364 



CONGRESS, U. S. 



lently moving onward, quickened, purified, and 

 illumined by the inspiration of that higher law, 

 ' whose seat is the bosom of God, and its voice 

 the harmony of the world.' The great, pro- 

 phetic thought of Pascal may yet be realized 

 'Deux lois suffisent pour regler la repiiblique 

 chretienne, mieux que toutes Us lois politiques: 

 Vamour de Dicu, et celui du prochain." 1 



" I do not know that I can more fitly conclude 

 what I can say, in the brief time allotted to me, 

 on the capture and confiscation of the private 

 property of rebels, viewed in the light of inter- 

 national law, than in the words of John Mar- 

 shall, near the close of his judicial life: 



It may not be unworthy of remark that it is very un- 

 usual, even in cases of conquest, for the conqueror to 

 do more than to displace the sovereign and assume do- 

 minion over the country. The modern usage of nations, 

 which has become law 



mark the words, Mr. Speaker, 'the modern 

 usage of nations, which has become law ' 



would be violated ; that sense of justice and of right 

 which is acknowledged and felt by the whole civilized 

 world would be outraged, if private property should be 

 generally confiscated and private rights annulled. The 

 people change their allegiance ; their relation to their 

 ancient sovereign is dissolved ; but their relations to 

 each other and their rights of property remain undis- 

 turbed. If this be the modern rule, even in cases of 

 conquest, who can doubt its application to the case of 

 an amicable cession of territory? United States vs. 

 Percheman, 7 Peters, 51. 



" It is against the light of these considera- 

 tions and authorities, and against the prevailing 

 law and judgment of the Christian world, that 

 it has been so often confidently, I will not say 

 flippantly, asserted on this floor that there 

 could be no doubt of our power, under the law 

 of nations, to seize and confiscate the entire 

 property of the rebels, as public enemies. 



" I pass to the second branch of the subject, 

 our power under the Constitution to pass these 

 bills. It has been often said, in the course of 

 this debate, and in terms without qualification, 

 that the rebels hold to us the twofold relation 

 of enemies and traitors, and that we may use 

 against them all the appliances of war and all 

 the penalties of municipal law. To a certain 

 limited extent the proposition is sound. Trea- 

 son consists in levying war against the United 

 States. The act of treason is an act of war, and 

 you use the powers of war to meet and subdue 

 traitors in arms against the Government. 



" It is also true that, in the relations between 

 the Government and its subjects, the rightful 

 power of punishment does not necessarily cease 

 with the war ; but is it also true that you can 

 exercise both powers at the same time ? And 

 is not here the utter fallacy of this whole argu- 

 ment ? Take an example. You have been ac- 

 customed to exchange flags of truce ; you have 

 recognized, to a certain extent, belligerent pow- 

 ers. An officer of the rebel army comes to you 

 under a flag of truce : can you take him from 

 under that flag and hang him for treason ? He 

 stands to you in the double relation of enemy 

 and traitor, but you cannot touch a hair of his 



head while he is under that white flag. Take 

 another case. You have stipulated for an ex- 

 change of prisoners of war. The cartel has 

 been sent, and the prisoner of war is on his 

 way to make the exchange. Does any man on 

 this floor say that you can take him on his way 

 and try and hang him ? And if not, why not ? 

 The plain answer is, because having recognized 

 him as under the law of nations, while he is 

 subject to its power, he is entitled to its pro- 

 tection. 



" Pass what bills we may, Mr. Speaker, when 

 the war is ended these questions will come up 

 to be settled. I hope I may be pardoned for 

 saying, with great respect, to my friends on all 

 sides of the House, that they will be as difficult 

 questions as statesmen or jurists were ever call- 

 ed upon to decide, and that it is wise to reserve, 

 as far as possible, our judgment. No thought- 

 ful man will content himself with the declara- 

 tion that belligerent rebels have no rights. 

 Passion may say that, reason never. Passion, 

 sooner or later, subsides, and reason reascends 

 the judgment seat, and these questions must be 

 answered there and to that august tribunal be- 

 fore which the conduct of men and nations pass- 

 es in review the enlightened opinion of the 

 Christian world. Such questions are, how far, 

 flagrante lello (while war was raging), with 

 respect to prisoners of war the civil power was 

 restrained; how far the treating with rebels 

 and exchanging them as prisoners of war may 

 affect their punishment as traitors, either in 

 person or property. I express no opinion, ex- 

 cept to say they must be calmly met and an- 

 swered. 



" But assuming, for the sake of argument, that 

 during the war even, and while recognizing 

 their belligerent rights, you may visit upon the 

 rebels the full force and weight of the municipal 

 law, I proceed to inquire whether the mode 

 proposed by these bills is in conformity to the 

 organic and supreme law, the Constitution of 

 the United States. I am not to be deterred 

 from this discussion by any suggestions from 

 weak or wicked men none other can rnako 

 them of leniency to rebels and compassion for 

 traitors. There is but little elevation in con- 

 tempt, but such suggestions do not rise high 

 enough to meet it. They pass by me as the 

 idle wind. If a man has no other arrows in 

 his quiver, let him use these ; I am content. 



"The favorite argument, Mr. Speaker, of 

 those who claim for Congress the power to 

 confiscate the property of traitors without trial 

 by jury is, that the want of this power would 

 show a fatal weakness in the Constitution and 

 a lack of wisdom and foresight in its framers. 

 They will not believe the Constitution is so 

 weak and helpless, so incapable of self-defence. 

 Nothing, in my judgment, so shows its majesty 

 and strength, pray God, immortal strength. 

 The powers of war are almost infinite. The 

 resources of this vast country spring to your 

 open hand. All that men have, even their 

 lives, are at the service of their country ; and 



