assume or pay any debt
or obligation, incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave ; but all such
debts, obligations, and claims shall be held illegal and void.
Sect. 5. The Congress shall have power to enforce, by appropriate legis
lation, the provisions of this article.
On the 24th of January, 1867, Congress passed an act (Stat. 1867, Chap. 15)
providing that the elective franchise in the Territories should not be, there
after, denied to any persons on account of color, race, or previous condition
of servitude.
The joint resolution of Congress of February 27, 1869, proposed the
Fifteenth Amendment of the Constitution. The ratification thereof was
announced by the State Department March 30, 1870, and by a proclama
tion of the President.
AMENDMENT XV.
Sect. 1. The right of the citizens of the United States to vote shall not
be denied or abridged by the United States, or by any State, on account of
race, color, or previous condition of servitude.
Sect. 2. Congress shall have power to enforce this article by appro
priate legislation.
This amendment has been followed by the acts of May 31, 1870, chap. 114,
and July 14, 1870, chap. 254, to enforce the provisions thereof, securing
the right guaranteed by the amendment, requiring a true registry of legal
voters to be prepared at stated times, and affixing heavy penalties for false
voting, false registering, or false counting, or for wrongfully refusing to
register or to receive a vote, or for bribery, corruption, or intimidation.
ACTS OF THE EXECUTIVE RELATING TO SLAVERY.
The most important acts of President Lincoln in relation to slavery plainly
indicate the rapid advancement made by him towards the conclusion that
slavery must be destroyed in order that the republic might be preserved.
The steps which marked his progress may be traced in the following proc
lamations : —
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
Whereas there appears in the public prints what purports to be a proc
lamation of Major General Hunter, in the words and figures following, to
wit : —
" Headquarters Department of the South,
"Hilton Head, S. C., May 9, 1862.
" General Orders No. 11. — The three States of Georgia,' Florida, and
South Carolina, comprising the military department of the South, having
deliberately declared themselves no longer under the protection of the
United States of America, and having taken up arms against the said
United States, it becomes a military necessity to declare them under mar-
NOTES TO THE FORTY-THIRD EDITION. 401
tial law. This was accordingly done on the 25th day of April, 1862. Slavery
and martial law in a free country are altogether incompatible ; the persons
in these three States — Georgia, Florida, and South Carolina — heretofore
held as slaves, are therefore declared forever free.
"(Official) DAVID HUNTER,
" Major General Commanding.
"ED. W. SMITH, Acting Assistant Adjutant Gen'l."
And whereas the same is producing some excitement and misunder
standing, therefore,
I, ABRAHAM LINCOLN, President of the United States, proclaim and
declare, that the Government of the United States had no knowledge, infor
mation, or belief, of an intention on the part of General Hunter to issue
such a proclamation ; nor has it yet any authentic information that the doc
ument is genuine. And further, that neither General Hunter, nor any other
commander, or person, has been authorized by the Government of the
United States to make proclamations declaring the slaves of any State free ;
and that the supposed proclamation now in question, whether genuine or
false, is altogether void, so far as respects such declaration.
I further make known that whether it be competent for me, as Com-
mander-in-Chief of the Army and Navy, to declare the slaves of any State
or States free, and whether at any time, in any case, it shall have become a
necessity indispensable to the maintenance of the Government, to exercise
such supposed power, are questions which, under my responsibility, I re
serve to myself, and which I cannot feel justified in. leaving to the decision
of comman'ders in the field. These are totally different questions from those
of police regulations in armies and camps.
On the sixth day of March last, by a special message, I recommended to
Congress the adoption of a joint resolution to be substantially as follows : —
'I Piesolved, That the United States ought to cooperate with any State
which may adopt a gradual abolishment of slavery, giving to such State
pecuniary aid, to be used by such State in its discretion, to compensate for
the inconveniences, public and private, produced by such change of system."
The resolution, in the language above quoted, was adopted by large
majorities in both branches of Congress, and now stands an authentic, def
inite, and solemn proposal of the nation to the States and people most im
mediately interested in the subject-matter. To the people of those States I
now earnestly appeal — I do not argue — I beseech you to make the argu
ment for yourselves — You cannot, if you would, be blind to the signs of
the times — I beg of you a calm and enlarged consideration of them, ran
ging, if it may be, far above personal and partisan politics. This proposal
makes common cause for a common object, casting no reproaches upon any.
It acts not the Pharisee. The change it contemplates would come gently
as the dews of heaven, not rending or wrecking anything. Will you not eni-
brace it ? So much good has not been done, by one effort, in all past time,
as, in the providence of God, it is now your high privilege to do. May the
vast future not have to lament that you have neglected it.
In witness whereof, I have hereunto set my hand, and caused the seal
of the United States to be affixed.
Done at the City of Washington, this nineteenth day of May, in
[SEAL.] the year of our Lord one thousand eight hundred and sixty-two,
and of the Independence of the United States the eighty-sixth.
ABRAHAM LINCOLN.
By the President :
WILLIAM H. SEWARD, Secretary of State.
51
402 NOTES TO THE FORTY-THIRD EDITION.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
I, ABRAHAM LINCOLN, President of the United States of America, and
Commander-in-Chief of the Army and Navy thereof, do hereby proclaim and
declare that hereafter,. as heretofore, the war will be prosecuted for the ob
ject of practically restoring the constitutional relation between the United
States and each of the States and the people thereof, in which States that
relation is or may be suspended or disturbed.
That it is my purpose, upon the next meeting of Congress, to again rec
ommend the adoption of a practical measure tendering pecuniary aid to the
free acceptance or rejection of all slave States, so called, the people whereof
may not then be in rebellion against the United States, and which States
may then have voluntarily adopted, or thereafter may voluntarily adopt, im
mediate or gradual abolishment of slavery within their respective limits;
and that the effort to colonize persons of African descent with their consent
upon this continent or elsewhere, with the previously obtained consent of
the governments existing there, will be continued.
That on the first day of January, in the year of our Lord one thousand
eight hundred and sixty-three, all persons held as slaves within any State or
designated part of a State, the people whereof shall then be in rebellion
against the United States, shall be then, thenceforward, and forever free ;
and the Executive Government of the United States, including the military
and naval authority thereof, will recognize arid maintain the freedom of such
persons, and will do no act or acts to repress such persons, or any of them,
in any efforts they may make for their actual freedom.
That the Executive will, on the first day of January aforesaid, by procla
mation, designate the States and parts of States, if any, in which the people
thereof, respectively, shall their be in rebellion against the United States ;
and the fact that any State, or the people thereof, shall on that day be, in
good faith, represented in the Congress of the United States by members
chosen thereto at elections wherein a majority of the qualified voters of such
State shall have participated, shall, in the absence of strong countervailing
testimony, be deemed conclusive evidence that such State, and the people
thereof, are not then in rebellion against the United States.
That attention is hereby called to an act of Congress entitled "An Act to
make an additional article of war," approved March 13, 1862, and which act
is in the words and figures following :
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That hereafter the following shall
be promulgated as an additional article of war, for the government of the
army of the United States, and shall be obeyed and observed as such :
" ARTICLE — . All officers or persons in the military or naval service of the
United States are prohibited from employing any of the forces under their
respective commands for the purpose of returning fugitives from service or
labor who may have escaped from any persons to whom such service or
labor is claimed to be due, and any officer who shall be found guilty by a
court martial of violating this article shall be dismissed from the service.
" SEC. 2. And be it further enacted, -That this act shall take effect from
and after its passage."
Also to the ninth and tenth sections of an act entitled " An Act to sup
press insurrection, to punish treason and rebellion, to seize and confiscate
property of rebels, and for other purposes," approved July 17, 1862, and
which sections are in the words and figures following :
NOTES TO THE FORTY-THIRD EDITION. 403
" SEC. 9. And be it further enacted, That all slaves of persons who shall
hereafter be engaged in rebellion against the Government of the United
States, or who shall in any way give aid or comfort thereto, escaping from
such persons, and taking refuge within the lines of the army ; and all slaves
captured from such persons or deserted by them, and coming under the con
trol of the Government of the United States ; and all slaves of such persons
found on [or] being within any place occupied by rebel forces, and after
wards occupied by the forces of the United States, shall be deemed captives of
war, and shall be forever free of their servitude, and not again held as slaves.
" SEC. 10. And be it further enacted, That no slave escaping into any
State, Territory, or the District of Columbia, from any other State, shall be
delivered up, or in any way impeded or hindered of his liberty, except for
crime, or some offence against the laws, unless the person claiming said
fugitive shall first make oath that the person to whom the labor or service
of such fugitive is alleged to be due is his lawful owner, and has not borne
arms against the United States in the present rebellion, nor in any way-
given aid and comfort thereto ; and no person engaged in the military or
naval service of the United States shall, under any pretence whatever," as
sume to decide on the validity of the claim of any person to the service or
labor of any other person, or surrender up any such person to the claimant,
on pain of being dismissed from the service."
And I do hereby enjoin upon and order all persons engaged in the mili
tary and naval service of the United States to observe, obey, and enforce,
within their respective spheres of service, the act and sections above recited.
And the Executive will in due time recommend that all citizens of the
United States who shall have remained loyal thereto throughout the rebel
lion shall (upon the restoration of the constitutional relation between the
United States and their respective States and people, if that relation shall
have been suspended or disturbed) be compensated for all losses by acts of
the United States, including the loss of slaves.
In witness whereof, I have hereunto set my hand, and caused the seal of
the United States to be affixed.
Done at the City of Washington this twenty-second day of Septem-
I~L s 1 b.er' in the year of our L°rd one tnousan<l eight hundred and
sixty-two, and of the Independence of the United States the
eighty-seventh.
ABRAHAM LINCOLN.
By the President :
WILLIAM II. SEWARD, Secretary of State.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
WHEREAS, on the twenty-second day of September, in the year of our
Lord one thousand eight hundred and sixty-two, a proclamation was issued
by the President of the United States, containing, among other things, the
following, to wit :
" That on the first day of January, in the year of our Lord one thousand
eight hundred and sixty-three, all persons held as slaves within any State
or designated part of a State, the people whereof shall then be in rebellion
against the United States, shall be then, thenceforward, and forever, free :
and the Executive Government of the United States, including the military
and naval authority thereof, will recognize and maintain the freedom of such
persons, and will do no act or acts to'repress such persons, or any of them,
in any efforts they may make for their actual freedom.
404 NOTES TO THE FORTY-THIRD EDITION.
" That the Executive will, on the first day of January aforesaid, by procla
mation, designate the States and parts of States, if any, in which the people
thereof, respectively, shall then be in rebellion against the United States ;
and the fact that any State, or the people thereof, shall on that day be in
good faith represented in the Congress of the United States, by members
chosen thereto at elections wherein a majority of the qualified voters of such
States shall have participated, shall, in the absence of strong countervailing
testimony, be deemed conclusive evidence that such State, and the people
thereof, are not then in rebellion against the United States."
Now, therefore, I, ABRAHAM LINCOLN, President of the United States,
by virtue of the power in me vested as Commander-in- Chief of the Army and
Navy of the United States, in time of actual armed rebellion against the
authority and Government of the United States, and as a fit and necessary
war measure for suppressing said rebellion, do, on this first day of January,
in the year of our Lord one thousand eight hundred and sixty-three, and in
accordance with my purpose so to do, publicly proclaimed for the full period
of one hundred days from the day first above mentioned, order and desig
nate as the States and parts of States wherein the people thereof, respective
ly, are this day in rebellion against the United States, the following, to wit :
Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Plaque-
mines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption,
Terre Bonne, Lafourche, St. Mary, St. Martin, and Orleans, including the
city of New Orleans), Mississippi', Alabama, Florida, Georgia, South Caro
lina, North Carolina, and Virginia (except the forty-eight counties desig-
present left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and
declare that all persons held as slaves within said designated States and parts
of States are, and henceforward shall be, free ; and that the Executive Gov
ernment of the United States, including the military and naval authorities
thereof, will recognize and maintain the freedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain
from all violence, unless in necessary self-defence ; and I recommend to them
that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known that such persons, of suitable con
dition, will be received into the armed service of the United States to gar
rison forts, positions, stations, and other places, and to man vessels of all
sorts in said servicel
And upon this act, sincerely believed to be an act of justice, warranted
by the Constitution upon military necessity, I invoke the considerate judg
ment of mankind, and the gracious favor of Almighty God.
In witness whereof, I have hereunto set my hand, and caused the seal of
the United States to be affixed.
Done at the City of Washington this first day of January, in the
year of our Lord one thousand eight hundred and sixty-three,
LL- s'-l and of the Independence of the United States of America the
eighty-seventh.
ABRAHAM LINCOLN.
By the President :
WILLIAM H. SEWARD, Secretary of State.
NOTE. — For extracts from President Lincoln's Message of December 8, 1863, see
pp. 250-253.
NOTES TO THE FORTY-THIRD EDITION. 405
[No. 3. See p. 26.]
SLAVES IN THE ARMY.
Compensation to Masters of Slaves employed in the Military Service of the
United States.
The policy adopted by the government in relation to the use of slaves in
the army is fully explained in a subsequent note upon the organization of
persons of African descent as part of our military and naval forces.
The principles asserted in the text in relation to the right of our govern
ment to use slaves of loyal and of disloyal masters have been recognized and
confirmed by several acts of Congress. The right of the masters to com
pensation has also been the subject of legislative discussion.
As the acts of April 16, 1862 (Chap. 54), and July 12, 1862, (Chap. 155), by
which slavery in the District of Columbia was abolished, and by which com
pensation to slave masters was provided for, were not founded on the war
powers of the government, they need not be especially noticed in this con
nection.
On the 22d of September, 1862, President Lincoln issued a proclamation
in which he announced that it was his purpose to treat as free all slaves held
in any State which should be declared in rebellion on the first day of the
following January ; and to propose, upon the next meeting of Congress, to
grant pecuniary aid to all such slave States not then in rebellion, as would
adopt measures for the gradual or immediate emancipation of slaves ; and
to recommend to Congress that all citizens of the United States who should
be found to have remained loyal thereto throughout the rebellion (on res
toration of peace) be compensated for all losses by acts of the United
States, including the loss of slaves.
Claims to slaves employed for insurrectionary purposes, and claims of
rebels to slaves however employed, were disallowed by acts of August 6,
1861 (Chap. 60), and April 16, 1862 (Chap. 54). By act of February 24,
1864 (Chap. 13), it is provided (Sec. 24) that, " When a slave of a loyal master
shall be drafted and mustered into the service of the United States, his
master shall have a certificate thereof, and thereupon such slave shall be
free, and the bounty of one hundred dollars, now payable by law for each
drafted man, shall be paid to the person to whom such drafted man was
owing service or labor at the time of his muster into the service of the United
States." The same bounty was also made payable to persons who had
theretofore enlisted or volunteered in the service. The Secretary of Wai-
was requested to appoint a commission in each of the Slave States rep
resented in Congress, charged to award to each loyal person to whom
a colored volunteer may owe service a just compensation, not exceeding
three hundred dollars, for each such volunteer, payable out of the tund
derived from commutations; and every such colored volunteer, on being
400 NOTES TO THE FORTY-THIRD EDITION.
mustered into service, was to be free. The provisions of this act were made
retrospective, so as to cover bounties and compensation to masters for prior
enlistments of slaves.
Under this act commissioners were appointed by the Secretary of War,
and rules were drawn up, and forms of deeds of manumission were prepared
at the request of the Secretary of War, by the Solicitor of the War Depart
ment ; and such commissioners awarded bounties and compensation to
numerous slave masters residing in the loyal slave States, all of whom were
required to execute such deeds of manumission before receiving their money.
On the 10th of February, 1864, Mr. Trumbull, Senator from Illinois, Chair
man of the Committee on the Judiciary, reported a resolution that an arti
cle abolishing slavery be proposed to the legislatures of the several States,
as an amendment to the Constitution. This resolution was taken upNby
the Senate as in committee of the whole, on the 28th of March, and it was
debated from time to time until the 8th of April, when it was finally passed,
by vote of 38 to 6. On the 31st of May it was taken up in the House, and,
after long discussion, was subsequently passed and approved, February 1,
1865. During the pendency of these discussions it is probable that there
was no undue zeal or activity on the part of the commissioners to award
bounties and compensations to slave masters. After the amendment was
ratified, no further allowances were made ; and neither the amendment of
the Constitution nor the laws of Congress have provided for any further in
demnity to loyal or disloyal citizens for the loss of their slaves.
The Fourteenth Amendment of the Constitution, recommended by Con
gress in 1866, and finally ratified by the States in 186S, provides that,
" Neither the United States nor any State shall assume or pay any debt or
obligation, incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or the emancipation of any slave ; but all
such debts, obligations, and claims shall be held illegal and void."
[No. 4. See pp. 54 and 116.]
CONFISCATION.
The views of President Lincoln upon the Confiscation Act of July 17,
1862, were fully expressed by him in the following Message to Congress,
dated on the same day on which he approved that act.
MESSAGE.
Fellow-citizens of the Senate and House of Representatives :
Considering the bill for an act to suppress insurrection, to punish trea
son and rebellion, to seize and confiscate the property of rebels, and for
other purposes, and the joint resolution explanatory of said act, as being
substantially one, I have approved and signed both.
Before I was informed of the passage of the resolution, I had prepared
NOTES TO THE FORTY-THIRD EDITION. 407
the draft of a message stating objections to the bill becoming a law, a copy
of which draft is herewith transmitted.
ABRAHAM LINCOLN.
July 17, 1862.
Fellow-citizens of the House of Representatives :
I herewith return to your honorable body, in which it originated, the
bill for an act entitled an act to suppress treason and rebellion, to seize
and confiscate the property of rebels, and for other purposes, together with
my objections to its becoming a law.
There is much in the bill to which I perceive no objection. It is wholly
prospective, and it touches neither the person nor property of any loyal
citizen — in which particular it is just and proper.
The first and second sections provide for the conviction and punishment
of persons who shall be guilty of treason, and the persons who shall incite,
set on foot, assist or engage in any rebellion or insurrection against the au
thority of the United States, or the laws thereof, or shall give aid or com
fort to any such existing rebellion or insurrection.
By fair construction the persons within these sections are not to be pun
ished without regular trials in duly constituted courts, under the forms and
all the substantial provisions of law, and of the Constitution applicable to
their several cases. To this I perceive no objection, especially as such per
sons would be within the general pardoning power, and also within the
special provision for pardon and amnesty contained in this act. It also
provides that the slaves of persons confiscated under these sections shall
be free. I think there is an unfortunate form of expression rather than a
substantial objection in this. It is startling to say that Congress can free
a slave within a State ; and yet, were it said that the ownership of a slave
had first been transferred to the nation, and that Congress had then liber
ated him^ the difficulty would vanish ; and this is the real case. The traitor
against the general government forfeits his slave at least as justly as he
does any other property, and he forfeits both to the government against
which he offends. The government, so far as there can be ownership, owns
the forfeited slaves, and the question for Congress in regard to them is,
Shall they be made free, or sold to new masters ? I see no objection to
Congress deciding in advance that they shall be free. To the high honor of
Kentucky, as I am informed, she has been the owner of some slaves by
escheat, and has sold none, but liberated all. I hope the same is true of
some other States. Indeed, I do not believe it would be physically possi
ble for the general government to return persons so circumstanced to actual
slavery. I believe there would be physical resistance to it, which would
never be turned aside by argument, nor driven away by force. In this view
of it, I have no objection to this feature of the bill.
Another matter involved in these two sections and running through other
parts of the act, will be noticed hereafter.
I perceive no objection to the third and fourth sections. So far as I wish
to notice the fifth and sixth sections, they may be considered together.
That the enforcement of these sections would do no injustice to the persons
embraced within them is clear. That those who make a causeless war should
be compelled to pay the cost of it, is too obviously just to be called in ques
tion. To give government protection to the property of persons who have
abandoned it and gone on a crusade to overthrow that same government is
absurd, if considered in the mere light of justice. The severest justice may
not always be the best policy. The principle of seizing and appropriating
the property of the persons embraced within these sections is certainly not
408 NOTES TO THE FORTY-THIRD EDITION.
very objectionable, but a justly indiscriminating application of it would be
very difficult, and to a great extent impossible ; and would it not be wise to
place a power of remission somewhere, so that these persons may know that
they have something to save by desisting?
I am not sure whether such power of remission is or is not within section
thirteen without a special act of Congress. I think our military command
ers, when, in military phrase, they are within the enemy's country, should in
an orderly manner seize and keep whatever of real or personal property may
be necessary or convenient for their commands, and at the same time pre
serve in some way the evidence of what they do.
What I have said in regard to slaves while commenting on the first and
second sections, is applicable to the ninth, with the difference that no pro
vision is made in the whole act for determining whether a particular indi
vidual slave does or does not fall within the class defined within that section.
He is to be free upon certain conditions ; but whether these conditions do or
do not pertain to him, no mode of ascertaining is provided. This could
be easily supplied.
To the tenth section I make no objection. The oath therein required
seems to be proper, and the remainder of the section is substantially iden
tical with a law already existing.
The eleventh section simply assumes to confer discretionary powers upon
the Executive without the law. I have no hesitation to go as far in the
direction indicated as I may at any time deem expedient, and I am ready to
to say now I think it is proper for our military commanders to employ as
laborers as many persons of African descent as can be used to advantage.
The twelfth and thirteenth sections are something better ; they are un
objectionable, and the fourteenth is entirely proper if all other parts of the
act shall stand.
That to which I chiefly object pervades most parts of the act, but more
distinctly appears in the first, second, seventh, and eighth sections. It is
the sum of those provisions which results in the divesting of title forever.
For the causes of treason — the ingredients of treason, but amounting to the
full crime — it declares forfeiture extending beyond the lives of the guilty
parties, whereas the Constitution of the United States declares that no at
tainder of treason shall work corruption of blood or forfeiture, except
during the life of the person attainted. True, there is to be no formal
attainder in this case ; still I think the greater punishment cannot be consti
tutionally inflicted in a different form for the same offence. With great
respect, I am constrained to say I think this feature of the act is unconsti
tutional. It wrould not be difficult to modify it.
I may remark that the provision of the Constitution, put in language bor
rowed from Great Britain, applies only in this country, as I understand, to
real estate.
Again, this act, by proceedings in rem, forfeits property for the ingredi
ents of treason without a conviction of the supposed criminal, or a personal
hearing given him in any proceeding. That we may not touch property
lying within our reach because we cannot give personal notice to an owner
who is absent endeavoring to destroy the government, is certainly not very
satisfactory. Still the owner may not be thus engaged, and I think a reason
able time should be provided for such parties to appear and have personal
hearings. Similar provisions are not uncommon in connection with pro
ceedings in rem.
For the reasons stated I return the bill to the House, in which it origi
nated.
NOTES TO THE FORTY-THIRD EDITION. 409
President Lincoln, at this time, held the opinion that Congress had no
power " to free a slave within a State," although he was satisfied that if
slaves of rebels should by capture become the property of the government,
it might and ought to restore such captives to freedom. He had also fallen
into the error of supposing that Congress had no power to pass a law for
confiscating the real estate of rebels in fee simple. After a subsequent and
through examination of the subject, his opinion was changed ; and with that
frankness and sincerity for which he was so remarkable, he communicated
to others the views he then entertained, and authorized the Hon. George W.
Julian, a member of Congress from Indiana, one of his highly esteemed
friends, to announce in public that he was ready to give his official support
and sanction to a repeal of the declaratory resolution, which, as he under
stood it, limited forfeitures for treason to life estates of traitors. In 1863-4
both Houses of Congress passed a bill which contained a clause repealing
that resolution ; but the project of reconstrucion which it embodied was not,
in some respects, satisfactory to the President, and it did not become a law.
In 1864-5 bills passed each branch of Congress having the effect of
abrogating this qualifying resolution, but neither of them became a law :
nevertheless, these facts and proceedings show that the House, the Senate,
and the President, after mature consideration, gave their practical sanction
to the correctness of the constitutional doctrine stated in the text. The
error of the President was of the gravest character ; it resulted in paralyzing,
if it did not wholly destroy, one of the most effective means of crushing the
spirit of rebellion ; for it left the rebel owners of large estates, at the end of
the Avar, in full possession and control of their lands, and they managed to
exclude from ownership of the soil the great body of freedmen and of the
poorer classes of white men who were friendly to the Union. (See p. 230-239.)
If these colossal plantations had been confiscated in fee, and broken up
into small farms, and distributed among the loyal common people, the
power of that class which caused the war would have terminated with the
surrender of their armies. Estates for life, in a time of war, could hardly
find purchasers, and were of so uncertain a tenure, that confiscation, so far
as it applied to real estate, was as useless to the government as it was
harmless to the enemy.
CONFEDERATE LAWS OF CONFISCATION.
The " Confederate States " passed a series of acts, from which we may
learn the views entertained by strict constructionists in relation to the war
powers of their own government, which had adopted the Constitution of
the United States and the laws thereof, with few, if any alterations, except
ing as regards slavery.
On the 8th of August, 1861, the Provisional Congress passed "An Act
respecting alien enemies " (Chap. 19. See Stat. at Large of the Provisional
Congress, page 174), as follows :
52
410 NOTES TO THE FORTY-THIRD EDITION.
The Congress of the Confederate States of America do enact, That when
ever there shall be a declared war between the Confederate States and any
foreign nation or government, or any invasion or predatory incursion shall be
perpetrated, attempted or threatened against the territory of the Confederate
States, by any foreign nation or government, and the President of the Con
federate States shall make public proclamation of the event, or the same
shall be proclaimed by act of Congress, all natives, citizens, denizens, or
subjects of the hostile nation or government, being males of fourteen years
of age and upwards, who shall be within the Confederate States, and not
citizens thereof, shall be liable to be apprehended, restrained or secured, and
removed as alien enemies : Provided, That during the existing war, citizensC
of the United States, residing within the Confederate States, with intent to
become citizens thereof, and who shall make a declaration of such intention,
in due form, and acknowledging the authority of the government of the same,
shall not become liable as aforesaid, nor shall this act extend to citizens of
the States of Delaware, Maryland, Kentucky, Missouri, and of the District
of Columbia, and the Territories of Arizona and New Mexico, and the Indian
Territory south of Kansas, who shall not be chargeable with actual hostility
or other crime against the public safety, and who shall acknowledge the
authority of the government of the Confederate States.
SEC. 2. The President of the Confederate States shall be, and he is here
by, authorized, by his proclamation, or other public act, in fase of existing
or declared war, as aforesaid, to provide for the removal of those who, not
being permitted to reside within the Confederate States, shall refuse or neg
lect to depart therefrom ; and to establish such regulations in the premises
as the public safety may require.
SEC. 3. Immediately after the passage of this act, the President of the
Confederate States shall, by proclamation, require all citizens of the United
States, being males of fourteen years and upwards, within the Confederate
States, and adhering to the government of the United States, and acknowl
edging the authority of the same, and not being citizens of the Confederate
States, nor within the proviso of the first section of this act, to depart from
the Confederate States within forty days from the date of said proclama
tion ; and such persons remaining within the Confederate States after that
time shall become liable to be treated as alien enemies ; and in all cases of
declared war as aforesaid, aliens, resident within the Confederate States,
who shall oecome liable as enemies as aforesaid, and who shall not be charge
able with actual hostility or other crime against the public safety, shall be
allowed the time for the disposition of their effects and for departure, which
may be stipulated by any treaty with such hostile nation or government;
and when no such treaty may exist the President shall prescribe such time
as may be consistent with the public safety, and accord with the dictates of
humanity and national hospitality.
SEC. 4. After any declared war, or proclamation, as aforesaid, it shall
be the duty of the several courts of the Confederate States, and of each
State having criminal jurisdiction, and of the several judges and justices of
the courts of the Confederate States, and they are hereby authorized, upon
complaint against any alien, or alien enemies, as aforesaid, or persons com
ing within the purview of this act, who shall be resident, or remaining in
the Confederate States, and at large within the jurisdiction or district of
such judge or court, as aforesaid, contrary to the intent of this act, and of the
proclamation of the President of the Confederate States, or the regulations
prescribed by him, in pursuance of this act, to cause such alien or aliens,
person or persons, as aforesaid, to be duly apprehended and convened be
fore such court, judge or justice, for examination ; and after a full examina-
NOTES TO THE FORTY-THIRD EDITION. 411
tion and hearing in such complaint, and sufficient cause therefor appearing,
shall or may order such alien or aliens, person or persons, to be removed
out of the territory of the Confederate States, or to be otherwise dealt with or
restrained, conformably to the intent of this act, and the proclamation or regu
lations which may be prescribed as aforesaid, and may imprison or otherwise
secure such alien person until the order which shall be made shall be performed.
SEC. 5. It shall be the duty of the marshal of the district, in which any
alien enemy or person offending against the provisions of this act, shall be
apprehended, who by the President of the Confederate States, or by order
of any court, judge or justice, as aforesaid, shall be required to depart, [or]
to be removed as aforesaid, to execute such order by himself or deputy, or
other discreet person, and for such execution the marshal shall have the
warrant of the President, or the court or judge, as the case may be.
Approved August 8, 1861.
On the 30th of August, 1861, the Confederates passed the following
" Act for the sequestration of the estates, property, and effects of alien
enemies, and for the indemnity of citizens of the Confederate States, and
persons aiding the same in the existing war with the United States."
Whereas the Government and people of the United States have departed
from the usages of civilized warfare in confiscating and destroying the prop
erty of the people of the Confederate States of all kinds, whether used
for military purposes or not ; and whereas, our only protection against such
wrongs is to be found in such measures of retaliation as will ultimately
indemnify our own citizens for their losses, and restrain the wanton ex
cesses of our enemies : Therefore —
Be it enacted by the Congress of the Confederate States of America, That
all and every the lands, tenements and hereditaments, goods and chattels,
rights and credits within these Confederate States, and every right and in
terest therein held, owned, possessed or enjoyed by or for any alien enemy
since the twenty-first day of May, one thousand eight hundred and sixty-
one, except such debts due to an alien enemy as may have been paid into
the Treasury of any one' of the Confederate States prior to the passage of
this law, be, and the same are hereby, sequestrated by the Confederate States
of America, and shall be held for the full indemnity of any true and loyal
citizen or resident of these Confederate States, or other person aiding said
Confederate States in the prosecution of the present war between said Con
federate States and the United States of America, and for which he may
suffer any loss or injury under the act of the United States, to which this
act is retaliatory, or under any other act of the United States, or of any State
thereof authorizing the seizure, condemnation, or confiscation of the prop
erty of citizens or residents of the Confederate States, or other person aid
ing said Confederate States, and the same shall be seized and disposed of
as provided for in this act : Provided, however, When the estate, property
or rights to be effected by this act were, or are, within some State of this
Confederacy, which has become such since said twenty-first day of May,
then this act shall operate upon and as to such estate, property or rights,
and all persons claiming the same from and after the day such State so be
came a member of this Confederacy, and not before : Provided, further,
That the provisions of the act shall not extend to the stocks or other public
securities of the Confederate Government, or of any of the States of this
Confederacy held or owned by any alien enemy, or to any debt, obligation,
or sum due from the Confederate Government, or any of the States, to such
412 NOTES TO THE FORTY-THIRD EDITION.
alien enemy : And provided, also, That the provisions of this act shall not
embrace the property of citizens or residents of either of the States of Del
aware. Maryland, Kentucky or Missouri, or of the District of Columbia, or
the Territories of New Mexico, Arizona, or the Indian Territory south of
Kansas, except such of said citizens or residents as shall commit actual hos
tilities against the Confederate States, or aid and abet the United States in
the existing war against the Confederate States.
SEC. 2. And be it further enacted, That it is, and shall be, the duty of
each and every citizen of these Confederate States speedily to give informa
tion to the officers charged with the execution of this law of any and every
lands, tenements and hereditaments, goods and chatiels, rights and credits
within this Confederacy, and of every right and interest therein held, owned,
possessed or enjoyed by or for any alien enemy as aforesaid.
SEC. 3. Be it further enacted, That it shall be the duty of every attor
ney, agent, former partner, trustee or other person holding or controlling
any such lands, tenements or hereditaments, goods or chattels, rights or
credits, or any interest therein, of or for any such alien enemy, speedily to
inform the receiver hereinafter provided to be appointed, of the same, and
to render an account thereof, and. so far as is practicable, to place the same
in the hands of such receiver ; whereupon, such person shall be fully acquitted
of all responsibility for property and effects so reported and turned over.
And any such person wilfully failing to give such information and render
such account shall be guilty of a high misdemeanor, and upon indictment
and conviction, shall be fined in a sum not exceeding five thousand dollars,
and imprisoned not longer than six months, said fine and imprisonment to
be determined by the court trying the case, and shall further be liable to be
sued by said Confederate States, and subjected to pay double the value of
the estate, property or effects of the alien enemy held by him or subject to
his control.
SEC. 4. It shall be the duty of the several judges of this Confederacy
to give this act specially in charge to the grand juries of these Confederate
States, and it shall be their duty at each sitting well and truly to enquire
and report all lands, tenements and hereditaments, goods and chattels, rights
and credits, and every interest therein, within the jurisdiction of said grand
jury, held by or for any alien enemy, and it shall be the duty of the several
receivers, appointed under this act, to take a copy of such report, and to
proceed in obtaining the possession and control of all such property and
effects reported, and to institute proceedings for the sequestration thereof in
the manner hereinafter provided.
SEC. 5. Be it further enacted, That each judge of this Confederacy shall,
as early as practicable, appoint a receiver for each section of the State for
which he holds a court, and shall require him, before entering upon the duties
of his office, to give a bond in such penalty as may be prescribed by the
judge, with good and sufficient security, to be approved by the judge, con
ditioned that he will diligently and faithfully discharge the duties imposed
upon him by law. And said officer shall hold his office at the pleasure of
the judge of the district or section for which he is appointed, and shall be
removed for incompetency, or inefficiency, or infidelity in the discharge of
his trust. And should the duties of any such receiver, at any time, appear
to the judge to be greater than can be efficiently performed by him, then it
shall be the duty of the judge to divide the district or section into one or
more other receivers' districts, according to the necessities of the case, and
to appoint a receiver for each of said newly created districts. And every
such receiver shall also, before entering upon the duties of his office, make
oath in writing before the judge of the district or section for which he is ap
pointed, diligently, well and truly to execute the duties of his office.
NOTES TO THE FORTY-THIRD EDITION. 413
SEC. 6. Be it further enacted, That it shall be the dutyof the several
receivers aforesaid to take the possession, control and management of all
lands, tenements and hereditaments, goods and chattels, rights and credits
of each and every alien enemy within the section for which he acts. And
to this end he is empowered and required, whenever necessary for accom
plishing the purposes of this act, to sue for and recover the same in the
name of said Confederate States, allowing, in the recovery of credits, such
delays as may have been, or may be, prescribed in any State as to the col
lection of debts therein during the war. And the form and mode of action,
whether the matter be of jurisdiction in law or equity, shall be by petition
to the court setting forth, as best he can, the estate, property, right or thing
sought to be recovered, \vith the name of the person holding, exercising
supervision over, in possession of, or controlling the same, as the case may
be, and praying a sequestration thereof. Notice shall thereupon be forth
with issued by the clerk of the court, or by the receiver, to such person,
with a copy of' the petition, and the same shall be served by the marshal or
his deputy and returned to the court as other mesne process in law cases ;
whereupon, the cause shall be docketed and stand for trial in the court ac
cording to the usual course of its business, and the court or judge shall, at
any time, make all orders of seizure that may seem necessary to secure the
subject-matter of the suit from danger of loss, injury, destruction or waste,
and may, pending the cause, make orders of sale in cases that may seem to
such judge or court necessary to preserve any property sued for from per
ishing or waste : Provided, That in any case when the Confederate judge
shall find it to be consistent with the safe-keeping of the property so seques
tered, to leave the same in the hands and under the control of any debtor
or person in whose hands the real estate and slaves were seized, who may
be in possession of the said property or credits, he shall order the same to
remain in the hands and under the control of said debtor or person in whose
hands the real estate and slaves were seized, requiring in every such case
such security for the safe-keeping of the property and credits as he may
deem sufficient for the purpose aforesaid, and to abide by such further or
ders as the court may make in the premises. But this proviso shall not
apply to bank or other corporation stock, or dividends due, or which may
be due thereon, or to rents on real estates in cities. And no debtor or other
person shall be entitled to the benefit of this proviso unless he has first paid
into the hands of the receiver all interests or net profits which may have
accrued since the twenty-first May, eighteen hundred and sixty-one ; and, in
all cases coming under this proviso, such debtor shall be bound to pay over
annually to the receiver all interest which may accrue as the same falls due ;
and the person in whose hands any other property may be left shall be
bound to account for, and pay over annually to the receiver, the net income
or profits of said property, and on failure of such debtor or other person to
pay over such interest, net income or profits, as the same falls due, the re
ceiver may demand and recover the debt or property. And wherever, after
ten days' notice to any debtor or person in whose hands property or debts
may be left, of an application for further security, it shall be made to appear
to the satisfaction of the court that the securities of such debtor or person
are not ample, the court may, on the failure of the party to give sufficient
additional security, render judgment against all the parties on the bond for
the recovery of the debt or property: Provided, further, That said court
may, whenever, in the opinion of the judge thereof, the public exigencies
may require it, order the money due as aforesaid to be demanded by the re
ceiver, and if upon demand of the receiver, made in conformity to a decreta.
order of the court requiring said receiver to collect any debts for the pay-
414 NOTES TO THE FORTY-THIRD EDITION.
ment of which security may have been given under the provisions of this
act, the debtor or his security shall fail to pay the same, then upon ten days'
notice to said debtor and his security, given by said receiver, of a motion to
be made in said court for judgment for the amount so secured, said court,
at the next term thereof, may proceed to render judgment against said prin
cipal and security, or against the party served with such notice, for the sum
so secured with interest thereon, in the name of said receiver, and to issue
execution therefor.
SEC. 7. Any person in the possession and control of the subject-matter
of any such suit, or claiming any interest therein, may, by order of the
court, be admitted as a defendant and be alloAved to defend to the extent of
the interest propounded by him ; but no person shall be heard in defence
until he shall file a plea, verified by affidavit and signed by him, setting forth
that no alien enemy has any interest in the right which he asserts, or for
which he litigates, either directly or indirectly, by trust, open or secret, and
that he litigates solely for himself, or for some citizens of the Confederate
States whom he legally represents ; and when the defence is conducted for
or on account of another, in whole or part, the plea shall set forth the name
and residence of such other person, and the relation that the defendant bears
to him in the litigation. If the cause involves matter which should be tried
by a jury according to the course of the common law, the defendant shall be
entitled to a jury trial. If it involves matters of equity jurisdiction, the
court shall proceed according to its usual mode of procedure in such cases,
and the several courts of this Confederacy may, from time to time, establish
rules of procedure under this act, not inconsistent with the act or other laws
of these Confederate States.
SEC. 8. Be it further enacted, That the clerk of the court shall, at the
request of the receiver, from time to time, issue writs of garnishment, di
rected to one or more persons, commanding them to appear at the then sit
ting, or at any future term of the court, and to answer under oath what
property or effects of any alien enemy he had at the service of the process,
or since has had under his possession or control belonging to or held for an
alien enemy, or in what sum, if any, he is or was at the time of service of
the garnishment, or since has been indebted to any alien enemy, and the
court shall have power to condemn the property or effects, or debts, accord
ing to the answer, and to make such rules and orders for the bringing in of
third persons claiming or disclosed by the answer to have an interest in the
litigation as to it shall seem proper ; but in no case shall any one be heard
in respect thereto until he shall, by sworn plea, set forth substantially the
matters before required of parties pleading. And the decree or judgment
of the court, rendered in conformity to this act, shall forever protect the
garnishee in respect to the matter involved. And in all cases of garnishment
under this act, the receiver may test the truth of the garnishee's answer by
filing a statement, under oath, that he believes the answer to be untrue, spe
cifying the particulars in which he believes the garnishee has, by omission
or commission, not answered truly ; whereupon the court shall cause an
issue to be made between the receiver and garnishee, and judgment rendered
as upon the trial of other issues. And in all cases of litigation under this
act the receiver may propound interrogatories to the adverse party touching
any matter involved in the litigation, a copy of which shall be served on the
opposite party or his attorney, and which shall be answered under oath within
thirty days of such service, and upon failure so to answer, the court shall
make such disposition of the cause as shall to it seem most promotive of
justice, or should it deem answers to the interrogatories necessary in order
to secure a discovery, the court shall imprison the party in default until full
answers shall be made.
NOTES TO THE FORTY-THIRD EDITION. 415
SEC. 9. It shall be the duty of the District Attorney of the Confederate
States diligently to prosecute all causes instituted under this act, and he
shall receive as a compensation therefor two per cent, upon and from the
fruits of all litigation instituted under this act : Provided, That no matter
shall be called litigated except a defendant be admitted by the court, and a
proper plea be filed.
SEC. 10. Be it further enacted, That each receiver appointed under this
act shall, at least every six months, and as much oftener as he may be re
quired by the court, render a true and perfect account of all matters in his
hands or under his control under the law, and shall make and state just and
perfect accounts and settlements under oath of his collections of moneys and
disbursements under this law, stating accounts and making settlements of
all matters separately, in the same way as if he were administrator of sev
eral estates of deceased persons by separate appointments. And the settle
ments and decrees shall be for each case or estate separately, so that the
transaction in respect to each alien enemy's property may be kept recorded
and preserved separately. No settlement as above provided shall, however,
be made until judgment or decree of sequestration shall have passed, but
the court may at any time pending litigation, require an account of matters
in litigation and in the possession of the receiver, and may make such orders
touching the same as shall protect the interest of the parties concerned.
SEC. 11. When the accounts of any receiver shall be filed respecting any
matter which has passed sequestration, the court shall appoint a day for set
tlement and notice thereof shall be published consecutively for four weeks
in some newspaper near the place of holding the court, and the clerk of the
court shall send a copy of such newspaper to the District Attorney of the
Confederate States, for the court, where the matter is to be heard, and it
shall be the duty of said District Attorney to attend the settlement and rep
resent the government and to see that a full, true and just settlement is
made. The several settlements preceding the final one shall be interlocu
tory only, and may be impeached at the final settlements, which latter shall
be conclusive, unless reversed or impeached within two years, for fraud.
SEC. 12. Be it further enacted, That the court having jurisdiction of the
matter shall, whenever sufficient cause is shown therefor, direct the sale of
any personal property, other than slaves, sequestered under this act, on such
terms as to it shall seem best, and such sale shall pass the title of the person
as whose property the same has been sequestered.
SEC. 13. All settlements of accounts of receivers for sequestered prop
erty shall be recorded and a copy thereof shall be forwarded by the clerk of
the court to the Treasurer of the Confederate States within ten days after
the decree, interlocutory or final, has been passed ; and all balances found
against the receiver shall by him be paid over into the court, subject to the
order of the Treasurer of the Confederate States, and upon the failure of
the receiver for five days to pay over the same, execution shall issue there
for, and he shall be liable to attachment by the court and to suit upon his
bond. And any one embezzling any money under this act shall be liable
to indictment, and on conviction shall be confined at hard labor for not less
than six months nor more than five years, in the discretion of the court,
and fined in double the amount embezzled.
SEC. 14. Be it further enacted, That the President of the Confederate
States shall, by and with the advice and consent of Congress, or of the Sen
ate, if the appointment be made under the permanent Government, appoint
three discreet Commissioners, learned in the law, who shall hold at the seat
of Government two terms each year, upon notice given, who shall sit so
long as the business before them shall require ; whose duty it shall be, under
416 NOTES TO THE FORTY-THIRD EDITION.
such rules as they may adopt, to hear and adjudge such claims as may be
brought before them by any one aiding this Confederacy in the present war
against the United States, who shall allege that he has been put to loss
under the act of the United States, in retaliation of which this act is passed,
or under any other act of the United States, or of any State thereof, author
izing the seizure, condemnation or confiscation of the property of any citi
zen or resident of the Confederate States, or other person aiding said Con
federate States in the present war with the United States, and the finding
of such Commissioners in favor of any such claim shall be prima facie evi
dence of the correctness of the demand, and whenever Congress shall pass
the claim, the same shall be paid from any money in the Treasury derived
from sequestration under this act ; Provided, That said Board of Commis
sioners shall not continue beyond the organization of the Court of Claims,
provided for by the Constitution ; to which Court of Claims the duties herein
provided to be discharged by Commissioners shall belong upon the organ
ization of said Court. The salaries of said Commissioners shall be at the
rate of two thousand five hundred dollars per annum, and shall be paid from
the Treasury of the Confederacy. And it shall be the duty of the Attorney
General or his assistant to represent the interests of this Government in all
cases arising under triis act before said Board of Commissioners.
SEC. 15. Be it further enacted, That all expenses incurred in proceedings
under this act shall be paid from the sequestered fund, and the Judges, in
settling accounts with Receivers, shall make to them proper allowances of
compensation, taking two and a half per cent, on receipts, and the same
amount on expenditures, as reasonable compensation, in all cases. The fees
of the officers of court shall be such as are allowed by law for similar ser
vices in other cases, to be paid, however, only from the sequestered fund ;
Provided, That all sums realized by any Receiver in one year for his services,
exceeding five thousand dollars, shall be paid into the Confederate Treasury,
for the use of the Confederacy.
SEC. 16. Be it further enacted, That the Attorney General shall prescribe
such uniform rules of proceeding under this law, not herein otherwise pro
vided for, as shall meet the necessities of the case.
SEC. 17. Be it further enacted, That appeals may lie from any final de
cision of the court under this law, in the same manner and within the same
time as is now, or hereafter may be by law prescribed for appeals in other
civil cases.
SEC. 18. Be it further enacted, That the wrord "person" in this law in
cludes all private corporations ; and in all cases, when corporations become
parties, and this law requires an oath to be made, it shall be made by some
officer of such corporation.
SEC. 19. Be it further enacted, That the courts are vested with jurisdic
tion, and required by this act, to settle all partnerships heretofore existing
between a citizen and one who is an alien enemy ; to separate the interest
of the alien enemy, and to sequestrate it. And shall, also, sever all joint
rights when an alien enemy is concerned, and sequestrate the interest of
such alien enemy.
SEC. 20. Be it further enacted, That in all cases of administration of
any matter or thing, under this act, the court having jurisdiction may make
such orders touching the preservation of the property or effects under the
direction or control of the Receiver, not inconsistent with the foregoing pro
visions, as to it shall seem proper. And the Receiver may, at any time, ask
and have the instructions of the court, or Judge, respecting his conduct in
the disposition or management of any property or effects under his control.
SEC. 21. That the Treasury notes of this Confederacy shall be receivable
in payment of all purchases of property or effects sold under this act.
NOTES TO THE FORTY-THIRD EDITION. 417
SEC. 22. Be it further enacted, That nothing in this act shall be con
strued to destroy or impair the lien or other rights of any creditor, a citizen
or resident of either of the Confederate States, or of any other person, a
citizen or resident, of any country, State, or Territory, with which this Con
federacy is in friendship, and which person is not in actual hostility to this
Confederacy. And any lien or debt claimed against any alien enemy, within
the meaning of this act, shall be propounded and filed in the court, in which
the proceedings of sequestration are had, within twelve months from the
institution of such proceedings for sequestration ; and the court shall cause
all proper parties to be made and notices to be given, and shall hear and
determine the respective rights of all parties concerned ; Provided, however,
That no sales or payments over of money shall be delayed for, or by reason
of, such rights or proceedings ; but any money realized by the Receiver,
whether paid into the court, or Treasury, or still in the Receiver's hands,
shall stand in lieu of that which produced said money, and be held to answer
the demands of the creditors aforesaid, in the same manner as that which
produced such money was. And all claims not propounded and filed as
aforesaid, within twelve months as aforesaid, shall cease to to exist against
the estate, property, or effects sequestrated, or the proceeds thereof.
Approved August 30, 1861.
On the 23d of December, 1861, the Confederates passed
CHAP. XVII. — An Act in relation to Taxes on Property which has been, or
which is liable to be sequestered as the Property of alien Enemies.
The Congress of the Confederate States of America do enact, as follows :
That it shall be the duty of the Receivers under the sequestration act, to
pay all taxes upon property of alien enemies, which is liable therefor, within
their respective districts, out of any funds in their hands as receivers, said
payment to be charged to the account of the property upon which the tax
has been paid : Provided, however, If it appear to any Receiver that such
Eroperty, in any case, is not worth more than the taxes for which it is liable,
e shall report the facts to the Secretary of the Treasury, whose duty it
shall be to instruct the Receiver whether he shall pay the taxes or allow the
property to be sold for the taxes.
SEC. 2. That the Receivers be authorized to sell by order of court, and
in such manner, and upon such terms, as the court may prescribe, any prop
erty within their respective districts, which has been sequestered, or which
is liable thereto, for the purpose of raising money for the payment of the
taxes aforesaid.
SEC. 3. That whenever a Receiver has not funds in hand, over and above
what is necessary for other expenditures, sufficient to pay said taxes, and
cannot obtain the same by sale as aforesaid, within the time fixed for the
payment of said taxes, he is hereby authorized to give, to the tax collector
charged with the collection of the taxes, a certificate of the amount due, and
he shall specify therein the property upon which the same is due ; and the
Secretary of the Treasury shall pay the amount so certified to be due, and
shall cause the same to be charged to the sequestration fund. But the giv
ing of the certificate shall be subject to the same condition precedent as
provided in regard to payment in the first section of this act.
SEC. 4. That the Secretary of the Treasury be authorized to make agree
ments with the several States, counties, cities and towns for the postpone
ment of the collection of taxes for which the property of alien enemies is se
questered, or liable to be ; and in case any one or more of the States, coun-
53
418 NOTES TO THE FORTY-THIRD EDITION.
ties, cities or towns consent to the same, he is hereby empowered to issue
certificates for the amount due, bearing interest at the rate of six per cent,
per annum, which shall bind the government to pay the same, and which,
when paid, shall be charged to the sequestration fund'.
SEC. 5. That whenever the property of an alien enemy sequestered, or
liable thereto, has been, or shall hereafter be, sold for taxes, the Secretary
of the Treasury is hereby authorized, with the assent of the State in which
the property has been sold, to redeem the same by the payment of the sum
or sums required to be paid by citizens in such case, or by the issue of cer
tificates therefor, as hereinbefore provided, should he deem it advisable, and
in all such cases, such property shall go into the hands of the Receiver for
the district in which the same is situate, and be held and accounted for in
the same manner as other sequestered property ; provided the amount of
the redemption shall be charged to the sequestration fund.
Approved December 23, 1861.
On the 15th of February, 1862, the Confederates passed
CHAP. LXXI. — An Act to alter and amend an Act entitled" An Act for
the Sequestration of the Estates, Property and Effects of alien Enemies,
and for Indemnity of Citizens of the Confederate States, and Persons
aiding the same in the existing War with the United States," approved
August thirtieth, eighteen hundred and sixty-one.
' The Congress of the Confederate States of America do enact, That all
and every the lands, tenements and hereditaments, goods and chattels, rights
and credits, and every right and interest therein embraced by said act of se
questration, of which this act is an alteration and amendment, shall be col
lected and sold, as provided for in this act, and the proceeds paid into the
Treasury of the Confederate States ; but in no case shall a debt, or other
chose in action, be sold.
SEC. 2. Be it further enacted, That all money realized under this act, and
the act to which it is an amendment, shall be applied to the equal indemnity
of all persons, loyal citizens of the Confederate States, or persons aiding
the same in the present war, who have suffered, or may hereafter suffer, loss
or damage by confiscation, by the Government of the United States, or by
any State government, or pretended government, acknowledging and aiding
the Government of the United States in this war, or by such acts of the
enemy, or other causes incident to the war, as, by future act of Congress,
may be described or defined, as affording, under the circumstances, proper
cases for indemnity. And all money realized as aforesaid, shall be paid into
the Treasury of said Confederate States, as provided by the act to which
this is an amendment ; and the faith of the Confederate States is hereby
pledged that the same shall be refunded, as required for the purposes afore
said. And the Secretary of the Treasury shall cause a separate account of
said money to be kept in well bound books procured for that purpose.
SEC. 3. Be it further enacted, That it shall be the duty of every person
in actual possession of, or having under his control, any money, property,
effects or evidences of debt, belonging to an alien enemy, speedily to inform
the receiver, and to render an account thereof, and at once to pay over to
the receiver, and to deliver to him such property and effects, and evidences of
debt, and such payment and delivery shall be made without regard to whether
any proceedings have or have not been instituted to sequestrate the same.
And any person who, after giving such information, shall fail so to pay over
and deliver on demand, made by the receiver, shall stand in contempt, and
NOTES TO THE FORTY-THIRD EDITION. 419
the receiver shall at once move the court or judge to proceed against such
party as in other cases of contempt; and the court or judge may imprison
the offender until he shall fully comply with the requirements of this act.
And such payment or delivery shall fully acquit and discharge the party from
all and every claim for or on account of such money, property, effects and
evidences of debt. And the receiver shall give such person a receipt, spe
cifying the amount of money, the property, effects and evidences of debt
paid and delivered, and the name of the alien enemy on account of whom
the same shall be paid and delivered : Provided, That when the person hav
ing the possession or control of any money of an alien enemy, asserts a
debt or claim against such alien enemy in his own favor, he may file it in
writing in the proper court, swearing that he believes himself justly entitled
to the same, and thereupon he shall not be compelled, in the first instance, to
pay over to the receiver the amount thus propounded and claimed by him ;
but the court shall then proceed to examine and try the validity of the said
debt or claim, and decree according to the facts found, and the rights and
justice of the case. And if the court decides against the debt or claim, the
party setting up the same shall forthwith pay over the sum so retained by
him. And if the court shall decree in favor of the debt or claim thus pro
pounded, and it exceeds the entire amount originally in possession of such
debtor or claimant, he shall pay no costs ; otherwise he shall pay all costs
incident to the proceedings.
SEC. 4. This act, and the act to which- it is an amendment, shall not op
erate to avoid any payment, bo?ia fide made to an alien enemy, or to affect
property of any kind, bona fide and absolutely transferred, or conveyed, by
an alien enemy to a faithful citizen of the Confederate States, prior to the
thirtieth day of August, eighteen hundred and sixty-one.
SEC. o. In cases of partnership property and effects, the resident partner,
or partners, shall be dealt with in all respects as surviving partners in cases
of a dissolution of partnership by the death of one or more of the partners,
according to the laws of the place of the principal place of business of the
partnership ; and the receiver shall have the same remedies against such
resident partners as the representatives of a deceased partner would be en
titled to in like case.
SEC. 6. The following persons shall not be taken to be alien enemies under
this act, or the act to which this is an amendment :
First. Persons who now have bona fide become permanent residents of
any State of this Confederacy, and are actually residing and domiciled within
the^same, yielding and acknowledging allegiance thereto, and who have not,
during the present war, voluntarily contributed to the cause of the enemy.
Second. All persons born within any State of this Confederacy, or natives
of a neutral country, who since the breaking out of the war, have abandoned
their domiciles and ceased their business in the enemy's country, and all
persons aforesaid who have bona fide commenced, or attempted to remove
themselves and effects from the enemy's country, and who have been, and
still are prevented from completing said removal by the force or power of
the enemy, or who from physical infirmity are incapable of removing.
Third. All subjects or citizens of neutral countries who cannot be shown
to have voluntarily contributed to the cause of the enemy, and all persons
who, though citizens of the enemy's country, have abandoned that country
on account of their opposition to the war, or sympathy for the people of the
Confederate States.
Fourth. All married women natives of any State of this Confederacy,
who, or whose husbands shall not be shown to have voluntarily contributed
to the cause of the enemy. All persons non compos mentis, and all minors
420 NOTES TO THE FORTY-THIRD EDITION.
whose fathers or mothers, were, or are, natives of this Confederacy and
whose property and persons are controlled by guardians resident in the Con
federate States, and who have not voluntarily contributed to the enemy's
cause ; and all minors under the age of sixteen years, who were born in any
State of this Confederacy, or in any State exempted from the operations of
this act while their parents were domiciled in such State and who have not
taken up arms against the Confederate States.
Fifth. Free persons of color, who, by the laws of any State have been
compelled to remove beyond the limits thereof, and are by law prohibited
from returning to such State, and who have not in anywise aided the enemy.
SEC. 7. The next of kin in the direct ascending and descending lines of
any alien enemy, faithful citizens of any of the Confederate States, or en
gaged in their military or naval service shall be entitled to have decreed
them (they paying all costs) the property, effects and credits of such alien
enemy as if dead, intestate, leaving no other heirs or distributees, chargeable,
however, in their hands, as in case of administration or heirship, with the
debts of such alien enemies due to faithful citizen-s of any Confederate State.
SEC. 8. All sales of property under this act shall be made by the receiv
ers at public auction to the highest bidder and on such terms and such notice
of the time and place of sale as the court may prescribe, and shall be duly
reported to the court by such receivers at the term next after such sale ;
but no conveyance of title shall be made to the purchaser of the property
until the confirmation of the sale by the court and the payment of the pur
chase money according to the terms of the sale ; and no sale shall be valid
until reported to, and confirmed by the court ; nor shall any sale be con
firmed until the terms shall have been complied with ; and the court may
set aside such sale for fraud, want of proper notice, or any material irregu
larity, or where it shall appear that the receiver was the purchaser or inter
ested in the purchase, or for substantial inadequacy of price : Provided,
however, That sales of personalty may be reported to, and confirmed by the
judge in vacation.
SEC. 9. The court may, in its discretion, when special circumstances exist
which temporarily depress the value of the property, delay the order of sale,
or may direct the receiver to examine and report whether it would be expe
dient to make an immediate sale of such property, and on such report, or
other satisfactory evidence, showing that a delay in the sale would tend to
secure a fairer price, may order such sale to be delayed, and in all such cases
the court may, in the case of real estate, or of a plantation and slaves, order
the receiver to lease the same on such terms as the court may prescribe.
SEC. 10. In cases where an alien enemy may have contracted in writing,
before the twenty-first day of May, eighteen hundred and sixty-one, to sell
real estate to a citizen, or citizens, of this Confederacy, and to make title
upon payment of the purchase money, the court, in decreeing sequestration
of the said purchase money, or the residue thereof unpaid, shall further
decree that the receiver of the district, in which said real estate is situate,
shall, upon payment of said purchase money, or the residue thereof, as afore
said, make title for such real estate to the purchaser or his assignee.
SEC. 11. The court shall audit and pass on the accounts of the receiver
as provided in this act, and the one to which this is an amendment ; but in
lieu of the compensation and allowances herein provided for, shall allow
such compensation as shall to it seem reasonable and just, following, in this
respect, so far as may be applicable, the analogies furnished by the laws of
the State in which the court is held, concerning compensation to executors,
administrators, and trustees ; and the court shall further allow to the re
ceiver all proper expenses attending the execution of his office. And all
NOTES TO THE FORTY-THIRD EDITION. 421
fees and allowances passed by the court in favor of any receiver may be
retained by him from any money in his hands ; and all fees and allowances
to any receiver beyond the rate of five thousand dollars per annum, except
for expenses as aforesaid, shall be forthwith paid by him into the Confeder
ate Treasury, to the use of the Confederate States, and shall be brought
into, and stated and accounted for in his next account of settlement as re
ceiver.
SEC. 12. The court shall appoint an attorney for each section in which the
court shall be holden, and in which no attorney of the Confederate States
resides, whose duties it shall be to discharge, within said section, the duties
imposed on the attorney of the district by the act to which this is amenda
tory ; and the compensation of such attorney so appointed shall be the same
for business by him done as is now provided, by ninth section of said act,
for the district attorney.
SEC. 13. The receiver shall, in all cases, take the possession and control
of the money, property and effects of alien enemies, and of such choses in
action as shall be in the hands of any agent or third person, except when
otherwise provided by this act, and, on being refused possession, shall sue
for the same, and such possession shall not be withheld on any pretext of
any provisions of the act to which this is amendatory. The court may order
a delay in the sale of property when it shall be necessary to complete or
gather a growing crop, or when it shall be otherwise manifestly to the
benefit of the Confederate States to delay the sale ; but in all such cases
the possession, control and management shall be with the receiver, or under
his control and authority. And in the collection of debts or choses in
action, no State stay law shall govern, but the same shall be governed by
this act, and the one to which this is an amendment, so far as the latter
does not conflict with this act.
SEC. 14. It shall be the duty of all persons owing debts to alien enemies,
within three months from the passage of this act, to give information there
of to the receiver of the district in which he or they reside, and in case
of corporations or joint stock companies, to the receiver of the district in
which the principal office of business of such corporation or company may
be ; and such information shall be in writing and sworn to by the debtor,
and in case of corporations or joint stock companies, by the principal
officer of such corporation or company, before any judge of a court of rec
ord, justice of the peace, notary public, commissioner of the court or receiver
under the act to which this is an amendment, and shall set forth the name
or names of the creditor or owner of such debt, the amount he owes or
owed on the thirtieth day of August, eighteen hundred and sixty-one, and
whether the same is, or has been, secured by mortgage or otherwise ; and
the information or confession so made shall be filed by the receiver in the
proper court of the Confederate States, and such court shall, on such infor
mation, proceed to decree sequestration and payment of the debt or debts so
confessed ; and in case any debtor shall, in good faith, confess his indebted
ness as aforesaid, but shall be unable to state the true amount of his indebt
edness, or shall be in doubt whether the creditor or owner of the debt is an
alien enemy, the court shall proceed to ascertain the character of the creditor
or owner, and the true amount of such indebtedness, and to that end shall
direct such proceedings as shall be adapted to the nature of the case, and
decree according to the facts found. And in all proceedings against per
sons for debts due by them to alien enemies, the debtor shall be allowed to
make any defence in law or equity, which he might or could have made in a
suit brought against him by the creditor to whom such debt was due :
Provided, however, That no execution shall issue on such decree, except for
422 NOTES TO THE FORTY-THIRD EDITION.
the interest which shall accrue on the same at the end of each year, until
twelve months after peace shall be declared between the Confederate States
and the United States, or until otherwise directed by law : And provided,
moreover, That execution may issue for the costs of the proceeding, and
the sum so collected for costs shall be deducted from the principal sum
due.
SEC. 15. The receivers appointed under this act, or the act to which this
is an amendment, shall proceed diligently to ascertain and collect the debts
due to alien enemies by persons residing in the districts for which they are
severally appointed, and shall, on the discovery of any such debts, and after
the expiration of three months from the passage of this act, and the debtor
shall have failed to give information of such debt, proceed to institute pro
ceedings to sequestrate the same, and in such proceeding, which shall be
by petition, as prescribed by said act, to which this is an amendment, and
shall be to sequestrate the debt, as well as to ascertain the sum due by the
debtor, such debtor shall be made defendant or respondent, as the case may
be, and the process to bring such debtor before the court, or to compel an
answer, shall be in the nature of the writ of garnishment as prescribed in
said act, which shall be served on such debtor ; and in case of corporations
and joint stock companies, on some member or officer of such corporation
or company ; and shall require the defendant to answer on oath whether he
is indebted to any alien enemy, or was so indebted on the thirtieth day of
August, eighteen hundred and sixty-one, in what sum, and whether he knows
of any other person or persons so indebted, and, on the disclosure by the
defendant of such indebtedness by other persons, like proceedings shall be
had as in the original cause ; and in case the defendant shall suggest in his
answer that the debt due by him or her is claimed or owned by any person
not an alien enemy, setting forth the name of such claimant, his place of
abode, citation shall issue to such claimant to appear and propound his claim
on oath, at the succeeding term of the court ; and in case he is absent from
the district in which the court is held, or cannot be found, publication shall
be made for the space of one month in some newspaper best calculated to
apprise such claimant to appear and propound his claim ; and if such claim
ant shall fail to appear, his claim shall be barred. On the appearance of the
claimant, the court shall direct an issue to try the same, and shall award the
costs against the claimant if the claim be unfounded : Provided, That the
entire answer shall be considered by the court.
SEC. 16. All proceedings now pending under the act to which this act is
an amendment, shall be made to conform to the proceedings directed in this
act, so far as practicable, and the judgments rendered therein shall be given
in all respects, and have the same operation and effect, as judgments ren
dered under the fourteenth section of this act.
SEC. 17. In all proceedings against debtors who fail or refuse to give
information of their indebtedness within the time prescribed in this act,
and the debtor shall be brought before the court by process, the costs of the
proceeding shall be adjudged against such debtor, in case he is found to be
indebted to any alien enemy ; and if it shall appear to the court, on the
trial of any cause against such recusant debtor, that he has wrongly and
wilfully refused or failed to give information of his indebtedness, or to state
the true amount thereof, with intent to hinder, evade, or delay the execu
tion of this act, or the act to which this is an amendment, or the jury, in
any cause or issue tried by them, shall certify that such debtor has wilfully
failed or refused to give information of his indebtedness, or the true amouni
thereof, with the intent aforesaid, the court shall award execution against
such debtor, on the decree or judgment, for the whole amount of the debt
NOTES TO THE FORTY-THIRD EDITION. 423
and the interest due thereon, together with the costs ; in all other cases,
however, execution shall be stayed until the peace aforesaid, except for in
terest which shall accrue.
SEC. 18. In cases where proceedings shall be instituted to sequestrate
judgments or decrees already rendered, or of claims or debts upon which
actions or suits may be pending, the court may, after the decree of seques
tration, allow the receiver to prosecute such suit, action, decree, or judg
ment, in the name of the Confederate States of America ; and in cases of
suits or actions pending, or decrees or judgments rendered in the State
courts, where, by the laws of such State, it may be admissible, such receiver
may introduce the Confederate States of America in the proceedings, as a
party to prosecute such suit or action, or enforce such decree or judgment ;
but in such cases execution shall issue for costs and interest only, until fur
ther provided by law, or twelve months after the conclusion of peace as
aforesaid.
SEC. 19. Attorneys, agents or trustees of any alien enemy, having claims
for fees or commission on the fund or assets in their hands, shall, on deliv
ery of such fund or assets to the receiver, make out their accounts for such
claims or commissions, and the court shall consider and allow the same, if
just and reasonable, to be paid out of such funds or assets ; and where coun
sel are already engaged in prosecuting such pending suits or actions, the
receiver shall be authorized to allow them to continue to prosecute such
suits or actions for the Confederate States of America.
SEC. 20. The rate of interest to be paid by debtors shall be regulated by
the contract, if by the terms thereof the rate of interest shall be fixed, and
if no interest shall be fixed by the contract, then the rate shall be according
to the law of the place where the debt is to be paid or the contract per
formed ; and the judgment or decree shall bear the same rate of interest
fixed by law or the contract, and the same shall be punctually paid at the
end of each year, or execution shall issue for the same.
SEC. 21. In no case shall the judgment or decree be a lien on the prop
erty of the debtor ; but where the court shall award execution under this
act, the property of the debtor shall be bound, from the delivery of the writ.
SEC. 22. The court, or judge in vacation, shall have power to award exe
cution on any judgment or decree, in addition to the cases of recusant debt
ors, where the receiver shall make oath that the debtor is fraudulently con
cealing or disposing of his effects, with intent to evade the judgment, or is
about to remove his effects beyond the jurisdiction of the court, but such
execution shall be discharged on the defendant's giving security, to the sat
isfaction of the court, for the performance or payment of the decree.
SEC. 23. In proceedings under this act, and the act of which it is amend
atory, upon affidavit being made by the attorney representing the Confed
erate States, or the proper receiver, that the name of an alien enemy is
wholly or partly unknown to him, or that the names of the members of a
partnership of alien enemies are unknown to him, the process and proceed
ings may be against such partnership by the firm name thereof, stated in
such affidavit, or against such alien enemy, whose name is wholly or partly
unknown, by such name or proper description as may be known and set
forth in such affidavit : Provided, That the court may, at any time, on mo
tion, cause the full and proper name to be inserted in the record, and used
in the proceedings, when the same become known to the court.
SEC. 24. Receivers shall have authority to administer oaths touching
any matter incident to proceedings under this act.
SEC. 25. The sixteenth section of the act to which this is amendatory, is
hereby repealed.
424 NOTES TO THE FORTY-THIRD EDITION.
SEC. 26. All debts due to any alien enemy may be paid in the bonds and
treasury notes of the Confederate States, and the same shall be received in
payment for all property sold under this act.
SEC. 27. The fees of all clerks and marshals shall be the same for ser
vices under this act, and the act to which this is an amendment, as are
allowed for similar services in the courts of the Confederate States, and shall
be a charge upon the general fund derived from confiscations, and shall be
paid on the order of the court.
SEC. 28. The commissioners authorized by the fourteenth section of the
act to which this is an amendment, shall appoint a clerk with a salary of
fifteen hundred dollars, to be paid out of the treasury of the Confederate
States ; but such salary, as well as the salary of said commissioners, shall
be charged to the confiscation fund and be deducted therefrom ; and said
commissioners shall moreover have power to appoint commissioners to take
the examination of witnesses touching the claims which may be propounded
before them, or may summon witnesses before them to be examined orally ;
said commissioners, and the commissioners appointed by them to examine
witnesses as aforesaid, shall have power to administer oaths to the witnesses
and to issue subpoenas, and witnesses failing to appear shall be subject to
like penalties and process as may be prescribed in the courts of the Confed
erate States against defaulting witnesses : Provided, however, That the costs
of all proceedings to take testimony shall be paid by the claimant, except
in cases where the Attorney General 'shall apply for leave to take testimony,
and the fees of witnesses and commissioners shall be the same as are al
lowed in the courts of the Confederate States in like cases.
SEC. 29. So much of the act to which this is an amendment as requires
the receivers to settle separately the estate of each alien enemy, is repealed,
and hereafter each settlement shall embrace all the matters ready for settle
ment; but the items of the account shall be so specific as to show the
sources from which each is derived.
SEC. 30. Where any judgment has been entered up in any of the courts
of the Confederate States, under the act to which this is an amendment, in
consistent with the provisions and spirit of this act, the same, on motion,
shall be set aside or amended in accordance with the terms and provisions
of this act.
SEC. 31. The provisions of the act to which this act is an amendment, so
far as the same may conflict with this act, are hereby repealed.
Approved February 15, 1862.
By examination of the foregoing acts, it is seen that the Confederate Con
gress passed laws under a Constitution which was, word for word, the same
as ours, so far as relates to the restrictions upon its power of passing ex
post facto laws, or bills of attainder, and to its power of declaring the
punishment of treason, with the proviso that " no attainder of treason shall
work corruption of blood, or forfeiture except during the life of the person
attainted." But in none of these acts in which the lands of citizens of the
Confederate States were made liable to sequestration, was the forfeiture there
of confined to the life estates of the owners. The Confederates found
neither in the laws of nations nor in the Constitution, as they under
stood them, anything to prevent their enforcing against all who were resi
dents in the rebel States, or were within their power, but did not acknowl
edge allegiance to their government, the same belligerent rights over their
NOTES TO THE FORTY-THIRD EDITION. 425
persons and th eir property as though they had been, in fact, alien enemies.
They passed acts providing for the seizure and imprisonment of their per
sons ; and the absolute confiscation of all their property, personal and real ;
and for depriving them of political and civil rights, declaring them alien
enemies, although born on their soil, and natives of the Confederate States.
They allowed their own citizens, faithful to the Confederacy, when next of
kin, to inherit and possess all the property of their relatives, who refused
allegiance to the rebels, as if they had been dead ; and they made it a crime
not to disclose and give up to the government all property of persons un
friendly to the Confederacy.
The penalties imposed by the statutes of the provisional government of
the Confederate States, upon all persons, including non-combatants, who
withheld allegiance from the rebels, were far more sweeping and severe than
the acts of Congress against traitors. Yet it is not surprising to find that
rebels, who justified the Confederates in passing laws depriving citizens of.
rebel States of all their civil and political rights, of their property, and their
liberty, under certain articles of this Constitution, are now quite ready to
deny to the United States the right, under the same articles of the same
Constitution, to pass laws far less severe in punishment of far greater
crimes.
CONSTITUTIONALITY OF CONFISCATION ACT. (Page 123.)
On page 123, the opinion is expressed that the confiscation act of 1862 is
not within the prohibition of the Constitution. On this point it is pre
sumed that no question will be hereafter raised. Chief Justice Chase, dur
ing the term of the Circuit Court at Richmond, held in 1868, delivered an
important opinion in a case of confiscation of real estate under the act of
July 17, 1862. He said that several cases arising under this act have been
considered by the Supreme Court, and as the point was not raised, it was a
fair conclusion that neither at the bar nor upon the bench was the constitu
tionality of the act doubted.
[No. 5. See pages 53, 292, 293, 295.]
BELLIGERENTS.
" Whether Belligerents should be allowed Civil Rights under the Constitution,
depends upon the Policy of the Government"
No opinion stated in this book was more earnestly questioned by leading
statesmen and jurists at the time of its first publication, in 1862, than the
one above quoted. Though the act of July 13, 1861, had been previously
passed, which recognized a state of war, and declared non-intercourse with
the insurrectionary districts, and though the President had issued his proc
lamation of August 16, 1861, in pursuance of this act, yet this view of our
constitutional rights against the inhabitants of the rebel States, thus recog-
54
426 NOTES TO THE FORTY-THIRD EDITION.
nized as belligerents engaged in civil war, was, at that time, condemned by
certain writers as " erroneous, dangerous, and revolutionary." Nevertheless,
this interpretation of the war powers of the Union has finally been recog
nized and established. It has received the sanction of the several depart
ments of the government, executive, legislative, and judicial. It is the basis
on which the President has issued several proclamations, and upon which
Congress has passed several acts in relation to the persons and property of
rebels, depriving them of the rights enjoyed by citizens of the United States
under the Constitution, and has also founded the system of laws called the
Reconstruction Acts, for restoring equal rights to our public enemies upon
terms and conditions therein prescribed.
In the Courts of the United States, prior to the civil war, it had been
held that political questions could be decided only by the political depart
ments of our government and that the courts were bound to recognize and
follow these decisions. (See pp. 294, 295, and authorities there cited.)
And it had been also held that questions relating to the status of foreign
countries, or to the recognition of State governments in the Union, under
the clause of the Constitution which guarantees republican forms of gov
ernment to the States, and that certain other questions of a national or
international character, were of a political nature, and were therefore deter-
minable only by the political departments of our government. No case had
then arisen which required the courts to decide whether the government
had the right, under any circumstances, to deprive citizens of the United
States of any of the civil or political rights secured to them by the Constitu
tion, except as a punishment for crimes, by law ; or, in other words, to
declare and determine that the political status of the inhabitants of any
portion of the Union should be different from that which they had held as
citizens in time of peace, under the Constitution and laws.
The constitutional power claimed in this essay for the government of
determining the political status of the enemy, and of giving or ivithlioldiny
civil and political rights, according to the decisions of the political depart
ments, received its earliest authoritative sanction in the opinions of the
judges of the Supreme Court of the United States in the prize cases decided
in 1863, within a year after the first edition of this essay was published.
(See p. 141.) Since that date, several decisions of the same court have
confirmed the doctrines of these cases. In addition to the authorities cited
in notes to pp. 252, 293, 295, the following cases, which, except vthe first two,
have been recently decided, may be added, as illustrative of the propositions
assumed as the basis of the conclusion stated at the commencement of
this note : —
Cherokee Nation v. State of Georgia, 5 Peters, 1.
State of Rhode Island v. State of Massachusetts, 12 Peters, 657. (See
this case, as re-stated by Nelson, J., in the case of Georgia v. Stanton, 6
Wallace, 73.)
NOTES TO THE FORTY-THIRD EDITION. 427
The Venice, 2 Wallace, 274. (1864-5.)
Mrs. Alexander Cotton, 2 Wallace, 417. (1864-5.)
State of Mississippi v. Johnson, 4 Wallace, 497. (1866-7.)
The Peterlioff, 5 Wallace, 60. (1866-7.)
The William Bagaley, ib., 402-409. (1866.)
Mauran v. Insurance Co., 6 Wallace, 14. (1867-8.)
State of Georgia v. Stanton, 6 Wallace, 71. (1868-9.)*
The government of the Confederate States assumed and acted upon the
same view of the Constitution as that above stated. Their Congress de
termined, by statutes, the political status of all persons who refused to
render allegiance to the Confederacy, and provided means for depriving all
their enemies of property, liberty, or life. (See Notes pp. 409-424.)f
[No. 6. See page 57.]
MILITARY AND PROVISIONAL GOVERNMENTS. RECON
STRUCTION.
When this work was first published (in 1862), it was generally admitted by
loyal citizens that the administration had a right to suppress rebellion, by em
ploying military and naval forces, so far as they might be necessary to break
up and disperse the armies of insurgents. It was also then supposed by some
persons that the President, as commander-in-chief, might hold such dis
tricts of enemy territory as should come into our military possession, under
the command of his army officers, jlagrante bello. Whether he had any
lawful authority, in those districts, over property or persons not engaged in
carrying on hostilities against us, and not committing crimes punishable by
martial law, was a question which had not then been solved. What, under
this new condition of affairs, was the extent, and what were the limitations
of the military power of the President or of his officers ; how far he or they
were bound by the local laws of the rebel States ; whether those laws were
still obligatory upon the inhabitants .thereof; what were the legal rights of
peaceable rebels, of neutrals, or of friends of the Union living there ; what
protection could be lawfully given to persons or property, without swerving
from the purposes for which our defensive war was declared to have been
commenced and carried on ; whether all the laws of the United States, as,
for instance, those regarding the return of fugitive slaves, were still obliga
tory upon our soldiers, as in time of peace ; and whether the citizens of the
rebellious States were sttil entitled to all their former rights under the Con
stitution, — were questions which embarrassed and disheartened our states
men and jurists no less than our commanders and soldiers in the service.
Whether Congress had the right to erect military or provisional governments
* For the above-cited cases, see Appendix.
t See Index— Military Government, Capture, Confiscation.
428 NOTES TO THE FORTY-THIRD EDITION.
over our conquered enemy, was a question which, at that early period of
the war, had not become of sufficient practical importance to attract the
attention of our public men. In the course of subsequent events the main
tenance of that right became essential to the life of the nation, and is now
the basis of the reconstructed Union. It was with a view of answering these
and similar questions, and at the same time of vindicating the right of the
country to use among its other war powers that of controlling by military
governments those whom it should conquer, that this essay was written, in
the firm belief that the time would come when our army and navy would
regain possession of every portion of the States, and would then be able to
govern their inhabitants by martial law. In these pages the constitutional
power was claimed as rightfully belonging to the government to treat the
inhabitants of States declared in rebellion, without exception or distinction,
as belligerent public enemies ; to liberate their slaves ; to capture and con
fiscate their property ; to hold them as a conquered people ; to erect and
maintain military and provisional governments over them during the pleas
ure of the conqueror. An exposition and application of these, with other
war powers of the United States, were believed by the author to afford a
solution of all questions relating to the civil and political rights of public
enemies in time of war, and to the authority of the government over them.
It is doubtless true that the President, Congress, and the people of the
loyal States were not at that time prepared to approve of these views. They
advanced by slow and cautious steps to recognize and apply the laws of war.
But as various emergencies arose, the necessity of acting upon them became
manifest. Without the untrammelled use of all the means we possessed,
we could not have conquered the rebels. If we had succeeded in dispersing
their armies, we could never have reduced them to bona fide submission to
the government, if, on laying down their arms, and without obtaining the
assent of the loyal people of the United States, they had been held to be
entitled, under the Constitution, to resume at their own will and pleasure,
all their former civil and political rights and privileges in and relative to
the Union ; while, in fact, the power even of local governments of the rebel
districts, formerly possessed by them, had passed out of their hands by civil
war, and was vested in the United States. This power was exercised, while
hostilities were flagrant, by the commander --in-chief \ or his subordinate
officers, whom he appointed as military governors of the several districts
into which the rebel territory was divided. These military governors were
succeeded by others, who were appointed by the President, under acts of
Congress, which provided for new temporary governments. The first of
these acts referred to in the note to page 65 was approved March 3, 1865,
and is as follows. (See Stat. 1865, Chap. 90, p. 507.)
FREEDMEN'S BUREAU ACT.*
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That there is hereby established
* See letter to Mr. Eliot, relating- to this act, p. 404.
NOTES TO THE FORTY-THIRD EDITION. 429
in the War Department, to continue during the present war of rebellion,
and for one year thereafter, a bureau of refugees, freedmen, and abandoned
lands, to which shall be committed, as hereinafter provided, the supervision
and management of all abandoned lands, and the control of all subjects re
lating to refugees and freedmen from rebel States, or from any district of
country within the territory embraced in the operations of the army, under
such rules and regulations 'as may be prescribed by the head of the bureau,
and approved by the President. The said bureau shall be under the man-
agement and control of a commissioner to be appointed by the President,
by and with the advice and consent of the Senate, whose compensation shall
be three thousand dollars per annum, and such number of clerks as may be
assigned to him by the Secretary of War, not exceeding one chief clerk, two
of the fourth class, two of the third class, and five of the first class. And
the commissioner and all persons appointed under this act, shall, before en
tering upon their duties, take the oath of office prescribed in an act entitled
" An Act to prescribe an oath of office, and for other purposes," approved
July second, eighteen hundred and sixty-two, and the commissioner and the
chief clerk shall, before entering upon their duties, give bonds to the Treas
urer of the United States, the former in the sum of fifty thousand dollars,
and the latter in the sum of ten thousand dollars, conditioned for the faith
ful discharge of their duties respectively, with securities to be approved as
sufficient by the Attorney General, which bonds shall be filed in the office
of the first comptroller of the treasury, to be by him put in suit for the ben
efit of any injured party upon any breach of the conditions thereof.
SEC. 2. And be it further enacted, That the Secretary of War may direct
such issues of provisions, clothing, and fuel, as he may deem needfuHor the
immediate and temporary shelter and supply of destitute and suffering ref
ugees and freedmen and their wives and children, under such rules and regu
lations as he may direct.
SEC. 3. And be it further enacted, That the President may, by and with
the advice and consent of the Senate, appoint an assistant commissioner for
each of the States declared to be in insurrection, not exceeding ten in num
ber, who shall, under the direction of the commissioner, aid in the execution
of the provisions of this act ; and he shall give a bond to the Treasurer of
the United States, in the sum of twenty thousand dollars, in the form and
manner prescribed in the first section of this act. Each of said commissioners
shall receive an annual salary of two thousand five hundred dollars in full
compensation for all his services. And any military officer may be detailed
and assigned to duty under this act without increase of pay or allowances.
The commissioner shall, before the commencement of each regular session
of Congress, make full report of his proceedings with exhibits of the state
of his accounts to the President, who shall communicate the same to Con
gress, and shall also make special reports whenever required to do so by the
President or either House of Congress ; and the assistant commissioners shall
make quarterly reports of their proceedings to the commissioner, and also
such other special reports as from time to time may be required.
SEC. 4. And be it further enacted, That the commissioner, under the
direction of the President, shall have authority to set apart, for the use of
loyal refugees and freedmen, such tracts of land within the insurrectionary
States as shall have been abandoned, or to which the United States shall
have acquired title by confiscation or sale, or otherwise; and to every ^male
citizen, whether refugee or freedman, as aforesaid, there shall be^ assigned
not more than forty acres of such land, and the person to whom it was so
assigned shall be protected in the use and enjoyment of the land for the
term of three years at an annual rent not exceeding six per centum upon the
430 NOTES TO THE FORTY-THIRD EDITION.
value of such land, as it was appraised by the State authorities in the year
eighteen hundred and sixty, for the purpose of taxation ; and in case no
such appraisal can be found, then the rental shall be based upon the esti
mated value of the land in said year, to be ascertained in such manner as
the commissioner may by regulation prescribe. At the end of said term, or
at any time during said term, the occupants of any parcels so assigned may
purchase the land, and receive such title thereto as the United States can
convey, upon paying therefor the value of the land, as ascertained and fixed
for the purpose of determining the annual rent aforesaid.
SEC. 5. And be it further enacted, That all acts and parts of acts incon
sistent with the provisions of this act, are hereby repealed.
Approved, March 3, 1865.
The operation of this law was extended by the following act of July
16, 1866. (Stat. 90, p. 173.)
CHAP. CC. — An Act to continue in force and to amend "An Act to estab
lish a Bureau for the Belief of Freedmen and Refugees," and for other
Purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the act to establish a bureau
for the relief of freedmen and refugees, approved March third, eighteen hun
dred and sixty-five, shall continue in force for the term of two years from
and after the passage of this act.
SEC. 2. And be it further enacted, That the supervision and care of said
bureau shall extend to all loyal refugees and freedmen, so far as the same
shall be necessary to enable them as speedily as practicable to become self-
supporting citizens of the United States, and to aid them in making the
freedom conferred by proclamation of the commander-in-chief, by emancipa
tion under the laws of States, and by constitutional amendment, available to
them and beneficial to the republic.
SEC. 3. And be it further enacted, That the President shall, by and with
the advice and consent of the Senate, appoint two assistant commissioners,
in addition to those authorized by the act to which this is an amendment,
who shall give like bonds and receive the same annual salaries provided in
said act, and each of the assistant commissioners of the bureau shall have
charge of one district containing such refugees or freedmen, to be assigned
him by the commissioner with the approval of the President. And the com
missioner shall, under the direction of the President, and so far as the same
shall Jbe, in his judgment, necessary for the efficient and economical admin
istration of the affairs of the bureau, appoint such agents, clerks, and
assistants as may be required for the proper conduct of the bureau. Mili
tary officers or enlisted men may be detailed for service and assigned to
duty under this act; and the President may, if in his judgment safe and
judicious so to do, detail from the army all' the officers and agents of this
bureau ; but no officer so assigned shalfhave increase of pay or allowances.
Each agent or clerk, not heretofore authorized by law, not being a military
officer, shall have an annual salary of not less than five hundred dollars, nor
more than twelve hundred dollars, according to the service required of him.
And it shall be the duty of the commissioner, when it can be done consist
ently with public interest, to appoint, as assistant commissioners, agents,
and clerks, such men as have proved their loyalty by faithful service in the
armies of the Union during the rebellion. And all persons appointed to
service under this act and the act to which this is an amendment, shall be
NOTES TO THE FORTY-THIRD EDITION. 431
so far deemed in the military service of the United States as to be under the
military jurisdiction, and entitled to the military protection, of the govern
ment while in discharge of the duties of their office.
SEC. 4. And be it further enacted, That officers of the veteran reserve
corps or of the volunteer service, now on duty in the Freedmen's Bureau
as assistant commissioners, agents, medical officers, or in other capacities,
whose regiments or corps have been or may hereafter be mustered out of
service, may be retained upon such duty as officers of said bureau, with the
same 'compensation as is now provided by law for their respective grades ;
and the Secretary of War shall have power to fill vacancies until other
officers can be detailed in their places without detriment to the public
service.
SEC. 5. And be it further enacted, That the second section of the act
to which this is an amendment shall be deemed to authorize the Secretary
of War to issue such medical stores or other supplies and transportation,
and afford such medical or other aid as here may be needful for the purposes
named in said section : Provided, That no person shall be deemed " desti
tute," " suffering," or " dependent upon the government for support," within
the meaning of this act, who is able to find employment, and could, by proper
industry or exertion, avoid such destitution, suffering, or dependence.
SEC. 6. Whereas, by the provisions of an act approved February sixth,
eighteen hundred and sixty-three, entitled " An Act to amend an act en
titled ' An Act for the collection of direct taxes in insurrectionary districts
within the United States, ^nd for other purposes,' approved June seventh,
eighteen hundred and sixty-two," certain lands in the parishes of St. Helena
and Saint Luke, South Carolina, were bid in by the United States at public
tax sales, and by the limitation of said act the time of redemption of said
lands has expired ; and whereas, in accordance with instructions issued by
President Lincoln on the sixteenth day of September, eighteen hundred and
sixty-three, to the United 'States direct tax commissioners for South Caro
lina," certain lands bid in by the United States in the parish of Saint Helena,
in said State, were in part sold by the said tax commissioners to " heads of
families of the African race," in parcels of not more than twenty acres to
each purchaser ; and whereas, under said instructions, the said tax com
missioners did also set apart as " school farms " certain parcels of land in
said parish, numbered on their plats from one to thirty-three, inclusive,
making an aggregate of six thousand acres, more or less : Therefore, be it
further enacted, That the sales made to " heads of families of the African
race," under the instructions of President Lincoln to the United States
direct tax commissioners for South Carolina, of date of September sixteenth,
eighteen hundred and sixty-three, are hereby confirmed and established ;
and all leases which have been made to such " heads of families " by said
direct tax commissioners, shall be changed into certificates of sale in all
cases wherein the lease provides for such substitution ; and all the lands
now remaining unsold, which come within the same designation, being eight
thousand acres, more or less, shall be disposed of according to said in
structions.
SEC. 7. And be it further enacted, That all other lands bid in by the
United States at tax sales, being thirty-eight thousand acres, more or less,
and IIOAV in the hands of the said tax commissioners as the property of the
United States, in the parishes of Saint Helena and Saint Luke, excepting
the " school farms," as specified in the preceding section, and so much as
may be necessary for military and naval purposes at Hilton Head,^Bay
Point, and Land's End, and excepting also the city of Port Royal, on Saint
Helena Island, and the town of Beaufort, shall be disposed of in parcels of
432 NOTES TO THE FORTY-THIRD EDITION.
twenty acres, at one dollar and fifty cents per acre, to such persons and to
such only as have acquired and are now occupying lands under and agreea
bly to the provisions of General Sherman's special field order, dated at
Savannah, Georgia, January sixteenth, eighteen hundred and sixty-five ;
and the remaining lands, if any, shall be disposed of in like manner to such
persons as had acquired lands agreeably to the said order of General Sher
man, but who have been dispossessed by the restoration of the same to
former owners : Provided, That the lands sold in compliance with the pro
visions of this and the preceding section shall not be alienated by their
purchasers within six years from and after the passage of this act.
SEC. 8. And be it 'further enacted, That the " school farms " in the
parish of Saint Helena, South Carolina, shall be sold, subject to any leases
of the same, by the said tax commissioners, at public auction, on or before
the first day of January, eighteen hundred and sixty-seven, at not less than
ten dollars per acre ; and the lots in the city of Port Royal, as laid down by
the said tax commissioners, and the lots and houses in the town of Beau
fort, which are still held in like manner, shall be sold at public auction ;
and the proceeds of said sales, after paying expenses of the surveys and
sales, shall be invested in United States' bonds, the interest of which shall
be appropriated, under the direction of the commissioner, to the support
of schools, without distinction of color or race, on the islands in the parishes
of Saint Helena and Saint Luke.
SEC. 9. And be it further enacted, That the assistant commissioners for
South Carolina and Georgia are hereby authorized to examine all claims to
lands in their respective States which are claimed under the provisions of
General Sherman's special field order, and to give to each person having a
valid claim a warrant upon the direct tax commissioners for South Carolina
for twenty acres of land ; and the said direct tax commissioners shall issue
to every person, or to his or her heirs, but in no case to any assigns, pre
senting such warrant, a lease of twenty acres of land, as provided for in
section seven, for the term of six years ; but at any time thereafter, upon
the payment of a sum not exceeding one dollar and fifty cents per acre, the
person holding such lease shall be entitled to a certificate of sale of said
tract of twenty acres from the direct tax commissioner or such officer as
may be authorized to issue the same ; but no warrant shall be held valid
longer than two years after the issue of the same.
SEC. 10. And be it further enacted, That the direct tax commissioners
for South Carolina are hereby authorized and required at the earliest day
practicable to survey the lands designated in section seven into lots of twenty
acres each, with proper metes and bounds distinctly marked, so that the
several tracts shall be convenient in form, and as near as practicable have an
average of fertility and woodland ; and the expense of such surveys shall be
paid from the proceeds of sales of said lands, or, if sooner required, out of
any moneys received for other lands on these islands, sold by the United
States for taxes, and now in the hands of the direct tax commissioners.
SEC. 11. And be it further enacted, That restoration of lands occupied
by freedmen under General Sherman's field order dated at Savannah, Geor
gia, January sixteenth, eighteen hundred and sixty-five, shall not be made
until after the crops of the present year shall have been gathered by the oc
cupants of said lands, nor until a fair compensation shall have been made to
them by the former owners of such lands, or their legal representatives, for
all improvements or betterments erected or constructed thereon, and after
due notice of the same being done shall have been given by the assistant
commissioner.
SEC. 12. And be it further enacted, That the commissioner shall have
NOTES TO THE FORTY-THIRD EDITION. 433
power to seize, hold, use, lease, or sell all buildings and tenements, and any
lands appertaining to the same, or otherwise, formerly held under color of
title by the late so-called Confederate States, and not heretofore disposed of
by the United States, and any buildings or lands held in trust for the same
by any person or persons, and to use the same or appropriate the proceeds
derived therefrom to the education of the freed people; and whenever the
bureau shall cease to exist, such of said so-called Confederate States as shall
have made provision for the education of their citizens without distinction
of color shall receive the sum remaining unexpended of such sales or rentals,
which shall be distributed among said States for educational purposes in
proportion to their population.
SEC. 13. And be it further enacted, That the commissioner of this bu
reau shall at all times co-operate with private benevolent associations of
citiz-ens in aid of freedmen, and with agents and teachers, duly accredited
and appointed by them, and shall hire or provide by lease buildings for
purposes of education whenever such associations shall, without cost to the
government, provide suitable teachers and means of instruction ; and he
shall furnish such protection as may be required for the safe conduct of
such schools.
SEC. 14. And be it further enacted, That in every State or district where
the ordinary course of judicial proceedings has been interrupted by the re
bellion, and until the same shall be fully restored, and in every State or
district whose constitutional relations to the government have been practi
cally discontinued by the rebellion, and until such State shall have been
restored in such relations, and shall be duly represented in the Congress of
the United States, the right to make and enforce contracts, to sue, be parties,
and give evidence, to inherit, purchase, lease, sell, hold, and convey real and
personal property, and to have full and equal benefit of all laws und pro
ceedings concerning personal liberty, personal security, and the acquisition,
enjoyment, and disposition of estate, real and personal, including the con
stitutional right to bear arms, shall be secured to and enjoyed by all the
citizens of such State or district without respect to race or color, or previous
condition of slavery. And whenever in either of said States or districts the
ordinary course of judicial proceedings has been interrupted by the rebellion,
and until the same shall be fully restored, and until such State shall have
been restored in its constitutional relations to the government, and shall be
duly represented in the Congress of the United States, the President shall,
through the commissioner and the officers of the bureau, and under such
rules and regulations as the President, through the Secretary of War, shall
prescribe, extend military protection and have military jurisdiction over all
cases and questions concerning the free enjoyment of such immunities and
rights, and no penalty or punishment for any violation of law shall be im
posed or permitted because of race or color, or previous condition of slavery,
other or greater than the penalty or punishment to which white persons
may be liable by law for the like offence. But the jurisdiction conferred by
this section upon the officers of the bureau shall not exist in any State
where the ordinary course of judicial proceedings has not been interrupted
by the rebellion, and shall cease in every State when the courts of the State
and the United States are not disturbed in the peaceable course of justice,
and after such State shall be fully restored in its constitutional relations to
the government, and shall be duly represented in the Congress of the
United States.
SEC. 15. And be it further enacted, That all officers, agents, and em
ployes of this bureau, before entering upon the duties of their office, shall
take the oath prescribed in the first section of the act to which this is an
55
,s"i
of Rep-
434 NOTES TO THE FORTY-THIKD EDITION.
amendment ; and all acts or parts of acts inconsistent with the provisions
of this act are hereby repealed.
SCIIUYLER COLFAX,
Speaker of the House of Representatives.
LA FAYETTE S. FOSTER,
President of the Senate pro tempore.
IN THE HOUSE OF REPRESENTATIVES, U.
July 16, 1866.
The President of the United States having returned to the House of Rep
resentatives, in which it originated, the bill entitled " An Act to continue in
force and to amend ' An Act to establish a bureau for the relief of freedmen
and refugees,' and for other purposes," with his objections thereto, the
House of Representatives proceeded, in pursuance of the Constitution, to
reconsider the same ; and
Resolved, That the said bill pass, two thirds of the House of Representa
tives agreeing to pass the same.
Attest : EDW. McPiiERSON,
Clerk of H. Rep. U. S.
IN THE SENATE OF THE UNITED STATES,
July 16, 1866.
The Senate having proceeded, in pursuance of the Constitution, to re
consider the bill entitled " An Act to continue in force and to amend, ' An
Act to establish a bureau for the relief of freedmen and refugees,' and for
other purposes," returned to the House of Representatives by the President
of the United States, with his objections, and sent by the House of Repre
sentatives to the Senate with the message of the President returning the
bill :
Resolved, That the bill do pass, two thirds of the Senate agreeing to pass
the same.
Attest: J. W. FORNEY,
Secretary of the Senate of the United States.
The most important of these laws related to military government, and are
known as
THE RECONSTRUCTION ACTS,
of which the following are the most memorable.
CHAP. CLIII. — An Act to provide for the more efficient Government of the
Rebel States.
Whereas no legal State governments or adequate protection for life or
property now exists in the rebel States of Virginia, North Carolina, South
Carolina, Georgia, Mississippi. Alabama, Louisiana, Florida, Texas, and
Arkansas ; and whereas it is necessary that peace and good order should be
enforced in said States until loyal and republican State governments can be
legally established : Therefore,
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That said rebel States shall be
divided into military districts, and made subject to the military authority
of the United States as hereinafter prescribed, and for that purpose Vir
ginia shall constitute the first district ; North Carolina and South Carolina
the second district; Georgia, Alabama, and Florida the third district;
Mississippi and Arkansas the fourth district; and Louisiana and Texas the
fifth district.
NOTES TO THE FORTY-THIRD EDITION. 435
SEC. 2. And be it further enacted, That it shall be the duty of the Presi
dent to assign "to the command of each of said districts an officer of the
army, not below the rank of brigadier general, and to detail a sufficient
military force to enable such officer to perform his duties and enforce his
authority within the district to which he is assigned.
SEC. 3. And be it further enacted, That it shall be the duty of each officer
assigned as aforesaid to protect all persons in their rights of person and
property, to suppress insurrection, disorder, and violence, and to punish, or
cause to be punished, all disturbers of the public peace and criminals ; and
to this end he may allow local civil tribunals to take jurisdiction of and to
try offenders, or, when in his judgment it may be necessary for the trial of
offenders, he shall have power to organize military commissions or tribunals
for that purpose, an-d all interference under color of State authority with the
exercise of military authority under this act, shall be null and void.
SEC. 4. And be it further enacted, That all persons put under military
arrest by virtue of this act shall be tried without unnecessary delay, and no
cruel or unusual punishment shall be inflicted, and no sentence of any mili
tary commission or tribunal hereby authorized, affecting the life or liberty
of any person, shall be executed until it is approved by the officer in com
mand of the district, and the laws and regulations for the government of
the army shall not be affected by this act, except in so far as they conflict
with its provisions : Provided, That no sentence of death under the pro
visions of this act shall be carried into effect without the approval of the
President.
SEC. o. And be it further enacted, That when the people of any one of
said rebel States shall have formed a constitution of government in con
formity with the Constitution of the United States in all respects, framed
by a convention of delegates elected by the male citizens of said State,
twenty-one years old and upward, of whatever race, color, or previous con
dition, who have been resident in said State for one year previous to the
day of such election, except such as may be disfranchised for participation in
the rebellion or for felony at common law, and when such constitution shall
provide that the elective franchise shall be enjoyed by all such persons as
have the qualifications herein stated for electors of delegates, and when
such constitution shall be ratified by a majority of the persons voting on
the question of ratification who are qualified as electors for delegates, and
when such constitution shall have been submitted to Congress for exam
ination and approval, and Congress shall have approved the same, and when
said State, by a vote of its legislature elected under said constitution, shall
have adopted the amendment to the Constitution of the United States, pro
posed by the Thirty-ninth Congress, and known as article fourteen, and
when said article shall have become a part of the Constitution of the United
States, said State shall be declared entitled to representation in Congress,
and senators and representatives shall be admitted therefrom on their taking
the oath prescribed by law, and then and thereafter the preceding sections
of this act shall be inoperative in said State : Provided, That no person ex
cluded from the privilege of holding office by said proposed amendment to
the Constitution of the United States, shall be eligible to election as a mem
ber of the convention to frame a constitution for any of said rebel States,
nor shall any such person vote for members of such conventioi:.
SEC. 6. And be it further enacted, That, until the people of said rebel
States shall be by law admitted to representation in the Congress of the
United States, any civil governments which may exist therein shall be
deemed provisional only, and in all respects subject to the paramount au
thority of the United States at any time to abolish, modify, control, or
436 NOTES TO THE FORTY-THIRD EDITION.
supersede the same ; and in all elections to any office under such provis
ional governments all persons shall be entitled to vote, tod none others,
who are entitled to vote, under the provisions of the fifth section of this
act ; and no person shall be eligible to any office under any such provisional
governments who would be disqualified from holding office under the pro
visions of the third article of said constitutional amendment.
SCHUYLER COLFAX,
Speaker of the House of Representatives .
LA FAYETTE S. FOSTER.
President of the Senate, pro tempore.
IN THE HOUSE OF REPRESENTATIVES, )
March 2, 1687. £
The President of the United States having returned to the House of
Representatives, in which it originated, the bill entitled " An Act to pro
vide for the more efficient government of the rebel States," with his ob
jections thereto, the House of Representatives proceeded, in pursuance of
the Constitution, to reconsider the same ; and
Resolved, That the said bill do pass, two thirds of the House of Repre
sentatives agreeing to pass the same.
Attest: EDWD. MCPHERSON,
Clerk of H. R. U. S.
IN SENATE OF THE UNITED STATES,
March 2, 1867. '
The Senate having proceeded, in pursuance of the Constitution, to re
consider the bill entitled " An Act to provide for the more efficient govern
ment of the rebel States," returned to the House of Representatives by the
President of the United States, with his objections, and sent by the House
of Representatives to the Senate, with the message of the President return
ing the bill :
Resolved, That the bill do pass, two thirds of the Senate agreeing to pass
the same.
Attest : J. W. FORNEY,
Secretary of the Senate.
CHAP. VI. — An Act supplementary to an Act entitled " An Act to provide
for the more efficient Government of the Rebel States," passed March
second, eighteen hundred and sixty-seven, and to facilitate Restoration.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That before the first day of Sep
tember, eighteen hundred and sixty-seven, the commanding general in each
district defined by an act entitled " An Act to provide for the more efficient
government of the rebel States," passed March second, eighteen hundred
and sixty-seven, shall cause a registration to be made of the male citizens
of the United States, twenty-one years of age and upwards, resident in each
county or parish in the State or States included in his district, which
registration shall include only those persons who are qualified to vote for
delegates by the act aforesaid, and who shall have taken and subscribed the
following oath or affirmation : "I, — — , do solemnly swear (or affirm),
in the presence of Almighty God, that I am a citizen of the State of ;
that I have resided in said State for months next preceding this day,
and now reside in the county of— — , or the parish of , in said
State (as the case may be) ; that I am twenty-one years old ; that I have
not been disfranchised for participation in any rebellion or civil war against
the United States, nor for felony committed against the laws of any State
NOTES TO THE FORTY-THIED EDITION. 437
or of the United States ; that I have never heen a member of any State
legislature, nor held any executive or judicial office in any State, and after
wards engaged in insurrection or rebellion against the United States, or
given aid or comfort to the enemies thereof ; that I have never taken an
oath as a member of Congress of the United States, or as an officer of the
United States, or as a member of any State legislature, or as an executive
or judicial officer of any State, to support the Constitution of the United
States, and afterwards engaged in insurrection or rebellion against the
United States, or given aid or comfort to the enemies thereof; that I will
faithfully support the Constitution and obey the laws of the United States,
and will, to the best of my ability, encourage others so to do, so help me
God ; " which oath or affirmation may be administered by any registering
officer.
SEC. 2. And be it further enacted, That after the completion of the
registration hereby provided for in any State, at such time and places
therein as the commanding general shall appoint and direct, of which at
least thirty days' public notice shall be given, an election shall be held of
delegates to a convention for the purpose of establishing a constitution
and civil government for such State loyal to the Union, said convention in
each State, except Virginia, to consist of the same number of members as
the most numerous branch of the State legislature of such State in the year
eighteen hundred and sixty, to be apportioned among the several districts,
counties, or parishes of such State by the commanding general, giving to
each representation in the ratio of voters registered as aforesaid as nearly
as may be. The convention in Virginia shall consist of the same number
of members as represented the territory now constituting Virginia in the
most numerous branch of the legislature of said State in the year eighteen
hundred and sixty, to be apportioned as aforesaid.
SEC. 3. And be it further enacted, That at said election the registered
voters of each State shall vote for or against a convention to form a con
stitution therefor under this act. Those voting in favor of such a conven
tion shall have written or printed on the ballots by which they vote for
delegates, as aforesaid, the words " For a convention," and those voting
against such a convention shall have written or printed on such ballots the
words "Against a convention." The persons appointed to superintend
said election, and to make return of the votes given thereat, as herein pro
vided, shall count and make return of the votes given for and against a
convention ; and the commanding general to whom the same shall have
been returned shall ascertain and declare the total vote in each State for
and against a convention. If a majority of the votes given on that question
shall be for a convention, then such convention shall be held as hereinafter
provided ; but if a majority of said votes shall be against a convention,
then no such convention shall be held under this act : Provided, That such
convention shall not be held unless a majority of all such registered voters
shall have voted on the question of holding such convention.
SEC. 4. And be it further enacted, That the commanding general of each
district shall appoint as many boards of registration as may be necessary,
consisting of three loyal officers or persons, to make and complete the
registration, superintend the election, and make return to him of the votes,
list of voters, and of the persons elected as delegates by a plurality of the
votes cast at said election ; and upon receiving said returns he shall open
the same, ascertain the persons elected as delegates, according to the
returns of the officers who conducted said election, and make proclamation
thereof; and if a majority of the votes given on that question shall be for a
convention, the commanding general, within sixty days from the date of
election, shall notify the delegates to assemble in convention, at a time and
438 NOTES TO THE FORTY-THIRD EDITION.
place to be mentioned in the notification, and said convention, when organ
ized, shall proceed to frame a constitution and civil government according
to the provisions of this act, and the act to which it is supplementary ; and
when the same shall have been so framed, said constitution shall be sub
mitted by the convention for ratification to the persons registered under the
provisions of this act at an election to be conducted by the officers or
persons appointed or to be appointed by the commanding general, as here
inbefore provided, and to be held after the expiration of thirty days from
the date of notice thereof, to be given by said convention ; and the returns
thereof shall be made to the commanding general of the district.
SEC. 5. And be it further enacted, That if, according to said returns,
the constitution shall be ratified by a majority of the votes of the registered
electors qualified as herein specified, cast at said election, at least one half
of all the registered voters voting upon the question of such ratification, the
president of the convention shall transmit a copy of the same, duly certified,
to the President of the United States, who shall forthwith transmit the
same to Congress, if then in session, and if not in session, then immediately
upon its next assembling ; and if it shall moreover appear to Congress that
the election was one at which all the registered and qualified electors in the
State had an opportunity to vote freely and without restraint, fear, or the
influence of fraud, and if the Congress shall be satisfied that such constitu
tion meets the approval of a majority of all the qualified electors in the
State, and if the said constitution shall be declared by Congress to be in
conformity with the provisions of the act to which this is supplementary,
and the other provisions 6f said act shall have been complied with, and the
said constitution shall be approved by Congress, the State shall be declared
entitled to representation, and senators and representatives shall be ad
mitted therefrom as therein provided.
SEC. 6. And be it further enacted, That all elections in the States men
tioned in the said " Act to provide for the more efficient government of the
rebel States," shall, during the operation of said act, be by ballot ; and all
officers making the said registration of voters and conducting said elections
shall, before entering upon the discharge of their duties, take and subscribe
the oath prescribed by the act approved July second, eighteen hundred and
sixty-two, entitled " An Act to prescribe an oath of office : " Provided, That
if any person shall knowingly and falsely take and subscribe any oath in
this act prescribed, such person so oifencling and being thereof duly con
victed shall be subject to the pains, penalties, and disabilities which by law
are provided for the punishment of the crime of wilful and corrupt perjury.
SEC. 7. And be it further enacted, That all expenses incurred by the
several commanding generals, or by virtue of any orders issued, or appoint
ments made, by them, under or by virtue of this act, shall be paid out of
any moneys in the treasury not otherwise appropriated.
SEC. 8. And be it further enacted, That the convention for each State
shall prescribe the fees, salary, and compensation to be paid to all del
egates and other officers and agents herein authorized or necessary to carry
into effect the purposes of this act not herein otherwise provided for, and
shall provide for the levy and collection of such taxes on the property in
such State as may be necessary to pay the same.
SEC. 9. And be it further enacted, That the word " article," in the sixth
section of the act to which this is supplementary, shall be construed to mean
"section."
SCHUYLER COLFAX,
Speaker of the House of Representatives.
B. F. WADE,
President of the Senate pro tempore-.
NOTES TO THE FORTY-THIRD EDITION. 439
IN THE HOUSE OF REPRESENTATIVES, U. S., )
March 23, 1867. $
The President of the United States having returned to the House of
Representatives, in which it originated, the bill entitled "An Act supple
mentary to an act entitled ' An Act to provide for the more efficient govern
ment of the rebel States,' passed March second, eighteen hundred and
sixty-seven, and to facilitate restoration," with his objections thereto, the
House of Representatives proceeded, in pursuance of the Constitution, to
reconsider the same ; and
Resolved, That the said bill do pass, two thirds of the House of Repre
sentatives agreeing to pass the same.
Attest: EDWD. MCPHERSON,
Cleric H. E. U. S.
IN SENATE OF THE UNITED STATES, )
March 23, 1867. $
^ The Senate having proceeded, in pursuance of the Constitution, to recon
sider the bill entitled " An Act supplementary to an act entitled ' An Act to
provide for the more efficient government of the rebel States/ passed March
second, eighteen hundred and sixty-seven, and to facilitate restoration,"
returned to the House of Representatives by the President of the United
'States, with his objections, and sent by the House of Representatives to the
Senate, with the message of the President returning the bill :
Resolved, That the bill do pass, two thirds of the Senate agreeing to pass
the same.
Attest: j. w. FORNEY,
Secretary.
CHAP. XXX. — An Act supplementary to an Act entitled "An Act to pro
vide for the more efficient Government of the Rebel States, passed on the
second day of March, eighteen hundred and sixty-seven, and the Act sup
plementary thereto, passed on the twenty-third day of March, eighteen
hundred and sixty-seven.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That it is hereby declared to
have been the true intent and meaning of the act of the second day of
March, one thousand eight hundred and sixty-seven, entitled " An Act to
provide for the more efficient government of the rebel States," and of the
act supplementary thereto, passed on the twenty-third day of March, in
the year one thousand eight hundred and sixty-seven, that the governments
then existing in the rebel States of Virginia, North Carolina, South Caro
lina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkan
sas were not legal State governments ; and that thereafter said governments,
if continued, were to be continued subject in all respects to the military
commanders of the respective districts, and to the paramount authority of
Congress.
SEC. 2. And be it further enacted, That the commander of any district
named in said act shall have power, subject to the disapproval of the
General of the army of the United States, and to have effect till disap
proved, whenever in the opinion of such commander the proper administra
tion of said act shall require it, to suspend or remove from office, or from
the performance of official duties and the exercise of official powers, any
officer or person holding or exercising, or professing to hold or exercise,
any civil or military office or duty in such district under any power, elec-
440 NOTES TO THE FORTY-THIRD EDITION.
tion, appointment or authority derived from, or granted by, or claimed
under, any so-called State or the government thereof, or any municipal or
other division thereof, and upon such suspension or removal such com
mander, subject to the disapproval of the General as aforesaid, shall have
power to provide from time to time for the performance of the said duties
of such officer or person so suspended or removed, by the detail of some
competent officer or soldier of the army, or by the appointment of some
other person, to perform the same, and to fill vacancies occasioned by death,
resignation, or otherwise.
SEC. 3. And be it further enacted, That the General of the army of
the United States shall be invested with all the powers of suspension,
removal, appointment, and detail granted in the preceding section to dis
trict commanders.
SEC. 4. And be it further enacted, That the acts of the officers of the
army already done in removing in said districts persons exercising the
functions of civil officers, and appointing others in their stead, are hereby
confirmed : Provided, That any person heretofore or hereafter appointed
by any district commander to exercise the functions of any civil office, may
be removed either by the military officer in command of the district, or by
the General of the army. And it shall be the duty of such commander to
remove from office as aforesaid all persons who are disloyal to the govern
ment of the United States, or who use their official influence in any manner
to hinder, delay, prevent, or obstruct the due and proper administration of
this act, and the acts to which it is supplementary.
SEC. 5. And be it further enacted, That the boards of registration pro
vided for in the act entitled " An Act supplementary to an Act entitled ' An
Act to provide for the more efficient government of the rebel States,' passed
March two, eighteen hundred and sixty-seven, and to facilitate restoration,"
passed March twenty-three, eighteen hundred and sixty-seven, shall have
power, and it shall be their duty before allowing the registration of any
person, to ascertain, upon such facts or information as they can obtain,
whether such person is entitled to be registered under said act, and the oath
required by said act shall not be conclusive on such question, and no person
shall be registered unless such board shall decide that he is entitled thereto ;
and such board shall also have power to examine, under oath (to be admin
istered by any member of such board), any one touching the qualification of
any person claiming registration ; but in every case of refusal by the board
to register an applicant, and in every case of striking his name from the list
as hereinafter provided, the board shall make a note or memorandum,
which shall be returned with the registration list to the commanding gen
eral of the district, setting forth the grounds of such refusal or such striking
from the list : Provided, That no person shall be disqualified as member of
any board of registration by reason of race or color.
SEC. 6. And be it further enacted, That the true intent and meaning of
the oath prescribed in said supplementary act is (among other things),
that no person who has been a member of the legislature of any State,
or who has held any executive or judicial office in any State, whether he
has taken an oath to support the Constitution of the United States or not,
and whether he was holding such office at the commencement of the rebel
lion, or had held it before, and who has afterwards engaged in insurrection
or rebellion against the United States, or given aid or co-mfort to the
enemies thereof, is entitled to be registered or to vote ; and the words
" executive or judicial office in any State " in said oath mentioned shall be
construed to include all civil offices created by law for the administration of
any general law of a State, or for the administration of justice.
NOTES TO THE FORTY-THIRD EDITION. 441
SEC. 7. And be it further enacted, That the time for completing the
original registration provided for in said act may, in the discretion of the
commander of any district, be extended to the first day of October, eighteen
hundred and sixty-seven ; and the boards of registration shall have power,
and it shall be their duty, commencing fourteen days prior to any election
under said act, and upon reasonable public notice of the time and place
thereof, to revise, for a period of five days, the registration lists, and upon
being satisfied that any person not entitled thereto has been registered, to
strike the name of such person from the list, and such person shall not be
allowed to vote. And such board shall also, during the same period, add
to such registry the names of all persons who at that time possess the
qualifications required by said act who have not been already registered ;
and no person shall, at any time, be entitled to be registered or to vote by
reason of any executive pardon or amnesty for any act or thing which,
without such pardon or amnesty, would disqualify him from registration or
voting.
SEC. 8. And be it further enacted, That section four of said last-named
act shall be construed to authorize the commanding general named therein,
whenever he shall deem it needful, to remove any member of a board of
registration and to appoint another in his stead, and to fill any vacancy in
such board.
SEC. 9. And be it further enacted, That all members of said boards of
registration and all persons hereafter elected or appointed to office in said
military districts, under any so-called State or municipal authority, or by
detail or appointment of the district commanders, shall be required to take
and to subscribe the oath of office prescribed by law for officers of the
United States.
SEC. 10. And be it further enacted, That no district commander or mem
ber of the board of registration, or any of the officers or appointees acting
under them, shall be bound in his action by any opinion of any civil officer
of the United States.
SEC. 11. And be it further enacted, That all the provisions of this act
and of the acts to which this is supplementary shall be construed liberally,
to the end that all the intents thereof may be fully and perfectly carried out.
SCHUYLER COLFAX,
Speaker of the House of Representatives.
B. F. WADE,
President of the Senate pro tempore.
IN THE HOUSE OF REPRESENTATIVES, U. S., ?
July 19, 1867. $
The President of the United States having returned to the House of
Representatives, in which it originated, the bill entitled " An Act supple
mentary to an act entitled ' An Act to provide for the more efficient govern
ment of the rebel States/ passed on the second day of March, eighteen
hundred and sixty-seven, and the act supplementary thereto passed on the
twenty-third day of March, eighteen hundred and sixty-seven," with his
objections thereto, the House of Representatives proceeded, in pursuance
<>f the Constitution, to reconsider the same ; and
Resolved, That the bill do pass, two thirds of the House of Represen
tatives agreeing to pass the same.
Attest: EDWD. MCPHERSON,
Clerk H. R. U. S.
56
442 NOTES TO THE FORTY-THIRD EDITION.
IN THE SENATE OF THE UNITED STATES, >
July 19, 1867. $
The Senate having proceeded, in pursuance of the Constitution, to recon
sider the bill entitled " An Act supplementary to an act entitled ' An Act to
provide for the more efficient government of the rebel States,' passed on the
second day of March, eighteen hundred and sixty-seven, and the act sup
plementary thereto, passed on the twenty-third day of March, eighteen
hundred and sixty-seven," returned to the House of Representatives by the
President of the United States, with his objections, and sent by the House
of Representatives to the Senate, with the message of the President return
ing the bill :
Resolved, That the bill do pass, two thirds of the Senate agreeing to
pass the same.
Attest: J. W. FORNEY,
Secretary.
By W. J. MCDONALD,
Chief Clerk.
The history of the three classes of military or provisional governments
which have been erected over the rebel districts is well known. The first
were created by President Lincoln as commander-in-chief, flagrante bella,
as a means of conducting hostilities against the enemy, and of holding con
quered districts by his military forces. The second were created by Pres
ident Johnson, under a plan or policy adopted by him, as an organism for
reconstruction, or restoration of the rebels to the Union. The third were
military governments instituted by laws of Congress, under its war powers,
for the purpose of more effectual control of our enemies, and of facilitating
and prescribing the conditions of their return to the Union. The circum
stances which led to the passage of these acts may be most conveniently
stated in language used upon another occasion.*
" While the war was going on, and as our armies recovered possession of
the hostile country, President Lincoln, as commander-in-chief, by virtue of
his war powers, erected provisional or temporary military governments over
it, to establish law and order, and to protect the rights of loyal or peaceable
citizens who were found therein.
" Andrew Johnson, when chosen Vice-President, was acting as military
governor of Tennessee, and was in the exercise of all the powers which were
bestowed upon any military governor in the rebel States, and, as I have oc
casion to know, was fully satisfied that he was acting in strict accordance
with the Constitution. Very soon after he became President, he undertook
to lay down or resign his war powers as commander-in-chief, to terminate
all the military governments which had been erected by President Lincoln,
and, in place of these, to construct local State governments, according to a
scheme of his own. This he assumed to do by virtue of a clause in the
Constitution which reads thus : ' The United States shall guarantee to every
State in this Union a republican form of government.' He undertook to
execute that guarantee by withdrawing military governments from all the
States ; by proclamations of peace, by pardons and amnesties, and by causing
or allowing such of the inhabitants of rebel districts as he saw fit to select to
* See Address by the author, printed August 15, 1868.
NOTES TO THE FORTY-THIRD EDITION. 443
form local governments over the several States, prescribing what laws they
should pass, Avhat Constitutions they should form, what amendments of our
Constitution they should ratify ; asserting that these States had never been
out of the Union (or, in other words, had never lost any rights by the rebel
lion), and were as fully entitled under the Constitution to send senators and
representatives to Congress, as though they had never become public en
emies. Although the President, as commander-in-chief of the army in time
of civil war, lawfully recognized as such, may erect and maintain over the
public enemies of the United States military governments, and may admin
ister those governments according to his will and pleasure, subject to the
laws of Congress ' concerning captures on land and water,' and ' for the
government and regulation of the land and naval forces,' yet, if in fact the
President lays down his war power, as commander-in-chief, by declaring
that war no longer exists, and if he claims, by virtue of his office as chief
executive, to act as governor of one or of eleven States in this Union, or if
he claims the right to elect or to appoint governors over States, or to give
authority to any man or to any number of men, in any district of this coun
try, to elect governors or other officers, or to organize governments in any
place, I am unable to find in the Constitution of the United States any pro
vision or any suggestion which authorizes or sustains such claims.
" When President Johnson first entered upon the plan of erecting State
governments, the Secretary of State announced that, as they had been initiated
during the recess of Congress, they would be provisional only, and that this
plan of reconstruction would be submitted to Congress at its next session
for approval or rejection. This pledge the President refused to perform ;
and instead of consulting he resisted Congress. He conferred on governors
of his own appointment a greater power than he had ever intrusted to gen
erals in command of military districts ; for, in his proclamation in 1865, in
reference to North Carolina, he subjected the military power to the com
mand of his civil governor. He orders, —
" ' That the military commander of the department, and all officers and
persons in the military and naval service, aid and assist the said provisional
governor in carrying into effect this proclamation.'
" In the summer of 1865, and during the whole of the year 1866, Mr.
Johnson prosecuted his efforts to carry out his policy, and the result was,
that every southern State fell into the hands of disloyal enemies of the
Union ; disorder and violence prevailed ; northerners, supporters of the
government, were murdered, robbed, exiled, unless under military protec
tion ; stay laws, laws for bringing back slavery in fact, laws authorizing
cruel punishments, laws disfranchising the colored population, were passed,
and every conceivable wrong and oppression were inflicted upon those who
had served in the Union armies ; murderers of Union men went openly un
punished, and every crime of which a society utterly disorganized was ca
pable was practised with impunity. In such a condition of affairs, with
leading rebels pardoned and promoted, the punishment of treason stopped
and confiscation ended, such encouragement was given by the President to the
rebels that they claimed to have as good a right as citizens of the loyal
States to come up to Washington and assume the reins of government.
Under the lead of President Johnson's governors, they went on to form
State governments with rebel and disloyal officers, and to elect senators and
representatives who had the impudence to knock for admission at the doors
of Congress. Some of these would-be members were red-handed traitors,
who, by reason of their crimes, were ineligible to office by the laws of the
country.' Yet the President insisted on urging them in, and reiterated ad
nauseam his opinion that it was the duty of Congress to recognize these
444 NOTES TO THE FORTY-THIRD EDITION.
sham governments, created by his dictation, in violation of the law, the Con
stitution, and the expressed will of the people. Congress was thus compelled
either to allow the control of the rebel States to pass back into the hands of
the rebels themselves, and to accept as senators and representatives the ring
leaders of the rebellion, and thus to perpetuate disunion, or to take speedy
and decisive measures to overthrow these governments. Having hesitated
long in coming to an open rupture with President Johnson, having resorted
to persuasion, entreaty, and remonstrance in vain, Congress was reluctantly
constrained to use its power and perform its duty in preventing the Presi
dent from any further violation of the Constitution by continuing his illegal
governments in the Southern States. Therefore, on the 2d of March, 1867,
after thorough debate, was passed an ' Act to provide for the more efficient
government of the rebel States.' This was followed, on the 22d of March,
by a supplementary ' Act to facilitate restoration.' And to these a recent
amendment has been added.
" These statutes, passed by overwhelming majorities over the President's
vetoes, are called the Reconstruction Acts. They declared the rebel States
still subject to the ' military authority' of the United States, divided them
into military districts, required the President to assign army officers to the
command of each district, and to detail sufficient military force to enable
them to enforce their authority. They made it the duty of such officers ( to
protect all persons in their rights of person and property,' ' to suppress in
surrection, disorder, and violence ; to punish criminals either by aid of civil
tribunals or by military commissions.' They declared that ' all interference
under color of State authority with the exercise of military authority under
this Act (March 2) shall be null and void.'
" These acts also provided for the formation of constitutions by delegates
to conventions of male citizens of lawful age, ' without distinction of race,
color, or previous condition,' who had been residents in such States one
year prior to the election, excepting only felons and those who might be dis
franchised as rebels. If these constitutions thus to be formed should be so
framed as to conform to the Constitution of the United States, and if they
should provide that the elective franchise should be enjoyed by all male
citizens of these States, twenty-one years of age, who had reside4 in such
States one year before election, except felons and disfranchised rebels, and
if such constitutions should be ratified by a majority of persons voting on the
question of ratification who are qualified as electors of delegates, and if such
constitutions should be approved by Congress, and if the respective State
legislatures should ratify the Fourteenth Amendment of the Constitution
of the United States, then, when such Article XIV. should become a part of
the Constitution of the United States, each State, on complying with these
conditions, shall be entitled to representation in Congress. It was also pro
vided that rebels excluded from holding office by the Fourteenth Amend
ment should not vote for or be members of the constitutional conventions.
" The act of March 2d asserted supreme military authority over the rebel
States until their re-admission to representation in Congress, declared all
these civil governments then existing as provisional only, and subject to the
right of Congress to remove or overthrow them, and designated who should
and who should not have the right to vote or be eligible to office. Subse
quent acts provided for registration of voters, and somewhat modified the
requirement as to the number of voters by whom constitutions might be
adopted. The inhabitants of the rebellious districts, under the provisions
of these Reconstruction Acts, have formed State constitutions, have organ
ized new State governments, and, with the exception of three States, have
conformed to all the requirements of law, and are now re-admitted to repre
sentation in Congress and to full standing. with the other loyal States.
NOTES TO THE FORTY-THIRD EDITION. 445
There is little reason to doubt that in a short time all the States will be
restored ; and no other questions can be raised in relation to these Recon
struction Acts than these : 1st, whether Congress had authority under the
Constitution to prescribe terms and conditions precedent to the restoration
of the rebel States' to representation; and, 2d, whether the terms and
conditions of such re-admission are binding upon the States when once
admitted?* These questions, which involve the old controversy about
State rights, if not speedily and conclusively settled, will be very likely to
lead to another rebellion or civil war."
In the winter following the publication from which the foregoing extract
was made, the most important of the questions above indicated was brought
before the Supreme Court of the United States in the case of the State of
Georgia v. Stanton, and it was unanimously decided (December Term,
1868-9), " That the distinction between the judicial and political power is
so generally acknowledged in the jurisprudence both of England and this
country, that we need do no more than refer to some of the authorities on
the subject. They are all in one direction." " That this Court has no juris
diction over questions of political rights, rights of State sovereignty, of
political jurisdiction, of government, of the question of corporate exist
ence as a State ; " and inasmuch as the complainant-? sought in this case
to enforce or protect their alleged political rights, the judges refused to
issue an injunction against Mr. Stanton (who, as Secretary of War, pro
licec vice, represented the Executive) to prevent him from causing these re
construction laws to be enforced, and thereby destroying the so-called State
government of Georgia. (See State of Georgia v. Stanton, 6 Wallace, 63.)
On the 24th of July, 1866, by joint resolution, No. 73, Congress declared
Tennessee restored to the Union, that State having complied with the requi
sitions of previous legislation, and also declared that such restoration could
be made only by the consent of the law-making power of the United States.
On the 22d of June, 1868, an act (see Stat. 1868, Chap. 69) was passed
to admit the State of Arkansas to representation in Congress, upon a funda
mental condition therein stated ; and this was followed on the 25th of June,
1868, by another act (Chap. 70) for admitting to representation in Congress
the States of North and South Carolina, Louisiana, Georgia, Alabama, and
Florida, upon the terms and conditions therein set forth.
On the 10th of April, 1869, an act was approved, " authorizing the sub
mission of the constitutions of Virginia, Mississippi, and Texas to a vote of
the people, and authorizing the election of State officers, provided by said
constitutions, and members of Congress." (Chap. 17.)
This act provides that the President may submit the constitution of Vir
ginia to a vote of the people of that State, with a separate vote for its dif
ferent provisions ; that State officers and members of Congress may be
voted for at the same election ; that lists of voters shall be prepared and
corrected, and elections held as provided by laws of Congress. Similar pro-
* West Virginia was admitted as a State into the Union, on condition of changing her
constitution. (See Act December 31, 1862. Proclamation, April 20, 1863.) All the subse
quent acts for admission of rebel States contain conditions prescribed by Congress.
446 NOTES TO THE FORTY-THIRD EDITION.
visions are made for Mississippi and for Texas ; but no election is to be
held in the latter State until directed by the President. If the constitu
tion of either State shall be ratified therein, the legislatures thereof are to
meet at the time and place prescribed. But before either State shall be
admitted to representation in Congress, it shall ratify the Fifteenth Amend
ment of the Constitution. And it is further provided, that the proceedings
in neither of these States shall be deemed final, and operate as a complete
restoration thereof until approved by Congress. That approval having been
given, these States have been restored to the Union.
MILITARY COURTS.
Most if not all of the acts of military courts of the United States, regu
larly constituted during the rebellion, have been confirmed by the laws of
Congress ; and jurisdiction over them has been denied to civil or judicial
courts by the statute of March 2, 1867. (Chap, loo, Stat. p. 432.)
CHAP. CLV. — An Act to declare valid and conclusive certain Proclama
tions of the President, and Acts done in Pursuance thereof, or of his Or
ders, in the Suppression of the late Rebellion against the United States.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That all acts, proclamations, and
orders of the President of the United States, or acts done by his authority
or approval after the fourth of March, anno Domini eighteen hundred and
sixty-one, and before the first day of July, anno Domini eighteen hundred
and sixty-six, respecting martial law, military trials by courts martial or mili
tary commissions, or the arrest, imprisonment, and trial of persons charged
with participation in the late rebellion against the United States, or as
aiders or abettors thereof, or as guilty of any disloyal practice in aid
thereof, or of any violation of the laws or usages of war, or of affording aid
and comfort to rebels against the authority of the United States, and all
proceedings and acts done or had by courts martial or military commissions,
or arrests and imprisonments made in the premises by any person by the
authority of the orders or proclamations of the President, made as afore
said, or in aid thereof, are hereby approved in all respects, legalized and
made valid, to the same extent and with the same effect as if said orders
and proclamations had been issued and made, and said arrests, imprison
ments, proceedings, and acts had been done under the previous express
authority and direction of the Congress of the United States, and in pur
suance of a law thereof previously enacted and expressly authorizing and
directing the same to be done. And no civil court of the United States, or
of any State, or of the District of Columbia, or of any district or territory
of the United States, shall have or take jurisdiction of, or in any manner
reverse any of the proceedings had or acts done as aforesaid, nor shall any
person be held to answer in any of said courts for any act done or omitted
to be done in pursuance or in* aid of any of said proclamations or orders,
or by authority or with the approval of the President within the period
aforesaid, and respecting any of the matters aforesaid ; and all officers
and other persons in the service of the United States, or who acted in aid
thereof, acting in the premises, shall be held prima facie to have been
authorized by the President ; and all acts and parts of acts heretofore
passed, inconsistent with the provisions of this act, are hereby repealed.
Approved March 2, 1867.
NOTES TO THE FORTY-THIRD EDITION. 447
Such have been the principal measures of the government, from the be
ginning of the war down to the present time, relating to the questions of
military or provisional government and reconstruction, or restoration of
rebel States to their normal relations to the Union. They have fully em
bodied and practically and successfully applied the war powers claimed in
this essay. Peace has been restored, slavery has been destroyed, liberty has
been established on firm foundations ; the authority of the Constitution and
laws is now acknowledged in every part of the country. It is possible, even
now, to estimate, in the light of our recent history, the weight of those ob
jections against the war powers, which, in the early years of our conflict,
were urged with much plausibility and force. No military dictator has
seized the reins of power, or destroyed republican government. The rights
to life, liberty, and property have not grown obsolete ; but in more than one
half of our country, the day has but just dawned when these rights have been,
for the first time, secured to four millions of slaves, now made freemen and
citizens. Every movement throughout the war, in relation to the rights of
the people, has resulted in a more perfect, practical development, application,
and establishment of the principles of freedom announced by our ancestors
in the Declaration of Independence, and in the Constitution. The loyal
people of the United States have ratified the use of the amplest war powers
by their government for the preservation of the life of the nation when as
sailed by rebellion, and of these powers none rest upon a firmer foundation
than that which authorizes Congress to provide laws for the military govern
ment of subjugated enemies, and laws for the restoration of rebel States to
the Union, on such terms and conditions as it shall deem expedient.
MILITARY COURTS OF THE CONFEDERATES.
The following statutes passed by the Congress of the Confederate States
will give an idea of the construction put by them upon the Constitution, so
far as it relates to the power of instituting military courts by the legislature : —
CHAP. XXXVI. — An Act to organize Military Courts to attend the Army
of the Confederate States in the Field, and to define the Powers of said
Courts.
The Congress of the Confederate States of America do enact, That courts
shall be organized, to be known as military courts, one to attend each army
corps in the field, under the direction of the President. Each court shall
consist of three members, two of whom shall constitute a quorum, and each
member shall be entitled to the rank and pay of a colonel of cavalry, shall
be appointed by the President, by and with the advice and consent of the
Senate, and shall hold his office during the war, unless the court shall be
sooner abolished by Congress. For each court there shall be one Judge Ad
vocate, to be appointed by the President, by and with the advice and consent
of the Senate, with the rank and pay of a captain of cavalry, whose duties
shall be as prescribed by the rules and articles of war, except as enlarged or
modified by the purposes and provisions of this act, and who shall also hold
his office during the war, unless the court shall be sooner abolished by the
Congress ; and in case of the absence or disability of the Judge Advocate,
448 NOTES TO THE FORTY-THIRD EDITION.
upon the application of the court, the commander of the army corps to which
such court is attached may appoint or detail an officer to perform the duties
of Judge Advocate during such absence or disability, or until the vacancy,
if any, shall be filled by the President.
SEC. 2. Each court shall have the right to appoint a Provost Marshal, to
attend its sittings, and execute the orders of the court, with the rank and
pay of a captain of cavalry ; and also a clerk, who shall have a salary of one
hundred and twenty-five dollars per month, who shall keep the record of
the proceedings of the court, and shall reduce to writing the substance of
the evidence in each case, and file the same in court. The Provost Marshal
and the clerk shall hold their offices during the pleasure of the court. Each
member and officer of the court shall take an oath well and truly to dis
charge the duties of his office to the best of his skill and ability, without
fear, favor, or reward, and to support the Constitution of the Confederate
States. Each member of the court, the Judge Advocate, and the clerk
shall have the power to administer oaths.
SEC. 3. Each court shall have power to adopt rules for conducting busi
ness, and for the trial of causes, and to enforce the rules adopted, and to
punish for contempt, and to regulate the taking of evidence, and to secure
the attendance of witnesses, and to enforce and execute its orders, sentences,
and judgments, as in cases of courts martial.
SEC. 4. The jurisdiction of each court shall extend to all offences now
cognizable by courts martial under the rules and articles of war and the
customs of war, and also to all offences defined as crimes by the laws of the
Confederate States, or of the several States, and when beyond the territory
of the Confederate States, to all cases of murder, manslaughter, arson, rape,
robbery, and larceny, as defined by the common law, when committed by
any private or officer in the army of the Confederate States, against any
other private or officer in the army, or against the property or person of any
citizen or other person not in the army : Provided, Said courts shall not have
jurisdiction of offenders above the grade of colonel. For offences cogniza
ble by courts martial, the court shall, on conviction, inflict the penalty pre
scribed by the rules and articles of war, and in the manner and mode therein
mentioned ; and for offences not punishable by the rules and articles of war,
but punishable by the laws of the Confederate States, said court shall inflict
the penalties prescribed by the laws of the Confederate States ; and for
offences against which penalties are not prescribed by the rules and articles
of war, nor by the laws of the Confederate States, but for which penalties
are prescribed by the laws of a State, said court shall inflict the punishment
prescribed by the laws of the State in which the offence was committed : Pro
vided, That in cases in which, by the laws of the Confederate States, or of
the State, the punishment is by fine or by imprisonment, or by both, the
court may, in its discretion, inflict any other punishment less than death ;
and for the offences defined as murder, manslaughter, arson, rape, robbery,
and larceny, by the common law, when committed beyond the territorial
limits of the Confederate States, the punishment shall be in the discretion
of the court. • That when an officer under the grade of brigadier general or
private shall be put under arrest for any offence cognizable by the court
herein provided for, notice of his arrest and of the offence with which he
shall be charged shall be given to the Judge Advocate by the officer order
ing said arrest, and he shall be entitled to as speedy a trial as the business
before said court will allow,
SEC. 5. Said courts shall attend the army, shall have appropriate quarters
within the lines of the army, shall be always open for the transaction of busi
ness, and the final decisions and sentences of said courts on convictions shall
NOTES TO THE FORTY-THIRD EDITION. 449
be subject to review, mitigation, and suspension, as now provided by the
rules and articles of war in cases of courts martial.
SEC. 6. That during the recess of the Senate the President may appoint
the members of the courts and the Judges Advocate provided for in the
previous sections, subject to the confirmation of the Senate at its session
next ensuing said appointments.
Approved October 9, 1862.
CHAP. XLIX. — An Act to punish and represss the Importation, by our ene
mies, of Notes purporting to be Notes of the Treasury of the Confederate
States.
Whereas, Manifestly with the knowledge and connivance of the Federal
Government, and for the purpose of destroying the credit and circulation of
the treasury notes of this government, immense amounts of spurious or
counterfeit notes, purporting to be such treasury notes, have been fabri
cated and advertised for sale in the enemy's country, and have been brought
into these States, and put in circulation by persons in the service of the
enemy :
The Congress of the Confederate States [of America] do enact, [That]
every person in the service of, or adhering to, the enemy, who shall pass, or
offer to pass, any such spurious or counterfeit note or notes, as aforesaid,
or shall sell or attempt to sell the same, or shall bring any such note or
notes into the Confederate States, or shall have any such note or notes in
his possession, with intent to pass or sell the same, shall, if captured, be put
to death by hanging ; and every commissioned officer of the enemy who
shall permit any offence mentioned in this section to be committed by any
person under his authority, shall be put to death by hanging. Every per
son charged with an offence punishable under this act shall be tried by a
military court in such manner, and under such regulations, as the President
shall prescribe ; and, after conviction, the President may commute the pun
ishment to imprisonment in such manner, and for such time, as he may deem
proper, and may pardon the offender on such conditions as he may deem
proper, or unconditionally.
Approved October 13, 1862.
CHAP. LXXVII. — An Act to amend an Act entitled " An Act to organize
Military Courts to attend the Army of the Confederate States in the Field,
and to define the Powers of said Courts," approved October 9, 1862.
The Congress of the Confederate States of America do enact, That in ad
dition to one military court to attend each army corps in the field, as now
authorized by an act entitled " An Act to organize military courts to attend
the army of the Confederate States in the field, and to define the power of
said courts," approved October ninth, eighteen hundred and sixty-two, one
military court shall be organized in each of such military departments as, in
the judgment of the President, the public exigencies may require; to be
organized in the manner and with powers prescribed in the act of which
this is amendatory.
Approved May 1, 1863.
Joint Resolution on the subject of Retaliation.
Resolved by the Congress of the Confederate States of America, In re
sponse to the message of the President, transmitted to Congress at the com
mencement of the present session, that, in the opinion of Congress, the
57
450 NOTES TO THE FORTY-THIRD EDITION.
commissioned officers of the enemy ought not to be delivered to the author
ities of the respective States, as suggested in the said message, but all cap
tives taken by the Confederate forces ought to be dealt with and disposed of
by the Confederate Government.
SEC. 2. That, in the judgment of Congress, the proclamations of the
President of the United States dated respectively September twenty-second,
eighteen hundred and sixty-two, and January first, eighteen hundred and
sixty-three, and the other measures of the Government of the United States
and of its authorities, commanders, and forces, designed or tending to
emancipate slaves in the Confederate States, or to abduct such slaves, or to
incite them to insurrection, or to employ negroes in war against the Confed
erate States, or to overthrow the institution of African slavery, and bring
on a servile war in these States, would, if successful, produce atrocious
consequences, and they are inconsistent with the spirit of those usages
which in modern warfare prevail among civilized nations ; they may, there
fore, be properly and lawfully repressed by retaliation.
SEC. 3. That in every case, wherein, during the present war, any viola
tion of the laws or usages of war among civilized nations shall be, or has
been, done and perpetrated by those acting under the authority of the Gov
ernment of the United States, on the persons or property of citizens of the
Confederate States, or of those under the protection or in the land or naval
service of the Confederate States, or of any State of the Confederacy, the
President of the Confederate States is hereby authorized to cause full and
ample retaliation to be made for every such violation, in such manner and
to such extent as he may think proper.
SEC. 4. That every white person, being a commissioned officer, or acting
as such, who, during the present war, shall command negroes or mulattoes
in arms against the Confederate States, or who shall arm, train; organize, or
prepare negroes or mulattoes for military service against the Confederate
States, or who shall voluntarily aid negroes or mulattoes in any military en
terprise, attack, or conflict in such service, shall be deemed as inciting ser
vile insurrection, and shall, if captured, be put to death, or be otherwise
punished at the discretion of the court.
SEC. 5. Every person, being a commissioned officer, or acting as such in
the service of the enemy, who shall, during the present wrar, excite, attempt
to excite, or cause to be excited, a servile insurrection, or who shall incite,
or cause to be incited, a slave to rebel, shall, if captured, be put to death, or
be otherwise punished at the discretion of the court.
SEC. 6. Every person charged with an offence punishable under the pre
ceding resolutions shall, during the present war, be tried before the military
court attached to the army or corps by the troops of which he shall have
been captured, or by such other military court as the President may direct,
and in such manner and under such regulations as the President shall pre
scribe, and, after conviction, the President may commute the punishment in
such manner and on such terms as he may deem proper.
SEC. 7. All negroes and mulattoes who shall be engaged in war, or be
taken in arms against the Confederate States, or shall give aid or comfort to
the enemies of the Confederate States, shall, when captured in the Confed
erate States, be delivered to the authorities of the State' or States in which
they shall be captured, to be dealt with according to the present or future
laws of such State or States.
Approved May 1, 1863.
NOTES TO THE FORTY-THIRD EDITION. 451
CHAP. XXXIII. — An Act to amend an Act entitled "An Act to organize
Military Courts to attend the Army of the Confederate States in the Field,
and to define the Powers of said Courts.
TJie Congress of the Confederate States of America do enact, That the act
entitled " An Act to organize military courts to attend the army of the
Confederate States in the field, and to* define the power of said courts," be
so amended as to authorize the President to establish one in North Alabama,
which shall sit at such times- and places as said court may direct, and shall
have all the powers and jurisdiction given to said military courts by said
act ; but the judges thereof shall give ten days' notice of the times and
places of holding said courts before the same are held : Provided, however,
That said court shall cease to exist after one year from the passage of this
act, unless longer continued by Congress.
Approved February 13, 1864.
[No. 7. See pp. 48, 54, 59.]
THE RIGHT OF CAPTURE OF ENEMY'S PROPERTY
JURE BELLI.
In this essay, which was published after the passage of the law of Con
gress, approved July 13, 1861 (Chap. 3), commonly called the " Non-inter
course Act," and after the issue of the President's proclamation of August
16, 1861, which designated the territorial limits of the rebellion, the au
thor claimed " that the United States, at that time, possessed full belli
gerent rights against the rebels ; that all persons who had been, and volun
tarily and permanently continued to be, domiciled within the district of
country which had been declared in rebellion by the President's proclama
tion, were, in law, to be deemed public enemies ; that all their property was
to be deemed enemy's property, and was therefore liable to capture jure
belli, or to seizure and confiscation, whether the owners thereof were loyal
and friendly to the government, or otherwise ; and that such capture, seiz
ure, and confiscation could be made under the war powers, without violating
the Constitution or the laws of nations."
It is interesting to observe the cautious steps by which the courts ad
vanced towards a recognition of these principles of international law. In
the case of the United States v. The Tropic Wind, decided June 13,
1861, by Dunlop, J., he maintained the right of the President, as command
er of the navy in time of actual hostilities, to blockade the port of Rich
mond, and condemned an English schooner and her cargo for violating that
blockade. In April, 1862, in the cases of the Amy Warwick (Edmonds et
al. claimants), Judge Sprague, following the lead of Judge Dunlop and
others in the prize cases of the Tropic Wind, the General Parkhill, the
Crenshaw, the North Carolina, the Pioneer, and the Hattie Jackson, de
cided that property captured at sea by the naval forces of the United
States on the 10th of August, 1861, owned by persons domiciled in Rich-
452 NOTES TO THE FORTY-THIRD EDITION.
mond, a city over which the rebels had at that time absolute dominion,
there being no evidence to explain or rebut the presumption of the personal
hostility of such owners, which arose from their continued residence therein,
was lawful prize. (See Sprague's Reports, 124.) But having no occasion to
pass upon the question whether the vessel or cargo would have been lawful
prize, if the owners had been loyal or friendly to the Union, notwithstand
ing their residence at Richmond, the judge expressly declines to decide
that point. " In questions so novel, I do not think fit," says he, " to go
farther than the case before me requires."
In the second prize case of the Amy Warwick (p. 143,) Dunlop, Non-
cure & Co. claimants, he places his decision more fully on the ground that
residence in the city of Richmond, under the circumstances, was good cause
for condemnation of the captured property. " These claimants," says he,
" do not even offer proof of their loyalty, and there is a high probability
that they are willingly co-operating with the enemy. But if this be not so,
they were at the time of their capture, and have ever since continued to be,
under his absolute control, and that control is an inexorable military des
potism. Every dollar put into their hands, or under their control, is, to all
practical purposes, in the hands of the enemy, and adds to his strength."
The judge thus condemned as prize, property on the high seas belonging
to persons who were actually hostile, or were presumed to be hostile, or
were under the actual control of the rebels, and were so situated that the
proceeds, if restored to the claimants, would, without doubt, have fallen into
the hands of the enemy.
These cases, however, decided only questions of prize, and related only
to captures on the sea. Judge Sprague expressed no opinion on the ques
tion as to the political status of the inhabitants of the rebel States. But
neither his decision, nor those of the judges who had preceded him, were
acquiesced in by the claimants ; but all these prize cases were carried by
appeal to the Supreme Court at Washington, and were finally decided at
the December term, 1863-4. (See 2 Black's R.)
In relation to captures on land, no litigation had, at that early period of
the war, been brought before the courts of the United States. No judicial
decision could then be found, which claimed for the government the right,
jure belli, to capture the property on land of ALL persons domiciled in the
rebel territory. The existence of that right was almost universally ques
tioned or denied. It was said that those only were liable to be treated as
enemies, and to have their property seized or captured, who were enemies
in fact, or who had engaged in open hostilities against the United States.
It was denied that persons residing in the Confederate States, who were
friendly to the Union, and had been guilty of no crime, could be trans-'
formed, in the eye of the law, into criminals by the acts of others, or could
be made to suffer penalties for crimes which they had not committed. The
rights and immunities guaranteed to citizens of the United States by the
NOTES TO THE FORTY-THIRD EDITION. 453
Constitution were claimed by and for them ; and they asserted that the
failure of the government to secure and protect them in the enjoyment of
those rights was a breach of its constitutional duty, which not only ab
solved them from any and all injurious consequences which might result
from the rebellion, but even entitled them to indemnity therefor. The
question was asked by judges, by statesmen, and by well-informed citizens,
what justification could be found for treating innocent and loyal residents in
the seceded States, like rebel soldiers in the southern armies, as public
enemies ; for subjecting their persons and property to seizure and capture ;
for depriving them of civil and political rights? How could such injuries
and indignities be inflicted on peaceable citizens, they asked, without violat
ing, in every clause, that Constitution for the maintenance whereof our
civil war was professedly carried on ? In answer to such questions, it was
necessary, at that time, to present such arguments as were set forth in the
pages on the " War Powers," and to vindicate a right of our government,
now no longer questioned, to capture and confiscate the property of all resi
dents in rebel districts.
It seems strange, at this day (1870), to find how slow Congress was to rec
ognize and put forth its powers against rebellion, and how tardily it asserted
the right of war to capture enemy's property on land. August 6, 1861, an
act was passed (Chap. 60), to confiscate such property of rebels as had been
or was intended to be used by its owners in aid of insurrection ; but it
.provided for the seizure of property only as a punishment for actual or in
tended crimes of individuals. It was in reality, if not in form, a prize act,
and did not authorize the acquisition of enemy property by capture ; for
it did not assert the authority of the United States to capture the prop
erty, by the right of war, of persons other than active participants in re
bellion. This statute was followed by that of July 17, 1862, Chap. 195, of
which the chief provisions are explained in Chap. 6 (pp. 112-116), which
was added to this essay when the law went into operation, as stated in the
preface to the second edition. In this act Congress fell far short of carrying
into effect the full extent of power, which, as the author believed, rightfully
belonged to the government. It authorized the seizure of property of per
sons in the rebel States who were actually engaged in prosecuting war,
and the condemnation of the same by judicial courts. The reader will find
(on pages 126 to 130) the reasons then stated for believing that this law
•would prove practically inoperative. The history of the last six years has
shown how far the anticipations of the author have been fulfilled. Con
gress was far from recognizing or sanctioning the right of the army to cap
ture the property of rebels, in the rebel States, under the general laws of
war, and left the question still open, whether our military forces could,
without violating the laws and Constitution, capture the property of per
sons domiciled in the rebel States, unless they were engaged in hostilities,
or unless the property seized was intended to be used in aid of rebellion.
454 NOTES TO THE FORTY-THIRD EDITION.
By the act of March 12, 1863 (Chap. 120), it was provided that the Sec
retary of the Treasury might appoint agents " to receive and collect all
abandoned or captured property " in the insurrectionary States, "excepting
such as had been used, or was intended to be used, for waging or carrying
on war against the United States, such as arms, ordnance, ships, steam
boats, or other water craft, and the furniture, forage, military supplies, or
munitions of war " (these exceptions being embraced within the provisions
of the former statute), and allowed such abandoned or captured property to
be appropriated to public use ; but treasury agents were required to receive
the same, to keep records thereof, and to make returns of the proceeds to
the treasury, so that the lawful owner might be able to recover the proceeds,
if he should be rightfully entitled thereto. Even in this act Congress did
not declare or sanction the belligerent right of capture, jure belli, of enemv's
property, and the absolute transfer of title to enemy's property by capture
alone, but undertook to provide a temporary stewardship for the care of
such property, leaving the claims of owners for the proceeds, less expenses,
to be prosecuted in the Court of Claims, at any time within two years after
the war should be terminated, on proof of ownership, and of never having
aided the rebellion.
It will be observed that the acts of Congress of July 13, 1861, August 16,
1861, and March 3, 1863, relate to confiscation for intra-territorial offences,
and have no application to a libel suit against a prize captured at sea. (See
the Sally Magee, 1863, Blatchf. Pr. Cases, 382.) They do not, by implication,
exclude seizure and confiscation under the general powers of the government,
upon principles of public law, and the forfeiture may be enforced by the court,
either under the statute, or, through its powers, under process, in prize.
(As to the first of these acts, see the Sarah Starr, 1861, Blatchf. Pr. Cases.)
The power of " making rules concerning captures on land and water,"
which is superadded in the Constitution to that of declaring war, is not con
fined to captures which are extra-territorial, but extends to rules respecting
enemy's property found within the territory, and is an express grant to Con
gress of the power of confiscating enemy's property found within the territory
at the declaration of war, as an independent substantive power, not included
in that of declaring war. (See Brown v. United States, 18 14. 8 Cranch, 1 10.)
By virtue of this power, articles of war were enacted by the act of 10th
April, 1806, of which Art. LVIII. provided that "all public stores taken in
the enemy's camp, towns, forts, or magazines, whether of artillery, ammuni
tion, clothing, forage, or provisions, shall be secured for the service of the
United States ; for the neglect of which the commanding officer is to be
amenable." But it is remarkable that, during the civil war, no law should
have been passed, which, in direct terms, asserts the rights of the United
States to capture, jure belli, the property of all who have been declared
public enemies of the country, domiciled in the rebellious district. Of the
existence of that right probably few, if any, now entertain a doubt. It has
NOTES TO THE FORTY-THIRD EDITION. 455
been exercised in many cases, and since the publication of the earlier edi
tions of the " War Powers," this right of capture, in its amplest extent, has
been directly, or by necessary implication, recognized and sanctioned by the
political departments of the government, and by solemn and repeated adju
dications of the courts of the United States.
In addition to the authorities cited in the 10th (Boston) edition, the reader
is referred to several more recent decisions in the Circuit and Supreme Courts.
See Mrs. Alexander's Cotton, 2 Wallace, R 417. (1864-5.) App. 532.
The Battle, 6 Wallace, 498.
Armstrong's Foundry, 6 Wallace, 769.
U. S. v. Republican Banner Office, 11 Pitt's Leg. Reg. 153.
Cooledge v. Guthrie (Opinion of Mr. Justice Swayne. Appendix, p. 591).
WAR POWERS USED BY THE CONFEDERATES.
Every clause in our Constitution which contains or limits the war powers
of our government, was copied unaltered into the Constitution of the Con
federate States. The interpretation of these powers by the Confederates is
embodied in the several acts of their Provisional Congress, and in their
Statutes at Large. The act of the Provisional Congress, Chap. 3, approved
May 6, 1861, in which war was declared, was as follows : —
An Act recognizing tlie Existence of War between the United States and the
Confederate States, and concerning Letters of Marque, Prizes and Prize
Goods.
Whereas, the earnest efforts made by this Government to establish friend
ly relations between the Government of the United States and the Confed
erate States, and to settle all questions of disagreement between the two
Governments upon principles of right, justice, equity and good faith, have
proved unavailing by reason of the refusal of the Government of the United
States to hold any intercourse with the commissioners appointed by this
Government for the purposes aforesaid, or to listen to any proposal they
had to make for the peaceful solution of all causes of difficulty between the
two Governments : and whereas, the President of the United States of
America has issued his proclamation making requisition upon the States of
the American Union for seventy-five thousand men for the purpose, as
therein indicated, of capturing forts and other strongholds within the juris
diction of, and belonging to, the Confederate States of America, and has
detailed naval armaments upon the coasts of the Confederate States of
America, and raised, organized and equipped a large military force to exe
cute the purpose aforesaid, and has issued his other proclamation announ
cing his purpose to set on foot a blockade of the ports of the Confederate
States : and whereas, the State of Virginia has seceded from the Federal
Union, and entered into a convention of alliance offensive and defensive with
the Confederate States, and has adopted the Provisional Constitution of the
said States ; and the States of Maryland, North Carolina, Tennessee, Ken
tucky, Arkansas and Missouri have refused, and it is believed that the State
of Delaware and the inhabitants of the territories of Arizona and New Mex
ico, and the Indian territory south of Kansas, will refuse to co-operate with
the Government of the United States in these acts of hostilities and wanton
456 NOTES TO THE FORTY-THIRD EDITION.
aggression, which are plainly intended to overawe, oppress and finally sub
jugate the people of the Confederate States : and whereas, by the acts and
means aforesaid, war exists between the Confederate States and the Gov
ernment of the United States, and the States and Territories thereof, except
the States of Maryland, North Carolina, Tennessee, Kentucky, Arkansas,
Missouri and Delaware, and the Territories of Arizona and New Mexico, and
the Indian Territory south of Kansas : Therefore,
SEC. 1. The Congress of the Confederate States of America do enact,
That the President of the Confederate States is hereby authorized to use
the whole land and naval force .of the Confederate States to meet the war
thus commenced, and to issue to private armed vessels commissions, or
letters of marque and general reprisal, in such form as he shall think proper,
under the seal of the Confederate States, against the vessels, goods and
effects of the Government of the United States, or of the citizens or inhab
itants of the States and Territories thereof, except the States and Territories
hereinbefore named : Provided, hoivever, That property of the enemy (unless
it be contraband of war) laden on board a neutral vessel, shall not be subject
to seizure under this act : And provided further, That vessels of the citizens
or inhabitants of the United States now in the ports of the Confederate
States, except such as have been since the fifth of April last, or may here
after be, in the service of the Government of the United States, shall be
allowed thirty days after the publication of this act to leave said ports and
reach their destination ; and such vessels and their cargoes, excepting arti
cles contraband of war, shall not be subject to capture under this act dur
ing said period, unless they shall have previously reached the destination
for which they were bound on leaving said ports.
SEC. 2. That the President of the Confederate States shall be, and he is
hereby, authorized and empowered to revoke and annul, at pleasure, all
letters of marque and reprisal which he may at any time grant pursuant to
this act.
SEC. 3. That all persons applying for letters of marque and reprisal, pur
suant to this act, shall state in writing the name and a suitable description
of the tonnage and force of the vessel, and the name and place of residence
of each owner concerned therein, and the intended number of the crew ;
which statement shall be signed by the person or persons making such ap
plication, and filed with the Secretary of State, or shall be delivered to any
other officer or person who shall be employed to deliver out such commis
sions, to be by him transmitted to the Secretary of State.
SEC. 4. That before any commission or letters of marque and reprisal
shall be issued as aforesaid, the owner or owners of the ship or vessel for
which the same shall be requested, and the commander thereof for the time
being, shall give bond to the Confederate States, with at least two responsi
ble sureties not interested in such vessel, in the penal sum of five thousand
dollars, or if such vessel be provided with more than one hundred and fifty
men, then in the penal sum of ten thousand dollars, with condition that the
owners, officers and crew who shall be employed on board such commis
sioned vessel, shall and will observe the laws of the Confederate States,
and the instructions which shall be given them according to law for the
regulation of their conduct, and will satisfy all damages and injuries which
shall be done or committed contrary to the tenor thereof, by such vessel
during her commission, and to deliver up the same when revoked by the
President of the Confederate States.
SEC. 5. That all captures and prizes of vessels and property shall be for
feited and shall accrue to the owners, officers and crews of the vessels by
whom such captures and prizes shall be made, and on due condemnation
NOTES TO THE FORTY-THIRD EDITION. 457
had, shall- be distributed according to any written agreement which shall be
made between them; and if there be no such written agreement, then one
moiety to the owners and the other moiety to the officers and crew, as near
ly as may be, according to the rules prescribed for the distribution of prize
money by the laws of the Confederate States.
SEC. 6. That all vessels, goods and effects, the property of any citizen of
the Confederate States, or of persons resident within and under the protec
tion of the Confederate States, or of persons permanently within the territo
ries and under the protection of any foreign prince, government or state in
amity with the Confederate States, which shall have been captured by the
United States, and which shall be recaptured by vessels commissioned as
aforesaid, shall be restored to the lawful owners, upon payment by them of
a just and reasonable salvage, to be determined by the mutual agreement
of the parties concerned, or by the decree of any court having jurisdiction,
according to the nature of each case, agreeably to the provisions established
by la\v. And such salvage shall be distributed among the owners, officers
and crews of the vessels commissioned as aforesaid, and making such cap
tures, according to any written agreement which shall be made between
them : and in case of no such agreement, then in the same manner and
upon the principles herein before provided in cases of capture.
SEC. 7. That before breaking bulk of any vessel which shall be captured
as aforesaid, or other disposal or conversion thereof, .or of any articles
which shall be found on board the same, such captured vessel, goods or
effects shall be brought into some port of the Confederate States, or of a
nation or state in amity with the Confederate States, and shall be proceed
ed against before a competent tribunal, arid after condemnation and forfeit
ure thereof shall belong to the owners, officers and crew of the vessel cap
turing the same, and be distributed as before provided ; and in the case of
all captured vessels, goods and effects, which shall be brought within the
jurisdiction of the Confederate States, the district courts of the Confederate
States shall have exclusive original cognizance thereof, as in civil causes of
admiralty and maritime jurisdiction ; and the said courts, or the courts,
being courts of the Confederate States, into which such cases shall be re
moved, and in which they shall be finally decided, shall and may decree res
titution in whole or in part, when the capture shall have been made without
just cause. And if made without probable cause, may order and decree
damages and costs to the party injured, for which the owners and command
ers of the vessels making such captures, and also the vessels, shall be liable.
SEC. 8. That all persons found on board any captured vessels, or on board
any recaptured vessel, shall be reported to the collector of the port in the
Confederate States in which they shall first arrive, and shall be delivered
into the custody of the marshal of the district, or some court or military
officer of the Confederate States, or of any State in or near such port, who
shall take charge of their safe keeping and support, at the expense of the
Confederate States.
SEC. 9. That the President of the Confederate States is hereby author
ized to establish and order suitable instructions for the better governing
and directing the conduct of the vessels so commissioned, their officers and
crews, copies of which shall be delivered by the collector of the customs to
the commanders, when they shall give bond as before provided.
SEC. 10. That a bounty 'shall be paid by the Confederate States of twenty
dollars for each person on board any armed ship or vessel, belonging to the
United States, at the commencement of an engagement, which shall be
burnt, sunk or destroyed by any vessel commissioned as aforesaid, which
shall be of equal or inferior force, the same to be divided as in other cases
58
458 NOTES TO THE FORTY-THIRD EDITION.
of prize money ; and a bounty of twenty-five dollars shall be paid to the
owners, officers and crews of the private armed vessels commissioned as
aforesaid, for each and every prisoner by them captured and brought into
port, and delivered to an agent authorized to receive them, in any port of
the Confederate States ; and the Secretary of the Treasury is hereby author
ized to pay or cause to be paid to the owners, officers and crews of such
private armed vessels commissioned as aforesaid, or their agent, the
bounties herein provided.
SEC. 11. That the commanding officer of every vessel having a commis
sion or letters of marque and reprisal, during the present hostilities between
the Confederate States and the United States, shall keep a regular journal,
containing a true and exact account of his daily proceedings and transac
tions with such vessel and the crew thereof; the ports and places he shall
put into or cast anchor in ; the time of his stay there and the cause thereof;
the prizes he shall take and the nature and probable value thereof; the
times and places when and where taken, and in what manner he shall dis
pose of the same ; the ships or vessels he shall fall in with ; the times and
places when and where he shall meet with them, and his observations and
remarks thereon ; also, of whatever else shall occur to him or any of his
officers or marine, or be discovered by examination or conference with any
marines or passengers of or in any other ships or vessels, or by any other
means touching the fleets, vessels 'and forces of the United States, their
posts and places of station and destination, strength, numbers, intents and
designs ; and such commanding officer shall, immediately on his arrival in
any port of the Confederate States from or during the continuance of any
voyage or cruise, produce his commission for such vessel, and deliver up
such journal so kept as aforesaid, signed with his proper name and hand
writing, to the collector or other chief officer of the customs at or nearest to
such port ; the truth of which journal shall be verified by the oath of the
commanding officer for the time being. And such collector or other chief
officer of the customs shall, immediately on the arrival of such vessel, order
the proper officer of the customs to go on board and take an account of the
officers and men, the number and nature of the guns, and whatever else
shall occur to him on examination material to be known ; and no such ves
sel shall be permitted to sail out of port again until such journal shall have
been delivered up, and a certificate obtained under the hand of such col
lector or other chief officer of the customs that she is manned and armed
according to her commission ; and upon delivery of such certificate, any
former certificate of a like nature which shall have been obtained by the
commander of such vessel, shall be delivered up.
SEC. 12. That the commanders of vessels having letters of marque and
reprisal as aforesaid, neglecting to keep a journal as aforesaid, or wilfully
making fraudulent entries therein, or obliterating the record of any material
transactions contained therein, where the interest of the Confederate States
is concerned, or refusing to produce and deliver such journal, commission
or certificate, pursuant to the preceding section of this act, then and in such
cases the commissions or letters of marque and reprisal of sucli vessel shall
be liable to be revoked ; and such commanders respectively shall forfeit for
every such offence the sum of one thousand dollars, one moiety thereof to
the use of the Confederate States, and the other to the informer.
SEC. 13. That the owners or commanders of vessels having letters of
marque and reprisal as aforesaid, who shall violate any of the acts of Con
gress for the collection of the revenue of the Confederate States, and for the
prevention of smuggling, shall forfeit the commission or letters of marque
and reprisal, and they and the vessels owned or commanded by them shall
NOTES TO THE FORTY-THIRD EDITION. 459
be liable to all the penalties and forfeitures attaching to merchant vessels in
like cases.
SEC. 14. That on all goods, wares and merchandise captured and made
good and lawful prizes of war, by any private armed ship having commis
sion or letters of marque and reprisal under this act, and brought into the
Confederate States, there shall be allowed a deduction of thirty-three and
one third per cent, on the amount of duties imposed by law.
SEC. 15. That five per centum on the net amount (after deducting all
charges and expenditures) of the prize money arising from captured vessels
and cargoes, and on the net amount of the salvage of vessels and cargoes
recaptured by the private armed vessels of the Confederate States, shall be
secured and paid over to the collector or other chief officer of the customs,
at the port or place in the Confederate States at which such captured or
recaptured vessels may arrive, or to the consul or other public agent of the
Confederate States residing at the port or place not within the Confederate
States at which such captured or recaptured vessel may arrive. And the
moneys arising therefrom shall be held and are hereby pledged by the Gov
ernment of the Confederate States as a fund for the support and mainte
nance of the widows and orphans of such persons as may be slain, and for
the support and maintenance of such persons as may be wounded and disa
bled on board of the private armed vessels commissioned as aforesaid, in
any engagement with the enemy, to be assigned and distributed in such
manner as shall hereafter be provided by law.
Approved May 6, 1861.
This act made all citizens of the United States, with certain exceptions,
alien public enemies of the Confederacy, and subjected their persons and
property, of every description, real and personal, to the sternest rules of
belligerent law. It authorized letters of marque, and provided for the adju
dications of captured prizes. The acts of August 8, August 30, December
23, 1861, and February 15, 1862, will show the application of the laws of
war to the persons and property of others not embraced in this act, and
will give a striking exposition of the extreme severity with which belligerent
law may be- applied, without going beyond the Constitution as understood
by rebels then, and by loyal citizens now. For these acts, see note to page
116, " On Confiscation."
[See page 48.]
DISTINCTION BETWEEN CAPTURE AND PRIZE.
The distinction between captures on land and prizes on the high seas, in
respect to the mode and time of passing or changing the title of the prop
erty from the owner to the captor, as stated in the text (p. 48), has been
recognized by the courts of the United States in several recent cases. In
the former the title passes as soon as the capture is complete. In the latter
the right of property remains unchanged until a final decree of condemna
tion by courts of the country of the captors. See The Peterhoff, Bl. Pr.
Cas. 620. (1865.)
460 NOTES TO THE FORTY-THIRD EDITION.
[No. 8. See p. 275.]
MILITARY COMMISSIONS,
As regarded by the Supreme Court, and by Congress. The Case of Ex parte
Milligan.
Congress passed an act, March 3, 1863 (12 Stat. 755), which provided that
persons imprisoned under the authority of the President, and not held as
prisoners of war, should, under the circumstances therein set forth, be en
titled to be brought, by writ of habeas corpus, before certain courts of the
United States, and to be discharged from military custody. Milligan claimed
his release under the provisions of this act. None of the judges cf the
Supreme Court questioned its constitutionality, and all agreed that the peti
tioner's case came within its provisions, and that he was therefore entitled
to his discharge. The order of the court was, " That, on the facts stated in
the said petition and exhibits, the said Milligan ought to be discharged from
custody as in said petition is prayed, according to the Act of Congress
passed March 3, 1863, entitled "An Act relating to habeas corpus, and
regulating judicial proceedings in certain cases."
In the elaborate opinions of the Chief Justice and of Mr. Justice Davis, a
further question is discussed — " Whether it would have been within the
power of Congress to authorize such a military commission to be held in
Indiana," under the circumstances set forth in the petition and exhibits?
As Congress had passed no law authorizing that commission, and as no
" case " had arisen involving any question as to the validity of such a law, it
is clear that the Supreme Court had no power to decide this abstract ques
tion. It must therefore be deemed as still undecided. But the discussions
and the reasons of the opposing judges are none the less interesting and
instructive.
It was held by the court that a certain military commission, before which
one Milligan was tried, in October, 1864, at Indianapolis, had no jurisdic
tion to try and sentence him, he not being a resident of one of the rebellious
States, nor a prisoner of war, but a citizen of Indiana for twenty years past,
and never in the military or naval service of the United States, or of their
enemies; the majority of the court claiming to have "judicial knowledge
that in Indiana, in time of war, the Federal authority was always unop
posed, and its courts always open to hear criminal accusations, and redress
grievances." On this statement of facts five of the judges were of opinion
that Milligan had the right of trial by jury, and could not be lawfully tried
by the military commission. The same judges also said that in case of
foreign invasion, or civil war, " if the courts are closed," and if it is impos
sible to administer criminal justice according to law, then, on the theatre of
active military operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority thus overthrown, to preserve the
NOTES TO THE FORTY-THIRD EDITION. 461
safety of the army and of society ; and as no power is left but military, it is
allowed to govern by martial rule, until the laws can have their free course,
but that martial law must be confined to the locality of actual war. " It may
be a necessity in one State, when in another it would be lawless violence."
It will be observed that the majority of the court, in delivering their
opinion, declare and assume, as the basis of their judgment, the existence
of a state of facts, of which they claim to have had judicial knowledge;
namely, that in Indiana, at the time and place where MMligan was arrested,
in a period of civil war, " the Federal authority was always unopposed."
The act of Congress approved March 3, 1863, authorized the President,
when public safety required it, during the war, to suspend the writ of habeas
corpus throughout the United States ; and by proclamation of September
15, 1863, he had suspended the privilege of the writ in cases where, by his
authority, military, naval, and civil officers of the United States held per
sons in their custody, either as prisoners of war, spies, or aiders or abettors
of the enemy, or as belonging to the land or naval forces of the United
States, or otherwise amenable to military law, or the rules and articles of
war, or the rules and regulations prescribed for the military or naval ser
vices, by authority of the President, or for resisting a draft, or for any other
offence against the military or naval service."
The record of the military commission showed that Milligan was guilty
of joining and aiding, at different times, between October, 1863, and August,
1864, a secret society, known as the Order of American Knights or Sons of
Liberty, for the purpose of overthrowing the government and duly consti
tuted authorities of the United States ; that he was guilty of holding com
munication with the enemy (in Indiana) ; that he conspired with others to
seize the munitions of war of the United States stored in the public arsenals,
and to liberate prisoners of war held by the military forces of the United
States ; that he resisted the draft during a period of war and armed rebel
lion against the authority of the United States, at or near Indianapolis, and
other places specified, in Indiana ; that that State was within the military
lines of the army of the United States, and was the theatre of military oper
ations, and had been invaded, and was constantly threatened to be invaded,
by the enemy.
In this state of facts, shown upon the record, it is not easy to see how the
court could have judicial knowledge "that the Federal authority was always
unopposed in Indiana ; that State having been actually invaded by the pub
lic enemy, and invasion being then threatened, and measures being then in
progress among the inhabitants of Indiana to join in the rebellion, to over
throw the government, to seize its public property, to liberate its prisoners
of war, and thus to create an army of rebels, who, with our prisoners of war,
might co-operate with Milligan and his associates in acts of hostility against
the United States, in the places where our armies were being recruited and
organized, and within our military lines.
4.62 NOTES TO THE FORTY-THIRD EDITION.
The fact, whether the legal status of war, or of peace, was recognized by
the political department of the government,1 was of vital importance to the
question of jurisdiction of the military commission which tried Milligan.
That certain courts of the United States were held in Indiana, according to
law, might be judicially known to the Supreme Court at Washington ; but
whether, in time of civil war, the authority of the United States was " unop
posed," or whether the state of our military operations in that district was
such that the courts could be held only because they were protected by the
presence of the army, as was the case in some localities, which had not been
formally declared by the President in rebellion, and the question what was
the military status of that district in which the petitioner was captured, in
volved the ascertainment of facts of a political character, and of which our
Supreme Court has not hitherto felt authorized to take judicial cognizance.
What is " the theatre of active military operations," in which, as declared
by the majority of the court, martial law must be allowed to govern?
What, in time of civil war, which involves every citizen, is " the actual lo
cality of war " ? Who is to determine these questions, or to say whether
" the Federal authority is unopposed," or whether, on the contrary, hostile
military organizations are in existence, which, if not opposed by arms, or
by arrest or capture of their leaders, will break out into open hostilities,
when it may be too late to avert the mischief? When civil war has been
recognized or declared by the proper departments of the government, who
has a right to decide where rebellion and war exist, and what are and what
are not " active hostilities " ? What department has the right to decide, for
the time being, the legal status or condition of the inhabitants of any por
tion of any State, when hostilities are, in fact, going on, or are threatened ?
Such questions, under our government, cannot be decided by the Judicial
Department, either on affidavits or other evidence taken by judges, or by
their orders, nor by their opinions upon supposed judicial knowledge of facts.
These are political questions to be decided by the political department of
the government, and the courts are bound to respect and to be governed by
those decisions.
Whenever, in case of foreign invasion, or of civil war, any section of the
country is so remote from all military or naval operations as to have re
mained undisturbed by the presence of our military or naval forces, or by
the open or secret hostilities of the enemy ; when martial law has not been
declared, and when the privilege of the writ of habeas corpus has not been
suspended by reason of public danger ; when the courts are open and un
obstructed in the discharge of their official duties, without being dependent
upon the military power of the country for their protection, the government
not having taken those measures which it is authorized to take in time of
insurrection, invasion, or civil war, a state of war not having been declared
or recognized by the political departments, — the Executive would have no
right to institute military tribunals for the punishment of citizens not be-
NOTES TO THE FORTY-THIRD EDITION. 463
longing to the military or naval service, in such a section of the country,
and in such a condition of affairs, nor to deprive citizens of any of the privi
leges ordinarily secured to them under the Constitution. Whenever and
wherever a state of peace is recognized as existing by the political depart
ment of the government, the laws of peace prevail, and the rights secured
to citizens in time of peace must be respected and maintained ; but wherever
and whenever, in the United States, a state of war is so recognized, there
and then the rights and liabilities of war attach.
Among the questions which it would seem desirable to have raised in
preparing the record, and to have presented on the part of the United
States, for the judgment of the court in Milligan's case, are, 1. Whether,
under all the circumstances of hostilities practised against the Union by the
public enemy in Indiana, a state of war had in fact been recognized by the
political departments as existing at the time and place when said Milligan
was captured ? 2. Whether he was captured and held as a prisoner of war ?
It does not appear that he was alleged, in the record, to have been cap
tured as a prisoner of war, nor that the officer who held him claimed to
hold him as a prisoner of war ; and it does appear that Milligan sought his
discharge under the act of March 3, 1863, which is by its own terms inap
plicable to prisoners of war. These questions, though not overlooked by
counsel, were not properly presented by the record for adjudication. On
the contrary, the only question presented and really decided was, whether
Milligan was entitled to his discharge under the provisions of the law of
Congress of March 3, 1863 ? and the court, taking it as conceded that the
petitioner was not captured and held as a prisoner of war, unanimously
decided that he was entitled to his discharge by the provisions of that law ;
thus, by necessary implication, sustaining the validity of the statute, and of
the war powers embodied in it. This case decides nothing in relation to
military commissions in rebel States. Since the opinions of the judges
were announced, Congress has passed a statute for the purpose of prevent
ing future litigation which would be likely to arise from the decisions of
military courts and commissions during the war, by extending to their pro
ceedings a full sanction, and by depriving civil courts of all right of subse
quent jurisdiction over the same. (See Act, March 2, 1867, Chap. 155 ; also
note on " Military Government.") *
See Ex parte M Cardie, 7 Wallace, 509.
Act, March 27, 1868, 15 Stat. at Large, 44.
Ex parte Yerger, 8 Wallace, 85.
* Since the above was m type, the Supreme Court have fully recognized the war power
of the government to establish military courts in the rebel territory. See The Grape-
shot, 9 Wallace, 131, App. 001.
464 NOTES TO THE FORTY-THIRD EDITION.
[No. 9. Extracts from the Records of the War Department.]
THE EMANCIPATION BUREAU.
Letter from Hon. Thomas D. Eliot, Chairman of the Committee on Eman
cipation.
HOUSE OF REPRESENTATIVES, ?
ROOMS OF COMMITTEE ON EMANCIPATION, Dec. 26, 1863. $
HON. E. M. STANTON, Secretary of War.
DEAR SIR : The Committee on Emancipation have directed me to sub
mit to you a bill creating a Bureau of Emancipation in your department. •
Will you be pleased to examine the bill, and make such suggestions con
cerning it as may seem right ? The committee will be also glad if they may
have the benefit of any legal suggestions or criticisms from the eminent law
solicitor of your department, and I respectfully ask that the bill may be re
ferred to him for that purpose.
I have the honor to be, very truly,
Your friend and servant,
THOMAS D. ELIOT, Chairman.
To the Committee on Emancipation, House of Representatives.
HON. THOMAS D. ELIOT, Chairman:
The letter of which the foregoing is a copy has been received by the
Secretary of War, and by him referred to me.
In compliance with the request which your chairman has made, I have
the honor to say, that I have examined the bill presented by him (H. R.,
No. 51) to establish a Bureau of Emancipation, aided by personal ex
planations, which he has done nue the favor to make, and I would sug
gest that there be inserted in the first page, eleventh line, after the word
enacted, the following: "concerning persons of African descent, and of per
sons who are or shall become free by virtue of any proclamation, law, or
military order, issued, enacted, or promulgated during the present rebellion,
by virtue of any act of emancipation which has been or shall be enacted by
any State for the freedom of such persons held to service or labor within
such State, or who shall now be or hereafter become otherwise entitled to
their freedom ; and such commissioner shall have authority, under the direc
tion of the Secretary of War, to make all needful rules and regulations for
the general superintendence, direction, and management of all such persons,
to appoint a chief clerk," &c.
In the foregoing, the change proposed gives the commissioner positive
authority to make " rules and regulations," instead of merely " referring to
him for adjustment and determination of all questions which may arise con
cerning persons of African descent. This language might be narrowed by
opponents down to a mere arbitration of legal questions.
NOTES TO THE FORTY-THIRD EDITION. 465
It might not be safe to confine the commissioner's authority to action
under laws " concerning persons of African descent," as there will be trou
ble in practical application of the laws of genealogy when we get into
courts, especially if they are inclined to restrict the powers and jurisdiction
of the commissioner ; ' it is therefore proposed to include not only per
sons of African descent, but " all who are or shall become free," &c. As
the law is retrospective in one sense, and as, before it shall have been
approved, persons and States, perhaps the United States government, may
have taken further steps forward, it is suggested that all its provisions
should embrace not only those who now are free, but those also who may
hereafter become free. The phraseology of the above is in accordance with
that idea.
On the fourth page, ninth line, it is proposed to insert the following
amendment, viz. : after the words, " and the said," insert the following :
" commissioner, and by his direction the said assistant commissioners shall
have power to permit persons of African descent and persons who are or
shall have become free as aforesaid under such rules and regulations as may
be from time to time prescribed by said commissioner, and approved by the
Secretary of War, to occupy, cultivate, and improve all lands lying within
those districts now or heretofore in rebellion, which lands may have been
or may hereafter be abandoned by their former owners, and all real estate to
which the United States shall have acquired title, and which shall not have
been previously appropriated by the government to other uses." With
the foregoing amendments and additions, it seems to me that the bill
will give ample power to accomplish the object desired, as I suppose,
by the honorable committee.
I hope, however, that it will not be deemed an impropriety for me to make
another suggestion. The work laid out for the Bureau of Emancipation is of
immense magnitude. Two and a half millions of wards, driven from their ac
customed shelters by the sharp catastrophes of war, landless, houseless, home
less, appeal to the government to guard and save them. From their earliest
years deprived of the light of knowledge, they are children, able as yet to
see only the star of freedom. They feel with hope and confidence that the
flag which brings to them liberty will spread over them the mantle of its protec
tion. In the heart of this great people every pulsation throbs for freedom.
The instincts of national honor will allow no faltering and no failure in
our duty to the oppressed freedmen, who stand shoulder to shoulder in this
struggle for our country's safety and renown. I therefore homor you, gen
tlemen, who see your high duty, and mean to perform it.
The plan proposed in this bill is for the organization of a bureau in the
War Department. Perhaps this is the best means of commencing the great
work ; but I think the time will soon come, if it has not already arrived,
when the duties of this bureau will require the powers and merit the dignity
of a separate executive department.
59
466 NOTES TO THE FORTY-THIRD EDITION.
There are several subjects which might be advantageously grouped to
gether, and ought to be placed under the management of one controlling
mind. Among them are the following : —
1. Taking possession, on behalf of the United States, of all real estate
abandoned by its owners who have joined the rebels.
2. Taking possession of all real estate forfeited to the United States, to
be sold for taxes, whether bought in by order of the President of the United
States, or sold to settlers and others.
3. Taking possession of all lands confiscated by the United States.
4. Taking possession of all personal property of the enemy derelict, aban
doned, or captured, except prizes at sea.
5. Taking care of and making provision for all persons now freed or here
after to be freed under any laws of the United States or proclamations of
the President, or acts of manumission.
6. Taking care of all colored men in the rebellious districts who were
free before the war, and of all fugitives thereto from loyal States.
7. Regulating all legal proceedings for the confiscation of rebel property
in all the courts. The United States attorney or special attorney to act un
der orders of the new department, so far as respects these proceedings.
8. The administration of all laws, rules, and regulations relating to the
MIGRATION of colored persons to and from the rebel States.
9. And of all laws relating to the compensation, if any, which the govern
ment may hereafter give to aid loyal States in emancipating slaves.
10. Controlling all other matters relating to the emancipation, its pro
cesses, its rules and regulations, &c., and the protection of the interests of
the colored men on one hand, and the United States on the other.
These subjects are intimately connected together ; they would require
genius, active energy, and powerful executive talent. The Secretaries of
War and of the Treasury are already so overwhelmed with labor and re
sponsibility, that it is ungenerous to demand of either of them to assume
the herculean task. The labors of this Emancipation Department will be
unsurpassed by those of any member of the Cabinet. Its importance to the
ultimate issue of the war, to the reputation of our country abroad, to the
moral character of our people in the Southern States, to the treasury, to the
soldiers, and to the industrial interests of this great nation, can hardly be
over-estimated. Whoever is competent to fill the office of Secretary of
Emancipation should have a seat in the Cabinet, and should also enjoy the
confidence and co-operation of that great and good man, whose proclamation
of freedom has re-created a nation, and will cause his name to be venerated
wherever the flag of the Union shall cast its shadow.
Very truly yours,
WILLIAM WHITING,
Solicitor of the War Department.
WAR DEPARTMENT, Jan. 7, 1864.
NOTES TO THE FORTY-THIRD EDITION. 467
[No. 10.]
LETTER RELATING TO CLAIMS AGAINST THE
GOVERNMENT.
WAR DEPARTMENT, WASHINGTON CITY, January 15, 1864.
HON. ELIHU B. WASHBURN, U. S. House of Representatives.
SIR : Your letter of the 13th instant has been received, in which you have
requested me to " state, if consistent with my views of public duty, the
nature, extent, and character of the various claims which have come to my
notice against the government, growing out of the loss and destruction of
property during the present rebellion ; and also to make any general sug
gestions on the subject that may seem proper."
In reply, I have the honor to state that a great variety of claims have
been made against the United States, growing out of the loss or destruction
of property in the Southern States. Damages have been claimed by loyal
citizens, who have always resided in the Northern States, for real estate
situated in the rebellious districts, and taken into possession of the Union
troops for military purposes, as for quarters, or for storage, or hospitals,
barracks, &c. Damages have also been asked, by the same class of per
sons, for personal property, as cotton, sugar, flour, horses, mules, wagons,
agricultural implements, money of the United States, money of the Con
federates, hay, grain, corn, and all kinds of forage ; wood for burning, and
wood cut down, but not removed from the spot when cut, and damages
for crops trampled or eaten up by our cavalry, &c. But by far the larger
proportion of claims is made by persons residing in the disloyal districts,
for every species of real and personal property, alleged to have been
used, injured, seized, or destroyed by our troops ; for fences burned, crops
trampled down or consumed by the army, horses, mules, beef cattle cap
tured, seized and taken away ; money, furniture, and household articles
lost or stolen ; cotton captured, burned, used, lost, or damaged by dirt or
otherwise in the use of it for military or naval purposes. Every variety of
personal property, lawfully captured by our forces, has been claimed, or
damages have been .demanded, for its use, detention, or destruction.
Rents are continually requested for the use of real estate seized by our
troops ; property which has been condemned as lawful prize in our courts
has been claimed, or its value in damages. And, what is singular, every
claimant purports on affidavits to be a loyal citizen, even when, in some
cases, it is well known to the department that the party really interested
in the claim is actively engaged in rebellion at the time the claim is pre
sented. Respectable gentlemen, on many occasions, act as claim agents on
behalf of the parties interested.
468 NOTES TO THE FORTY-THIRD EDITION.
Often it happens that shift is made in the title, or apparent title, of
property, in order that the party making the application may be deemed
loyal. And were we to regard the evidence presented to this department
as conclusive on the question of loyalty, it would be doubtful whether there
is, or ever was, a disloyal person in the seceded States. Many claims have
been made for property seized in attempts to violate the laws regulating
commerce with the inhabitants of the rebellious States. Few if any instances
have occurred of claims for the restoration of property seized in transitu on
its course from Maryland, New York, or other States, to Virginia, without
being accompanied by testimony of the loyalty, honesty, and high character
of the criminal, even where he has been arrested and caught in the act of
violating the law. Rebel printing offices have been gutted out; secession
houses have been burned ; arms and munitions of war have been seized ;
vessels have been used, seized, or captured by our forces ; railroads have
been taken for military use ; their rolling stock has been worn out ; tracks
have been destroyed, bridges burned, or blown up, and every form of
devastation and destruction has been inflicted on the enemy's property by
our armies. For all these injuries, the inevitable result of warlike opera
tions, indemnity is demanded of the government by persons claiming to be
loyal, even though residing in the districts at war with us. Wherever the
armies move, they scatter broadcast the prolific seed which will ripen into
raids. As to the character of these demands upon the Treasury, so far as
known to me, some of them have but a slight foundation in fact, many are
purely fictitious, and a large proportion of them has been exorbitant and
unreasonable. Sometimes the amount of annual rent demanded for a piece
of real estate is equal to half or the whole of its value. The valuation placed
upon many articles has been more than ten times their real worth; and
as a general statement, these claims are of so gross and outrageous a char
acter as to stamp them as fraudulent. Although some claims of this class
are fairly stated, yet it would seem as though it were thought fair game by
some claimants to rob the Treasury to any practicable extent.
In answer to the inquiry as to the amount of these claims which have
been or will be brought against the government, I can only say that it is
impossible to ascertain the aggregate. I believe that hundreds of millions
of dollars will be required to satisfy these demands. If it were now under
stood that they were allowed and promptly settled in the War Department,
and paid by the Treasury, I do not believe that wre could carry on the war
three months for want of money or credit. I look upon the army of claimants
as really quite as formidable to the government as the army of rebels ; and
if this great and impending danger is not looked in the face, and promptly
and decisively met by Congress, I shall feel a diminished confidence in the
ultimate preservation of our national honor.
In regard to all claims arising in the rebellious districts, of the character
above described, I have uniformly refused to acknowledge their legal
NOTES TO THE FORTY-THIRD EDITION. 469
validity, whether the claimant is loyal or otherwise. I have not felt at
liberty to waive the legal right of the government to act according to its
own will and pleasure in recognizing these obligations. The question
as to what shall and \vhat shall not be conceded to persons, whether loyal
or disloyal, friendly or hostile, who reside in those parts of the country
now in rebellion, is a question of public policy to be settled by Congress.
Congress may or may not assume such obligations. If they should
amount to hundreds of millions of dollars, Congress may refuse, by recog
nizing them, to add such an amount to our national debt; but if they should
be of comparatively trifling amount, a different policy might be justified.
Perhaps the time has not yet arrived when we can tell what is best to be
done ; for we do not know when the war will end, what will be the amount
of our debt, nor what the extent of the demands upon our national resources.
It therefore seems to me that we ought not to allow any court or tribunal
to pass upon this class of claims in anticipation of the action of Congress,
however small the amount involved may be ; and the government ought not
to commit itself, through any of its legislative or executive departments, or
through the Court of Claims, or by any commissioners or other functionaries,
to an acknowledgment of the validity of claims of persons residing or
having property in rebellious districts while the war is going on.
Very respectfully, your obedient servant,
WILLIAM WHITING.
[No. 11. Extract from the Records of the War Department.]
CORRESPONDENCE WITH HON. G. W. JULIAN, M. C., RELATING
TO CONFISCATED LANDS.
WASHINGTON, Feb 4, 1874.
HON. WILLIAM WHITING.
DEAR SIR : The committee on public lands of the House of Representa
tives would be much obliged for your views as to the best policy to be pur
sued by the government in dealing with confiscated lands in the rebel
States, and lands sold for non-payment of taxes. Without some adequate
legislation, these lands must fall into the hands of speculators, and constitute
a land monopoly scarcely less to be deplored than slavery itself. The par
ticular question upon which your views are sought is the propriety of such
legislation as shall vest these lands at once in the United States, subject
them to our land system as other public lands, and parcel them out in suit
able homesteads to actual settlers, and particularly to those, whether white
or black, who have served the United States in crushing the rebellion. The
committee would be glad to have your opinion or any suggestions you may
have to offer upon any other question connected with the subject.
Hoping the favor of a reply, I am, sir, very respectfully,
GEORGE W. JU.LIAN,
Chairman of Committee.
470 NOTES TO THE FORTY-THIRD EDITION.
SOLICITOR'S OFFICE, WAR DEPARTMENT, )
WASHINGTON CITY, Feb. 9, 1864. $
To the Eon. George W. Julian, Chairman of the Committee on Public
Lands, House of Representatives.
SIR : Your letter, of which the foregoing is a copy, has been received,
and in reply I have the honor to submit the following suggestions for the
consideration of your committee : —
Public Lands as a Source of Revenue.
From the origin of our government down to a recent period, the sale of
the public lands has been a constant source of revenue. But now, since
settlements have been made upon the best agricultural districts, and sales
have been effected of a vast extent of territory not yet settled, and espe
cially since the enactment of homestead laws, the remaining lands are found
to be of comparatively little value. While the exigencies of war have called
for extraordinary expenditures, our revenue from lands has greatly dimin
ished. Considerations of political economy, therefore, should lead us to
ascertain whether there are other lands not yet exhausted, which the country
has a lawful right to use for homesteads, for soldiers' bounty, and for sup
plying the demands of immigration ; and to inquire whether financial neces
sity, public policy, humanity, and the re-establishment of peace upon a last
ing basis, do not call on you to use or dispose of those lands to which the
United States have acquired or may acquire title by reason of the civil war,
in such manner as to maintain the ability of the government to carry on the
war, and to pay its expenses.
Modes of acquiring Title by the United States.
There are several modes in which the United States may acquire title to
lands in the rebellious districts ; and among them are these : —
1. By confiscation in punishment of treason or of other crimes under
municipal laws.
2. By confiscation as a right of war under the laws of war, by military
seizure, or by processes in rem, as, for instance, by processes against absen
tees, refugees, &c., &c.
3. By process of judicial attainder of treason (a method not as yet au
thorized under any law of Congress).
4. By sales for non-payment of taxes.
Two distinct Lines of Policy open to the Government.
There are two distinct lines of policy by which our legislation on this
subject may be governed.
1. That which treats the public enemy merely as belligerents, having a
claim only to the rights of belligerents against the United States.
2. That which treats them as subjects of municipal statutes, and holds
them as only liable to the penalty of violating the laws by engaging in civil
war, and not as subject to the disabilities of a belligerent public eneir>y.
NOTES TO THE FORTY-THIRD EDITION. 471
Uselessness of Municipal Proceedings for Forfeiture.
It is obvious that proceedings in the nature of forfeitures or confiscations
of the property of rebels treated merely as subjects under municipal laws,
as administered to peaceful citizens under the guarantees of the Constitu
tion, will not be efficient to vest in the United States the titles to any con
siderable amount of real estates. Statutes of limitation will soon cut off
claims. Trial by jury will prove an impassable barrier against just ver
dicts in favor of the government, and public sentiment in rebellious States,
after fighting ceases, will place the claimant to lands under titles by forfeit
ure in hazard not only of his estate, but of his life.
Proceedings in Eem.
Procedures against the real estate of rebels should be in rem, and not in
personam. The title should be vested by law in the United States, by the
act of abandoning the land in the seceded States ; and no claim should be al
lowed to be set up to it by any public enemy, unless under such terms as the
government or the President should prescribe ; as, for example, on con
ditions, —
1. That the claimant shall appear in person to make his claim to the land,
within a period of time to be fixed by law.
2. That he shall show that he has taken no part in the rebellion ; or,
3. That he has taken and recorded the oath prescribed in the President's
amnesty proclamation, and has kept it.
Procedures of this general character were used in and after our revolution,
whereby the title of many estates were passed from the tories to the govern
ment or to purchasers under the government.
Constitutional Objections answered.
If this plan is objected to upon the ground that the Constitution provides
that no person shall be deprived of property, &c., without due process of law,
&c., &c., the answer is, that a public enemy, a belligerent, has no right against
the union but the right of a belligerent ; and having sought to overthrow our
government and Constitution, he cannot at the same time claim rights under it.
All persons residing in the belligerent States are in law public enemies ; they
and their personal and real estate, are subject to the rules of war, and there
fore they may be killed in battle or expelled from the country, and their property
may be captured and confiscated at the pleasure of their conqueror.
(See War Powers, Chap. II. See Decision of the Supreme Court in the
Prize Cases, 2 Black's Sup. Court Reports, p. 635.)
Other Objections answered.
If it be said that proceedings in rem are not humane, our answer is, that
true humanity consists in so conducting the war and its incidents as to sub
serve in the end the greatest good of the greatest number. Tenderness to
heinous guilt may be cruelty to innocence. The whole number of slave-
472 NOTES TO THE FORTY-THIRD EDITION.
owning landholders, as compared to the whole population of the slave States,
is very small ; it does not exceed one in forty-eight. Of these, probably less
than one half will be subjected to the laws of war. Less, therefore, than one
man in one hundred will suffer the loss of real property by the most severe
application of confiscation or sequestration laws. A cry against the severity
of confiscating the lands of an entire people is a false alarm, since if the
land of every slaveholder were taken away, only about one fiftieth of the peo
ple would be affected. And if these lands be again distributed among the
people by permission of the government in the manner herein proposed, the
clamor against confiscation will appear to all as absurd as it is unfounded.
Confiscation will then operate only as a means of effecting a just and equitable
distribution of public lands to those who were born and now dwell, or may
dwell, upon them.
Whoever seeks to overthrow the Government thereby renounces all
Claim to its Protection.
The rights of slave-owning landholders who are now in rebellion are, under
the Constitution, to be determined by the laws of war. The laws of war are
constitutional laws in time of war. Our forefathers framed a government
able to destroy its enemies as well as protect its friends. And one of the
delusions which this great contest is destined to expose, is that which accords
to a hostile foe the rights of an ally or of a friend. If an incendiary sets
fire to a house, he does not enter its burning walls for shelter against the
weather, nor can those who are struggling to destroy a government at the
same time claim its protection. This effort for its destruction is a renuncia
tion of all claim to rights guaranteed by it in time of peace to innocent
citizens.
The Dictates of Statesmanship and of Humanity.
Whatever may be the legal status of hostile confederates, and whatever
may be their liabilities under the laws of war, there is no doubt that it is
the part of a magnanimous and humane people to so use its belligerent
rights as to destroy or expatriate only irreconcilable adversaries, and at the
same time to protect its true friends, even though they are, in the eye of the
law, deemed to be " public enemies." The exercise of the rights of war is
the only shield by which the government can be preserved, while loyal men
in the hostile districts are protected from their enemies and ours. It is for
tunate for this country that there are no limitations in the Constitution upon
our belligerent rights against a public enemy, even though that enemy con
sist of persons or communities who once owed, and still owe, allegiance to the
United States. There is no control placed by the Constitution over the power
of Congress to pass laws as to captures on land or sea, nor as to lands con
quered or recovered from possession of public enemies, whether those ene
mies be composed of subjects owing us allegiance or aliens residing in for
eign countries.
NOTES TO THE FORTY-THIRD EDITION. 473
Conquest of Rebel Subjects gives greater Belligerent Rights than Con
quest of an Alien Enemy.
The conquest of a public enemy occupying, when conquered, lands over
which, in peace and in war, the laws of the United States rightfully extend,
gives the sovereign power effecting that conquest a far more complete
dominion over the territory so conquered, and over the inhabitants thereof,
than would result from the conquest of a foreign country peopled by aliens
who never owed allegiance to the conqueror. There is no violation of the
law of nations, nor of the laws of war, in putting in force whatever measures
are really necessary to secure victory, and the legitimate fruits of victory.
What the United States gain and the Rebels lose in a Civil War.
The United States have, by civil war, lost none of their rights over the
land, or over the inhabitants thereof, but have gained the power to put in
force over both, the laws of war, and are released thereby from obligation to
regard any of those privileges of the public enemy which would have be
longed to them under our Constitution and government, if they had
remained peaceful and loyal citizens. The enemy have escaped no obliga
tions to the United States, but by their own act have subjected themselves
to the loss of all rights under the government or against it, except those
which may be conceded to them as belligerents. All further privileges given
to the enemy, such as are contained in the proclamation of amnesty, cannot
be claimed as of right, but must be received as a magnanimous concession
made for the protection of those who will aid in supporting our government
and restoring it to power.
Property of Malignant Enemies refusing Amnesty should be confiscated.
There is therefore nothing against the dictates of humanity, the laws of
war, the provisions of the Constitution, or true policy, in pursuing the course
of confiscation, municipal or military, against malignant slave-owning land
holders, whose hands are red with the blood of our sons and brothers, if
they refuse to accept the amnesty offered by the President. The humanity
of a great nation has offered amnesty to public enemies while yet engaged
in hostilities. Justice will enforce confiscation and exile on all who will not
accept pardon and submit to the laws.
Title to Lands of great Value, will be vested in the United States.
The use to be made of them.
If lands belonging to this class of enemies shall be promptly seized by
our military forces, and faithfully applied to the public benefit, a vast amount
of territory will be added to the public domain, and the country will have
in its own hands, after the war is over, the means of carrying out magnifi
cent schemes of public improvement, and of securing to the southern
country, for the first time, the benefits of civilization. The admirable cli-
60
474 NOTES TO THE FORTY-THIRD EDITION.
mate, the fertile soil, the mineral and agricultural wealth of the Southern
States would make each one of them worth far more than a Mexico to the
Union, provided only that no impediment should retard or prevent the
development of its industrial resources.
Amendment of the Constitution abolishing Slavery. Its Effect on
Public Lands.
It is now conceded that slavery has been the cause of the war ; that it
constitutes the means by which it is sustained ; that it is the chief obstacle
to the restoration of the Union ; and that slavery is to be removed. It has
long been the wish of eminent and patriotic statesmen, that the Constitu
tion of the United States should be so amended as to exclude involuntary
servitude forever from the States and Territories, except in punishment of
crime. And it is believed that this great measure will be proposed by Con
gress, and accepted by the people, within a few months. In this event, the
subject of public lands will become still more important, and will press for
immediate legislative action.
Large Estates must be divided. The Reasons for so doing.
Whether this measure be adopted sooner or later, it is necessary that the
large landed estates in the South, which shall become the property of the
United States, should be broken up into farms of moderate size, and be
distributed among those having claims to the protection of government.
Large estates in land are essential to the perpetuation of slaveholding aris
tocracy, and of slavery itself. They furnish the means of reducing and of
retaining a numerous but degraded population under the control of a small
number of capitalists. Proprietorship of the soil renders all tenants sub
servient to the will and subject to the control of the owner. Estates of
inordinate size retard and exclude internal improvements. It is also well
known among agriculturists that very large farms are wasteful and com
paratively unproductive. Subdivision increases productiveness. Villages
are scarcely possible when many large estates are contiguous. Without
villages, the country lags in its progress. The proprietor of large planta
tions, peopled by slaves and by poor whites more degraded than slaves, be
comes a feudal lord, while his subjects are deprived of feudal rights ; and
such a petty sovereignty does not educate the master to become a patriotic
and peaceful citizen of a republican form of government. Lands descend
ing in the same family for several generations perpetuate a quasi feudal
aristocracy, wherever the lords of the land inherit the subjects from whose
toil it derives its value. The history of the states of South America, and
especially of Mexico, where some of the proprietors own lands greater in
extent than two or three of the smaller States in our Union, might well de
monstrate the impossibility of preserving a permanent republican govern
ment over the proud, independent, selfish, turbulent, vindictive, and revolu-
NOTES TO THE FORTY-THIRD EDITION. 475
tionary spirits engendered by the inordinate accumulation of real estate in
the hands of an oligarchy, even without the aggravating evils of slavery.
Speculators.
The destruction of slavery in the Southern States will not remove these
evils, so unavoidable, yet so deplorable. Negroes and poor whites hired to
labor on large plantations will suffer as severely from their employers as
from slaveholding masters. Following the army, like crows after the bat
tles, speculators are going south to purchase farms in the new Eldorado.
They will have, to some extent, the control of negroes found there, even
though they may hire laborers. They will prove a curse to the country and
a curse to the negroes. Men of grasping avarice, who have no interest in pro
tecting the life or health of their employes, will be far more unrelenting
than, slave-owners who have an interest in preserving what they claim as
property. Experience in Tennessee and other States has already demon
strated that the negroes suffer more under lessees, who are determined
to get rich in a hurry by raising cotton, than they formerly suffered from
their selfish masters. It is shocking to learn that Union men, as specula
tors, are allowed to drive their laborers to unwonted activity in the field,
and yet to withhold from them fair wages. To deprive this hard-hearted
class of men of the temptation of buying great estates for the purpose of
levying black mail upon the first earnings of freedmen, it is only necessary
to require the lands to be leased or sold in small sections, and to actual
settlers.
Other Reasons why the Land should be subdivided into small Sections.
There is but one way of recalling the common people of the South, who
are non-slaveholders, to a hearty and honest support of the Union ; and
that is, by making the population of all parts of the country homogeneous.
Small farms, free labor, diversity of occupations, general education, north
ern institutions, republican and not aristocratic ideas of the respectability
of honest industry, the substitution of cheerful and hopeful productive
labor in place of listless southern indolence, the thrift of profitable energy
instead of the wasteful extravagance of unpaid toil, the exchange of the
slave-driver's lash for the spur of self-interest, and of the slave-pen for the
school-house, will produce, in a few years, a revolution more wonderful than
all the hard-fought battles of this civil war.
The Lesson of History that the Restoration of the Union will be one of
the Victories of Peace.
History records in all ages the same lesson. The first conquest is of
arms ; the last is that of arts. The triple wall of slavery, rebellion, and
treason has, until now, kept out from the Southern States the rising tide
of knowledge and of progress. Its swelling waters, long baffled, have at
476 NOTES TO THE FORTY-THIRD EDITION.
last broken through and over the dikes, and its crested waves, sparkling
with phosphorescent light, are now dashing southward, sweeping away, in
their irresistible movement, the ancient landmarks of barbarism and crime.
When these fertilizing waters, having once deluged the land, shall have
dried up, the hills and valleys of the South, purified and purged of all the
guilt of the past, clothed with a new and richer verdure, will lift up their
voices in thanksgiving to the Author of all good, who has granted to them,
amidst the agonies of civil war, a new birth and a glorious transfiguration.
Then the people of the South and the people of the North will again be
come one people, united in interests, in pursuits, in intelligence, in religion,
and in patriotic devotion to their common country. Whatever may con
tribute to that result will be sanctioned by Christians and by statesmen.
The Missionaries of Liberty.
If soldiers who have fought for the flag on many a Southern battle-field ;
if emigrants, who bear with them a love of liberty, made more intense by
the oppression of foreign tyrants ; if Northern farmers, manufacturers, and
merchants bred in the school of freedom, shall seek their homes in South
ern States, as they doubtless will, encouraged and protected by manly
legislation of Congress, the seed of liberty will by them be sown broadcast
over the South. The institutions of the North will be established by every
emigrant and every soldier wherever he plants his hearth-stone. Slavery
being once abolished, there will be no backward movement in civilization ;
free labor, having a fair field, is sure to win.
Small Farms are Pledges of the Perpetuity of the Union.
If the southern lands which shall belong to the United States be divided
into small farms, and owned by a large number of proprietors, every one
of them will hold his homestead under title from the United States. Each
proprietor will thus become bound to maintain the government. His home
stead will be pledged by bond and mortgage to perpetuate the Union.
Every farm will be Union stock. It will be a guarantee of the credit and
good faith of the country. It will secure in the South all the benefits of
the credit mobilier, or of the circulation of governmental currency. The
larger the number of persons owning the same amount of land, the stronger
is the government in the number of its indorsers. Such, then, are some
of the reasons why the lands of the United States in the rebellious dis
tricts should be subdivided into small homesteads.
What may be done with Homesteads.
These lands, thus subdivided, are wanted for four important objects.
1. For bounties to soldiers who have been in active service, and to the
widows or heirs of those who have perished therein.
2. For homesteads for persons, of whatever color, who, while the war
continues, or after it is over, may be found resident thereon.
NOTES TO THE FORTY-THIRD EDITION. 477
3. For homesteads for those who shall emigrate southward.
4. These lands, not wanted for bounties or for homesteads, or the pro
ceeds thereof, should be pledged for and applied to the extinction of the
war debt.
Property abandoned by or taken from those who instigated the war
should be appropriated to pay its expenses.
Freedom from Slaves, and Equalization of National Taxes.
If the issue be put to the people, Shall the South retain slavery and the
North pay nearly all the taxes, or shall the South give up slavery and the
North pay its just share of the taxes ? there can be no doubt about the
verdict.
A Principle of Political Economy.
To abolish slavery and cut up the lands of those slaveholders who will
not accept the amnesty, and to distribute them as above suggested, would
benefit the South even more than the North. For in a few years, the pro
ductiveness of the lands would be enormously increased by reason of im
provements in agriculture, and by the conversion of eight millions of south
ern white men into producers, who are now only consumers of the products
of the labor of four millions of slaves. To add such a vast source of
wealth as this, will do more to develop and increase our wealth and our
resources than the discovery of hundreds of mines of silver or of gold.
This result of converting consumers into producers, interested in the
perpetuity of our government, elevated in civilization, and with feelings so
changed as to make them loyal citizens, is to be accomplished only by in
troducing among them northern improvements, northern institutions, and
northern men to put them in practice. This end can be accomplished only
by so managing the lands of the South as to render these great move
ments practicable.
Seizure of Lands. Bureau of Industry. Land Office System.
The first step in this direction is to seize the lands, and to acquire title
as rapidly as possible.
The second step is, to place them in charge of proper persons, under the
authority of the United States. (This is to be provided for by the bill for
an Emancipation Bureau.)
The third step is to have the land system extended over these districts.
For without this precaution, there will be disputes as to proprietorship ;
disputes as to boundary ; disputes as to titles of traitors and their agents ;
claims for indemnity ; disputes as to the application of the Amnesty Procla
mation ; and an interminable train of difficulties.
The Land System.
By applying to the southern plantations the land system, the titles can
be given and guaranteed directly by the United States. These titles will be
478 NOTES TO THE FORTY-THIRD EDITION.
reliable, and held sacred. The security of title will enhance the value of the
lands for lease or for sale ; and the government can, through its land officer,
keep a correct account of all that is done with its property, and account for
the proceeds thereof, and keep a register of loyal and disloyal men. If gen
eral laws are made, regulating the use or appropriation of such lands, these
laws can be best carried into effect by the Land Office, and its surveys will
be conclusive, both as to location of lots, and its grants or warrants may
be made conclusive as to validity of title. By regulations of the Land
Office, speculators can be kept off, settlers, soldiers, and emigrants can be
protected most effectually. Considering all these things, it seems advisable
that the land system of the United States should be extended to all such
estates as vest in the United States as rapidly as possible. The disposition
of these lands may be placed in the control of the chief of the Emanci
pation or Industrial Bureau. And it is desirable that lands of great value
should not be sold, as they now are, for nominal prices, but that Congress
should so legislate that these estates may be held for the benefit of the
United States, or for such uses as they may be applied to hereafter by law.*
I am, Sir, very respectfully,
WILLIAM WHITING,
Solicitor of the War Department.
[No. 12. See page 20.]
LAWS FOR RAISING AND ORGANIZING MILITARY FORCES.
u The United States may require all Subjects to do Military Duty."
The manner in which this power has been used by the government may be
seen by reference to the acts of Congress under which the military forces of
the United States have been authorized to be called into service since the
commencement of our civil war. Soon after the rebellion broke out, the
President, by virtue of the power conferred upon him in the act of Congress
approved February 28, 1795, called forth the militia of the several States
of the Union, to the aggregate number of seventy-five thousand men, by
proclamation dated April 15, 1861. On the 3d day of May, 1861, under the
provisions of the same statute, he called into the service of the United States
forty-two thousand and thirty-four state militia as volunteers, and directed
an increase of the regular army to the extent of twenty-two thousand seven
hundred and fourteen officers and men. By the act of July 22, 1861, the
President was authorized to accept volunteers, not exceeding five hundred
thousand men, and by the act of July 25, 1861, Chap. 17, he was further
authorized to receive any number, not exceeding five hundred thousand men,
to be organized according to the preceding act, and to be mustered in for
* How far the policy recommended in this letter has been approved by Congress may
be seen by examination of the Freedmen's Bureau Act of July 16, I860, Chap. 200.
NOTES TO THE FORTY-THIRD EDITION. 479
" during the war." No volunteers have been received under this law. The
act of July 29, 1861, Chap. 25, authorized the President to call forth the
militia of any or of all the States, and to employ such part of them as he
should deem necessary ; and it further provided " that the militia so called
into the service of the United States shall be subject to the same rules
and articles of war as the troops of the United States, &c., and that their
service shall not extend beyond sixty days after the commencement of the
then next session of Congress, unless, &c., and that the militia so called into
the service shall be entitled to the same pay, &c. as the regular army. The
President was authorized, by act of July 31, 1861, in accepting the services
of volunteers under the act of July 22, 1861, to accept the same without
previous proclamation, and in such numbers from any state, as, in his dis
cretion, the public service should require.
Although the right claimed in this essay, on behalf of the government, to
call upon all its subjects, whether white or black, bond or free, to do military
duty, was unquestionable, yet, in fact, colored men were at that time
excluded by law from the regular army and from the militia of the States.
To understand the operation of the statutes by which colored men and
slaves were, until 1862, prevented from belonging to the regular army, the
reader should observe, that the act of April 24, 1816 (Chap. 69 section 9),
provides " that the regulations [of the army] in force before the reduction
of the army be recognized so far as the same shall be found applicable to
the service ; subject, however, to such alterations as the Secretary of War
may adopt, with the approbation of the President." " Under this authority "
(says Attorney General Gushing in his opinion dated April 5, 1853) " it is
that the subsisting regulations for the army have legal effect." The army
regulations have been repeatedly recognized by Congress, and never more
frequently than during the recent rebellion. That they have the force of
law the Supreme Court of the United States Has several times decided.
(See Gratiot, v. United States, 4 How. 117.)
On the 10th of August, 1861, new regulations for the army were approved
and issued, and " ordered by the President of the United States to be
strictly observed as the sole and standing authority upon the matters therein
contained." Of these regulations as to the persons who could be enlisted
in the army, No. 929 reads as follows : —
" Any/ree white male person above the age of eighteen and under the
age of thirty-five, being at least five feet three inches high, effective, able-
bodied, sober, free from disease, of good character and habits, and with a
competent knowledge of the English language, may be enlisted," &c.
And this regulation was substantially the same as had been in force for
many years previous to that time. It was not forbidden by any law of the
United States, and it continued in force, beyond question, until July, 1862 ;
and whether and to what extent it was then altered will be presently con
sidered. Thus it is seen that by statute and by regulations of the War
480 NOTES TO THE FORTY-THIRD EDITION.
Department, made under-authority of that statute existing and in force from
the year 1816 down to 1862, no other than free white persons could be en
listed in the army of the United States as soldiers. That the rules, so ex
cluding colored men, were severely enforced under former administrations,
is shown by the well-known fact that persons who had been enlisted in the
army, and who, after enlistment, were suspected of having African blood in
their veins, have been subjected to trial by military commissions, and upon
proof that they were of African descent, have been dismissed from the ser
vice, because such enlistment was contrary to law. As a large proportion
of officers in the regular army, before the war, were slaveholders or natives
of slaveholding States, and as the government had been for many years prior
to the rebellion administered in the interests and in accordance with the
prejudices of slaveholders, it would indeed have been surprising to find
slaves and negroes admitted by law to an equality with white men in the
regular army as soldiers or as officers.
Colored men and slaves were also excluded, by the law of Congress, from
the militia of the States.
None but free white persons could lawfully be enrolled in the militia of
either of the several States from 1792 down to 1862. To ascertain who
could not constitute a part of the militia of either of the States, it is not
necessary to examine the statutes of the respective States, because, pre
viously to the war, it had been settled by the Supreme Court of the United
States that State legislatures could not constitutionally provide for the enrol
ment in the militia of any persons other than those enumerated in the act
of Congress of May 8, 1792.* This act, which continued in full force until
July, 1862 (and how much longer it is not now important to determine),
defined who should and who should not be deemed by law as in the militia
of the several States, viz., " Each and every free, able-bodied, white male
citizen of the respective States who is or shall be of the age of eighteen
years, and under the age of forty-five years, shall severally and respectively
be enrolled in the militia by the captain or commanding officer of the
company within whose bounds such citizen shall reside," &c. No person
other than those thus designated could by law be enrolled as part of the
rnilitia of any State ; therefore no colored man and no slave could lawfully
have been enrolled as a member of the militia of any State, so long as the
statute by which they had been excluded remained in force. Such was the
law down to July 17, 1862. Prior to that time no colored man or slave
could lawfully enter the service of the United States either by enlistment
in the regular army or by volunteering in the militia of any State in the
Union. It is well known that General McClellan, under this state of the
law has discharged from the volunteer forces a person who, though enlisted
* 18 Am. Law Rep. 167, 172.
22 Law Rep. 477.
See also Opinions of William Wirt, Attorney General.
NOTES TO THE FORTY-THIRD EDITION. 481
as a white man, afterwards was proved to have some African blood, and
assigned, in a written order, his African descent as the reason for his
discharge. Similar discharges for the same cause had been previously-
made from the regular army. All applications of colored men, including
mulattoes, for permission to enlist as volunteers, have been uniformly
refused by the Adjutant General of the United States, prior to July 17, 1862.
In accordance with the statutes and the rules and regulations of the vol
unteer service as administered by the President, by the War Department, and
by all officers acting under it, slaves and colored persons were uniformly
excluded from the military service of the United States until the passage of
the militia act of 1862.
In July, 1862, two important statutes were approved, which authorized the
President to employ persons of African descent.
The Confiscation Act, which was introduced into Congress in May, 1862,
and finally was passed July 17, 1862 (Chap. 195), was entitled " An Act to
suppress insurrection, "to punish treason and rebellion, to seize and confiscate
the property of rebels, and for other purposes." It provides, in Section 9,
that all slaves of rebels or their abettors, who should escape and come into
our lines, all slaves captured from or deserted by them, and all slaves found
on or within any place occupied by rebels, and afterwards occupied by our
forces, should be deemed captives of war, and should be made free.
Section 10 provides that escaped slaves should not be surrendered to their
master unless he would make oath of ownership, loyalty, &c., and that mili
tary men should not pass judgment on the rights or claims of masters under
the fugitive slave acts.
Section 11 provides that " The President of the United States is authorized
to employ as many persons of African descent as he may deem necessary
and proper for the suppression of this rebellion ; and for this purpose he may
organize and use them in such manner as he may judge best for the public
welfare."
Section 12 provides for colonizing such persons of the African race as may
be made free by this act, and as may desire to emigrate.
No provision is made in this statute for the payment of such persons as the
President might thus " use ; " but provision for keeping just account of their
work, with a view of ultimately paying reasonable wages, was made by his
general order. Although freed captives of war, of whatever sex or condition,
might be employed for the general purpose of " suppressing the rebellion,"
no permission is contained in the act to use or employ persons of African
descent as soldiers, unless the use of these persons " for suppressing the
rebellion " necessarily implies that they may volunteer in the army as soldiers.
If this phrase, " to use for the suppression of rebellion," stood alone, and
if there were no other laws or statutes of Congress, no decisions of the Su
preme Court, no rules of the War Department which have the force of law,
no message of the President, no general orders of the Commander-in-Chief,
61
482 NOTES TO THE FORTY-THIRD EDITION.
and if there had been no debates in Congress, most, if not all, of which are
irreconcilable with this construction of the meaning and intent of Congress
in passing this statute, this view of its interpretation might be adopted.
But these statutes, decisions, rules, debates, message, and general orders
place it beyond question that such an interpretation of this act cannot be
sustained. Those who were to be " used " for the " suppression of the re
bellion " might be employed in camps, trenches, and fortifications, as laborers,
cooks, servants, washerwomen, or as agricultural laborers in and around forts
and military posts.
The fact that any and all labor or assistance which could be withdrawn
from the rebels and transferred to the government weakened the enemy, in
creased our own resources, and therefore tended to " suppress the rebellion,"
affords satisfactory evidence that " employment for the purpose of suppressing
the rebellion " does not necessarily imply fighting as soldiers. Therefore the
true meaning of the phrase must be sought for by an examination of the
system of military laws of which this act constitutes a part, and cannot be
truly construed as if no other laws and no other parts of this statute were
in force.
It will also be observed that no distinction as to the persons to be em
ployed by the President is made between males and females, old and young,
able-bodied and crippled. Hence it is not necessary, if it be reasonable, to
construe this act as having application to the military service. It is obviously
intended to enable the President to give employment to " contrabands" and
" captives of war " by using them in such way as will, by withdrawing their
labor from the rebels, tend to suppress the rebellion by weakening the enemy
and strengthening us. Some mode of " regulating " large numbers of men,
women, and children was necessary to secure order, industry, and peace ;
therefore the power was given to " organize " them. The contraband camp
at Arlington afforded a fair example of an " organization " for agricultural
purposes ; and it is fortunate that the Arlington establishment was able to
pay its own expenses, — no provision having then been made by this or by
any other statute to support any " organization " by money to be drawn out
of the treasury. That this act was not intended to authorize the systematic
introduction of the persons therein named into the military service as
soldiers, is obvious to every student of military law, inasmuch as, 1. No
distinction is made between sexes or ages, and no limit is given to the
number of individuals to be employed. 2. The authority to the President
is to employ these persons and use them in such .manner as he judges to
be for the public welfare. Giving them " employment " and " using them,"
without referring in any way to military service, is language unlike any
adopted before or since in any law of Congress which has reference to the
raising of soldiers. 3. No provision is found in this act requiring those who
are to be used to be able-bodied, or to have any single quality of a soldier.
4. No period of service is limited by law. No compensation, bounty, pension,
NOTES TO THE FORTY-THIRD EDITION. 483
monthly pay, or rations, are provided, or even referred to, by the statute.
o. The employes are not called or treated as " volunteers," or required to
" enlist," or to be " enrolled," nor to be " mustered in " or " mustered out "
of service. They were not designated as any part of the military forces
of the United States. 6. Although it was generally conceded by just men,
that slaves, who were willing to fight for their country, ought to be liberated
from servitude, yet, as it was not the true intent of the act to authorize the
enlistment of soldiers, it contained no provision for giving freedom to any
person as a reward for such service as could be performed under that act.
In view of these marked features of this law of Congress, and especially
of the facts that it did not require of persons employed under it any of the
essential qualifications for military duty ; that it did not attach or assign these
employes to any class of troops, or to any arm of service ; that it provided
neither pay, rations, bounty, nor military organization for them, nor any
means whereby money could be drawn from the treasury for paying them, —
it is clear that it was not the meaning and intention of the legislature, by
that act, to reorganize the army and introduce into the service the new
element of colored soldiery. If such was the purpose of Congress, the lan
guage used in the statutes, the provisions inserted and those omitted would
mark this as the most extraordinary specimen of legislation which has ever
received the sanction of the committees on military affairs. In fact, the
object of this statute was to give the President power to organize and
employ freed slaves, captives, and colored persons, of either sex and of what
ever age or condition, so far and in such way as he should judge it expedi
ent, in order to enable them to support themselves, and thus to relieve the
government from the expense of maintaining them in idleness, or to allow
them to be colonized. Either course he might take would, as it was then
thought, aid the government in suppressing the rebellion.
The interpretation of the act, as understood by President Lincoln, at the
time when he approved it, is stated by him in his message to Congress of
July 17, 1862 (See Notes, p. 406), sent to the House of Representatives with
the approved bill, as explanatory of his views of its meaning. " The eleventh
section," says he, " simply assumes to confer discretionary powers upon the
Executive, without the law. I have no hesitation to go as far in the direc
tion indicated as I may at any time deem expedient, and I am ready to say
now, I think it is proper for our military commanders to employ as laborers
as many persons of African descent as can be used to advantage." The
orders issued by the President (General Orders No. 109, July 22, 1862)
only five days after the passage of this act (cited in a subsequent part of this
note) were in strict accordance with this understanding of the law. It
required military and naval commanders to employ as laborers, within and
from certain States, so many persons of African descent as could be advan
tageously used for military and naval purposes, giving them reasonable
wages for their labor. That this act was not designed to authorize the
484 NOTES TO THE FORTY-THIRD EDITION.
general introduction of colored persons as soldiers into the army, is also
apparent from the fact that another act, passed by Congress the same day,
was enacted for that express purpose.
The act of July 17, 1862 (Chap. 201), was introduced into Congress but
a few days before its passage. It was entitled " An Act to amend the Act
calling forth the militia to execute the laws of the Union, suppress insurrec
tion, and repel invasions, approved February 28, 1795, and the acts amenda
tory thereof, and for other purposes."
This law, under which colored peisons were, in fact, introduced into the
military service of the United States, provides (Section 1) that, whenever
the President shall call forth the militia of the States, to be employed in the
service, &c., he may specify the period for which such service shall be re
quired, not exceeding nine months. If, by reason of defects, &c., it shall be
found necessary to provide for enrolling the militia, the President is author
ized to take certain measures for that purpose ; " and the enrolment of the
militia shall in all cases include all able-bodied male citizens between eighteen
and forty-five." By this law, for the first time, all able-bodied male citizens
who were not white were to be enrolled in the militia of the States. Section
2 required the militia, when called into service, to be organized in the mode
prescribed by law for volunteers. Section 3 authorized the President to
accept one hundred thousand volunteers (nothing being said about their citi
zenship or color) as infantry for nine months. Section 4 authorized the ac
ceptance of other volunteers (no reference being made to their citizenship or
color) to fill up existing regiments. Section 12 enacts, " That the President
be, and is hereby, authorized to receive into the service of the United States,
for the purpose of constructing intrenchments or performing camp service,
or any other labor or any military or naval service for which they may be
found competent, persons of African descent ; and such persons shall be
enrolled and organized under such regulations, not inconsistent with the
Constitution and laws, as the President may prescribe." Section 13 pro
vides that when any man or boy shall render such service as is provided for
in this act, if he be a slave and his master a rebel, he shall have his freedom,
and the freedom of his mother, wife, and children, if they also belong to reb
els. Section 15 provides that all persons who have been, or shall be here
after, " enrolled in the service of the United States under this act," shall
receive the pay and rations now allowed by law to soldiers, according to their
respective grades, Provided, that persons of African descent, who, under
this law, shall be " employed" (in any camp service, intrenchment service,
or other labor, or military or naval service), " shall receive ten dollars per
month and one ration, three dollars of which monthly pay may be in cloth
ing." They were also entitled (by Section 16) to their freedom, and, under
certain circumstances, to the freedom of their families.
The language used in Section 15 is inaccurate. It was certainty not the
intention of the act that all persons who shall be merely enrolled in the
NOTES TO THE FORTY-THIRD EDITION. 485
service of the United States should be paid ; for this interpretation of the
act would require the payment of all the militia of the United States to be
made on a mere enrolment of their names, without reference to their employ
ment as soldiers. It was doubtless intended to provide that " all persons
who have been or shall be enrolled and employed in the service of the United
States under this act shall receive pay," &c. ; then follows the proviso, that
persons of African descent, who (having been enrolled) shall be also em
ployed under this act, shall receive ten dollars per month, £c. Both classes
of volunteer militia, white and colored, were required to be " employed " in
order to become entitled to the rations allowed by the statute. Section 14
provided that the expenses incurred in carrying this act into effect shall be
paid out of the general appropriation for the army and volunteers. Colored
men employed under this act being liable to perform military or naval
service, were to receive rations, and be paid out of the same fund as other
soldiers and sailors in the same service. By this act, for the first time the Presi
dent was empowered to receive certain persons of African descent into the ser
vice of the United States, who were " to be enrolled " in the militia ; they were
to be organized under military regulations, and were authorized to be received
into the military service, to be " employed " on the same duties as other
soldiers ; in the language of the first section, " to be employed in the service
of the United States," and to be paid by paymasters out of the general ap
propriation for the army and volunteers. The word " employed " is used by
the statute in relation to the white militia of the States, as well as to colored
men enrolled under this act ; therefore the use of that word indicates no dif
ference between soldiers of different colors as to the character of their service.
All persons so employed were called out under a law of which the title
itself plainly indicated the character of the service they were intended to per
form. It was entitled " An Act to amend the Act calling forth the militia
to execute the laws of the Union, suppress insurrections, and repel invasions,
approved February 28, 1795, and for other purposes." As the enrolment
of the militia was required by the first section " in all cases to include all
able-bodied male citizens between the ages of eighteen and forty-five years,"
and as, by the fifteenth section, " all persons thus enrolled were to receive
the pay and rations 'now allowed by law to soldiers according to their re
spective grades, except that persons of African descent were to receive
ten dollars per month," it is plain that this statute (of July 17, 1862, Chap.
201) was intended to regulate, and in terms too clear to be easily misunder
stood, did regulate and limit the pay to be thereafter given to all persons,
whether white or colored, who should become soldiers in the army. All
able-bodied male citizens between eighteen and forty-five years of age were
to be enrolled, and all such persons of African descent were to be included
in the enrolment. All persons thus enrolled who should serve in the army,
regular or volunteer, were to receive the pay and rations provided for by
previous statutes ; excepting only, that persons of African descent were to
486 NOTES TO THE FORTY-THIRD EDITION.
receive their freedom, if they were slaves, and ten dollars per month, and
rations ; while soldiers not of African descent were to receive thirteen dollars
per month and rations, bounty, &c.
The confiscation act and the militia act were passed and approved on the
same day. It is obvious that Congress did not intend that these acts should
be inconsistent with each other. They would have been inconsistent if the
confiscation act be so construed as to authorize the President to enlist
colored volunteers in the army. The militia act required all able-bodied
males of African descent between the ages of eighteen and forty-five years
to be enrolled, and when so enrolled, to be organized as part of the military
forces. The confiscation act authorized the President to employ as laborers
all persons of African descent in such manner and under such organization
as he might deem expedient. If the President performed his duty under
the militia act, by enrolling all able-bodied males of African descent between
the ages of eighteen and forty-five years, and organizing them as part of the
military forces, there could have been no persons of African descent capable
of becoming soldiers, except those who had been thus enrolled. There could
therefore have been no colored persons not already enrolled, or liable to be
enrolled, in the military forces, and therefore none who could have become
volunteer soldiers under the confiscation act, unless its provisions are in con
flict with those of the militia act, even if the President had invited or allowed
enlistments under it. It is not easy to believe that Congress intended by
one act to confer upon the President full discretionary power to employ a
large number of colored persons as soldiers, and by another act, passed the
same day, to take that power from him ; or to require him, by one law, to
enroll all colored males of the age for military duty, and to treat them as part
of our military forces, and at the same time, by a second law, to require or al
low him to violate the first.
Whatever may have been the extent of authority conferred by the
confiscation act upon the President to " organize persons of African
descent in such' manner as he might judge expedient for the public
welfare," he did not deem it lawful or expedient to allow any persons
of African descent to be organized under this act as any part of the mili
tary forces of the United States. Neither General Lane, who recruited
the first colored regiments in Kansas, nor any of those who followed his
example, ever received any order, or had authority from the President, for
organizing troops of African descent under the confiscation act. Such regi
ments were, without exception, recruited and enlisted under the militia act
or acts for raising volunteers for the army or navy. Though the militia act
limited the. pay of colored troops to ten dollars per month and one ration
per day, and though this inequality of pay at that time between the colored
and white soldiers was a subject of deep regret on the part of the author
and of many others who felt its injustice, yet to deny that these persons of
African descent were in fact enrolled and organized under the militia act, or
NOTES TO THE FORTY-THIRD EDITION. 487
to assert, with a view of avoiding its provision limiting their pay to ten dol
lars, that they were enlisted as volunteers under the confiscation act, would
be not only a violation of the plain meaning of the laws themselves, but
would require us to falsify the official records of the War Department, which
show that in truth no enlistment in the volunteer service under or by author
ity of the confiscation act was ever made. If the President had the power to
receive recruits under that act, he never used it ; and no person of African
descent can truthfully assert that he was ever enlisted as a soldier under it.
Prior to 1863, persons of African descent could become a part of the mil
itary forces of the United States only by virtue of the act of July 17, 1862,
Chap. 201.
The use actually made by the President of the powers conferred on him
by the two acts of July 17, 1862, Chap. 195 and 201, was such, that none but
laborers were ever employed under the former ; colored soldiers were em
ployed only under the latter. If enlisted under the militia act, colored
soldiers were entitled only to ten dollars per month and rations. To make
out that volunteers of African desent were entitled to higher pay than this
statute provided for, it was necessary to show that they were not enlisted
under the authority of that act. And as they claimed to have entered the
military service under one of the acts of July 17, 1862, they were obliged
to argue that the militia act was not intended to raise militiamen, but was
intended to authorize the President to hire laborers, while the confiscation
act, as they argued, authorized him to raise volunteers — a militia act to
authorize the employment of men, women, and children as laborers, and a
confiscation act to raise militia. They were doubtless not aware that while,
in truth, no colored person was ever employed or enlisted as a soldier under
that act, if such enlistment or employment had occurred, there was no provis
ion of law, and no appropriation of Congress, by which it would have been
possible to draw a dollar out of the treasury for their payment.
If the confiscation act gave the President power to enlist colored men in
the army, it would still be necessary to show that the President used his
power, and actually permitted such enlistments, before any claim for pay
could be made by reason of such enlistment, even if the act had provided for
any payment. It will be instructive to see how the authority conferred by this
act was in fact used, in order to ascertain what was the contemporaneous
construction of that power by the one upon whom it was conferred.
On the 17th of July, 1862, as previously stated, two acts were approved,
one of which authorized the President to employ and use, in such manner as
he should judge best, as many persons of African descent as he might think
proper for the suppression of the rebellion. What was the manner of em
ploying these persons of African descent adopted by the President under the
confiscation act of July 17, Chap. 195?
On the 22d July, 1862, the President, in carrying out the provisions of
this law, issued the following General Orders, No. 109, which directed,
488 NOTES TO THE FORTY-THIRD EDITION.
II. " That the military and the naval commanders should employ as
laborers, within and from said States, Virginia, South Carolina, Georgia,
Florida, Alabama, Mississippi, Louisiana, Texas, and Arkansas, so many
persons of African descent as can be advantageously used for military and
naval purposes, giving them reasonable wages for their labor."
III. " That accurate accounts be kept both of property and labor of Afri
cans, in order to settle accounts justly."
This order is strictly confined to the employment of " laborers," only, from
and within the rebellious States. Under that order, " laborers " have been
employed and paid for service in camps, forts, &c., &c. ; but no persons have
been, or could be, so employed as soldiers, for it is confined exclusively to
laborers for wages. Their accounts for work and labor done were to be
" accurately kept " and "justly settled." Their property accounts were also
to be included. Females, whole families of men, women, and children, might
be, and in fact were, employed for military or naval purposes, in menial
labor, in forts, camps, and trenches. If the President had deemed these
persons so employed soldiers, and entitled to full bounty, pay, and rations,
including pensions, &c., he would not, and could not, have issued the fore
going order, but would have required enlistment and other military proceed
ings, and they would have been regularly paid by paymasters out of money in
the treasury ; but, on the contrary, he construed the law as applicable to labor
ers only, and confined his exercise of power under that law solely to the recep
tion of laborers, and to their payment as such, and did not include soldiers.
If a law authorizes the President to employ certain persons at his discretion,
no one can enter the service of the country under that law without being
authorized to enter it by him ; and as he has given no authority to any
person to enlist as a soldier under that act, no one can have entered the
service as a soldier under that law. No slave or colored person can
therefore lawfully set up a claim to payment under the law of 1861, or any
other law, as a soldier, by assuming that he was accepted into the military
service by any act of the President under authority of the statute of July 17,
1862, Chap. 195. No person has in fact ever been received as a soldier under
that act. (See Records of Adjutant General's Office, War Department.)
On the other hand, soon after the passage of the militia act of July 17,
1862, Chap. 201, which expressly authorized the raising of colored troops, the
President exercised the power conferred on him by that act, and authorized
General Lane, senator from Kansas, to raise one or more brigades of volunteer
infantry, without limiting him as to the color of the troops to be raised.
The following is the order : —
WAR DEPARTMENT, WASHINGTON CITY, )
July 22, 1862. J
HON. JAMES H. LANE, KANSAS.
SIR : You are hereby notified that you have been appointed by the Secre
tary of War commissioner for recruiting in the department of Kansas.
You are requested to proceed forthwith to raise and organize one or more
NOTES TO THE FORTY-THIRD EDITION. 489
brigades of volunteer infantry, to be mustered into the service of the United
States for three years, or during the war.
For this purpose full authority is hereby conferred upon you to establish
camps and provide for the maintenance of discipline and the supply of the
troops with the munitions of war.
On your requisition the commanding general of the department will issue
supplies of arms and accoutrements, clothing, camp equipage, and subsist
ence. Transportation for recruits and recruiting officers will be furnished on
your requisition or refunded on vouchers in the usual form, accompanied by
your order directing the movement.
It is recommended that the provisions of General Order No. 75, current
series, be followed as far as possible in organizing companies, to the end
that muster rolls may be uniform and authentic. This is necessary in order
to secure justice to the soldier and prevent confusion in accounts and loss to
the government.
In performing these duties you are authorized to visit such places within
the department of Kansas as may be necessary, for which purpose transpor
tation will be furnished you by the commanding general on your requisition,
or the cost of the same will be reimbursed by the Secretary of War from the
army contingent fund.
You will be expected to report frequently to this department the progress
and prospect of the work, and to make any suggestion that may occur to you
from time to time as useful in facilitating its accomplishment.
This appointment may be revoked at the pleasure of the Secretary of War.
By order of the Secretary of War,
(Signed) C. P. BUCKINGHAM,
Brig. Gen. and A. A. O.
(Official.)
THOMAS M. VINCENT,
Assistant Adjutant General.
Senator Lane, of Kansas, by virtue of this order, proceeded to raise one
or more regiments of colored soldiers as volunteers, as he has personally in
formed the author, under the provisions of the act of July 17, 1862 (Chap.
201). These colored volunteers entered the service under that act, and have
been paid as soldiers, in accordance with an opinion of the Solicitor of the
War Department, which received the sanction of General Lane, ten dollars
per month and one ration per day from that time to the time of their dis
charge.
The following is extracted from the records of the War Department : —
ADJUTANT GENERAL'S OFFICE, \
WASHINGTON, D. C., May 30, 1863. $
Indorsement on letter of Hon. J. H. Lane, U. S. S., dated Washington,
D. C., May 27, 1863 (K. 258, V. S.). Requests that the first regiment Kan
sas colored volunteers be paid, &c.
Respectfully referred to the Paymaster General, in order that these troops
may be paid under Section 15 of the act approved July 17, 1862 (Chap. 201),
(G. O. 91, 1862).
By order of the Secretary of War,
(Signed) THOMAS M. VINCENT,
Assistant Adjutant General.
(Official Copy.)
62-
490 NOTES TO THE FORTY-THIRD EDITION.
From the foregoing facts it is seen that whether President Lincoln was or
was not authorized to enlist colored soldiers, under the provisions of the
confiscation act, as contended by some, he did not in fact make any such
enlistments. The claim of certain colored soldiers for payment on the
ground that they were enlisted under that act is also shown by this fact to
be absolutely without foundation. To support such a claim, the President
must have been so misled as to assume or assert facts which he personally
knew had no existence. The only use the President ever made of the power
of employing persons of African descent, conferred on him by the confisca
tion act (Chap. 195), was to employ them as laborers for wages, as stated
in his general order above cited ; while, under the power conferred on
him by the militia act, as in the case of General Lane's regiments, he
caused colored persons to be enrolled, and employed, and paid ten dollars
per month as militia. By reason of his honest and faithful administra
tion of the laws on this subject, he was temporarily subjected to unjust cen
sure.
The records of the Adjutant General's office, in the War Department,
show that no colored persons were admitted into the military service as sol
diers until after the passage of the act of July 17, 1862 (Chap. 201). No enT
listments of colored soldiers had been made prior to that date, under the pro
visions of either of the preceding acts of Congress for the volunteer or
regular army. Yet, at one time during the war, the question was raised by
some of the friends of colored troops, whether persons of African descent,
who enlisted as volunteers subsequently to the passage of the act of July, 1862,
which provided for paying them ten dollars per month and rations, might not
in some way escape from this limitation of their pay, and entitle themselves
to the same pay, rations, and bounty as white volunteers ? There was then
no law of Congress by which such persons could enter the service of the
United States as soldiers in the army except under one of the two acts of
July 17, 1862 (Chap. 195 or Chap. 201). If colored persons were employed
under the power conferred in Chap. 201, the amount to be paid soldiers for
military service was, in express language, limited to ten dollars per month
and rations. The only way of avoiding the effect of this statute was to claim
that colored men had enlisted as soldiers under the confiscation act of July
17, 1862 (Chap. 195). Unfortunately this claim was not founded in fact, but
quite the contrary, as was well known to those who had access to the records
of the Adjutant General's office in the War Department. If that claim had
been founded in fact, there was no law of Congress which provided for pay or
bounty to persons employed by the President under that act ; and the Treasury
Department could not, and the author had reason to believe did not, deem
itself authorized to pay any money out of the public funds for such service, no
appropriation having been made for that purpose. If the colored soldiers had
not enlisted under the act of 1862 (Chap. 201), they would have had no claim,
NOTES TO THE FORTY-THIRD EDITION. 491
under any statute, against the government for payment for their services, nor
would they have had a claim to the freedom of themselves and of their families,
as provided for in this act. It was the denial of the unfounded claim, set up
in behalf of the colored soldiers, and the recognition of their real claims
against the government (under Chap. 201), that enabled the colored sol
diers to secure by law the amount of pay allowed them by that statute, and
the freedom of themselves and of their families.
Some of the friends of the colored volunteers entertained at one time an
idea that if the President had employed persons of African descent under
the authority conferred on him by the confiscation act of 1862 (Chap. 195),
they might be supposed or assumed to have enlisted under one of the prior
acts for calling out volunteers ; but no such idea is sanctioned by those who
are acquainted with the military statutes of the United States ; and if there
were nothing in the law against such a supposition or assumption, the fact, as
recorded in the Adjutant General's office, is, that no such enlistments were
ever made, and therefore no money could be lawfully paid out of the treas
ury upon an assumption of a fact known by every officer in the War De
partment to be without foundation.
An opinion of the late Attorney General Bates is not in accordance with
the views here expressed in relation to the true meaning of the two acts of
July 17, 1862. He argues to show that the confiscation act was intended to
authorize the raising of volunteer militia ; and the militia act was to authorize
the enrolment, organization, and use of laborers and servants. He also as
sumes the fact that soldiers were enlisted under the authority of the confisca
tion act. The first of these propositions has been shown to be not in accord
ance with the true meaning of Congress in passing the act, and the second is
not in accordance with the truth. He also states, as the foundation of his
opinion, that there was nothing in the laws of the United States prior to the
acts of July 17, 1862, which prevented colored persons from enlisting in the
military service of the United States, and as confirmation of this statement has
cited what he supposed were all the statutes of importance on that subject.
Unfortunately he has overlooked, in his researches, the act of Congress of
April 24, 1816 (Chap. 69, Sect. 9), which gives the rules and regulations of
the War Department the force of law, as decided by the Supreme Court (4
How. 117), and the army regulations of August 10, 1861 (Art. 929), and the
act of Congress of May 8, 1792 (1 United States Statutes, 271),* well known
as " the foundation of the military system of the United States," f all of which
have been cited in this note. His opinion shows that he was not aware of the
facts as to enlistments recorded in the War Department, nor the general
orders of President Lincoln above quoted. If these facts and these acts of
Congress, the decisions of the Supreme Court and the President's orders, had
* Brightly's Digest of the laws of the United States, p. 619.
t Speeches of Senators Sumner, Grimes, Collamer, and others, pp. 494-507.
492 NOTES TO THE FORTY-THIRD EDITION.
been called to his attention, or if he had attended the debates in Congress
while the two acts of July 17, 1862, were under discussion (quoted in the
Appendix, pp. 494-507), it is believed that no one would have seen, more
readily than himself, the error in law and the mistake of facts on which his
opinion was founded.
On the 25th of August, 1862, the Secretary of War wrote a letter of
instructions to Brigadier General Saxton, which authorized him to organize
in South Carolina a number of laboring forces not exceeding fifty thousand,
to be paid from five to eight dollars per month ; also to receive into the
service of the United States such number of volunteers of African descent as
he might deem expedient, not exceeding five thousand in all ; to detail officers
to instruct them in military drill, discipline, and duty, and to command them.
" The persons so received into service, and their officers, to be entitled to
and receive the same pay and rations as are allowed by law to volunteers
in the service." Under these instructions the First South Carolina Volun
teers were recruited, Colonel T. W. Higginson, of Massachusetts, command
ing; but the payment therein promised was for a long time withheld, the
Secretary, of War having found that he had exceeded his lawful authority in
making the promise. But it was held by the author, who was then Solicitor
of the War Department, that this letter was a pledge of the Secretary, on
which these volunteers had relied, and that the Department was bound in
good faith either to discharge them from service, or to pay them according
to promise. The Secretary did not discharge these soldiers, but the Solicitor
made an immediate and urgent application to Congress for such legislation as
would enable the Treasury Department to redeem that pledge. On the 3d of
March, 1865, an act was passed, which (Chap. 79, Sect. 5) provides that
colored soldiers enlisted, by Generals Hunter and Saxton, under authority of
the Secretary of War, dated August 25, 1862, and which declared that the
persons so received into the service, and their officers were to be entitled to
and receive the same pay and rations as are allowed by law to other volun
teers in the service," and in all other cases where it should be made to appear
to the satisfaction of the Secretary of War, that any regiment of colored
troops had been mustered into the service of the United States under any as
surance by the President or Secretary of War, that the non-commissioned
officers and privates of such regiment should be paid the same as other troops
of the same arm of the service, shah1 from the date of their enlistment receive
the same pay and allowances as are allowed by law to other volunteers
in the military service." Under this law, the troops raised by General
Saxton, including the First South Carolina Volunteers, were paid, and
thus the pledge of Secretary Stanton was faithfully, even though tardily,
redeemed.
Of all the officers connected with the War Department, none made, from
the beginning of the rebellion, more energetic and effectual efforts to introduce
NOTES TO THE FORTY-THIRD EDITION. 493
colored troops into the military service than the Assistant Secretary of
War, Hon. Peter H. Watson. His disinterested, patriotic, and invalu
able services to the country are none the less honorable because his extreme
modesty has prevented their becoming generally known to the public.
Whenever a history of the War Department, during President Lincoln's
administration, shall be truthfully written, no name will be recorded of purer
lustre than that of him who was the fearless mentor and the trusted friend
of Secretary Stanton.
DEBATES IN CONGRESS ON THE MILITIA AND CONFISCATION ACTS OF
JULY 17, 1862.
The debates in Congress upon the confiscation act and the militia act ;
the explanations of their respective authors ; the various amendments which
were proposed, and accepted or rejected ; the language finally adopted,
defining the character of the service to which colored men were to be intro
duced ; and the discussion, in the speeches of several leading senators, upon
the phraseology finally adopted, will place the true meaning of Congress, in
passing both of these acts, beyond any question or doubt, and will show
that the militia act was intended to provide for raising militia-men.
A review of the remarks made by the members of the Senate and House,
including those of the persons who introduced and proposed these acts
above cited, will show how earnest was the contest which resulted in
introducing colored soldiers into our military service, and will also make it
clear that the confiscation act, July 17, 1862 (Chap. 195), so far as it related
to the use of colored persons and slaves, was not intended to make them a
part of the organized military forces of the United States, for the purpose
of fighting the enemy, nor will any person who reads these debates be
likely to doubt that the act to amend the militia act of 1795, so far as it
relates to slaves and negroes, was designed to introduce negro soldiers into
the military service as part of the national forces.
It is not to be supposed that Congress passed two acts (a confiscation act
and a militia act) on the same day, for the same purpose, and it must be
presumed that each act has its proper object, and that each sought to accom
plish something not accomplished by the other. Which, then, of these two
acts was intended to raise soldiers to fight battles, and which was intended to
employ laborers to hold forts in hot climates, carry burdens, dig trenches,
groom horses, cook, wash, black boots, and wait on tables ? Was the con
fiscation act intended to make soldiers ; and the militia act to enroll and
discipline waiters, servants, &c. ? or was the militia act intended to make
militia-men of colored volunteers ?
A review of the history of these two bills in Congress, of their objects as
explained by their authors, of the objections made and amendments offered,
will remove all doubt, if any has existed, as to the true meaning of these
494 NOTES TO THE FORTY-THIRD EDITION.
acts, and will show conclusively, as understood by the members of the legis
lature generally, when these acts were passed, viz., July 17, 1862, —
1. That no colored men were then in the military service of the United
States as enlisted soldiers.
2. That they had been excluded by law from the militia and from the
army.
3. That one of these acts (Chap. 195) was to empower the President to
employ laborers.
4. That the other of these acts (Chap. 201) was to empower him to make
colored men soldiers, providing for their pay ten dollars per month.
THE DEBATES IN CONGRESS ON THE ACTS OF JULY, 1862.
In 1861 no attempt appears to have been made to legalize the employ
ment of negroes as soldiers. The first bill which gave power to the Presi
dent to make use of colored persons, in any way, for the suppression of the
rebellion, was that which was reported by Mr. Senator Clarke, May 14, 1862,
from the select committee on confiscation. (S., No. 310.) The title of this
bill was " to suppress insurrection, punish treason and rebellion, and for
other purposes." (Globe, p. 2112.) On the 16th of May it was taken up
for consideration in committee of the whole (Globe, p. 2165), and it con
tained, in the identical words as passed in the statute July 17, 1862 (Chap.
195), the clause relating to the " employment of persons of African descent."
The discussion was continued on the 19th of May, when a motion was
made by Senator Powell to strike out that section relating to the employ
ment of persons of African descent ; and the motion was lost by a vote of
yeas 11, nays 25. During the discussion, Senator Henderson expressed an
objection to arming or to employing negroes, and charged that the use of
them was an act of cruelty. Senator Clarke, in explaining the meaning
and intent of this clause of the proposed statute, said, —
The committee did not adopt that provision hastily and without con
sideration, nor unadvisedly. They adopted it deliberately. They considered
it carefully. They amended the proposition first proposed, and endeavored
to put it in such a shape as would be satisfactory to the country, if they
could do it ; and I beg the senator to consider the position in which we
are. The summer is coming ; our troops are in a hot climate ; they are in
a warm latitude. It is reported that already one or two cases of yellow fever
have appeared in New Orleans. Our meii are to die here like sheep and
dogs, and that is what the rebels are aiming at. Are your prejudices to
stand in our way, when we see our sons and brothers rotting there, to pre
vent us employing Africans, who can stand that climate, in order to preserve
the lives of our kindred? and are we then to be accused of barbarity ? Our
humanity is such that we want the white man out of that climate, where he can
not stay without certain death, and put in a man who can stay, and who will be
loyal ; and I hope it is no offence to humanity, nor to Christianity either, to do it.
We do not desire to arm the negro universally. We desire to take as
NOTES TO THE FOKTY-THIRD EDITION. 495
many of them as may be necessary, in the judgment of the President, — and
he is a humane man, — and put them into these fortifications, and into these
cities, and hold them from the rebels. If we did not do that, what would be
the case ? Down in New Orleans, when our men were cut down with
disease, and lying in the hospitals, and could not raise a gun or lift a
sword, these rebels would sweep in upon them ; the whole force would be
swept away, and we should have all this work to do over again. Let us
take the men who can bear the climate. Having accomplished our purpose
in securing these places, let us hold them. Let us show these people, when
they threaten that they will draw us into that climate, and our men shall
die, that we have a way to meet it ; we can employ those who can stand the
climate, and preserve our own brothers and our own sons.
MR. HENDERSON. ... I wish merely to suggest to the senator, in
all kindness, — and I do it, knowing, I believe, what I am saying, — that if we
have to trust, to put down this rebellion, to the negroes of the cotton
States, we never shall put it down, — never on the face of the earth.
MR. CLARKE Nobody suggested that, and nobody proposed it.
We propose to put it down, and we propose to hold it down by the black
man, if we cannot in any other way, while the yellow fever, and disease, and
plague sweep our men away. We do not propose to let the rebel have as
his ally the yellow fever and the plague ; we propose to subdue even that,
and to hold these places. We propose to put it down by the loyal men
and the free citizens of the government ; but if these rebels will resort to
that course which makes it necessary for us to do it, we have no choice, in
saving the lives of our sons and brothers, but to do it; and, so help us God,
we will try. — Globe, p. 2200.
From these remarks it is obvious that it was not the intent of the com
mittee who reported this bill, nor of the chairman of the committee, to
arm the negro universally, or to trust to the negro to put down the rebellion.
" Nobody suggested that" — " Nobody proposed it."
" We propose to employ Africans in New Orleans, where our men die
like sheep and dogs" — " to employ Africans, who can stand the climate,
in order to preserve the lives of our kindred." " We desire to put them
into the fortifications and into those cities, and hold them from the rebels."
" We propose to put the rebellion down by the loyal men and the free
citizens of the government ; but if the rebels resort to that course which
makes it necessary for us to do it, we have no choice, in saving the lives of
our sons and our brothers, but to do it."
The declaration of Mr. Clarke was, therefore, very far from a statement
that the object of this llth section of the confiscation act was to authorize
the general arming of the colored men, and introduction of colored soldiers
into the volunteer army of the United States ; and no further statement
appears to have been made on that point during the remainder of the
session, and no further objection was made by any member of the Senate or
House to this section of the confiscation act, although many members
were steadily opposed to arming the negroes as soldiers.
The next effort made in that Congress was by Mr. Sedgwick, of the
House. He attempted, in the House Committee on confiscation, to get
496 NOTES TO THE FORTY-THIRD EDITION.
a clause inserted in this confiscation bill, to authorize the employment
of colored soldiers. But this proposal was voted down in the committee.
He had leave to propose such a plan in the House as an amendment to
the report of the committee. He did offer such a proposed amendment,
May 23, 1862, in the House. This amendment made it the duty of every
commanding military or naval officer, whose military district shall embrace
any portion of the States of Virginia, North Carolina, South Carolina,
Georgia, Tennessee, Alabama, Louisiana, Florida, Texas, and Arkansas,
to enroll and employ such loyal persons (without regard to color) in the ser
vice of the United States, giving freedom to such persons, if held as slaves,
&c. This plan was advocated by an able speech from Mr. Sedgwick. The
vote on his amendment was taken on the 26th of May, and it was lost by
yeas 32, nays 1 16 ; and among the nays (voting against the use of the negro
as a soldier) were several gentlemen now among the most ardent supporters
of that measure. (See Globe, p. 2361.) On the 18th of June, 1862,
Senator Hale asked leave, by unanimous consent, to introduce a bill
(No. 357) " concerning enlistments in the military service of the United
States."
It provided that, " Whenever the public service requires further enlist
ments of recruits for the army, either of regulars or volunteers, the
President shall issue his proclamation to the people of the United States,
inviting enlistments from all the people, without distinction of race, color,
or condition ; that every slave who shall enlist and be received into the
military service shall be immediately and absolutely free from all claim of
service, except that which he submits himself to by such enlistment ; and
that every person of color, bond or free, who shall enlist into the military
service of the United States, shall be entitled to all wages, bounties, and
privileges allowed by law to any soldier enlisted into the army."
This bill was referred to the committee on military affairs. If the law then
authorized the enlistment of negroes, why was this project brought for
ward by Senator Hale ? This bill did not pass. On the 8th of July, 1862,
near the end of the session, Senator Wilson, by direction of the committee
on military affairs, introduced a bill (No. 384) to " amend the act calling
forth the militia to execute the laws of the Union, suppress insurrection,
and repel invasion; approved February 28, 1795." (Globe, p. 3178.) On
the 9th of July, Senator King was instructed by the committee on mili
tary affairs " to report a bill (No. 386) to provide for receiving into the
service of the United States persons of African descent, for work on in-
trenchments and other war services." (Globe, p. 3188.) The same day
Senator Wilson's bill (No. 384) was called up. Senator Grimes (Globe,
p. 3198), moved an amendment whereby colored men could be called
into service in the same way as white men, and all should alike " receive
the pay and rations of soldiers, as now allowed by law according to their
respective grades."
NOTES TO THE FORTY-THIRD EDITION. 497
MR. SAULSBURY. ... If anything has contributed more than an
other to the disasters which have followed the Federal arms, it has been,
in my judgment, the persistent attempt to bring about the state of affairs
contemplated by this amendment. It would have been utterly impossible,
had this war been really prosecuted for the maintenance of the Constitution,
as our fathers made it, and the restoration of the Union as it was, for
the people of this country ever to allow this Union to be dissolved. The
patriotic spirits of the North and the South would have risen up and
said that the Federal Union should be preserved, and the Federal Constitu
tion maintained. But no sooner are we engaged in civil war, notwithstand
ing the administration and Congress announced that the object should be
simply for the preservation of the Constitution and the restoration of the
Union, than an attempt is made on every occasion to change the character
of the war, and to elevate the miserable nigger, not only to political rights,
but to put him in your army, and to put him in your navy. And while this
policy is pursued the Union will never be restored, because you can have no
Union without the preservation of the Constitution.
But, sir, I will not detain the Senate with any remarks. I have said
enough on this subject in the present Congress. I have a right, however,
as a representative of a State which I expect always to remain in this Union,
to see the Constitution of my country preserved, and the Union, if possible,
restored, and to see that this attempt which is so persistently made for the
elevation of the negro to the level of the white man, on all occasions, shall
not be accomplished, at least so far as my vote can tend to any such result.
MR. CAKLILE. I desire to inquire of the senator from Iowa if negroes
constitute a part of the militia of his State. I know they do not constitute
a part of the militia of the State in which I live, and I am not aware that
they constitute a part of the militia of any State in this Union. The Presi
dent has the power to call out the militia of the States to suppress insur
rection, and he 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
actual service of the United States. As I caught the reading of the amend
ment, it provides for enrolling, as a part of the militia, the negroes of the
country. Now, sir, who constitute the militia is settled by the laws of the
several States; * and I hold that the Congress of the United States has no
power to determine who shall compose the militia of a State in this Union.
That is a subject of State regulation, and the power of the commander-in-
chief, the President of the United States, does not extend, under the Con
stitution, beyond the calling out of the militia of the several States ; and
the States themselves determine who shall compose that militia. I am not
aware of any State of the Union — and I put the inquiry to the senator
from Iowa, for the purpose of information — where the negro constitutes a
part of the militia of that State ; and if he does not, by virtue of the
State laws, the Congress of the United States surely has no power, under the
Constitution, to determine who shall compose the militia of a State in the
Union. I differ with the senator from Delaware. I do not think it is an
effort to elevate the negro to an equality with the white man ; but the effect
of such legislation will be to degrade the white man to the level of the
negro. — See Globe, p. 3198.
In a discussion which was continued on the 10th of July, Senator Col-
lamer said, respecting the bill (384), " I have not much to say about my
* This is an error in law. See 18 Am. Law Rep. 167, 172; 22 Law Rep. 477. Opinion
of William Wirt, Attorney General.
63
498 NOTES TO THE FORTY-THIRD EDITION.
confidence in colored men making good soldiers. I do not know much
about it. I can only say that we did use them in the last war with Eng
land," &c.
MR. TEN EYCK moved to strike out the words " any military or naval "
before the word " service.''
MR. KING replied. We may as well meet this question directly, and see
whether we are prepared to use for the defence of our country the powers
which God has given to it — the men who are willing to be used to preserve
it. I hope the Senate will not strike out these words, which might, by con
struction, prevent the use of these persons for military purposes. They are
now7 in the navy, serving our guns there ; and why should we not be at lib
erty to use them in the army ? It has been said that there is no necessity
for the passage of a bill of 'this kind ; that the power exists fully, not only
for the general purposes here described, but to enlist them as soldiers, and
that it is a matter of discretion. The difficulty is in the prejudice with which
a great many minds take up and contemplate this question. For my part,
I am prepared to express my opinions upon it. The President, in his mes
sage at the beginning of the session, referred much of all these subjects to
Congress for its opinion. Congress has heretofore refrained from acting
on this point. I should have been prepared to act at a much earlier day,
but I think the time has come when we may at least express our opinion.
If the senator from New Jersey persists in his motion, I shall want a divis
ion on it. I hope he will consent to let the section stand as it is, without
pressing his proposition.
MR. TEN EYCK. My proposition is to strike out the words " any military
or naval " before " service," so that it will read, " That the President be,
and he is hereby, authorized to receive into the service of the United States,
for the purpose of constructing intrenchments or performing camp service,
or any other labor or service." Without descending to particulars, — " any
other labor or service for which they may be found competent, persons of
African descent ; and such persons shall be enrolled and organized under
such regulations," &c.
MR. KING. Our opinions are expressed, and our wishes accomplished,
through a great many modes of action and forms of expression. The sena
tor states, as I understand, that his object is to enlarge the scope of action
of these persons who may be thus employed. In my judgment, the direct
effect is to strike out these two purposes for which these persons may be
employed and used. There are enumerations of service, and, in my opin
ion, the labor in the intrenchments, the camp service, and the various other
services for which they may be employed, ought to be enumerated. I think
they should go into the service to relieve our troops from carrying baggage,
and a great amount of labor which is imposed on the troops. Our troops
should be left free from the performance of these fatiguing impositions of
labor, that are necessary in a camp and in marches, wherever it can be
done. If that is all these people are wanted for, I am content ; but I would
also expressly declare that they may be used for "military and naval pur
poses." That is the question upon which doubts exist, and upon which
differences of opinion exist. Nobody would object, probably, to their cook
ing, and yet but a few of them are used in that way. One of the difficulties
in this matter is, that these persons, when they come to our tents and our
camps for their own safety and security, — and everybody has a right to
look to that, — are now uncertain ; and we have had no such general decla
ration from any department of the government as can give accurate cer-
NOTES TO THE FORTY-THIRD EDITION. 499
tainty to them as to what is to be their future fate. I think it is time we
had said to these people, who will take up their arms, or who will take up
their shovels and spades and their hoes, or who will buckle the knapsacks
of our soldiers on their shoulders, and carry them, that they who will come
to do this service shall be free. The time has come to say that, or to say
that it shall not be so. Let us be men, and treat these people as men ; and
let us understand where we are, and what is the decision of this country
upon these subjects.
We have, in my judgment, nothing to fear from our enemies on account
of the expression of our views on this point. All we have to fear is from
timid counsels, that hesitate to pronounce what are really the sentiments
and opinions of the country. The justice of God must be sustained by a
government and its people, or it cannot stand. What is just and right in
this matter ? Let us not fear to say it ; let us not fear to proclaim it ; let
us not go behind any form of words, by declaring that this thing is not
necessary ; that this power exists ; that it is already in the power of the
President to do this. The President has not done it. I find no fault with
him. I make no complaint, and I should not have made this allusion, ex
cepting that it is presented here as an obstacle to an expression of our sen
timent on the subject. If the senator from New Jersey persists in this
amendment, I regard it as one which, by its very effect and construction,
declares it as the judgment of the Senate that these military and naval pur
poses ought not to be enumerated or mentioned among the purposes for
which these persons may be employed. The senator may put " all other
services,'' if he pleases ; he may put in any words, enlarging it to his heart's
content ; but I do not want to restrain it. — Globe, p. 3228.
MR. KING. The words, as the senator suggests, were modified by author
ity of the mover, and not by a vote of the Senate : but that makes no dif
ference. It was a change of the original language from the word " war " to
" military or naval."
MR. DOOLITTLE. Of all things I dislike ambiguity in any law passed
by Congress. I desire that it shall state clearly what is intended, and no
more. As to the employment of either Indians or negroes in the service of
the United States, the course pursued by the commanders of the rebel forces
against the government of the United States, makes it perfectly justifia
ble in us to employ them in any capacity for which they are competent, in
the progress of this war. They have, beyond all question, employed Indian
savages as a part of their armed forces. We should be perfectly justifiable
in authorizing the President to employ Indians against the rebels. So, too,
in relation to the employment of negroes. We have been informed — and
I think we cannot be mistaken — the traitors in arms against us have em
ployed negroes, not only upon intrenchments and in camp service, but have
organized and have put arms in their hands, to shoot down our sons and
our brothers on the field of battle. Such being the fact, it is justifiable on
the part of the government of the United States, by every rule of honorable
warfare, to authorize the President, if in his judgment it shall become
necessary, to employ them, and even to arm them. . .
The further power of arming them is in the discretion of the President,
where it can be most safely lodged. They were employed to some extent
in the revolution, and in 'the last war with Great Britain. They are em
ployed by the wicked leaders of this rebellion against us now. " While I
would be the last to sanction a departure from the rules of civilized war
fare, we cannot be condemned in our own consciences, nor before the civil
ized world, if we employ the same class of persons to fight against the
rebels which they employ against us, &c.
500 NOTES TO THE FORTY-THIRD EDITION.
The motion to strike out " any military or naval service," was put, July
10, 1862, and negatived. Yeas 11, nays, 27.— Globe, p. 3231.
MR. SAULSBURY. As the yeas and nays have been ordered on this ques
tion, I wish to say that I shall decline voting on it, although the amend
ment seems just ; but as it recognizes the employment of negroes in the
army of the United States, and as I am opposed to the whole principle, I
cannot vote for the amendment ; neither can I vote for the original propo
sition. — Globe, p. 3232.
MR. GRIMES. The necessity which exists for this provision grows out of
the fact that there is no method of paying these persons without the pas
sage of such a law as this ; and colored persons who have been enrolled in
the military service of the United States, or in some of the collateral
branches of the public service, are being disbanded, because of the want of
such a provision.
MR. HENDERSON. That is just the difficulty. I do not want these slaves
enrolled in the military service. I voted against that proposition. I do not
want them taken into the service and used as soldiers at all. I do not be
lieve that they will help you any. That is my opinion about it. I am sat
isfied that they will not. In the first place, they know nothing of the use
of arms ; and, in the second place, if you have to wait to instruct negroes
in the use of arms, and in the discipline necessary to make good soldiers,
before you strike at this rebellion, let me tell you the rebellion is a success.
That is all I desire to say in reference to that. As a question of policy, I
think the matter is against you ; as a question of expediency, I think the
matter is against you.
But, sir, there are many things they can do. They can use the spade ;
they can use the hoe ; they can use the pick ; and they can drive wagons.
For all these matters, except military service, it is perfectly competent now
for the quartermaster's department to take them. I say I would use
them, and require the quartermaster's department, under the general ap
propriation bill, to pay for their service and labor, and I am frank to say
the loyal slaveholders will sustain me in it. I would use them wrherever I
could use them to put down the rebellion ; not as soldiers, because I be
lieve — I know you differ with me — that they will do you no good. I
believe that for every good soldier you would get among them, you will
lose a white man, who will be driven off by his prejudices against legisla
tion of this character. I may as well be frank. I may as well tell you what
I believe. I think the day has come when it is absolutely essential for men
to talk out, and say what they believe and what they know in reference to
this thing. These are my opinions. I give them frankly. I am aware that
gentlemen do not agree with me.
Now, sir, how many negroes are you going to take ? How many do you
want ? This bill will give you the right to take all the slaves. Suppose the
government makes a mistake, and gets the slave of a loyal man. Then, I
say the loyal man ought to be paid for the slave. It would be wrong to
turn him loose. If it is necessary, go and take the slaves of loyal men,
and use them in building fortifications. They have been so used. I know
plenty of loyal men in Missouri who have taken their negroes and made
them do service in that way in favor of the Union. Shall that make them
free ? Are you going to legislate them free in consequence of that act ?
I say, No ! It is an institution recognized by State law, and it is not for us
to tear down that institution which has been recognized by the people of
the State, the only persons properly having jurisdiction over it.
Now, how many do you want ? I believe there are nearly four million
NOTES TO THE FORTY-THIRD EDITION. 501
slaves in the country. There are half a million of them in the non-seceding
States; perhaps no't over four hundred and twenty -five thousand. You
can get just as many of them as you want to pay for. You can get ten
times as many as you want in the seceding States. You can get all you
desire to put into the service under this law ; or under the law as I propose
to amend it, you may take the slaves of every rebel in my own State. How
many do you suppose the adoption of my amendment will exclude you from
taking ? Some gentlemen say, Why not give us the slaves of loyal men in
the border slaveholding States ? At the first blush it does look to be a
matter of justice ; but how much do you get by it? Let me tell you, a loyal
man will feel rather badly to have his slave taken by the President of the
United Stales, and put into the army by his side. He may tolerate a great
deal better the taking of the slave of the rebel, but he will not like to have
his own slave taken from home, when he himself is fighting the battles of
the country ; and nearly every man in the border slaveholding States is so
engaged. They all have to do it once in a while. Nearly all of them have
been, or are now, in the service. A loyal man in one of those States will dis
like very much to have his slave, whom he left at home attending to his family,
brought into the service ; and I think the slave himself would like it much
more if you would leave him at home, where his master left him, and where,
in ninety-nine cases out of a hundred, he would be better off than if you
enlisted him and took him away. That is my opinion, and hence it is that I
propose this amendment ; and I hope it may be adopted. By rejecting my
amendment you will not get one hundred slaves, including the old and
infirm, children, and everybody else. You have as many slaves as you
want ; you have as many persons of color as you desire throughout the
broad expanse of these seceding States. — Globe, 3232.
MR. LANE, of Kansas. I can imagine a case like this, and I think we
shall find thousands of them, at the close of this rebellion, under this law,
believing that it will pass. A slave is enlisted in the service of his country ;
he fights bravely and gallantly, and I believe as bravely, as gallantly, and as
skilfully, as the white man ; and I take this occasion to say, that the state
ment of the senator from Missouri, that the slaves of Missouri are not used
to the gun, is a mistake, to say the least of it. The slaves that I saw in
Missouri were skilful in the use of the gun, and I had twelve hundred of
them at one time within my brigade. But to continue my illustration :
after this war is over, a soldier, perhaps covered with scars, his mother,
wife, and children around him, — having escaped, or their masters escaped
from them, — are in Washington city. I say that the government that
would restore that mother, that wife, and those children to slavery, after
that father and husband has been covered with wounds in defence of the
country, deserves to be damned. I deny that this government cannot
take the slaves of the loyal and the disloyal, and that they are estopped
from making any use of them that they choose for the suppression of this
rebellion ; and having made use of them, I say it would be a crime before
God to return them to slavery. — Globe, p. 3235.
MR. HALE. I would a great deal rather meet that form of question by
paying the loyal owner of slaves, or the loyal person who claims to be their
owner, compensation for those that might be freed under the operation of
this act, than to put in such an amendment as that. I cannot imagine a
human being (and there are some people fanatical enough to believe that
colored men are human beings) in a worse situation than you would put
him in by the operation of this bill, thus amended. You put him into your
Federal army, and rely upon his aid for success ; and if he thinks at all,
he must think that his success will be the perpetual enslavement of his wife
and children. — Globe, 3249.
502 NOTES TO THE FORTY-THIRD EDITION.
MR. COWAN. I think the method proposed by the senator from New
Hampshire would be a very expensive way of " procuring soldiers." It ap
pears, according to his plan, that when a negro slave enters your army, either
as a laborer or as a soldier, immediately on his performing service, his wife,
his mother, and his children are entitled to their freedom ; and if they be
long to loyal people, the government will pay for them. Now let us see at
what cost we should achieve the service of one negro on this plan. He may
have a mother; what is she worth? That is the question. Put her down at
five hundred dollars, if you please. He has a wife ; what is she worth ? Put
her down at five hundred dollars. He has children ; what are they worth ?
That will depend upon the number he has, and their ages and their value.
But without counting the children, here is one thousand dollars to be paid
as a bounty over and above, to " get a negro soldier into the American
army."— Globe, p. 3249.
If the President has refused to adopt the counsels of certain people in
regard to arming the slaves, and all this kind of thing, and they want to
compel him into that course, and to compel him through the channels of
legislation, I would write it down. I would approach him at least as a
man, and I would not undertake to do it under cover of this kind of law. —
Globe, p. 3250.
MR. HOWE. . . . The senator from Pennsylvania says, if it is desirable
to have the black population in the service of the United States at all, the
States organize their own militia, and they may be called into the service
by the action of the States themselves. Now, sir, we all know that the
militia of the States do not comprise in their organization the blacks of the
country. It is the white population alone, so far as I know, in any State of
the. Union, who are organized as militia. I am not aware of a single State
in which the black population are organized in the militia. — Globe, p. 3251.
MR. COWAN. Then my friend will allow me to ask him if they are not
in the militia, as the militia comes from the States when we call upon it,
where are these people to go except into the regular army ? And I wish
to follow that by this further question, whether there is any restriction now
on the Executive to put them in the regular army? — Globe, p. 3251.
MR. KING. The senator's inquiry shows that he is not aware of any
mode in which we can get service from these people without some action of
law. It is for that very reason that there is not sufficient provision of law
to enable the astute and excellent lawyer from Pennsylvania to determine
how these persons shall be got into the service that he asks me the ques
tion, because he does not know himself. This bill provides for bringing this
black population into the service of the United States, — not as the militia,
not as the regular army, but it provides a special mode in which they shall
come • in ; and it is because of the peculiar condition of the country at this
time that there is, in my judgment, a special propriety in calling them into
the service. Mr. President, the mangled corpses of thousands of our young
men sunk in the marshes of the Chickahominy and other localities in the
Southern States, cry to us for some mode by which those who are to come
after them shall be relieved from the diseases and death which have fallen
upon them in the defence of their country. Do we not know — is there a
question about it in the min-d of any man — that the pestilential atmosphere
of these low grounds and marshes is more dangerous to our men than the
bullets and bayonets of the enemy ? In my judgment, there is no danger
to this country from bullets and bayonets. These infamous insurgent en
emies who are now attempting to destroy the Constitution and the country,
rely upon the climatic influences as a means of security. . . .
NOTES TO THE FORTY-THIRD EDITION. 503
But it is not to call the black population from the free States that this
bill is to provide, or is necessary. We find in the insurgent States thou
sands and tens of thousands of willing, strong, hardy men, anxious to serve
this country, and to do what is more dangerous for our men than to fight, —
to dig in the trenches, to do the labor of our army. Should we refuse to
have that done upon some question and quibble of authority or of law, or
of who may exercise this power ? I trust not. The whole scope and ob
ject of this provision is to enable us to bring these people into the service,
and to relieve the country, the army, and us all from this kind of doubt and
difficulty that the senator from Pennsylvania himself has suggested, as to
how this thing can be done. This bill provides how it shall be done.
Mr. President, shall we bring these people, in this condition of things in
the country, into the public service, and not guarantee to them their liberty ?
Why, sir, we should hardly deserve their services, if after they had pre
served our rights and our liberties we could return them into slavery. It
would be unworthy a Christian or a pagan people to do so. Let us meet
this question fairly and frankly, and say to those who shall come to our aid,
that they shall have the benefits which the shedding of their own blood se
cures to us, and that it shall secure the same to them. It was so in the
revolution. Let us meet this question like men. If the Senate or the
country is prepared to say that we will not have these services, let that be
said, though it is much against my opinion, but let us understand this mat
ter. Let us know, and let our young men know, when we are calling upon
them to come into the service, whether we are willing to respond and give
them every aid in our power when we call upon them to come and meet the
double dangers of disease and battle. I say it is our highest duty to pro
vide every means in our power to protect them in their health and in their
comfort, as well as in their lives ; and. in my judgment, this bill is most
essential and desirable for the safety and security of the country.
Now, the question arises in the case of the negro, Can you put him into
your army ? Can you drill him and discipline him so as to make him re
spect the laws of civilized warfare, as our people do, as white people do ?
Will he, in the hour of victory, be clement ? Will he give quarter when
quarter is demanded ? Will he make war upon women or children, or will
he make war only upon combatants ? These are the questions. Then, the
next difficulty which occurs is, Who shall decide that question ? In whose
hands is it to be decided ? Is it to be decided by the Congress of the
United States ? I say emphatically, No. I say, this Congress to-day is in
capable of deciding the question. I say, my honorable friend from New
York, or myself either, knows nothing at all about it. If we were generals
in the field, if these people were brought before us, if we were to inspect
them and try them for a time, then we might decide it. It is a question of
fact, which the legislation of no country, I think, can determine. There
fore it is a question that devolves on the Executive to determine.
MR. RICE. During the revolutionary war, the legislature of Rhode Is
land authorized the enlistment of negroes and Indians.
MR. COWAN. That may all be. I have nothing to say against that.
The legislature of Rhode Island may have done a great many things, and
done them very properly. I do not undertake to say they have not ; but I
do undertake to say, when the question comes up in this country, it is a
question of fact to be determined by the executive branch of the govern
ment, and not by the legislative branch of this government. If the Presi
dent and his generals are of opinion that he can take these men, enlist them
in our armies, regulate them, subject them to the rules of discipline as our
504 NOTES TO THE FORTY-THIRD EDITION.
own people are, then I have said here openly, that he should do it ; but as
I do not know whether he can or not, and it is for him to decide, under the
Constitution, I will leave that question to him. — Globe, p. 3251.
MR. GRIMES. Is it not the law of the United States which declares that
they shall be white ?
MR. COWAN. No, sir, it is not. I do not know of anything in the Con
stitution of the United States that requires the militia to be white.
MR. SUMNER. That is the law of Congress.
MR. GRIMES. The laws of the States in relation to the militia are made
in pursuance of the law of Congress, which declares that the militia shall
be composed of white persons.
MR. COWAN. Not necessarily so at all. Each State, in its own separate
individual capacity, has a right to organize its own militia, beyond all ques
tion, and they have done so repeatedly all over the country ; and when so
organized under the State laws, the general government has a right to call
upon them, and they have the right to send them, and to send them with
men, officers, and equipage.
MR. SUMNER. If the senator will allow me, I will read to him one sen
tence from the statute of 1792, on the organization of the militia. It is as
follows : —
•' Each and every free able-bodied white male citizen of the respective
States resident therein, who is or shall be of the age of eighteen years and
under the age of forty-five years, except as hereinafter excepted, shall sev
erally and respectively be enrolled in the militia by the captain or com
manding officer of the company within whose bounds such citizen shall re
side, and that within twelve months after the passage of this act."
That is the foundation of the military system of the United States.
MR. COLLAMER. If the gentlemen will allow me a moment on this
point about the organization of the militia, I wish to read what the Consti
tution says about if. Among the powers of Congress is the following : —
" To provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States, reserving to the States respectively the appointment of the
officers, and the authority of training the militia according to the discipline
prescribed by Congress."
Congress, under this authority of the Constitution, passed the law to
which the senator from Massachusetts has referred. The organization of
the militia is not left to the St-ites. It is an organization, under the Con
stitution, by act of Congress. — Globe, p. 3252.
MR. COWAN. The volunteers, then, that are called from the States, are
the militia of the States, and come with their own organizations and their
own officers. The senator from New York said this law provided for that ;
but I ask, is this law intended to provide for the organization of negroes
into the militia of the several States ? Is that the object ?
MR. KING. I will read the clause. It says they are to be employed " in
the service of the United States. They are to dig trenches and fight the
rebels. They are to be organized, fed, and paid for to do that work."
MR. COWAN. If that is all, then we are left just about as wise as at the start.
MR. KING. I thought so.
MR. COWAN. The law, then, provides for nothing. It provides that
they may be taken into the service of the United States.
MR. KING. If the senator will allow me, it provides for a good deal,
and precisely what I desire this bill should do, — that 'they may dig our
trenches, perform labor in the camps, and fight the enemies of the Union,
the insurgents and rebels. — Globe, p. 3252.
NOTES TO THE FORTY-THIRD EDITION. 505
MR. COWAN. . . . Because you do not agree as to how the army
shall be organized, you do not want the army to be effective ! It is a non
sequitur, and nobody, I should think, except an orator in some country de
bating school, would ever think of resorting to it as a means to foil an
antagonist. I want the army to be made effective, just as much effective as
anybody, and I say I never heard any objection on the part of anybody, that
slaves should dig our intrenchments and do the work they can do in the
camp. I never heard anybody object to that, but there is an objection to
making soldiers of them. — Globe, p. 3252.
MR. COWAN. . . . But, as I said before, that is not the question. The
question is, whether we will employ negroes in our armies, and in our regular
army, because I know you can place them nowhere else, unless you make a
new* law specifically authorizing the militia to be composed of them, which I
think would be exceedingly mischievous. If you alter your law so as to put
the negroes of the free States in the militia of those States, you will not get
a white man to come here. I do not think you will get a man from the free
States to come in a company here if negroes are to come along with him in
that same company ; and these men love their country, and are just as willing
to do as much for it as we are now. Then, I say, unless you alter that law
so as to authorize them to be put in the militia, there is nowhere else they
can be put except in the regular army ; and to that there is now no imped
iment by any law of this republic. The President has full and entire au
thority over that subject. When a negro comes up to enlist, there is the
same right to strip and examine him, and determine whether he shall be put
into that company through the medium of his recruiting officers, as there is
to enlist a free white citizen. Whether the President would permit this is
another thing, but it is with him in the exercise of his judgment. He must
decide it, because it presents the question of a race in that attitude to other
civilized races, for we cannot determine it. I therefore propose to intrust
it to him. He is as anxious as we are, of course, to suppress this rebellion —
perhaps more so. He has more cares in regard to it than we have. I have
the greatest confidence in his wisdom, his prudence, his moderation, and
his desire to do it with an eye to the restoration of the Union. — Globe,
p. 3253.
MR. WILKINSON. It seems to me like madness to refuse or to undertake
to reject this offer because we cannot find a place where to put these men on
the statutes, whether we regard them as militia men or regular army men.
Put them into the ranks. General Washington found no difficulty on that
point. — Globe, p. 3254.
MR. DAVIS. The particular and interesting question before the Senate is
this : Shall the President of the United States be authorized by this bill to
arm the negro slaves of the United States ? — Globe, p. 3255.
_ MR. DAVIS. The honorable senator from Iowa (Mr. Harlan) in the be
ginning of his speech gave a clear, concise, and able resume of the events
of this war of rebellion, and an equally clear statement of its present condi
tion. He showed that everywhere the rebellion was yielding, and how cer
tainly the arms of the United States were overcoming and would certainly
crush it out. That portion of his argument conclusively demonstrates this
measure of arming the slaves to be wholly unnecessary, and that if it is done
it will only be for the purpose of bloody, cruel, and shocking vengeance
against the seceding States, and in utter recklessness of the great misery it
will bring down upon the Union people of the border States. — Globe,
p. 3257.
MR. WILSON, of Massachusetts, from the committee on military affairs
and the militia, reported a bill (S., No. 394) to amend the act calling forth
64
506 NOTES TO THE FORTY-THIRD EDITION.
the militia to execute the laws of the Union, suppress insurrections, and repel
invasions, approved February 28, 1795, and the acts amendatory thereof,
and for other purposes ; which was read twice by its title and ordered to be
printed. — Globe, p. 3289.
A proposal had been made as follows : " And they shall be fed and
clothed, and paid such compensation for their services as they may agree to
receive when enrolled."
It was moved, July 14, to strike out this clause, and the payment to be
ten dollars per month, three dollars of which monthly pay may be in cloth
ing. This was adopted.
July 15 the discussion continued, it being upon the question of giving
freedom to those who had been in the service.
MR. LANE, of Kansas. I desire now to make a statement to the senator
from Ohio. He was not in when I was up before. There is a practical
difficulty in adopting the amendment he has offered if we propose to use the
slaves. We propose to use them in fighting. We have in Kansas, as re
ported to me, six thousand four hundred slaves. Out of this number we
expect to get two regiments of infantry. A large portion of these slaves be
long to loyal masters. I undertake to say that one third of these slaves
belong to loyal masters. The idea of organizing these men into regiments,
inducing them to fight for the country and against its enemies bravely, as I
believe they will fight, and after they have rendered the service, returning
them to slavery, is to me an outrage that the senator from Ohio would not
in any wise indorse. After they have fought bravely for freedom, for the
maintenance of the government, to return them to slavery is monstrous.
By the proposition that I make, the loyal citizen is not wronged. We use
the slave, and we free him as did our fathers in the revolution, and as they
did in the war of 1812, and if the masters are loyal we will remunerate them
for the loss of the slaves. No incentive can be offered to men that will in
duce them to fight more desperately than their freedom. You say to them
that they are to return to slavery after the war is over, and there is no in
centive for them to fight. If you propose to use these negroes as soldiers,
the proposition of the senator from Ohio destroys the probability of making
them useful as soldiers. Slaves of loyal and disloyal masters come away
together : they cannot be separated ; and you throw in among regiments men
who have no incentive to fight, but the contrary. It seems to me that the
government which will return to slavery a man who has fought for its de
fence deserves the frowns of the Almighty. — Globe, p. 3337.
MR. HOWARD. ... It seems to me that if I were a slaveholder, I
could not bear the idea of employing or suffering my slaves to be employed
in defending me and my rights as a loyal man, taking arms in their hands
and going with me into the face of the battle, and risking their lives to de
fend my life, and my family, and my rights under my government, and after
wards reducing those poor creatures to slavery. . . .
MR. HARLAN. I do not think an individual, a slave that may have been
armed and mustered into the service of the United States, will ever again
be fit for slavery. I think that is the history of the whole world on this sub
ject. I do not remember a single example, since civilization commenced,
when slaves have been mustered into the armed service of a country, and
again attempted to be returned to slavery. . . . — Globe, p. 3339.
MR. HARLAN. We propose to enlist these colored men, and put them in
NOTES TO THE FORTY-THIRD EDITION. 507
the trenches to dig ditches and erect fortifications ; and when found neces
sary, and when the parties are found competent, to arm them in the defence
of the country. — See Supplement to Globe (July 11, 1862), p. 313.
These debates resulted in the passage of the act of July 17, 1862 (Chap.
201) (See No. 394), and was entitled " An Act to amend the act calling forth
the militia to execute the laws of the Union, suppress insurrection, and repel
invasion (approved February 28, 1795), and the acts amendatory thereof, and
for other purposes." Is it possible that any one could read the extracts
above quoted from the speeches of so many eminent senators, every one of
whom argued for or against this proposed law on the ground that it was for
the express purpose of making soldiers out of slaves and persons of color,
and then deny or doubt that the act was intended for that purpose ? Yet
Attorney General Bates, in his argument in favor of the claim of negro
soldiers to pay and rations equal to white soldiers, has expressed the opinion
that this law was not intended to authorize the employment of persons of
African descent as soldiers ! It is doubted whether there was a single mem
ber of the House or of the Senate who did not know the contrary. The
debates in Congress during the session of 1861-2, which terminated on the
17th of July, 1862, prove beyond question,—
1. That it was fully understood by members of both Houses that colored
persons and slaves then constituted by law no part of the military forces
of the United States.
2. That no provision of law then existed which would authorize the arm
ing of colored men or slaves as part of the volunteer force of the United
States.
3. That from May to July, 1862, several attempts were made, which
failed, to introduce colored men into the military service on an equality
with white soldiers.
4. That in passing the act of 1862 (Chap. 195), the confiscation act, it
was not the intention of Congress to introduce negroes or slaves into the
volunteer forces, or the regular army of the United States, but to give them
employment in camps, forts, &c., in hot climates, where such labor was
too oppressive for northern troops.
5. That the act of July 17, 1862 (Chap. 201) was expressly and avowedly-
intended to empower the President to make colored troops, whether slave
or free, a part of the volunteer forces of the United States, to be organized,
armed, and equipped accordingly, and that the payment provided in the act,
and the freedom secured to those who were thus enrolled, were intended to
cover not ordinary labor only, but the military services to be performed by
them as soldiers and a.s fighting men in thejield.
6. That whenever colored volunteers entered the military service after
the passage of the act (Chap. 201), it was the meaning and intent of the
law that they should be organized and paid under that act.
508 NOTES TO THE FORTY-THIRD EDITION.
7. That it was not the intention of the legislature to place negroes in the
military service of the United States upon an equality of pay with white
volunteers at the time when these acts were passed (1862).
The construction put upon this act by the Senate is shown by a subse
quent debate. " The employment of negroes as soldiers was subjected to a
vigorous discussion, started on the 27th of January, 1863, by an amendment
offered to a pending bill by Mr. Stevens, directing the President to raise, arm,
and equip as many volunteers of African descent as he might deem useful," &c.
The border States opposed it. Crittenden objected. Sedgwick, of New York,
advocated it. It passed the House by 83 ayes to 54 noes. On reaching the
Senate, it was referred to the committee on military affairs, which, on the 12th
of February, reported against it, on the ground that the authority which it
was intended to confer upon the President was already sufficiently granted
in the act of the previous session (approved July 17, 1862), which autho
rized the President to employ in " any military or naval service for which
they might be found competent, persons of African descent." This report
shows conclusively that the Senate construed the militia act of July 17, 1862
(Chap. 201), as fully authorizing the President to raise, arm, and equip as
many volunteers of African descent as he might deem useful ; but no sen
ator claimed that the confiscation act of July 17, 1862 (Chap. 195), con
tained such an authority.
THE ENROLMENT ACT OF 1863.
The next act under which it has been supposed that colored men and
slaves may have been received into the military service, is the act approved
March 3, 1863, called the Enrolment Act, which provided " that all able-
bodied male citizens of the United States [and certain aliens] should con
stitute the national forces, and be liable to perform military duty when
called out by the President for that purpose." The question whether colored
men and slaves were included in this act, depends upon the answer to the
question, whether they were at that date deemed in law to be citizens of
the United States. The previous act of 1862 included all citizens and per
sons of African descent, but does not say whether citizens referred to
were required to be citizens of the United States, or only of States. For
the purpose of interpreting the legal meaning of the phrase " a citizen of
the United States " as used in the law of 1863, it is necessary to refer to
the decision of the Supreme Court of the United States, in force and still un-
reversed at the time of its passage, in the case of Dred Scott. By that
decision, however jurists may now differ in their views of the matters dis
cussed, it was decided that Dred Scott was not deemed in law to be a citi
zen of the United States, because he was a person of African descent ; and
if the construction of this enrolment act were to have been submitted to
NOTES TO THE FORTY-THIRD EDITION. 509
the same court, unless they should reverse their former decision, they would
at that time have pronounced the opinion that persons of African descent,
and especially slaves, were not included within the terms of the act.* If
colored men were intended to be included therein, and were required to be
enrolled as part of the forces of the United States, and to be paid like other
soldiers, is it not singular that Congress should have passed another act,
approved on the same day (March 3, 1863), " for promoting the efficiency
of the corps of engineers and ordnance department," in which a provision
was made that the cooks should be detailed from the privates, and the
President was authorized (Sect. 9) " to cause to be enlisted for each cook,
two under cooks, of African descent, who should receive, as their full com
pensation, ten dollars per month and one ration per day, three dollars of
which monthly pay may be in clothing " (being the same compensation as
under the militia act of July 17, 1862) ? If these colored cooks were liable
to be enrolled under the act of March 3, and were entitled to be paid, when
enlisted, the same as white soldiers (who also were detailed as cooks), it
would seem strange and inconsistent to have persons of the same color and
grade, and performing the same service, in different corps of the army, so un
equally treated as to payment, bounties, pensions, &c. It is not reasonable
to suppose that Congress intended that colored men if enrolled in the
military forces should be paid thirteen dollars per month, and if enlisted in
the Engineer Corps should be paid ten dollars per month, performing the
same duty in both cases. It is questionable whether colored men or slaves,
as they were held by the Supreme Court not to be citizens of the United
States, were included within the strict terms of this statute.
THE AMENDED ENROLMENT ACT OF 1864.
The act of February 24, 1864, however, defines and settles the status of
colored men and slaves, by providing, in express terms, that
" All able-bodied male colored persons between twenty and forty-five,
resident in the United States, shall be enrolled according to the provisions
of this act, and of the act of March 3, 1863, and form part of the national
forces."
If they had formed part of the national forces, or had been required, by
the law of 1863, to be enrolled, it is difficult to see why this amendment
or additional provision was necessary. This act avoids the question of
citizenship of colored men. It is not material whether persons to be
enrolled under this statute are citizens of either of the States, or citizens
of the United States (as required by the act of 1863). Whether slave or
free, whether citizens or not, if residents only, they were required to be
enrolled, and they were to be assigned, not as State troops, but were to
be mustered into service in regiments or companies as United States colored
troops.
* See Opinion, p. 371.
510 NOTES TO THE FORTY-THIRD EDITION.
This statute (Sect. 1) permitted the President to enroll (under restric
tions) in the militia of the States all able-bodied male citizens. Beyond this,
he was permitted by express provision also to enroll persons of African
descent for military service. If persons of African descent were deemed to
be a part of the militia of the States, why was it necessary to add a separate
clause giving express power also to enroll them, and to make them soldiers ?
As the law of 1795 was in force at the time when the act of 1862 was
passed, and as colored men and slaves were no part of the militia of any
State, and were, therefore, not included in the provisions of the first section,
above cited, it became necessary either to enact the twelfth section, giving
express power to the President to employ this class of persons as soldiers,
or else to repeal the act of 1795. Congress adopted the former alternative,
and passed a statute which called into service both slaves and free men of
African descent. The question may also be asked, with equal force, if
any law of Congress authorized the enlistment of slaves or of colored
persons, prior to 1862, what was the use of amending the law of 1863,
for enrolling the forces of the United States by providing in the act
of February, 1864, " that all able-bodied male colored persons be
tween the ages of twenty and forty-five years shall be enrolled accord
ing to the provisions of this act, and of the act to which this is an
amendment, and form part of the national forces ? What was the use of
all the provisions for the volunteering and draft of slaves ? If colored per
sons were included in the forces of the United States under previous laws,
why was the distinction between them and ordinary troops constantly
repeated in every statute ? If it was the intention of Congress, when passing
any of the acts authorizing the calling out of volunteers prior to 1862, to
place slaves and persons of African descent, in the military service, on an
equality with white soldiers, why was not that intention plainly expressed in
some of the acts they passed, and why did not Congress repeal those previ
ous laws and army regulations which prevented such intention from being
carried into effect ? If Congress really intended to give colored soldiers
equal pay with white soldiers, why did it spend so many days in discussion
whether to give them pay for the future according to such intention ? Why
has it refused to pass any law which shall put at rest all questions on this
subject, by giving the colored troops back pay from the beginning of their
service ? The inference from these considerations is irresistible, that Con
gress had no intention, in 1862, to allow negroes and slaves as volunteers
in our army, nor to place them at that time on an equality with white sol
diers, and never meant to express, and never did express, such intention
until 1864. The plain truth is, that from 1792 there has been a distinction
made in the laws between white and colored men, the latter having been
excluded most of the time by regulations having the force of law from the
regular army, and all the time from the State militia when organized accord-
NOTES TO THE FORTY-THIRD EDITION. 511
ing to law. The act of July 17, 1862 (Chap. 201), was an experiment for the
purpose of enabling the President to test the capacity of negroes to become
reliable soldiers. The experiment has succeeded. The act of 1864 has made
them permanently a part of the national forces. It is gratifying that Con
gress has at last equalized the pay of all soldiers of the country.
APPENDIX:
CONTAINING
CASES DECIDED BY THE U. S. COURTS
ON THE SUBJECTS TREATED OF IN THE FOREGOING PAGES.
FLEMING vs. PAGE, 9 Howard's S. C. Rep. 614.
Mr. Chief-Justice TAXEY delivered the opinion of the Court :
The question certified by the Circuit Court turns upon the con
struction of the Act of Congress of July 30, 1846. The duties lev
ied upon the cargo of the schooner Catharine were the duties im
posed by this law upon goods imported from a foreign country.
And if at the time of this shipment Tampico was not a foreign
port, within the meaning of the Act of Congress, then the duties
were illegally charged, and, having been paid under protest, the
plaintiff's would be entitled to recover in this action the amount
exacted by the collector.
Tampico The port of Tampico, at which the goods were shipped, and the
was subject Mexican State of Tamaulipas, in which it is situated, were un
ereignty °V" dcmbtedly, at the time of the shipment, subject to the sovereignty and
and°domin- dominion of the United States. The Mexican authorities had been
uns °f the Driven out' or nad submitted to our army and navy, and the coun
try was in the exclusive and firm possession of the United States,
rumpico and governed by its military authorities, acting under the orders oj
™sg°ve™; the President. But it does not follow that it was a part of the
military au- United States, or that it ceased to be a foreign country, in the
thorities. sense in which these words are used in the Acts of Congress.
The country in question had been conquered in war. But the
genius and character of our institutions are peaceful, and the power
to declare war was not conferred upon Congress for the purposes
of aggression or aggrandizement, but to enable the general gov-
512
APPENDIX. 513
eminent to vindicate by arms, if it should become necessary, its
own rights and the rights of its citizens.
A war, therefore, declared by Congress, can never be presumed
to be waged for the purpose of conquest, or the acquisition of ter
ritory : nor does the law declaring the war imply an authority to
the President to enlarge the limits of the United States by sub
jugating the enemy's country. The United States, it is true, may
extend'its boundaries by conquest or treaty, and may demand the
cession of territory as the condition of peace, in order to indem
nify its citizens for the injuries they have suifered, or to reimburse
the Government for the expenses of the war. But this can be
done only by the treaty-making power or the legislative author
ity, and is not a part of the power conferred upon the President
by the declaration of war. His duty and his power are purely
military. As commander-in-chief, Tie is authorized to direct the move- Powers of
ments of the naval and military forces placed bylaw at his command, U^aSon!"
and to employ them in the manner he may deem most effectual to har- mander-i™"
ass and conquer and subdue the enemy. He may invade the hostile Chief to
country, and subject it to the sovereignty and authority of the United |?m^ and6
States. But his conquests do not enlarge the boundaries of this employ it,
Union, nor extend the operation of our institutions and laws beyond inv E?
the limits before assigned to them by the legislative power. subjugate,
It is true that, when Tampico had been captured, and the State noot to ex-
of Tamaulipas subjugated, other nations were bound to regard the ifmits of'
country, while our possession continued, as the territory of the Union.
United States, and to respect it as such. For, by the laws and
usages of nations, conquest is a valid title, while the victor main- Tampico
tains the exclusive possession of the conquered country. The cit- our?> ~ f}s
izens of no other nation, therefore, had a right to enter it without elg^n
the permission of the American authorities, nor to hold inter- tries-
course with its inhabitants, nor to trade with them. As regarded
all other nations, it was a part of the United States, and belonged
to them as exclusively as the territory included in our established
boundaries.
But yet it was not a part of this Union. For every nation
which acquires territory by treaty or conquest holds it accordino-
to its own institutions and laws. And the relation in which the
port of Tampico stood to the United States while it was occupied
by their arms, did not depend upon the laws of nations, but upon
our own Constitution and Acts of Congress. The power of the
President, under which Tampico and the State of Tamaulipas were
conquered and held in subjection, was simply that of a military
commander prosecuting a war waged against a public enemy by
the authority of his government. And the country from which
these goods were imported was invaded and subdued, and occu
pied as the territory of a foreign hostile nation, as a portion of
Mexico, and was held in possession in order to distress and har
ass the enemy. While it was occupied by our troops, they were
in an enemy's country, and not their own : the inhabitants were
still foreigners and enemies, and owed to the United States noth
ing more than the submission and obedience, sometimes called
temporary allegiance, which is due from a conquered enemy when
he surrenders to a force which he is unable resist. But the
boundaries of the United States, as they existed when war was
declared against Mexico, were not extended by the conquest ;
nor could they be regulated by the varying incidents of war, and
65
514 APPENDIX.
be enlarged or diminished as the armies on either side advanced
or retreated. They remained unchanged. And every place
which was out of the limits of the United States, as previously es
tablished by the political authorities of the government, was still
foreign, nor did our laws extend over it. Tampico was therefore
a foreign port when this shipment was made.
Again, there was no Act of Congress establishing a custom
house at Tampico, nor authorizing the appointment of a collector ;
and, consequently, there was no officer of the United States author
ized by law to grant the clearance and authenticate the coasting
manifest of the cargo, in the manner directed by law, where the
voyage is from one port of the United States to another. The
Collection person wJio acted in the character of collector in this instance, acted
mifitaryS£ as suc^ unaer ^ie authority of the military commander, and in obedi-
thority. ence to his orders ; and the duties he exacted and the regulations he
adopted were not those prescribed by law, but by the President in his
character of commander-in-chief. The custom-house was established
in an enemy's country, as one of the weapons of war. It was es
tablished, not for the purpose of giving to the people of Tamaul-
ipas the benefits of commerce with the United States, or with
An act of other countries, but as a measure of hostility, and as a part of the
hostility, military operations in Mexico ; it was a mode of exacting contri
butions from the enemy to support our army, and intended also to
cripple the resources of Mexico, and make it feel the evils and
burdens of the war. The duties required to be paid were regulat-
Contribu- ed with this view, and were nothing more than contributions lev-
tions _ may je(j UpOn the enemy, which the usages of war justify when an army
is operating in the enemy's country. The permit and coasting man
ifest granted by an officer thus appointed, and thus controlled by
military authority, could not be recognized in any port of the
United States as the documents required by the Acts of Congress,
when the vessel is engaged in the coasting trade, nor could they
exempt the cargo from the payment of duties.
This construction of the revenue laws has been uniformly given by
the Administrative Department of the government in all cases that
have come before it. And it has, indeed, been given in cases where
there appears to have been stronger ground for regarding the place
of shipment as a domestic port. For after Florida had been ceded
to the United States, and the forces of the United States had
taken possession of Pensacola, it was decided by the Treasury De
partment, that goods imported irom Pensacola before an Act of
Congress was passed erecting it into a collection district, and
authorizing the appointment of a collector, were liable to duty.
That is, that, although Florida had by cession actually become a
part of the United States, and was in our possession, yet, under
our revenue laws, its ports must be regarded as foreign until they
were established as domestic by an Act of Congress, and it appears
that this decision was sanctioned at the time by the Attorney-
General of the United States, the law officer of the Government.
And, although not so directly applicable to the case before us, yet
the decisions of the Treasury Department in relation to Amelia
Island and certain ports in Louisiana after that province had been
ceded to the United States, were both made upon the same
grounds. And in the latter case, after a custom-house had been
established by law at New Orleans, the collector at that place was
instructed to regard as foreign ports Baton Rouge and other set-
APPENDIX. 515
tlements still in the possession of Spain, whether on the Missis
sippi, Iberville, or the sea-coast. The Department, in no instance
that we are aware of, since the establishment of the Government,
has e\er recognized a place in a newly-acquired country as a
domestic port from which the coasting trade might be carried on,
unless it had been previously made so by Act of Congress.
The principle thus adopted and acted upon by the Executive
Department of the government has been sanctioned by the de
cisions in this Court and the Circuit Courts whenever the question
came before them. We do not propose to comment upon the dif
ferent cases cited in the argument. It is sufficient to say that
there is no discrepancy between them. And all of them, so far as
they apply, maintain that under our revenue laws every port is
regarded as a foreign one unless the custom-house from which the
vessel clears is within a collection district established by Act of
Congress, and the officers granting the clearance exercise their
functions under the authority and control of the laws of the United
States.
In the view we have taken of the question, it is unnecessary to
notice particularly the passages from eminent writers on the laws
of nations which were brought forward in the argument. They
speak altogether of the rights which a sovereign acquires, and the
powers he may exercise in a conquered country, and they do not
bear upon the question we are considering. For in this country
the sovereignty of the United States resides in the people of the
several States, and they act through their representatives, accord
ing to the delegation and distribution of powers contained in the
Constitution. And the constituted authorities to whom the power
of making war and concluding peace is confided, and of determin
ing whether a conquered country shall be permanently retained
or not, neither claimed nor exercised any rights or powers in rela
tion to the territory in question, but the rights of war. After it
was subdued, it was uniformly treated as an enemy's country, and
restored to the possession of the Mexican authorities when peace
was concluded. And certainly its subjugation did not compel the
United States, while they held it, to regard it as a part of their
dominions, nor to give to it any form of civil government, nor to
extend to it our laws.
Neither is it necessary to examine the English decisions which
have been referred to by counsel. It is true that most of the
States have adopted the principles of English jurisprudence so far
as it concerns private and individual rights. And when such
rights are in question, we habitually refer to the English decisions,
not only with respect, but in many cases as authoritative. But in
the distribution of political power between the great departments
of government, there is such a wide difference between the power
conferred on the President of the United States and the authority
and sovereignty which belong to the English crown, that it would
be altogether unsafe to reason from any supposed resemblance be
tween them, either as regards conquest in war, or any other subject
where the rights and powers of the executive arm of the Govern
ment are brought into question. Our own Constitution and form
of government must be our only guide. And we are entirely
satisfied that under the Constitution and laws of the United States
Tampico was a foreign port, within the meaning of the Act of
1846, when these goods were shipped, and that the cargoes were
516 APPENDIX.
liable to the duty charged upon them. And we shall certify ac
cordingly to the Circuit Court.
CROSS vs. HARRISON, 16 Howard's S. C. Rep. 189.
" Indeed, from the letter of the then Secretary of State, and
from that of the Secretary of the Treasury, we cannot doubt that '
the action of the Military Governor of California ivas recognized as
Constitu- allowable and lawful by Mr. Polk and his cabinet. We think it
ized acts°of was a rightful and correct recognition under all the circumstances,
military and when we say rightful, we mean that it was constitutional, al-
mcoTlectfng though Congress had not passed an act to extend the collection of
revenue. tonnage and import duties to the ports of California.
California, or the port of San Francisco, had been captured by
the arms of the United States as early as 1846. Shortly after
ward, the United States had military possession of all of Upper
Belligerent California. Early in 1847, the President, as constitutional Com-
President mander-in-Chief of the army and^ navy, authorized the military and
tcThlstitute naval commander of our forces in California to exercise the belliger-
military ent rights of a conqueror, and to form a civil government for the con-
government quered country, and to impose duties on imports and tonnage as
over Call- military contributions for the support of the government and of the
forma. army which had the conquest in possession. We will add, by way
of note, to this opinion, references to all of the correspondence of
the government upon this subject ; now only referring to the letter
of the Secretary of War to General Kearney, of the 10th of May,
1847, which was accompanied with a tariff* of duties on imports
and tonnage, which had been prepared by the Secretary of the >
Treasury, with forms of entry and permits for landing goods, all
of which was reported by the Secretary to the President on the
30th of March, 1847. Senate Doc. No. 1, 1st Sess., 30th Congress,
No doubt of 1847, pp. 567, 583. No one can doubt that these orders ofthePresi-
authority. dent, and the action of our army and navy commander in California
in conformity with them, were according to the law of arms and the
right of conquest, or that they were operative until the ratification and
exchange of a treaty of peace
•' The plaintiffs, therefore, can have no right to the return of
any moneys paid by them as duties on foreign merchandise in San
Francisco up to that date. Until that time California had not
been ceded in fact to the United States, but it was a conquered
territory within which the United States were exercising belliger
ent rights, and whatever sums were received for duties upon
foreign merchandises, they were paid under them."
After treaty But after the ratification of the treaty, California became a part of
California tfre United States, or a ceded, conquered territory. Our inquiry here
oftJ^lf.^S., is to be whether or not the cession gave any right to the plaintiffs
a ceded con- to have the duties restored to them which they may have paid be-
ritoi'ed tei" tween the ratifications and exchange of the treaty and the notifi
cation of that fact by our Government to the Military Governor of
California. It was not received by him until two months after the
ratification, and not then with any instructions or even remote
intimation from the President that the civil and military government,
Civil and which had been instituted during the war, was discontinued. Up to
government *^a* time? whether such an intimation had or had not been given,
during the duties had been collected under the war tariff, strictly in confbr-
in m^^ w^ *^e ^nstructi°ns which had been received from Wash-
inton
APPENDIX. 517
The ratification of the treaty of peace was proclaimed in Cali
fornia by Colonel Mason, on the 7th of August, 1848. Up to this
time, it must be remembered that Captain Folsom, of the Quarter
master's Department of the Army, had been the collector of duties
under the war tariff. On the 9th of August he was informed by
Lieut. Halleck, of the Engineer Corps, who was the Secretary of
State of the Civil Government of California, that he would be re
lieved as soon as a suitable citizen could be found for his successor.
He was also told that " the tariff of duties for the collection of
military contributions was immediately to cease, and that the
revenue laws and tariff of the United States will be substituted in
its place." The view taken by Governor Mason of his position has
been given in our statement. The result was to continue the exist
ing government, as he had not received from Washington definite
instructions in reference to the existing state of things in California.
His position was unlike anything that had preceded it in the
history of our country. The view taken of it by himself has been
given in the statement in the beginning of this opinion. It was
not without its difficulties both as regards the principle upon
which he should act, and the actual state of affairs in California.
He knew that the Mexican inhabitants of it had been remitted by
the treaty of peace to those municipal laws and usages which pre
vailed among them before the territory had been ceded to the
United States, but that a state of things and population had grown
up during the war, and after the treaty of peace, which made
some other authority necessary to maintain the rights of the ceded
inhabitants and of immigrants, from misrule and violence. He
may not have comprehended fully the principle applicable to what
he might rightly do in such a case, but he felt rightly, and acted
accordingly. He determined, in the absence of all instruction, to
maintain the existing government. The territory had been ceded
as a conquest, and was to be preserved and governed as such until
the sovereignty to which it had passed had legislated for it. That
sovereignty was the United States, under the Constitution, by
which power had been given to Congress to dispose of and make
all needful rules and regulations respecting the territory or other
property belonging to the United States, with the power also to
admit new States into this Union with only such limitations as are
expressed in the section in which this power is given. The gov- Origin of
ernment of which Colonel Mason was the executive, had its origin this govern-
in the lawful exercise of a belligerent right over a conquered territory. m(
It had been instituted during the war by the command of the Presi- How insti-
dent of the United States. It was the government when the territory tuted<
was ceded as a conquest, and it did not cease as a matter of course, it did not
or as a necessary consequence of the restoration of peace. 7%ecease bvQ
President might have dissolved it by withdrawing the army and navy ofSpea^e ^
officers who administered it, but he did not do so. Congress could Dissolved
have put an end to it, but that was not done. The right inference by power of
from the inaction of both is, that it was meant to be continued un- JJ^Jy ecou.
til it had been legislatively changed. No presumption of a contrary gress.
intention can be made. Whatever may have been the causes of
the delay, it must be presumed that the delay was consistent with
the true policy of the government. And the more so as it was
continued until the people of the territory met in convention to
form a state government which was subsequently recognized by
Congress under its power to admit new States into the Union.
518 APPENDIX.
Civil gov- In confirmation of what has been said in respect to the power
tablished as °^ Congress over this territory, and the continuance of the civil gov-
a war right, eminent established as a war right, until Congress acted upon the
subject, we refer to two of the decisions of this Court, in one of
which it is said, in respect to the treaty by which Florida was ceded
to the United States, " This treaty is the law of the land, and
Rights of admits the inhabitants of Florida to the enjoyment of the privileges,
citizenship rights, ana immunities of the citizens of the United States. It is un-
sariiy ac- necessary to inquire whether this is not their condition independ-
companied ently of stipulations. They do not, however, participate in political
power. power, — they do not share in the government until Florida shall he-
come a State. In the mean time Florida continues to be a territory
of the United States, guarded by virtue of that clause of the Con
stitution which empowers Congress to make all needful rules and
regulations respecting the territory or other property belonging
Power of to the United States. Perhaps the power of governing a territory
ferritoj" — U belonging to the United States, which has not by becoming a State
how it re- acquired the means of self-government, may result necessarily from
suits. the facts that it is not within the jurisdiction of any particular State,
and is within the power and jurisdiction of the United States. The
right to govern may be the natural consequences of the right
to acquire territory." American Insurance Company vs. Can
ter, 1 Peters, 542, 543. (See also U. S. vs. Gratiot, 14 Peters,
526.)
"When mili- " Our conclusion, from what has been said, is, that the civil govern-
ernmfntTin ment °^ California, organized as it was from a right of conquest, did
California n°t cease or become defunct in consequence of the signature of the
ceased. treaty, or from its ratification. We think it was continued over a
ceded conquest, without any violation of the Constitution or laws of
the United States, and that, until Congress legislated for it, the du
ties upon foreign goods imported into San Francisco were legally
demanded and lawfully received by Mr. Harrison, the collector of
the port, who received his appointment, according to instructions
from Washington, from Governor Mason."
What laws " The second objection states a proposition larger than the case
are in force admits, and more so than the principle is, which secures to the in-
quest.C°r habitants of a ceded conquest the enjoyment of what had been
their laws before, until they have been changed by the new sov
ereignty to which it has been transferred. In this case, foreign
Right of the trade had been changed in virtue of a belligerent right, before the ter-
conqueror ritory was ceded as a conquest, and after that had been done by a
tradef1 ' * treaty of peace, the inhabitants were not remitted to those regula
tions of trade under which it was carried on whilst they were un
der Mexican rule ; because they had passed from that sovereignty
to another, whose privilege it was to permit the existing regulations
of trade to continue, and by which only they could be changed.
We have said, in a previous part of this opinion, that the sover
eignty of a nation regulated trade with foreign nations, and that
none could be carried on except as the sovereignty permits it to be
done. In our situation, that sovereignty is the constitutional dele
gation to Congress of the power ' to regulate commerce with for
eign nations and among the several States, and with the Indian
tribes.'"
" But we do not hesitate to say, if the reasons given for our con
clusions in this case were not sound, that other considerations would
bring us to the same results. The plaintiffs carried these goods
APPENDIX. 519
voluntarily into California, knowing the state of things there. They
knew that there was an existing civil government, instituted by the
authority of the President as commander-in-chief of the army and
naval forces of the United States, by the right of conquest ; that
it had not ceased when these first importations were made ; that it
was afterwards continued, and rightfully, as we have said, until
California became a State, that they were not coerced to land their
goods, however they may have been to pay duties upon them ; that
such duties were demanded by those who claimed the right to rep
resent the United States (who did so, in fact, with most com
mendable integrity and intelligence) ; that the money collected has
been faithfully accounted for, and the unspent residue of it received
into the treasury of the United States; and that the Congress has
by two acts adopted and ratified all the acts of the government
established in California upon the conquest of that territory, rela
tive to the collection of imposts and tonnage, from the commence
ment of the late war with Mexico to the 12th November, 1849,
expressly including in such adoption the moneys raised and expend
ed during that period for the support of the actual government of
California after the ratification of the treaty of peace with Mexico.
This adoption sanctions what the defendant did. It does more ; it
affirms that he had legal authority for his acts. It coincides with
the views which we have expressed in respect to the legal liability
of the plaintiff for the duties paid by them, and the authority of
the defendant to receive them as Collector of the port of San Fran
cisco."
JECKER vs. MONTGOMERY, 18 Howard's S. C. Rep. 112.
" As a principle applicable to the first of these inquiries, it may A]j citizens
be averred as a part of the law of nations, — forming a part, too, of States at
of the municipal jurisprudence of every country, — " that in a J™JS o
state of war between two nations, declared by the authority in other,
whom the municipal constitution vests the power of making war,
the two nations and all their citizens or subjects are enemies to each
other." The consequence of this state of hostility is, that all inter
course and communication between them is unlawful. Vide Wheaton
on Maritime Captures, ch. 7, p. 209, quoting from Bynkershoeck
this passage : ' Ex natura belli commercia inter hostes cessare, non
est dubitandum. Quamvis nulla specialis sit commerciorum pro-
hibitio, ipso tamen jure belli, commercia inter hostes esse vetita,
ipsae indictiones belloruin satis declarant.'
" The same rule has been adopted, with equal strictness, by this
court. In the case of The Rapid, reported in 8 Cranch, 155, the
claimant, a citizen of the United States, had purchased goods in
the enemy's country, a long time before the declaration of war, and
had deposited them on an island, near the boundary line between the
two countries. Upon the breaking out of hostilities, his agent had
hired the vessel to proceed to the place of deposit, and bring away
these goods. Upon her return, the vessel was captured, and with
the cargo was condemned as prize of war for trading with the
enemy .^ In applying the law to this state of facts, this "Court said,
and said unanimously, " That the universal sense of nations has
acknowledged the demoralizing effects that would result from the ad-
520
APPENDIX.
All are ene
mies.
Non-inter
course.
Enemy
property.
Non inter
course.
Trade un
lawful.
mission of individual intercourse. The whole nation are embarked
in one common bottom, and must be reconciled to submit to one com
mon fate. Every individual of the one nation must acknowledge
every individual of the other nation as his own enemy, because the
enemy of his country. But, after deciding what is the duty of the
citizen,' the question occurs, What is the consequence of a breach
of that duty V The law of prize is a part of the law of nations.
In it, a hostile character is attached to trade, independently of the
character of the trader, who pursues or directs it. Condemnation
to the use of the captor, is equally the fate of the property of the bel
ligerent, and of the property engaged in anti-neutral trade. But a
citizen or an ally may be engaged in a hostile trade, and thereby
involve his property in the fate of those in whose cause he embarks."
Again the Court say, " If, by trading, in prize law was meant that
signification of the term which consists in negotiation or contract,
this case ivould not come under the penalties of the rule. But the
object and spirit of the rule is to cut off all communication or actual
locomotive intercourse between individuals of the belligerent nations.
Negotiation or contract has, therefore, no necessary connection
with the offence. Intercourse inconsistent with actual hostility, is the
offence against wldcli the operation of the rule is directed." . .
" The same course of decision which has established that property
of a subject or citizen taken trading with the enemy is forfeited, has
decided also that it is forfeited as prize. The ground of the for
feiture is, that it is taken adhering to the enemy, and therefore the
proprietor is pro hac vice to be considered an enemy. Vide also
Wheaton on Captures, p. 219 ; and 1 C. Robinson, 219, the case
of The Nelly."
Attempts have been made to evade the rule of public law, by
the interposition of a neutral port between the shipment from the
belligerent port and their ultimate destination in the enemy's coun
try ; but in all such cases the goods have been condemned as hav
ing been taken in a course of commerce rendering them liable to
confiscation ; and it has been ruled that, without license from gov
ernment, no communication, direct or indirect, can be carried on with
the enemy ; that the interposition of a prior port makes no differ
ence ; that all the trade with the enemy is illegal, and the circum
stance that the goods are to go first to a neutral port will not make
it lawful. 3 C. Robinson, 22, The Indian Chief; and 4 C. Rob
inson, 79, The Jonge Pieter
DYNES vs. HOOVER, 20 Howard's S. C. Rep. 78.
The demurrer admits that the court martial was lawfully organ
ized ; that the crime charged was one forbidden by law ; that the
court had jurisdiction of the charge as it was made ; that a trial took
place before the court upon the charge, and the defendant's plea of
not guilty ; and that, upon the evidence in the case, the court found
Dynes guilty of an attempt to desert, and sentenced him to be
punished, as has already been stated ; that the sentence of the
court was approved by the Secretary ; and that, by his direction,
Dynes was brought to Washington ; and that the defendant was
marshal for the District of Columbia ; and that in receiving Dynes,
and committing him to the keeper of the penitentiary, he obeyed
the orders of the President of the United States, in execution of the
APPENDIX. 521
sentence. Among the powers conferred upon Congress, by the
8th section of the "ist Article of the Constitution, are the follow
ing : " to provide and maintain a navy ; " " to make rules for the
government of the land and naval forces." And the 8th Amend- Construe-
ment, which requires a presentment of a grand jury in cases ^an^ndm §tit
capital or otherwise infamous crime, expressly excepts from its opera- Grand jury
tiom " cases arising in the land or naval forces" And by the 2d not. requir-
section of the 2d* Article of the Constitution, it is declared that |{J/n caseS|
" 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."
These provisions show that Congress has the power to provide for Power of
the trial and punishment of military and naval offences, in the manner Congress to
then and now practiced by civilized nations ; and that the power to do for 'puntsh-
so, is given without any connection between it and the 3d Article o/"mentofmil-
the Constitution, defining the judicial power of the United States ; Jj^ aj£
indeed, that, the two powers are entirely independent of each other. . . fences.
" The objection is ingeniously worded, was very ably argued, and Has no con-
we may add, with a clear view and knowledge of what the law is ™^°Je -u
upon such a subject, and how the plaintiff's case may be brought JYcial pow-
under it, to make the defendant responsible on this action for false er.
imprisonment. But it substitutes an imputed error in the finding
of the Court, for the original subject matter of its jurisdiction,
seeking to make the marshal answerable for his mere ministerial exe- Marshal not
cution of a sentence, which the Court passed, the Secretary of the liable for
Navy approved, and which the President of the United States, as ™ct toSe.
constitutional Commander-iii-Chief of the army and navy of the cuting sen-
United States, directed the marshal to execute, by receiving the tence> etc-
prisoner and convict, Dynes, from the naval officer then having
him in custody, to transfer him to the penitentiary, in accordance
with the sentence which the Court had passed upon him
" But the case in hand is not one of a court without jurisdiction
over the subject matter, or that of one which has neglected the
forms and rules of procedure enjoined for the exercise of juris
diction. It was regularly convened ; its forms of procedure were
strictly observed as they are directed to be by the statute ; and if
its sentence be a deviation from it, which we do not admit, it is
not absolutely void. Whatever the sentence is, or may have
been, as it was not a trial by court martial taking place out of the
United States, it could not have been carried into execution but
by the confirmation of the President, had it extended to loss of
life, or in cases not extending to loss of life, as this did not, but by
the confirmation of the Secretary of the Navy, who ordered the
Court. And if a sentence be so confirmed, it becomes final, and Sentence oi
must be executed, unless the President pardon the offenders. It is ^fffijjS*"
the nature of an appeal to the officer ordering the court, who is made
by the law the arbiter of the legality and propriety of the court's
sentence. When confirmed it is altogether beyond the jurisdiction civil courts
of any civil tribunal whatever, unless it shall be in a case in which n.av? ^o Ju~
the court had not jurisdiction over the subject matter or charge, or "ver thesen-
one in which, having jurisdiction over the subject matter, it has fence,
failed to observe the rules prescribed by the statute for its exercise.
In such cases, as has just been said, all of the parties to such ille- Except,
gal trial are trespassers upon a party aggrieved by it, and he may
recover damages from them on a proper suit in a civil court, by
the verdict of a jury."
66
522
APPENDIX.
hive CnortS " ^^ ^ie sentences of courts martial which have been convened
right to° in- regularbs and have proceeded legally, and by which punishments
terierc with are directed, not forbidden by law, or which are according to the
courts <marJ ^aws anc* customs °f the sea' cw% courts have nothing to do, nor
tial. are they in any way alterable by them. If it were otherwise, the
civil courts would virtually administer the rules and articles of
war, irrespective of those to whom that duty and obligation has
been confided by the laws of the United States, from whose de
cisions no appeal or jurisdiction of any kind has been given to
the civil magistrate or civil courts. But we repeat, if a court
Except. martial has no jurisdiction over the subject matter of the charge it
has been convened to try, or shall inflict a punishment forbidden
by the law, though its sentence shall be approved by the officers
having a revisory power of it, civil courts may, on an action by a
party aggrieved by it, inquire into the want of the court's juris
diction, and give him redress. (Harm an vs. Tappenden, 1 East
555 ; as to ministerial officers, Marshall's Case, 10 Cr. 76 ; Morrison
vs. Sloper, Wells, 30; Parton vs. Williams, B. and A. 330 ; and as
to justices of the peace, by Ld. Tenterden, in Basten vs. Carew,
3 13. and C. 653 ; Mules vs. Calcott, 6 Bins. 85." .....
Imprison- «' In this case all of us think that the court which tried Dynes had
penitenti- jurisdiction over the subject matter of the charge against him ;
ary of
Dynes.
Authority
that the sentence of the court against him was not forbidden by
law ; and that having been approved by the Secretary of the Navy
as a fair deduction from the 17th Article of the Act of April 23,
1800, and that Dynes having been brought to Washington as a
Prisoner by the direction of the Secretary, that the President of
the United States, as constitutional Commander-in-Chief of the
army and navy, and in virtue of his constitutional obligation that
he shall take care that the laws be faithfully executed, violated
no law in directing the Marshal to receive the prisoner Dynes from
the officer commanding the United States steamer Engineer, for
the purpose of transferring him to the penitentiary of the District
of Columbia, and, consequently, that the Marshal is not answer
able in this action of trespass and false imprisonment."
LEITENSDORFER vs. WEBB, 20 Howards S, C. Rep. 176.
Civil gov- "Upon the acquisition, in the year 1846, by the arms of the
ernmont of United States, of the Territory of New Mexico, the civil govern-
overthro°wn meni °f this territory having been overthrown, the officer, General
by conquest Kearney, holding possession for the United States, in virtue of the
Provisional Power °^ conquest and occupancy, and in obedience to the duty of
government maintaining the security of the inhabitants in their persons and prop-
ordered by erty, ordained, under the sanction and authority of the United States,
ney!' ™' d provisional or temporary government for the acquired country. By
this substitution of a new supremacy, although the former political
Duty. relations of the inhabitants were dissolved, their private relations,
How far their rights vested under the government of their former allegiance,
their former or those arising from contract or usage, remained in full force and
cllanged!ere unchanged, exccept so far as they were in their nature and character
found to be in conflict with the Constitution and laws of the United
What law States, OR WITH ANY REGULATIONS WHICH THE CONQUERING
is to be ad- AND OCCUPYING AUTHORITY SHOULD ORDAIN, Amongst the
ministered consequences which would be necessarily incident to the change of
bv military \ •> •, -, ,-, . J , 7 , 7
power. sovereignty, would be the appointment or control oj the agents by
APPENDIX. 523
whom and the modes in which the government of the occupant should Conquest
be administered, — this result being indispensable, in order to secure S^hanfe ta
those objects for which such a government is usually established" government
This is the principle of the law of nations, as expounded by the and officers
hihest authorities. In the case of The Fama, in the 5th of Robin- * "
inson's Rep. p. 106, Sir William Scott declares it to be " the settled curevictory.
principle of the law of nations, that the inhabitants of a conquered
territory change their allegiance, and their relation to their former
sovereign is dissolved ; but their relations to £ach other, and their
rights of property not taken from them by the orders of the conqueror,
remain undisturbed." So, too, it is laid down by Vattel, book 3d,
ch. 13, sect. 200, that " the conqueror lays his hands on the posses
sions of the state, whilst private persons are permitted to retain
theirs ; they suffer but indirectly by the war, and to them the result
is that they only change masters."
In the case of the United States vs. Perchiman, 7 Peters, pp. 86,
87, this court have said, u It may be not unworthy of remark,
that it is very unusual, even in cases of conquest, for the conqueror
to do more than to displace the sovereign, and assume dominion
over t|ie country. The modern usage of nations, which has become
law, would be violated, and that sense of. justice and right which
is acknowledged and felt by the whole civilized world be outraged,
if private property should be generally confiscated and. private rights
annulled. The people change their allegiance ; their /elation to
their sovereign is dissolved ; but their relations to each other, and
their rights of property, remain undisturbed." (Vide also the case
of Mitchel vs. The United States, 9th ib. 711, and Kent's Com. vol.
l,p. 177.)
Accordingly, we find that there was ordained by the provisional Judicial
Government a judicial system, which created a superior or appellate ^
court, constituted of three judges, and circuit courts, in which the laws
were, to be administered by the judges of the superior or appellate
court, in the circuits to which they should be respectively assigned.
By the same authority, the jurisdiction of the Circuit Courts to be Courts es-
held in the several counties was declared to embrace, 1st, all criminal
cases that shall not be otherwise provided for by law ; and, 2d, exclu- power
sive original jurisdiction in all civil cases which shall not be cognizable Jurisdic-
bcfore the prefects and alcaldes ( Vide Laws of New Mexico, Kear- n> etc*
ney's Code. p. 48). Of the validity of these ordinances of the pro
visional government there is made no question with respect to the
period during which the territory was held by the United States
as occupying conqueror, and it would seem to admit of no doubt
that during the period of their valid existence and operation, these
ordinances must have displaced and superseded every previous in- Displaced
st'dution of the vanquished or deposed political power which was i^. all old laws
compatible with them. But it has been contended, that whatever bie°etc. U
may have been the rights of the occupying conqueror as such, these
were all terminated by the termination of the belligerent attitude -when ter
of the parties, and that, with the close of the contest, every institu- minated.
tion which had been overthrown or suspended would be revived
and reestablished. The fallacy of this pretension is exposed by the
fact, that the territory never was relinquished by the conqueror,
nor restored to its original condition or allegiance, but was retained
by the occupant until possession was matured into absolute per
manent dominion and sovereignty ; and this, too, under the settled
purpose of the United States, never to relinquish the possession ac-
524
APPENDIX.
How termi- quired by arms. We conclude, therefore, that the ordinances and
nated. institutions of the provisional government would be revoked or
modified by the United States alone, either by direct legislation on
the part of Congress, or by that of the territorial government in the
exercise of powers delegated by Congress. That no power what
ever, incompatible with the Constitution or laws of the United
States, or with the authority of the provisional government, was
retained by the Mexican government, or was revived under that
government, from the-period at which the possession passed to the
authorities of the United States.
UNITED STATES SUPREME COURT.
TERM, 1863,-4.
DECEMBER
Petitioner
charged
pressing"
disloyal
thy for reb
els;
Was tried,
andVsenten
ced;
Sentence
commuted.
THE VALLANDIGHAM CASE.
Ex parte, in the matter of Clement L. Vallandiglmm, Petitioner ; on
petition for a writ of certiorari to the Judge Advocate- General of
the Army of the United States.
There is no analogy between the power cf the United States Court to issue writs
of certiorari, and the prerogative power by which they issue in England.
United States Courts derive such power solely from the Constitution and Con
gressional legislation.
Such petitions are not within the letter or spirit of the grants of appellate
jurisdiction to this court.
A military commission is not a court within the meaning of Section 14 of Act
of 1780.
This Court has no power to originate a writ of certiorari, or to review or pro
nounce any opinion upon the proceedings of a military commission.
Affirmative words in the Constitution, giving this Court original jurisdiction
in certain cases, must be construed negatively as to all other cases.
The petitioner was, on May 5, 1863, arrested at his residence,
taken to Cincinnati, and on the next day, arraigned before a mili-
taiT commission, appointed by Major-General Burnside. command-
ing the Military Department of Ohio, on a charge of having ex-
Pressed sympathies for those in arms against the United States
Government, and for having uttered in a public speech disloyal
sentiments and opinions. The petitioner refused to plead, and
denied the jurisdiction of the commission. A plea of " not guilty"
was therefore entered by the order of the commission, and the trial
proceeded. Seven members of the commission were present, and
tried the charge according to military law. The prisoner called
and cross-examined witnesses ; had the aid of counsel, and made a
written argument.
The finding and sentence were that the petitioner was guilty of
?ie substantial charges, and that he be placed in close confinement
in some fortress of the United States, there to be kept during the
remainder of the war. General Burnside approved the finding
and sentence, and designated Fort Warren as the place of con-
finement. On the 19th of May, 1863, the President, in commuta-
tion of the sentence, directed the prisoner to be sent beyond our
military lines, which order was executed.
Mr. Justice Wayne delivered the opinion of the Court in which
Nelson, J., concurred. After giving a detailed statement of the
facts above briefly set forth, they continue as follows : —
" It has been urged in support of the motion for the writ of cer~
APPENDIX. 525
tiorari, and against the jurisdiction of a military commission to try Constitu-
the petitioner! that the latter was prohibited lay the 30th section™1^'
of the Act of March 30, 1863, for enrolling and calling out the na- stated,
tional forces, — 12 Statutes at Large, 736, — as the crimes punisha
ble in it by the sentence of a court-martial or a military commission
applied only to persons who are in the military service of the
United States, and subject to the articles of war ; and also,
that by the third section of the 3d Article of the Constitution, all
crimes, except in cases of impeachment, were to be tried by juries
in the State where the crime had been committed, and when not
committed within any State, at such place as Congress may by
law have directed ; and that the military commission could have
no jurisdiction to try the petitioner, as neither the charge against
him nor its specifications imputed to him any offence known to the
law of the land ; that General Burnside had no authority to en
large the jurisdiction of a military commission by the General Order
Number thirty-eight, or otherwise. General Burnside acted in the
matter as the general commanding the Ohio Department, in con
formity with the instructions for the government of the armies of
the United States, approved by the President of the United States,
and published by the Assistant Adjutant-General, by order of the
Secretary of War, on the 24th of April, 1863.*
It is affirmed in the thirteenth paragraph of the first section of
these Instructions, that " military jurisdiction is of two kinds : first,
that which is conferred and defined by statute; second, that which
is derived from the common law of war. Military offences, under
the statute, must be tried in the manner therein directed ; but mil
itary offences which do not come within the statute must be tried
and punished under the common law of war. The character of the
courts which exercise these jurisdictions depends upon the local law
of each particular country. In the armies of the United States,
the first is exercised by courts martial ; while cases which do not
come within the ' rules and articles of war,' or the jurisdiction con
ferred by statute or court martial, are tried by military commis
sions."
These jurisdictions are applicable, not only to war with foreign
nations, but to a rebellion, when a part of a country wages war
against its legitimate government, seeking to throw off all alle-
gfance to it to set up a government of its own.
Our first remark upon the motion for a certiorari is, that there
is no analogy between the power given by the Constitution and
laws of the United States to the Supreme Court and the other in
ferior courts of the United States, and to the judges of them to issue
such processes, and the prerogative power by which it is done in
England. The purposes for which the writ is issued are alike, but
there is no similitude in the origin of the power to do it. In Eng
land the Court of King's Bench has a superintendence over all
courts of an inferior criminal jurisdiction, and may, by the pleni
tude of its power, award a certiorari to have any indictment re
moved and brought before it ; and where such certiorari is allow
able, it is awarded at the instance of the king, because every
indictment is (at the suit of the king, and he has a prerogative of
suing in whatever court he pleases. The courts of the United
* They were prepared by Francis Leiber, LL. D., and were revised by a
board of officers, of which Major-General E. A. Hitchcock was president.
526 APPENDIX.
States derive authority to issue such a writ from the Constitution and
the legislation of Congress. To place the two sources of the right
to issue the writ in obvious contrast, and in application to the mo
tion we are considering for its exercise by this Court, we will cite so
much of the. third article of the Constitution as we think will best
illustrate the subject. " The judicial power of the United States
shall be vested in the Supreme Court, and in such inferior courts
as the Congress may, from time to time, ordain and establish." " The
judicial power shall extend to all cases in law and equity, arising
under the Constitution, the laws of the United States, and treaties
made or which shall be made under their authority ; to all cases
affecting embassadors, other public ministers and consuls," etc.,
"and in all cases affecting embassadors, other ministers and consuls,
and those in which a State shall be a party, the Supreme Court
shall have original jurisdiction. In all other cases before men
tioned, the Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such regulations,
as the Congress shall make." Then Congress passed the act to es
tablish the judicial courts of the United States, — 1 Stats, at Lar^e,
p. 73, chap. 20, — and in the 13th section of it declared that tlie
Supreme Court shall have exclusively all such jurisdiction of suits
or proceedings against embassadors or other public ministers or
their domestics or their domestic servants as a court of law can
have or exercise consistently with the laws of nations, and original
but not exclusive jurisdiction of suits brought by embassadors, or
other public ministers, or in which a consul or vice-consul shall be a
party. In the same section the Supreme Court is declared to have
appellate jurisdiction in cases hereinafter expressly provided. In
this section, it will be perceived that the jurisdiction given, besides
that which is mentioned in the preceding part of the section, is an
exclusive jurisdiction of suits or proceedings against embassadors or
other public ministers or their domestics or domestic servants, as a
court of law can have or exercise consistently with the laws of na
tions, and original, but not exclusive, jurisdiction of all suits brought
by embassadors, or other public ministers, or in which a consul or
vice-consul shall be a party, thus guarding them from all. other ju
dicial interference and giving to them the right to prosecute for
their own benefit in the courts of the United States. Thus sub
stantially reaffirming the constitutional declaration that the Su
preme Court had original jurisdiction in all cases affecting embassa
dors and other public ministers and consuls and those in /which a
State shall be a party, and that it, shall have appellate jurisdiction
in all other cases before mentioned, both as to law and fact, with
such exceptions and under such regulations as the Congress shall
make.
The appellate powers of the Supreme Court, as granted by the
Constitution, are limited and regulated by the acts of Congress, and
must be exercised subject to the exceptions and regulations made
by Congress. Durousseau vs. The United States, 6 Cranch, 314 ;
Barry vs. Mercien, 5 How. 119 ; United States vs. Currey, 6 How.
113 ; Forsyth vs. United States, 9 How. 571. In other words, the
A military petition before us we think not to be within the letter or spirit of
Stacour£*e ?rants of appellate jurisdiction to the Supreme Court. It is
within the not in law or equity within the meaning of those terms, as used in
t?ieaiJudic°if the tllird ar^icle of tlie Constitution. Nor is a military commission
ary Act. a court within the meaning of the 14th section of the Judiciary Act
APPENDIX.
527
of 1 789. That act is denominated to be one to establish the judicial
courts of the United States, and the 14th section declares that all
the 'before-mentioned' courts of the United States shall have
power to issue writs of scire facias, habeas corpus, and all other
writs not specially provided for by statute, which may be necessary
for the exercise of their respective jurisdictions agreeably to the
principles and usages of law. The words in the section, ' the be
fore-mentioned ' courts, can only have reference to such courts as
were established in the preceding part of the act, and excludes the
idea that a court of military commission can be one of them.
Whatever may be the force of Vallandigham's protest, that he was
not triable by a court of military commission, it is certain that his
petition cannot be brought within the fourteenth section of the Act ;
and further that the court cannot, without disregarding its frequent
decisions and interpretations of the Constitution in respect to its No certlora-
judicial power, originate a writ of certiorari to review or pronounce {JJJFflJJ118
any opinion upon the proceedings of a military commission. It Supreme
was natural, before the sections of the third articles of the Constitu- Court toje-
tion had been fully considered in connection with the legislation of cee(jinjrg "Of
Congress, giving to the courts of the United States power to issue a military
writs of scire facias, habeas corpus, and all other Avrits not specially
provided for by statute, which might be necessary for the exercise
of their respective jurisdiction, that by some members of the profes
sion it should have been thought, and some of the early judges of
the Supreme Court also, that "the 14th section of the Act of 24th
September, 1789, gave to this court a right to originate processes of
habeas corpus ad subjicicndum and writs of certiorari, to review the
proceedings of the inferior courts as a matter of original jurisdic
tion, without being in any way restricted by the constitutional lim
itation that in all cases affecting embassadors, other public ministers
and consu-ls, and those in which a State shall be a party, the Su
preme Court shall have original jurisdiction.
This limitation has always been considered restrictive of any
other original jurisdiction. The rule of construction of the Con
stitution being, that, affirmative words in the Constitution declaring
in what cases the Supreme Court shall have original jurisdiction,
must be construed negatively as to all other cases. 1 Cranch, 137 ;
5 Peters, 284 ; 12 Peters, 637 ; 9 Wheaton ; 6 Wheaton, 264.
The nature and extent of the court's appellate jurisdiction and
its want of it to issue writs of habeas corpus ad subjiciendum, have
been fully discussed by this court at different times. We do not
think it necessary, however, to examine or cite many of them at
this time. We will annex a list to this opinion, distinguishing what
this court's action has been in cases brought to it by appeal, from
such applications as have been rejected, when it has been asked that
it would act upon the matter as one of original jurisdiction. In the
case Ex parte Milburn, 9 Peters, 704, Chief Justice Marshall said, as
the jurisdiction of the court is appellate, it must first be shown that it
has the power to award a habeas corpus. In Ex parte Kaine, 14 How
ard, the court denied the motion, saying that the court's jurisdiction
to award the writ was appellative, and that the case had not been so
presented to it, and for the same cause refused to issue a writ of
certiorari, which in the course of the argument was prayed for. In
Ex parte Metzgcr, 5 How. 176, it was determined that a writ of
certiorari could not be allowed to examine a commitment by a dis
trict judge, under the treaty between the United States and France,
528
APPENDIX.
SSion for the reason tliat the judge exercised a special authority, and thai
exercises no provision had been made for the revision of his judgment. So
special ^au- does a court of military commission exercise a special authority. In
>n y; the case before us, it was urged that the decision in Metzger's case
had been made upon the ground that the proceeding of the district
judge was not judicial in its character, but that the proceedings of
the military commission were so ; and, further, it was said that the
ruling in that case had been overruled by a majority of the judges
in Kaine's case. There is a misapprehension of the report of The
latter case; and as to the judicial character of the proceedings of
the military commission, we cite Avhat was said by the court iifthe
case of Ferreira. " The powers conferred by Congress upon the
district judge and the secretary are judicial in their nature, for
judgment and discretion must be exercised by both of them, but it
is not judicial in either case, in the sense in which the judicial
power is granted to the courts of the United States." 13 Howard,
48.
'N°r. C?H ^ ^e safd. tliat the autllority to be exercised by a military
commission is judicial in that sense. It involves discretion to exam
ine, to decide and sentence, but there is no original jurisdiction in the
Court6 action in such matters, and those acting in them under his author
ity, we refer to the opinions expressed by this court in the cases of
Martin vs. Mott, 1 2 Wheaton, pages 19, 28 to 35 inclusive ; and Dynes
vs. Hoover, 20 Howard, page 65, &c.
For the reasons given, our judgment is, that the writ of certio-
rari prayed for to revise and review the proceedings of the military
commission, by which Clement L. Vallandigham was tried, sen
tenced, and imprisoned, must be denied, and so do we order ac
cordingly."
APPENDIX. 529
THE CHEROKEE NATION v. THE STATE OF GEORGIA, 5 Peters, 1.
This case is thus stated by Nelson. J., in delivering the opinion of the
court in 6 Wallace, 73, 74 : —
A bill was filed in that case, and an injunction prayed for to prevent the
execution of certain acts of the legislature of Georgia within the territory of
the Cherokee nation of Indians, they claiming a right to file it in this court,
in the exercise of its original jurisdiction, as a foreign nation. The acts of
the legislature, if permitted to be carried into execution, would have sub
verted the tribal government of the Indians, and subjected them to the juris
diction of the State. The injunction was denied, on the ground that the
Cherokee nation could not be regarded as a foreign nation within the judi
ciary act, and that therefore they had no standing in court. But Chief Jus
tice Marshall, who delivered the opinion of the majority, very strongly
intimated that the . bill was untenable on another ground, namely, that it
involved simply a political question. He observed " that the part of the bill
which respects the land occupied by the Indians, and prays the aid of the
court to protect their possessions, may be more doubtful. The mere ques
tion of right might, perhaps, be decided by this court in a proper case with
proper parties. But the court is asked to do more than decide on the title.
The bill requires us to control the legislature of Georgia, and to restrain the
exertion of its physical force. The propriety of such, an interposition by
the court may be well questioned. It savors too much of the exercise of
political power to be within the province of the judicial department."
Several opinions were delivered in the case, a very elaborate one by Mr.
Justice Thompson, in which Judge Story concurred. They maintained that
the Cherokee natio-n was a foreign nation within the judiciary act, and com
petent to bring the suit, but agreed with the Chief Justice that all the mat
ters set up in the bill involved political questions, with the exception of the
right and title of the Indians to the possession of the lands which they occu
pied. Mr. Justice Thompson, referring to this branch of the case, ob
served, —
" For the purpose of guarding against any erroneous conclusions, it is
proper I should state that I do not claim for this court the exercise of juris
diction upon any matter properly falling under the denomination of political
power. Relief, to the full extent prayed for by the bill, may be beyond the
reach of this court. Much of the matters therein contained by way of com
plaint would seem to depend for relief upon the exercise of political power,
and as such appropriately devolving upon the executive and not the judicial
department of the government. This court can grant relief so far, only, as
the rights of persons or property are drawn in question, and have been im
pinged.'^
And, in another part of the opinion, he returns again to this question, and
is still more emphatic in disclaiming jurisdiction. He observes, " I cer
tainly do not claim, as belonging to the judiciary, the exercise of political
power. That belongs to another branch of the government. The protec
tion and improvement of many rights secured by treaties most certainly does
not belong to the judiciary. It is only wrhere the rights of persons and
property are involved, and when such rights can be presented under some
judicial form of proceedings, that courts of justice can interpose relief. This
court can have no right to pronounce an abstract opinion upon the constitu
tionality of a State law. Such law must be brought into actual or threat
ened operation upon rights properly falling under judicial cognizance, or a
67
530 APPENDIX.
remedy is not to be had here." " We have said," continues Judge Nelson,
" that Mr. Justice Story concurred in this opinion, and Mr. Justice John-
eon, who also delivered one, recognized the same distinctions." (5 Peters,
29, 30).
THE STATE OF RHODE ISLAND v. THE STATE OF MASSACHUSETTS,
12 Peters, 657.
(Distinction between political and judicial matters, &c. Courts have no
jurisdiction of political questions.)
This case involved a question of boundary between the two States. It
has been said that this was a political controversy between the parties. But
Mr. Justice Baldwin, who delivered the opinion of the court, declared that
the controversy, as developed in the pleadings, was as to the locality of a
point three miles south of the southernmost point of Charles River, and as
to the question whether a stake set up on Wrentham Plain in 1842 was the
true point from which to run an east and west line as the compact boun
dary between the two States. " In the first aspect of the case it depends
on a fact ; in the second, on the law of equity whether the agreement is void
or valid ; neither of which present a political controversy, but one of an or-
ordinary judicial nature, of frequent occurrence in suits between indi
viduals."
In another part of the opinion, speaking of the submission by sovereigns
or states of a controversy between them, he says, " From the time of such
submission, the question ceases to be a political one, to be decided by the
sic volo, sicjubeo, of political power."
The court (Nelson, J.), in commenting on this decision in the case of The
State of Georgia v. Stanton (6 Wallace, 73), expressly declare that " the
objections to the jurisdiction of the court in that case were, that the subject
matter of the bill involved sovereignty and jurisdiction, which were not
matters of property, but of political rights over the territory in question.
They are forcibly stated by the Chief Justice, who dissented from the opin
ion (12 Pet. 752, 754.) The very elaborate examination of the case by Mr.
Justice Baldwin was devoted to an answer and refutation of these objec
tions. He endeavored to show, and we think did show, that the question
was one of boundary, which of itself was not a political question, but one of
property appropriate for judicial cognizance, and that sovereignty and juris
diction were but incidental and dependent upon the main issue in the
case."
It will be observed that Chief Justice Taney denied the jurisdiction of the
court on the ground that the cause involved the determination of a political
question, and the majority of the court claimed jurisdiction on the ground
that the question in issue was not a political question ; all the judges, in
their opinions, declared, in effect, that if the question were political, the court
would have no jurisdiction over it. This case was between two States in
the Union, and not between the United States and a third party. It tends
to show that the judicial power cannot protect or enforce the mere political
jusisdiction of one State in the Union against another, although it may de
termine controversies or questions of property, involving the ascertainment
of boundary lines, or of any other facts which have been settled by political
authority, and in all its proceedings following and conforming to the de
cisions of the political departments on political questions.
APPENDIX. 531
UNITED STATES v. MORENO, 1 Wallace, 400.
The marginal note reads thus : " The cession of California to the United
States did not impair the rights of private property." These rights were con
secrated by the law of nations, and protected by the treaty of Guadalupe
Hidalgo. The act of March 3, 1851, to ascertain and settle private land
claims in the State of California, was passed to assure to the inhabitants of
the ceded territory the benefit of the rights thus secured to them. It recog
nizes both legal and equitable rights, and should be administered in a lib
eral spirit.
THE CIRCASSIAN, 2 Wallace, 150. (1864-5.)
" There is a distinction between simple and public blockades, which sup
ports this conclusion" (that the blockade of New Orleans was continuous,
and had not been interrupted). " A simple blockade may be established by
a naval officer, acting upon his own discretion, or under direction of supe
riors, without governmental notification ; while a public blockade is not only
established in fact, but is notified, by the government directing it, to other
governments. In the case of a simple blockade, the captors are bound to
prove its existence at the time of capture ; while in the case of a public
blockade, the claimants are held to proof of discontinuance in order to pro
tect themselves from the penalties of attempted violation.
" The blockade of the rebel ports was and is of the latter sort. It was le
gally established and regularly notified by the American government to the
neutral governments. Of such a blockade it was well observed by Sir Wil
liam Scott, ' It must be conceived to exist till the revocation of it is ac
tually notified.' The blockade of the rebel ports, therefore, must be pre
sumed to have continued until notice of discontinuance (The Betsey, Good-
hue master, I Robinson, 282 ; The Neptune, 1 id. 144). It is indeed the
duty of the belligerent blockade government to give prompt notice ; and if
it fails to do so, proof of discontinuance may be otherwise made, but sub
ject to just responsibility to other nations ; it must judge for itself when it
can dispense with blockade. It must decide when the object of blockade,
namely, prevention of commerce with enemies, can be attained by military
force, or, when the enemies are rebels, by military force and municipal law,
without the aid of a blockading force. The government of the United
States acted on these views. Upon advice of the capture of New Orleans,
it decided that the blockade of the port might be safely dispensed with, ex
cept as to contraband of war, from and after the 1st of June. The Presi
dent therefore, on the 12th of May, issued his proclamation to that effect,
and its terms were undoubtedly notified to neutral powers. This action of
the government must, under the circumstances of this case, be held to be
conclusive evidence that the blockade of New Orleans was not terminated
by military occupation on the 4th of May. New Orleans, therefore, was
under blockade when the Circassian was captured."
532
APPENDIX.
THE VENICE, 2 Wallace, 274. (64-5.)
The court say, that " while these transactions were in progress (April,
1862), the war was flagrant. The States of Louisiana and Mississippi
were wholly under rebel dominion, and all the people of each State were
enemies of the United States. The rule which declares that war makes all
the citizens or subjects of one belligerent enemies of the government, and
of all the citizens or subjects of the other, applies equally to civil and to in
ternational wars. (Prize Cases, 2 Black. 266 ; concurred inby dissenting par
ties, id. 687-688.) Either belligerent may modify or limit its operation as to
persons or territory of the other ; but in'the absence of such modification or
restriction judicial tribunals cannot discriminate in its application."
" Cooke was a British subject, but was identified with the people of
Louisiana by long voluntary residence, and by the relations of active busi
ness. (Prize Cases, 2 Black. 674.) Upon breaking out of the war, he might
have left the State, and withdrawn his means ; but he did not think fit to
do so. He remained more than a year, engaged in commercial transactions.
Like many others, he seemed to have thought that, as a neutral, he could
share the business of the enemies of the nation, and enjoy the profits, with
out incurring the responsibilities of an enemy. He was mistaken. He
chose his relations, and must abide by their results. The ship and cargo
were as liable to seizure as prize in his ownership as they would be in that
of any citizen of Louisiana, residing in New Orleans, and not actively en
gaged in hostilities against the Union."
_ After explaining the 'policy of the government to respect and enforce the
rights of persons' property wherever the national troops had re-established
order under national rule, and mentioning the proclamation of General But
ler as mere manifestation of the policy of government, and as not to be
interpreted by such rules as governed the case of " The Ships taken at
Genoa " (4 Robinson, 387), the court say, —
" Vessels and their cargoes belonging to citizens of New Orleans, or
neutrals residing there, and not affected by any attempts to run the block
ade, or by any act of hostility against the "United States, after the publica
tion of the proclamation, must be regarded as protected by its terms.
" It results from this reasoning that the Venice and her cargo, though
undoubtedly enemy's property at the time she was anchored in Lake Pont-
chartrain, cannot be regarded as remaining such after the 6th of May, for it
is not asserted that any breach of blockade was ever thought of by the
claimant, or that he was guilty of any act of hostility against the national
government."
MRS. ALEXANDER'S COTTON, 2 Wallace, 417. (1864-5.)
The Chief Justice delivered the opinion of the Court.
This controversy concerns seventy-two bales of cotton captured in May,
1864, on the plantation of Mrs. Elizabeth Alexander, on the Red River, by
a party sent from the Ouachita, a gunboat belonging to Admiral Porter's
expedition. The United States insist on the condemnation of the cotton as
lawful maritime prize. Mrs. Alexander claims it as her private property.
The facts may be briefly stated.
In the spring of 1864, a naval force of the United States, under Rear
Admiral Porter, co-operating with a military fore*1 ,n land, under Major
APPENDIX. 533
General Banks, proceeded up Red River towards Shreveport, in Louis
iana. The whole region at the time was in rebel occupation, and under
rebel rule.
Fort De Russy, about midway between the mouth of the river and
Alexandria, was captured by the Union troops about the middle of March.
The insurgent troops gradually retired until a considerable district of coun
try on Red River came under the control of the national forces. This
control, however, was of brief continuance. An unexpected reverse befell
the expedition. The army under General Banks was defeated, and was soon
after entirely withdrawn from the Red River country. The naval force,
under Admiral Porter, necessarily followed, and rebel rule and ascendency
were again complete and absolute. The military occupation by the Union
troops lasted rather less than eight weeks. Its duration was measured
by the time required for the advance and retreat of the army and navy.
The Parish of Avoyelles was a part of the district thus temporarily oc
cupied ; and the plantation of Mrs. Alexander was in this parish, and upon
the river. The seventy-two bales of cotton in controversy were raised on
the plantation, and were stored in a warehouse about a mile from the river
bank. A party from the Ouachita, under orders from the naval commander,
landed on the plantation about the 26th of March, and took possession of the
cotton. It was sent to Cairo, libelled as prize of war in the District Court
for the Southern District of Illinois, claimed by Mrs. Alexander, and, by
decree of the District Court, restored to her.
The United States now ask for the reversal of this decree, and the con
demnation of the property as maritime prize.
After the seizure of the cotton, Mrs. Alexander took the oath required by
the President's proclamation of amnesty. The evidence in relation to her
previous personal loyalty is somewhat conflicting. She had furnished mules
and slaves, involuntarily as alleged, to aid in the construction of the rebel
Fort De Russy.
She now remains in the rebel territory. Before the retreat of the Union
troops, elections are stated to have been held, under military auspices, for
delegates to a constitutional convention about to meet in New Orleans.
These facts present the question : Was this cotton lawful maritime prize,
subject to the prize jurisdiction of the courts of the United States ?
There can be no doubt, we think, that it was enemy's property. The
military occupation by the national military forces was too limited, too im
perfect, too brief, and too precarious to change the enemy relation created
for the country and its inhabitants by three years of continuous rebellion,
interrupted, at last, for a few weeks, but immediately renewed, and ever
since maintained. The Parish of Avoyelles, which included the cotton
plantation of Mrs. Alexander, included also Fort De Russy, constructed in
part by labor from the plantation. The rebels reoccupied the fort as soon as
it was evacuated by the Union troops, and have since kept possession.
It is said that, though remaining in rebel territory, Mrs. Alexander has no
personal sympathy with the rebel cause, and that her property therefore can
not be regarded as enemy property ; but this court cannot inquire into the
personal character and dispositions of individual inhabitants of enemy ter
ritory. We must be governed by the principle of public law, so often an
nounced from this bench as applicable alike to civil and international wars,
that all the people of each State or district in insurrection against the United
States must be regarded as enemies, until, by the action of the legislature
and the Executive, or otherwise, that relation is thoroughly and permanently
changed.
We attach no importance, under the circumstances, to the elections said
to have been held for delegates to the constitutional convention.
534
APPENDIX.
Being enemy's property, the cotton was liable to capture and confiscation
by the adverse party.* It is true that this rule, as to property on land, has
received very important qualifications from usage, from the reasonings of
enlightened publicists, and from judicial decisions. It may now be regarded
as substantially restricted " to special cases dictated by the necessary opera
tion of the war," f and as excluding, in general, " the seizure of the private
property of pacific persons for the sake of gain." J
The commanding general may determine in what special cases its more
stringent application is required by military emergencies ; while considera
tions of public policy and positive provisions of law, and the general spirit
of legislation, must indicate the cases in which its application maybe proper
ly denied to the property of non-combatant enemies.
In the case before us, the capture seems to have been justified by the
peculiar character of the property and by legislation. It is well known that
cotton has constituted the chief reliance of the rebels for means to purchase
the munitions of war in Europe. It is matter of history, that rather than
permit it to come into the possession of the national troops, the rebel gov
ernment has everywhere devoted it, however owned, to destruction. The
value of that destroyed at New Orleans, just before its capture, has been
estimated at eighty millions of dollars. It is in the record before us, that on
this very plantation of Mrs. Alexander, one year's crop was destroyed in ap
prehension of an advance of the Union forces. The rebels regard it as one
of their main sinews of war ; and no principle of equity or just policy re
quired, when the national occupation was itself precarious, that it should be
spared from capture and allowed to remain, in case of the withdrawal of the
Union troops, an element of strength to the rebellion.
And the capture was justified by legislation as well as by public policy.
The act of Congress to confiscate property used for insurrectionary purposes,
approved August 6, 1861, declares all property employed in aid of the rebel
lion, with consent of the owners, to be lawful subject of prize and capture
wherever found.§ And it further provided, by the act to suppress insurrec
tion, and for other purposes, approved July 17, 1862, || that the property of
persons who had aided the rebellion, and should not return to allegiance
after the President's warning, should be seized and confiscated. It is in
evidence that Mrs. Alexander was a rebel enemy at the time of the enact
ment of this act ; that she contributed to the erection of Fort De Hussy,
after the passage of the act of July, 1862, and so comes within the spirit, if
not within the letter, of the provisions of both.
If, in connection with these acts, the provisions of the Captured and
Abandoned Property Act of March 12, 1863,f be considered, it will be dif
ficult to conclude that the capture under consideration was not warranted by
law. This last-named act evidently contemplated captures by the naval
forces distinct from maritime prize ; for the secretary of the navy, by his
order of March 31, 1863, directed all officers and sailors to turn over to the
agents of the Treasury Department all property captured or seized in any in
surrectionary district, excepting lawful maritime prize.** Were this other-
\vise, the result would not be different, for Mrs. Alexander, being now a
resident in enemy territory, and in law an enemy, can have no standing in
any court of the United States so long as that relation shall exist. What
ever might have been the effect of the amnesty had she removed to a loyal
State after taking the oath, it can have none on her relation as enemy
voluntarily resumed by confirmed residence and interest.
* Prize Cases, 2 Black. 687. f 1 Kent, 92. J Id. 93.
§ 12 Stat. at Large, 319. || Id. 591. IF Id. 820.
** Report of the Secretary of the Treasury on the Finances, December 10, 1863, p. 438.
APPENDIX. 535
But this reasoning, while it supports the lawfulness of the capture, by no
means warrants the conclusion that the property captured was maritime
prize. We have carefully considered all the cases cited by the learned
counsel for the captors, and are satisfied that neither of them is an authority
for that conclusion. In no one of these cases does it appear that private
property on land was held to be maritime prize; and on the other hand, wre
have met with no case in which the capture of such private property was
held unlawful except that of Thorshaven.* In this case such a capture was
held unlawful, not because the property was private, but because it was pro
tected by the terms of a capitulation. The rule in the British^ Court of
Admiralty seems to have been that the court would take jurisdiction of the
capture, whether of public or private property, and condemn the former
for the benefit of the captors, under the prize acts of Parliament, but retain
the later till claimed, or condemn it to the crown, to be disposed of as justice
might require. But it is hardly necessary to go into the examination of these
English adjudications, as our own legislation supplies all needed guidance in
the decision of this case.
There is certainly no authority to condemn any property as prize for the
benefit of the captors, except under the law of the country in whose service
the capture is made ; and the whole authority found in our legislation is con
tained in the act for the better government of the navy, approved July 17,
1862. By the second section of the act,f it is provided that the proceeds of
all ships and vessels, and the goods taken on board of them, which shall be
adjudged good prize, shall be the sole property of the captors, or, in certain
cases, divided equally between the captors and the United States. By the
twentieth section, all provisions of previous acts inconsistent with this act
are repealed. This act excludes property on land from the category of prize
for the benefit of captors, and seems to be decisive of the case so far as the
claims of captors are concerned.
As a case of lawfully captured property, not for the benefit of captors, its
disposition is controlled by the laws relating to such property. By these
laws and the orders under them, all officers, military and naval, and all
soldiers and sailors, are strictly enjoined, under severe penalties, to turn over
any such property which may come to their possession to the agents of the
Treasury Department ; and these agents are required to sell all such property
to the best advantage, and pay the proceeds into the national treasury. Any
claimant of the property may, at any time within two years after the sup
pression of the rebellion, bring suit in the Court of Claims, and on proof of
ownership of the property, or of title to the proceeds, and that the claimant
has never given aid or comfort to the rebellion, have a decree for the pro
ceeds, deducting lawful charges. In this war, by this liberal and beneficent
legislation, a distinction is made between those whom the rule of interna
tional law classes as enemies. All who have in fact maintained a loyal ad
hesion to the Union are protected in their rights to captured as well as
abandoned property.
It seems that, in further pursuance of the same views, by an act of the
next session, Congress abolished maritime prize on inland waters, and re
quired captured vessels, and goods on board, as well as all other captured
property, to be turned over to the treasury agents, or to the proper officers
of the courts. This act became a law a few weeks after the capture now
under consideration, and does not apply to it. It is cited only in illustra
tion of the general policy of legislation to mitigate, as far as practicable, the
harshness of the rules of war, and preserve for loyal owners, obliged by
* Edwards, 107. t 12 Stat. at Large, 606.
536 APPENDIX.
circumstances to remain in rebel States, all property, or its proceeds, to which
they have just claims, and which may in any way come to the possession of
the government or its officers.
We think it clear that the cotton in controversy was not maritime prize,
but should have been turned over to the agents of the Treasury Department,
to be disposed of under the act of March 12, 1863. Not having been so
turned over, but having been sold by order of the District Court, its pro
ceeds should now be paid into the treasury of the United States, in order
that the claimant, when the rebellion is suppressed, or she has been able to
leave the reoel region, may have the opportunity to bring her suit in the
Court of Claims, and, on making the proof required by the act, have the
proper decree.
The decree of the District Court is reversed.
Ex PARTE MILLIGAN, 4 Wallace S. C. Rep. 106. (Dec. Term, 1866.)
At the close of the last term the Chief Justice announced the order of
the court in this and in two other similar cases (those of Bowles and Hor
sey) as follows : —
1. That, on the facts stated in said petition and exhibits, a writ of
habeas corpus ought to be issued, according to the prayer of the said
petitioner.
2. That, on the facts stated in the said petition and exhibits, the said
Milligan ought to be discharged from custody, as in said petition is prayed,
according to the act of Congress passed March 3, 1863, entitled " An
Act relating to habeas corpus and regulating judicial proceedings in certain
cases."
3. That, on the facts stated in said petition and exhibits, the military
commission mentioned therein had no jurisdiction legally to try and sentence
said Milligan in the manner and form as in said petition and exhibits are
stated.
At the opening of the present term, opinions were delivered.
Mr. Justice Davis delivered the opinion of the court.
On the 10th day of May, 1865, Lambdin P. Milligan presented a petition
to the Circuit Court of the United States for the District of Indiana, to be
discharged from an alleged unlawful imprisonment. The case made by the
petition is this : Milligan is a citizen of the United States ; has lived for
twenty years in Indiana ; and, at the time of the grievances complained of,
was not, and never had been, in the military or naval service of the United
States. On the 5th day of October, 1864. while at home, he was arrested
by order of General Alvin P. Hovey, commanding the military district of
Indiana, and has ever since been kept in close confinement.
On the 21st day of October, 1864, he was brought before a military com
mission, convened at Indianapolis, by order of General Hovey, tried on
certain charges and specfications, found guilty, and sentenced to be hanged ;
arid the sentence ordered to be executed on Friday, the 19th day of
May, 1865.
On the 2d day of January, 1865, after the proceedings of the military
commission were at an end^ the Circuit Court of the United States for
Indiana met at Indianapolis and impanelled a grand jury, who were
charged to inquire whether the laws of the United States had been violated j
APPENDIX. 537
and, if so, to make presentments. The court adjourned on the 27th day of
January, having, prior thereto, discharged from further service the grand
jury, who did not find any bill of indictment or make any presentment
against Milligan for any offence whatever ; and, in fact, since his imprison
ment, no bill of indictment has been found or presentment made against
him by any grand jury of the United States.
Milligan insists that said military commission had no jurisdiction to try
him upon the charges preferred, or upon any charges whatever ; because he
was a citizen of the United States and the State of Indiana, and had not
been, since the commencement of the late rebellion, a resident of any of
the States whose citizens were arrayed against the government^ and that
the right of trial by jury was guaranteed to him by the Constitution of the
United States.
The prayer of the petition was, that under the act of Congress, approved
March 3, 1863, entitled " An Act relating to habeas corpus, and regulating
judicial proceedings in certain cases," he may be brought before the court,
and either turned over to the proper civil tribunal to be proceeded against
according to the law of the land, or discharged from custody altogether.
With the petition were filed the order for the commission, the charges
and specifications, the findings of the court, with the order of the War
Department reciting that the sentence was approved by the President of the
United States, and directing that it be carried into execution without delay.
The petition was presented and filed in open court by the counsel for Mil
ligan ; at the same time the District Attorney of the United ^ States for
Indiana appeared, and, by the agreement of counsel, the application was
submitted to the* court. The opinions of the judges of the Circuit Court
were opposed on three questions, which are certified to the Supreme Court : —
1. "On the facts stated in said petition and exhibits, ought a writ of
habeas corpus to be issued ? "
2. " On the facts stated in said petition and exhibits, ought the said
Lambdin P. Milligan to be discharged from custody, as in said petition
prayed ? "
3. "Whether, upon the facts stated in said petition and exhibits, the
military commission mentioned therein had jurisdiction legally to try ^ and
sentence said Milligan in manner and form as in said petition and exhibits
are stated ? "
The importance of the main question presented by this record cannot be
overstated ; for it involves the very framework of the government and the
fundamental principles of American liberty.
During the late wicked rebellion, the temper of the times did not allow
that calmness in deliberation and discussion so necessary to a correct con
clusion of a purely judicial question. Then considerations of safety were
mingled with the exercise of power, and feelings and interests prevailed
which are happily terminated. Now that the public safety is assured, this
question, as well as all others, can be discussed and decided without passion
or the admixture of any element not required to form a legal judgment. We
approach the investigation of this case, fully sensible of the magnitude of
the inquiry and the necessity of full and cautious deliberation.
But we are ,met with a 'preliminary objection. It is insisted that the
Circuit Court of Indiana had no authority to certify these questions ; and
that we are without jurisdiction to hear and determine them.
The sixth section of the " Act to amend the judicial system of the United
States," approved April 29, 1802, declares "'that whenever any question
shall occur before a Circuit Court upon which the opinions of the judges
shall be opposed, the point upon which the disagreement shall happen shall,
68
538 APPENDIX.
during the .same term, upon the request of either party or their counsel, be
stated under the direction of the judges, and certified under the seal of the
court to the Supreme Court at their next session to be held thereafter, and
shall by the said court be finally decided : And the decision of the Supreme
Court and their order in the premises shall be remitted to the Circuit Court,
and be there entered of record, and shall have effect according to the nature
of the said judgment and order : Provided, That nothing herein contained
shall prevent the cause from proceeding, if, in the opinion of the court,
further proceedings can be had without prejudice to the merits."
It is under this provision of law, that a Circuit Court has authority to
certify any question to the Supreme Court for adjudication. The inquiry,
therefore, is, whether the case of Milligan is brought within its terms.
It was admitted at the bar that the Circuit Court had jurisdiction to
entertain the application for the writ of habeas corpus, and to hear and
determine it ; and it could not be denied, for the power is expressly given
in the 14th section of the Judiciary Act of 1789, as well as in the later act
of 1863. Chief Justice Marshall, in Bollman's case,* construed this branch
of the Judiciary Act to authorize the courts as well as the judges to issue
the writ for the purpose of inquiring into the cause of the commitment ; and
this construction has never been departed from. But it is maintained with
earnestness and ability, that a certificate of division of opinion can occur
only in a cause , and that the proceeding by a party moving for a writ of
habeas corpus does not become a cause until after the writ has been issued
and a return made.
Independently of the provisions of the act of Congress of March 3, 1863,
relating to habeas corpus, on which the petitioner bases his claim for relief,
and which we will presently consider, can this position be sustained ?
It is true, that it is usual for a court, on application for a writ of habeas
corpus, to issue the writ, and, on the return, to dispose of the case ; but the
court can elect to waive the issuing of the writ, and consider whether, upon
the facts presented in the petition, the prisoner, if brought before it, could
be discharged. One of the very points on which the case of Tobias Wat-
kins, reported in 3 Peters,f turned, was, whether, if the writ was issued,
the petitioner would be remanded upon the case which he had made.
The Chief Justice, in delivering the opinion of the court, said, " The
cause of imprisonment is shown as fully by the petitioner as it could appear
on the return of the writ ; consequently the writ ought not to be awarded
if the court is satisfied that the prisoner would be remanded to prison."
The judges of the Circuit Court of Indiana were, therefore, warranted by
an express decision of this court in refusing the writ, if satisfied that the
prisoner on his own showing was rightfully detained.
But it is contended, if they differed about the lawfulness of the imprison
ment, and could render no judgment, the prisoner is remediless, and cannot
have the disputed question certified under the act of 1802. His remedy is
complete by writ of error or appeal, if the court renders a final judgment
refusing to discharge him ; but if he should be so unfortunate as to be
placed in the predicament of having the court divided on the question
whether he should live or die, he is hopeless and without remedy. He
wishes the vital question settled, not by a single judge at his chambers, but
by the highest tribunal known to the Constitution ; and yet the privilege is
denied him ; because the Circuit Court consists of two judges, instead of one.
Such a result was not in the contemplation of the legislature of 1802; and
the language used by it cannot be construed to mean any such thing. The
* 4 Crunch, 75. t Page 193.
APPENDIX. 539
clause under consideration was introduced to further the ends of justice, by
obtaining a speedy settlement of important questions where the judges
might be opposed in opinion.
The act of 1802 so changed the judicial system that the Circuit Court,
instead of three, was composed of two judges ; and, without this provision
or a kindred one, if the judges differed, the difference would remain, the
question be unsettled, and justice denied. The decisions of this court upon
the provisions of this section have been numerous. In United States v.
Daniel,* the court, in holding that a division of the judges on a motion for
a new trial could not be certified, say, that "the question must be one
which arises in a cause depending before the court relative to a proceeding
belonging to the cause." Testing Milligan's case by this rule of law, is it
not apparent that it is rightfully here, and that we are compelled to answer
the questions on which the judges below were opposed in opinion ? If, in
the sense of the law, the proceeding for the writ of habeas corpus was the
" cause " of the party applying for it, then it is evident that the " cause "
was pending before the court, and that the questions certified^ arose out of
it, belonged to it, and were matters of right, and not of discretion.
But it is argued, that the proceeding does not ripen into a cause until
there are two parties to it.
This we deny. It was the cause of Milligan when the petition was pre
sented to the Circuit Court. It would have been the cause of both parties,
if the court had issued the writ and brought those who held Milligan in
custody before it. Webster defines the word " cause " thus : " A suit or
action in court ; any legal process which a party institutes to obtain his
demand, or by which he seeks his right, or supposed right " — and he says,
"this is a legal, scriptural, and popular use of the word, coinciding nearly
with case, from cado, and action, from ago, to urge and drive."
In any legal sense, action, suit, and cause are convertible terms. Mil
ligan supposed he had a right to test the validity of his trial and sentence ;
and the proceeding which he set in operation for that purpose was his
" cause " or " suit." It was the only one by which he could recover his
liberty. He was powerless to do more ; he could neither instruct the
judges nor control their action, and should not suffer, because, without fault
of his, they were unable to render a judgment. But the true meaning to
the term " suit " has been given by this court. One of the questions in
Weston v. City Council 'of Charleston t was, whether a writ of prohibition
was a suit ; and Chief Justice Marshall says, " The term is certainly a
comprehensive one, and is understood to apply to any proceeding in a court
of justice by which an individual pursues that remedy which the law affords
him." Certainly Milligan pursued the only remedy which the law afforded
him.
Again, in Cohens v. Virginia, J he says, "In law language a suit is the
prosecution of some demand in a court of justice." Also, " To commence a
suit is to demand something by the institution of process in a court of jus
tice ; and to prosecute the suit is to continue that demand." When Milli
gan demanded his release by the proceeding relating to habeas corpus, he
commenced a suit ; and he has since prosecuted it in all the ways known to
the law. One of the questions in Holmes v. Jennison et al. § was, whether,
under the twenty-fifth section of the Judiciary Act, a proceeding for a writ
of habeas corpus was a " suit." Chief Justice Taney held, that, " if a party
is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal
remedy. It is his suit in court to recover his liberty." There was much
* 6 Wheaton, 542. f 2 Peters, 449. J 6 Wheaton, 204. § 14 Peters, 540.
540 APPENDIX.
diversity of opinion on another ground of jurisdiction ; but that, in the sense
of the twenty-fifth section of the Judiciary Act, the proceeding by habeas
corpus was a suit, was not controverted by any except Baldwin, Justice,
and he thought that " suit " and " cause," as used in the section, mean the
same thing.
The court do not say, that a return must be made, and the parties appear
and begin to try the case before it is a suit. When the petition is filed and
the writ prayed for, it is a suit — the suit of the party making the applica
tion. If it is a suit under the twenty-fifth section of the Judiciary Act when
the proceedings are begun, it is, by all the analogies of the law, equally a
suit under the sixth section of the act of 1802.
But it is argued, that there must be two parties to the suit, because the
point is to be stated upon the request of " either party or their counsel."
Such a literal and technical construction would defeat the very purpose
the legislature had in view, which was to enable any party to bring the case
here, when the point in controversy was a matter of right, and not of dis
cretion ; and the words " either party," in order to prevent a failure of jus
tice, must be construed as words of enlargement, and not of restriction.
Although this case is here ex parte, it was not considered by the court below
without notice having been given to the party supposed to have an interest
in the detention of the prisoner. The statements of the record show that
this is not only a fair, but conclusive inference. When the counsel for Mil-
ligan presented to the court the petition for the writ of habeas corpus, Mr.
Hanna, the District Attorney for Indiana, also appeared ; and, by agreement,
the application was submitted to the court, who took the case under advise
ment, and on the next day announced their inability to agree, and made the
certificate. It is clear that Mr. Hanna did not represent the petitioner, and
why is his appearance entered ? It admits of no other solution than this,
— that he was informed of the application, and appeared on behalf of the
government to contest it. The government was the prosecutor of Milligan,
who claimed that his imprisonment was illegal, and sought, in the only way
he could, to recover his liberty. The case was a grave one ; and the court,
unquestionably, directed that the law officer of the government should be
informed of it. He very properly appeared, and, as the facts were uncon-
troverted and the difficulty was in the application of the law, there was no
useful purpose to be obtained in issuing the writ. The cause was, there
fore, submitted to the court for their consideration and determination.
But Milligan claimed his discharge from custody by virtue of the act of
Congress "relating to habeas corpus, and regulating judicial proceedings in
certain cases," approved March 3, 1863. Did that act confer jurisdiction on
the Circuit Court of Indiana to hear this case ?
In interpreting the law, the motives which must have operated with the
legislature in passing it are proper to be considered. This law was passed
in a time of great national peril, when our heritage of free government was
in danger. An armed rebellion against the national authority, of greater
proportions than history affords an example of, was raging ; and the public
safety required that the privilege of the writ of habeas corpus should be sus
pended. The President had practically suspended it, and detained suspect
ed persons in custody without trial ; but his authority to do this was ques
tioned ; it was claimed that Congress alone could exercise this power, and that
the legislature, and not the President, should judge of the political consid
erations on which the right to suspend it rested. The privilege of this great
writ had never before been withheld from the citizen ; and as the exigence
of the times demanded immediate action, it was of the highest importance
that the lawfulness of the suspension should be fully established. It was
APPENDIX. 541
under these circumstances, which were such as to arrest the attention of the
country, that this law was passed. The President was authorized by it to
suspend the privilege of the writ of habeas corpus, whenever, in his judg
ment, the public safety required ; and he did, by proclamation, bearing date
the 15th of September, 1863, reciting, among other things, the authority of
this statute, suspend it. The suspension of the writ does not authorize the
arrest of any one, but simply denies to one arrested the privilege of this writ
in order to obtain his liberty.
It is proper, therefore, to inquire under what circumstances the courts
could rightfully refuse to grant this writ, and when the citizen was at liber
ty to invoke its aid.
The second and third sections of the law are explicit on these points. The
language used is plain and direct, and the meaning of the Congress cannot
be mistaken. The public safety demanded, if the President thought proper
to arrest a suspected person, that he should not be required to give the cause
of his detention on return to a writ of habeas corpus. But it was not con
templated that such person should be detained in custody beyond a certain
fixed period, unless certain judicial proceedings, known to the common law,
were commenced against him. The Secretaries of State and War were direct
ed to furnish to the judges of the courts of the United States a list of the
names of all parties, not prisoners of war, resident in their respective juisdic-
tions, who then were or afterwards should be held in custody by the author
ity of the President, and who were citizens of States in which the adminis
tration of the laws in the Federal tribunals was unimpaired. After the list
was furnished, if a grand jury of the district convened and adjourned, and
did not indict or present one of the persons thus named, he was entitled to
his discharge ; and it was the duty of the judge of the court to order him
brought before him to be discharged, if he desired it. The refusal or omis
sion to furnish the list could not operate to the injury of any one who was
not indicted or presented by the grand jury ; for, if twenty days had elapsed
from the time of his arrest and the termination of the session of the grand
jury, he was equally entitled to his discharge as if the list were furnished ;
and any credible person, on petition verified by affidavit, could obtain the
judge's order for that purpose.
Milligan, in his application to be released from imprisonment, averred
the existence of every fact necessary, under the terms of this law, to give
the Circuit Court of Indiana jurisdiction. If he was detained in custody by
the order of the President, otherwise than as a prisoner of war ; if he was a
citizen of Indiana, and had never been in the military or naval service, and
the grand jury of the district had met, after he had been arrested, for a
period of twenty days, and adjourned without taking any proceedings
against him, then the court had the right to entertain his petition and de
termine the lawfulness of his imprisonment. Because the word " court " is
not found in the body of the second section, it was argued at the bar, that
the application should have been made to a judge of the court, and not to
the court itself ; but this is not so, for power is expressly conferred, in the
last proviso of the section, on the court equally with a judge of it, to dis
charge from imprisonment. It was the manifest design of Congress to
secure a certain remedy by which any one, deprived of liberty, could obtain
it, if there was a judicial failure to find cause of offence against him. Courts
are not always in session, and can adjourn on the discharge of the grand
jury, and before those who are in confinement could take proper steps to
procure their liberation. To provide for this contingency, authority was
given to the judges, out of court, to grant relief to any party who could
show that, under the law, he should be no longer restrained of his liberty.
542 APPENDIX.
It was insisted that Milligan's case was defective, because it did not state
that the list was furnished to the judges; and, therefore, it was impossible
to say under which section of the act it was presented.
It is not easy to see how this omission could affect the question of juris
diction. Milligan could not know that the list was furnished, unless the
judges volunteered to tell him ; for the law did not require that any record
should be made of it, or anybody but the judges informed of it. Why aver
the fact, when the truth of the matter was apparent to the court without an
averment ? How can Milligan be harmed by the absence of the averment,
when he states that he was under arrest for more than sixty days before the
court and grand jury, which should have considered his case, met at Indian
apolis ? It is apparent, therefore, that under the Habeas Corpus Act of 1863
the Circuit Court of Indiana had complete jurisdiction to adjudicate upon
this case, and if the judges could not agree on questions vital to the prog
ress of the cause, they had the authority (as we have shown in a previous
part of this opinion), and it was their duty, to certify those questions of dis
agreement to this court for final decision. It was argued that a final decis
ion on the questions presented ought not to be made, because the parties
who were directly concerned in the arrest and detention of Milligan were
not before the court ; and their rights might be prejudiced by the answer
which should be given to those questions. But this court cannot know
what return will be made to the writ of habeas corpus when issued ; and it
is very clear that no one is concluded upon any question that may be
raised to that return. In the sense of the law of 1802, which authorized
a certificate of division, a final decision means final upon the points certified ;
final upon the court below, so that it is estopped from any adverse rul
ing in all the subsequent proceedings of the cause.
But it is said that this case is ended, as the presumption is, that Mil
ligan was hanged in pursuance of the order of the President.
Although we have no judicial information on the subject, yet the infer
ence is that he is alive ; for otherwise learned counsel would not appear
for him and urge this court to decide his case. It can never be, in this
country of written Constitution and laws, with a judicial department to
interpret them, that any chief magistrate would be so far forgetful of his
duty, as to order the execution of a man who denied the jurisdiction that
tried and convicted him, after his case was before Federal judges with
power to decide it, who, being unable to agree on the grave questions in
volved, had, according to known law, sent it to the Supreme Court of the
United States for decision. But even the suggestion is injurious to the
Executive, and we dismiss it from further consideration. There is, there
fore, nothing to hinder this court from an investigation of the merits of this
controversy.
The controlling question in the case is this : Upon the facts stated in
Milligan's petition, and the exhibits filed, had the military commission
mentioned in it jurisdiction, legally, to try and sentence him ? Milligan,
not a resident of one of the rebellious States, or a prisoner of war, but a
citizen of Indiana for twenty years past, and never in the military or naval
service, is, while at his home, arrested by the military power of the United
States, imprisoned, and, on certain criminal charges preferred against him,
tried, convicted, and sentenced to be hanged by a military commission, or
ganized under the direction of the military commander of the military dis
trict of Indiana. Had this tribunal the legal power and authority to try
and punish this man ?
No graver question was ever considered by this court, nor one which
more nearly concerns the rights of the whole people ; for it is the birth-
APPENDIX. 543
right of every American citizen, when charged with crime, to be tried and
punished according to law. The power of punishment is alone through the
means which the laws have provided for that purpose, and if they are inef
fectual, there is an immunity from punishmeut, no matter how great an
offender the individual may be, or how much his crimes may have shocked
the sense of justice of the country, or endangered its safety. By the pro
tection of the law human rights are secured ; withdraw that protection and
they are at the mercy of wicked rulers, or the clamor of an excited people.
If there was law to justify this military trial, it is not our province to inter
fere : if there was not, it is our duty to declare the nullity of the whole pro
ceedings. The decision of this question does not depend on argument or
judicial precedents, numerous and highly illustrative as they are. These
precedents inform us of the extent of the struggle to preserve liberty and to
relieve those in civil life from military trials. The founders of our govern
ment were familiar with the history of that struggle, and secured in a
written Constitution every right which the people had wrested from power
during a contest of ages. By that Constitution and the laws authorized by
it this question must be determined. The provisions of that instrument
on the administration of criminal justice are too plain and direct to leave
room for misconstruction or doubt of their true meaning. Those applicable
to this case are found in that clause of the original Constitution which says,
that " the trial of all crimes, except in case of impeachment, shall be by
jury ; " and in the fourth, fifth, and sixth articles of the amendments. The
fourth proclaims the right to be secure in person and effects against unrea
sonable search and seizure, and directs that a judicial warrant shall not
issue " without proof of probable cause supported by oath or affirmation."
The fifth declares that " no person shall be held to answer for a capital or
otherwise infamous crime, unless on presentment by a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger, nor be deprived of life, liberty, or
property without due process of law." And the sixth guarantees the right
of trial by jury, in such manner and with such regulations that, with upright
judges, impartial juries, and an able bar, the innocent will be saved and the
guilty punished. It is in these words : " In all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be in
formed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses
in his favor, and to have the assistance of counsel for his defence." These
securities for personal liberty, thus embodied, were such as wisdom and
experience had demonstrated to be necessary for the protection of those
accused of crime. And so strong was the sense of the country of their
importance, and so jealous were the people that these rights, highly prized,
might be denied them by implication, that when the original Constitution
was proposed for adoption it encountered severe opposition, and but for the
belief that it would be so amended as to embrace them, it would never
have been ratified.
Time has proven the discernment of our ancestors ; for even these pro
visions, expressed in such plain English words that it would seem the
ingenuity of man could not evade them, are now, after the lapse of more
than seventy years, sought to be avoided. Those great and good men fore
saw that troublous times would arise, when rulers and people would become
restive under restraint, and seek by sharp and decisive measures to accom
plish ends deemed just and proper ; and that the principles of constitu-
544 APPENDIX.
tional liberty would be in peril, unless established by irrepealable law. The
history of the world had taught them that what was done in the past might
be attempted in the future. The Constitution of the United States is a law
for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circum
stances. No doctrine, involving more pernicious consequences, was ever
invented by the wit of man, than that any of its provisions can be suspend
ed during any of the great exigencies of government. Such a doctrine
leads directly to anarchy or despotism, but the theory of necessity on which
it is based is false ; for the government, within the Constitution, has all the
powers granted to it which are necessary to preserve its existence ; as has
been happily proved by the result of the great effort to throw off its just
authority.
Have any of the rights guaranteed by the Constitution been violated in
the case of Milligan ? and if so, what are they ?
Every trial involves the exercise of judicial power; and from what source
did the military commission that tried him derive their authority ? Cer
tainly no part of the judicial power of the country was conferred on them ;
because the Constitution expressly vests it " in one Supreme Court and such
inferior courts as the Congress may from time to time ordain and estab
lish ; " and it is not pretended that the commission was a court ordained and
established by Congress. They cannot justify on the mandate of the Presi
dent ; because he is controlled by law, and has his appropriate sphere of
duty, which is to execute, not to make, the laws ; and there is " no unwrit
ten criminal code to which resort can be had as a source of jurisdiction."
But it is said that the jurisdiction is complete under the " laws and usages
of war."
It can serve no useful purpose to inquire what those laws and usages are,
whence they originated, where found, and on whom they operate ; they can
never be applied to citizens in States which have upheld the authority of
the government, and where the courts are open and their process unob
structed. This court has judicial knowledge that in Indiana the Federal
authority was always unopposed, and its courts always open to hear
criminal accusations and redress grievances ; and no usage of war could
sanction a military trial there, for any offence whatever, of a citizen in
civil life, in no wise connected with the military service. Congress could
grant no such power ; and to the honor of our national legislature be it
said, it has never been provoked by the state of the country even to at
tempt its exercise. One of the plainest constitutional provisions was,
therefore, infringed when Milligan was tried by a court not ordained and
established by Congress, and not composed of judges appointed during
good behavior.
Why was he not delivered to the Circuit Court of Indiana, to be pro
ceeded against according to law ? No reason of necessity could be urged
against it ; because Congress had declared penalties against the offences
charged, provided for their pnnishment, and directed that court to hear
and determine them. And soon after this military tribunal was ended,
the Circuit Court met, peacefully transacted its business, and adjourned.
It needed no bayonets to protect it, and required no military aid to execute
its judgments. It was held in a State eminently distinguished for pat
riotism, by judges commissioned during the rebellion, who were provided
with juries upright, intelligent, and selected by a marshal appointed by
the President. The government had no right to conclude that Milligan, if
guilty, would not receive in that court merited punishment ; for its records
disclose that it was constantly engaged in the trial of similar offences, and
APPENDIX. 545
was never interrupted in its administration of criminal justice. If it was
dangerous, in the distracted condition of affairs, to leave Milligan unre
strained of his liberty, because he "conspired against the government,
afforded aid and comfort to rebels, and incited the people to insurrection,"
the law said, Arrest him, confine him closely, render him powerless to do
further mischief, and then present his case to the grand jury of the dis
trict, with proofs of his guilt, and, if indicted, try him according to the
course of the common law. If this had been done, the Constitution would
have been vindicated, the law of 1863 enforced, and the securities for per
sonal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was denied a
trial by jury. The great minds of the country have differed on the correct
interpretation to be given to various provisions of the Federal Constitution ;
and judicial decision has been often invoked to settle their true meaning;
but until recently no one ever doubted that the right of trial by jury was
fortified in the organic law against the power of attack. It is now assailed ;
but if ideas can be expressed in words, and language has any meaning, this
right — one of the most valuable in a free country — is preserved to every
one accused of crime, who is not attached to the army or navy, or militia
in actual service. The sixth amendment affirms that " in all criminal pros
ecutions the accused shall enjoy the right to a speedy and public trial by an
impartial jury " — language broad enough to embrace all persons and
cases ; but the fifth, recognizing the necessity of an indictment or present
ment before any one can be held to answer for high crimes, " excepts cases
arising in ihs land or naval forces, or in the militia when in actual service,
in time of war or public danger ; " and the framers of the Constitution
doubtless meant to limit the right of trial by jury, in the sixth amendment,
to those persons who were subject to indictment or presentment in the
fifth.
The discipline necessary to the efficiency of the army and navy required
other and swifter modes of trial than are furnished by the common law
courts ; and in pursuance of the power conferred by the Constitution, Con
gress has declared the kinds of trial, and the manner in which they shall
be ^conducted, for offences committed while the party is in the military or
naval service. Every one connected with these branches of the public ser
vice is amenable to the jurisdiction which Congress has created for their
government, and while thus serving, surrenders his right to be tried by the
civil courts. All other persons, citizens of States where the courts are
open, if charged with crime, are guaranteed the inestimable privilege of trial
by jury. This privilege is a vital principle, underlying the whole adminis
tration of criminal justice; it is not held by sufferance, and cannot be frit
tered away on any plea of state or political necessity. When peace prevails,
and the authority of the government is undisputed, there is no difficulty of
preserving the safeguards of liberty ; for the ordinary modes of trial are
never neglected, and no one wishes it otherwise ; but if society is disturbed
by civil commotion — if the passions of men are arc-used and the restraints
of law weakened, if not disregarded — these safeguards need, and should
receive, the watchful care of those intrusted with the guardianship of the
Constitution and laws. In no other way can we transmit to posterity un
impaired the blessings of liberty, consecrated by the sacrifices of the revo
lution.
It is claimed that martial law covers with its broad mantle the proceedings
of this military commission. The proposition is this : that in a time of war
the commander of an armed force (if in his opinion the exigencies of the
country demand it, and. of which he is to judge) has the power, within the
69
546 APPENDIX.
lines of his military district, to suspend all civil rights and their remedies,
and subject citizens as well as soldiers to the rule of his will ; and in the
exercise of his lawful authority cannot be restrained except by his superior
officer or the President of the United States.
If this position is sound to the extent claimed, then, when war exists,
foreign or domestic, and the country is subdivided into military depart
ments for mere convenience, the commander of one of them can, if he
chooses, within his limits, on the plea of necessity, with the approval of the
Executive, substitute military force for and to the exclusion of the laws,
and punish all persons, as he thinks right and proper, without fixed or cer
tain rules.
The statement of this proposition shows its importance ; for, if true,
republican government is a failure, and there is an end of liberty regulated
by law. Martial law, established on such a basis, destroys every guarantee
of the Constitution, and effectually renders the " military independent of
and superior to the civil power " — the attempPto do which by the King of
Great Britain was deemed by our fathers such an offence, that they assigned
it to the world as one of the causes which impelled them to declare their
independence. Civil liberty and this kind of martial law cannot endure
together ; the antagonism is irreconcilable, and in the conflict one or the
other must perish.
This nation, as experience has proved, cannot always remain at peace,
and has no right to expect that it will always have wise and humane rulers,
sincerely attached to the principles of the Constitution. Wicked men, am
bitious of power, with hatred of liberty and contempt of law, may fill the
place once occupied by Washington and Lincoln ; and if this right is con
ceded, and the calamities of war again befall us, the dangers to human
liberty are frightful to contemplate. If our fathers had failed to provide for
just such a contingency, they would have been false to the trust reposed
in them. They knew — the history of the world told them — the nation
they were founding, be its existence short or long, would be involved in
war; how often, or how long continued, human foresight could not tell;
and that unlimited power, wherever lodged at such a time, was especially
hazardous to freemen. For this and other equally weighty reasons they
secured the inheritance they had fought to maintain, by incorporating in a
written Constitution the safeguards which time had proved were essential to
its preservation. Not one of these safeguards can the President, or Con
gress, or the Judiciary disturb, except the one concerning the writ of habeas
corpus.
It is essential to the safety of every government, that in a great crisis
like the one we have just passed through, there should be a power some
where of suspending the writ of habeas corpus. In every war there are
men, of previously good character, wicked enough to counsel their fellow-
citizens to resist the measures deemed necessary by a good government to
sustain its just authority and overthrow its enemies ; and their influence
may lead to dangerous combinations. In the emergency of the times, an
immediate public investigation according to law may not be possible ; and
yet the peril to the country may be too imminent to suffer such persons to
go at large. Unquestionably there is then an exigency which demands that
the government, if it should see fit, in the exercise of a proper discretion, to
make arrests, should not be required to produce the persons arrested in
answer to a writ of habeas corpus. The Constitution goes no farther. It
does not say, after a writ of habeas corpus is denied a citizen, that he shall
be tried otherwise than by the course of the common law ; if it had intended
this result, it was easy by the use of direct words to have accomplished it.
APPENDIX. 547
The illustrious men who framed that instrument were guarding the founda
tions of civil liberty against the abuses of unlimited power ; they were full
of wisdom, and the lessons of history informed them that a trial by an estab
lished court, assisted by an impartial jury, was the only sure way of protect
ing the citizen against oppression and wrong. Knowing this, they limited
the suspension to one great right, and left the rest to remain forever invio
lable. But it is insisted that the safety of the country in time of war
demands that this broad claim for martial law shall be sustained. If this
were true, it could be well said that a country preserved at the sacrifice of
all the cardinal principles of liberty is not worth the cost of preservation.
Happily, it is not so.
It will be borne in mind that this is not a question of the power to pro
claim martial law, when war exists in a community and the courts and civil
authorities are overthrown. Nor is it a question what rule a military com
mander, at the head of his army, can impose on States in rebellion to
cripple their resources and quell the insurrection. The jurisdiction claimed
is much more extensive. The necessities of the service, during the late
rebellion, required that the loyal States should be placed within the limits
of certain military districts, and commanders appointed in them ; and it is
urged that this, in a military sense, constituted them the theatre of military
operations ; and as in this case Indiana had been, and was again threatened
with invasion by the enemy, the occasion was furnished to establish martial
law. The conclusion does not follow7 from the premises. If armies were col
lected in Indiana, they were to be employed in another locality, where the
laws were obstructed and the national authority disputed. On her soil there
was no hostile foot ; if once invaded, that invasion was at an end, and with
it all pretext for martial law. Martial law cannot arise from a threatened
invasion. The necessity must be actual and present ; the invasion real,
such as effectually closes the courts and deposes the civil administration.
It is difficult to see how the safety of the country required martial law in
Indiana. If any of her citizens were plotting treason, the power of arrest
could secure them, until the government was prepared for their trial, when
the courts were open and ready to try them. It was as easy to protect
witnesses before a civil as a military tribunal ; and as there could be no
wish to convict, except on sufficient legal evidence, surely an ordained and
established court was better able to judge of this than a military tribunal
composed of gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions
when martial rule can be properly applied. If, in foreign invasion or civil
war, the courts are actually closed, and it is impossible to administer crimi
nal justice according to law, then, on the theatre of active military opera
tions, where war really prevails, there is a necessity to furnish a substi
tute for the civil authority thus overthrown, to preserve the safety of the
army and society ; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their 'free course. As
necessity creates the rule, so it limits its duration ; for, if this government
is continued after the courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open, and in the proper
and unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war. Because, during the late rebellion, it could have
been enforced in Virginia, where the national authority was overturned and
the courts driven out, it does not follow that it should obtain in Indiana,
where that authority was never disputed, and justice was always adminis
tered. And so, in the case of a foreign invasion, martial rule may oecome
a necessity in one State, when in another it would be "mere lawless
violence."
548 APPENDIX.
We are not without precedents in English and American history illustrat
ing our views of this question ; but it is hardly necessary to make particu-
larVeference to them.
From the first year of the reign of Edward the Third, when the Parlia
ment of England reversed the attainder of the Earl of Lancaster, because
he could have been tried by the courts of the realm, and declared " that in
time of peace no man ought to be adjudged to death for treason or any
other offence without being arraigned and held to answer, and that regu
larly when the king's courts are open it is a time of peace in judgment of
law," down to the present day, martial law, as claimed in this case, has
been condemned by all respectable English jurists as contrary to the funda
mental laws of the land, and subversive of the liberty of the subject.
During the present century, an instructive debate on this question oc
curred in Parliament, occasioned by the trial and conviction by court mar
tial, at Demerara, of the Kev. John Smith, a missionary to the negroes, on
the alleged ground of aiding and abetting a formidable rebellion in that
colony. Those eminent statesmen, Lord Brougham and Sir James Mackin
tosh, participated in that debate, and denounced the trial as illegal, because
it did not appear that the courts of law in Demerara could not try offences,
and that " when the laws can act, every other mode of punishing supposed
crimes is itself an enormous crime."
So sensitive were our revolutionary fathers on this subject, although Bos
ton was almost in a state of siege when General Gage issued his proclama
tion of martial law, they spoke of it as an " attempt to supersede the course
of the common law, and instead thereof to publish and order the use of
martial law." The Virginia Assembly also denounced a similar measure on
the part of Governor Dunmore, " as an assumed power, which the king
himself cannot exercise, because it annuls the law of the land, and intro
duces the most execrable of all systems, martial law."
In some parts of the country, during the war of 1812, our officers made
arbitrary arrests, and by military tribunals tried citizens who were not in the
military service. These arrests and trials, when brought to the notice of
the courts, were uniformly condemned as illegal. The cases of Smith v.
Shaw and McConnell v. Hampdeii (reported in 12 Johnson *), are illustra
tions, which we cite, not only for the principles which they determine, but
on account of the distinguished jurists concerned in the decisions, one of
whom for many years occupied a seat on this bench.
It is contended that Luther v. Borden, decided by this court, is an au
thority for the claim of martial law advanced in this case. The decision is
misapprehended. That case grew out of the attempt in Rhode Island to
supersede the old colonial government by a revolutionary proceeding.
Rhode Island, until that period, had no other form of local government
than the charter granted by King Charles II., in 1663 ; and as that limited
the right of suffrage, and "did not provide for its own amendment, many
citizens became dissatisfied, because the legislature would not afford the
relief in their power ; and without the authority of law, formed a new and
independent constitution, and proceeded to assert its authority by force of
arms. The old government resisted this ; and as the rebellion was formi
dable, called out the militia to subdue it, and passed an act declaring mar
tial law. Borden, in the military service of the old government, broke
open the house of Luther, who supported the new, in order to arrest him.
Luther brought suit against Borden ; and the question was, whether, under
the constitution and laws of the State, Borden was justified. This court
* Payes 257 uud 234.
APPENDIX. 549
State " may use its military power to put down an armed in-
)o strong to be controlled 'by the civil authority ; " and, if the
held that a
surrection too
legislature of Rhode Island thought the peril so great as to require the use
of its military forces and the declaration of martial^ law, there was no
ground on which this court could question its authority ; and as Borden
acted under military orders of the charter government, .which had been
recognized by the political power of the country, and was upheld by the
State judiciary, he was justified in breaking into and entering Luther's
house. This is the extent of the decision. There was no question in issue
about the power of declaring martial law under the Federal Constitution,
and the court did not consider it necessary even to inquire " to what extent
nor under what circumstances that power may be exercised by a State."
We do not deem it important to examine further the adjudged cases, and
shall, therefore, conclude without any additional reference to authorities.
To the third question, then, on which the judges below were opposed in
opinion, an answer in the negative must be returned.
It is proper to say, although Milligan's trial and conviction by a mil
itary commission was illegal, yet, if guilty of the crimes imputed to him,
and his guilt had been ascertained by an established court ami impartial
jury, he deserved severe punishment. Open resistance to the measures
deemed necessary to subdue a great rebellion, by those who enjoy the pro
tection of government, and have not the excuse even of prejudice of section
to plead in their favor, is wicked ; but that resistance becomes an enormous
crime when it assumes the form of a secret political organization, armed to
oppose the, laws, and seeks by stealthy means to introduce the enemies of
the country into peaceful communities, there to light the torch of civil war,
and thus overthrow the power of the United States. Conspiracies like
these, at such a juncture, are extremely perilous ; and those concerned in
them are dangerous enemies to their country, and should receive the heaviest
penalties of the law, as an example to deter others from similar criminal
conduct. It is said the severity of the laws caused them ; but Congress
was obliged to enact severe laws to meet the crisis ; and as our highest
civil duty is to serve our country when in danger, the late war has proved
that rigorous laws, when necessary, will be cheerfully obeyed by a patriotic
people, struggling to preserve the rich blessings of a free government.
The two remaining questions in this case must be answered in the affirma
tive. The suspension of the privilege of the writ of habeas corpus does
not suspend the writ itself. The writ issues as a matter of course ; and on
the return made to it the court decides whether the party applying is denied
the right of proceeding any farther with it.
If the military trial of Milligan was contrary to law, then he was entitled,
on the facts stated in his petition, to be discharged from custody by the
terms of the act of Congress of March 3, 1863. The provisions of this
law having been considered in a previous part of this opinion, we will not
restate the views there presented. Milligan avers he was a citizen of In
diana, not in the military or naval service, and was detained in close con
finement, by order of the President, from the oth day of October, 1864,
until the 2d day of January, 1865, when the Circuit Court for the District
of Indiana, with a grand jury, convened in session at Indianapolis ; ami
afterwards, on the 27th day of the same month, adjourned without finding
an indictment or presentment against him. If these averments were true
(and their truth is conceded for the purposes of this case), the court was
required to liberate him on taking certain oaths prescribed by the law, and
entering into recognizance for his good behavior.
But it is insisted that Milligan was a prisoner of war, and, therefore, ex
550 APPENDIX.
eluded from the privileges of the statute. It is not easy to see how he can
be treated as a prisoner of war, when he lived in Indiana for the past twen
ty years, was arrested there, and had not been, during the late troubles, a
resident of any of the States in rebellion. If in Indiana he conspired with
bad men to assist the enemy, he is punishable for it in the courts of Indi
ana ; but, when £ried for the offence, he cannot plead the rights of war;
for he was not engaged in legal acts of hostility against the government,
and only such persons, when captured, are prisoners of war. If he cannot
enjoy the immunities attaching to the character of a prisoner of war, how
can he be subject to their pains and penalties ?
This case, as well as the kindred cases of Bowles and Horsey, were dis
posed of at the last term, and the proper orders were entered of record.
There is, therefore, no additional entry required.
The Chief Justice delivered the following opinion : —
Four members of the court, concurring with their brethren in the order
heretofore made in this cause, but unable to concur in some important par
ticulars with the opinion which has just been read, think it their duty to
make a separate statement of their views of the whole case.
We do not doubt that the Circuit Court for the District of Indiana had
jurisdiction of the petition of Milligan for the writ of habeas corpus.
Whether this court has jurisdiction upon the certificate of division ad
mits of more question. The construction of the act authorizing such cer
tificates, which has hitherto prevailed here, denies jurisdiction in cases
where the certificate brings up the whole cause before the court. But none
of the adjudicated cases are exactly in point, and we are willing to resolve
whatever' doubt may exist in favor of the earliest possible answers to ques
tions involving life and liberty. We agree, therefore, that this court may
properly answer questions certified in such a case as that before us.
The crimes with which Milligan was charged were of the gravest charac
ter, and the petition and exhibits in the record, which must here be taken
as true, admit his guilt. But whatever his desert of punishment may be,
it is more important to the country and to every citizen that he should not
be punished under an illegal sentence, sanctioned by this court of last re
sort, than that he should be punished at all. The laws which protect the
liberties of the whole people must not be violated or set aside in order to
.inflict, even upon the guilty, unauthorized though merited justice.
The trial and sentence of Milligan were by military commission convened
in Indiana during the fall of 1864. The action of the commission had been
under consideration by President Lincoln for some time, when he himself
became the victim of an abhorred conspiracy. It was approved by his suc
cessor in May, 1865, and the sentence was ordered to be carried into execu
tion. The proceedings, therefore, had the fullest sanction of the executive
department of the government.
This sanction requires the most respectful and the most careful consider
ation of this court. The sentence which it supports must not be set aside
except upon the clearest conviction that it cannot be reconciled with the
Constitution and the constitutional legislation of Congress.
We must inquire, then, what constitutional or statutory provisions have
relation to this military proceeding.
The act of Congress of March 3, 1863, comprises all the legislation
which seems to require consideration in this connection. The constitution
ality of this act has not been questioned, and is not doubted.
The first section authorized the suspension, during the rebellion, of the
writ of habeas corpus throughout the United States by the President. The
two next sections limited this authority in important respects.
APPENDIX. 551
The second section required that lists of all persons, being citizens of
1 States in which the administration of the laws had continued unimpaired
in the Federal courts, who were then held or might thereafter be held as
prisoners of the United States, under the authority of the President, other
wise than as prisoners of war, should be furnished to the judges of the
Circuit and District Courts. The lists transmitted to the judges were to
contain the names of all persons, residing within their respective jurisdic
tions, charged with violation of national law. And it was required, in cases
where the grand jury in attendance upon any of these courts should termi
nate its session without proceeding by indictment or otherwise against any
prisoner named in the list, that the judge of the court should forthwith
make an order that such prisoner desiring a discharge, should be brought
before him or the court to be discharged, on entering into recognizance, if
required, to keep the peace and for good behavior, or to appear, as the
court might direct, to be further dealt with according to law. Every officer
of the United States having custody of such prisoners was required to obey
and execute the judge's order, under penalty, for refusal or delay, of fine
and imprisonment.
The third section provided, in case lists of persons other than prisoners
of war then held in confinement, or thereafter arrested, should not be fur
nished within twenty days after the passage of the act, or, in cases of sub
sequent arrest within twenty days after the time of arrest, that any citizen,
after the termination of a session of the grand jury without indictment
or presentment, might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any person so imprisoned,
on the terms and conditions prescribed in the second section.
It was made the duty of the District Attorney of the United States to
attend examinations on petitions for discharge.
It was under this act that Milligan petitioned the Circuit Court for the
District of Indiana for discharge from imprisonment.
The holding of the Circuit and District Courts of the United States in
Indiana had been uninterrupted. The administration of the laws in the
Federal courts had remained unimpaired. Milligan was imprisoned under
the authority of the President, and was not a prisoner of war. No list of
prisoners had been furnished to the judges, either of the District or Circuit
Courts, as required by the law. A grand jury had attended the Circuit
Courts of the Indiana district, while Milligan " was there imprisoned, and
had closed its session without finding any indictment or presentment, or
otherwise proceeding against the prisoner.
His case was thus brought within the precise letter and intent of the
act of Congress, unless it can be said that Milligan was not imprisoned by
authority of the President ; and nothing of this sort was claimed in argu
ment on the part of the government.
It is clear upon this statement that the Circuit Court was bound to hear
Milligan's petition for the writ of habeas corpus, called in the act an order
to bring the prisoner before the judge or the court, and to issue the writ,
or, in the language of the act, to make the order.
The first question, therefore, — Ought the writ to issue ? — must be an
swered in the affirmative.
And it is equally clear that he was entitled to the discharge prayed for.
It must be borne in mind that the prayer of the petition was not for an
absolute discharge, but to be delivered from military custody and imprison
ment, and if found probably guilty of any offence, to be turned over to the
proper tribunal for inquiry and punishment ; or, if not found thus probably
guilty, to be discharged altogether.
552 APPENDIX.
And the express terms of the act of Congress required this action of the
court. The prisoner must be discharged on giving such recognizance as
the court should require, not only for good behavior, but for appearance, as
directed by the court, to answer and be further dealt with according to law.
The first section of the act authorized the suspension of the writ of ha
beas corpus generally throughout the United States. The second and third
sections limited this suspension, in certain cases, within States where the
administration of justice by the Federal courts remained unimpaired. In
these cases the writ was still to issue, and under it the prisoner was entitled
to his discharge by a circuit or district judge or court, unless held to bail
for appearance to answer charges. No other judge or court could make an
order of discharge under the writ. Except under the circumstances pointed
out by the act, neither circuit nor district judge or court could make such
an order. But under those circumstances, the writ must be issued, and the
relief from imprisonment directed by the act must be afforded. The com
mands of the act were positive, and left no discretion to court or judge.
An affirmative answer must, therefore, be given to the second question,
namely, Ought Milligan to be discharged according to the prayer of the
petition ?
That the third question, namely, Had the military commission in Indiana,
under the facts stated, jurisdiction to try and sentence Milligan? must be
answered negatively, is an unavoidable inference from affirmative answers
to the other two.
The military commission could not have jurisdiction to try and sentence
Milligan, if he could not be detained in prison under his original arrest or
under sentence, after the close of a session of the grand jury, without in
dictment or other proceeding against him.
Indeed, the act seems to have been framed on purpose to secure the trial
of all offences of citizens by civil tribunals, in States where these tribunals
were not interrupted in the regular exercise of their functions.
Under it, in such States, the privilege of the writ might be suspended.
Any person regarded as dangerous to the public safety might be arrested
and detained until after the session of a grand jury. Until after such session,
no person arrested could have the benefit of the writ; and even then, no
such person could be discharged except on such terms, as to future appear
ance, as the court might impose. These provisions obviously contemplate
no other trial or sentence than that of a civil court, and we could not assert
the legality of a trial and sentence by a military commission, under the cir
cumstances specified in the act and described in the petition, without disre
garding the plain directions of Congress.
We agree, therefore, that the first two questions certified must receive
affirmative answers, and the last a negative. We do not doubt that the
positive provisions of the act of Congress require such answers. We do
not think it necessary to look beyond these provisions. In them we find
sufficient and controlling reasons for our conclusions.
But the opinion which has just been read goes farther, and, as we under
stand it, asserts not only that the military commission held in Indiana was
not authorized by Congress, but that it was not in the power of Congress
to authorize it ; from which it may be thought to follow, that Congress has
no power to indemnify the officers who composed the commission against
liability in civil courts for acting as members of it.
We cannot agree to this.
We agree in the proposition that no department of the government of
the United States — neither President, nor Congress, nor the Courts —
possesses any power not given by the Constitution.
APPENDIX. 553
We assent, fully, to all that is said, in the opinion, of the inestimable
value of the trial by jury, and of the other constitutional safeguards of
civil liberty. And we concur, also, in what is said of the writ of habeas
corpus, an-d of its suspension, with two reservations: (1.) That in our judg
ment, when the writ is suspended, the executive is authorized to arrest as
well as to detain ; and (2.) that there are cases in which, the privilege of
the writ being suspended, trial and punishment by military commission, in
States where civil courts are open, may be authorized by Congress, as well
as arrest and detention.
We think that Congress had power, though not exercised, to authorize
the military commission which was held in Indiana.
We do not think it necessary to discuss at large the grounds of our con
clusions. We will briefly indicate some of them.
The Constitution itself provides for military government ^ as well as for
civil government. And we do not understand it to be claimed, that the
civil safeguards of the Constitution have application in cases within the
proper sphere of the former.
What, then, is that proper sphere ? Congress has power to raise and sup
port armies ; to provide and maintain a navy ; to make rules for the gov
ernment and regulation of the land and naval forces, and to1 provide for
governing such part of the militia as may be in the service of the United
States.
It is not denied that the power to make rules for the government of the
army and navy is a power to provide for trial and punishment by military
courts without a jury. It has been so understood and exercised from the
adoption of the Constitution to the present time.
Nor, in our judgment, does the fifth, or any other amendment, abridge
that power. " Cases arising in the land and naval forces, or in the militia
in actual service in time of war or public danger," are expressly excepted
from the fifth amendment, " that no person shall be held to answer for a
capital or otherwise infamous crime, unless on a presentment or indictment
of a grand jury," and it is admitted that the exception applies to the other
amendments, as well as to the fifth.
Now, we understand this exception to have the same import and effect as
if the powers of Congress in relation to the government of the army and
navy and the militia had been recited in the amendment, and cases within
those powers had been expressly excepted from its operation. The States,
most jealous of encroachments upon the liberties of the citizen, when pro
posing additional safeguards in the form of amendments, excluded spe
cifically from their effect cases arising in the government of the land and
naval forces.. Thus Massachusetts proposed that " no person shall be tried
for any crime by which he would incur an infamous punishment or loss of
life, until he be first indicted by a grand jury, except in such cases as may
arise in the government and regulation of the land forces." Th« exception
in similar amendments, proposed by New York, Maryland, and Virginia,
was in the same or equivalent terms. The amendments proposed by the
States were considered by the first Congress, and such as were approved
in substance were put in form, and proposed by that body to the States.
Among those thus proposed, and subsequently ratified, was that which now
stands as the fifth amendment of the Constitution. We cannot doubt that
this amendment was intended to have the same force and effect as the amend
ment proposed by the States. We cannot agree to a construction which
will impose on the exception in the fifth amendment a sense other than that
obviously indicated by action of the State conventions.
We think, therefore, that the power of Congress, in the government of
70
554 APPENDIX.
the land and naval forces and of the militia, is not at all affected by the
fifth or any other amendment. It is not necessary to attempt any precise
definition of the boundaries of this power. But may it not be said that
government includes protection and defence, as well as the regulation of
internal administration ? And is it impossible to imagine cases in which
citizens, conspiring or attempting the destruction or great injury of the
national forces, may be subjected by Congress to military trial and punish
ment in the just exercise of this undoubted constitutional power ? Con
gress is but the agent of the nation ; and does not the security of individu
als against the abuse of this, as of every other power, depend on the intel
ligence and virtue of the people, on their zeal for public and private liberty,
upon official responsibility secured by law, and upon the frequency of elec
tions rather than upon doubtful constructions of legislative powers ?
But we do not put our opinion, that Congress might authorize such a
military commission as was held in Indiana, upon the power to provide for
the government of the national forces.
Congress has the power not only to raise, and support, and govern armies,
but to declare war. It has, therefore, the power to provide by law for car
rying on war. This power necessarily extends to all legislation essential to
the prosecution of war with vigor and success, except such as interferes
with the command of the forces and the conduct of campaigns. That
power and duty belong to the President as commander-in-chief. Both these
powers are derived from the Constitution, but neither is defined by that in
strument. Their extent must be determined by their nature, and by the
principles of our institutions.
The power to make the necessary laws is in Congress ; the power to ex
ecute in the President. Both powers imply many subordinate and auxiliary
powers. Each includes all authorities essential to its due exercise. But
neither can the President, in war more than in peace, intrude upon the
proper authority of Congress, nor Congress upon the proper authority of
the President. Both are servants of the people, whose will is expressed in
the fundamental law. Congress cannot direct the conduct of campaigns,
nor can the President, or any commander under him, without the sanction
of ^Congress, institute tribunals for the trial and punishment of offences,
either of soldiers or civilians, unless in cases of a controlling necessity,
wrhich justifies what it compels, or at least insures acts of indemnity from
the justice of the legislature.
We by no means assert that Congress can establish and apply the laws of
war where no war has been declared or exists.
Where peace exists the laws of peace must prevail. What we do main
tain is, that when the nation is involved in war, and some portions of the
country are invaded, and all are exposed to invasion, it is within the power
of Congress to determine in what states or districts such great and immi
nent public danger exists as justifies the authorization of military tribunals
for the trial of crimes and offences against the discipline or security of the
army or against the public safety.
In Indiana, for example, at the time of the arrest of Milligan and his co-con
spirators, it is established by the papers in the record, that the State was a mil
itary district, was the theatre of military operations, had been actually invaded,
and was constantly threatened with invasion. It appears, also, that a pow
erful secret association, composed of citizens and others, existed within the
State, under military organization, conspiring against the draft, and plotting
insurrection, the liberation of the prisoners of war at various depots, the
seizure of the State and national arsenals, armed co-operation with the
enemy, and war against the national government.
APPENDIX. 555
We cannot doubt that, in such a time of public danger, Congress had
power, under the Constitution, to provide for the organization of a military
commission, and for trial by that commission of persons engaged in this
conspiracy. The fact that the Federal courts were open, was regarded
by Congress as a sufficient reason for not exercising the power; but that
fact could not deprive Congress of the right to exercise it. Those courts
might be open and undisturbed in the execution of their functions, and yet
wholly incompetent to avert threatened danger, or to punish, with adequate
promptitude and certainty, the guilty conspirators.
In Indiana, the judges and officers of the courts were loyal to the govern
ment. But it might have been otherwise. In times of rebellion and civil
war it may often happen, indeed, that judges and marshals will be in active
sympathy with the rebels, and courts their most efficient allies.
We have confined ourselves to the question of power. It was for Con
gress to determine the question of expediency. And Congress did deter
mine it. That body did not see fit to authorize trials by military commis
sion in Indiana, but by the strongest implication prohibited them. With
that prohibition we are satisfied, and should have remained silent, if the
answers to the questions certified had been put on that ground, without de
nial of the existence of a power which we believe to be constitutional, and
important to the public safety, — a denial which, as we have already sug
gested, seems to draw in question the power of Congress to protect from
prosecution the members of military commissions who acted in obedience to
their superior officers, and whose action, whether warranted by law or not,
was approved by that upright and patriotic President, under whose admin
istration the republic was rescued from threatened destruction.
We have thus far said little of martial law, nor do we propose to say
much. What we have already said sufficiently indicates our opinion that
there is no law for the government of the citizens, the armies or the navy of
the United States, within American jurisdiction, which is not contained in
or derived from the Constitution. And wherever our army or navy may go
beyond our territorial limits, neither can go beyond the authority of the
President or the legislation of Congress.
There are under the Constitution three kinds of military jurisdiction ;
one to be exercised both in peace and war ; another to be exercised in time
of foreign war without the boundaries of the United States, or iu time of
rebellion and civil war within States or districts occupied by rebels treated
as belligerents; and a third to be exercised in time of invasion or insurrec
tion within the limits of the United States, or during rebellion within the
limits of States maintaining adhesion to the national government, when the
public danger requires its exercise. The first of these may be called juris
diction under Military Law, and is found in acts of Congress prescribing
rules and articles of war, or otherwise providing for the government of the
national forces ; the second may be distinguished as Military Government,
superseding, as far as may be 'deemed expedient, the local law, and exer
cised by the military commander under the direction of the President, with
the express or implied sanction of Congress ; while the third may be de
nominated Martial Law Proper, and is called into action by Congress, or
temporarily, when the action of Congress cannot be invited, and in the case
of justifying or excusing peril, by the President, in times of insurrection or
invasion, or of civil or foreign war, within districts or localities where ordi
nary law no longer adequately secures public safety and private rights.
We think that the power of Congress, in such times and in such local
ities, to authorize trials for crimes against the security and safety of the
national forces, may be derived from its constitutional" authority to raise
556
APPENDIX.
and support armies and to declare war, if not from its constitutional author
ity to provide for governing the national forces.
We have no apprehension that this power, under our American system
of government, in which all official authority is derived from the people, and
exercised under direct responsibility to the people, is more likely to be
abused than the power to regulate commerce, or the power to borrow money.
And we are unwilling to give our assent by silence to expressions of opinion
which seem to us calculated, though not intended, to cripple the constitu
tional powers of the government, and to augment the public dangers in
times of invasion and rebellion.
Mr. Justice Wayne, Mr. Justice Swayne, and Mr. Justice Miller concur
with me in these views.
CUMMINGS v. THE STATE OF MISSOURI, 4 Wallace, S. C. Rep. 316.
Mr. Justice Field delivered the opinion of the court : —
This case comes before us on a writ of error to the Supreme Court of
Missouri, and involves a consideration of the test oath imposed by the
constitution of that State. The plaintiff in error is a priest of the Roman
Catholic Church, and was indicted and convicted in one of the Circuit Courts
of the State^of the crime of teaching and preaching as a priest, and minister
of that religious denomination without having first tak^en the oath, and was
sentenced to pay a fine of five hundred dollars, and to be committed to jail
until the same was paid. On appeal to the Supreme Court of the State,
the judgment was affirmed.
The oath prescribed by the Constitution, divided into its separable parts,
embraces more than thirty distinct affirmations or tests. Some of the acts,
against which it is directed, constitute offences of the highest grade, to which,
upon conviction, heavy penalties are attached. Some of the acts have never
been classed as offences in the laws of any State, and some of the acts, under
many circumstances, would not even be blameworthy. It requires the affiant
to deny not only that he has ever " been in armed hostility to the United
States, or to the lawful authorities thereof," but, among other things, that
he has ever, " by act or word," manifested his adherence to the cause of
the enemies of the United States, foreign or domestic, or his desire for their
triumph over the^ arms of the United States, or his sympathy with those
engaged in rebellion, or has ever harbored or aided any person engaged in
guerrilla warfare against the loyal inhabitants of the United States, or has
ever entered or left the State for the purpose of avoiding enrolment or draft
in the military service of the United States ; or, to escape the performance
of duty in the militia of the United States, has ever indicated, in any terms,
his disaffection to the government of the United States in its contest with
the rebellion.
Every person who is unable to take this oath is declared incapable of
holding, in the ^ State, " any office of honor, trust, or profit under its au
thority, or of being an officer, councilman, director, or trustee, or other man
ager of any corporation, public or private, now existing or hereafter
established by its authority, or of acting as a professor or teacher in any
educational institution, or in any common or other school, or of holding any
real estate or other property in trust for the use of any church, religious
society, or congregation."
And every person holding, at the time the Constitution takes effect, any
APPENDIX. 557
of the offices, trusts, or positions mentioned, is required, within sixty days
thereafter, to take the oath ; and, if he fail to comply with this requirement,
it is declared that his office, trust, or position shall ipso facto become
vacant.
No person, after the expiration of the sixty days, is permitted, without
taking the oath, " to practise as an attorney or counsellor at law, nor after
that period can any person be competent, as a bishop, priest, deacon, minis
ter, elder, or other clergyman, of any religious persuasion, sect, or denomi
nation, to teach, or preach, or solemnize marriages."
exercising
specified, v
in taking it is declared~to be perjury, punishable by imprisonment in the
penitentiary.
The oath thus required is, for its severity, without any precedent that we
can discover. In the first place, it is retrospective ; it embraces all the past
from this day ; and, if taken years hence, it will also cover all the interven
ing period. In its retrospective feature we believe it is peculiar to this
country. In England and France there have been test oaths, but they were
always limited to an affirmation of present belief, or present disposition to
wards the government, and were never exacted with reference to particular
instances of past misconduct. In the second place, the oath is directed not
merely against overt and visible acts of hostility to the government, but is
intended to reach words, desires, and sympathies, also. And, in the third
place, it allows no distinction between acts springing from malignant enmity
and acts which may have been prompted by charity, or affection, or relation
ship. If one has ever expressed sympathy with any who were drawn into
the rebellion, even if the recipients of that sympathy were connected by the
closest ties of blood, he is as unable to subscribe to the oath as the most
active and the most cruel of the rebels, and is equally debarred from the
offices of honor or trust, and the positions and employments specified.
But, as it was observed by the learned counsel who appeared on behalf
of the State of Missouri, this court cannot decide the case upon the justice
or hardship of these provisions. Its duty is to determine whether they are
in conflict with the Constitution of the United States. On behalf of Mis
souri, it is urged that they only prescribe a qualification for holding certain
offices, and practising certain callings, and that it is therefore within the
power of the State to adopt them. On the other hand, it is contended that
they are in conflict with that clause of the Constitution which forbids any
State to pass a bill of attainder or an ex post facto law.
We admit the propositions of the counsel of Missouri, that the States which
existed previous to the adoption of the Federal Constitution possessed
originally all the attributes of sovereignty ; that they still retain those attri
butes, except as they have been surrendered by the formation of the Con
stitution, and the amendments thereto ; that the new States, upon their
admission into the Union, became invested with equal rights, and were,
thereafter, subject only to similar restrictions, and that among the rights
reserved to the States is the right of each State to determine the qualifica
tions for office, and the conditions upon which its citizens may exercise their
various callings and pursuits within its jurisdiction.
These are general propositions, and involve principles of the highest mo
ment. But it by no means follows that, under the form of creating a quali
fication or attaching a condition, the States can in effect inflict a punishment
for a past act which was not punishable at the time it was committed. The
question is not as to the existence of the power of the State over matters of
558
APPENDIX.
internal police, but whether that power has been made in the present case
an instrument for the infliction of punishment against the inhibition of the
Constitution.
Qualifications relate to the fitness or capacity of the party for a particular
pursuit or profession. Webster defines the term to mean "any natural
endowment or any acquirement which fits a person for a place, office, or em
ployment, or enables him to sustain any character, with success." It is
evident from the nature of the pursuits and professions of the parties,
placed under disabilities by the constitution of Missouri, that many of the
acts, from the taint of which they must purge themselves, have no possible
relation to their fitness for those pursuits and professions. There can be no
connection between the fact that Mr. Cummings entered or left the State of
Missouri to avoid enrolment or draft in the military service of the United
States and his fitness to teach the doctrines or administer the sacraments
of his church ; nor can a fact of this kind or the expression of words of
sympathy with some of the persons drawn into the rebellion constitute any
evidence of the unfitness of the attorney or counsellor to practise his profes
sion, or of the professor to teach the ordinary branches of education, or of
the want of business knowledge or business capacity in the manager of a cor
poration, or in any director or trustee. It is manifest upon the simple state
ment of many of the acts and of the professions and pursuits, that there is
no such relation between them as to render a denial of the commission of
the acts at all appropriate as a condition of allowing the exercise of the pro
fessions and pursuits. The oath could not, therefore, have been required
as a means of ascertaining whether parties were qualified or not for their
respective callings or the trusts with which they were charged. It wa» re
quired in order to reach the person, not the calling. It was exacted, not
from any notion that the several acts designated indicated unfitness for the
callings, but because it was thought that the several acts deserved punish
ment, and that for many of them there was no way to inflict punishment
except by depriving the parties, who had committed them, of some of the
rights and privileges of the citizen.
The disabilities created by the constitution of Missouri must be regarded
as penalties — they constitute punishment. We do not agree with the
counsel of Missouri that " to punish one is to deprive him of life, liberty, or
property, and that to take from him anything less than these is no punish
ment at all." The learned counsel does not use these terms — life, liberty,
and property — as comprehending every right known to the law. He does
not include under liberty freedom from outrage on the feelings as well as
restraints on the person. He does not include under property those -estates
which one may acquire in professions, though they are often "the source of
the highest emoluments and honors. The deprivation of any rights, civil
or political, previously enjoyed, may be punishment, the circumstances
attending and the causes of the deprivation determining this fact. Dis
qualification from office may be punishment, as in cases of conviction upon
impeachment. Disqualification from the pursuits of a lawful avocation, or
from positions of trust, or from the privilege of appearing in the courts,
or acting as an executor, administrator, or guardian, may also, and often
has been, imposed as punishment. By statute 9 and 10 William III., chap.
32, if any person educated in or having made a profession of the Christian
religion, did, " by writing, printing, teaching, or advised speaking," deny
the truth of the religion, or the divine authority of the Scriptures, he was
for the first offence rendered incapable to hold any office or place of trust ;
and for the second he was rendered incapable of bringing any action, being
APPENDIX. 559
guardian, executor, legatee, or purchaser of lands, besides being subjected
to three years' imprisonment without bail.*
By statute 1, George I., chap. 13, contempts against the king's title, aris
ing from refusing or neglecting to take certain prescribed oaths, and yet
acting in an office or place of trust for which they were required, were pun
ished by incapacity to hold any public office ; to prosecute any suit ; to
be guardian or executor ; to take any legacy or deed of gift ; and to vote
at any election for members of Parliament ; and the offender was also
subject to a forfeiture of five hundred pounds to any one who would sue for
the same.f
" Some punishments," says Blackstone, " consist in exile or banishment,
by abjuration of the realm or transportation ; others in loss of liberty by
perpetual or temporary imprisonment. Some extend to confiscation by for
feiture of lands or movables, or both, or of the profits of lands for life ;
others induce a disability of holding offices or employments, being heirs,
executors, and the like." J
In France, deprivation or suspension of civil rights, or of some of them,
and among these of the right of voting, of eligibility to office, of taking part
in family councils, of being guardian or trustee, of bearing arms, and of
teaching or being employed in a school or seminary of learning, are punish
ments prescribed by her code.
The theory upon which our political institutions rest is, that all men have
certain inalienable rights — that among these are life, liberty, and the pur
suit of happiness ; and that in the pursuit of happiness all avocations, all
honors, all positions, are alike open to every one, and that in the protection
of these rights all are equal before the law. Any deprivation or suspension
of any of these rights for past conduct is punishment, and can be in no
other wise defined.
Punishment not being, therefore, restricted, as contended by counsel, to
the deprivation of life, liberty, or property, but also embracing deprivation
or suspension of political or civil rights, and the disabilities prescribed by the
provisions of the Missouri constitution being in effect punishment, we pro
ceed to consider \vhether there is any inhibition in the Constitution of the
United States against their enforcement.
The counsel for Missouri closed his argument in this case by presenting
a striking picture of the struggle for ascendency in that State during the
recent rebellion between the friends and the enemies of the Union, and of
the fierce passions which that struggle aroused. It was in the midst of the
struggle that the present Constitution was framed, although it was not
adopted by the people until the war had closed. It would have been
strange, therefore, had it not exhibited in its provisions some traces of the
excitement amidst which the convention held its deliberations.
It was against the excited action of the States, under such influences as
these, that the framers of the Federal Constitution intended to guard. In
Fletcher v. Pec/c,§ Mr. Chief Justice Marshall, speaking of such action, uses
this language : " Whatever respect might have been felt for the State
sovereignties, it is not to be disguised that the framers of the Constitution
viewed with some apprehension the violent acts which might grow out of the
feelings of the moment ; and that the people of the United States, in adopt
ing that instrument, have manifested a determination to shield themselves
and their property from the effects of those sudden and strong passions to
which men are exposed. The restrictions on the legislative power of the
States are obviously founded in this sentiment ; and the Constitution of the
* 4 Black. 44. t Id. 124. J Id. 377. § t5 Cranch, 137.
560 APPENDIX.
United States contains what may be deemed a bill of rights for the people
of each State."
" ' No State shall pass any bill of attainder, ex post facto law. or law im
pairing the obligation of contracts.' "
A bill of attainder is a legislative act which inflicts punishment without a
judicial trial.
If the punishment be less than death, the act is termed a bill of pains and
penalties. Within the meaning of the Constitution, bills of attainder in
clude bills of pains and penalties. In these cases the legislative body, in
addition to its legitimate functions, exercises the powers and office of judge ;
it assumes, in the language of the text-books, judicial magistracy ; it pro
nounces upon the guilt of the party, without any of the forms or safeguards
of trial ; it determines the sufficiency of the proofs produced, whether
conformable to the rules of evidence or otherwise ; and it fixes the degree
of punishment in accordance with its own notions of the enormity of the
offence.
"Bills of this sort," says Mr. Justice Story, " have been most usually
passed in England in times of rebellion, or gross subserviency to the crown,
or of violent political excitements ; periods in which all nations are most
liable (as well the free as the enslaved) to forget their duties, and to trample
upon the rights and liberties of others." *
These bills are generally directed against individuals by name ; but they
may be directed against a whole class. The bill against the Earl of Kildare
and others, passed in the reign of Henry VIIL,t enacted that " all such per
sons which be or heretofore have been comforters, abettors, partakers, con
federates, or adherents unto the said " late earl, and certain other parties,
who were named, " in his or their false and traitorous acts and purposes,
shall in like wise stand, and be attainted, adjudged, and convicted of high
treason ; " and that " the same attainder, judgment, and conviction against
the said comforters, abettors, partakers, confederates, and adherents, shall
be as strong and effectual in the law against them, and every of them, as
though they and every of them had been specially, singularly, and particu
larly named by their proper names and surnames in the said act."
These bills may inflict punishment absolutely, or may inflict it condition
ally.
The bill against the Earl of Clarendon, passed in the reign of Charles the
Second, enacted that the earl should suffer perpetual exile, and be forever
banished from the realm ; and that if he returned, or was found in England,
or in any other of the king's dominions, after the first of February, 1667,
he should suffer the pains and penalties of treason ; with the proviso, how
ever, that if he surrendered himself before the said first day of February
for trial, the penalties and disabilities declared should be void and of no
effect. J
" A British act of Parliament," to cite the language of the Supreme Court
of Kentucky, " might declare, that if certain individuals, or a class of indi
viduals, failed to do a given act by a named day, they should be deemed to
be, and treated as, convicted felons or traitors. Such an act comes pre
cisely within the definition of a bill of attainder, and the English courts
would enforce it without indictment or trial by jury." §
If the clauses of the second article of the constitution of Missouri, to which
* Commentaries, § 1344.
t 28 Henry VIII. Chap. 18; 3 Stats, of the Realm, 694.
J Printed in 6 Howell's State Trials, p. 391.
§ Gaines v. Buford, 1 Dana, 510.
APPENDIX. 561
we have referred, had in terms declared that Mr. Cummings was guilty, or
should be held guilty, of having been in armed hostility to the United States,
or of having entered that State to avoid being enrolled or drafted into the
military service of the United States, and, therefore, should be deprived of
the right to preach as a priest of the Catholic Church, or to teach in any in
stitution of learning, there could be no question that the clauses would con
stitute a bill of attainder within the meaning of the Federal Constitution.
If these clauses, instead of mentioning his name, had declared that all
priests and clergymen within the State of Missouri were guilty of these acts,
or should be held guilty of them, and hence be subjected to the like depriva
tion, the clauses would be equally open to objection. And, further, if
these clauses had declared that all such priests and clergymen should be so
held guilty, and be thus deprived, provided they did not, by a day desig
nated, do certain specified acts, they would be no less within the inhibition
of the Federal Constitution.
In all these cases there would be the legislative enactment creating the
deprivation without any of the ordinary forms and guards provided for the
security of the citizen in the administra'tion of justice by the established tri
bunals.
The results which would follow from clauses of the character mentioned
do follow from the clauses actually adopted. The difference between the
last case supposed and the case actually presented is one of form only, and
not of substance. The existing clauses presume the guilt of the priests and
clergymen, and adjudge the deprivation of their right to preach or teach
unless the presumption be first removed by their expurgatory oath — in
other words, they assume the guilt and adjudge the punishment condi
tionally. The clauses supposed differ only i'n that they declare the guilt
instead of assuming it. The deprivation is effected with equal certainty in
the one case as it would be in the other, but not with equal directness.
The purpose of the law-maker in the case supposed would be openly
avowed ; in the case existing it is only disguised. The legal result must be
the same, for what cannot be done directly cannot be done indirectly. The
Constitution deals with substance, not shadows. Its inhibition was levelled
at the thing, not the name. It intended that the rights of the citizen should
be secure against deprivation for past conduct by legislative enactment, un
der any form, however disguised. If the inhibition can be evaded by the
form of the enactment, its insertion in the fundamental law was a vain and
futile proceeding.
We proceed to consider the second clause of what Mr. Chief Justice Mar
shall terms a bill of rights for the people of each State — the clause which
inhibits the passage of an ex posi facto law.
By an ex post facto law is meant one which imposes a punishment for an
act which was not punishable at the time it was committed ; or imposes ad
ditional punishment to that then prescribed ; or changes the rules of evi
dence by which less or different testimony is sufficient to convict than was
then required.
In Fletcher v. Peck, Mr. Chief Justice Marshall denned an ex post facto
law to be one " which renders an act punishable in a manner in which it
was not punishable when it was committed." " Such a law," said that emi
nent judge, " may inflict penalties on the person, or may inflict pecuniary
penalties which swell the public treasury. The legislature is then prohib
ited from passing a law by which a man's estate, or any part of it, shall be
seized for a crime, which was not declared by some previous law to render
him liable to that punishment. Why, then, should violence be done to the
natural meaning of words for the purpose of leaving to the legislature the
562 APPENDIX.
power of seizing for public use the estate of an individual, in the form of a
law annulling the title by which he holds the estate ? The court can per
ceive no sufficient grounds for making this distinction. This rescinding act
would have the effect of an ex post facto law. It forfeits the estate of
Fletcher for a crime not committed by himself, but by those from whom he
purchased. This cannot be effected in the form of an ex post facto law, or
bill of attainder ; why, then, is it allowable in the form of a law annulling
the original grant ? "
The act to which reference is here made was one passed by the State of
Georgia, rescinding a previous act, under which lands had been granted.
The rescinding act, annulling the title of the grantees, did not, in terms,
define any crimes, or inflict any punishment, or direct any judicial proceed
ings ; yet, inasmuch as the legislature was forbidden from passing any law
by which a man's estate could be seized for a crime, which was not declared
such by some previous law rendering him liable to that punishment, the
Chief Justice was of opinion that the rescinding act had the effect of an ex
post facto law, and was within the constitutional prohibition.
The clauses in the Missouri constitution, which are the subject of consid
eration, do not, in terms, define any crimes, or declare that any punishment
shall be inflicted, but they produce the same result upon the parties, against
whom they are directed, as though the crimes were defined and the punish
ment was declared. They assume that there are persons in Missouri who
are guilty of some of the acts designated. They would have no meaning in
the constitution were not such the fact. They are aimed at past acts, and
not future acts. They were intended especially to operate upon parties who,
in some form or manner, by action or words, directly or indirectly, had
aided or countenanced the rebellion, or sympathized with parties engaged
in the rebellion, or had endeavored to escape the proper responsibilities and
duties of a citizen in time of war ; and they were intended to operate by
depriving such persons of the right to hold certain offices and trusts, and to
pursue their ordinary and regular avocations. This deprivation is punish
ment; nor is it any less so because a way is opened for escape from it by
the expurgatory oath. The framers of the constitution of Missouri knew at
the time that whole classes of individuals would be unable to take the oath
prescribed. To them there is no escape provided ; to them the deprivation
was intended to be, and is, absolute and perpetual. To make the enjoyment
of a right dependent upon an impossible condition is equivalent to an abso
lute denial of the right under any condition, and such denial, enforced for a
past act, is nothing less than punishment imposed for that act. It is a mis
application of terms to call it anything else.
Now, some of the acts to which the expurgatory oath is directed were not
offences at the time they were committed. It was no offence against any
law to enter or leave the State of Missouri for the purpose of avoiding en
rolment or draft in the military service of the United States, however much
the evasion of such service might be the subject of moral censure. Clauses
which prescribe a penalty for an act of this nature are within the terms of
the definition of an ex post facto law — "they impose a punishment for an
act not punishable at the time it was committed."
Some of the acts at which the oath is directed constituted high offences
at the time they were committed, to which, upon conviction, fine and im
prisonment, or other heavy penalties, were attached. The clauses which
provide a further penalty for these acts are also within the definition of an
ex post facto law — " they impose additional punishment to that prescribed
when the act was committed."
And this is not all. The clauses in question subvert the presumptions of
APPENDIX. 563
innocence, and alter the rules of evidence, which heretofore, under the uni
versally recognized principles of the common law, have been supposed to
be fundamental and unchangeable. They assume that the parties are
guilty ; they call upon the parties to establish their innocence ; and they de
clare' that such innocence can be shown only in oneway — by an inquisi
tion, in the form of an expurgatory oath, into the consciences of the par
ties.
The objectionable character of these clauses will be more apparent if we
put them into the ordinary form of a legislative act. Thus, if instead of the
general provisions in the constitution the convention had provided as fol
lows : Be it enacted, that all persons who have been in armed hostility to
the United States shall, upon conviction thereof, not only be punished as the
laws provided at the time the offences charged were committed, but shall
also be thereafter rendered incapable of holding any of the offices, trusts,
and positions, and of exercising any of the pursuits mentioned in the second
article of the constitution of Missouri ; — no one would have any doubt of
the nature of the enactment. It would be an ex post facto law, and void ;
for it would add a new punishment for an old offence. So, too, if the con
vention had passed an enactment of a similar kind with reference to those
acts which do not constitute offences. Thus, had it provided as follows :
Be it enacted, that all persons who have heretofore, at any time, entered or
left the State of Missouri, with intent to avoid enrolment or draft in the
military service of the United States, shall, upon conviction thereof, be for
ever rendered incapable of holding any office of honor, trust, or profit in the
State, or of teaching in any seminary of learning, or of preaching as a min
ister of the gospel of any denomination, or of exercising any of the profes
sions or pursuits mentioned in the second article of the constitution ; —
there would be no question of the character of the enactment. It would be
an ex post facto law, because it would impose a punishment for an act not
punishable at the time it was committed.
The provisions of the constitution of Missouri accomplish precisely what
enactments like those supposed would have accomplished. They impose the
same penalty, without the formality of a judicial trial and conviction ; for
the parties embraced by the supposed enactments would be incapable of
taking the oath prescribed ; to them its requirement would be an impossible
condition. Now, as the State, had she attempted the course supposed,
would have failed, it must follow that any other mode producing the same
result must equally fail. The provision of the Federal Constitution, in
tended to secure the liberty of the citizen, cannot be evaded by the form in
which the power of the State is exerted. If this were not so, 'if that which
cannot be accomplished by means looking directly to the end, can be ac
complished by indirect means, the inhibition may be evaded at pleasure.
No kind of oppression can be named, against which the frarners of the Con
stitution intended to guard, which may not be effected. Take the case sup
posed by counsel — that of a man tried for treason and acquitted, or, if con
victed, pardoned — the legislature may nevertheless enact that, if the per
son thus acquitted or pardoned does not take an oath that he never has
committed the acts charged against him, he shall not be permitted to hold
any office of honor, or trust, or profit, or pursue any avocation in the State.
Take the case before us ; — the constitution of Missouri, as we have seen,
excludes, on failure to take the oath prescribed by it, a large class of per
sons within her borders from numerous positions and pursuits ; it would
have been equally within the power of the State to have extended the exclu
sion so as to deprive the parties, who are unable to take the oath, from any
avocation whatever in the State. Take still another case ; — suppose that, in
564 APPENDIX.
the progress of events, persons now in the minority in the State should ob
tain the ascendency, and secure the control of the government ; nothing
could prevent, if the constitutional prohibition can be evaded, the enactment
of a provision requiring every person, as a condition of holding any position
of honor or trust, or of pursuing any avocation in the State, to take an oath
that he had never advocated, or advised, or supported the imposition of the
present expurgatory oath. Under this form of legislation the most flagrant
invasion of private rights, in periods of excitement, may be enacted, and
individuals, and even whole classes, may be deprived of political and civil
rights.
A question arose in New York, soon after the treaty of peace of 1783,
upon a statute of that State, which involved a discussion of the nature and
character of these expurgatory oaths, when used as a means of inflicting
punishment for past conduct. The subject was regarded as so important,
and the requirement of the oath such a violation of the fundamental princi
ples of civil liberty, and the rights of the citizen, that it engaged the atten
tion of eminent lawyers and distinguished statesmen of the time, and among
others of Alexander'llamilton. We will cite some passages of a paper left
by him on the subject, in which, with his characteristic fulness and ability,
he examines the oath, and demonstrates that it is not only a mode of in
flicting punishment, but a mode in violation of all the constitutional
guarantees, secured by the revolution, of the rights and liberties of the
people.
" If we examine it " (the measure requiring the oath), said this great law
yer, " with an unprejudiced eye, we must acknowledge, not only that it was
an evasion of the treaty, but a subversion of one great principle of social
security, to wit : that every man shall be presumed innocent until he is
proved guilty. This was to invert the order of things ; and, instead of
obliging the State to prove the guilt, in order to inflict the penalty, it was to
oblige the citizen to establish his own innocence to avoid the penalty. It
was to excite scruples in the honest and conscientious, and to hold out a
bribe to perjury. . . . It was a mode of inquiry who had committed any
of those crimes to which the penalty of disqualification was annexed, with
this aggravation, that it deprived the citizen of the benefit of that advan
tage, which he would have enjoyed by leaving, as in all other cases, the bur
den of the proof upon the prosecutor.
" To place this matter in a still clearer light, let it be supposed that, in
stead of the mode of indictment and trial by jury, the legislature was to
declare that every citizen who did not swear he had never adhered to the
King of Great Britain should incur all the penalties which our treason laws
prescribe. Would this not be a palpable evasion of the treaty, and a direct
infringement of the Constitution ? The principle is the same in both cases,
with only this difference in the consequences — that in the instance already
acted upon the citizen forfeits a part of his rights ; in the one supposed he
would forfeit the whole. The degree of punishment is all that distinguishes
the cases. In either, justly considered, it is substituting anew and arbitrary
mode of prosecution to that ancient and highly esteemed one recognized by
the laws and constitution of the State. I mean the trial by jury.
" Let us not forget that the Constitution declares that trial by jury, in
all cases in which it has been formerly used, should remain inviolate for
ever, and that the legislature should at no time erect any new jurisdiction
which should not proceed according to the course of the common law.
Nothing can be more repugnant to the true genius of the common law than
such an inquisition, as has been mentioned, into the consciences of men.
. . If any oath with retrospect to past conduct were to be made the
APPENDIX. 565
condition on which individuals, who have resided within the British lines,
should hold their estates, we should immediately see that this proceeding
would be tyrannical, and a violation of the treaty ; and yet, when the same
mode is employed to divest that right, which ought to be deemed still more
sacred, many of us are so infatuated as to overlook the mischief.
" To say that the persons who will be affected by it have previously for
feited that right, and that, therefore, nothing is taken away from them, is a
begging of the question. How do we know who are the persons in this sit
uation ? If it be answered, this is the mode taken to ascertain it — the ob
jection returns — 'tis an improper mode ; because it puts the most essential
interests of the citizen upon a worse footing than we should be willing to
tolerate where inferior interests were concerned ; and because, to elude the
treaty, it substitutes for the established and legal mode of investigating
crimes and inflicting forfeitures, one that is unknown to the Constitution,
and re]3ugnant to the genius of our law."
Similar views have frequently been expressed by the judiciary in cases in
volving analogous questions. They are presented with great force in The
Matter of Dorsey ; * but we do not deem it necessary to pursue the subject
further.
The judgment of the Supreme Court of Missouri must be reversed, and
the cause remanded, with directions to enter a judgment reversing the judg
ment of the Circuit Court, and directing that court to discharge the defend
ant from imprisonment, and suffer him to depart without day.
And it is so ordered.
The Chief Justice, and Messrs. Justices Swayne, Davis, and Miller dis
sented. In behalf of this portion of the court, a dissenting opinion was de
livered by Mr. Justice Miller. This opinion applied equally or more to the
case of Ex Parte Garland (the case next following), which involved princi
ples of a character bimilar to those discussed in this case. The dissenting
opinion is, therefore, published after the opinion of the court in that case.
Ex PARTE GARLAND, 4 Wallace, S. C. Rep. 374.
Mr. Justice Field delivered the opinion of the court.
On the 2d of July, 1862, Congress passed an act prescribing an oath
to be taken by every person elected or appointed to any office of honor or
profit under the government of the United States, either in the civil, military,
or naval departments of the public service, except the President, before enter
ing upon the duties of his office, and before being entitled to its salary, or
other emoluments. On the 24th of January, 1865, Congress, by a sup
plementary act, extended its provisions so as to embrace attorneys and
counsellors of the courts of the United States. This latter act provides that
after its passage no person shall be admitted as an attorney and counsellor
to the bar of the Supreme Court, and, after the 4th of March, 1865, to the
bar of any Circuit or District Court of the United States, or of the Court of
Claims, or be allowed to appear and be heard by virtue of any previous
admission, or any special power of attorney, unless he shall have first taken
and subscribed the oath prescribed by the act of July 2, 1862. It also pro
vides that the oath shall be preserved among the files of the court ; and if
* 7 Porter, 294.
566 APPENDIX.
any person take it falsely he shall be guilty of perjury, and, upon conviction,
shall be subject to the pains and penalties of that offence.
At the December Term, 1860, the petitioner was admitted as an attorney
and counsellor of this court, and took and subscribed the oath then required.
By the second rule, as it then existed, it was only requisite to the admission
of attorneys and counsellors of this court, that they should have been such
officers for the three previous years in the highest courts of the States to
which they respectively belonged, and that their private and professional
character should appear to be fair.
In March, 1865, this rule was changed by the addition of a clause re
quiring the administration of the oath, in conformity with the act of
Congress.
In May, 1861, the State of Arkansas, of which the petitioner was a
citizen, passed an ordinance of secession, which purported to withdraw the
State from the Union, and afterwards, in the same year, by another ordinance,
attached herself to the so-called Confederate States, and by act of the Con
gress of that Confederacy was received as one of its members.
The petitioner followed the State, and was one of her representatives — first
in the lower House, and afterwards in the Senate, of the Congress of that Con
federacy, and was a member of the Senate at the time of the surrender of the
Confederate forces to the armies of the United States.
In July, 1865, he received from the President of the United States a full
pardon for all offences committed by his participation, direct or implied, in
the rebellion. He now produces his pardon, and asks permission to con
tinue to practise as an attorney and counsellor of the court without taking
the oath required by the act of 'January 24, 1865, and the rule of the court,
which he is unable to take, by reason of the offices he held under the Con
federate government. He rests his application principally upon two grounds :
1st. That the act of January 24, ]865, so far as it affects his status in the
court, is unconstitutional and void ; and,
2d. That, if the act be constitutional, he is released from compliance with
its provisions by the pardon of the President.
The oath prescribed by the act is as follows :
1st. That the deponent has never voluntarily borne arms against the United
States since he has been a citizen thereof;
2d. That he has not voluntarily given aid, countenance, counsel, or en
couragement to persons engaged in armed hostility thereto;
_ 3d. That he has never sought, accepted, or attempted to exercise the func
tions of any office whatsoever, under any authority, or pretended authority,
in hostility to the United States ;
4th. That he has not yielded a voluntary support to any pretended gov
ernment, authority, power, or constitution, within the United States, hostile
or inimical thereto ; and,
5th. That he will support and defend the Constitution of the United States
against all enemies, foreign and domestic, and will bear true faith and al
legiance to the same.
This last clause is promissory only, and requires no consideration. The
questions presented for our determination arise from the other clauses.
These all relate to past acts. Some of these acts constituted, when they
were committed, offences against the criminal laws of the country; others
may, or may not, have been offences, according to the circumstances under
which they were committed, and the motives of the parties. The first
clause covers one form of the crime of treason, and the deponent must
declare that he has not been guilty of this crime, not only during the war of
the rebellion, but during any period of his life since he has been a citizen.
APPENDIX. 567
The second clause goes beyond the limits of treason, and embraces not only
the giving of aid and encouragement of a treasonable nature to a public
enemy, but also the giving of assistance of any kind to persons engaged in
armed hostility to the United States. The third clause applies to the seek
ing, acceptance, or exercise not only of offices created for the purpose of
more effectually carrying on hostilities, but also of any of those offices which are
required in every community, whether in peace or war, for the administra
tion of justice and the preservation of order. The fourth clause not only
includes those who gave a cordial and active support to the hostile govern
ment, but also those who yielded a reluctant obedience to the existing order,
established without their co-operation.
The statute is directed against parties who have offended in any of the
particulars embraced by these clauses. And its object is to exclude them
from the profession of the law, or at least from its practice in the courts of
the United States. As the oath prescribed cannot be taken by these parties,
the act, as against them, operates as a legislative decree of perpetual exclu
sion. And exclusion from any of the professions or any of the ordinary
avocations of life for past conduct can be regarded in no other light than as
punishment for such conduct. The exaction of the oath is the mode pro
vided for ascertaining the parties upon whom the act is intended to operate,
and instead of lessening, increases its objectionable character. All enact
ments of this kind partake of the nature of bills of pains and penalties, and
are subject to the constitutional inhibition against the passage of bills of at
tainder, under which general designation they are included.
In the exclusion which the statute adjudges it imposes a punishment for
some of the acts specified which were not punishable at the time they were
committed ; and for other of the acts it adds a new punishment to that before
prescribed, and it is thus brought within the further inhibition of the Con
stitution against the passage of an ex post facto law. In the case of Cum-
mings v. The State of Missouri, just decided, we have had occasion to
consider at length the meaning of a bill of attainder and of an ex post facto
law in the clause of the Constitution forbidding their passage by the States,
and it is unnecessary to repeat here what we there said. A like prohibition
is contained in the Constitution against enactments of this kind by Congress ;
and the argument presented in that case against certain clauses of the con
stitution of Missouri is equally applicable to the act of Congress under con
sideration in this case.
The profession of an attorney and counsellor is not like an office created
by an act of Congress, which depends for its continuance, its powers, and its
emoluments upon the will of its creator, and the possession of which may be
burdened with any conditions not prohibited by the Constitution. Attorneys
and counsellors are not officers of the United States; they are not elected or
appointed in the manner prescribed by the Constitution for the election and
appointment of such officers. They are officers of the court, admitted as
such by its order, upon evidence of their possessing sufficient legal learning
and fair private character. It has been the general practice in this country
to obtain this evidence by an examination of the parties. In this court the
fact of the admission of such officers in the highest court of the States to
which they respectively belong, for three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learn
ing, and the statement of counsel moving their admission sufficient evidence
that their private and professional character is fair. The order of admission
is the judgment of the court that the parties possess the requisite qualifica
tions as attorneys and counsellors, and are entitled to appear as such and
conduct causes therein. From its entry the parties become officers of the
568 APPENDIX.
court, and are responsible to it for professional misconduct. They hold their
office during good behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after opportunity to
be heard has been afforded.* Their admission or their exclusion is not the
exercise of a mere ministerial power. It is the exercise of judicial power,
and has been so held in numerous cases. It was so held by the Court of
Appeals of New York in the matter of the application of Cooper for admis-
sion.f " Attorneys and counsellors," said that court, " are not only officers
of the court, but officers whose duties relate almost exclusively to proceed
ings of a judicial nature. And hence their appointment may, with propriety,
be intrusted to the courts, and the latter in performing this duty may very
justly be considered as engaged in the exercise of their appropriate judicial
functions."
In Ex Parte Secombe,^ a mandamus to the Supreme Court of the Territory
of Minnesota to vacate an order removing an attorney and counsellor was
denied by this court, on the ground that the removal was a judicial act.
" We are not aware of any case," said the court, " where a mandamus was
issued to an inferior tribunal, commanding it to reverse or annul its decision,
where the decision was in its nature a judicial act and within the scope of its
jurisdiction and discretion." And in the same case the court observed, that
" it has been well settled by the rules and practice of common law courts,
that it rests exclusively with the court to determine who is qualified to
become one of its officers, as an attorney and counsellor, and for what cause
he ought to be removed."
The attorney and counsellor being, by the solemn judicial act of the court,
clothed with his office, does not hold it as a matter of grace and favor. The
right which it confers upon him to appear for suitors, and to argue causes, is
something more than a mere indulgence, revocable at the pleasure of the
court, or at the command of the legislature. It is a right of which he can
only be deprived by the judgment of the court, for moral or professional
delinquency.
The legislature may undoubtedly prescribe qualifications for the office, to
which he must conform, as it may, where it has exclusive jurisdiction, pre
scribe qualifications for the pursuit of any of the ordinary avocations of life.
The question, in this case, is not as to the power of Congress to prescribe
qualifications, but whether that power has been exercised as a means for the
infliction of punishment, against the prohibition of the Constitution. That
this result cannot be effected indirectly by a State under the form of creating
qualifications we have held in the case of Cummings v. The State of Missouri,
and the reasoning by which that conclusion was reached applies equally to
similar action on the part of Congress.
This view is strengthened by a consideration of the effect of the pardon
produced by the petitioner, and the nature of the pardoning power of the
President.
The Constitution provides that the President " shall have power to grant
reprieves and pardons for offences against the United States, except in cases
of impeachment." §
The power thus conferred is unlimited, with the exception stated. It ex
tends to every offence known to the law, and may be exercised at any time
after its commission, either before legal proceedings are taken, or during
their pendency, or after conviction and judgment. This power of the Presi-
* Ex parte Heyfron, 7 Howard, Mississippi, 127; Fletcher v. Daingerfield, 20 Califor
nia, 430.
t 22 New York, 81. J 19 Howard, 9. § Article II. §2.
APPENDIX. 569
dent is not subject to legislative control. Congress can neither limit the
effect of his pardon, nor exclude from its exercise any class of offenders.
The benign prerogative of mercy reposed in him cannot be fettered by any
legislative restrictions.
Such being the case, the inquiry arises as to the effect and operation of a
pardon, and on this point all the authorities concur. A pardon reaches both
the punishment prescribed for the offence and the guilt of the offender ; and
when the pardon is full, it releases the punishment and blots out of existence
the guilt, so that in the eye of the law the offender is as innocent as if he had
never committed the offence. If granted before conviction, it prevents any
of the penalties and disabilities consequent upon conviction from attaching ;
if granted after conviction, it removes the penalties and disabilities, and
restores him to all his civil rights ; it makes him, as it were, a new man, and
gives him a new credit and capacity.
There is only this limitation to its operation : it does not restore offices
forfeited, or property or interests vested in others in consequence of the con-
A'iction and judgment." *
The pardon produced by the petitioner is a full pardon " for all offences
by him committed, arising from participation, direct or implied, in the rebel
lion," and is subject to certain conditions which have been complied with.
The effect of this pardon is to relieve the petitioner from all penalties and
disabilities attached to the offence of treason, committed by his participation
in the rebellion. So far as that offence is concerned, he is thus placed be
yond the reach of punishment of any kind. But to exclude him, by reason
of that offence, from continuing in the enjoyment of a previously acquired
right, is to enforce a punishment for that offence notwithstanding the pardon.
If such exclusion can be effected by the exaction of an expurgatory oath
covering the offence, the pardon may be avoided, and that accomplished in
directly which cannot be reached by direct legislation. It is not within the
constitutional power of Congress thus to inflict punishment beyond the reach
of executive clemency. From the petitioner, therefore, the oath required by
the act of January 24, 1S65, could not be exacted, even if that act were not
subject to any other objection than the one thus stated.
It follows, from the views expressed, that the prayer of the petitioner must
be granted.
The case of R. H. Marr is similar, in its main features, to that of the
petitioner, and his petition must also be granted.
And the amendment of the second rule of the court, which requires the
oath prescribed by the act of January 24, 1865, to be taken by attorneys and
counsellors, having been unadvisedly adopted, must be rescinded.
And it is so ordered.
Mr. Justice Miller, on behalf of himself and the Chief Justice, and Justices
Swayne and Davis, delivered the following dissenting opinion, which applies
also to the opinion delivered in dimming s v. Missouri. (See supja, p. 316.)
I dissent from the opinions of the court just announced.
It may be hoped that the exceptional circumstances which give present
importance to these cases will soon pass away, and that those who make the
laws, both state and national, will rind in the conduct of the persons af
fected by the legislation just declared to be void, sufficient reason to repeal
or essentially modify it.
For the speedy return of that better spirit, which shall leave us no cause
* 4 Blackstone's Commentaries, 402; G Bacon's Abridgment, tit. Fardon; Hawkins,
book 2, c. 37, §§ 34 and 54.
72
570 APPENDIX.
for such laws, all good men look with anxiety, and with a hope, I trust, not
altogether unfounded.
But the question involved, relating, as it does, to the right of the legisla
tures of the nation, and of the State, to exclude from offices and places of
high public trust, the administration of whose functions are essential to the
very existence of the government, those among its own citizens who have
heen engaged in a recent effort to destroy that government by force, can
never cease to be one of profound interest.
It is at all times the exercise of an extremely delicate power for this court
to declare that the Congress of the nation, or the legislative body of a State,
has assumed an authority not belonging to it, and by violating the Constitu
tion, has rendered void its attempt at legislation. In the case of an act of
Congress, which expresses the sense of the members of a co-ordinate depart
ment of the government, as much bound by their oath of office as we are to
respect that Constitution, and whose duty it is, as much as it is ours, to be
careful that no statute is passed in violation of it, the incompatibility of the
act with the Constitution should be so clear as to leave little reason for
doubt, before we pronounce it to be invalid.
Unable to see this incompatibility, either in the act of Congress or in the
provision of the constitution of Missouri, upon which this court has just
passed, but entertaining a strong conviction that both were within the com
petency of the bodies Avhich enacted them, it seems to me an occasion which
demands that my dissent from the judgment of the court, and the reasons
for that dissent, should be placed on its records.
In the comments which I have to make upon these cases, I shall speak of
principles equally applicable to both, although I shall refer more directly to
that which involves the oath required of attorneys by the act of Congress,
reserving for the close some remarks more especially applicable to the oath
prescribed by the constitution of the State of Missouri.
The Constitution of the United States makes ample provision for the es
tablishment of courts of justice to administer her laws, and to protect and
enforce the rights of her citizens. Article III., Section 1, of that instrument
says that "the judicial power of the United States shall be vested in one
Supreme Court, and such inferior courts as the Congress may, from time to
time, ordain and establish." Section 8 of Article I. closes its enumeration
of the powers conferred on Congress by the broad declaration that it shall
have authority " to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers vested by
the Constitution in the government of the United States, or in any depart
ment thereof."
Under these provisions, Congress has ordained and established circuit
courts, district courts, and territorial courts ; and has, by various statutes,
fixed the number of the judges of the Supreme Court. It has limited and
denned the jurisdiction of all these, and determined the salaries of the judges
who hold them. It has provided for their necessary officers, as marshals,
clerks, prosecuting attorneys, bailiffs, commissioners, and jurors. And by
the act of 1789, commonly called the Judiciary Act, passed by the first Con
gress assembled under the Constitution, it is among other things enacted,
that " in all the courts of the United States the parties may plead and man
age their causes personally ; or by the assistance of such counsel or attorneys
at law as, by the rules of the said courts respectively, shall be permitted to
manage and conduct causes therein."
It is believed that no civilized nation of modern times has been without a
class of men intimately connected with the courts, and with the administra
tion of justice, called variously attorneys, counsellors, solicitors, proctors, and
APPENDIX. 571
other terms of similar import. The enactment which we have just cited
recognizes this body of men, and their utility in the judicial system of the
United States, and imposes upon the courts the duty of providing rules, by
which persons entitled to become members of this class may be permitted to
exercise the privilege of managing and conducting causes in these courts.
They are as essential to the successful working of the courts, as the clerks,
sheriffs, and marshals, and perhaps as the judges themselves, since no in
stance is known of a court of law without a bar.
The right to practise law in the courts as a profession is a privilege granted
by the law, under such limitations or conditions in each State or government
as the law-making power may prescribe. It is a privilege, and not an
absolute right. The distinction may be illustrated by the difference between
the right of a party to a suit in court to defend his own cause, and the
right of another to appear and defend for him. The one, like the right to
life, liberty, and the pursuit of happiness, is inalienable. The other is the
privilege conferred by law on a person who complies with the prescribed
conditions.
Every State in the Union, and every civilized government, has laws by
which the right to practise in its courts may be granted, and makes that right
to depend on the good moral character and professional skill of the party on
whom the privilege is conferred. This is not only true in reference to the
first grant of license to practise law, but the continuance of the right is made,
by these laws, to depend upon the continued possession of those qualities.
Attorneys are often deprived of this right, upon evidence of bad moral
character, or specific acts of immorality or dishonesty, which show that they
no longer possess the requisite qualifications.
All this is done by law, either statutory or common ; and whether the one
or the other, equally the expression of legislative will, for the common law
exists in this country only as it is adopted or permitted by the legislatures,
or by constitutions.
No reason is perceived why this body of men, in their important relations
to the courts of the nation, are not subject to the action of Congress, to the
same extent that they are under legislative control in the States, or in any
other government; and to the same extent that the judges, clerks, marshals,
and other officsrs of the court are subject to congressional legislation. Hav
ing the power to establish the courts, to provide for and regulate the practice
in those courts, to create their officers, and prescribe their functions, can it be
doubted that Congress has the full right to prescribe terms for the admission,
rejection, and expulsion of attorneys, and for requiring of them an oath, to
show whether they have the proper qualifications for the discharge of their
duties ?
The act which has just been declared to be unconstitutional is nothing
more than a statute which requires of all lawyers who propose to practise in
the national courts, that they shall take the same oath which is exacted of
every officer of the government, civil or military. This oath has two aspects ;
one which looks to the past conduct of the party, and one to his future con
duct ; but both have reference to his disposition to support or to overturn
the government, in whose functions he proposes to take part. In substance,
he is required to swear that he has not been guilty of treason to that govern
ment in the past, and that he will bear faithful allegiance to it in the future.
That fidelity to the government under which he lives, a true and loyal
attachment to it, and a sincere desire for its preservation, are among the
most essential qualifications which should be required in a lawyer, seems to
me to be too clear for argument. The history of the Anglo-Saxon race
shows that, for ages past, the members of the legal profession have been
572 APPENDIX.
powerful for good or evil to the government. They are, by the nature of
their duties, the moulders of public sentiment on questions of government,
and are every day engaged in aiding in the construction and enforcement of
the laws. From among their numbers are necessarily selected the judges
who expound the laws and the Constitution. To suffer treasonable senti
ments to spread here unchecked, is to permit the stream on which the life of
the nation depends to be poisoned at its source.
In illustration of this truth, I venture to affirm, that if all the members of
the legal profession in the States lately in insurrection had possessed the
qualification of a loyal and faithful allegiance to the government, we should
have been spared the horrors of that rebellion. If, then, this qualification be
so essential in a lawyer, it cannot be denied that the statute under considera
tion was eminently calculated to secure that result.
The majority of this court, however, do not base their decisions on the
mere absence of authority in Congress, and in the States, to enact the laws
which are the subject of consideration, but insist that the Constitution of the
United States forbids, in prohibitory terms, the passage of such laws, both to
the Congress and to the States. The provisions of that instrument, relied
on to sustain this doctrine, are those which forbid Congress and the States,
respectively, from passing bills of attainder and ex post facto laws. It is said
that the act of Congress, and the provision of the constitution of the State of
Missouri under review, are in conflict with both these prohibitions, and are
therefore void.
I will examine this proposition, in reference to these two clauses of the
Constitution, in the order in which they occur in that instrument.
1. In regard to bills of attainder, I am not aware of any judicial decision
by a court of Federal jurisdiction which undertakes to give a definition of
that term. We are therefore compelled to recur to the bills of attainder
passed by the English Parliament, that we may learn so much of their
peculiar characteristics as will enable us to arrive at a sound conclusion as
to what was intended to be prohibited by the Constitution.
The word attainder is derived, by Sir Thomas Tomlins. in his law dic
tionary, from the words attincta and attinctura, and is defined to be " the
stain or corruption of the blood of a criminal capitally condemned ; the im
mediate inseparable consequence of the common law on the pronouncing the
sentence of death." The effect of this corruption of the blood was. that the
party attainted lost all inheritable quality, and could neither receive nor
transmit any property or other rights by inheritance.
This attainder or corruption of blood, as a consequence of judicial sentence
of death, continued to be the law of England, in all cases of treason, to the
time that our Constitution was framed, and, for aught that is known to me,
is the law of that country, on condemnation for treason, at this day.
Bills of attainder, therefore, or acts of attainder, as they were called after
they were passed into statutes, were laws which declared certain persons
attainted, and their blood corrupted so that it had lost all heritable quality.
Whether it declared other punishment or not, it was an act of attainder if it
declared this. This also seems to have been the main feature at which the
authors of the Constitution were directing their prohibition ; for after having,
in Article I., prohibited the passage of bills of attainder, — in section nine to
Congress, and in section ten to the States, — there still remained to the
judiciary the power of declaring attainders. Therefore, to still further guard
against this odious form of punishment, it is provided, in section three of
Article III., concerning the judiciary, that, while Congress shall have power to
declare the punishment of treason, no attainder of treason shall work cor
ruption of blood or forfeiture except during the life of the person attainted.
APPENDIX. 573
This, however, while it was the chief, was not the only peculiarity of bills
of attainder which was intended to be included within the constitutional re
striction. Upon an attentive examination of the distinctive features of this
kind of legislation, I think it will be found that the following comprise those
essential elements of bills of attainder, in addition to the one already men
tioned, which distinguish them from other legislation, and which made them,
so obnoxious to the statesmen who organized our government : —
1. They were convictions and sentences pronounced by the legislative
department of the government, instead of the judicial.
2. The sentence pronounced and the punishment inflicted were determined
by no previous law or fixed rule.
" 3. The investigation into the guilt of the accused, if any such were made,
was not necessarily or generally conducted in his presence, or that of his
counsel, and no recognized rule of evidence governed the inquiry.*
It is no cause for wonder that men who had just passed successfully
through a desperate struggle in behalf of civil liberty should feel a detesta
tion for legislation of which these were the prominent features. The framers
of our political system had a full appreciation of the necessity of keeping
separate and distinct the primary departments of the government. Mr.
Hamilton, in the seventy-eighth number of the Federalist, says that he.
agrees with the maxim of Montesquieu, that " there is no liberty if the power
of judging be not separated from the legislative and executive powers."
And others of the ablest numbers of that publication are devoted to the pur
pose of showing that in our Constitution these powers are so justly balanced
and restrained that neither will probably be able to make much encroach
ment upon the others. Nor was it less repugnant to their views of the
security of personal rights, that any person should be condemned without a
hearing, and punished without a law previously prescribing the nature and
extent of that punishment. They therefore struck boldly at all this ma
chinery of legislative despotism, by forbidding the passage of bills of attain
der and ex post facto laws, both to Congress and to the States.
It remains to inquire whether, in the act of Congress under consideration
(and the remarks apply with equal force to the Missouri constitution), there
is found any one of these features of bills of attainder ; and if so, whether
there is sufficient in the act to bring it fairly within the description of that
class of bills.
It is not claimed that the law works a corruption of blood. It will, there
fore, be conceded at once, that the act .does not contain this leading feature
of bills of attainder.
Nor am I capable of seeing that it contains a conviction or sentence of any
designated person or persons. It is said that it is not necessary to a bill of
attainder that the party to be affected should be named in the act, and the
attainder of the Earl of Kildare and his associates is referred to as show
ing that the act was aimed at a class. It is very true that bills of attainder
have been passed against persons by some description, when their names
were unknown. But in such cases the law leaves nothing to be done to ren
der its operation effectual, but to identify those persons. Their guilt, its
nature, and its punishment, are fixed by the statute, and only their personal
identity remains to be made out. Such was the case alluded to. The act
declared the guilt and punishment of the Earl of Kildare, and all who were
associated with him in his enterprise, and all that was required to insure
their punishment was to prove that association.
If this were not so, then the act was mere brutum fulmen, and the par-
* See Story on the Constitution, § 1344.
574 APPENDIX.
ties other than the earl could only be punished, notwithstanding the act, by
proof of their guilt before some competent tribunal.
No person is pointed out in the act of Congress, either by name or by de
scription, against whom it is to operate. The oath is only required of those
who propose to accept an office or to practise law ; and as a prerequisite to
the exercise of the functions of the lawyer, or the officer, it is demanded of
all persons alike. It is said to be directed, as a class, to those alone who
were engaged in the rebellion ; but this is manifestly incorrect, as the oath
is exacted alike from the loyal and disloyal, under the same circumstances,
and none are compelled to take it. Neither does the act declare any convic
tion, either of persons or classes. If so, who are they, and of what crime
are they declared to be guilty? Nor does it pronounce any sentence, or in
flict any punishment. If by any possibility it can be said to provide for con
viction and sentence, though not found in the act itself, it leaves the party
himself to determine his own guilt or innocence, and pronounce his own
sentence. It is not, then, the act of Congress, but the party interested,
that tries and condemns. We shall see, when we come to the discussion of
this act in its relation to ex post facto laws, that it inflicts no punish
ment.
A statute, then, which designates no criminal, either by name or descrip
tion, — which declares no guilt, pronounces no sentence, and inflicts no pun
ishment, — can in no sense be called a bill of attainder.
2. Passing now to consider whether the statute is an ex post facto law,
we find that the meaning of that term, as used in the Constitution, is a mat
ter which has been frequently before this court, and it has been so well de
fined as to leave no room for controversy. The only doubt which can arise
is as to the character of the particular case claimed to come within the defi
nition, and not as to the definition of the phrase itself.
All the cases agree that the term is to be applied to criminal causes alone,
and not to civil proceedings. In the language of Justice Story, in the case
of Watson v. Mercer* " Ex post facto laws relate to penal and criminal pro
ceedings, which impose punishment and forfeiture, and not to civil proceed
ings, which affect private rights retrospectively." f
The first case on the subject is that of Colder v. Bull, and it is the one in
which the doctrine concerning ex post facto laws is most fully expounded.
The court divides all laws which come within the meaning of that clause of
the Constitution into four classes : —
1. Every law that makes an action done before the passing of the law, and
which was innocent when done, criminal, and punishes such action.
2. Every law that aggravates a crime, or makes it greater than it was
when committed.
3. Every law that changes the punishment, and inflicts a greater punish
ment than the law annexed to the crime when committed.
4. Every law that alters the rule of evidence, and receives less or differ
ent testimony than the law required at the time of the commission of the
offence to convict the offender.
Again, the court says, in the same opinion, that " the true distinction is
between ex post facto laws and retrospective laws," and proceeds to show
that, however unjust the latter may be, they are not prohibited by the Con
stitution, while the former are.
This exposition of the nature of ex post facto laws has never been de-
* 8 Peters, 88.
t Calder v. Bull, 3 Dallas, 380; Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders,
12 Wheaton, 2C6; Satterlee v. Matthewson, 2 Peters, 380.
APPENDIX. 575
nied, nor has any court or any commentator on the Constitution added to
the classes of laws here set forth, as coming within that clause of the organic
laxv, In looking carefully at these four classes of laws, two things strike
the mind as common to them all : —
1. That they contemplate the trial of some person charged with an
offence.
2. That they contemplate a punishment of the person found guilty of such
offence.
Now, it seems to me impossible to show that the law in question contem
plates either the trial of a person for an offence committed before its pas
sage, or the punishment of any person for such an offence. It is true that
the act requiring an oath provides a penalty for falsely taking it. But this
provision is prospective, as no one is supposed to take the oath until after
the passage of the law. This prospective penalty is the only thing in the
law which partakes of a criminal character. It is in all other respects a civil
proceeding. It is simply an oath of office, and it is required of all office
holders alike. As far as I am informed, this is the first time in the history
of jurisprudence that taking an oath of office has been called a criminal pro
ceeding. If it is not a criminal proceeding, then, by all the authorities, it is
not an ex post facto law.
No trial of any person is contemplated by the act for any past offence.
Nor is any party supposed to be charged with any offence in the only pro
ceeding which the law provides.
A person proposing to appear in the court as an attorney is asked to take
a certain oath. There is no charge made against him that he has been guilty
of any of the crimes mentioned in that oath. There is no prosecution.
There is not even an implication of guilt by reason of tendering him the
oath, for it is required of the man who has lost everything in defence of the
government, and whose loyalty is written in the honorable scars which cover
his body, the same as of the guiltiest traitor in the land. His refusal to take
the oath subjects him to no prosecution. His taking it clears him of no
guilt, and acquits him of no charge.
Where, then, is this ex post facto law which tries and punishes a man for
a crime committed before it was passed ? It can only be found in those elas
tic rules of construction which cramp the powers of the Federal government
when they are to be exercised in certain directions, and enlarge them when
they are to be exercised in others. No more striking example of this could
be given than the cases before us, in one of which the Constitution of the
United States is held to confer no power on Congress to prevent traitors
practising in her courts, while in the other it is held to confer power on this
court to nullify a provision of the constitution of the State of Missouri, relat
ing to a qualification required of ministers of religion.
But the fatal vice in the reasoning of the majority is in the meaning which
they attach to the word punishment, in its application to this law, and in
its relation to the definitions which have been given of the phrase ex post
facto laws.
Webster's second definition of the word " punish " is this : "In a loose
sense, to afflict with punishment, &c., with a view to amendment, to chas
ten." And it is in this loose sense that the word is used by this court, as
synonymous with chastisement, correction, loss, or suffering to the party
supposed to be punished, and not in the legal sense, which signifies a pen
alty inflicted for the commission of crime.
And so, in this sense, it is said that whereas persons who had been guilty
of the offences mentioned in the oath were, by the laws then in force, only
liable to be punished with death and confiscation of all their property, they
576 APPENDIX.
are by a law passed since these offences were committed, made liable to the
enormous additional punishment of being deprived of the right to practise
law !
The law in question does not in reality deprive a person guilty of the acts
therein described of any right which he possessed before ; for it is equally
sound law, as it is the dictate of good sense, that a person who, in the lan
guage of the act, has voluntarily borne arms against the government of the
United States while a citizen thereof, or who has voluntarily given aid, com
fort, counsel, or encouragement to persons engaged in armed hostility to
the government, has, by doing those things, forfeited his right to appear in
her courts and take part in the administration of her laws. Such a person
has exhibited a trait of character which, without the aid of the law in ques
tion, authorizes the court to declare him unfit to practise before it, and to
strike his name from the roll of its attorneys if it be found there.
I have already shown that this act provides for no indictment or other
charge, that it contemplates and admits of no trial, and I now proceed to
show that even if the right of the court to prevent an attorney, guilty of the
acts mentioned, from appearing in its forum, depended upon the statute, that
still it inflicts no punishment in the legal sense of that term.
" Punishment," says Mr. Wharton in his Law Lexicon, " is the penalty
for transgressing the laws ; " and this is, perhaps, as comprehensive and at
the same time as accurate a definition as can be given. Now, what law is
it whose transgression is punished in the case before us ? None is referred
to in the act, and there is nothing on its face to show that it was intended as
an additional punishment for any offence described in any other act. A part
of the matters of which the applicant is required to purge himself on oath
may amount to treason, but surely there could be no intention or desire to
inflict this small additional punishment for a crime whose penalty already
was death and confiscation of property.
In fact the word punishment is used by the court in a sense which would
make a great number of laws, partaking in no sense of a criminal character,
laws for punishment, and therefore ex post facto.
A law, for instance, which increased the facility for detecting frauds by
compelling a party to a civil proceeding to disclose his transactions under
oath would result in his punishment in this sense, if it compelled him to pay
an honest debt which could not be coerced from him before. But this law
comes clearly within the class described by this court in Watson v. Mercer,
as civil proceedings which affect private rights retrospectively.
Again, let us suppose that several persons afflicted with a form of insanity
heretofore deemed harmless, shall be found all at once to be dangerous to
the lives of persons with whom they associate. The State, therefore, passes
a law that all persons so affected shall be kept in close confinement until
their recovery is assured. Here is a case of punishment in the sense used
by the court for a matter existing before the passage of the law. Is it an
ex post facto law? And, if not, in what does it differ from one? Just in
the same manner that the act of Congress does, namely, that the proceeding
is civil, and not criminal, and that the imprisonment in the one case and the
prohibition to practise law in the other are not punishments in the legal
meaning of that term.
The civil law maxim, " Nemo debet bis vexari pro una et eadam causa"
has been long since adopted into the common law as applicable both to civil
and criminal proceedings, and one of the amendments of the Constitution
incorporates this principle into that instrument so far as punishment affects
life or limb. It results from this rule that no man can be twice lawfully
punished for the same offence. We have already seen that the acts of which
APPENDIX. 577
the party is required to purge himself on oath constitute the crime of trea
son. Now, if the judgment of the court in the cases before us, instead of
permitting the parties to appear without taking the oath, had been the other
way, here would have been the case of a person who, on the reasoning of the
majority, is punished by the judgment of this court for the same acts which
constitute the crime of treason.
Yet, if the applicant here should afterwards be indicted for treason on
account of these same acts, no one will pretend that the proceedings here
could be successfully pleaded in bar of that indictment. But why not?
Simply because there is here neither trial nor punishment within the legal
meaning of these terms.
I maintain that the purpose of the act of Congress was to require loyalty
as a qualification of all who practise law in the national courts. The ma
jority say that the purpose was to impose a punishment for past acts of dis
loyalty.
In pressing this argument it is contended by the majority that no require
ment can be justly said to be a qualification which is not attainable by
all, and that to demand a qualification not attainable by all is a punish
ment.
The Constitution of the United States provides as a qualification for the
offices of President and Vice-President that the person elected must be a
native-born citizen. Is this a punishment to all those naturalized citizens
who can never attain that qualification ? The constitutions of nearly all the
States require as a qualification for voting that the voter shall be a white
male citizen. Is this a punishment for all the blacks, who can never become
white ?
Again, it was a qualification required by some of the State constitutions,
for the office of judge, that the person should not be over sixty years of age.
To a very large number of the ablest lawyers in any State this is a qualifi
cation to which they can never attain, for every year removes them farther
away from the designated age. Is it a punishment ?
The distinguished commentator on American law, and chancellor of the
State of New York, was deprived of that office by this provision of the con
stitution of that State ; and he was thus, in the midst of his usefulness, not
only turned out of office, but he was forever disqualified from holding it
again, by a law passed after he had accepted the office.
' This is a much stronger case than that of a disloyal attorney forbid by law
to practise in the courts ; yet no one ever thought the law was ex post facto
in the sense of the Constitution of the United States.
Illustrations of this kind could be multiplied indefinitely, but they are un
necessary.
The history of the time when this statute was passed, — the darkest hour
of our great struggle, — the necessity for its existence, the humane charac
ter of the President who signed the bill, and the face of the law itself, all
show that it was purely a qualification, exacted in self-defence, of all who
took part in administering the government in any of its departments, and
that it was not passed for the purpose of inflicting punishment, however
merited, for past offences.
I think I have now shown that the statute in question is within the legis
lative power of Congress in its control over the courts and their officers, and
that it was not void as being either a bill of attainder or an ex post facto law.
If I am right on the questions of qualification and punishment, that dis
cussion disposes also of the proposition, that the pardon of the President
relieves the party accepting it of the necessity of taking the oath, even if the
law be valid.
73
578 APPENDIX.
I am willing to concede that the presidential pardon relieves the party
from all the penalties, or, in other words, from all the punishment, which the
law inflicted for his offence. But it relieves him from nothing more. If the
oath required as a condition to practising law is not a punishment, as I think
I have shown it is not, then the pardon of the President has no effect in re
leasing him from the requirement to take it. If it is a qualification which
Congress had a right to prescribe as necessary to an attorney, then the
President cannot, by pardon or otherwise, dispense with the law requiring
such qualification.
This is not only the plain rule as between the legislative and executive
departments of the government, but it is the declaration of common sense.
The man who, by counterfeiting, by theft, by murder, or by treason, is ren
dered unfit to exercise the functions of an attorney or counsellor at law, may
be saved by the executive pardon from the penitentiary or the gallows, but
is not thereby restored to the qualifications which are essential to admission
to the bar. No doubt it will be found that very many persons among those
who cannot take this oath, deserve to be relieved from the prohibition of the
law ; but this in no wise depends upon the act of the President in giving or
refusing a pardon. It remains to the legislative power alone to prescribe
under what circumstances this relief shall be extended.
In regard to the case of Cummings v. The State of Missouri, allusions
have been made, in the course of argument, to the sanctity of the ministerial
office, and to the inviolability of religious freedom in this country.
But no attempt has been made to show that the Constitution of the United
States interposes any such protection between the State governments and
their own citizens. Nor can anything of this kind be shown. The Federal
Constitution contains but two provisions on this subject. One of these for
bids Congress to make any law respecting the establishment of religion, or
prohibiting the free exercise thereof. The other is, that no religious test
shall ever be required as a qualification to any office or public trust under
the United States.
No restraint is placed by that instrument on the action of the States ; but
on the contrary, in the language of Story,* " the whole power over the sub
ject of religion is left exclusively! o the State governments, to be acted
upon according to their own sense of justice and the State constitutions."
If there ever was a case calling upon this court to exercise all the power
on this subject which properly belongs to it, it was the case of the Rev. B.
Permoli.
An ordinance of the first municipality of the city of New Orleans imposed"
a penalty on any priest who should officiate at any funeral, in any other
church than the obituary chapel. Mr. Permoli, a Catholic priest, performed
the funeral services of his church over the body of one of his parishioners,
enclosed in a coffin, in the Roman Catholic Church of St. Augustine. For
this he was fined, and relying upon the vague idea advanced here, that the
Federal Constitution protected him in the exercise of his holy functions, he
brought the case to this court.
But hard as that case was, the court replied to him in the following lan
guage : " The Constitution [of the United States] makes no provision for
protecting the citizens of the respective States in their religious liberties ;
this is left to the State constitutions and laws ; nor is there any inhibition
imposed by the Constitution of the United States in this respect on the
States." f Mr. Permoli's writ of error was, therefore, dismissed for want of
jurisdiction.
* Commentaries on the Constitution, § 1878. -f 3 Howard, 589.
APPENDIX. 579
In that case an ordinance of a mere local corporation forbade a priest, loyal
to his government, from performing what he believed to be the necessary
rites of his church over the body of his departed friend. This court said it
could give him no relief.
In this case the constitution of the State of Missouri, the fundamental
law of the people of that State, adopted by their popular vote, declares that
no priest of any church shall exercise his ministerial functions, unless he will
show, by his own oath, that he has borne a true allegiance to his govern
ment. This court now holds this constitutional provision void, on the
ground that the Federal Constitution forbids it. I leave the two cases to
speak for themselves.
In the discussion of these cases I have said nothing, on the one hand, of
the great evils inflicted on the country by the voluntary action of many of
those persons affected by the laws under consideration ; nor, on the other
hand, of the hardships which they are now suffering, much more as a conse
quence of that action than of any laws which Congress can possibly frame.
But I have endeavored to bring to the examinatio-n of the grave questions
of constitutional law involved in this inquiry those principles alone which
are calculated to assist in determining what the law is, rather than what, in
my private judgment, it ought to be.
THE STATE OF MISSISSIPPI v. JOHNSON, 4 Wallace, S. C. Rep. 497.
The Chief Justice delivered the opinion of the court.
A motion was made, some days since, in behalf of the State of Missis
sippi, for leave to file a bill in the name of the State, praying this court
perpetually to enjoin and restrain Andrew Johnson, President of the United
States, and E. O. C. Ord, general commanding in the District of Mississippi
and Arkansas, from executing, or in any manner carrying out, certain acts
of Congress therein named.
The acts referred to are those of March 2 and March 23, 1867, com
monly known as the Reconstruction Acts.
The Attorney General objected to the leave asked for, upon the ground
that no bill which makes a President a defendant, and seeks an injunction
against him to restrain the performance of his duties as President, should
be allowed to be filed in this court.
This point has been fully argued, and we will now dispose of it.
We shall limit our inquiry to the question presented by the objection,
without expressing any opinion on the broader issues discussed in argument,
whether, in any case, the* President of the United States may be required,
by the process of this court, to perform a purely ministerial act under a
positive law, or may be held amenable, in any case, otherwise than by im
peachment for crime.
The single point which requires consideration is this : Can the President
be restrained by Injunction from carrying into effect an act .of Congress
alleged to be unconstitutional ?
It is assumed by the counsel for the State of Mississippi, that the Presi
dent, in the execution of the Reconstruction Acts, is required to perform a
mere ministerial duty. In this assumption there is, we think, a confounding
of the terms ministerial and executive, which are by no means equivalent in
import.
A ministerial duty, the performance of which may, in proper cases, be
580 APPENDIX.
required of the head of a department, by judicial process, is one in respect
to which nothing is left to discretion. It is a simple, definite duty, arising
under conditions admitted or proved to exist, and imposed by law.
The case of Marbury v. Madison, Secretary of State* furnishes an illus
tration. A citizen had been nominated, confirmed, and appointed a justice
of the peace for the District of Columbia, and his commission had been
made out, signed, and sealed. Nothing remained to be done except de
livery, and the duty of delivery was imposed by law on the Secretary of
State. It was held that the performance of this duty might be enforced by
mandamus issuing from a court having jurisdiction.
So, in the case of Kendall, Postmaster General, v. Stockton & Stokesrf an
act of Congress had directed the Postmaster General to credit Stockton &
Stokes with such sums as the Solicitor of the Treasury should find due to
them ; and that officer refused to credit them with certain sums, so found
due. It was held that the crediting of this money was a mere ministerial
duty, the performance of which might be judicially enforced.
In each of these cases nothing was left to discretion. There was no room
for the exercise of judgment. The law required the performance of a single
specific act ; and that performance, it was held, might be required by
mandamus.
Very different is the duty of the President in the exercise of the power to
see that the laws are faithfully executed, and among these laws the acts
named in the bill. By the first of these acts he is required to assign gen
erals to command in the several military districts, and to detail sufficient
military force to enable such officers to discharge their duties under the law.
By the supplementary act, other duties are imposed on the several com
manding generals, and these duties must necessarily be performed under
the supervision of the President as commander-in-chief. The duty thus
imposed on the President is in no just sense ministerial. It is purely
executive and political.
An attempt on the part of the judicial department of the government to
enforce the performance of such duties by the President might be justly
characterized, in the language of Chief Justice Marshall, as " an absurd and
excessive extravagance."
It is true that in the instance before us the interposition of the court is
not sought to enforce action by the Executive under constitutional legisla
tion, but to restrain such action under legislation alleged to be unconstitu
tional. But we are unable to perceive that this circumstance takes the case
out of the general principles wrhich forbid judicial interference writh the
exercise of Executive discretion.
It was admitted in the argument that the application now made to us is
without a precedent ; and this is of much weight against it.
Had it been supposed at the bar that this court would, in any case, in
terpose, by injunction, to prevent the execution of an unconstitutional act
of Congress, it can hardly be doubted that applications with that object
would have been heretofore addressed to it.
Occasions have not been wanting.
The constitutionality of the act for the annexation of Texas was vehe
mently denied. It made important and permanent changes in the relative
importance of States and sections, and was by many supposed to be preg
nant with disastrous results to large interests in particular States. But no
one seems to have thought of an application for an injunction against the
execution of the act by the President.
* 1 Crunch, i:*7. f 12 Peters, 527.
APPENDIX. 581
And yet it is difficult to perceive upon what principle the application now
before us can be allowed, and similar applications in that and other cases
have been denied.
The fact that no such application was ever before made in any case indi
cates the general judgment of the profession that no such application should
be entertained.
It will hardly be contended that Congress can interpose, in any case, to
restrain the enactment of an unconstitutional law ; and yet how can the
right to judicial interposition to prevent such an enactment, when the pur
pose is evident and the execution of that purpose certain, be distinguished, in
principle, from the right to such interposition against the execution of such
a law by the President ?
The Congress is the legislative department of the government; the
President is the executive department. Neither can be restrained in its
action by the judicial department ; though the acts of both, when performed,
are, in proper cases, subject to its cognizance.
The impropriety of such interference will be clearly seen upon considera
tion of its possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If the
President refuse obedience, it is needless to observe that the court is with
out power to enforce its process. If, on the other hand, the President
complies with the order of the court and refuses to execute the acts of
Congress, is it not clear that a collision may occur between the executive
and legislative departments of the government ? May not the House of
Representatives impeach the President for such refusal ? And in that case
could this court interfere, in behalf of the President, thus endangered by
compliance "with its mandate, and restrain by injunction the Senate of the
United States from sitting as a court of impeachment ? Would the strange
spectacle be offered to the public world of an attempt by this court to arrest
proceedings in that court ?
These questions answer themselves.
It is true that a State may file an original bill in this court. And it may
be true, in some cases, that such a bill may be filed against the United
States. But we are fully satisfied that this court has no jurisdiction of a
bill to enjoin the President in the performance of his official duties, and
that no such bill ought to be received by us.
It has been suggested that the bill contains a prayer that, if the relief
sought cannot be had against Andrew Johnson, as President, it may be
granted against Andrew Johnson as a citizen of Tennessee. But it is plain
that relief as against the execution of an act of Congress by Andrew John
son, is relief against its execution by the President. A bill praying an
injunction against the execution of an act of Congress by the incumbent of
the presidential office cannot be received, whether it describes him as Presi
dent or as a citizen of a State.
The motion for leave to file the bill is, therefore, denied.
582 APPENDIX.
THE PETERHOFF, 5 Wallace, 60. (1866.)
Political status of persons residing in rebel States during the war.
Two other questions remain to be disposed of. The first of these relates
to the political status of Redgate, one of the owners of the cargo. It was
insisted, in the argument for the government, that this person was an
enemy, and that the merchandise owned by him was liable to capture and
confiscation as enemy's property.
It appears that he was by birth an Englishman ; that he became a citi
zen of the United States ; that he resided in Texas at the outbreak of the
rebellion ; made his escape ; became a resident of Matamoras ; had been
engaged in trade there, not wholly confined, probably, to Mexico ; and was
on his return from England with a large quantity of goods, only a small
part of which, however, was his own property, with the intention of estab
lishing a mercantile house in that place.
It has been held, by this court, that persons residing in the rebel States
at any time during the civil war, must be considered as enemies, during
such residence, without regard to their personal sentiments or dispositions.*
But this has never been held in respect to persons faithful to the Union, who
have escaped from those States, and have subsequently resided in the loyal
States, or in neutral countries. Such citizens of the United States lost
no rights as citizens by reason of temporary and constrained residence in
the rebellious portion of the country. And to this class Redgate seems to
have belonged. lie cannot therefore be regarded as an enemy. If his
property was liable to seizure at all, on account of his political character, it
was as property of a citizen of the United States proceeding to a State in
insurrection. But we see no sufficient ground for distinguishing that por
tion of the cargo owned by him, as to destination, from any other portion.
THE GRAY JACKET, 5 Wallace, 369. (1867.)
This was a case of maritime capture of a vessel and cargo, seized flagrante
delicto, while running the blockade then declared against our southern
coast. The court say, —
The liability of the property is irrespective of the status domicilii, guilt
or innocence of the owner. If it come from enemy territory, it bears the
impress of enemy property. If it belong to a loyal citizen of the country
of the captors, it is, nevertheless, as much liable to condemnation as if
owned by a citizen or subject of the hostile country, or by the hostile gov
ernment itself. The only qualification of these rules is, that where, upon
the breaking out of hostilities, or as soon after as possible, the owner
escapes with such property as he can take with him, or in good faith thus
early removes his property, with the view of putting it beyond the dominion
of the hostile power, the property in such cases is exempt from the liability
which would otherwise attend it. Such, with this limitation, is the settled
law of this and of all other prize courts.
* Prize Cases, 2 Black. 666, 087, 688; The Venice, 2 Wallace, 258; Mrs, Alexander's Cot
ton, Id. 404.
APPENDIX.
583
THE WILLIAM BAGALEY, 5 Wallace, 402-409. (1866.)
The steamer and cargo were captured as prize of war on the 18th day
of July, 1863 ; and having been duly libelled and prosecuted as such, in the
District Court on the 1 7th day of August following, they were both con
demned as forfeited to the United States. Monition was duly published,
but no one appeared as claimant, either for the steamer or cargo. Direc
tions of the decree of condemnation were, that the steamer and cargo, after
ten days' public notice, should be sold by the marshal, and that the pro
ceeds of the sale should be deposited in the registry of the court, for distri
bution according to law. Return of the marshal shows that the notice was
duly given, and that the sale was made as directed by the decree. Pro
ceeds of the sale were paid to the marshal, but before the amount was actu
ally deposited in the registry of the court the appellant filed his petition of
intervention, claiming one sixth of the proceeds, upon the ground that he
was the true and lawful owner of one sixth part of the vessel and cargo.
Allegations of the petition of intervention were, in substance and effect, as
follows : —
1. That the petitioner was, and for many years had been, a citizen of
the State of Indiana; that at the breaking out of the rebellion he was a
member of the firm of Cox, Brainard & Co., at Mobile, Alabama ; that the
partners of the firm, as such, were the sole owners of the steamer and cargo ;
and that he had never parted with his share, or in any way transferred his
interest in the partnership.
2. That the steamer, after the rebellion broke out, to the time of the
capture, was contiunally in the waters of the rebellious States, and under
the control and management of those engaged in the rebellion, which ren
dered it impracticable and unlawful for him to proceed to the place where
the steamer was, or to exercise any control over the steamer, or any part of
the partnership property.
3. That he was, and always had been, a true and loyal citizen ; _that he
had never given any aid, encouragement, or assistance to the rebellion, and
that he had no connection with, or knowledge of, the unlawful voyage of the
steamer, on account of which she was condemned as lawful prize.
4. That some court of the Confederate States, so called, at some time in
the year 1862, had condemned and confiscated his interest in the partner
ship*; but he averred that the decree was wholly nugatory and void, and that
his interest in the steamer and cargo had never been extinguished or de-
Basing his claim upon these allegations of fact, he prayed that he^might
be paid, out of the proceeds of the sale, one sixth of the amount required to
be paid into the registry of the court.
Exceptions were filed to the petition of intervention, but they were over
ruled by the court, and the District Attorney appeared and admitted that
all the facts therein alleged were true. Parties were heard as upon an
agreed statement, and the District Court entered a decree that the interven
tion and claim of the petitioner be rejected and dismissed with costs. Ap
peal was taken by the intervenor from that decree, and he now seeks to re
verse it, upon the ground that he, as owner of one sixth part of the steamer
and cargo, is entitled to one sixth of the proceeds of the sale.
1. Captors contend that the steamer and cargo were both rightfully con
demned as enemy property, and also for breach of blockade. Appellant
denies the entire proposition as respects his interest in the captured proper
ty, and insists that the one sixth of the same belonging to him^ cannot
properly be condemned on either ground, because he was never domiciled in
584 APPENDIX.
the rebellious States, and because he never employed the property, _ either
actually or constructively, in any illegal trade with the enemy, or in any
attempt to break the blockade.
The projected voyage of the steamer was from Mobile to Havana, and the
master testifies that she sailed under the Confederate flag. Proofs show that
she left her anchorage in the night time, and that she was captured, as
alleged in the libel, after a brisk chase by several of our blockading squad
ron, more than two hundred miles from the port of departure. When cap
tured, she had on board a permanent register, issued at Mobile under Con
federate authority, and which described her owners as trustees of a certain
association, and citizens of the Confederate States.
The testimony of the master showed that the cargo, which consisted of seven
hundred bales of cotton, three thousand two hundred staves, and one hun
dred and twenty-five barrels of turpentine, was consigned to parties in
Havana, and that the shipment was for the benefit of owners residing at the
home port. Except an informal manifest, the steamer had no papers on
board relating to the cargo, and the master testified that she carried none
for the consignee, " for fear of being captured." He was appointed by the
trustees, and he also testified that his instructions were to elude the block
ading vessels if possible, but not to resist in case he was unable to escape.
The ship's company consisted of thirty men, and all the officers and crew,
with one exception, were citizens of the enemy country. Direct admission is
made by the master, in his testimony, that he stole out of the harbor, and
that the steamer and cargo were captured for breach of blockade. Such an
admission was hardly necessary to establish the charge, as every fact and
circumstance in the case tended to the same conclusion. Five sixths of the
steamer and cargo were confessedly enemy property, and the whole adven
ture was projected and prosecuted for the benefit of resident enemy owners.
None of these facts are controverted by the appellant ; but he insists that,
inasmuch as he was domiciled in a loyal State, and had no connection with
the adventure or the voyage, his interest cannot properly be held liable to
capture.
2. War necessarily interferes with the pursuits of commerce and naviga
tion, as the belligerent parties have a right, under the laws of nations, to
make prize of the ships, goods, and effects of each other upon the high seas.
Property of the enemy, if at sea, may be captured as prize of war ; but the
property of a friend cannot be lawfully captured, provided he observes his
neutrality. Public war, duly declared or recognized as such by the war-
making power, imports a prohibition by the sovereign, to the subjects or
citizens, of all commercial intercourse and correspondence with citizens or
persons domiciled in the enemy country.* Neutral friends, or even citizens,
who remain in the enemy country after the declaration of war, have im
pressed upon them so much of the character of enemies, that trading with
them becomes illegal, and all property so acquired is liable to confiscation.!
Part owners of ships are seldom partners, in the commercial sense, because
no one can become the partner of another without his consent, and because,
if they acquire title by purchase, they usually buy distinct shares, at different
times and under different conveyances ; and even when they are the build
ers, they usually make separate contributions for the purpose. Generally
speaking, they are only tenants in common ; but the steamer, in this case,
belonged to the partnership, and throughout the rebellion, to the time of
* Jeclcer v. Montgomery, 13 Howard, 498.
t The Hoop, 1 Robinson, 196; Maclachlan on Shipping, 473; The Rapid, 8 Cranch, 155;
Potts v. Bell, 8 Term, 561 ; Wheaton's International Law, by Lawrence, 547.
APPENDIX. 585
capture, was controlled and managed by the partners in the enemy
country.*
Even where the part-owners of a ship are tenants in common, the major
ity in interest appoint the master and control the ship, unless they have
surrendered that right by agreeing in the choice of a ship's husband as
managing owner.f
Admiralty, however, in certain cases, if no ship's husband has been ap
pointed, will interfere to prevent the majority from employing the ship
against the will of the minority without first entering into stipulation to
bring back the ship or pay the value of their shares. But the dissenting
owners, in such a case, bear no part of the expenses of the voyage objected
to, and are entitled to no part of the profits.
Such are the general rules touching the employment and control of ships ;
but unless the co-owners agree in the choice of a managing owner, or the
dissenting minority go into admiralty, the majority in interest control the
employment of the ship, and appoint the master. J Tenants in common of
a ship can only sell their own respective shares, but where the ship belongs
to a partnership, one partner may sell the whole ship. §
3. Proclamation of blockade was made by the President on the nineteenth
day of April, 1861, and on the thirteenth day of July, in the same year, Con
gress passed a law authorizing the President to interdict, by proclamation,
all trade and intercourse between the inhabitants of the States in insurrec
tion and the rest of the United States. || The provision of the sixth section
of the act is, that after fifteen days from the issuing of such proclamation, any
ship or vessel belonging in whole or part to any citizen or inhabitant of a
State or part of a State, whose inhabitants shall be so declared to be in insur
rection, if found at sea or in the port of any loyal State, may be forfeited.
Reference is made to those provisions, as showing that our citizens were
duly notified that Congress, as well as the President, had recognized the
undeniable fact that civil war existed between the constitutional government
and the Confederate States ; and that seasonable notice was given to all
whose interests could be affected, and that ample opportunity and every
facility were extended to them, which could properly be granted, to enable
them to withdraw their effects from the States in rebellion, or to dispose of
such interests as in the nature of things could not be removed.
Open war had existed between the belligerents for more than two years
before the capture in this case was made, and yet there is not the slightest
evidence in the record that the appellant ever attempted, or manifested any
desire, to withdraw his effects in the partnership, or to dispose of his inter
est in the steamer. The effect of the war was to dissolve the partnership,
and the history of that period furnishes plenary evidence that ample time
was afforded, to every loyal citizen desiring to improve it, to withdraw all
such effects and dispose of all such interests. " Partnership with a for
eigner," says Maclachlan, " is dissolved by the same event which makes him
an alien enemy ; " and Judge Story says, that " there is, in such cases, an
utter incompatibility, created by operation of law, between the partners, as
to their respective rights, duties, and obligations, both public and private,
* Helme v. Smith, 7 Bingham, 709.
t Smith's Mercantile Law, 6th ed. 197.
| Maude and Pollock on Shipping, 67, 72.
§ 3 Kent's Com. llth ed. 15-i ; Wright v. Hunter, \ East. 20; Lamb v. Durant, 12 Mass. 54.
|| 12 Stat. at Large, 1258, 257.
74
586 APPENDIX,
and therefore that a dissolution must necessarily result therefrom, indepen
dent of the will or acts of the parties." *
Executory contracts with an alien enemy, or even with a neutral if they
cannot be performed except in the way of commercial intercourse with the
enemy, are ipso facto dissolved by the declaration of war, which operates to
that end, and for that purpose with a force equivalent to that of an act of
Congress.f
The duty of a citizen when war breaks out, if it be a foreign war, and he is
abroad, is to return without delay ; and if it be a civil war, and he is a resi
dent in the rebellious section, he should leave it as soon as practicable, and
adhere to the regular established government. Domicile, in the law of
prize, becomes an important consideration, because every person is to be
considered in such proceedings as belonging to that country where he has
his domicile, whatever may be his native or adopted country. J
4. Personal property, except such as is the produce of the hostile soil, fol
lows, as a general rule, the rights of the proprietor ; but if it is suffered to
remain in the hostile country after war breaks out, it becomes impressed
with the national character of the belligerent where it is situated. Promp
titude is therefore justly required of citizens resident in the enemy country,
or having personal property there, in changing their domicile, severing those
business relations, or disposing of their effects, as matter of duty to their own
government, and as tending to weaken the enemy.
The presumption of the law of nations is against one who lingers in the
enemy's country, and if he continues there for much length of time, without
satisfactory explanations, he is liable to be considered as remorant, or guilty
of culpable delay, and an enemy. §
Ships purchased from an enemy by such persons, though claimed to be
neutral, are for the same reasons liable to condemnation, unless the delay of
the purchaser* in changing his domicile is fully and satisfactorily explained.
Omission of the appellant to dispose of his interest in the steamer, and his
failure to withdraw his effects from the rebellious State, are attempted to
be explained and justified, because the same were, as alleged in the petition,
confiscated during the rebellion, under the authority of the rebel govern
ment. More than a year, however, had elapsed, after the proclamation of
blockade was issued, before any such pretended confiscation took place.
Members of a commercial firm domiciled in the enemy country, whether
citizens or neutrals, after having been guilty of such delay in disposing of
their interests or in withdrawing their effects, cannot, when the property so
domiciled and so suffered to remain is captured as prize of war, turn round
and defeat the rights of the captors, by proving that their own domicile was
that of a friend, or that they had no connection with the illegal voyage.
Property suffered so to remain has impressed upon it the character of
enemy property, and may be condemned as such or for breach of blockade.
Prize courts usually apply these rules where the partnership effects of citi
zens or neutrals is suffered to remain in the enemy country, under the con
trol and management of the other partners, who are enemies. But there
are other rules applicable to ships owned under such circumstances which
must not be overlooked in this case.
* Maclachlan on Shipping, 475 ; Story on Partnership, § 316; Griswoldv. Waddington,
15 Johnson, 57; same case, 16 Id. 438.
t Exposito v. Bowden, 7 Ellis and Blackburne, 763.
J The Vigilantia, 1 C. Robinson, 1; The Venus, 8 Crunch, 288; 3 Phillimore's Interna
tional Law, 128.
§ Maclachlan on Shipping, 480; The Ocean, 5 Kobinson, 91; The Venus, 8 Cranch, 278.
APPENDIX. 587
MAURAN v. INSURANCE COMPANY, 6 Wallace, 14. (1867-8.)
The chief point in this case is well stated by Mr. Wallace, the excellent
Reporter of the Supreme Court, thus : —
" A taking of a vessel by the naval forces of a now extinct rebellious con
federation, whose authority was unlawful, and whose proceedings in over
throwing the former government were wholly illegal and void, and which
bellious confederation was at the time sufficiently in possession of the attri
butes of government to be regarded as in fact the ruling or supreme power
of the country over which its pretended jurisdiction extended, and if it had
been substantially, though informally, treated as a belligerent by our gov-
ernme'nt. Accordingly, a seizure by a vessel of the late so-called Confede
rate States of America, for their benefit, was a capture within the terms of
such a warranty."
The court say, —
The Constitution of the United States, which is the fundamental law of
each and all of them, not only afforded no countenance or authority for these
proceedings (the organization of a rebel confederacy), but they were in every
part of them in express disregard and violation of it. Still it cannot be
denied but that, by use of these unlawful and unconstitutional means, a
government in fact was erected greater in territory than many of the old
governments of Europe, complete in the organization of all its parts, con
taining within its limits more than eleven millions of people, and of sufficient
resources in men and money to carry on a civil war of unexampled dimen
sions, and during all which time the exercise of many belligerent rights were
either conceded to it, or were acquiesced in by the supreme government, such
as the treatment of captives, both on land and sea, as prisoners of war ; the
exchange of prisoners ; their vessels captured recognized as prizes of war,
and dealt with accordingly ; their property seized on land referred to the
judicial tribunal for adjudication ; their ports blockaded, and the blockade
maintained by a suitable force, and duly notified to neutral powers, the same
as in open and public war. We do not inquire whether these were rights
conceded to the enemy by the laws of war among civilized nations, or were
dictated by humanity to mitigate the vindictive passions growing out of a
civil conflict. We refer to the conduct of the war as a matter of fact, for the
purpose of showing that the so-called Confederate States were in the pos
session of many of the highest attributes of government, sufficiently so to be
regarded as in possession of the country ; and hence captures under its com
mission were among those excepted out of the policy by the warranty of the
insured. We could greatly extend the opinion upon this branch of the
case, by considerations in support of the above view ; but the question has
undergone very learned and able examinations in several of the State
courts deservedly of the highest eminence, and which have arrived at the
same conclusion, and to which we refer as rendering further examination
unnecessary.*
Chief Justice and Swayne, J., dissenting.
* Dole v. New England Mutual Insurance Company, 6 Allen, 373; Fifield v. In
surance Company, 47 Tcun. State. 166; Dole v. Merchants' Mutual Insurance Company,
51 Maine, 464.
588 APPENDIX.
STATE OF GEORGIA v. STANTON, 6 Wallace, 63.
In this case the counsel for the State of Georgia said, —
The Attorney General quite understates the effects of these Reconstruction
Acts. Their actual effect is to restrain at once the holding of any election
within the State for any officers of the present State government by any of
the State authorities ; to direct all future elections in the State to be held
under the direction of, and by officers appointed by, the military commander ;
and that all persons of certain classes described shall be the electors per
mitted to vote at such election. It is, therefore, an immediate paralysis of
all the power and authority of the State government by military force; a
plain setting aside of the present State government, and depriving it of the
necessary means of continuing its existence. It is substituting in its place
a new government, created under a new constitution, and elected by a new
and independent class of electors.
What is the effect of this upon the State government and upon the State
now existing? The same, just, as if in the case of a private corporation
(which could only keep up its existence by regular periodical elections by
its stockholders), — the persons having an interest in it, the owners of its
franchise, and the right to perpetuate it, were forbidden to vote, deprived
of the right, — or a large number of them were so forbidden and deprived ;
and a mass of persons, having no right whatever, were introduced. This is
a direct attack upon the constitution of the corporation in the case sup
posed ; a direct attack upon the constitution and fundamental law of the
State in the case before the court.
To grant an injunction in such a case is manifestly within the jurisdiction
of equity.*
The grievance of which Georgia complains is analogous ; a proceeding to
divest her of her legally and constitutionally established and guaranteed
existence as a body politic and a member of the Union.
To explain. By the fundamental law of Georgia, as we know, its con
stituent body is, and always has been, composed of the " free white male
citizens of the State, of the age of twenty-one years, who have paid all taxes
which may have been required of them, and which they have had an oppor
tunity of paying agreeably to law for the year preceding the election, being
citizens of the United States, and having resided six months either in the
district or county, and two years within the State." f
A State is a complete body of free persons united together for their com
mon benefit, to enjoy peaceably what is their own, and to do justice to
others. It is an artificial person. It has its affairs and its interests. It
has its rules. It has its rights.^ A republican State, in every political,
legal, constitutional, and judicial sense, as well under the law of nations as
the laws and usages of the mother country, is composed of those persons
who, according to its existing constitution or fundamental law, are the
constituent body. All other persons within its territory, or socially belong
ing to its people, as a human society, are subject to its laws, and may justly
claim its protection ; but they are not, in contemplation of law, any portion
of the body politic known and recognized as the State. On principle it
* Ward v. The Society of Attorneys, 1 Colly er's New Cases in Chancery, 379; Simp
son v. Westminster Palace Hotel Company, 8 Clark (House of Lord's Cases), 717; Dodye
v. Woolsey, 18 Howard, .341.
t Constitution of Georgia, 1865, Art. V. Sec. 1.
$ Chisholm v. Georgia, per Wilson, J., 2 Dallas, 45.
APPENDIX. 589
must be quite clear that the body politic is composed of those who by the
fundamental law are the source of all political power, or official or govern
mental authority. Dorr's revolutionary government in Rhode Island was an
attempted departure from it.* In that case the precise thing was done by
Dorr and his adherents which these acts in the present instance seek to
perform.
There was a State government in the hands of a portion of the people of
that State, constituting its whole electoral body. Dorr was of opinion,
and his adherents supported him in it, that a greater number of electors
ought to be admitted ; and he thereupon undertook, by spontaneous meet
ing, to erect an independent State government. He failed in so doing. The
court decided that it was no government, but that the original chartered
government which there existed was the legitimate and lawful government,
and consequently Dorr failed. The same reasons would lead to the over
throw of these acts of Congress. The State has a right to maintain its
constitution or political association ; and it is its duty to do what may be
necessary to preserve that association ; and no external power has a right
to interfere with or disturb it.f In Rhode Island v. Massachusetts^ this
court says, that " the members of the American family [meaning the States]
possess ample means of defence under the Constitution, which we hope ages
to come will verify." What means of defence under the Constitution is
possessed by Georgia, if this suit cannot be maintained ?
The change proposed by the two acts of Congress in question is funda
mental and vital. The acts seize upon a large portion — whites — of the con
stituent body, and exclude them from acting as members of the State. It
violently thrusts into the constituent body, as members thereof, a multiude
of individuals — negroes — not entitled by the fundamental law of Georgia
to exercise political powers. The State is to be Africanized. This will
work a virtual extinction of the existing body politic, and the creation of a
new, distinct, and independent body politic, to take its place and enjoy its
rights and property. &uch new State would be formed, not by the free will
or consent of Georgia or her people, nor by the assent or acquiescence of
her existing government or magistracy, but by external force. Instead of
keeping the guarantee against a forcible overthrow of its government by
foreign invaders or domestic insurgents, this is destroying that very govern
ment by force. Should this be done, and the magistracy of the new State
be placed in possession, the very recognition of them by the Congress and
President, who thus set them up, would be a conclusive determination, as
between such new government and the State government now existing.
This court would be, then, bound to recognize the latter as lawful.§ Inde
pendently of this principle, the forced acquiescence of the people, under the
pressure of military power, would soon work a virtual extinction of the ex
isting political society. Each aspect of the case shows that the impending
evil will produce consequences fatal to the continuance of the present State,
and, consequently, that the injury would be irreparable.
The court say, —
The distinction (between political and judicial matters) results from the
organization of the government into three great departments, executive,
legislative, and judicial, and from the assignment and limitation of the
* Luther v. Borden, 7 Howard, 1.
t Vattel's Law of Nations, book 1, chap. 2, § 16; Id. book 2, chap. 4, §57.
J 12 Peters, 745.
§ Buther v. Borden, 7 Howard, 1.
500
APPENDIX,
powers of ^cach by the Constitution. Tho judicial power is vested in one
Supreme Court, and in such inferior courts us Congress may ordain and
establish j the political power of the government in the other two depart
ments. The distinction between judicial and political power is so generally
acknowledged, in the jurisprudence both of England and of this country,
that we^ need do no more than refer to some of the authorities on the sub
ject. They are all in -one direction.
Naftob of Varnatic v. The AW I mile Company, 1 Vesey, Jr., 37o-39.'J.
S. C. 2 Id. fiO-OO.
Venn v. Lord Hal/imorc, 1 Vescy, '110-7.
New York v. (bnncclicut, 4 Dallas, 4-6.
The Cherokee Nation v. Georyia, r> Peters, 1, 20, 29, ,'JO, f>l, 75.
The Mate of Rhode, Island v. The Ktatc of Massachuxdts, 12 Ib. G57,
IJy the second section of the third article of the Constitution, " the ju
dicial power extends to all cases in law and equity arising under the Consti
tution, the laws of thn United States, &c., and, as applicable to the case in
hand, to controversies between a State and citizens of another State,"
which controversies, under the Judiciary Act, may be brought, in the
first instance, before this court in the exercise of its original jurisdiction ;
ami we> agree, that the bill filed presents a case which, if it be the subject
of judicial cognizance, would, in form, come under a familiar head of equity
jurisdiction, that is, jurisdiction to grant an injunction to restrain a party
frmn a wrong or injury to the rights of another, when the danger, actual or
threatened, is irreparable, or the remedy at law inadequate ; but according
to the course of proceeding under this head, in equity, in order to entitle
the party to the remedy, a case must be presented appropriate for the exer
cise of judicial power; the rights in danger, as we have seen, must be rights
of persons or property, not merely political rights, which do not belong to
the jurisdiction of a court either in law or equity.
The remaining question on this branch of our inquiry is whether, in view
of the principles above stated, and which we have endeavored to explain, a
case is made out in the bill of which this court can take judicial cognizance.
In looking into it, it will be seen that we are called upon to restrain the
defendants, who represent the executive authority of the government, from
carrying into execution certain acts of Congress, inasmuch as such execu
tion would annul, and totally abolish, the existing State government of
Georgia, and establish another and different one in its place ; in other
words, would overthrow and destroy the corporate existence of the State,
by depriving it of ^ all means and instrumentalities whereby its existence
might, and otherwise would, be maintained. That these both, as stated in
the body of the bill and in the prayers for relief, call for the judgment of
the court upon political questions and upon rights not of persons and prop
erty, but of n political character, will hardly be denied. For the rights, for
the protection of which our authority is invoked, are the rights of sover
eignty of political jurisdiction, of government, of corporate existence as a
State, with all its constitutional powers and privileges. No case of private
rights or private property infringed or in danger of actual or threatened in
fringement, is presented by tin- hill j,, ;i judicial form for the judgment of
the court.
Having arrived at the conclusion that this court, for the reasons above
stated, possess no jurisdiction over the subject-matter presented in the bill
for relief, it is unimportant to examine the question as it respects jurisdic
tion over the parties defendants.
APPENDIX. 591
HENRY P. COOLIDGK v. COLUMBUS OUTIIRIK.
Circuit Court of the United States, Southern District of Ohio, October
Term, 18(58.
Svvayne, J. This is an action of trover, brought to recover the value of
the cotton mentioned in the plaintiff's declaration. The defendant pleaded ,
the general issue. The parties submitted the cans- to the Court — waiving
the intervention of a jury.
According to the statute regulating the practice in such cases, " the find
ing of the court upon the facts — which finding may be either general or
special — nhall have the same Hl'ert as the finding of a jury "
important one in the principle
proper to find the facts specially, in order that the decision of this court may
be reviewed more conveniently by the higher court, if such a review shall
be desired by the party against whom our judgment is about to be given.
The facts are accordingly found upon the evidence before us, as fol
lows : —
1. On the 12th of July, 18(52, General Samuel II. Curtis, commanding an
army of the United States, took military possession of the town of Helena,
in the State of Arkansas. That State was then in rebellion against the
United States.
2. The cotton was all raised upon farms belonging to General Gideon J.
Pillow, who was, at the time of the seizure of the cotton, in the military
service of the rebel government. The farms were in the immediate vicinity
of Helena.
,'j. General Curtis ordered the cotton in controversy to be seized and
brought into Helena; and it was seized and brought there accordingly. The
wagons conveying it were protected by troops detailed for that purpose-.
4. He sold and delivered the cotton to the defendant and one William
W. Babcock, jointly. There were two sales — one of two hundred bales,
and one of thirty-six bales. Both sales were made at Helena, on the 2()th
of July, 1802. The agreed price was fourteen and a half cents per pound.
The average weight of the bales was four hundred pounds.
5. Subsequently, the defendant, Guthrie, delivered eighty-two bales of
the cotton to Alfred Spink, at Memphis, pursuant to the order of a quarter
master of the army. Spink paid Guthrie forty-five dollars per bale for tho
cotton, so delivered. Fourteen bales more of the cotton were taken by a
gunboat, to be used, as was alleged, for calking purposes. The residue,
consisting of one hundred and forty bales, was shipped by the defendant to
the city of New York, and there sold.
0. General Curtis alleged, at the time of the sei/ure and sale of the cotton,
that his object was to apply the proceeds to the support of the starving
negro population in the neighborhood of his camp. A small part of the
proceeds were so applied, lie received full payment for the cotton at the
contract price. He never icport.ed the seizure; and sale to the authorities
at Washington, nor to any other public officer, and died without having
accounted for the proceeds to any one.
7. When the defendants bought the cotton, it had been for several days
at Helena in the military possession of General Curtis. It was in a dam
aged condition. The navagation of the Mississippi was at that time
attended with peril to life and property. Babeoek was killed at a landing
592 APPENDIX.
twenty miles below Memphis, by guerrillas, on the 20th of October, 1862.
The value of the cotton at the time and place of purchase was fourteen and
a half cents per pound — what the defendant and Babcock paid for it. The
whole quantity of the cotton purchased and received by the defendant and
Babcock was ninety-four thousand four hundred pounds. The legal title
and ownership of the cotton at the time of its seizure by General Curtis was
in the plaintiff, Coolidge. He was a resident of Arkansas, but was in no wise
engaged in the rebellion. All the facts relating to the cotton were known
to the defendant and Babcock when they purchased.
OPINION.
The plaintiff is entitled to recover unless the grounds of defence relied
upon by the defendant shall be found sufficient to protect him. If liable,
the measure of his liability is the value of the entire amount of the cotton
which he received, at fourteen and a half cents per pound, with interest from
the 20th day of July, 1862, the time of the alleged conversion. If he was
then guilty of an illegal and wrongful act touching the cotton, his liability
was fixed at that time, and the subsequent delivery to another of eighty-two
bales, upon the order of the quartermaster, and the taking of fourteen bales
by the gunboat, can have no retroactive operation, or in any wise affect the
amount for which he must respond. Where property is tortiously taken,
every one who receives it and exercises acts of ownership over it is guilty
of a conversion, and is liable for its full value, without reference to the lia
bility of others through whose hands it may also have passed, either before
or after the conversion by the defendant. (Williams & Ofiapin v. Marie,
11 Wend., 81.)
In the eye of the law, the order of the quartermaster and the act of the
gunboat are immaterial facts in the case, and may be laid out of view.
Two defences are relied upon by the defendant, Guthrie.
1. That this court has no jurisdiction of the case.
2. That as soon as General Curtis acquired a firm possession of the prop
erty, by having it conveyed infra presidia, the title of the plaintiff became
ipso facto extinguished, and a complete title vested in the United States ;
and that, if the plaintiff has any rights left in respect to the cotton, they must
be assessed against the United States, and that he has none which can be
enforced against the defendant.
When the transaction occurred the rebellion had risen to the proportions
of a civil war, and was fully flagrant. Arkansas was enemy's territory, and
all the property there wras enemy property. Cotton was an article of foreign
and domestic commerce. It was one of the main sinewrs of the power of the
insurgents. They relied upon it for the purchase of arms and other muni
tions of war, and chiefly to supply them with financial means for the prose
cution of the strife. Important belligerent rights were conceded to them by
the government of the nation. Their soldiers, when captured, were treated
as prisoners of war. They were .exchanged, and not held for treason.
Their vessels, when captured, were dealt with by our prize courts. Their
ports were blockaded, and the blockades proclaimed to neutral powers, and
property found on board such vessels, belonging to persons residing in the
rebel States, was uniformly held to be confiscate as enemy property. All
these things were done as if the war had been a public one with a foreign
power. (The Prize Cases, 2 Black. 687 ; Mrs. Alexander's Cotton, 2 Wal
lace, 417 ; Mauran v. Insurance Company, 6 Wallace, 1.)
No act of Congress had then been passed which affects the case. No
regulations issued by any department of the government prior to that time,
APPENDIX. 593
relating to the subject, have been brought to our attention. The acts of
August 6, 1861, and of July 17, 1862, have no application.
General Curtis and his army are to be regarded, for the purposes of this
case, as if prosecuting hostilities in a foreign country with which the United
States were at war, and the case is to be decided upon the principles of law
applicable in that condition of things.
1. In respect to the defence first mentioned, the inquiry arises whether it
should not have been presented by a special plea, and whether it can be
considered under the general issue.
The question is the same whether a seizure jure belli be made upon land
or water. The case of Lecaux v. Eden (2 Douglas, 594) was of the latter
class. The vessel had been restored and the captors condemned in costs
and damages by a decree of the Prize Court. It was held upon the fullest
consideration that the defence was admissible under the general issue. The
grounds of the judgment were, that the capture of the vessel and the im
prisonment of the crew were not trespasses by the common law ; that if
wrongs had been committed, they were triable only by the law of nations,
and that no municipal court had authority to* adjudicate upon the subject.
Such was the unanimous judgment of the court. If there were no tres
passes by the common law there, a multo fortiori, there was by the common
law, here, no conversion.
In Lindo v. Rodney (2 Douglas, 613), the point of pleading was not
raised, but the same doctrine of the want of jurisdiction in the courts of
common law was affirmed by Lord Mansfield in a learned and elaborate
judgment.
In Elphinstone\.J3edreechund,ihe seizure was by a military force on land.
A judgment had been rendered by the Supreme Court of Bombay, from
which an appeal was taken. Lord Tenterden, delivering the opinion of the
Privy Council, said, —
"We think the character of the transaction was that of a hostile seizure
made, if not flagrante, yet nondum cessante bello — regard being had both
to the time, the place, and the person, and consequently that the municipal
court had no jurisdiction to adjudge upon the subject; but that if anything
was done amiss, recourse could only be had to the government for redress.
We shall, therefore, recommend to his Majesty to reverse the judgment."
(1 Knapp's P. C. R. 300.)
" It should also be observed that according to the English law, which, in
this respect, is in accordance with the principles of general law and public
jurisprudence, no action can be maintained in a court of municipal law
against the captor of booty or prize. If an English naval commander seizes
property as belonging to the enemy, which turns out clearly to be British
property, he forfeits his prize in the Court of Admiralty, and that court
awards the return of it to the party from whom it was taken ; but the case
of Lecaux v. Eden decided the question that no British subject can maintain
an action against the captor." . . . ''In like manner property taken
under color of military authority falls under the same rule. If property be
taken by an officer under the supposition that it is the property of an enemy,
whether of a State or an individual, which ought to be confiscated, no mu
nicipal court can judge of the propriety or impropriety of the seizure. It
can be judged only by the authority delegated by the Crown." (3 Phil.
International Law, 192, Sect. 130.)
See also Alexander v. The Duke of Wellington, 2 Russ. and M., 54 ; The
Army of the Deccan, 2 Knapp's P. C. R. 106 ; Nichol v. Goodall, 10
Vesey, 156; Hill v. Heardon, 2 Sim. & S. 431; Ductwork v. Tucker, '2
Taunt. 7; 1 Chitt. General Practice, pp. 2, 18, notes; Porte v. United
75
594 APPENDIX.
States, Devereaux's Rep. (Court of Claims), 171. These authorities are
decisive upon the subject. If the action would not lie against General Cur
tis, obviously it will not against his vendee. The principal fact, and the
incident which followed, are governed by the same rule. See the case of the
Admiralty, 13 Co. 53 ; Anonymous, Cro. Eliz. 685 ; King v. Broom,
Carth. 398 ; Turner & Cary v. Neele, I Lev. 243 ; Ridley v. Egglesfidd, 2
Lev. 25.
It was competent for Congress to give the jurisdiction, but it has not seen
proper to do so. (Const. U. S. Art. 1, Sect. 8.) We hold this objection to
the plaintiff's right to recover well taken. This conclusion does not conflict
with the ruling of the Supreme Court in Mitchell v. Harmony (13 How.
115.) There the property in question belonged to a citizen, and not to an
enemy.
2. It remains to consider the second proposition relied upon by the de
fendant. Chancellor Kent says, —
"In a land war, movable "property, after it has been in the complete
possession of the enemy twenty-four hours (and which goes by the name of
booty, and not prize), becomes absolutely his without any right of postliminy
in favor of the original owner ; and much more ought this species of prop
erty to be protected from the rule of postliminy when it has not only passed
into the complete possession of the enemy, but been bonafide transferred to
a neutral." (1 Kent's Com. 120, last ed.)
" The title to property lawfully taken in war may, upon general princi
ples, be considered as immediately divested from the original owner, and
transferred to the captor." . . . " As to personal property, or mova
bles, the title is, in general, considered as lost to the former proprietors as
soon as the enemy has acquired a firm possession, which, as a general rule,
is considered as taking place after the lapse of twenty-four hours, or after
the booty has been carried to a place of safety infra presidia of the captor."
(Lawrence's Wheat. 629.)
" If the hostile power has an interest in the property, w\iich is available to
him for purposes of war, that fact makes it prima facie a subject of capture.
The enemy has such an interest in all convertible and mercantile property
within his control, or belonging to persons who are living under his control,
whether it be on land or at sea, for it is a subject of taxation, contribution,
and confiscation." (Dana's Wheat, s. 256, n. 171.)
Vattel says, —
" We have a right to deprive our enemy of his possessions of every kind
which may augment his power and enable him to make war." . . .
" Whenever we have an opportunity, we seize on the enemy's property, and
convert it to our own use ; and thus, besides diminishing the enemy's power,
we augment our own, and obtain at least a partial indemnification or equiva
lent either for what constitutes the subject of the war, or for the expenses
and losses incurred in its prosecution. In a word, we do ourselves justice."
. . " As the towns and lands taken from the enemy are called con
quests, all movable property taken from him comes under the denomination
of booty. This booty naturally belongs to the sovereign prosecuting the war,
no less than the conquests ; for he alone has such claims against the hostile
nation as warrant him to seize on such property and convert it to his own
use. His soldiers, and even his auxiliaries, are only instruments, which he
employs in asserting his right. He maintains and pays them. Whatever
they do is in his name and for him." (Vat. Law Nat. pp. 365, 365, Book
3, Chap. 9.)
It is usual to allow those making the capture to appropriate more or less
of the property to their own use ; but the paramount right and title are,
APPENDIX. 595
nevertheless, in the sovereign, who may assert them whenever it is deemed
proper.
Congress, in passing the act of March 12, 1863, in relation to " captured
and abandoned property," proceeded upon this ground.
The doctrines thus laid down are in accordance with those of all approved
publicists. (See the authorities cited by the authors from whom we have
quoted.)
There can be no doubt that the facts, as found, bring this case within these
authorities. The commanding general caused the cotton to be seized and
brought within his lines. He had a firm possession of it there for more than
the requisite time. There is no question as to the right of postliminy. The
possession by both the general and the purchaser was unchallenged by the
enemy. The purchaser conveyed the property to New York, and there
sold it.
Under the law arising upon these facts there can be but one result.
We hold the second objection fatal, also, to the right of the plantifF to
recover in this action. If he has any right which can be recognized, it is
against the government, and must be asserted elsewhere.
Judgment must be entered for the defendant, with costs.
TRIALS FOR CRIMES AGAINST THE UNITED STATES.
Correspondence between President Johnson and 'Chief Justice Chase.
On the 2d of February, 1866, the President communicated the following
to the Senate : —
To the Senate of the United States :
The accompanying correspondence I herewith transmit, in accordance
with the resolution of the 16th ult., requesting the President to communicate
to the Senate any correspondence which may have taken place between my
self and any of the judges of the Supreme Court touching the holding of
civil courts of the United States in insurrectionary States for the trial of
crimes against the United States. ANDREW JOHNSON.
EXECUTIVE MANSION, ?
WASHINGTON, October 2, 1865. $
DEAR SIR : It may become necessary that the government prosecute
some of the high crimes and misdemeanors committed against the United
States within the District of Virginia. Permit me to inquire whether the
Circuit Court of the United States for that district _is so far organized and
in condition to exercise the functions, that yourself or either of the associ
ate justices of the Supreme Court will hold a term of the Circuit Court
there during the autumn or early in the winter for the trial of causes.
Very respectfully,
ANDREW JOHNSON.
Hon. S. P. CHASE, Chief Justice of Supreme Court.
WASHINGTON, Thursday Evening, )
October 12, 1865. $
DEAR SIR : Your letter of the 26th, directed to Cleveland and for
warded to Sandusky, reached me there night before last. I left for Wash
ington yesterday morning, and have just arrived. To your inquiry whether
596 APPENDIX.
a term of the Circuit Court of the United States for the District of Virginia
will be held by myself or one of the associate justices of the Supreme
Court during the autumn or early winter, I respectfully reply in the neg
ative. Under ordinary circumstances, the regular term authorized by Con
gress would be held on the fourth Monday of November, which this year
will be the 27th. Only a week will intervene between that day and the
commencement of the annual term of the Supreme Court, when all the
judges are required to be in attendance at Washington. That time is too
short for the transaction of any very important business.
Were this otherwise, I so'mu.ch doubt the propriety of holding Circuit
Courts of the United States in States which have been declared by the ex
ecutive and legislative departments of the national government to be in
rebellion, and therefore subjected to martial law, before the complete resto
ration of their broken relations with the nation and the supersedure of mil
itary by civil administration, that I am unwilling to hold such courts in such
States within my circuit, which includes Virginia, until Congress shall have
had an opportunity to consider and act on the whole subject. A civil court
in a district under martial law can only act by the sanction and^ under
suspension of the military power ; and I cannot think it becomes justices of
the Supreme Court to exercise jurisdiction under such conditions. In^this
view it is proper to say that Mr. Justice Wayne, whose whole circuit is in
the rebel States, concurs with me. I have had no opportunity of consult
ing with the other justices, but the Supreme Court has hitherto declined to
consider cases brought before it by appeal or writ of error from Circuit or
District Courts in reuel portions of the country. No very reliable inference,
it is true, can be drawn from this action, for circumstances have changed
since the court adjourned ; but, so far as it goes, it favors the conclusion of
myself and Justice Wayne.
With great respect, yours very truly,
S. P. CHASE.
CHIEF JUSTICE CHASE TO THE MEMBERS OF THE BAR.
At the opening of the United States Circuit Court at the State Senate
Chamber, Raleigh, North Carolina, June 6, 1867, before proceeding to busi
ness the Chief Justice made the following remarks : —
GENTLEMEN OF THE BAR : Before proceeding to the regular business, I
think it proper to address a few observations to you. For more than four
years the courts of the .Union were excluded from North Carolina by rebel
lion. When active hostilities ceased in 1865, the national military author
ity took the place of all ordinary civil jurisdiction, or controlled its exercise.
All courts, whether State or national, were subordinated to military su
premacy, and acted, when they acted at all, under such limitations, and in
such cases, as the commanding general, under the direction of the Presi
dent, thought fit to prescribe. Their process might be disregarded and
their judgments and decrees set aside by military orders. Under these
circumstances, the justices of the Supreme Court, allotted to circuits which
included the insurgent States, abstained from joining the district judges in
holding Circuit Courts. Their attendance was unnecessary, for the district
judges were fully authorized by law to hold Circuit Courts without the jus
tices of the Supreme Court, and to exercise complete jurisdiction in trial of
all criminal and almost all civil cases ; and their attendance was unnecessary
APPENDIX. 597
for another reason. Military tribunals at that time, and under existing cir
cumstances, were competent to the exercise of all the jurisdiction, criminal
and civil, which belongs, under ordinary circumstances, to the civil courts.
Being unnecessary, the justices thought their attendance would be improper
and unbecoming. They regarded it as unfit in itself, and injurious in many
ways to the public interests, that the highest officers of the judicial depart
ment of the government should exercise their jurisdiction under the super
vision and control of the executive department. At length, however,
military control over the civil tribunals was withdrawn by the President, the
writ of habeas corpus, which had been suspended, was restored, and military
authority in civil matters abrogated. This was effected mostly by the proc
lamation of April, 1866, and partly by the proclamation of August 20, 1866.
These proclamations reinstated the full authority of the national courts in
all matters within their jurisdiction. The justices of the Supreme Court
are expected to join the district judges in holding Circuit Courts during the
interval between the terms at Washington. On the 23d of July, 1866,
however, an act of Congress reduced the number of circuits, and changed
materially the districts of which the southern circuits were composed, with
out waiting or providing for an allotment of the members of fhe Supreme
Court to new circuits, and without such allotment the justices of that court
the new allotment was authorized. Under this act the justices of the Su
preme Court have been again assigned to circuit districts. The chief justice
has been allotted to hold with district judges the national court in the cir
cuit in which the district of North Carolina is made a part. I am here,
?, to join my brother, the district judge, in holding the Circuit
Court for this district. It is the first Circuit Court held in any district with-
therefore,
in the insurgent States at which a justice of the Supreme Court could be
present, without disregard of superior duties at the seat of government or
usurpation of jurisdiction. The associate justices allotted to the other
southern circuits will join in holding courts at the regular terms prescribed
bylaw, and thus the national civil jurisdiction will be fully restored through
out the Union. It is true that military authority is still exercised within
these southern circuits, but not now, as formerly, in consequence of the dis
appearance of local authority, and in supervision or control of all tribunals,
whether State or national. It is now used under acts of Congress, and only
to prevent illegal violence to personal property, and to facilitate the restora
tion of every State to equal rights, and benefits in the Union. This military
authority does not extend in any respect to the courts of the United States.
Let us hope that henceforth neither rebellion nor any other occasion for
the assertion of any military authority over the courts and justices will
hereafter suspend the due course of judicial administration by the national
tribunals in any part of the republic.
598
APPENDIX.
THE GRAPESHOT, 7 Wallace, 563.
Upon two separate motions to dismiss an appeal from the decree of the
Circuit Court of the United States for the District of Louisiana ; the decree
being one transferred there under act of Congress, from the late so-called
" Provisional Court," of that State ; both motions being made by Mr. Durant.
The ground of the first motion was because the transcript was incomplete,
" as appeared by tlie certificate of the clerk of the lower court, as given in
the printed transcript, and because it further appeared by the said certifi
cate, that the missing parts of the record could not be found, so that it was
useless to issue a certiorari" and on the whole impossible for this court to
hear and decide the case.
The ground of the second motion was, that the Circuit Court of the United
States in Louisiana had rendered no decree from which an appeal could be
taken ; so that this court was without jurisdiction.
This Provisional Court of Louisiana . . . had been established by
proclamation of the President, in October, 1862, when the war of the rebel
lion had subverted and swept away the courts of the Union, and, by the
terms of its constitution, was to last no longer than till the civil authority
was restored.
The Chief Justice delivered the opinion of the court.
The ^first motion to dismiss this appeal is made upon the ground that the
transcript of the record is incomplete, because of the omission of certain
papers said to have been used in the court below, but not to be found when
the transcript was made.
The motion must be denied. Proof that the papers alleged to be wanting
were used in the court below, and have been lost, must be made by affidavit.
The certificate of the clerk who made the transcript cannot be received as
proper evidence of these facts.
The other motion is made upon the ground that the decree below was
rendered by the Provisional Court of Louisiana, established by the military
authority of the President, during the late rebellion, from which no appeal
could be properly taken. But we find, on looking into the statutes, that
when the Provisional Court ceased to exist, its judgments and decrees were
directed to be transferred into the Circuit Court, and to stand as the judg
ments and decrees of that court. And it is from the decree of the Circuit
Court that the appeal under consideration was taken. As an appeal from
that court it was regular, and the motion to dismiss must be denied.
All questions concerning the validity of judgments and decrees of the
Provisional Court will remain open until after final hearing.
Motions denied.
THE STATE OF TEXAS v. WHITE, 7 Wallace, 702.
For the opinion of the majority of the court in this interesting and im
portant case, the reader is referred to the Reports above cited. The follow
ing are the dissenting opinions of the minority of the judges : —
Mr. Justice Grier, dissenting.
I regret that I am compelled to dissent from the opinion of the majority
of the court on all the points raised and decided in this case.
APPENDIX. 599
The first question in order is the jurisdiction of the court to entertain this
bill in behalf of the State of Texas.
The original jurisdiction of this court can be invoked only by one of the
United States. The Territories have no such right conferred on them by
the Constitution, nor have the Indian tribes who are under the protection of
the military authority of the government.
Is Texas one of these United States ? Or was she such at the time this
bill was filed, or since ?
This is to be decided as a political fact, not as a legal fiction. This court
is bound to know and notice the public history of the nation.
If I regard the truth of history for the last eight years, I cannot discover
the State of Texas as one of these United States. I do not think it neces
sary to notice any of the very astute arguments which have been advanced
by the learned counsel in this, case, to find the definition of a State, when
we have the subject treated in a clear and common sense manner by Chief
Justice Marshall in the case of Hepburn & Dundass v. Ellxey.* As the
case is short, I hope to be excused for a full report of it, as stated and
decided by the court. He says, —
"The question is, whether the plaintiffs, as residents of the District of
Columbia, can maintain an action in the Circuit Court of the United States
for the District of Virginia. This depends on the act of Congress describ
ing the jurisdiction of that court. The act gives jurisdiction to the Circuit
Courts in cases between a citizen of the State in which the suit is brought
and a citizen of another State. To support the jurisdiction in this case, it
must appear that Columbia is a State. On the part of the plaintiff, it has
been urged that Columbia is a distinct political society, and is, therefore, a
' State ' according to the definition of writers on general law. This is true ;
but as the act of Congress obviously uses the word ' State ' in reference to
that term as used in the Constitution,' it becomes necessary to inquire whether
Columbia is a State in the sense of that instrument. The result of that exam
ination is a conviction that the members of the American Confederacy only
are the States contemplated in the Constitution. The House of Representa
tives is to be composed of members chosen by the people of the several
States, and each State shall have at least one representative. ' The Senate
of the United States shall be composed of two senators from each State/
Each State shall appoint, for the election of the executive, a number of
electors equal to its whole number of senators and representatives. These
clauses show that the word ' State ' is used in the Constitution as designat
ing a member of the Union, and excludes from the term the signification
attached to it by writers on the law of nations."
Now we have here a clear and weil-defined test by which we may arrive at
a conclusion with regard to the questions of fact now to be decided.
Is Texas a State, now represented by members chosen by the people of
that State and received on the floor of Congress ? Has she two senators^to
represent her as a State in the Senate of the United States ? Has her voice
been heard in the late election of President ? Is she not now held and gov-
. erned as a conquered province by military force ? The act of Congress of
March, 2, 1867, declares Texas to be a "rebel State," and provides for its
government until a legal and republican State government could be legally
established. It constituted Louisiana and Texas the fifth military district,
and made it subject, not to the civil authority, but to the " military author
ities of the United States."
It is true that no organized rebellion now exists there, and the courts of
* 2 Cranck, 452.
600 APPENDIX.
the United States now exercise jurisdiction over the people of that prov
ince. But this is no test of the State's being in the Union ; Dacotah is no
State, and ^yet the courts of the United States administer justice there as
they do in Texas. The Indian tribes, who are governed by military force,
cannot claim to be States of the Union. Wherein does the condition of
Texas differ from theirs ?
Now, by assuming or admitting as a fact the present status of Texas as
a State not in the Union politically, I beg leave to protest against any charge
of inconsistency as to judicial opinions heretofore expressed as a member of
this court, or silently assented to. I do not consider myself bound to ex
press any opinion judicially as to the constitutional right of Texas to exer
cise the rights and privileges of a State of this Union, or the power of
Congress to govern her as a conquered province, to subject her to military
domination, and keep her in pupilage. . I can only submit to the fact as
decided _by the political position of the government • and I am not disposed
to join in any essay to prove Texas to be a State of the Union, when Con
gress have decided that she is not. It is a question of fact, I repeat, and
of fact only. Politically, Texas is not a State in this Union. Whether
rightfully out of it or not is a question not before the court.
But conceding now the fact to be as judicially assumed by my brethren,
the next question is, whether she has a right to repudiate her contracts ?
Before proceeding to answer this question, we must notice a fact in this case
that was forgotten in the argument. I mean, that the United States are no
party to this suit, and refusing to pay the bonds because the money paid
would_ be used to advance the interests of the rebellion. It is a matter of
utter insignificance to the government of the United States to whom she
makes the payment of these bonds. They are payable to the bearer. The
government is not bound to inquire into the bona fides of the holder, nor
whether the State of Texas has parted with the bonds wisely or foolishly.
And although by the Reconstruction Acts she is required to repudiate all
debts contracted for the purposes of the rebellion, this does not annul all
acts of the State government during the rebellion, or contracts for other
purposes, nor authorize the State to repudiate them.
Now, whether we assume the State of Texas to be judicially in the Union
(though actually out of it) or not, it will not alter the case. The contest
now is between the State of Texas and her own citizens. She seeks to
annul a contract with the respondents, based on the allegation that there
was no authority in Texas competent to enter into an agreement during the
rebellion. Having relied upon one fiction, namely, that she is a State in the
Union, she now relies upon a second one, which she wishes this court to
adopt, that she was not a State at all during the five years that she was in
rebellion. She now sets up the plea of insanity, and asks the court to treat
all her acts made during the disease as void.
We have had some very astute logic to prove that judicially she was not
a btate at all, although governed by her own legislature and executive as
11 a distinct political body."
The ordinance of secession was adopted by the convention on the 18th of
February, 1861 ; submitted to a vote of the people, and ratified by an over
whelming majority. I admit that this was a very ill-advised measure. Still
it was the sovereign act of a sovereign State, and the verdict on the trial of
this question,^' by battle," * as to her right to secede, has been against her.
But that verdict did not settle any question not involved in the case. It did
not settle the question of her right to plead insanity and set aside all her
* Prize Cases, 2 Black. 073.
APPENDIX. 601
contracts, made during the pending of the trial, with her own citizens, for
food, clothing, or medicines. The same " organized political body," exer
cising the sovereign power of the State, which required the indorsement of
these bonds by the governor, also passed the laws authorizing the disposal
of them without such indorsement. She cannot, like the chameleon, assume
the color of the object to which she adheres, and ask this court to involve
itself in the contradictory positions that she is a State in the Union and was
never out of it, and yet not a State at all for four years, during which she
acted and claims to be " an organized political body," exercising all the
powers and functions of an independent sovereign State. Whether a State
de facto or de jure, she is estopped from denying her identity in disputes
with her own citizens. If they have not fulfilled their contract, she can have
her legal remedy for the breach of it in her own courts.
But the case of Hardenberg differs from that of the other defendants.
He purchased the bonds in open market, bond fide, and for a full considera
tion. Now, it is to be observed that these'bonds are payable to bearer, and
that this court is appealed to as a court of equity. The argument to justify
a decree in favor of the Commonwealth of Texas as against Hardenberg, is
simply this : These bonds, though payable to bearer, are redeemable four
teen years from date. The government has exercised her privilege of pay
ing the interest for a term without redeeming the principal, which gives an
additional value to the bonds. Ergo, the bonds are dishonored. Ergo, the
former owner has a right to resume the possession of them, and reclaim
them from a bond jide owner by a decree of a court of equity.
This is the legal ai:gument, when put in the form of a logical sorites, by
which Texas invokes our aid to assist her in the perpetration of this great
wrong.
A court of chancery is said to be a co-urt of conscience ; and however
astute may be the argument introduced to defend this decree, I can only say
that neither my reason nor my conscience can give assent to it.
Mr. Justice Swayne.
I concur with my brother Grier as to the incapacity of the State of Texas,
in her present condition, to maintain an original suit in this court. The
question, in my judgment, is one in relation to which this court is bound by
the action of the legislative department of the government.
Upon the merits of the case I agree with the majority of my brethren.
I am authorized to say that my brother Miller unites with me in these
THE GRAPESHOT, 9 WALLACE, 131.
The constitutional power of the President to establish provisional courts
during the civil war, in the rebel territory, affirmed.
The Chief Justice delivered the opinion of the court.
The first question to be examined in this case is one of jurisdiction^
The suit, shown by the record, was originally instituted in the District
Court of the United States for the District of Louisiana, where a decree was
rendered for the libellant. From this decree an appeal was taken to the
Circuit Court, where the case was pending, when, in 1861, the proceedings
of the court were interrupted by the civil war. Louisiana had become in
volved in the rebellion, and the courts and officers of the United States were
76
602 APPENDIX.
excluded from its limits. In 1802, however, the National authority had
been partially re-established in the State, though still liable to be overthrown
by the vicissitudes of war. The troops of the Union occupied New Orleans,
and held military possession of the city and such other portions of the State
as had submitted to the general government. The nature of this occupa
tion and possession was fully explained in the case of 'Llie Venice*
Whilst it continued, on the 20th of October, 1862, President Lincoln, by
proclamation, instituted a Provisional Court for the State of Louisiana, with
authority, among other powers, to hear, try, and determine all causes in ad
miralty. Subsequently, by consent of parties, this cause was transferred into
the Provisional Court thus constituted, and was heard, and a decree was
again rendered in favor of the libellants. Upon the restoration of civil au
thority in the State, the Provisional Court, limited in duration, according to
the terms of the proclamation, by that event, ceased to exist.
On the 28th of July, 1866, Congress enacted that all suits, causes, and
proceedings in the Provisional C6urt, proper for the jurisdiction of the Cir
cuit Court of the United States for the Eastern District of Louisiana, should
be transferred to that court, and heard and determined therein ; and that all
judgments, orders, and decrees of the Provisional Court in causes transferred
to the Circuit Court should at once become the orders, judgments, and decrees
of that court, and might be enforced, pleaded, and proved accordingly.!
It is questioned, upon these facts, whether the establishment by the Pres
ident of a Provisional Court was warranted by the Constitution.
That the late rebellion, when it assumed the character of civil war, was
attended by the general incidents of a regular war, has been so frequently
declared here, that nothing further need be said on that point.
The object of the National government, indeed, was neither conquest nor
subjugation, but the overthrow of the insurgent organization, the suppres
sion of insurrection, and the re-establishment of legitimate authority. But
in the attainment of these ends, through military force, it became the duty
of the National government, wherever the insurgent power was overthrown,
and the territory which had been dominated by it was occupied by the
National forces, to provide as far as possible, so long as the war continued,
for the security of persons and property, and for the administration of justice.
The duty of the National government, in this respect, was no other than
that which devolves upon the government of a regular belligerent occupy
ing, during war, the territory of another belligerent. It was a military duty,
to be performed by the President as commander-in-chief, and intrusted as
such with the direction of the military force by which the occupation was held.
What that duty is, when the territory occupied by the National forces is
foreign territory, has been declared by this court in several cases arising
from such occupation during the late war with Mexico. In the case of
Leitensdorfer v. Webb,$ the authority of the officer holding possession for
the United States to establish a provisional government was sustained ; and
the reasons by which that judgment was supported apply directly to the es
tablishment of the Provisional Court in Louisiana. The cases of Jccker v.
Montgomery^ and Cross v. IIarrison,\\ may also be cited in illustration of
the principles applicable to military occupation.
We have no doubt that the Provisional Court of Louisiana was properly
established by the President in the exercise of his constitutional authority
during war ; or that Congress had power, upon the close of the war, and
* 2 Wallace, 259. f 15 SLit. at Large, 306.
\ 20 Howard, 176. § 1:5 id. 498, and 18 Id. 110.
|| 16 Id. 104. See also United States v. Rice, 4 Wheaton, 246; and Texas v. Wliite, 7 Wal
lace, 700.
APPENDIX. 603
the dissolution of the Provisional Court, to provide for the transfer of cases
pending in that court, and of its judgments and decrees, to the proper courts
of the United States.
The case then being regularly here, we will proceed to dispose of it.
THE UNITED STATES v. ANDERSON, 9 Wallace, ('A.
Mr. Justice Davis delivered the opinion of the court.
Whether the positions taken by the learned counsel of the United States
in the court below, and maintained in this court also, are well taken or not
depends on the construction to be given the act concerning abandoned
and captured property, and the 4th section of the act of June 25, 1808.
The act of March 12, 1863, in one particular, inaugurated a policy differ
ent from that which induced the passage of other measures rendered neces
sary by the obstinacy and magnitude of the resistance to the supremacy of
the National authority. To overcome this resistance, and to carry on the
war successfully, the entire people of the States in rebellion were considered
as public enemies ; but it is familiar history that there were many persons
whom necessity required should be treated as enemies who were friends, and
adhered with fidelity to the National cause. This class of people, compelled
to live among those who were combined to overthrow the Federal authority,
and liable at all times to be stripped of their property by the usurped gov
ernment, were objects of sympathy to the loyal people of this country, and
their unfortunate condition was appreciated by Congress.
During the progress of the war it was expected that our forces in the field
would capture property, and, as the enemy retreated, that property would
remain in the country without apparent ownership, which should bo collected
and disposed of. In this condition of things Congress acted. While pro
viding for the disposition of this captured and abandoned property, Congress
recognized the status of the loyal Southern people, and distinguished be
tween property owned by them and the property of the disloyal. It was
not required to' do this, for all the property obtained in this manner could,
by proper proceedings, have been appropriated to the necessities of the war.
But Congress did not think proper to do this. In a spirit of liberality it
constituted the government a trustee for so much of this property as be
longed to the faithful Southern people, and while directing that all of it
should be sold and its proceeds paid into the treasury, gave to this class of
persons an opportunity, at any time within two years after the suppression
of the rebellion, to bring their suit in the Court of Claims, and establish
their right to the proceeds of that portion of it which they owned, requiring
from them nothing but proof of loyalty and ownership.
It is true the liberality of Congress in this regard was not confined to
Southern owners, for the law is general in its terms, and protects all loyal
owners ; but the number of Northern citizens who could, in any state of the
case, be bona fide owners of this kind of property was necessarily few, arid
their condition, although recognized in the law, did not induce Congress to
incorporate in it the provision we are considering.
The measure, in itself of great beneficence, was practically important only
in its application to the loyal Southern people, and sympathy for their situ
ation doubtless prompted Congress to pass it. It is in view of this state
of things, as it is the duty of a court in construing a law to consider the. cir
cumstances under which it was passed and the object to be accomplished by
it, that we are called upon to apply this particular provision to the facts of
604 APPENDIX.
this case. The loyalty of the claimant is not questioned, but his ownership,
in the sense of the law, of the property in dispute is denied.
It is not denied that he purchased the property in good faith for value,
and with no purpose to defraud the government or any one else ; but it is
said the persons from whom he bought resided in South Carolina, were pre
sumed to be rebels, and were, therefore, prohibited from selling.
This is an attempt to import from the confiscation law of July 17, 1862,
into this law, a disability which it does not contain. If this could be done,
but very little benefit would accrue to the loyal people of the South from
the privilege conferred on them by the law in question. It is well known
that nearly all the Southern people were engaged in the rebellion, and that
those who were not thus employed furnished the exception rather than the
rule. Few as they were, the necessities of life required that they should buy
and sell, and, equally so, that their trading should be free and unrestricted.
This condition of things Congress was aware of, and if it had been its pur
pose to limit the privilege in controversy to the loyal citizen, who happened
to acquire his property from another person equally loyal, they would have
said so. But Congress had no such narrow policy in view. Its policy in
the matter was broad and comprehensive, and embraced within its range all
persons who had adhered to the Union. It treated all alike, and did not
discriminate in favor of the person who could trace his title through a loyal
source, and against him who was not so fortunate. It did not consider the
loyal planter, who raised his own cotton and rice, as entitled to any more
protection than the dweller in the cities and towns who lived by traffic, and
bought where he could buy the cheapest.
The confiscation law, however, was not intended to apply to a person oc
cupying the status of this claimant. The purpose which Congress had in
view in passing that law was very different from that which induced it, in the
Captured and Abandoned Property Act, to extend a privilege to the loyal
owner. The confiscation law concerns rebels and their property ; was in
tended as a measure to cripple their resources ; and, in so far as it claims
the right to seize and condemn their property, as a punishment for their
crimes, recognizes that certain legal proceedings are necessary to do so.
But by the act in question the government yielded its right to seize and
condemn the property which it took in the enemy's country if it belonged to
a faithful citizen, and substantially said to him, " We are obliged to take the
property of friend and foe alike, which we will sell and deposit the proceeds
of in the treasury ; and if, at any time within two years after the suppression
of the rebellion, you prove satisfactorily that of the property thus taken you
owned a part, we will pay you the net amount received from its sale."
The two acts cannot be construed inpari materid. The one is penal, the
other remedial ; the one claims a right, the other concedes a privilege.
It is said the vendors of the cotton were incompetent witnesses by reason
of the 4th section of the act of June 25, 1868, which declares that no plain
tiff or claimant, or any person from or through whom any such plaintiff or
claimant derives his alleged title, claim, or right against the United States,
or any person interested in any such title, claim, or right, shall be a competent
witness in the Court of Claims in supporting any such title, claim, or right.
There are three classes of persons who are, by this section, prohibited
from testifying. The claimant cannot testify, nor can the person who, after
a claim has accrued to him against the United States, has sold or transferred
it to the claimant, nor can any one who is interested in the event of the
suit. Doucen and Fleming, the immediate vendors of Anderson, are not
excluded by this rule. They were not interested in the suit, and in no sense
did Anderson derive his claim against the United States through them.
They never had any claim against the United States, because when the
APPENDIX. 605
property was taken it belonged to Anderson, and it is only after the property
was sold that Anderson's claim even to the proceeds attached. If the prop
erty in transitu from Charleston to New York had been lost, no claim could
arise under the law in favor of Anderson against the United States, his claim
being contingent upon the proceeds of the property finally reaching the
treasury.
But the point most pressed in the argument against the right to recover
in this case relates to the limitation in the law. It is contended that the
claim was barred by this limitation, as it was not preferred until the 5th of
June, 1868. It is, therefore, necessary to determine when the time for pre
ferring claims commenced, and when it ended. The words of the statute on
this subject are, that any person claiming to be the owner of abandoned or
captured property may, at any time within two years after the suppression
of the rebellion,' prefer bis claim to the proceeds thereof in the Court of
Claims. There is certainly nothing in the words of this provision which dis
ables a person from preferring his claim immediately after the proceeds of
his property have reached the treasury, and there is no good reason why a
different interpretation should be given them. On the contrary, there is
sufficient reason in the nature of the legislation on this subject, apart from
the letter of the law, to bring the mind to the conclusion that Congress in
tended to give the claimant an immediate right of action. The same motive
that prompted Congress to grant the privilege to prefer a claim at all, oper
ated to allow it to be done so soon as the property had been converted into
money. If, in the condition of the country, it was known that the Union
men of the South, as a general thing, would be unable to prosecute their
claims while the war lasted, still it was recognized that some persons might
be fortunate enough to do so, and to meet the requirements of their cases
the right to sue at once was conferred. In the progress of the war, as our
armies advanced and were able to afford protection to the Union people, it
was expected that many of them, availing themselves of the opportunity,
would escape into the National lines, and be thus in a condition to secure
the rights conceded to them by this statute ; and the history of the times
informs us that this expectation was realized. To impute to Congress a
design to compel these people, impoverished as they were known to be, to
wait until the war was over before they could institute proceedings in the
Court of Claims, would be inconsistent with the general spirit of the statute,
and cannot be entertained. If, then, the right to prefer a claim attached as
soon as the money reached the territory, when did it expire ? The law says
two years after the rebellion was suppressed ; but the question recurs, when
is the rebellion to be considered suppressed, as regards the rights intended
to be secured by this statute ? It is very clear that the limitation applied
to the entire suppression of the rebellion, and that no one was intended to
be affected by its suppression in any particular locality. It might be sup
pressed in one State and not in another, but the citizen of the State that had
ceased hostilities was in no better or worse position in this regard than the
citizen of the State where hostilities were active. The limitation was not
partial in its character, but operated on all persons alike who are affectedly
it; was dependent on the solution of a great problem, and an interpretation
of it which would prescribe one rule for the people of one State, and a dif
ferent rule for those living in another State, cannot be allowed to prevail.
The point, therefore, for determination is, when, in the sense of ^this law,
was the rebellion entirely suppressed. And in this connection it is proper
to say, that the purposes of this suit do not require us to discuss the ques
tion — which may have an important bearing on other cases — whether the
rebellion can be considered as suppressed for one purpose and not for an-
606 APPENDIX.
other, nor any of the kindred questions arising out of it, and we therefore
express no opinion on the subject.
The inquiry with which we have to deal concerns its suppression only in
its relation to those persons who are within the protection of this law. It is
argued, as the rebellion was in point of fact suppressed when the last Con
federate general surrendered to the National authority, that the limitation
began to run from that date. If this were so, there is an end to the contro
versy; but did Congress mean, when it passed the statute in question, that
the Union men of the South, whose interests are especially cared for by it,
should, without any action by Congress or the Executive on the subject,
take notice of the day that armed hostilities ceased between the contending
parties, and if they did not present their claims within two years of that
time, be forever barred of their recovery? The inherent difficulty of deter
mining such a matter, renders it certain that Congress did not intend to im
pose on this class of persons the necessity of deciding it for themselves. In
a foreign war, a treaty of peace would be the evidence of the time when it
closed, but in a domestic war, like the late one, some public proclamation
or legislation would seem to be required to inform those whose private
rights were affected by it, of the time when it terminated, and we are of the
opinion that Congress did not intend that the limitation in this act should
begin to run until this was done. There are various acts of Congress and
proclamations of the President bearing on the subject, but in the view we
take of this case, it is only necessary to notice the proclamation of the Pres
ident, of August 20, 1866, and the act of Congress of the 2d of March, 1867.
On the 20th day of August, 1866, the President of the United States,
after reciting certain proclamations and acts of Congress concerning the re
bellion, and his proclamation of 2d of April, 1866, that armed resistance had
ceased everywhere except in the State of Texas, did proclaim that it had
ceased there also, and that the whole insurrection was at an end, and that
peace, order, and tranquillity existed throughout the whole of the United
States of America. This is the first official delaration that we have, on the
part of the Executive, that the rebellion was wholly suppressed, and we have
shown, in a previous part of this opinion, that the limitation, in its effects on
the persons whose rights we are considering, did not begin to run until the
rebellion was suppressed throughout the whole country. But we are not
without the action of the legislative department of the government on this
subject. On the 20th day of June, 1864, Congress fixed the pay of non
commissioned officers and privates, and declared that it should continue
during the rebellion ; and on the 2d day of March, 1867, it continued this
act in force for three years from and after the close of the rebellion, as an
nounced by the proclamation of the President.
Congress, then, having adopted the 20th day of August, 1866, in con
formity with the announcement of the President, as the day the rebellion
closed, for the purpose of regulating the pay of non-commissioned officers
and privates, can it be supposed that it intended to lay down a harsher rule
for the guidance of the claimants under the Captured and Abandoned
Property Act, than it thought proper to apply to another class of persons
whose interests it equally desired to protect. In order to reach this conclu
sion, it is necessary to ascribe to Congress a policy regarding the statute
under which this claim is preferred foreign to the views we have expressed
concerning it. Besides, it would require us to construe two acts differently,
although relating to the same general subject, in the absence of any evidence
that such was the intention of the legislature. If we are right as to the
motive which prompted Congress to pass the law in question, and the object
to be accomplished by it, it is clear the point of time should be construed
most favorably to the person who adhered to the National Union, and who
APPENDIX. 607
has proved the government took his property, and has the money arising
from its sale in the treasury.
As Congress, in its legislation for the army, has determined that the re
bellion closed on the 20th day of August, 1866, there is no reason why its
declaration on this subject should not be received as settling the question
wherever private rights are affected by it. That day will, therefore, be ac
cepted as the day when the rebellion was suppressed, as respects the rights
intended to be secured by the Captured and Abandoned Property Act.
The point taken that the court below was not authorized to render judg
ment for a specific sum, but only to determine whether the claimant was en
titled to receive the proceeds of his property, leaving it for an officer of the
treasury to fix the amount, cannot be sustained. To sustain this position,
would require us to hold that for this class of cases Congress intended to
constitute the Court of Claims a mere commission. This court will not at
tribute to Congress a purpose that would lead to such a result, in the
absence of an express declaration to that effect.
It is proper to say, in conclusion, that the case of McKee v. United
States ,* cited as an authority against the claimant's right to recover, has no
application whatever to this case.
Judgment affirmed.
THE UNITED STATES v. KEEHLER, 9 Wallace, 86.
Mr. Justice Miller delivered the opinion of the court.
It is stated that the Confederate Congress passed an act appropriating
balances of this kind to the payment of claims against the United States for
postal service, where the parties resided within the limits of the States in
rebellion, and that under this act an order was drawn by the post-office de
partment of the Confederate States on Keehler, directing him to pay this
money to Clemmens, and that on this order it was paid.
It certainly cannot be admitted for a moment that a statute of the Con
federate States, or the order of its postmaster general, could have any legal
effect in making the payment to Clemmens valid. The whole Confederate
power must be regarded by us as a usurpation of unlawful authority, inca
pable of passing any valid laws, and certainly incapable of divesting, by an
act of its Congress or an order of one of its departments, any right or prop
erty of the United States. Whatever weight may be given under some cir
cumstances to its acts of force, on the ground of irresistible power, or what
ever effect may be allowed in proper cases to the legislation of the States
while in insurrection, — questions which we propose to decide only when
they arise, — the acts of the Confederate Congress can have no force, as law,
in divesting or transferring rights, or as authority for any act opposed to
the just authority of the Federal government. This statute of the Confed
erate Congress and this draft of its post-office department are not, there
fore, a sufficient authority for the payment to Clemmens.
HICKMAN v. JONES, 9 Wallace, 198.
Mr. Justice Swayne stated the case, and delivered the opinion of the court.
The facts disclosed in the record, so far as it is necessary to state them,
are as follows : —
During the late civil war, the rebel government established a court known
* 8 Wallace, 163.
608 APPENDIX.
as the(" District Court of the Confederate States of America for the North
ern District of Alabama." In that court the plaintiff in error was indicted
for treason against the Confederate States. The indictment alleged that
troops of the United States were in the Northern District of Alabama en
gaged in a hostile enterprise against the Confederate States, and that Hick-
man "did traitorously then and there assemble and continue with the said
troops of the said United States in the prosecution of their said expedition
against the Confederate States j and then and there, with force and arms
and with the traitorous intention of co-operating with the said troops of the
United States in effecting the object of the said hostile expedition, did array
and dispose himself with them in a hostile and warlike manner against the
said Confederate States; and then and there, with force and arms, in pur
suance of such his traitorous intentions, he, the said James Hickman, with
the said persons, so as aforesaid assembled, armed, and arrayed in manner
aforesaid, wickedly and traitorously did levy war against the said Confeder
ate States." Upon this indictment a warrant was issued for the arrest of
Hickman. He was arrested and imprisoned accordingly. He applied to
the defendant, Jones, who assumed to act as judge of the court, to be al
lowed to give bail. Jones rejected the application, and remanded him to
prison. He was subsequently tried, acquitted, and discharged. He alleges
that the proceeding was without probable cause, and malicious. Moore was
the clerk of the pretended court. The name of Regan is signed to the in
dictment as district attorney, and he conducted the trial, Robert W. Col-
tart was Deputy marshal, and Clay was the editor and publisher of the
"^Huntsville Confederate," a newspaper through which it was alleged he in
cited the prosecution by means of malicious attacks upon Hickman designed
to produce that result. The other defendants were members of the grand
jury by which the indictment was found. Testimony was given tending to
show that the plaintiff sympathized with the rebellion and participated in it
while the rebel power predominated in North Alabama, both before and after
its first invasion by the forces of the United States. The court instructed
the jury, among other things, as follows : —
*| If, in the case at the bar, you believe that the acts and speeches of the
plaintiff, upon which the defendants rely to prove his complicity with the
rebellion, were the result of anything less than a fear that if he did not so
speak and act, his life or his liberty or his property would be sacrificed to
his silence or his omission, you will find a verdict for the defendants.
" If, on the other hand, you believe that these acts of apparent complicity
with the rebellion were performed by the plaintiff under the influence of an
honest and rational apprehension that to do otherwise would expose him to
persecution or prosecution, or to loss of life, liberty, or property, and that
notwithstanding these acts of affiliation with the rebel community in which
he lived, he was always at heart honestly and truly loyal to the government
of his country, he is entitled to your verdict."
^ The jury were further instructed that it was their duty to acquit the de
fendants, R. W. Coltart and Clay. Exceptions were duly taken by the
plaintiff, and the case is brought here for review.
We have to complain in this case, as we do frequently, of the manner in
which the bill of exceptions has been prepared. It contains all the evidence
adduced on both sides, and the entire charge of the court. This is a direct
violation of the rule of this court upon the subject. We have looked into
the evidence and the charge only so far as was necessary to enable us fully
to comprehend the points presented for our consideration — thus in effect
reducing the bill to the dimensions which the rule prescribes. No good re
sult can follow in any case from exceeding this standard. Our labors are
APPENDIX. 609
unnecessarily increased, and the case intended to be presented is not un-
frequently obscured and confused by the excess.
The rebellion out of which the war grew was without any legal sanction.
In tlie eye of the law, it had the same properties as if it had been the insur
rection of a county or smaller municipal territory against the State to which
it belonged. The proportions and duration of the struggle did not affect
its character. Nor was there a rebel government dc facto in such a sense
as to give any legal efficacy to its acts. It was not recognized by the Na
tional, nor by any foreign government. It Avas not at any time in possession
of the capital of the nation. It did not for a moment displace the rightful
government. That^ government was always in existence, always in the reg
ular discharge of its functions, and constantly exercising all its military
power to put down the resistance to its authority in the insurrectionary
States. The union of the States, for all the purposes of the Constitution,
is as perfect and indissoluble as the union of the integral parts of the States
themselves ; and nothing but revolutionary violence can, in either case, de
stroy the ties which hold the parts together. For the sake of humanity,
certain belligerent rights were conceded to the insurgents in arms. But
the recognition did not extend to the pretended government of the Confed
eracy. The intercourse was confined to its military authorities. In no in
stance was there intercourse otherwise than of this character. The rebellion
was simply an armed resistance to the rightful authority of the sovereign.
Such was its character in its rise, progress, and downfall. The act of the
Confederate Congress creating the tribunal in question was void. It was as
if it were not. The court was a nullity, and could exercise no rightful juris
diction^ The forms of law with which it clothed its proceedings gave no
protection^ those who, assuming to be its officers, were the instruments
by which it acted. In the case before us, trespass would have been the
appropriate remedy ; but the authorities are clear that case also may be
maintained. Each form of action is governed by its own principles. It is
needless to consider them, as none of the exceptions taken relate to that
subject. Our opinion will be confined to those which have been specifically
mentioned.
1. The court instructed the jury to acquit the defendants, J. \V. Clay and
R. W. Coltart.
^ There was some evidence against both of them. Whether it was suffi
cient to^warrant a verdict of guilty was a question for the jury under the
instructions of the court. The learned judge mingled the duty of the court
and jury, leaving to the jury no discretion but to obey the direction of the
court. Where there is no evidence, or such a defect in it that the law will
not permit a verdict for the plaintiff to be given, such an instruction may be
properly demanded, and it is the duty of the court to give it. To refuse is
error. In this case the evidence was received without objection, and was
before the jury. It tended to maintain, on the part of the plaintiff, the issue
which_they were to try. Whether weak or strong, it was their right to pass
upon it. It was not proper for the court to wrest this part of the case, more
than any other, from the exercise of their judgment. The instruction given
overlooked the line which separates two separate spheres of duty. Though
correlative, they are distinct, and it is important to the right administration
of justice that they should be kept so. It is as much within the province
of the jury to decide questions of fact as of the court to decide questions of
law. The jury should take the law as laid down by the court, and give it
full effect. But its application to the facts — and the facts themselves —
it is for them to determine. These are the checks and balances which give
to the trial by jury its value. Experience has approved their importance.
610 APPENDIX.
They are indispensable to the harmony and proper efficacy cf the system.
Such is the law. We think the exception to this instruction was well
taken.*
2. The other instruction to be considered was, substantially, that it the
plaintiff had himself been a traitor he could not recover against those who
had been instrumental in his arrest, imprisonment, and trial for treason
against the Confederacy — the treason alleged to consist in the aid which
he had given to the troops of the United States while engaged in suppress-
ing-the rebellion.
As matter of law, we do not see any connection between the two elements
of this proposition. Giving aid to the troops of the United States, by whom
soever given, and whatever the cirsumstances, was a lawful and meritorious
act. If the plaintiff had before co-operated with the rebels there was a locus
penitential, which, whenever he chose to do so, he had a right to occupy.
His past or subsequent complicity with those engaged in the rebellion might
affect his character, but could not take away his legal rights. It certainly
could not, as matter of law, give impunity to those by whose instrumentality
lie was seized, imprisoned, and tried upon a capital charge for serving his
country. Such a justification would be a strange anomaly. Evidence of
treasonable acts on his part against the United States was alien to the issue
before the jury. To admit it was to put the plaintiff on- trial as well as the
defendants, the proofs upon the question thus raised might be more volu
minous than those upon the issue made by the pleadings. The trial might
be indefinitely prolonged. The minds of' the jury could hardly fail to be
darkened and confused as to the real character of the case and the duty they
were called upon to discharge. The guilt of the plaintiff, if established,
could in no wise affect the legal liability of the defendants ; nor could the
fact be received in mitigation of damages. It is well settled, that proof of
the bad character of the plaintiff is inadmissible for any purpose in actions
for malicious prosecution.t All the evidence upon this subject disclosed in
the bill of exceptions was incompetent, and should have been excluded from
going to the jury. This instruction also was erroneous.
Judgment reversed, and the cause remanded to the court below, with an
order to issue a venire de novo.
BIGELOW v. FORREST, 9 Wallace, 339.
In this case the court decide that the confiscation act of 17th July, 1862,
is to be construed in connection with the joint explanatory resolution of the
same date (12 Stat. at Large, 627), and that upon a decree of condemation
under this act, all that could be sold was a life estate of the criminal.
The learned reader is referred also to the following cases : —
McKee v. U. S., 8 Wallace, 168. The Ouachita Cotton Case, 6 ib. 521.
The U. S. v. Lane, 8 ib. 185. Union Ins. Co. v. U. S., 6 ib. 765.
Morris' Cotton, 8 ib. 507. Armstrong's Foundry, 6 ib. 769.
* Aylwin v. Ulmer, 12 Massachusetts, '22 ; New York Fire Insurance Company v. Wai-
den, 12 Johnson, 513; Utica Insurance Company v. Badger, 3 Wendell, 102; Tufts v. Sea-
linry, 11 Pickering, HO; Morton v. Fairbanks, Ib. 308; Fisher v. Duncan, 1 lleuing and
Munford, 502; Schucliardt v. Aliens, 1 Wallace, 359.
t 1 Greenlcaf's Evidence, § 55.
( UNIVERSITY 1
Of
' .
INDEX
ABANDONED PROPERTY.
claim to, by a rebel who has taken the oath of amnesty, &c.,
(S. O. 535.) 382, 383
statutes relating to. See Index, " Capture."
see act March 3, 1863, and July 2, 1864, relating to.
land in rebel States set apart for freedmen, .... 474
see act March 3, 1865, ch. 90, sec. 4, relating to.
letter to G. "W. Julian, relating to, 460
act July 16, 1866, ch. 200, freedman's bureau, relating to. See
Index, " Freedman's Bureau."
see " Military Government and Reconstruction," note, . . 427
slaves, when deemed captives of war, . . . . .114
act June 27, 1868, relating to, see note, 182
officers who have administered acts of Congress, relating to
captured or abandoned property, protected from suits
and prosecutions, 182
see act March 3, 1863, and 1868, ch. 267, referred to in note, . 182
policy recommended to the government in relation to, . . 469
note on the right of capture of enemy's property, . . 451
see United States v. Anderson, 603
ADAMS, JOHN QUINCY, 70, 71, 73, 77-81
AFRICAN DESCENT, PERSONS OF.
may be rightfully called on for military service, ... 20
laws by which they have been introduced into the military ser
vice of the United States, see note to page 20, . 478-494
laws equalizing their pay with that of white soldiers, see note
to page 20, 478-494
steps taken by Congress in relation to the abolition of slavery,
see note on slavery, ...... 393-400
rights conferred on. them by amendments of the Constitution,
and by reconstruction laws, see note on " Military Gov
ernment and Reconstruction," ..... 427
see Index, " Constitution," note on " Slavery," . . . 393
611
612 INDEX.
AFRICAN DESCENT, PERSONS OF — continued.
for rights of, see Index, " Civil Rights." ,
see act Xpril 9, 1866, ch. 31.
when deemed captives of war, ....... 114
see Index, " Captives."
history of their introduction into our military forces, . 470-494
excluded from the regular and volunteer army by law, prior to
July 17, 1862 478-^94
AID AND COMFORT TO THE ENEMY.
voluntary residence in enemy's country is made prima facie
evidence of, by stat. 1868, ch. 71, sec. 3, ... 342
ALABAMA, STATE OF.
admitted to representation, ... ... 445
ALEXANDER, MRS., cotton (2 Wallace, 417) 532
ALIENS.
division of, into six classes, ....... 333
residing in this country owe allegiance to the United States, . 334
may be punished by any nation for crimes committed within its
jurisdiction, 334
are subject to the jurisdiction of military courts and to military
government. ......... 334
engaged in commerce, or those who come into the belligerent
country — when they become enemies, . . 332, 335, 352
who join in active hostilities against the United States — their
rights and liabilities, ....... 338
who have voluntarily enlisted in the service of the United States, 338
status of non-naturalized, resident here, in case of war with
their native country, ....... 338
neutral, non-naturalized, who have exercised the franchise of cit
izens here, liable to do military duty, .... 339
neutral, domiciled in the loyal States, degree of protection ac
corded to, . . . 339
naturalized under the laws of the United States, . . . 338
neutral, non-naturalized, permanently domiciled in rebel States, 339
when subject to military duty, and when not so subject, . . 339
neutral, non-naturalized, domiciled in rebel States before the
war, and not withdrawing themselves and their property,
are alien enemies, ...... 343, 352
declared subject to non-intercourse acts by proclamation and
statutes, 343
neutral non-naturalized, having temporary domicile in rebel
States, and remaining there during the war, . . 345, 347
who withdrew from rebel jurisdiction, 347
INDEX. 613
ALIENS — continued.
having mercantile domicile in the rebel States, . . . 346
if prevented by the United States, or those acting under its au
thority, from withdrawing, 345
travellers, or those making temporary sojourn here, . . 345
neutral, whether domiciled here or not, not having exercised
any of the franchises of citizenship, may withdraw, . 349
though neutral, if they do not withdraw, but remain subjects de
facto of a hostile government, their property is liable to
be treated as that of an alien enemy, . . . 349, 352
owning plantation in enemy's country, cannot withdraw its
produce, 349,350
opinions of Sir William Scott and of the Supreme Court of the
United States on this subject, 349
liable to military service if they have exercised the elective
franchise, or other franchise of citizenship, . . . 339
claim to indemnity if arrested, or imprisoned, . . 211,355
arrested and imprisoned, having given reasonable cause for be
lief of their hostile purposes, . . . . . 354, 355
how affected by treaties of commerce, .... 352, 354
giving reasonable cause to believe that they are aiding the
public enemy, may be arrested, .... 198, 354
may be arrested if embarrassing our military operations, . 198, 354
entitled, for such arrests, to no indemnity, .... 365
the reason of this, ......... 365
legality of arrests of, under martial law, 211
arrested rightfully by martial law, cannot have their claims for
damage adjudicated by civil tribunals, . . . .211
arrested wrongfully, not always entitled to redress, until the
fact of alienage is made known to the government, . 212
right to export lumber after blockade was declared, without
proof of having owned it prior to the war, not admitttecl
(S. O. 195), • 362
arrest of non-neutral aliens, claim of indemnity for (S. O. 357), 365
claims of indemnity against payment to the United States of
rent of property, in New Orleans, of a rebel enemy (S. O.
No. 362), 368
serving in the rebel army not deprived of the benefit of the
plea of alienage, as against the claim of the United
States to their military service (S. O. 433), . - 354, 374
voluntarily enlisting in our service, not entitled to discharge
(S. O. 448), -374
claims of, since the war ; draft of a bill proposed for that purpose,
and remarks (S. O. 518), ...... 379
614 INDEX.
ALIENS — continued.
residing permanently in rebel districts, have no claim for prop
erty captured or injured in the war by United States
forces (S. 0. 731), . . . . . . .387
forced into rebel service, captured by the United States, wheth
er entitled to discharge (S. O. 935), . . . . 388
not exempt from enrolment or draft in our forces, if they have
assumed rights of citizenship, by voting at any election
in any State or Territory. Act of February 24, 1864,
ch. 13, 339
of twenty-one years of age, who have served in our army, and
have been honorably discharged, having lived one year
in the United States, may be naturalized, &c. See act
July 17, 1862, ch. 200, sec. 21.
see act July 27, 1868, ch. 276, disqualifying them from main
taining actions against the United States, or against
any officer, for certain acts.
not to maintain, in any United States or State court, against
the United States or against any person, for any act
done or omitted, under certain acts of Congress relat
ing to captured or abandoned property, &c.f see Stat.
1868, ch. 276.
certain, may prosecute claims against the United States, in the
Court of Claims. See stat. 1868, ch. 276.
not residing in the Uuited States owe no allegiance to our gov
ernment, . . . . . ... . . 322
distinction between such aliens and citizens who are public
" enemies,'' in relation to their obligations and liabilities, 322
AMENDMENTS. See Index, " Constitution."
AMNESTY.
property of rebels refusing amnesty should be confiscated ;
letter to Hon. G. AV. Julian, 473
as bestowed by President Johnson, 469
see Ex parte Garland, 565
when, on whom, and on what terms to be bestowed, is a ques
tion of public policy, see Index, " Policy of the Govern
ment."
proposed by President Lincoln, ...... 254
how far recommended, ........ 470
if refused by malignant enemies, their property should be con
fiscated, 473
dictates of humanity and of statesmanship, .... 472
ANDEPcSON ats. United States (9 Wallace 64), .... 603
INDEX. 615
APPEAL.
the Supreme Court has no jurisdiction to entertain appeals from
the judgments of military courts held during the war,
see act March 2, 1867, ch. 165, .... 288-290
as to right to hear and decide, on appeal, all questions of law
growing out of, ........ 536
see civil rights act, April 9, 1866, ch. 31, sec. 10.
see Milligan's case, ........ 536
notes on, . 460
see Index, " Provisional Courts."
see the Grapeshot, 598
see Vallandigham's case, . 524
see Ex parte Garland, ........ 665
see Ex parte Yerger (9 Wallace, 85).
ARKANSAS, STATE OF.
admitted to representation in Congress, . . . 249, 445
ARMY, REGULAR.
call of the President for increase of, May 3, 1861, . . . 478
colored men excluded from by law prior to 1862, . . 478-480
regulations of the army made by the War Department have
the force of law, 479
new army regulations of August, 1861, . . . . . 479
such regulations excluded from the army slaves and colored men, 479
opinion of Attorney General Gushing, and decision of the Su
preme Court, . . . . . . . • . 479
exclusion of colored soldiers from, rigidly enforced by General
McClellan, . . . 480
free white males only could belong to. prior to July 17, 1862, 478^180
ARNOLD, HON. I. N., of Illinois.
note on slavery, ......... 393
bill to prohibit slavery in the Territories, .... 396
ARRESTS BY MILITARY AUTHORITY. See " Military Arrests."
ARTICLES OF WAR. See " Capture."
see note to forty-third edition, " Laws for raising and organ
izing Military Forces. ....... 478
see stat. April 10, 1806.
ASHLEY, HON. J. M., of Ohio.
proposition to amend the Constitution (13th amendment) abol
ishing slavery, .....••• 398
letter of, to the Secretary of War on military government, . 259
ATTACHMENTS.
of sequestered property by claimants against rebel owner, effect
of (S. O. 730), '. 386
616 INDEX.
ATTAINDER.
bills of, 84
bills of, in England, 84
the confiscation act of July 17, 1862, is not a bill of attainder,
or ex post facto law, . . . , . . .116
this act, and the joint resolution which accompanied it, are to
be construed as one act, and provide for forfeiture of
nothing beyond a life estate of the offender, . . 116
this view affirmed by the Supreme Court in 1870, in Bigelow v.
Forrest, Appendix, . . . . . . .610
see U. S. v. Latham, referred to, 110
three modes of attainder practised in England in former
times, see introduction to chap, v., .... 915
punishment by attainder, 84
attainders prohibited as inconsistent with constitutional liberty, 85
bills of attainder abolished, ........ 86
what is a bill of attainder, 86
bills of pains and penalties, ....... 87
ex post facto laws prohibited ; bills of pains and penalties, as
well as attainders, unconstitutional, . . . .88
attainders in the Colonies and States, . . . . 89, 122
bills of attainder, how recognized, . . . . . .91
* nature of, stated by the majority of the Supreme Court, in Cum-
mings v. State of Missouri, . . .... 556
and by the Court in Ex Parte Garland, ..... 565
see Introduction to Chap. V. relating to, . . . . 93, 94
B.
BATES, EDWARD, Attorney General.
remarks on his opinion on the question of payment of colored
volunteers, 491, 492, 507
on construction of the two acts of July 17, 1862, chs. 195 and
201, 491, 492, 496
BATTLE.
case of the, see 6 Wallace, 498.
BELLIGERENTS.
rebels may be treated by the government as such, Note A, and 44, 215
if rebels are treated as such by the government, their personal
property of all kinds may be captured or confiscated by
the laws of war, ....... 48, 54-65
if rebels are recognized as belligerents under the law of nations,
the personal property of all persons, citizens or aliens,
voluntarily and permanently residing in territory under
INDEX.
617
BELLIGERENTS — continued.
the control of the enemy, is liable to capture and confis
cation, 48, 56, 58
see " War Claims," " Solicitor's Opinion," " Public Enemies."
their ships and other property on the sea may be captured and
condemned as prizes, 48, 57
see " Capture."
slaves of belligerents in civil war may be emancipated by the
law of nations, 68> 69
see " Slaves."
this right of emancipation confirmed by authority and usage
of nations, ......
see " Indemnity ; " see also note, on " Slavery,"
this right sanctioned by the practice of the government of the
United States,
the real estate of belligerent rebels situated in this country
may be confiscated or sequestered by the government
jure belli, 58~62
so as to the real estate of aliens voluntarily and permanently
residing in enemy's territory, ....
decision of the Supreme Court of the United States on this
point, in 8 Cranch, 123,
Chancellor Kent's opinion on the same, .
the persons of, may be captured and held as prisoners of war,
50, 53, 57, 240
property of, is not held to be confiscated as the necessary re
sult of conquest, but this must be done by military or
legislative act of the conquering power, 56, 59
in civil or international war, are all individually and collectively,
as members of a government, enemies of each other,
61, 239, 240, 293-306
right to confiscation of enemy's property, whether, and how far
it shall be used, is for the government to decide,
62, 65, 470, 474
suggestion that confiscation of property of slaveholders would
affect only about one fiftieth part of the inhabitants of
rebel slave States,
comp-arison of their number with that of the old lories of the
revolution
whether rebels shall be deemed as such, and shall become en
titled to the privileges of, depends in the first instance
on the decision of the President, • 240> 42°
whether belligerent rights shall be permanently conceded to
78
618 INDEX.
BELLIGERENTS — continued.
rebels in civil war, depends upon the policy of our gov
ernment, ......... 240
see " Policy of the Government."
rebels in civil war may be treated as such, or as subjects liable
to all the penalties of municipal laws, .... 44
authorities cited on this point, ...... 44
rebels have in fact, in several respects, been treated as such by
the government, 45, 292
blockade of rebel ports has been set up under the law of na
tions, .......... 45
the Constitution defines " treason " as levying war, and there
fore holds traitors as subjects and belligerents, . . 46
" a rebel does not cease to be a subject because he has turned
traitor," 46
if traitors are allowed belligerent privileges, they must be sub
jected to belligerent disabilities, .... 46, 293
cannot assume inconsistent characters, . . . .46, 293
government's right to treat rebels as belligerents, or as traitor
subjects, relieves the administration from embarrassment,
and why, ......... 45
government may elect its own policy as to individuals, . . 45
whether to be deemed as mere insurgents or as public enemies,
is a political question, .... 44, 293, 294
whether entitled to civil or political rights in the Union is a po
litical question, to be decided by the political department
of our government, 53, 242, 244, 252, 292, 293, 295, 306, 425
may be subjected by the conquerors to military government,
see title " Military Government."
this doctrine doubted and denied in 1862, when this essay was
first published, ........ 425
see note on Belligerents, 425
principle now established, 425, 426
cases on these points printed in this work, .... 427
Cherokee Nation v. Georgia, 529
Rhode Island v. Massachusetts, 530
cases decided in the Supreme Court since the publication of
the later editions of this essay (see Appendix), . 512, 610
see " Supreme Judicial Court, Cases decided by," . . 512, 610
exchange of, as prisoners of war, 45, 292
note to forty-third edition, on Belligerents, .... 425
Georgia v. Stanton, 445, 588
The Venice, 532
Mrs. Alexander's Cotton, 532
INDEX. 619
BELLIGERENTS — continued.
Mississippi v. Johnson, ... . 579
The Peterhoff, .... . 582
The William Bagaley, ... .583
Mauran v. Insurance Co., 587
the acts of the Confederate States relating to, . . . 409-425
subjects of, cannot transfer allegiance flagrante bello, so as to
protect their trade, ....... 334
or neutrals violating blockade, their ships and cargoes subject
to seizure and condemnation by prize courts, note on p. 45
BELLIGERENT RIGHTS IN CIVIL WAR.
possessed by this government against rebels in arms, . 44, 53-65
what they are is to be ascertained by the law of nations, . . 47
law of nations above the Constitution, ..... 46
among these belligerent rights, according to the law of nations,
are the following : —
the right to capture the persons of the enemy, and hold them as
prisoners of war, .... 50, 53, 57, 240
to blockade their ports of entry (see " Blockade"), 45, 296
to pass acts of non-intercourse (see " Non-inter
course "), 299,303
to capture enemy's personal property on land (see
" Capture "), 48
to destroy the same, 48
to capture personal property of all persons, citizens
or aliens, friendly or hostile, voluntarily and per
manently residing in enemy's districts (see " Pub
lic Enemy "), 56-62
to conquer and hold the lands or territory of the
enemy by military forces, ..... 62
to confiscate the enemy's real estate, . . .58
to confiscate the real estate of aliens voluntarily and
permanently adhering to the enemy, ... 58
to emancipate enemy's slaves by the war power of the
President, 66
to emancipate enemy's slaves by the belligerent law of
nations, ........ 69
this right confirmed by authority and usage, . . 74
this right confirmed by usage of this government, . 74
to confiscate the real and personal estate of the
enemy, 48-62,240
see letter to Hon. G. W. Julian, • 469
to confiscate that of all permanent residents, &c. (see
" Aliens," see « War Claims), . . - 60, 61, 240
620
INDEX.
BELLIGERENT RIGHTS IN CIVIL WAR — continued.
the right to deprive the enemy, when conquered, of all civil
and political rights under the Constitution and
government of the United States, saving to them
only the rights of a conquered country under the
laws of war, . . 53, 242, 244, 252, 293, 295
to subject them to military governments (see " Mili
tary Government").
see notes to forty-third edition, . . . 425
how belligerent rights are to be acquired, .... 38
declaration of war not necessary to acquire them, ... 38
the inauguration of civil war gives them to the government as
against rebels, 40
this principle recognized in the prize cases by the Supreme
Court. .... 141, 156, 238, 243
recognition of a state of civil war by the political department
gives them to the government, . . 141-156, 238-243
this principle recognized by all the judges in the prize cases, see
recent Cases decided in the Supreme Court, 141-156, 238-243
to the same effect (Appendix), .... 531-612
whether belligerent rights shall or shall not be used against,
or conceded to, the enemy, is a question of public policy,
and is to be decided by the political department of the
government, 53, 240, 247, 293, 294
certain of them have in fact been conceded to rebels, and exer
cised against them, 291, 292
policy recommended as to the use of, in relation to the political
rights of rebel States, 234, 248
policy recommended as to confiscation, 470
policy recommended as to the liberation of enemy's slaves
(preface, p. vi.), 131} 14o
policy recommended as to cutting up large estates. . . . 470
policy recommended as to reconstruction, . . . 248, 249
certain rules of the law of war, 334,335,336
of seizure, of capture, &c., recognized by the Supreme Court, . 240
conceded by foreign countries to rebels, 333
legal effect of such concession, 333-345
of the United States against property of alien merchant, how-
determined, . . . : 348
as against neutral aliens following from the status of the inhab
itants of rebel States, as public enemies, . . .351
of public enemies against the government, .... 471
see « Belligerents," « Capture," « Confiscation," "Trize," note
on " Reconstruction," and note on " Belligerent Rights," 425
INDEX.
621
BELLIGERENT RIGHTS IN CIVIL WAR — continued.
conceded to the rebels by our government 45
exchange of prisoners of war, ...••• 45, 299
exchange of persons as prisoners of war, who had been con
victed of piracy, 298, 299
conceded by terms of surrender of Generals Lee and Johnston's
armies to General Grant, 299
such terms have been ratified by the government, note to . 299
see Index, " Confederate Laws."
see " Cases decided in Supreme Court," Appendix, . . 512, 610
effect of acknowledging the rebels as belligerents by foreign
governments, on their claims against the United States
for indemnity against injuries to persons or property of
aliens inflicted by the hostile operations of the enemy,
see chapter on War Claims of the United States, . 331, 358
Bigelow v. Forrest, 9 Wallace, 339, Appendix, 610
BINGHAM, HON. JOHN A., of Ohio.
14th amendment to the Constitution, ....
see civil rights act, April 9, 1866, ch. 31, . .
see note on " Slavery," 393
BLOCKADE OF ENEMY'S PORTS.
by act of our government, ....... 45
act of blockading rebel ports is using, to that extent, belliger
ent rights, 45
under the law of nations, can lawfully exist only when there is a
public enemy to the country which proclaims and en
forces it, 305
proclaimed by President Lincoln, April 19, 1861,
proclamation of April 27, 1861,
proclamation of August 16, 1861, .
proclamation of July 1, 1862, ....
remarks on these proclamations of,
breach of, ' * . * 29°
officially notified to foreign powers as under the law of nations,
effect of, 45
see " the Circassian," Appendix, ....
BOLIVAR, GENERAL, • 73
BOMBARDMENT.
of Greytown, injuries suffered thereby, 536
Lord Palmerston's opinion on,
Attorney General's opinion on,
of Uleaborg, Palmerston's opinion. .
of Copenhagen, Palmerston's opinion,
BROUGHAM, LORD, on military prize, 48
622
INDEX.
c.
CABINET OFFICE.
new cabinet office proposed, ...... 465, 466
CALIFORNIA.
constitution of, 314
admission of, to the Union, ...... 314
CARTEL.
see Index, " Capitulation," " Belligerent Rights," " Belligerents."
CAPITULATION.
of rebel prisoners at Hatteras, effect of, 45
of armies of General Lee and General Johnston, effect of, see
note to page ........ 299
of enemies by cartel, effect of, 299
CAPTIVES OF WAR.
slaves of rebels who escaped from their masters, so declared
by stat. July 17, 1862, ch. 195, 114
slaves deserted by rebels and coming under our control, . .114
slaves found in places once occupied by rebel forces, and after
wards occupied by ours, declared to be such by act
July 17, 1862, ch. 195, 114
public enemies captured in civil war are such, . . . 64, 167
exchange of rebels as such, 45
exchange of rebels as, by cartel, 298, 299
may be held as prisoners of war, 61,167
see note on the " War Powers used by the Government," . 391
for political rights of, see " Belligerents," " Policy of the
Government," &c.
CAPTURE.
title by, ...... 4$
prize courts determine right of, when made on the high seas, . 48
of all personal property of all permanent residents in the ene
my's territory, whether friendly or hostile, is lawful, 56. 58, 240
right of, recognized by the Supreme Court, .... 240
note to 43d edition, upon the right of capture of enemy's
property jure belli, 451-455
rights of, claimed in this essay, 451-455
cautious steps by which the Supreme Court advanced towards
a recognition of, 451-455
sketch of the line of cases in our courts, by which this doctrine
relating to prizes was settled, .... 451,455
Dunlop, J., Sprague, J., Betts, J., . . . . 451, 455
points first finally decided, 1863-4, in prize cases, 141-156, 451, 455
INDEX.
623
CAPTURE — continued.
judicial decisions as to, on land, . . • -156, 451, 45o
progress of public and judicial opinion, . . -156, 451, 4oo
various acts of Congress relating to, . . 141-156, 451, 455
141-156, 451, 455
comments on. , '
articles of war as to,
right of, in its amplest extent, has been recognized and en
forced by the courts, and sanctioned by the government,
since the publication of the 10th edition of this essay, . 451
see " The Battle," 6 Wallace, 498, .
see " Armstrong's Foundry," 6 Wallace, 769.
see note on War Powers, .
see "United States v. Republican Banner Office," 11 Pitts' Leg.
Reg. 152.
see Mrs. Alexander's Cotton case (2 Wallace, 417), Appendix, o32
action of Confederate Congress on. See " Confederate Laws."
confederate statute of May 6, 1861, relating to, ... 455
subsequent Confederate statutes upon, .
the legal distinction stated as to the modes of acquiring title by
captures on land and on the seas,
this distinction recognized in several recv t cases, by the
United States courts, .
Swayne, Mr. Justice, opinion of, in Coolidge v. Guthrie, .
of abandoned property, in case of, or of receipt of property
from persons in insurrectionary districts, captors,
whether soldiers or seamen, must turn it over to a gov
ernment agent. See act March 3, 1863, sec. 6. See also
act July 2, 1864. See United States v. Anderson,
rules concerning, on land or water, may be made by Congress,
under the specific authority of the Constitution, art 1,
i i t 25, 28
sec. 8, ch. 11,
A --\ •}
See cases cited page
captured and abandoned property : officers and others engaged ii
administering laws relating to, protected from suits and
prosecutions for. See act 1868, ch. 276. .
creditors of enemies whose property has been captured by the
United States, their rights, .
of property of non-neutral British subjects,
of military supplies in rebel territory,
of corn, claim by vendee of rebels to proceeds of, .
effect of proceedings of the United States in this case, . .
of enemy's property is one of the well-settled belligerent rights,
of provisions, £c., by our army, from persons claiming to be
loyal, but residing in enemy's country, not allowed, .
624
INDEX.
CAPTURE --continued.
oath of loyalty, its effect, 353
General Grant's permit to trade with the enemy, its effect
on» 363
see Ouachita Cotton Case, 6 Wallace,
see also McKee v. United States, 9 Wallace, 166.
forcible, of arms from French aliens, .... 354
forcible, of contraband articles, . . . 354
of property claimed to have been bought under treasury per
mit, &c., . 378
proofs required in case of claimant of, . . . 373
of coin on the person of a public enemy on land, . . .381
opinion of Judge Giles on, ..... 331
of cotton of aliens permanently residing in enemy's country,
and not withdrawing in reasonable time, . . . 384
belligerent right of (S. O. 951), . . . 339
right of, illustrated in several cases in Solicitor's Opinions,
see pages . 358-389
captured arms, &c., &c., act March 3, 1863, ch. 86, sec. 2.
see joint resolution of Congress, March 30, 1868, No. 25, which
provides that refusing or neglecting to pay over the pro
ceeds of sales of captured, &c., property, shall be deemed
embezzlement, and punished as such.
see note to 43d edition on the War Powers, . . . .391
right of capture of enemy's property, Note, .... 451
as to the time when the rebellion was suppressed (viz., August
20, 1866), with reference to claims under the act relating
to captured and abandoned property, &c., see the United
States v. Anderson, 603
CASES.
decided by the Supreme Court, and printed in whole or in part
in the Appendix to this work, see " Courts, Judicial," of
the United States, 512, 610
CARLISLE, SENATOR, '497
CHASE, CHIEF JUSTICE.
letter to President Johnson, February, 1865, giving reasons
for declining to hold a civil court in Virginia, . . 595
remarks to members of the bar at Halcigh, N. C., on opening
the Circuit Court, June 6, 1867, 596
as to military authority, civil jurisdiction, war powers, and the
powers of courts of law, Appendix, .... 596
opinions of the Supreme Court delivered by, . 550, 579, 598, 601
CHEROKEE NATION v. STATE OF GEORGIA.
6 Wallace, 73, ... 529
INDEX. 625
CIRCASSIAN, THE, 2 Wallace, 150, 532
CITIZENS OF THE UNITED STATES.
slaves not deemed by the Supreme Court of the United States
as such prior to 1863, 371
as defined by the civil rights act of April 9, 1866, ch. 31, . 399
see Index, " Civil Rights."
as defined by the 14th Constitutional Amendment, . . .391
aliens having served with our military" forces, and having been
* honorably discharged, may, under certain circumstances,
become such, see act July 17, 1862, ch. 200; see
" Alien."
when indemnity is paid to, for private property appropriated to
public use, 16-22, 340
when indemnity is not allowed for property destroyed, 16-24, 340
become alien enemies, in respect to property and capacity to
sue if permanently residing in hostile country, . . 337
exceptions to this rule, 340
see stat. 1868, ch. 70, sec. 3.
when declared by law public enemies, see " Public Enemies."
CIVIL RIGHTS.
constitutional guarantees of, not always applicable in time of
war, 49
true application of the guarantees of, . . ' . . .50
whether allowed to rebel belligerents must be decided by the
political departments of the government, ... 53
see note to 43d edition, 425
changed by martial law, ...... 64
see " Martial Law."
of loyal citizens in loyal districts are modified by a state of
war, . . . 51-53
not acquired under the Constitution by inhabitants of foreign
territory ceded by treaty to the United States, or ob
tained by conquest, 26(i
act April 9, 1866, ch, 31, relating to, defines certain civil rights,
note, .......... 399
declares who are entitled to citizenship, and certain rights
of, 399
see note on slavery, 393
provides penalty for aiding escape of offenders against, . 399
provides for appeal in eertain cases to the Supreme Court
of the United States, 399
gives jurisdiction to United States courts over offences
against 399
79
626 INDEX.
CIVIL RIGHTS — continued.
penalties for depriving persons of rights under, . . 399
penalties for preventing arrests of offenders under, . . 399
of citizens generally, declared, 399
secured by amendments of the Constitution, .... 399
see " Amendment," art. XIV. 399
whether to be allowed to a public enemy is a question to be de
cided by the political department of the government, see
" Policy of the Government," " Public Enemy," " Bel
ligerents."
CIVIL WAR.
distinction between the objects and the means of, ... 7
as means of carrying on, it has become necessary and lawful to
do certain acts, ........ 8
if freeing slaves becomes expedient, what to be done, . . 8
leading questions of, stated, 13
how it may be commenced, ....... 38
when, within the meaning of the Constitution, it exists, . . 38
declaration of war not necessary in case of, . . . 3, 8, 39
duty of the President in case of, 40
entitles the parent government to treat its rebellious citizens
as belligerents, or as public enemies, .... 44
may be against the government or by the government, . . 43
acts of, by rebels, . 43
exists by act of rebels, ........ 44
rights in, acquired by the United States against the rebels,
see title " Belligerents," " Belligerent Rights in Civil
War," "Policy of the Government," "Confederate Laws,"
"Capture," "Confiscation," "Constitution," "War,"
" Slaves," " Slavery/' " Compensation for Slaves,"
" War Claims," " Aliens," &c.
see " War Powers used by the Government," .... 390
" Slaves in the Army," ....... 405
note on " Belligerents," 425
note on " Reconstruction," ...... 427
note on "Capture," . . . . . . . • 451
letter to Mr. Julian, 469
the nature of our contest, 230
State rights in, 234
attitude of the government in, changed by the progress of the
contest, ......... 235
the rights of the public enemy in, ...... 238
reference to prize cases relating to, . . . . - . 238
how long it may justly be continued, ..... 261
INDEX. 627
CIVIL WAR — continued.
its means and its results, . . .261
its results, how attained, 261
what we gain, and what rebels lose by (letter to Hon. G. W.
Julian), 409
CLAIMS AGAINST THE UNITED STATES.
for indemnity for property of loyal citizens lawfully appro
priated to public use, under the provisions of the Con
stitution, 15, 16, 17, 18
magnitude of claims presented to the Solicitor of the War
Department for damages done by our military forces,
see letter to Hon. E. B. Washburn, . . . .467
vast amount of claims against, disposed of by the recent Con
stitutional amendments, ...... 400
for indemnity for slaves, see titles " Slaves," " Slaveholders,"
" Indemnity," " Slavery," " Constitutional Amend
ments."
of aliens for indemnity classified, ...... 332
see " Aliens."
the character of, especially discussed in the chapter on war
claims. 332
. how affected by concession of belligerent rights, . . . 333
of aliens residing within the arena of war, .... 336
test questions on examination of, 356, 357
of various citizens of the United States, see titles " Solicitor
of the War Department," " Abandoned Property,"
" Capture."
in any suit before any court when it shall become material
whether a person did or did not give aid or comfort to
the rebellion, the stat. 1868, ch. 71, sec. 3, provides
that the burden of proof of loyalty is upon the party who
asserts it, and voluntary residence in the rebel States is
prima facie evidence of ha\ing given aid and comfort to
the rebellion. See act 1868, ch. 71, sec. 3.
CLIFFORD, MR. JUSTICE.
opinion of the Supreme Court in the " Wm. Bagaley," deliv
ered by, 583
CONTRABAND OF WAR.
military supplies, provisions, &c., captured by our troops in
enemy's country, ........ 358
see case of Mrs. Alexander's Cotton, ..... 533
see " Capture."
see note on " Capture," 451, 455, 459
case of Mrs. Bass, 363
628 INDEX.
CONTRABAND OF WAR — continued.
slaves of rebels escaping or taking refuge within our lines, or
captured from their masters, or deserted by them, &c.,
or found by our forces in places previously occupied by
rebels, are declared not contraband of war, but cap
tives of war, by act of Congress, July 17, 1862, ch.
195, sec. 9, 114
see Guthrie v. Coolidge, 591
for recent cases on the subject, see Appendix.
GUSHING, ATTORNEY GENERAL, . .479
COCHRANE, ADMIRAL.
his proclamation, ...... .70
COLORED MEN.
excluded from the regular army prior to 1862, . 478, 482
excluded from the militia of the States prior to 1862, . 478, 482
excluded from the volunteer service prior to 1862, . . 478, 482
see " African Descent."
see " Slavery " (note), 39^
steps by which they were introduced into the military service,
and finally entitled to equal pay with white soldiers
(note), 478-494
see " Military Service."
records of the Adjutant General's office show that there were
no enlistments of, in the army or volunteer service, prior
to July 17, 1862, 489, 490, 491
friends of, sought to obtain equality of pay with white troops
in 1863 ; why they failed, ... .491
CLINTON, SIR HENRY, .... -69
CLARK, SENATOR (N. H.).
bill proposed by, combining emancipation of enemy's slaves,
&c., and confiscation (act July 17, 1862, ch. 195), 395, 494, 495
COMMANDERS, MILITARY. See " Military Commanders."
COMPENSATION.
to slave masters, see " Slavery," and Note on, . . • 405
COLLAMER, SENATOR, • 497, 504
CONFEDERATE STATES.
claim to be an independent de facto government, .
claim as against the United States full belligerent rights, . 43, 236
claim that the United States is to them a foreign nation, and
its citizens are alien enemies, and invaders of their soil,
see note on " Confiscation," .... 236, 409-427
legislation of, in relation to confiscation of the property of their
enemies (note), see title " Confiscation," and Note, 409-424
INDEX.
629
CONFEDERATE STATES — continued.
who are enemies of, as defined by Confederate statutes, see
Note on " Confiscation," 409, 424
declaration of war by, against the United States, . . .352
see " Laws of Confederate States," see note, . . . 409-424
alone liable for injuries to subjects of governments who have
conceded belligerent rights to them, . . . 334, 345
held by a majority of the Supreme Court to have been a de
facto government in the sense required to bring a cap
ture by their cruisers of insured property within a clause
of a policy of insurance warranting against capture by
" the enemy " (see Appendix), 587
political existence of, as a de facto government, has never been
conceded by the political departments of our govern
ment, • 299-306
government of, and all acts of, declared null and void, by
proclamation, and by acts of Congress, . . 427
see title " Reconstruction."
laws of, relating to confiscation, and remarks on, . . 409-423
relating to alien enemies, 409
relating to sequestration, .....
relating to property of alien enemies liable to sequestra-
tration, .417
further act of, on the same subject, 418
remarks on these acts, ....... 424
laws of, establishing military courts, . . . 447, 449, 451
joint resolution of, on retaliation, ..... 449
act of, to repress importation of Confederate money by
their enemies, ........ 449
war powers used by, .... 455, 459
act of declaring or recognizing war with the United
States, 455, 459
effect of, 459
Congress of, determined as a political question the legal status
of all inhabitants of the Confederate States, . . 427
although the Confederate States were held, in Mauran v.
Insurance Co., to be a de facto government within
the sense of terms employed in a policy of insurance,
yet, in the subsequent cases of the United States v.
Keehler, and Hickman v. Jones, the Court held unani
mously that the rebel States were not a de facto gov
ernment in such a sense as to give any legal efficacy
to its acts. See Appendix, pages, . • 607, 608
630 INDEX.
CONFISCATION.
of personal estate, belligerent right of, 48
authorized and allowed by the Constitution, . . . 54-62
of all personal property of all persons residing in belligerent
districts, whether friendly or hostile, is allowable, . 56-58
of enemy's real estate, ........ 58
act of 1862 is not a bill of attainder, nor is it an ex post facto
law, 114
act of 1862, legal construction of, 118
not within the prohibition of the Constitution, . . 121
see note on, 425
practical operation of, 124
right of, recognized by the Supreme Court, .... 240
act July 17, 1862, President's Lincoln's views of, . . 406
President's message upon (note), 406
his error in constitutional law, ...... 409
his course on this subject, ....... 409
bills in both Houses of Congress on, 409
anticipated results of our failure to have an effective confisca
tion act, 126, 127, 128
actual results, ......... 409
acts of Confederate Congress relating to, .... 409
Confederate act August 8, 1861, 409
August 30, 1861, 411
December 23, 1861, 417
February 15, 1862, 418
Confederates' opinion of their war powers under their constitu
tion, 424
the policy of the government as to confiscated lands, &c., see
correspondence with Hon. G. W. Julian, . . . 470
property of malignant enemy refusing amnesty should be con
fiscated, 473
effect of, on the right of a creditor to collect his claim out of the
proceeds of (S. O. 532, &c.), 382
constitutionality of, not now doubted, as remarked by Chase,
C. J., 425
policy of confiscation, how far recommended, .... 470
uselessness of confiscation and forfeitures as provided for by
laws of Congress, 126-130,471
act of July 17, 1862, its history and the mode in which it was
administered, as regards the employment of colored per
sons, 478, 481, 493, 494
its true construction, 112-116
debates in Congress upon its passage, .... 494-509
INDEX. 631
CONFISCATION — confirmed
how it was interpreted by those who framed it, so far as re
gards the use of colored persons in the army, . . 507
act of July 17, 1862, interpreted by Supreme Court (in 1870)
as confiscating only a life estate (Appendix), . .610
see note on page . . . . . . . . .111
CONGRESS.
war powers, foundation of, references to the Constitution, . 27
power of, to do what is essential for the preservation of the re
public, 10
powers of, hitherto unused, . . . . . . .11
powers of, new inquiries as to their limits, . . . .12
powers of, leading questions relating to them stated, . . . 13
power of, to pass laws for appropriating private property for
public use when justified by public necessity, . . 15
reasons for giving this power to, . . . . . .15
must provide indemnity, when, . . . . . .16
may construe as " public use " modes of dealing with property
other than " using it," in the sense in which this term
is ordinarily understood, . . . . . .17
illustrations of, ......... 18
has power under the Constitution to appropriate all kinds of
property to public use in case of public necessity, . 18
this power of, includes " property " in slaves, .... 18
also includes real estate, personal estate, rights in action
or in possession, obligations for money or for labor
or service, ......... 18
used by Confederate Congress, see act February 17, 1864,
and note on page 26
application of this rule by, on occasion of our treaty with
France, 19
application of the rule in case of slaves carried away by the
British, compensation being paid to the masters, . . 19
application of the rule when slavery was abolished in the Dis
trict of Columbia, . . . . . » .19
application of the rule where minors, apprentices, and slaves
have been relieved from obligation to their parents or
masters, ......... 19
reason why this power of, should exist, . . . • 19, 20
has power to pass laws requiring all citizens to do military ser
vice, 20
the power of, to provide laws requiring slaves, apprentices,
minors, and persons not citizens, to do military service,- 20
acts of, for calling forth our military forces, history of, during
the war (note), 478
632 INDEX.
CONGRESS — continued.
duty of, to provide compensation for (note), . . . .21
remarks upon, . . . . . . . . 21, 22
whether obligated to provide compensation for slave masters,
masters of apprentices, or parents of minors, for loss of
labor and service, 21
not required to do so by the Constitution, in case of civil war,
&c., 22
not required to indemnify Mormons, 22
not required to provide indemnity or compensation to claimants
of labor or service, if slaves, apprentices, &c., are called
into the military service of the United States, . . 24
reasons for this, . . . . . . . . . 24
civil power of, to appropriate private property, is not superseded
by the war power to seize, ...... 24
war powers of, references to the Constitution containing, . 25
power of, to abrogate or abolish slavery if required for public
welfare and common defence in time of war, . . 26, 28
is the sole judge as to the time when this condition of affairs
exists, 28
duty of, to abolish slavery as a war measure, Preface, . . viii
power of, to seize and impress slaves into military service acted
upon by Confederate Congress, note, page ... 26
danger of misuse of powers of, conferred by the 18th clause
of art. 1, sec. 8, of the Constitution, .... 27
abuse of powers by, remedy for, is in the hands of the people, . 27
powers of, not in conflict with those of the President, . 27, 30, 68
may determine what shall be done with captures ; and the
President's duty is to execute the rules of, . . . 28
power to abolish slavery nowhere prohibited in the Constitu
tion, 28, 29
States are prohibited from discharging fugitives from labor or
service, 29
explanation of the clause in the Constitution as to fugitives
from labor or service, &c., 28, 29
powers prohibited to States may by implication belong to the
United States, 29
has authority to make all laws which it may deem necessary
and appropriate to carry into execution the powers
granted by the Constitution, . . . 34
opinion of Chief Justice Marshall on, 34
powers of, rules of interpretation of, ... 34, 35, 36, 37
opinion of Alexander Hamilton on, 35
opinion of Chief Justice Marshall, approved by Webster,
Kent, and Story, on this point, 35
INDEX.
633
CONGRESS — continued.
has power to confiscate property, or liberate slaves of rebels,
if these acts are, in the judgment of Congress, adapted
to suppress rebellion, ..••••• "7
resolution of, " That war existed by the act of Mexico," . . 38
has sole power to declare war, or to sanction or authorize of
fensive war, see " Prize Cases," 141-156, . 38, 39, 151
declaration of war by, not necessary,
duties of, separate from those of the President, ... 40
certain members of, misapprehension of, as to the question
whether the United States are " at war,"
empowered, in the express terms of the Constitution, to pass
laws to punish traitors. 46
subjected to the laws of nations which are above the Constitu
tion, 46
A Q
has power to pass confiscation acts, .
power of, to declare war, is found in the Constitution, Art. 1,
sec. 8 • • . ' 49
has power to raise and support armies, to provide and main
tain a navy, to provide for calling forth the militia, to
execute the laws of the Union, to suppress insurrection
and repel invasion, to provide for organizing the army
and disciplining the militia, and for governing such
part of them as may be in the service of the United
States, ; • 49
power of, in time of war, is not restrained by clauses in the
Constitution cited, they not being applicable in a state
of war, ....... 48,49
power of, how affected, in time of war, by clauses of the Con
stitution, which declare that no man shall be deprived of
life, liberty, or 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,
power of, as affected by these guarantees, and the true explana-^ '
tion and application thereof, °°' °
' limited to the provisions of the Constitution in legislating
against citizens or persons holding the legal status of
citizens in time of peace,
not so limited in case of war, _
power of, to pass confiscation laws,
80
634
INDEX.
CONGRESS — continued.
authorities for, 54
Chancellor Kent's opinion, ...... 55
act of, necessary to effect confiscation, since conquest alone does
not effect it, 56
law of, for confiscation of enemy property, when executed
passes perfect title, ...... 56
may erect military government over territory of the public
enemy by law, 62-65
necessity of this power, 63
may establish military government over enemy territory as a
means of performing the duty of the United States to
guarantee a republican form of government to. each
State in the Union, see chapter on " Military Govern
ment," ^. 309-315
duty of, to take such steps, military and 'civil, as may tend to
restore a republican form of government to the loyal
citizens in the insurrectionary districts ; if there be no
persons who will submit to the Constitution and laws of
the United States in a State, it is a duty of the govern
ment to hold that State by military power until loyal
citizens shall appear there in sufficient numbers to en
title them to receive back into their own hands the local
government with safety to the Union, . . 65, 248, 249
duty of, in these respects, has been performed by Congress in
passing the Freedman's Bureau Act, 1865, and the Re
construction Acts in 1867, see note to page ... 65
duty of, as performed in the Reconstruction Acts, sustained by
Supreme Court in cases cited (note), .... 65
see Georgia v. Stanton, 588
see note to 43d edition, on " Reconstruction," . . . 427
may provide by law for the confiscation of the property of all
persons, whether friendly or hostile, permanently and
voluntarily residing in enemy territory, ... 56
so as to property on the ocean enjoyed in commerce. . . 55
authorities on this point of international law, .... 55
rules of, and laws of nations, impose the only limits to the war-
making power of the President when the army and navy
are lawfully in actual service, 57
specific authority of, to make rules concerning captures on land
and water, given by the Constitution, Art. 1, sec. 8, '
cl. 11, 25
see note to- 43d edition, on " Capture of Enemy's Property." 451
power of, under the Constitution, to declare war, ... 25
INDEX.
635
CONGRESS — continued.
to raise and support armies, . . 25
to make laws for the government of land and naval
forces, 25, 207
to provide for calling forth the militia to execute the laws of
the Union, to suppress insurrection and repel invasion, 25
to provide for organizing the army and disciplining the
militia, and for governing such part of them as may
be employed in the service of the United States, . 25
has power to provide by law that no property of loyal citizens
residing in disloyal States should be captured or seized
without compensation, .
this policy commended, .
applied in Missouri, 58
see title " Capture," and note to 43d edition, .
power to confiscate enemy's real estate, .
this power of, is not doubted by the highest authorities, .
decides what policy shall be adopted on these questions, . 53, 58, 62
not relieved of concurrent duty to emancipate enemy's slaves
bv reason of the power of the President to effect the
oq
same result, ...••••••
peace or war powers of, not incompatible with those of the
President, . • • 68
may abolish slavery by destroying the laws which sustain it,
while the commander of the army may destroy it by cap
ture of slaves, by proclamations and other means, . . 68
prohibited by the Constitution from passing ex post facto laws
or bills of attainder, 88
CQ Q*7
explanation of,
see Ex parte Garland (Appendix), .
see chapter on attainder, 84» 92
right of, to declare the punishment of treason, and its constitu
tional limitations, see chapter on " Treason," 95, 11
right and duty of, to declare the punishment of crimes other
than treason, committed during the rebellion, see Chap.
VIL, 117-130
laws of, against rebels, are most effective which require no aid
of rebels to enforce them, .'
powers of, not obliterated because interested parties deny their
existence,
power of, to abolish slavery, grounds of,
power of, to interfere with slavery, has been denied, . .132
foundation of this error as to, .
1 S*?
exposition of this error, .
636 INDEX.
CONGRESS — continued.
has power to interfere with slavery, as shown by reference to
several clauses in the Constitution, .... 133
as by regulation of the slave trade, 134
by calling slaves into military service, .... 134
by cutting off supply of slaves to new States, . . . 134
in case of servile insurrection, ...... 135
by treaty-making power, ....... 135
in other instances, Chief Justice Taney's opinion, . . 136
to abolish slavery, if necessary to secure domestic tran
quillity and suppress domestic violence in time of
civil war, ... 137
in case of inter-State war, 137
or of civil war in a State, ....... 137
powers of, how to be interpreted properly by the Constitution, 138
how authoritatively construed, 138, 139
has power to provide for the trial and punishment of military
and naval offences, &c. ; this power is entirely indepen
dent of the judicial power, . .181, 277, 335, 340, 342
see decision of Supreme Court of the United States in Dynes v.
Hoover, 520
act of, March 3, 1863, ch. 81, providing that no person arrested
by authority of the President shall be released so long
as the war lasts, &c., 182
necessity of military arrests recognized by, in the act of March
3, 1863, ch. 75, 182
act of, for enrolling military forces, &c., is constitutional, . 205
so decided in several cases, ....... 205
power of, to pass all laws necessary and proper to carry into
execution all the powers granted to any department or
officer of the government, ...... 34
recognition of courts martial by, 279
right of, to establish military territorial or provisional govern
ments over conquered territory, 270
has power to create tribunals to administer its laws, rules, and
regulations for governing the army and navy and regu
lating captures, 276
power of, to create courts of war, 277
sanctioned by the Supreme Court, 277
has recognized an-d established courts martial, . . . 279
acts of, relating thereto, cited, ..... 280
has recognized and sanctioned military courts of inquiry, 280, 281
has recognized and sanctioned military commissions, . . 283
must decide, as one of the political departments of the govern-
INDEX.
637
CONGRESS — continued.
ment, whether persons inhabiting insurrectionary States
shall be deemed in law public enemies, . . .293
power of, in determining questions of boundary, this being a
political question, 294
questions as to the sovereignty of any foreign country, . 294
questions as to what sovereignty any islands or countries
belong, ....••••• 294
as to any fact assumed by the government with regard to
the sovereignty of any island or country, . . . 294
as to the recognition of State governments in the Union, 295
to decide the question whether a government organized in
a State is the duly constituted government of that
State, delegated to the President by act February 28,
1795, • • -295
that his decision, under that act, was binding upon the Ju
diciary, was held by the Supreme Court, see author
ities, 295
power of, to determine as political questions the status of
foreign nations whose provinces or dependencies are in
revolution, 295
to decide political questions as to foreign invasion of the
United States 295
to determine, as a political question, the status of
those who are engaged in insurrection or rebellion, or
civil war, in the United States, ..... 295
confirmatory decisions of the Supreme Court of the
United States thereupon (note), .... 295
power of, in determining questions of belligerent rights (note), 295
province of, as one of the political departments, to determine,
among other political questions in our civil war, the fol
lowing, viz. : —
1. Whether the Confederates shall have the status of bel
ligerents ?......•• 296
2. Whether they have the status of public enemies P . 296
3. Whether local governments to be formed within the ter
ritory now in rebellion shall be recognized ? . . 296
4. Whether, and when, a state of peace shall be declared
or recognized ?....••• 296
5. Whether the Confederate States shall be recognized by
receiving their commissioners, or by acknowledging
their independence ?...••• 296
decisions of the political departments conclusive on these
and similar questions, . ... 296
638 INDEX.
CONGRESS — continued.
acts of, declared rebels public enemies, 299
character and extent of action of, requisite to record the decis
ion of the legislature, that Great Britain was a public
enemy of the United States, in the war of 1812, . . 299
laws of, for the purpose of recognizing a state of civil war, and
for treating the insurgents as public enemies, passed
since the rebellion commenced, are as marked and as
decisive for that purpose as acts for a similar purpose
passed in relation to the subjects of Great Britain, . 299
acts of, which record the decision of, on the question whether
the rebels are public enemies, 300
act of, July 13, 1861, ch. 3, comments on, .... 300
May 20, 1862, ch. 81, 301
July 17, 1862, ch. 195, 301
March 12, 1863, ch. 120, 301
effect of these statutes of, was to declare the insurgents public
enemies of the United States, and subject to the laws of
war, and to assert full belligerent rights against them
and against their property on land and sea, as such, 303, 306
question of policy for the President and Congress to decide
what disabilities resulting from the status of public ene
mies shall be removed, 305
rights conceded to the inhabitants of rebellious districts to be
determined, not by the Constitution, but by considera
tions of policy and humanity, 306
resolutions of, in relation to claims of representatives from
seceded States to seats in Congress, rejecting them
(note), 306
creation and regulation of military government by legislation
of» 309-315
rules or restrictions of purely military government by laws of,
when admissible, 309
power of, to establish government in some form over territory
purchased or acquired, how implied, . . . .309
to establish provisional government over subjugated dis
tricts in time of civil war, .... 309, 310
duty of, to pass laws necessary and proper to aid the President
in carrying into effect his obligation to suppress rebel
lion and enforce the laws, to secure domestic tranquillity,
and to guarantee to every State a republican form of
government, . . . . . . . . .310
power of, to erect military governments is a war power, . .310
duty of, to aid the President by erecting military governments,
how, and when, . 310
INDEX.
639
CONGRESS — continued.
such governments should be continued by, until the rebellious
districts shall again be permitted to resume self-govern-
ment, 31°
may establish rules and regulations of military government
over rebels, which, without interfering with the power of
the President as commander of the army, it will be his
duty to administer, ...••••
laws rightfully passed by, must be enforced by the President, .
limits of the power of, .
mutual interdependence of departments,
may declare war, but cannot carry on war,
may make rules concerning captures, and for the government
of land and naval forces when in the United States
service, but cannot arrest an enemy or capture a prize, . 311
may declare or recognize peace, 311, 31
effect of act of, March 2, 1867, as to the restoration of peace, . 606
may terminate military or provisional governments,
may regulate, modify, or cause them to be withdrawn,
may institute civil territorial governments in their place,
may pass acts for restoring inhabitants of insurgent districts as
States in the Union, . . . • • • • • 313
assent of, presumed, authorizing the continuance of military
government long after hostilities ceased, in case of Cali
fornia, ' . • • ' 313
nas entire control over military governments whenever peace
is declared or recognized,
having passed laws for regulating the conduct of the President,
when peace is declared if he does not obey the laws he
is liable to impeachment,
effect of laws of, in territory held in the military power of the
belligerents,
distinction in considering the effect of laws of, as between
OQrt
aliens and citizens,
laws of, rightfully extend over all the United States, but can be
enforced only as our armies advance in rebel districts, 323
the right of, to make rules and regulations relating to con
quest and captures, conquest itself having conferred on
the conquerors the right to make laws for the conduct
of people subject to their power, .
COMMERCIAL INTERCOURSE.
with the public enemy prohibited by the President's proclama
tion, August 16, 1861, .
with States or parts of States declared in rebellion by the Pres
ident forbidden by stat. July 13, 1861, sec. 5, 238, 243, 297, 300
640
INDEX.
COMMERCIAL INTERCOURSE — continued.
penalties of forfeiture for holding, . . . . . 300
as prohibited by this act, held by the minority of the Supreme
Court in the prize cases as the first absolute recognition
of a state of civil war by the government with the
rebels, 240
CONKLING, HON. ROSCOE, SENATOR (N. Y.).
resolution that Congress should compensate slaveholding States
for emancipating slaves, .... 396
CONQUEST.
suppressing rebellion is not the conquest of a foreign country, 321
secured only by some form of military government, . .261
reasons for this, 263
condition of affairs in the Southern States, . . . . 264
of foreign territory gives conquered party no civil rights under
our Constitution, nor does acquisition of their territory
by treaty, 266
rights acquired by, 459
rebels, and the territory occupied by them, may be held by the
United States by right of, . . . 44, 45, 46, 54, 239,
240, 242, 244, 245, 247, 248, 263, 266, 267, 273
see title " Reconstruction Acts," " Confiscation," " Capture."
in case of, the will of the conqueror governs, . . . .321
effect of, on local laws, governments, institutions, &c., . .321
see " Military Government."
gives valid title to the victor so long as he remains in firm and
exclusive possession of the conquered territory (Chief
Justice Taney), 327
confers on the conqueror authority to make laws for the conduct
of the subject people, 309
rights over rebels gained by, 473
what the United States gain by, 473
CONSTITUTION OF THE UNITED STATES.
purposes for which it was established, 1
powers not delegated by it are reserved to the States or to the
people (Preface to " War Powers "), v
powers under it are all limited and defined, Preface, page v
powers we should expect to find in it, 10
result to the country if it denies the powers necessary to save
the Union, ..... n
not so framed as to paralyze the power of self-defence, . . 292
liberal or strict constructionists, 8
authoritative construction of, 138
opinions of the Supreme Court on, . . . 138
INDEX. 641
CONSTITUTION OF THE UNITED STATES — continued.
framers of the Constitution on, 139
of political parties on, 139,140
contains powers to make laws for peace and laws for war, . 11
the law of nations is above it, . . . . 46
contains all powers necessary to public welfare and common
defence, 138
but the nature, character, and extent of the power to " pro
vide for general welfare and common defence," being in
dispute, is not relied upon in this work as alone the
basis of a claim for any specific powers of government,
Preface, page ........ v
how it has been violated by the rebels, 1
some leading questions under it, growing out of the rebellion,
stated, 13
references to, showing the war powers of Congress, ... 27
guarantees of civil rights by, in time of peace, not applicable in
time of war, 49-50.51,52
guarantees of, how properly applied, .... 52, 53
does not decide whether belligerent rebels shall have civil rights
under our government; this is a question of public policy, 53
allows confiscation, . . . . . . . . 48, 62
does not prohibit confiscation act of 1862, . . . .121
does not forbid certain military arrests, . . . . .173
sanctions them, . . . . . . . . .171
military courts are not prohibited by, 288
application of 5th, 6th, and 7th Amendments, . . 288, 289
recognition of this view by the Supreme Court, . . . 290
13th Amendment, 399
letter of the author to G. W. Julian, 469
14th Amendment, 399
15th Amendment, 400
guarantees no rights to public enemies, but declares their lia
bilities, 293
amendments of, cited, whether applicable or not to martial pro
ceedings, is not material in determining the rights of
public enemies, ........ 293
see titles " Slavery," " Civil Rights."
not violated by reconstruction acts, see-" Reconstruction."
not violated by act March 3, 1863, for enrolling and calling out
the military forces, 205
nor by confiscation act July 17, 1862, 123
effect of anticipated amendment of, abolishing slavery, on public
lands in the South, ....... 474
81
042 INDEX.
COOLIDGE o. GUTHRIE.
opinion of Mr. Justice Swayne, ...... 591
CORNWALLIS, LORD, 69
COURTS, JUDICIAL.
the judicial power under the Constitution is in no manner or
degree used by military courts, ..... 278
decisions of the Supreme Court on this subject, . . . 278
inappropriate and ineffectual in war, . . . . .278
have no jurisdiction over appeals from sentences of lawful
courts martial, ........ 278
jurisdiction of, when to be resumed over seceded States, . . 324
see remarks of Chase, Chief Justice, 596
members of, who engage in rebellion, lose their rights as judges, 325
useless in hostile districts before peace is reestablished, . . 325
Chief Justice Chase's letter to President Johnson as to, . . 595
have no jurisdiction over acts of military courts in the rebel
lion, see act March 2, 1867, ch. 155.
nave now no jurisdiction over decisions of military courts dur
ing the war, ........ 287, 288
see " Military Courts."
cases decided by, relating to the subjects discussed in this work,
viz. : —
the Prize Cases, .... . 141-150
Fleming v. Page (9 How. 614), 512
Cross v. Harrison (16 How. 189), . . . .516
Jeckerv. Montgomery (18 How. 112) .... 519
Dynes v. Hoover (20 How. 79), ... . 520
Leitensdorfer v. Webb (20 How. 177), .... 522
Ex parte Vallandigham, ....... 524
Cherokee Nation v. State of Georgia (6 Wallace, 73), . 529
State of Rhode Island r. State of Massachusetts (12 Pe
ters, 657), 530
United States v. Moreno (1 Wallace, 400), . . . 531
The Circassian (2 Wallace, 150), ... .531
The Venice (2 Wallace, 274), - 532
Mrs. Alexander's Cotton (2 Wallace, 417), . . 532
Ex parte Milligan (4 Wallace, 106), . . 536
Cummings v. State of Missouri (4 Wallace, 316), . . 556
Ex parte Garland (4 Wallace, 374), 565
Mississippi v. Johnson (4 Wallace, 497), .... 579
The Peterhoff (5 Wallace, 60), 582
Gray Jacket (5 Wallace, 369), 582
The William Bagaley (5 Wallace, 402), . . 583
Mauran v. Insurance Co. (6 Wallace, 14), . . • 587
INDEX. 643
COURTS, JUDICIAL — continued.
State of Georgia v. Stanton (6 Wallace, 63). . . . 588
Coolidge v. Guthrie, opinion of Mr. Justice Swayne, . 591
Chase, Chief Justice, letter to President Johnson, . . 595
The Grapeshot (7 Wallace, 563), 598
The State of Texas v. White (7 Wallace, 702), . . 598
The Grapeshot (9 Wallace, 131), 601
United States v. Anderson (9 Wallace, 64), . . . 603
United States v. Keehler (9 Wallace, 86), . . . 607
Hickman v. Jones (9 Wallace, 198), .... 608
Bigelow v. Forrest (9 Wallace, 339), . . . .610
see also Kees v. Todd (C. C. P. Ohio), . . . .216
COURTS MARTIAL.
established by statute, 275
statutes referred to, ........ 278
State courts martial authorized, ...... 278
organization of, regulated by statute, . . . . .279
jurisdiction of, once acquired, is exclusive, .... 280
have no jurisdiction of navy agents, 380
acts of, during the rebellion, confirmed ; civil courts have no sub
sequent jurisdiction thereof, see act March 2, 1867, ch. 155.
see note on " Military Government," 427
established by the Confederate Congress, see acts cited, . 447-451
see note on " Reconstruction," 427
see " Military Courts."
COURTS OF INQUIRY.
established by statute, ........ 275
how established or authorized, 280
power to compel attendance of witnesses, . . . .281
COURT, PROVISIONAL. See " Provisional Court."
COWAN, SENATOR, 502, 503, 504, 505
CREDITORS.
of registered rebels not entitled by law to collect their debts
out of property liable to forfeiture to the United States,
358, 386
of public enemy, payment of claims of creditors of, . . . 382
opinion of Giles, J., ........ 381
CRIMES AGAINST THE UNITED STATES.
treason and its punishment, ...... 93, 114
new crimes of rebellion require new laws, . . • .117
among these are included accepting or holding office under
the Confederates, . . . . • • • .117
violating oath of allegiance to the United States, . .117
taking oath of allegiance to Confederate government, . 117
644 INDEX.
CRIMES AGAINST THE UNITED STATES — continued.
making and passing new illegal currency, . . .117
acknowledging and obeying authority of seceded States, . .117
neglecting or refusing to return to allegiance, and lay down
arms after warning, . . . . . . . ll?
attempting to negotiate a treaty with foreign powers to intervene
in our affairs, . . . . . . . .117
granting or taking letters of marque, . . . . .117
conspiracy against lawful government, 117
holding public meetings to incite the people to the commission
of treason, . . . . . .. . . .117
plotting treason, . . . . . . . . .117
organizing or forming new governments, &c., . . . .117
framing and passing ordinances of secession, . . . .117
making of treaties between either of the States, . . .117
refusal to take oath of allegiance when tendered by proper au
thorities, . . . .- 117
resistance to civil process or to civil officers when such resist
ance is not so general as to constitute war, . . .117
all attempts to overthrow government should be punished as
crimes, 116
punishment of, compared, 120
military crimes, or crimes of war, defined, . . . .188
double liability for, 188
acts made such by a state of war, ...... 189
may be committed by persons not amenable to civil pro
cess or indictment, '211
prevention of, is the best use to be made of armies, . . 193
prevention of, is the object of most military operations, . 193
prevention of, is the justification of captures of property
and military arrests, the object for which the Presi
dent was authorized, in 1798, to imprison aliens, . 195
prevention of, authorizes the call, by the President, of the
army and navy into service, 195
CROSS v. HARRISON (16 How. 189) 516
CUMMINGS v. 'STATE OF MISSOURI (4 Wallace, 316), . . 556
D.
DAVIS, SENATOR, 505
DAVIS, MR. JUSTICE, 536, 603
DECISIONS OF THE SUPREME COURT.
in relation to matters herein treated of, printed in this work,
see " Courts, Judicial," Appendix, pp. . . . 512-610
INDEX.
645
DEBATES IN CONGRESS.
on the confiscation and militia acts of July 17, 1862, ch. 195,
andch. 201, 494-511
what these debates prove as to the meaning of these acts, 494, 507
DICKEY, JUDGE (Ohio), opinion, . . 216
DESERTER.
liability of officer who shot a deserter, 375
DISABILITIES.
see " Public Enemy."
form of oath of office to be taken by those from whom legal,
have been removed, see act July 11, 1868, ch. 139.
legal and political, acts for relieving from, see " Public Enemy,"
" Reconstruction."
see Ex parte Garland, ........ 565
DOMICILE.
necessary to be determined in all cases where claims against
government are presented, 341
rule for determining domicile, . . . • • .341
distinction between personal and commercial, .... 342
determines national character of person, ..... 346
does not determine character of property, .... 346
in neutral country does not protect trade in an enemy's coun
try, • 346
constructive or mercantile, ....... 342
DOOLITTLE, SENATOR, 499
DOUGLAS, SENATOR, 140
DUNMORE, LORD, 69
DYNES v. HOOVER (20 How. 79), 520
E.
ELECTORAL COLLEGE.
States in rebellion excluded from representation in, . . . 306
see joint resolution, February 8, 1865, ..... 306
also joint resolution No. 58, July 20, 1868.
see " Reconstruction."
ELIOT, HON. T. D. (of Massachusetts).
joint resolution introduced by, ...... 394
bill to confiscate rebel property, ....•• 395
bill to free slaves of rebels in hostility against the government, 395
bill to establish the Freedman's Bureau, 398
letter of, and reply, 464
646 INDEX.
EMANCIPATION BUREAU.
see " Freedman's Bureau."
letter of Hon. T. D. Eliot upon, 464
reply relating to, 464-466
anticipated, . . . . . . . . . .477
ENEMIES.
public, rights of, in territorial civil war, . . . . .237
rights of, to be determined by laws of war, . . . 242
all voluntarily and permanently residing in belligerent
districts are, 237
claims of rebels as public enemies, ..... 237
what they do not claim, . . . . . . .237
when citizens of the United States are declared such, 343, 352
capture of coin on the person of, 381
distinction between alien enemy and public enemy, . . .331
who are enemies, when two nations are at war, . 197-200, 335
who are subject to the law of reprisals, 335
all members of one nation are enemies of all members of the
other nation in a public war, ..... 335
strangers coming iuto a belligerent country before or after the
war began, 335
foreigners engaged in commerce, ...... 335
aliens participating in hostilities against the United States, . 337
citizens of the United States and aliens in rebel States, who
remained subjects de facto of rebel government, . . 351
all de facto subjects of the enemy sovereign, .... 342
all permanent residents in the enemy's country, . . . 342
all neutral aliens domiciled in rebel States before the war, who
did not withdraw, 343
proclamations and laws relating to alien enemies, . . . 343
these proclamations and laws sanctioned by the laws of war, . 344
act of Confederate Congress declaring certain residents alien
enemies, 351
see " Confederate Laws."
opinion of the Supreme Court on a question of enemy property, 351
when citizens become alien enemies, and in what respects 343, 352
see title " Public Enemies."
ENROLMENT ACT (March 3, 1863).
its constitutionality affirmed, and reasons given, . . .205
slaves of loyal masters in loyal States not enrolled prior to
1864, under this act, 371
reasons for this, 371
as relates to colored volunteers, ..... 508, 509
as amended by the act of 1864 (February 24), . . . 509
effect of, 510, 511
INDEX. 647
a»
ENEMY'S PROPERTY.
includes all property of the inhabitants of the rebellious
States during the war, 352
all property belonging to a house of trade established in the
enemy's country, ........ 347
even if some of the owners are loyal citizens of the United
States resident in loyal States, ..... 348
all property of consuls engaged in commerce with the enemy, . 348
its character is stamped upon it if the place where trade is car
ried on is hostile, ....... 349
EXCHANGE OF PRISONERS OF WAR.
by the United States, effect of, 45
of rebels convicted of piracy, 291
F.
FIELD, MR. JUSTICE, 556, 565
FLEMING v. PAGE (9 How. 614), 512
FORFEITURE.
caution against relying upon the technical doctrine of, in rela
tion to questions of State rights, 234
see " Confiscation," " Capture," " Slaves." " Public Enemy,"
" Military Government," &c.
uselessness of proceedings for, . . . . . .471
FLORIDA, STATE OF.
admitted to representation, &c., 445
FORREST ats. BIGELOW, 610
FOSTER, HON. L. S., SENATOR (Conn.).
bill to enable the President to provide for captives taken from
slave traders, ........ 397
FRANCHISE.
liability of aliens to military service, who have exercised the
elective or other franchise of citizenship, . . . 339
elective, may be given to, or withheld from, the insurgents,
inasmuch as the United States hold the territory occu
pied by the inhabitants of the insurgent States as a con
quest, subject to the will of the conqueror, . . • 309
see " Conquest," . 44, 46, 52, 239, 240, 242, 244, 245, 247,
248, 263, 266, 267, 273, 321
elective, within control of the conquering power, as all local
laws and institutions of the conquered district are
overthrown by civil war, . . • • • .321
see " Military Government."
648 INDEX.
FRANCHISE — continued.
elective, within control of conquering power, by reason of the
obligation of the United States to guarantee to each
State a republican form of government, ... 65
see " Guarantees."
elective, when used by aliens, effect of, on their claims to in
demnity, see " Indemnity," " War Claims." . . 331-357
FREEDMAN'S BUREAU.
see note on " Slavery," ........ 393
act establishing, approved March 3, 1865, : . . . 428
introduced into the House of Representatives by Hon. T. 1).
Eliot, 398
a part of the system of reconstruction, 398
correspondence on this act with Mr. Eliot, .... 464
see " Reconstruction " (note to 43d edition), .... 427
see Index, " Military Government."
continued for one year, &c., by act July 6, 1868, ch. 135, . 430
see' act July 25, 1868, ch. 245, which provides for its discon
tinuance January 1, 1869, excepting, &c., see United
States Statutes, 1868, p. 193.
act creating it, referred to, ....... 478
FORREST ats. BIGELOW, 9 Wallace, 339, 610
GK
GARLAND, Ex parte, case of (4 Wallace, 374), . . . .565
GEORGIA.
the State of, v. Stanton (6 Wallace, 63), .... 445, 588
admitted to representation, &c., 44f>
GHENT, TREATY OF, 70
GOVERNMENT OF THE UNITED STATES.
the political department of, must decide all political ques
tions, 48, 53, 58, 62
the political department of, must decide all political questions, 51
see " Policy of the Government."
made by the people, for the people, must have powers necessary
to its own preservation, 140
war powers of, see " War Powers."
public enemies, who seek to overthrow it, renounce all claim to
its protection, ......... 472
\var powers used by, in the rebellion, 390
GRAPESHOT, THE.
(7 Wallace, 563), 598
(9 Wallace, 131), 601
INDEX. 649
GILES, MR. JUSTICE (of Baltimore), opinion, . . 381
GRAY JACKET (5 Wallace, 369), . . 582
GREYTOWN.
injuries suffered in bombardment of, 336
Lord Palmerston's opinion, 336
Attorney General's opinion, 336
GRIER, MR. JUSTICE, 141, 598
GRIMES, HON. J. W., SENATOR (Iowa).
bill providing that school taxes levied on colored persons in the
District of Columbia, should be applied to maintain
schools for colored children, 396
amendment proposed to the bill for pay of colored troops, . 496
as to the employment of colored troops, .... 500, 504
GUARANTEES.
of civil rights in time of peace by the Constitut ion, not always
applicable in time of war, 49
under the Constitution, the true application of, ... 50
of the United States that each State in the Union shall have a
republican form of government, ... 57, 269, 310
GUTHRIE ats. COOLIDGE, ... 591
H.
HABEAS CORPUS.
question as to power of suspending privilege of, stated, . . 83
suspension of privilege of writ of, is one of the essential means
of suppressing rebellion, 202
who has the right to suspend it, 203
if writ of, be served on military commanders, their duty, . 202, 213
instructions of War Department on this matter, . . . 213
President may suspend, &c. (act March 3, 1863, ch. 81), . 202
as to discharge of political prisoners by, see act March 3, 1863,
ch. 81.
of prisoners under indictment, see act March 3, 1863, ch. 81.
see act relating to, February 5, 1867, ch. 28.
penalty for refusing to obey writ of, see act February 5, 1867,
ch. 28.
appeals from final judgments on, allowed, see act February 5,
1867, ch. 28.
appeal not allowed by act February 5, 1867, in case of persons
held by military authorities charged with military of
fences, see sec. 1.
as to suspension of, by Confederate Congress, see act 1864,
ch. 38, note, 202
82
650 INDEX.
HALE, HON. JOHN P., SENATOR (N. H.), . . . 496, 501
HAMILTON, ALEXANDER, 35
HARLAN, HON. JAMES, SENATOR, 506
HARRISON ats. CROSS (16 How. 189), 516
HENDERSON, SENATOR (Indiana), .... 398, 495, 500
HICKMAN v. JONES (9 Wallace, 198), 608
HIGGINSON, T. W., COLONEL, 492
HOOVER ats. DYNES (20 How. 79), 520
HOWARD, HON. j. M., SENATOR, 506
HOWE, HON. T. O., SENATOR, 502
I.
IMPEACHMENT.
President liable to, if refusing to obey laws of Congress regu
lating his own conduct under the conditions stated, and
regulating the military governments established by
him, 314
power of, gives control over the President in relation to his
conduct in war, 82
limitation of that power, . . . . . .83
INDEMNITY.
for property appropriated to public use, required by the Con
stitution, 18
claims of slaveholders to, 23
claim for, of Mormons, ... .... 24
effect of naturalization and militia laws on claims of slave mas
ters for, ......... 24
question on this subject in a supposed case, .... 136
when paid to citizens of the United States for property appro
priated by the government, 346
when not allowed, 349
claims for, depend on political status of claimant, . . . 336
difference between loyal citizens' and rebels' claims for, . . 336
not allowed to aliens in hostility against the United States, 337, 338
not allowed to aliens who have used the elective franchise, . 339
when allowed to neutral aliens, domiciled in loyal States, for
property appropriated, 340
when for property destroyed, ....... 340
right of non-domiciled aliens or travellers, how lost, . . 346
of aliens arrested or imprisoned on suspicion of hostile inten
tions, 354, 355
allowed in several cases, . . . . 339, 340, 345, 346
INDEX. 651
INDEMNITY — continued.
for slaves enlisted in the military service of the United States,
policy of the government in relation to, . . . 405
statutes relating to, ........ 405
President Lincoln's policy on, ....... 405
claim of, by a French subject against liability for payment of
rent to United States, by reason of his owing it to a
rebel, .......... 368
to loyal slave owners in loyal States for slaves taken by United
States, see " Policy of Congress," . . . .371
INSURANCE CO. ats. MAURAN (6 Wallace, 14), . . . 587
INSURGENTS, 390, 391
INTERNATIONAL LAW, see " Law of Nations."
see Title " Rebels," " Public Enemy."
INTRODUCTION.
to the " War Powers," ........ 1
to " Military Arrests," 159,160
to " Reconstruction," note, ....... 229
to " Military Government," ....... 259
to " War Claims," 329,330
to the 43d edition, ix, x, xi
J.
JACKSON, GENERAL, 75
JECKER v. MONTGOMERY (18 How. 112), .... 519
JEFFERSON, THOMAS, 69
JESSUP, GENERAL, 75
JOHNSON, ANDREW, PRESIDENT.
sketch of his policy in relation to the rebels and to the military
government of the rebel States, .... 442-445
ate. State of Mississippi (4 Wallace, 497) 579
JONES ats. HICKMAN (9 Wallace, 198), 608
JUDICIAL POWER.
in no part or degree exercised by military tribunals, . . 278
decision of the Supreme Court on, ....•• 278
case of Dynes v. Hoover, .....•• 520
Vallandigham, 524
JULIAN, HON. G. W. (Indiana), note on confiscation, 409
correspondence with, ....... 469, 470
authorized by President Lincoln to announce his change of
- opinion on a constitutional question, .... 409
652
INDEX.
JURISDICTION.
of military governments, 316-318
of military courts, 316-318
of judicial courts, ........ 316-318
when to be reestablished over seceded States, .... 324
of civil courts of every nation over aliens committing crimes
within its territory, ...... 334
of courts of war, and military government over aliens, . . 353
of civil courts over acts of military tribunals restrained by act
March 2, 1867, ch. 155.
Chase, C. J., remarks at Raleigh, 1867, on (Appendix), . . 596
Ex parte Milligan, 536
remarks on, ....... 450
K.
KEEHLER ats. UNITED STATES (9 Wallace, 86), . . 607
KEES v. TODD, C. C. P. (Ohio), 216
KENT, CHANCELLOR, 35,55,61
KING, SENATOR (N. Y.).
amendment introducing colored soldiers into the military ser
vice of the United States, 397
see note to 43d edition, 496, 498, 499, 504
L.
LANDS IN THE REBEL STATES.
several modes of acquiring title to, by the United States, . 470
letter to Hon. G. W. Julian, note, 470
uselessness of proceedings for forfeiture of, note, . 126-130, 471
proceedings in rem, ..... 471
constitutional objections answered, . . . . . .471
claims of rebels to protection, 471, 472
small number of rebel land owners, 472
what statesmanship and humanity require, .... 472
conquest, rights of, 473
of malignant enemy refusing amnesty should be confiscated, . 473
great value of lands so acquired to the United States, . . 473
importance of this subject in view of the possibility of hereafter
so amending the Constitution as to abolish slavery, . 474
large rebel estates should be divided, 474
land speculators, 475
experience in Tennessee with negroes, 475
INDEX. 653
LANDS IN THE REBEL STATES — continued.
restoration of the Union a victory of peace, .... 475
effects of educating the masses in the South, .... 476
soldiers the missionaries of liberty, 476
small farms are pledges of the perpetuity of the Union, . . 476
homesteads in the South, what may be done with them, . . 476
the issue, freedom from slaves and just and equal taxes, or
neither, 477
principle of political economy involved in, . . . .477
seizure of lands, Bureau of Industry, ..... 477
land office system, 477, 478
abandoned lands set apart for freedmen, see Freedman's Bu
reau, act March 3, 1865, 428
claims to, occupied by freedmen, to be investigated by assistant
commissioners of Freedman's Bureau (see act July 16,
1866, ch. 200), 430
may be seized by commissioner of freedmen (act July 16,
1866), 430
occupied by freedmen to be restored (act July 16, 1866), . 430
sales of certain of such lands to heads of African families con
firmed, &c. (act July 16, 1866), 430
authorized (act July 16, 1866), 430
bid in at tax sales, to be sold in parcels of twenty acres,
at 1.50 per acre, &c. (act July 16, 1866), . . 431, 432
policy recommended to the government relating to, in Feb
ruary, 1864, 470
LANE, HON. JAMES H., SENATOR, .... 486, 501
speeches in the Senate advocating the act of July 17, 1862,
ch. 201, for the introduction of colored volunteers into
the service, 501, 506
authority from the War Department to empower him to re
cruit colored volunteers, ...... 489
payment of his regiment under the act above named, ten dol
lars per month, ........ 490
speech of, ........ ... 506
LAURENT.
and others, residing in Mexico, claimants against the United
States for damages done by General Scott in the Mexi
can war, note to page ....... 337
LAW.
administered by military governments, 319
what remains in force in a conquered or ceded country, . . 319
cases cited on this point, note, . . • ' • .319
what authority these laws rest upon, . ... 319
654 INDEX.
LAW — continued.
will of conqueror controls, 319, 320
may be changed by will of conqueror. ..... 320
local, have no force in conquered country but by conqueror's
consent, 320
what force proprio vigor e, . . ... 321
distinction between alien and public enemy, .... 322
of war swept away all hostile authorities, laws, &c., of rebels, . 323
right of commander-in-chief as to, . . . . . . 324
of war is alone applicable to public enemies, .... 324
of war, certain rules of, ....... 334-336
martial, see Title " Martial Law."
military, see Title " Military Law."
of nations, see Title " Law of Nations."
municipal and local, how affected by a state of war, see Titles
" Conquest," " Rights of Conquest," " War," and " Mil
itary Government."
.LAW OF NATIONS.
is above the Constitution, 46
determines international belligerent rights, .... 47
authorizes liberation of enemy's slaves, 69
right of liberation of enemy's slaves confirmed by authority
and usage, ......... 74
certain rules of law of war, ...... 334-336
modified by treaties, 340, 352
is the only law to which insurgents in civil war have a right to
appeal or upon which they can rely; as all civil or muni
cipal rights in and under the government they seek to
destroy are lost to them by making war, see Titles
" Policy of the Government," " Civil Eights," " Civil
War," "Belligerents," "Belligerent Rights," "Prize
Cases," " Capture," " Confiscation," " Blockade."
note on belligerents, as subject to, 425
allows insurgents to be treated by the parent government as
rebel subjects or as belligerents, as may best suit its
policy, 44
LEGAL STATUS.
see " Congress," " Political Questions."
see note on " Belligerents," page 425
LEITENSDORFER v. WEBB (20 How. 177), . . . .522
LIBERTY.
civil, its safeguards, 170
inconsistent with arbitrary power, . . . . . .183
restraint of, by compulsory military duty, . . . .195
INDEX.
655
LIBERTY — continued.
danger to, from military governments, 315
secured by limits to all war powers, . • • 168, 200
how assailed by slaveholders,
safeguards of, which ought to be secured in any plan for recon-
94. Q
struction, .....•••• **v
sacrifices of our ancestors to obtain it,
how affected by civil war,
LINCOLN, PRESIDENT.
proclamations relating to slavery, 400-404
proclamation of May 19, 1862, as to General Hunter's general
orders freeing slaves 400, 401
proclamation of September 22, 1862, promising to issue proc
lamation of freedom to slaves of rebels who would not
lay down arms prior to the following January, . 402, 403
proclamation of January 1, 1863, of freedom to slaves of
rebels, . 403, 404
views of, in regard to compensation to slave owners, . . 405
message to Congress on confiscation act of July 17, 1862,
406, 407, 408
lamentable consequences of his error on the constitutional law
of confiscation, ....
the effects of this error as anticipated in 1862, 126, 127, 128, 129
his opinion of, as te the power of Congress to " free a slave
within a State " in 1862, . . . . • -409
his change of opinion as to the right to confiscate estates of
rebels in fee, as a punishment for treason, . . • 409
his statements on that point to Mr. Julian, ....
communication to, of letter of July 23, 1863, on the return of
rebel States to the Union,
message to Congress December 8, 1863, on the return of rebel
States to the Union, 250-253
plan of reconstruction, 254> 255' 256
message of, March 6, 1862,
proposal to compensate slaveholding States in emancipating
slaves, 401
proclamations of, relating to slavery,
messages of amnesty, &c., of, 2o0' 2o°
proclamations of, as to rebel States,
interpretation of the acts of July 17, 1862, see note, 478, . 483, 494
orders of, to employ " contrabands " as laborers, under the act
of July 17, 1862, ch. 195, 483,488
orders of, to General Lane, authorizing the recruiting of colored
volunteers in Kansas, under the law of July 17, 1862,
ch.201, 489
656 INDEX.
LOUISIANA, STATE OF, admitted to representation, &c., . . 445
LOVEJOY, HON. MR. (Illinois).
bill to inaugurate a system of public schools for education of
colored children in the District of Columbia, . . 396
see note on " Slavery," 393
LOYALTY TO THE UNITED STATES.
party asserting it, in any suit or claim before any court, must
prove it affirmatively, see act 1868, ch. 71, sec. 3.
voluntary residence in rebel State held to be prima facie evi
dence of having given aid and comfort to the rebellion,
see act 1868, ch. 71, sec. 3.
see " War Claims," 342
Lyons, Lord, 383, 384, 385
M.
MADISON, PRESIDENT, 75
MARTIAL LAW.
military government under, 62
changes of civil rights by, 51-54
what it is, 166,186,274
foundation of, ...... jg(5
its principles distinguished from arbitrary power, . . 186, 187
limits to all war powers, 167,187,200
liability to, not inconsistent with liability to civil process, . 188
may punish acts which in time of peace would have been inno
cent, 189
territorial extent of, 167 200
how instituted or put in force, 202
definition of, 166. 187, 274
distinguished from military law, 275
lex non script a of martial law, 275
in the United States, modified by military laws of Congress and
otherwise, ..... 275
how or by what tribunals administered, .... 275
General Scott's view of, . . . . . . 282
remarks of Chief Justice Chase, at Raleigh, N. C., 1867
(Appendix), 59G
remarks on, of Mr. Justice Davis, in Ex parte Milligan (4 Wal-
!ace), 460
when in force is constitutional law, 64
cannot operate at the same time and place, and on the same
subject-matter, as civil or municipal law ; one must give
way to the other, 64
modified by orders of the President, 275
INDEX. 657
MARSHALL, CHIEF JUSTICE, 34,35
MASSACHUSETTS ats. RHODE ISLAND (12 Pet. 657), . 530
MAURAN v. INSURANCE CO. (6 Wallace, 14), . . . . 587
McCLELLAN, GENERAL.
volunteers, prior to July 17, 1862, expelled from the military
service by, if found by court martials to be of African
descent, 480
MEXICO, NEW.
organization of General Scott's military commissions in, 281, 313, 314
claims of Laurent and others, residing in, see " War Claims," note, 337
resolution of Congress relating to Mexico, .... 38
MILITARY ARRESTS.
in loyal States regarded with alarm, 161
freedom from, claimed for public enemies, .... 162
on suspicion, ......... 168, 169
abuse of power of, . . . . . . . . 169, 170
safeguards against abuse, ....... 170
not forbidden by the Constitution, . . . . . .173
without warrant, . . . . . . . 174
without indictment, . . . . . . . .176
lawful, • 184, 185
when sanctioned by the Constitution, . . . . .178
officers of the army who make them are not liable to civil
suits or criminal prosecution therefor, . . . 181, 182
on what grounds justifiable, ....... 186
necessity of, . . . . . . . . .187
of innocent persons, . . . . . . . . 190
to prevent hostilities, . . . . . . . 193
cause of, not always to be disclosed, . . . . .192
made by all governments in time of civil war, .... 19')
who ought and who ought not to be arrested, . . . 197-200
arbitrary, distinguished from discretionary, . . . 183
arbitrary, not consistent with free government, . • • 183
indemnity provided by stat. March 3, 1863, . . . 182, 216
Kees v. Tod, 224
by order of military courts, see act March 3, 1867, ch. 155.
of aliens, see " Aliens."
indemnity for, when claimed by non-neutral aliens, . . . 36.3
orders from proper authority, a defence against suits or prose
cutions for any search, seizure, arrest, or imprisonment,
&c., &c., made before the passage of acts March 3, 1863,
ch. 81, and May 11, 1866, ch. 80, page . . 181, 182
see " Indemnity."
'83
658 INDEX.
MILITARY COMMANDERS.
their powers and responsibilities, ...... 167
powers of, may be delegated; obedience to orders a justifica
tion, . . . .181
making arrests not liable to civil or criminal prosecutions, . 181
need not always disclose to courts the cause of arrests, . . 192
duty of, in case of service on them of writ of habeas corpus, . 202
instructions of War Department on this matter, . . . 213
indemnity act, March 3, 1863, 216
Kees v. Tod, 216
certain acts of, ratified by stat. March 2, 1867, ch. 155, see
note on " Military Government."
see also indemnity act of June 27, 1868, ch. 276.
protection of, by act 1868, ch. 276, in relation to suits brought
against them for having administered the acts of Con
gress relating to captured and abandoned property, . 182
MILITARY COMMISSIONS.
recognized by statute, ........ 275
first introduced by General Scott, ...... 281
General Scott's order in Mexico, . . . . . .281
how organized, 282
how far they interfered with the ordinary administration of
municipal laws, ........ 282
are founded on war power alone, 282
recognized by stat. March 5, 1863, ch. 75, .... 283
jurisdiction conferred on, by Congress, over cases of murder,
&c., &c., 283
• jurisdiction of, over spies, ....... 283
as organized by President Lincoln, 284
of General Butler, General Shepley, &c., 284
see opinion of Attorney General on, in Weaver's case.
acts of, ratified and confirmed by act March 2, 1867, ch. 155.
see " Indemnity."
Confederate laws upon, see " Confederate Laws on."
the decision of the Supreme Court in, see Appendix on.
decision of joint military commission on claims of Laurent, note,
page 337
see note on " Military Government," on, 427
note to 43d edition upon, 391
remarks on the case of Ex parte Milligan, in the Supreme
Court, 460-463
MILITARY COURTS.
exercise no part or degree of the judicial power of the civil
courts under the Constitution, 278
see " Judicial power."
INDEX.
659
MILITARY COURTS — continued.
jurisdiction of, ......... 287
no appeal from, to judicial courts, 280
are they within the prohibitions of the Constitution ? . 289, 598
acts of, confirmed by law, act March 2, 1867, ch. 155, . . 446
Confederate laws upon, viz. : —
October 9, 1862, .... . 447-449
October 13, 1862, .449
May 1, 1863, ... . 449
May 1, 1863, J. R., . ... . 449,450
February 13, 1864, .... .451
acts of, during the rebellion, confirmed ; civil courts have no
subsequent jurisdiction over their acts (act March 2, 1867,
ch. 155), see note, 446
Ex parte Milligan, . • 536
remarks on, ......•••• 460
constitutional power of the President to establish, affirmed by
the Supreme Court, see " The Grapeshot" (9 Wallace,
131), Appendix, .... . 598
MILITARY CRIMES, see " Crimes."
MILITARY FORCES.
" the United States may require all subjects to do military
duty," 20
act of March 3, 1863, for enrolment of, is constitutional, . 205
so decided by the Supreme Court, note, 205
resistance to draft justifies arrest by, .... 189, 199
how to act when served by writ of habeas corpus, . . . 213
how judges violating the law to be treated by them, . .213
indemnity for arrest by, when to be allowed, and when refused, 211
acts of Congress providing for the organization of, history of,
note, 478-494
who liable to be enrolled in, . . . . • • .10
introduction of colored soldiers into (see note, p. 20), . 478, 494
debates in Congress on the introduction of colored soldiers
into, 494, 508
laws for raising and organizing, . . • • • .4/8
MILITARY GOVERNMENT.
preface to, 259
importance of the subject, ....••• 259
regard for the proper limitation of authority of the departments
of government in relation to, will enable us to avoid fu
ture embarrassment, ...•••• -'">"
its methods or means, and its objects, 261
in some form is necessary to secure a conquest,
660 INDEX.
MILITARY GOVERNMENT — continued.
why it is essential to secure a conquest, 263
is a mild form of hostilities, .... ... 264
is a liberal concession to the insurgents, ..... 265
there must be military government, or no government, . . 266
the right to erect, is an essential part of the war power, is
founded in necessity and sanctioned by authority, . . 267
leading cases, with authorities, relating to, .... 268
the Constitution authorizes the President to establish, when, . 269
power to establish not granted in express terms, . . . 271
is an act of war, a mode of retaining a conquest, . . . 272
duty of the conqueror to govern those whom he has subju
gated, 273
right of, recognized by courts, &c., ...... 273
distribution of powers under, ....... 274
different kinds of law of war — martial law, military law, lex
non script a, &c., ....... 274, 275
military tribunals, ......... 275
power given by the Constitution to Congress to establish courts
of war, ......... 275,276
clauses cited, on which that power is based, . . . 275, 276
clauses in the Constitution which authorize the President to
create military governments cited, .... 269
necessity of, in the present condition of the insurgent States, . 269
authority to institute such governments belongs both to the
President and to Congress, 269
the right of Congress to establish such governments is unques
tionable, . . 270
the basis of the President's power to establish, stated, . . 270
power of the President to establish courts of war, . . . 276
do courts of war exercise judicial power? .... 277
would judicial courts be useful as war courts ? 278
courts martial — legislative history of, 279
recognized and established by statutes, . . . .279
military courts of inquiry, ....... 280
established by statute law, 280
military commissions, . . . . . . . .281
. under General Scott, 281
under our statutes, 281
similar courts instituted by President Lincoln, . . . 283
courts of civil jurisdiction under military authority, . . 284
General Shepley, General Butler, Judge Peabody, Sequestra
tion Commission, ........ 284
jurisdiction of such courts, ....... 289
does the Constitution prohibit such courts ? 288
INDEX.
661
MILITARY GOVERNMENT — continued.
examination of the 5th, 6th, and 7th amendments of the Con
stitution, 288, 289
rebels, what rights they claim as inconsistent with, . . . 290
what rights are conceded to them, ..... 292
public enemies — are the inhabitants of seceded States public
enemies, and therefore subject to ? . . . . 293
the question whether the inhabitants of insurrectionary States
are to be deemed public enemies is determined by the
political departments of our government, not by the ju
diciary, 294,295
the political departments of our government have finally deter
mined that they are public enemies, and thus subject to, 296
the President, and the acts of the Executive, on that subject, . 296
Congress, and the acts of the Legislative Department, on that
subject, . - 299-304
the judiciary, and the position of the Supreme Court in refer
ence to, having adopted the action of the political de
partments, as it was bound by the Constitution to do, . 304
delegation of authority, 307
how created and controlled, and how terminated by Congress, 209
limits of power — conflict between the power of Congress and
that of the President, . . . • • .311
how terminated by Congress, 312
when the power of, will cease, 313
when peace is recognized, military governments are under the
sole control of Congress, 314
the President is liable to impeachment if, in time of peace, he
disobeys the laws of Congress relating to, . . • 314
reasons stated why the President may establish,
jurisdiction of, when established by the commander-in-chief, . 316
the law administered by, .31,
as to local laws in conquered districts, whether the municipal
laws of the conquered district remain in force proprio
vigore, unless altered, &c., 321
what laws of the invading country extend ipso vigore over the.
"91
subjugated district, . .
the suppression of the present rebellion is not the conquest of
a foreign country, •
distinction between alien and public enemy, . • .321, 32^
President's proclamation, effect of, in hostile country not un-
Q09
der our control,
United States judicial courts may be reestablished, but are at
present (1864) useless in the rebellious districts, . . 324
662 INDEX.
MILITARY GOVERNMENT — continued.
cases relating to —
Fleming v. Page (9 How. 614), . . . .63, 512
Cross t>. Harrison (16 How. 189), 516
Jecker v. Montgomery (18 How. 112), .... 519
Dynes v. Hoover (20 How. 79), ..... 520
Leitensdorfer v. Webb (20 How. 177), .... 522
Vallancligham's Case, ....... 524
the Prize Cases, 141, 238
Kees v. Tod, 216
see recent cases in Appendix, ..... 512-610
of rebel territory authorized by the Constitution, ... 62
over rebel States should be continued until they perform cer
tain conditions, ....... 65, 248
embodied in Freedman's Bureau acts, note, . . . .261
and in reconstruction acts, note, . . . . .261
principles of, sustained in Georgia v. Stanton, note, . .261
address of Chase, Chief Justice, at Raleigh, N. C., June 6,
1867, referring to, 596
note in 43d edition, on, , . . . 427
note to Ex parte Milligan, 460
report of case of Ex parte Milligan, ..... 536
note to 43d edition, on, ........ 427
state of public opinion on the right of (when the first edition
of this essay was published), note, .... 427
power exercised by President Lincoln to create, . . . 428
governors to execute, appointed under acts of Congress, . . 1
power exercised by Congress to erect, was used in the Freed
man's Bureau act, ....... 428
in the reconstruction acts, ....... 434
in the act March 2, 1867, 434
in the act March 22, 1867, 436
in the act July 19, 1867, 439
three classes of, note, ........ 442
created under laws of Congress, ...... 442
• the history of their origin and design, .... 442-444
the decision in Georgia v. Stanton that judicial courts cannot
decide political questions, ...... 445
the Supreme Court cannot interfere with the military govern
ments under the reconstruction laws, .... 445
remarks of counsel for the State of Georgia, in that case, see
Georgia v. Stanton, Appendix, 588
decision of the court in this case, ...... 589
acts of military courts under, have been confirmed by laws of
INDEX. 663
MILITARY GOVERNMENT — continued.
Congress ; civil courts have no subsequent jurisdiction
over them, see act March 2, 1867, .... 446
see Index, " Military Courts."
Chase, Chief Justice, remarks at Raleigh, N. C.5 1867, Ap
pendix, ......••• 596
see " Confederate Acts organizing Military Courts," . . 447
see Index, " Confederates." " Rebels," " Confiscation Acts of the
Confederates," &c.
MILITARY LAW.
definition of, • 275
distinguished from martial law, 274, 275
see " Martial Law."
MILITARY POWER.
of the President may be effectually controlled by refusal of Con
gress to vote supplies, 82
and by his liability to impeachment,
MILITARY SERVICE OF THE UNITED STATES.
all subjects of the United States may be required to perform it, 20, 209
whoever opposes that right strikes at the life of the nation, . 210
what class of aliens is liable to,
what class of aliens is not liable to.
see Title, " Alien."
aliens not liable to, although they have served in the rebel
'-574
army, ....••••••
aliens voluntarily enlisting in our service not entitled to be dis
charged, . . . . • • • • .3/4
aliens forced into the enemy's service and afterwards captured
by our forces, whether entitled to discharge,
acts of Congress for calling the military forces into, history of,
478-494
acts done by officers, in pursuance of orders, are justifiable, . 182
89
see note to page
this principle confirmed by act of Congress, March 2, 1867,
ch. 155.
see acts March 3, 1863, May 11, 1866, and 1868, ch. 276.
act of May 8, 1792, the foundation of the military system of the
United States, .... • 480, 504
MILITIA.
law of the United States regulates the qualifications of persons
who may be enrolled as State militia, .
see note on "Laws for raising and organizing our military
forces," pages . . • 478-480
of the States, called out under act 1795, note, . . • 478
664 INDEX.
MILITIA — continued.
President's call of May 3, 1861, for 42,034 men, . . .478
colored men excluded from, by law, prior to 1862, . . . 478
act May 8, 1792, in force till 1862, excludes colored persons
from militia of States, 479, 480
General McClellan enforced this law relating to, . . 480
all applications of colored men to enlist in, prior to 1862. refused,
480, 481
acts July 17, 1862, ch. 195 and ch. 205, relating to, their pro
visions stated, 481, 484
whether either, and which, of these acts was for the increase of
the army, 480-483
the true construction of these acts, ...... 483
use made by President Lincoln of the power conferred on him
by the confiscation act of July 17, 1862, . . .486
act of July 17, 1862, ch. 205, debates in Congress upon arming
negroes. 494, 508
enrolment act of 1863, 508
amended enrolment act of 1864, 5.09
equalization of pay of colored and white soldiers, . . . 510
who shall constitute militia of the United States must be de
termined by law of Congress, . . . .23, 478
•who constitute the militia of the States must be determined in
like manner (see note to p. 20), 478
law of July 17, 1862, ch. 201, for amending the act calling
forth the militia and introducing colored persons into
the army, its origin, history, and debates in Congress
on, 478-508
MILITIA LAWS.
how to be used by Congress to destroy slavery, . . . 132
of States are subject to the laws of Congress as to the persons
who may be lawfully enrolled in the militia of the sev
eral States, note, ........ 480
effect of, on slaveholder's claim to indemnity, .... 24
see " Military Service."
MILLER, MR. JUSTICE, 269, 607
MILLIGAN, Ex parte (4 Wallace, 106), 536
remarks on case of, ........ 460
MISSISSIPPI, STATE OF.
admitted to representation, &c., ...... 445
v. Andrew Johnson (4 Wallace, 497), ..... 579
MISSOURI, STATE OF, ats. CUMMINGS (4 Wallace, 316), . 556
MONTGOMERY ats. JECKER (18 How. 112), .... 519
INDEX.
665
MORILLO, GENERAL, • • 73
MORINO ats. UNITED STATES (1 Wallace, 400), . . - 531
MORMONS.
their supposed claim to indemnity, .... 22, 24, 140
MORRILL, HON. LOT M., SENATOR (Me.).
bill to confiscate rebel property, and free slaves of rebels, . 394
MURDER.
Jurisdiction of military commissions over certain persons guil-
tyof, -283
N.
NAPOLEON, EMPEROR, ... ... 73
NATURALIZATION.
its effect on the rights and liabilities of aliens, . . . 338
does not protect the property of one who, by returning to his
native country, regains his citizenship, . . . .347
NATURALIZATION LAWS.
effect of, on claims of slaveholder for indemnity, . . 22, 23, 24
aliens having served in our army and having been honorably
discharged, entitled to naturalization by, 338
see " Aliens."
NAVY AGENTS.
their liability to courts martial denied, 380
NELSON, MR. JUSTICE, ... .... 529
NON-INTERCOURSE.
right to enforce, as against belligerents, see " Prize Cases," 141, 238
acts to provide for, effect of, 299-303
legal effect of, .
NORTH CAROLINA.
admitted to representation, &c.
o.
OATHS.
required of aliens engaged in commerce with rebels by c<
of the United States,
objection to, by Lord Lyons, and reply, 38-
OPINIONS.
of the Supreme Court, in cases printed in whole or in part in
the Appendix, see " Supreme Court."
84
666 INDEX.
p.
PAGE ats. FLEMING (9 How. 614), 512
PALMERSTOX. ^
opinion of, as to non-liability of the United States for damage in
bombarding Greytown, ...... 336
as to claims growing out of the bombardment of Uleaborg, 336
of Copenhagen, ........ 336
PEACE.
questions whether the United States are at war or at peace
with foreign nations, or with insurgents in our own
country, are purely political questions, to be decided by
Congress, 296
see cases of the " Grapeshot," 599, 601
see Title, " Policy of the Government."
may be declared or recognized by Congress, . . . .312
restored by acts of the President and of Congress, August 20,
1866, as to persons claiming the benefit of certain laws,
606, 607
PETERHOFF, CASE OF (5 Wallace, 60), 582
PIRACY.
persons convicted of, exchanged by the United States as pris
oners of war, 291
POLICY OF THE GOVERNMENT.
whether belligerents (rebels) shall be allowed civil rights under
the Constitution, must be decided by the political de
partments of the government, 53
whether the rebels shall be deemed mere insurgents or public
enemies can be decided only by the political depart
ments, 293, 295, 296
all political questions must be decided by the political depart
ments as, for example,
questions as to boundary between nations, .... 29-1
sovereignty of foreign country, 294
recognition of State governments, 294
status of foreign nations, 294
status of insurgents and rebels, ..... 294
questions of reconstruction, ..... 295, 296
whether rebels shall have belligerent rights, . . . 296
whether, and when, a state of peace shall be recognized or
declared, 296
on all political questions the Supreme Court must follow the
decisions of the political departments, . . ... 296
INDEX. 667
POLICY OF THE GOVERNMENT — continued.
of President Lincoln, as to the status of the rebels; his acts
and proclamations. ...... 296-299
of Congress on the same subject, 299-303
result of the action of the political departments was to declare
the rebels public enemies, . . * . . . . 303
this decision of, followed by Supreme Court, . . 304, 305, 306
on the question of confiscated and abandoned lands, letter to
Hon. G. W. Julian upon, ...... 470
recommended, on the subject of reconstruction, . . . 248
to protect from capture the property of all loyal citizens in dis
loyal districts. 58
see cases decided in the Supreme Court on this subject, Ap
pendix, 512-610
Georgia v. Stanton, &c., 445, 588
is to decide terms of amnesty, see " War Powers."
is to determine legal status of rebels, see " Rebels,'' " Congress,"
" Belligerents," . 425
POLITICAL PARTIES.
their claims to or waivers of powers in the Constitution not to
be regarded as authority, ..... 139, 140
PREFACE.
to the 43d edition, vii., viii., ix.
to the " War Powers," iii.
to " Military Arrests," 159, 160
to " Reconstruction," note, 229
to " Military Government," ....... 259
to " War Claims," 329, 330
PRESIDENT OF THE UNITED STATES.
is commander-in-chief of the army and navy of the United
States, and of the militia of the several States when
called into actual service of the United States (Constitu
tion, Art. 11, sec. 1), 82
has the sole power and responsibility of judging, when the exi
gency arises, in which he has authority under the Con
stitution to call forth the militia, and his decision is con
clusive upon all others 58, 67
is not limited by the Constitution, and cannot be controlled by
Congress in respect to the manner of conducting his
purely military operations, ...... 57
this duty is left to his own discretion, guided by the usages and
principles of civilized warfare, ..... 58
the powers of, to carry on war have no limit other than the law
of nations and such rules as Congress have authority to
668 INDEX.
PRESIDENT OF THE UNITED STATES — continued.
pass for the regulation of the army, captures, <£c., raising
money, &c., 57
see " Conquest," " Capture."
has the war power to exercise full belligerent rights against all
persons in arms, against all property situated in belliger
ent districts, 57
and against all persons, whether friend or foe, who voluntarily
reside in districts which have been declared in rebellion,
they being in law public enemies of the United States, . 57
see Title " Public Enemies," " Belligerent Rights."
general war powers of, enumerated, . . . 82, 163-165, 390
war powers of, not in conflict with those of Congress, . 30, 68
has a right to seize and capture in the enemy's country what
ever property he may deem necessary for sustenance of
his military forces, whether it belongs to friend or foe, . 57
but he may, as a matter of policy, order that no property of
loyal citizens residing in disloyal States shall be seized
without compensation 58
policy of, as actually applied, ....... 58
reasons for it stated, ....... 58
war power of, to emancipate enemy's slaves, .... 66
why this power exists, ........ 66
is sole judge how and when to use it, . . . .67
this power of, is not inconsistent with that of Congress to eman
cipate slaves, ........ 30, 68
duty of, to emancipate slaves when such a course becomes es
sential as a means of securing public welfare and the
common defence in time of civil war (Preface, p. vi.),
pages 5, 6, 7, 8, 140
duty of, to destroy slavery in the (then) present condition of
affairs (Preface, p< vi., vii.), pages . . 5, 6, 7, 8, 140
power to suspend the habeas corpus, ..... 202
power to establish martial law, ...... 202
when liable to impeachment for refusing to obey laws of Con
gress as to military governments, ..... 314
authorized by the Constitution to establish military govern
ment, 269
his authority to erect military government under the guarantees
of the Constitution alluded to, 270
clauses of the Constitution on which the power to create mili
tary government rests, ...... 270
his operations in war regulated and interpreted by the laws of
war, 270
INDEX. 669
PRESIDENT OF THE UNITED STATES — continued.
cases cited on this point, . . . . . . .271
his powers, and the reason of granting them to him, . .271
his power to establish courts of war, 276
his order establishing a provisional court in Louisiana, . . 285
PRIVATE PROPERTY.
right of government to appropriate to public use, ... 17
but not without the existence of a public necessity, Preface, page iv
foundation of this right, . . . . . . . .17
indemnity for, 18
public use of, what it is, 19
in slaves may be appropriated to public use, ... 20, 28
is the right to appropriate it superseded by the war power of
seizure ?......... 26
importance and danger of this power, 29
see " Slaves," " Indemnity," " Capture."
private property, public use of, what it is, . . . . 19
impressment of slaves, and appropriation of them to public use
as private property, by act of Confederate Congress, stat.
1864, ch. 79, see note to, 26
policy of the government relating to the employment of slaves,
and to indemnity therefor as such, see " Indemnity,"
" Slaves," " Slaveholders."
capture of, on land, see " Capture."
confiscation of, see " Confiscation."
destruction of, see " Public Enemy," "Belligerent Rights."
capture of, on the sea, see " Prize."
of aliens, see " Aliens."
PRIVATE RIGHTS.
must be subordinate to public welfare, . . 210
PRIZE.
courts of, ......•••• 48
cases of prize decided by the Supreme Court in 1863, . . 141
analysis of, 238
see Title " Capture."
see cases decided by the Supreme Court, Appendix, . . 512-610
see note on Capture of Enemy's Property, 451
the law of, has no application to the case of personal or private
enemies, and cannot be invoked to justify a capture of
private property, unless there exists a public enemy and
a state of war, 305
in a case of, a public enemy cannot appear as a claimant, note, 215
see note on war powers used by the government, ... . 390
670 INDEX.
PROCESS IN REM.
recommended as preferable to process in personam, in certain
cases, 470, 471
PROCLAMATION — see " War."
supposed effect of President Johnson's proclamation of peace,
April, 1866, 442
of August 20, 1866, as to courts in rebel districts, . . . 606
see Chase, C. J., remarks at Raleigh, N. C., Appendix, . . 596
see, of President Lincoln, as to rebels, .... 296, 299
see " Lincoln, President."
effect of, upon public enemies, while maintaining successful re
sistance to the government, ..... 322, 323
of President Johnson, &c., August 20, 1866, declaring peace,
and effect of, on certain parties, claimants under act of
Congress, 606
PROVISIONAL COURT.
established in Louisiana by order of President Lincoln, . . 285
not prohibited by the Constitution, 288
powers of the President to establish, ..... 284
affirmed by the Supreme Court, in 1870, in the case of the Grape-
shot, 131, 601
see " Military Courts."
PUBLIC ENEMIES.
who are such, .... 40-46,52,54,58,61,237,240,391
how and by whom recognized or declared as such, . 240, 241
rights of the government against, .... 240-242
see " Civil Rights," " Belligerent Rights," " Capture," " Con
fiscation," " Slavery," " Military Government," " Recon
struction," " Military Arrests."
rights of the government against their property, . . . 240
wherever found, if they resist, may be captured or killed, and if
captured, may be detained as prisoner of war, . .167
loss of political and civil rights by, 244, 246
see " Reconstruction," " Civil Rights," " Policy of the Govern
ment."
subjection of, to the will of the conqueror, . . . 244, 246
see " Conquest."
distinguished from alien enemies, 322
have no right to prosecute suits in the courts of the United States, 21 5
cannot appear as claimants in a case of prize, .... 215
authorities on this point, note, . . . . . .215
confirmed in case of Mrs. Alexander's cotton, ....-• 534
have no right to vote for electors of President and Vice-Presi
dent, note, 244
INDEX.
671
PUBLIC ENEMIES — continued.
see joint resolution, No. 12, February 8, 1865, . . 244
appeals to the Supreme Court, from rebel districts, not heard
by the Supreme Court during the war, see Chief Justice
Chase's remarks at Raleigh, 597
freedom from arrest claimed for,
see " Military Arrests."
voluntary residence in rebel States is made, by stat. 1868, ch.
71, sec. 3, prima facie evidence of having given aid and
comfort to the rebellion, see " War Claims."
effect upon, of the proclamations of the President, and the laws
of Congress, ;> • 322,323
letter to Mr. Julian ; note as to the rights and liabilities of, . 470
R.
REBELLION.
is "the suppression of" "making war wrongfully" on citizens
of the United States ? 42
what condition or temper towards the Union will result from
f)O1
rebellion,
see " Capture," " Civil Rights," " Civil War," " Commercial
Intercourse," " Confederate States," " Confiscation,"
" Congress," " Conquest," " Contraband," " Courts of
War," " Crimes," " Enemies," " Exchange of Prison
ers," " Franchise," " Freedman's Bureau," " Habeas
Corpus," " Indemnity," " Lands in Rebel States," " Law,"
"Law of Nations," " Martial Law," " Military Arrests,"
« Military Courts," " Military Commissions," " Military
Government," « Piracy," " Policy of the Government,"
"President," "Private Property," " Prize," " Public En
emies," " Rebels," " Reconstruction," " Rights guaran
teed by the Constitution," " Slavery," " Slaves," " State
Rights," "Trading or Commerce with the Enemy,"
"Treason," "War," " War Powers."
when deemed to be suppressed, so far as concerns persons who
are intended to receive the protection of the statute of
June 5, 1868, in relation to abandoned property, viz.,
Au-ust 20, 1866, that being the date of the President's
proclamation of peace, see United States v. Anderson,
•, . . 603
Appendix, .
REBELS.
government has full war powers against them,
may be treated by the government, either as belligerents
subjects,
672 INDEX.
REBELS — continued.
whether entitled to civil rights is a question of policy to be de
cided by the political departments, .... 53
their probable future hatred of the Union, .... 230
the mode they will probably adopt of regaining State rights, . 231
what they claim, and do not claim, . . . 237, 290, 291
recognized as belligerents, 291
rights renounced by, or conceded to, 292
whether they are to be deemed, in law, public enemies, is a
political question, . . . . . . . 293
political questions are to be .determined by the political depart
ments of government, 293
see "Rebellion," "Policy of the Government."
see stat. 1868, ch. 71, as to presumption of being such, by rea
son of residence in rebel States,
see " War Claims."
by what course of proceedings they become belligerent public
enemies, ......... 236
how and when the war changed from a private to a territorial
one, 236
policy recommended in regard to landed estates of. . . 470
RECONSTRUCTION.
basis of, recommended in 1862, ...... 65
war of arms and war of ideas, . 229
dangers of, to be guarded against, 230
consequences of error in, ....... 232
State rights in time of civil war, ...... 234
attitude of the government, in the beginning of the war, towards
rebels, and towards loyal men in rebel districts, . . 235
character of the war changed by subsequent events, . . 235
consequences resulting from civil territorial war, . . . 236
when rebellion became civil war, ...... 237
rights of public enemies since the rebellion became a civil ter
ritorial war, .238
the rights of rebels to be settled according to the laws of war, . 242
State rights of rebels to be allowed only by our consent, . . 244
State rights not appurtenant to land, 245
forfeiture not claimed, and right of secession not admitted, . 246
the pledge of the country to its soldiers and citizens must be
kept, 247
plan of, recommended July 28, 1863, 248
plan of, adopted by President Lincoln, 250
danger of prematurely recognizing seceded States as in the
Union 234
probable effects of a mistake on this point, .... 234
INDEX. 673
RECONSTRUCTION — continued.
message of President Lincoln on, ...... 245
proclamation of amnesty, . . . 250
freedman's bureau acts, note, 261
acts relating to, note, ........ 261
principles of, sustained by the Supreme Court, . . . 261
state of public opinion on, at the date of the publication of the
1st edition of this essay, 427,428
Chase, C. J., remarks on at Raleigh, N. C., Appendix, . .596
laws of Congress relating to, see note, Appendix, . . 428-442
acts of the President relating to, . . . . 254, 442, 445
act June 22, 1868, ch. 69, for admitting Arkansas to represen
tation in Congress, 249
act June 25, 1868, ch. 70, for admitting six rebel States, &c., . 249
see act for continuing Freedman's Bureau one year. July 6,
1868, ch. 135.
note to the 43d edition, on reconstruction, . . . 427-451
REPRISALS,
domiciled aliens liable to, ....... 337
travellers not liable to, 337
REPUBLICAN FORM OF GOVERNMENT.
guarantee of the United States that every State in the Union
shall have a republican form of government, . 65, 269, 310
RESIDENCE IN ENEMY'S COUNTRY.
voluntary residence in a rebel State is prima facie evidence of
having given aid and comfort to the rebellion, . . 342
and is made so by stat., see act 1868, ch. 71, sec. 3.
see " Alien."'
RETURN OF REBEL STATES TO THE UNION, . . 229, 250
see " Reconstruction."
RHODE ISLAND v. MASSACHUSETTS (12 Pet. 657), . 530
RICE, HON. B. F., SENATOR, . . 50;}
RIGHTS GUARANTEED TO CITIZENS BY THE CONSTI
TUTION.
changed when martial law is in force, 51
suspended during war, under certain circumstances,
of freedom of speech, ....••••
of freedom of the press, .
of trial by jury, ....-••••
to life, liberty, and property, .
to keep and bear arms, .
private property not to be taken without due process of law, 15, 52
85
674 INDEX.
RIGHTS GUARANTEED TO CITIZENS BY THE CONSTI
TUTION — continued.
guaranteed to peaceful citizens by the Constitution do not be
long to them after they have become belligerents against
their own government, ...... 48-54
statement of, .......... 49
claims of, stated on p. 49 not applicable to a state of war, . 49
not in derogation of the rights of the government to deal with
rebellion, ......... 61
change of, by inauguration of civil war, ..... 162
examination of certain constitutional rights under the 5th, 6th,
and 7th amendments, as bearing upon the subject of
military government, 288, 289
claims of rebels, 290. 291
conceded to rebels, 292, 293
S.
SAULSBURY, HON. WILLARD, SENATOR, . . . 497, 500
SAXTON, GENERAL, 490
SCOTT, GENERAL.
military commissions first established by him in Mexico, . 282
SECESSION.
right of, not admitted by denying applicability of doctrine of
forfeiture to the case of the rebel States, . . . 234
SECRETARY OF WAR.
acts of, are deemed in law to be the acts of the President, ., 307
authorities, note, 307
SEDGWICK, HON. MR. (N. Y.).
amendment proposed, providing for the enrolment of slaves
in the military service of the United States, and to re
ward their services with freedom, 395
this amendment defeated, 395, 495, 496
SELF-DEFENCE.
the nation has a right to act under the law of self-defence, to
preserve its own existence, .... 52, 186, 211
none of the war powers claimed in this essay for the govern
ment are placed solely on that ground, but are all
granted by the Constitution in express terms or by ne
cessary implication, Preface, page . . . . v, vi.
SEQUESTRATION COMMISSION.
order of General Butler establishing, at New Orleans, . 285, 287
INDEX. 675
SLAVEHOLDERS.
their claim to indemnity for slaves used for military purposes, 23
how affected by naturalization and military laws, ... 24
slaves may be appropriated, as private property, to public use,
for war purposes, ....... 28
their probable policy in order to secure the continuance of
slavery, 231
their temper towards the government, ..... 230
compensation to, for slaves enlisted in the service of the United
States, policy of the government in relation to, note, . 405
statute relating to, . . . . . . . . .26
SLAVERY.
resolution of Congress, 1861, denying the right of the Federal
government or people, &c., to legislate upon or inter
fere with slavery, 132, 393
amendment of the Constitution proposed by Congress in 1861,
to put it forever out of the power of the country to so
amend the Constitution as to prohibit slavery, . 393, 394
its unexpected growth, 2
the " privileged class/' 2
abolished by European governments, ..... 3
in 1862 not slavery in 1788, 4
must be destroyed, otherwise there can be no peace, . . 5
are slaveholders arbiters of peace and war ? .... 5
though hated, why tolerated, ....... 6
recognition of, not inconsistent with the perpetuity of the re
public, .......... 7
considered as belonging to the domestic affairs of States ; can
government interfere with it ? ..... 131
constitutional rights over, not affected by party platforms, 129, 131
as one of our domestic institutions, 132
what they are, and when they cease to be so (Preface, p. v.), . 130
may be interfered with by Congress, for its protection, . . 133
Congress may interfere against it, . . . . . 133, 134
may be interfered with by operation of militia laws, . .134
by laws regulating commerce between the States, . . Io4
by the power to make treaties, . . . . . .loo
by the power to suppress insurrection, . . . .137
right to deal with it not to be sought in party platforms, 138, 139
may be interfered with or abolished, . . . .132, 393
may be interfered with (so far as taking away slaves may be
said to interfere with it) under the power to appropriate
private property to public use, as shown in Chapter I.,
pages 17, 18, 19, 20
676 INDEX.
SLAVERY — continued.
also by the exercise of the war powers of Congress, as shown
in Chapter II., page ....... 34
also by the war power of the President, as shown in Chapter
III., page 66
also by the power to punish treason, as shown in Chapter V.,
page 93
also by the power to punish rebels, as shown in Chapter VII., page 115
distinction in law between emancipating or confiscating slaves,
and abolishing the laws which sustain slavery, Preface, page iii
legal effect of confiscation or emancipation acts of Congress,
and the President's proclamation of September 22, 1862 ;
showing that these do not attempt to abolish slavery as
an institution in the States, but act upon persons held as
slaves, Preface, . v, vii
legal distinction between the right to abolish slavery as an in
stitution and the right to alter State laws relating to
slavery, Preface, . . . . . . . vi, vii, viii
may be abolished by Congress (Preface, iv., viii.), . . 28, 30
should be abolished, (Preface, vii, viii.), ... 5, 135, 136
how our enemies will contrive to restore it, .... 231
their plea for it, 232
should be terminated by the Constitutions of Southern States,
before reconstruction ought to be allowed, . . . 348
reasons for calling attention to all the modes by which slavery
could be lawfully destroyed (Preface, v., vi.), . . 39o
the constitutional amendment proposed in 1861, to perpetuate
slavery, and to deprive Congress of all power over it in
the States, 393
bill of Mr. Trumbull, proposed July 20, 1861 394
Mr. Bingham's amendment, .......
statute of August 6, 1861, ch. 60 (confiscation act), . . 394
Mr. Eliot's bill of December 2, 1861, lost, .... 394
Mr. TrumbulPs bill of December 5, 1861, to free rebels' slaves, 394
Mr. Merrill's bill of December 11, 1861, to free slaves of per
sons opposed to the government, 394
Mr. Eliot's confiscation bill, freeing slaves, .... 395
Mr. Sedgwick's amendment to free and arm slaves, rejected, . 395
confiscation act of July 17, 1862, freeirrg certain slaves who
were declared captives of war, ..... 395
Mr. Wilson's bill (approved April 16, 1862) to free slaves in
the District of Columbia, 395
Mr. Wilson's (of Iowa) bill, December 23, 1861 (approved
March 13, 1862), forbidding army officers, &c., to return
fugitive slaves, 395
INDEX. 677
SLAVERY — continued.
President Lincoln's recommendation of remuneration for slaves
freed, 300
Mr. Conkling's bill, March 10, 1862, to carry this purpose into
effect, 396
Mr. Arnold's (of Illinois) bill to prohibit slavery in Territories,
March 24, 1862, 396
Mr. Grimes's bill, April 29, 1862, for the schooling of colored
persons, and their education in the District of Columbia, 396
Mr. Simmer's bill (June 12, 1862) to carry our treaty with
England into effect to suppress the slave trade, . . 396
Mr. Lovejoy's (of Illinois) bill of June 23, 1862, for inaugurating
a public school system in the District of Columbia, . 396
Mr. Foster's bill, July 8, 1862, authorizing the President to
make provision for persons of color seized and deliv
ered from on board slave ships, ..... 397
bills of Mr. Wilson of Massachusetts, Mr. Grimes, and Mr.
Sumner, to sweep away the remains of slavery in the
District of Columbia, and protecting the rights of col
ored persons in the District, ...... 397
Mr. Wilson (of Massachusetts), bill of, July 8, 1862, to amend
the act for calling forth the militia of the United States,
and authorizing the introduction of colored troops into
the service as soldiers (act July 17, 1862, ch. 201), . 397
debates on this act, ........ 397
Mr. Grimes's and Mr. King's amendments, .... 397
see note No. 12 to 43d edition, 478
December, 1863, Mr. Eliot's Freedman's Bureau bill, corre
spondence upon, note, ....... 398
Mr. Wilson's bill of February 17, 1863, to incorporate an in
stitution in the District for education of colored youth, 398
act June 25, 1864, making it the duty of the school commission
ers of the District to provide school-houses, &c.. for col
ored children, 398
Mr. Ashley (December 14, 1863) and Mr. Wilson (of Iowa) pro
pose the 13th amendment of Lthe Constitution, abolish
ing slavery forever, ....... 398
the 14th amendment of the Constitution, giving citizenship and
equal rights to colored persons and former slaves, . 399
the 15th amendment of the Constitution, .... 400
the acts of President Lincoln as to slaves, . . . 400-404
letter to Hon. G. W. Julian, in anticipation that the Constitu
tion would be amended so as to abolish slavery, supposed
effect of this amendment on lands in the south, &c., notes
to 43d edition, 469
678 INDEX.
SLAVES.
as private property, may be appropriated to public use, . . 20
this power used by Confederate Congress, by act 1864, see
note to page ........ 26
subject to same liability as other property, .... 28
must be liberated to save the Union, (Preface, viii) . . 5, 135
may be emancipated by the war power of the President, . . 66
ought to be emancipated, Preface, p. vii. and viii., and pp. 133-137
is liberation of enemy's slaves a belligerent right ? . . .68
may be liberated by law of nations, . . ... .69
the right of liberation of, confirmed by usage and authority, . 74
usage of United States government, ..... 74
pledge of the President to free slaves ought to be redeemed, . 247
consequences of failure, ....... 247
compensation for slaves enlisted in the military service of the
United States, 21, 22, 405
policy of Congress in relation to, 405
statutes relating to, 405
of loyal masters in loyal States, were not enrolled prior to 1864 ;
reasons for this course stated, . . . . .371
not held to be citizens of the United States prior to 1864, . 410
see " Slavery," " Slaveholders," note to 43 edition, on " Slavery," 405
history of their introduction into the volunteer service of the
United States, and the equalization of their pay with
that of other soldiers, 478, 494
SOLICITOR OF THE WAR DEPARTMENT.
some opinions of, relating to subjects discussed in these essays.
No. 36. Harsberg and Steifel, claimants of 400 bbls. flour, cap
tured by our troops at Fredericksburg, . . . 358
No. 55. J. W. Seaver, petitioner for an order allowing him to
collect a debt from a registered enemy of the United
States, at New Orleans. 358
No. 88. A. Kunahan, a British subject, claimant, through
Lord Lyons, of property seized by General Butler, . 359
No. 95. W. & C. K. Herrick, claimants against the confiscated
property of Bloomfield & Steele, of New Orleans, . 359
No. 117. H. H. Thompson, claim for proceeds of corn con
demned as lawful prize, ...... 360
No. 195. Wylie & Co., British subjects, request permission,
through Lord Lyons, to remove from Pensacola certain
lumber which they bought before the war broke out or
blockade was established, ...... 362
No. 332. Mrs. Bass, claimant for property taken by the Unit
ed States army from her plantation, in Mississippi, for
the public service, ....... 363
INDEX. 679
SOLICITOR OF THE WAR DEPARTMENT — continued.
No. 357. Captain Sherwin claims, through Lord Lyons, indem
nity for arrest and imprisonment by the military forces
of the United States, 365
No. 361. Indemnity claimed for French subjects, by the French
minister, from whom the United States troops have for
cibly taken their arms, 364
No. 362. Theodore Moreau, a French subject, claims, through
the French minister, indemnity against liability to pay
rent to the rebel Slidell, and also to the United States, . 368
No. 369. Simon Queyrouse, a French claimant for captured
cotton, . . . . . . . . . .371
No. 410. Draft of letter in answer to a resolution of the Sen
ate inquiring of the Secretary of War whether slaves in
Maryland, Delaware, West Virginia, Kentucky, and Mis
souri had not be.en enrolled ; and if not, why ? . .371
No. 433. How does service in the Federal or in the rebel
army affect the plea of alienage, 374
No. 448. Deserters from a French corvette, who enlisted as
substitutes into the service of the United States, claimed
by the French consul as deserters from the French ser
vice, 374
No. 467. Opinion as to the proper course to be taken in be
half of certain soldiers who had shot a deserter, . . 375
No. 487. W. W. Cones's claim for cotton seized and sold at
Memphis, ......... 378
No. 518. Letter in relation to a draft of a bill for adjustment
of claims of aliens, ....... 379
No. 528. Secretary of the Navy, opinion requested by, as to
liability of navy agents to courts martial, . . . 380
No. 531. Opinion requested by United States attorney at Bal
timore, on the question whether the government has the
right to condemn, as enemy property, money, when taken
from the person of an enemy on land, in our own terri
tory ? 381
No. 532. As to payment of creditors' claims out of proceeds
of confiscated claims, 382
No. 535. James Shepard, claimant for restoration of cotton,
&c., seized on his plantations at Pine Bluff, Ark., by our
military forces, as abandoned property, under the cir
cumstances stated, ....••• 382
No. 707, Timothy Dowling, through Lord Lyons, claims dam
age, as a British subject, for -injury to his property in
Vicksburg, by our forces, ...... 383
680 INDEX.
SOLICITOR OF THE WAR DEPARTMENT — continued.
No. 713. Lord Lyons's objection to an oath required of British
and other subjects of foreign powers, before allowing
them to engage in commerce at New Orleans, . . 384
No. 714. Romain Dupre, a French subject, claimant for cot
ton seized on his plantation at Plaquemine, La., by our
forces, . . . . . . . . . . 384
No. 723. Objections of the British minister to the order of
General Banks, at New Orleans, requiring gold of cer
tain foreigners to be deposited under supervision of mili
tary authorities, . ..... 385
No. 730. John H. Sothoron's loyal creditors claim a lien on
his property (a rebel enemy), as prior to the claims of
the United States, • 386
No. 731. The French minister claims indemnity for the cot
ton of Antoine Caire, seized at New Orleans by our
forces, 387
No. 935. George Cameron, a British subject, claims to have
been neutral, though captured in arms with rebel forces
at Petersburg ; now requests to be discharged from im
prisonment as a captive of war, ..... 388
No. 951. Cowen & Dickinson, claimants for cotton of their
clients, taken by the United States forces, at Knoxville,
for use on the fortifications, during the siege at that
place, 389
No. 1437. Tracy Irwin & Co., see Records of W. D.
No. 1440. Benson, claimant, see Records of W. D.
letter to Hon. T. D. Eliot, on the Freedman's Bureau, . . 464
letter to Hon. E. B. Washburn, on claims against the United
States, 467
letter to Hon. G. W. Julian, on the best policy to be pursued
by the government in relation to confiscated lands, &c., 470
SOUTH CAROLINA.
admitted to representation, &c., ...... 445
SOUTH CAROLINA COLORED VOLUNTEERS.
law authorizing their payment on equal terms with white sol
diers, 492, 493
SPIES.
jurisdiction of military commissions over, .... 283
SPRAGUE, MR. JUSTICE.
see note to 43d edition, . .... 451, 452
STANTON, HON. EDWIN M. (late Secretary of War).
see Appendix, .......... 588
INDEX. 681
STANTON, HON. EDWIN M. — continued.
his letter of instructions to General Saxton, authorizing him to
recruit colored volunteers, to be paid on equal terms
with white soldiers, ....... 492
found he had exceeded his power, 492
his letter held as a pledge of the administration, . . . 492
that pledge honorably redeemed. 493
ats. State of Georgia, 445, 588
STATE IN THE UNION.
what is, see Texas v. White, 598
STATE OF GEORGIA ats. CHEROKEE NATION.
(6 Wallace, 73), 529
STATE RIGHTS.
in the jury room, 126
to be regained by public enemies only by consent of the con
queror, 244
the mode of regaining them which the rebels will probably
adopt 231
how, if conceded, they may be used by the enemy, . . . 232
ST. DOMINGO, 70, 73
STORY, MR. JUSTICE, 35, 88
SUBJECTS.
rebels may be treated as, 44
SUMNER, HON. CHARLES, SENATOR.
his opinion that the laws of Congress, in 1862, required the
State militia in the service of the United States to be
white men only, ........ 504
bill to carry into effect the treaty between the United States and
Great Britain, to suppress slave trade, .... 396
bill to abolish vestiges of slavery in the District of Columbia, . 397
bill to amend the Constitution, proposed,
SUPREME COURT OF THE UNITED STATES.
decisions of, on constitutional question, .... 138, 139
in the Prize Cases, • 141, 238
recognition of civil territorial war by, ..... 238
confirmation by, of doctrines of the war powers, . . 238, 240
bound to follow decision of political department on question
of war or peace, 304, 342, 343
has followed the decisions of the political departments of the
government in relation to the legal status of rebels, . 304
Chase, Chief Justice, remarks of, on powers of, at Raleigh, . 597
the decisions of, and opinions of the judges of, even on points
not judicially decided, entitled to great respect, . 238, 239
86
682 INDEX.
SUPREME COURT OF THE UNITED STATES — continued.
opinions of, on constitutional questions, ..... 139
jurisdiction of, to hear by appeals cases brought from military
courts, if it ever existed, has been taken away, see act March
2, 1867, ch. 155.
see note on " Military Government," ..... 427
appeals to, see " Civil Rights."
cases decided in, relating to the subjects herein treated of,
extracts from reports of : —
Cherokee Nation v. the State of Georgia (5 Peters, 1), . 529
Rhode Island v. Massachusetts (12 Peters, 657), . . 530
Fleming v. Page (9 How. 614), 512
Cross v. Harrison (16 How. 189), 516
Jecker v. Montgomery (18 How. 112), .... 519
Dynes v. Hoover (20 How. 79), 520
Leitensdorfer v. Webb (20 How. 177), .... 522
cases decided since the first publication of this work : —
the Prize Cases (1 Black.), . . . 141-156, 238-243
Ex parte Vallandigham (1 Black.), 524
cases decided since the publication of the 10th Boston edi
tion : —
United States v. Morens (1 Wallace, 400), . . .531
United States v. Circassian (2 Wallace, 150), . . .531
The Venice (2 Wallace, 274), 532
Mrs. Alexander's Cotton (2 Wallace, 417), . . .532
Ex parte Milligan (4 Wallace, 106), .... 536
Cummings v. Missouri (4 Wallace, 316), .... 556
Ex parte Garland (4 Wallace, 374), 565
Mississippi v. Andrew Johnson (4 Wallace, 497), . . 579
The Peterhoff (5 Wallace, 60), 582
The Gray Jacket (5 Wallace, 369), 582
The William Bagaley (5 Wallace, 402), . . . .583
Mauran v. Insurance Co. (6 Wallace, 114), . . .587
Georgia v. Stanton (6 Wallace, 63), 588
The Grapeshot (7 Wallace, 563), 598
The Grapeshot (9 Wallace, 131), 601
United States v. Anderson (9 Wallace, 64), . . 603
United States v. Keehler (9 Wallace, 86), . . .607
Hickman v. Jones (9 Wallace, 196), .... 608
, Bigelow v. Forrest (9 Wallace, 339), .... 610
see also, Coppell v. Hall, 7 Wallace, 542.
McKee v. United States, 8 Wallace, 168.
the Ouachita Cotton, case of, 6 Wallace, 521.
United States v. Lane, 8 Wallace, 181.
INDEX. 683
SUPREME COURT OF THE UNITED STAVES — continued.
Union Insurance Co. v. the United States, 6 Wallace, 765.
Armstrong's Foundry, 6 Wallace, 769.
Morris's Cotton, case of, 8 Wallace, 507.
see also correspondence between Chief Justice Chase and Pres
ident Johnson, ........ 595
remarks of Chief Justice Chase, at Raleigh, N. C., . . . 596
see also Kees v. Tod (decided in Ohio), .... 216-225
remarks on the case Ex parte Milligan, ..... 460
SWAYNE, MR. JUSTICE.
opinion of, in Coolidge y. Guthrie, ..... 591-608
opinions delivered by, in cases in the Supreme Court, Ap
pendix, 512, 608, 610
T.
TANEY, CHIEF JUSTICE, 67,136,214,327
TAYLOR, PRESIDENT, 75, 76
TEN EYCK, SENATOR, 498
TENNESSEE, STATE OF. *
restored to the Union, ...... . 445
TEXAS, STATE OF.
admission to representation, &c., . 445
v. White (7 Wallace, 702), 598
TOD ats. KEES, 216
TOUS SAINT L'OUVERTURE, 72
TRADING OR COMMERCE WITH THE ENEMY.
unlawful by the laws of war, ....... 149
forbidden by statute, 297
and by proclamation of President Lincoln, .... 298
example of, .......... 371
treasury permits for, limited to persons not transferees, . . 378
see Ouachita Cotton, case of, 6 Wallace, 521.
see McKee v. United States, 9 Wallace, 166.
oaths required by the United States from aliens engaged in,
Lord Lyons's objections to, . . . . • . 384
order of General Banks relative to goods imported into rebel
districts by aliens, Lord Lyons's objections to, consid
ered, ......•••• 385
see the Peterhoff, 582
the Gray Jacket, .....•••• 582
the William Bagaley, 583
684
INDEX.
TRAVELLERS.
or aliens, having no domicile in the United States, . . . 345
their rights and liabilities, 345
their claims if prevented from withdrawing, .... 345
exceptions to right of withdrawal, 34$
see the William Bagaley, 583
TREASON.
what it is, 93> 95
right of Congress to declare by statute the punishment of, and
the constitutional limitations of that right, . . 93? 96
constructive, ancient English doctrine of, ... 93 96
power of Congress to define and punish, limited, ... 96
attainder and ex post facto laws, 97
defined by statute, 9$
Congress have unlimited power to declare the punishment of, . 99
consequences of attainder, ....... 100
corruption of blood, ..... 101
savage cruelty of English law, 101
forfeitures, 102
characteristics of attainders of, 105
technical language, how construed, . * 106
true meaning of the Constitution, Art. III., sec. 3, cl. 2, . . 10S
if Congress can impose fines, why not forfeitures for? . . 109
forfeitures for, not limited to life estates, . . . . .110
statutes against, how administered, 112
confiscation act of 1862 not a bill of attainder, and not an ex
post facto law, 116
the right of Congress to declare the punishment of crimes
against the United States, other than treason, . .117
practical operation of laws against treason will render them
substantially inoperative, 126
reasons for this opinion, 126, 127
punishment of, will be defeated by the present state of the
laws, .... 126
the rights of those accused of, 126
will traitors indict and convict each other P . . . .127
how juries for trial of, are selected ; the effect, . . .127
State rights in the jury room, 12S
laws against, are effective only when they require no traitor to
administer them, . . . . . . . . 12d
traitors will be protected by statutes of limitation, . . . 130
TREATIES.
modifying the law of nations, 340-352
treaty with France, . . 332
INDEX. 685
TRUCE, FLAGS OF.
recognized by our army and our government as a concession of
one of the rights of belligerents to the insurgents, . 291
TRUMBULL, HON. LYMAN (Illinois).
see note on " Slavery," page 393
bill to confiscate slaves used for insurrectionary purposes, . 394
to free slaves of rebels who took up arms against the
United States, 394
report of amendment to the Constitution abolishing slavery
(Art. 13), 398
civil rights bill, ......••• 399
TYLER, PRESIDENT, 75
u.
UNION, THE.
its perpetuity secured by a proper policy in relation to public
lands, 476
UNITED STATES.
v. Moreno (1 Wallace, 400), 531
v. Anderson (9 Wallace, 64), 603
v. Keehler (9 Wallace, 86), . • 607
USE, PUBLIC.
of private, property under the provisions of the Constitution,
what it is, . . . • • • • • .17
indemnity required for such use, . . . • • .17
slaves may be appropriated to, 18
see " Indemnity," " Slaves."
note on " Compensation to Slave Masters," .... 405
V.
VALLANDIGHAM, Ex parte, 524
VAN BUREN, PRESIDENT,
VENICE, THE • 532
VIRGINIA, STATE OF.
admitted to representation, &c.,
act relating to, 445' 446
VOLUNTEER ARMY.
act of July 22, 1861, calling out, note, 478
July 25, 1861, note,
July 29, 1861, note, .
July 31, 1861, note, 479
686 INDEX.
VOLUNTEER ARMY — continued.
colored men excluded from, by law, prior to 1862, note, . 479-481
refused to be received as, by Adjutant Generals, . . 481
expelled from the service by court martial, by General
McClellan, ........ 480
acts of July 17, 1862, ch. 195, and ch. 205, . . . 481-505
their provisions stated, 481-505
the true construction of these acts, ..... 481-505
use made by President Lincoln of the power conferred on him
by these two acts, 486, 487, 490
debates in Congress upon act of July 17, 1862, ch. 205, upon
the subject of arming negroes, .... 494, 511
enrolment act of 1863, for raising, 508
amended enrolment act of 1864, for raising, .... 509
equalization of pay of white and colored soldiers, . . 510,511
w.
WAR.
distinction between the objects and the means of, . . 7, 261
on what ground it is justifiable, 186
divided into classes, civil and foreign, ..... 44
offensive and defensive, ....... 44
personal, territorial, or public, .... 235, 236, 237
consequences of, ......... 236
how levied, as declared in the Constitution, .... 43
is levied by the commission of " treason," .... 43
if levied against the government by traitors, as it takes two
parties to make war, the government must be at war, . 43
is waged by rebels by acts stated ; are they at war against the
government, and is the government which opposes
them not at war with them ? 44
civil, between St. Domingo and France, 44
between Portugal and her subjects, 44
recognized by the government by its treatment of the insur
gents, blockade, &c., 45
exists in fact, in the constitutional sense of the term, whenever
armed rebellion is being suppressed by military force, . 42
declaration of, by the government, not necessary in order to
give the government full belligerent rights, ... 38
so decided by the Supreme Court of the United States (1863), 240
how long it may be justly continued, .... 167,261
renders the constitutional guarantees of certain civil rights
sometimes inapplicable, ...... 49
civil, changes effected in our rights by, . . . . 59, 162
objects and necessities of, show what means are lawful, . . 166
INDEX. 687
WAR — continued.
freedom of speech and of the press, trial by jury, &c. . . 60
effect of, on courts of law, 170,171
makes acts criminal which might not be so in time of peace, . 188
renders certain persons liable to military as well as to civil tri
bunals, 188
necessities of, 166, 167, 196
of arms, and war of ideas, . ...... 229
State rights in time of, 234
character of, changed by subsequent events, . . 235
civil, territorial, consequences of, ...... 236
when and by what course of proceedings the rebellion was
changed into civil war, .237
laws of, are to settle the rights of rebels, 242
the deadliest struggle of, 230
when it was a personal war, and when the progress of events
changed the attitude of government towards rebels and
loyal men in rebel States, 235
distinction between " personal " and " territorial," . . 235, 236
civil, confers on the government all the rights of foreign war, . 239
converts all citizens of hostile States into public enemies, . 240
confers on the United States, since 1861, all the rights of war
against the inhabitants of rebel States, .... 240
the laws of, must settle the rights of rebels as persons, as citi
zens of the United States, and as subjects, . . .242
until recognized or declared by Congress, innocent persons
cannot be punished, or their property confiscated ; die-
turn, .... .... 242
recognized by Congress by act July 13, 1861, .... 242
questions of war or peace to be decided by Congress, . . 243
decisions of the political departments on questions of war or
peace must be followed by Supreme Court, . . • 243
effects of, 244
supposed effect of President Johnson's proclamation of peace,
April, 1866, and August, 1866 ; Chase, Chief Justice,
in his remarks at Raleigh, N. C., 1867, Appendix, . 597
but see 243
see " Public Enemies."
certain general rules of the law of, . . . • 334, 335, 336
WAR CLAIMS.
preface to, 329> 3?°
see title, " Claims against the United States," . . . 331-3o7
WAR DEPARTMENT.
army regulations of, have the force and effect of law, note, . 479
688 INDEX.
WAR DEPARTMENT — continued.
opinion of Attorney General Gushing on, . -: . . . 479
decision of Supreme Court to the same effect, .... 479
army regulation of August 10, 1861, No. 929, excludes colored
persons and slaves from army, .... 479, 480
acts of Secretary of War are in law the acts of the President, . 307
authorities, note to, 307
WAR POWERS.
preface to essay on, iii to viii
preface to 43d edition, . . . . . . . ix to xi
of seizure of property, whether superseded by the civil power
of Congress to appropriate private property to public
use, 26
references to the Constitution containing the specific war powers
of Congress, ......... 25
of Congress to make rules concerning captures on land and water, 25
of Congress stated in introduction to Chapter II., . . 33
purpose of, 34
rules of interpretation of, 34
limitation of all powers under the Constitution, Preface, page . v
has government full war powers against rebels ? . .40
of the President to emancipate enemy's slaves, ... 66
reason for its existence, 66
of the President to be used at his sole discretion, ... 67
not inconsistent with those of Congress to emancipate
slaves, ......... 68
in general, 82, 163
limitations of, Preface, p. v, . . 60, 82, 167, 168, 187, 200, 314
of more effective character required by the change of attitude •
of the government in the progress of events, . . 235
in territorial, as distinguished from personal war, . . . 236
recognized in decisions of Supreme Court, . . 140-156, 240
under the Constitution, which have been used by the govern
ment and established by the courts during the war,
note, No. 1, 43d edition, 390
of the President to call into service the military and naval
forces, 390
of Congress to provide for raising, &c., 390
if insurrection be suppressed without war, the status of the in
surgents, 390
if war be declared or recognized, their status, 293, 303, 306, 390, 391
to declare or restore peace, when, where, and on what terms
and conditions may suit the will and pleasure of the
political departments of the government, . 242-244,
265, 293, 296, 306, 324, 391, 392
INDEX. 689
WAR POWERS — continued.
to restore to or withhold from an enemy any or all the rights
guaranteed by the Constitution to loyal citizens, . 242-246
and on whatever conditions Congress may prescribe, 242-246, 392
is conferred on the political department to decide all political
questions growing out of the war, and the Supreme
Court is bound by their decisions, .... 392
among these political questions are the following : —
when civil war shall be declared or recognized, . . 392
when peace shall be declared or recognized, . . . 392
on what terms rebels shall be restored to their former rela
tions to the government, ...... 392
when the courts shall be open to a public enemy, . . 392
but see White v. Texas, 598
when, and on what terms, and on whom, pardon and am
nesty shall be bestowed, 392
see Index, " Policy of the Government."
importance of the knowledge and study of, see Preface to 43d
edition, pages ix-xi
state of public opinion upon at the time when this essay
was first published, note to 43d edition, on " Reconstruc
tion," 427
to suspend habeas corpus, see Index, " Habeas Corpus."
to declare martial law, see Index, " Martial Law."
to suspend intercourse with the enemy, . . 298, 299, 303
see Index, " Non-intercourse."
to suspend many rights of loyal citizens enjoyed by them un
der ordinary circumstances, ..... 51-53
to treat insurgents as subjects or as belligerents, ... 44
consequences of either of these characters, ... 45
v liability to punishment by, — for treason, or misprision of, . 117
for exciting or engaging in rebellion, violating blockades, &c., 117
see Index, " Blockade."
civil liability of insurgents for manslaughter, . . . 124
liability to civil action for other wrongs done, . . 124, 125
to treat insurgents as public enemies, see Index, " Public Ene
mies."
to declare non-intercourse by law, see Index, " Non-inter
course."
to declare and maintain blockade, see Index, " Blockade."
to capture property on the ocean, see Index, " Capture."
or destroy it on land, see Index, " Capture."
to confiscate it, see Index, " Confiscation."
87
690 INDEX.
WAR POWERS — continued.
to capture and free enemy's slaves, see Index, " Capture,"
" Slavery," " Slaves."
to seize and hold their lands, and use them during the war, see
" Capture," " Confiscation."
to subject the public enemy to military and martial law, see
Index, " Public Enemy," " Martial Law."
to try by courts martial or military commissions, see Index,
" Military Courts."
to capture, wound, or slay in battle, see Index, " Public Ene
mies."
to erect military government over the enemy, see Index, " Mil
itary Government."
to take away all civil or political rights or privileges under the
Constitution, see Index, " Public Enemy," '• Policy of
the Government."
certain of them as claimed in this work, note, . . . 390-392
consequences of depriving government of, ... 11, 12
how they have been used, see notes to 43d edition ; also, 390-392
under the Constitution, to " provide for the common defence
and general welfare," is not relied upon in this essay as
conveying to Congress a distinct, substantive power,
Preface to 2d edition, page v
the views of the framers of the Constitution on this subject,
Preface to 2d edition, page v
distinction as to the, in time of war and time of peace, Preface
to 2d edition, page ....... . vi
application of this distinction to the question of slavery in the
States, 5
general war powers of the President, . . . . 82, 83
as used by the government and sanctioned by the judiciary,
390, 391, 392
of the President to establish provisional courts in rebel dis
tricts affirmed by the Supreme Court in the Grapeshot
(9 Wallace, 131), Appendix, .... 601-603
WASHINGTON, GENERAL, 69
WATSON, HON. PETER H. (late Assistant Secretary of War).
his efforts to introduce colored troops into the military service, 492
the character of his public services, 492, 493
WEBB ats. LEITENSDORFER (20 How. 177), .... 522
WEBSTER, DANIEL, 35
WEST VIRGINIA.
admitted as a State, on terms, 445
INDEX. 691
WHITE ats. STATE OF TEXAS (7 Wallace, 702), . . .598
WILLIAM BAGALEY.
case of the (5 Wallace, 402), 583
WILKINSON, SENATOR, . ..!.... 505
WILSON, HON. HENRY, SENATOR.
bill to release slaves in the District of Columbia, . . . 395
bill to amend the act for calling forth the militia, by which col
ored persons were first introduced into the military ser
vice of the United States by law, giving them pay and
freedom, see note, ....... 397
bill to remove the vestiges of slavery, 397
bill to incorporate an educational institute for colored persons in
the District of Columbia, 398
bill introduced by, 505
WILSON, HON. JAMES F. (of Iowa).
bill to create an additional article of war, to prevent officers, &c,,
in the army from returning fugitive slaves, . . . 395
bill to amend the Constitution, 398
WITHDRAWAL.
right of, of travellers, 345
of non-domiciled aliens, ....... 345
how the right of, may be lost, 346
right of, under treaties of commerce, &c., . . . . 352
neutral aliens, 349
exceptions, ......... 349
see Mrs. Alexander's Cotton, . . . . . . . 532
The Venice, 532
The Peterhoff, 582
The Gray Jacket, ........ 582
ADDITIONAL INDEX.
ALIENS.
draft of a bill to authorize the adjustment of claims of, against
the United States, 379
ALLIES.
of our public enemies, our rights against, . . . .167
ARBITRARY POWER.
not consistent with a free or constitutional government, . . 183
distinguished from discretionary power, 183
B.
BANKS, N. P., GENERAL.
oath required by him of aliens, ...... 384
military orders of, respecting gold, 385
orders of, in relation to goods imported into rebel districts by
aliens, and Lord Lyons's objections thereto, considered, 385
BUCKINGHAM, C. P., BRIGADIER GENERAL, . . .489
BUTLER, B. FM GENERAL.
military commission of, ........ 284
C.
CIVIL WAR.
peculiar necessities of, 196
COLFAX, SCHUYLER, VICE-PRESIDENT, . 434,436,438,441
COMMERCIAL INTERCOURSE.
with public enemies. See " Public Enemies."
CONFEDERATES, OR CO-CONSPIRATORS.
with our public enemies, participes criminis, . . . 167, 204
COURTS, JUDICIAL.
effect of war upon, ......... 170
D.
DESERTERS.
military arrest of, 213
692
ADDITIONAL INDEX. 693
DRAFT OF MILITARY FORCES.
liability of persons resisting, ....... 199
F.
FORCE.
when the use of, is justifiable and lawful, and reasons therefor, 186
FORNEY, HON. J. W., SECRETARY OF THE SENATE,
434, 436, 439, 442
FRY,VJ. B., PROVOST MARSHAL GENERAL, . . .374
a.
GRANT, U. S., GENERAL, 378
H.
HUNTER, MAJOR GENERAL DAVID, .... 400, 492
I.
INDEMNITY.
to innocent persons for damage by reason of military arrests, 210, 216
when denied, 211, 212
J.
JUDGES OF JUDICIAL COURTS.
when hostility to the United States is shown by, . . .171
interference with our military operations by, . . . . 172
opinions of, not to be taken by military officers, when, . . 172
when liable to military arrest, 172
L.
LYONS, LORD, 383,384,385
M.
McPHERSON, HON. EDWARD, CLERK H. R. U. S.
434, 436, 439, 441
MILITARY ARRESTS.
of persons who resist drafts, ... .... 199
necessity of power of, in such cases, ..... 199
of deserters, 213
694 ADDITIONAL INDEX.
MILITARY COMMANDERS.
not to take judicial opinions, when, ..... 172
duties of, in case of hostility of judges, ..... 172
not liable civilly or criminally for arrests made by order of
superior officers, ........ 182
MILITARY POWERS.
may be delegated, . 181
MILITARY LAW.
territorial extent to which it is applicable, .... 200
N.
NECESSITY.
law of, in relation to the objects and the means of war, . .166
P.
PRICE, H., ESQ., 375, 376
PRICE, WILLIAM, ESQ., 381
PUBLIC ENEMIES.
allies of, or confederates with, rights of our government
against, 167
when judges become such, 171
S-
SAXTON, BRIGADIER GENERAL, 492
SECRETARY OF THE NAVY, HON. GIDEON WELLES.
opinion requested as to liability of navy agents, . . . 380
SECRETARY OF STATE, HON. WM. H. SEWARD,
302, 364, 365, 366, 368, 383, 384, 387, 388
draft of bill for, relating to aliens' claims, .... 379
SECRETARY OF WAR, HON. EDWIN M. STANTON.
draft of reply to the Senate resolution inquiring why he had not
enrolled certain slaves, &c., ..".... 371
SHEPLEY, GEORGE F., GENERAL.
military commission of, ........ 284
T.
TREASURY PERMITS.
for trading with the enemy, confer only a personal privilege, . 378
so held by the Supreme Court. See cases in Appendix.
ADDITIONAL INDEX.
695
V.
VINCENT, THOS. M., ASSISTANT ADJUTANT GENERAL, 489
w.
WADE, B. F., PRESIDENT OF THE SENATE PRO TEM., . 441
WAYNE, MR. JUSTICE, • 313
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