UNITED STATES. 



839 



peace and cancelled by war, does not revive with the 

 cessation of hostilities. The matter is then as com- 

 pletely open to negotiation as if no treaty had ever 

 been made. A treaty in the same words, or with en- 

 tirely different conditions, may be made, but it is a 

 new treaty, and whether it shall be made, or shall not 

 be made, is a matter entirely at the option of the con- 

 tracting parties. 



Any rule of law in contravention of this would be 

 an absurdity too flagrant even to merit discussion. 

 Does the insurgent who appeals to the wager of battle 

 risk nothing? Is he to be secure and successful, 

 whatever betide? If he conquer, is everything to be 

 under his control ? And if he be vanquished, is he 

 still to retain each right and privilege which he ever 

 possessed ? Who, under such a State of things, so 

 safe and prosperous as a rebel ? 



In virtue, then, of one of <he plainest and best estab- 

 lished rules of international law, the inhabitants of 

 the insurgent States, whether in arms or after sub- 

 mission, have no constitutional right whatever to add, 

 by election, one member to the Congress of the United 

 States. 



*****#* 



Assuming, what seems probable, that we shall re- 

 main victors in this war, suffer me, in conclusion, 

 briefly to group together the main positions that have 

 been advanced. 



The inhabitants of the insurrectionary States have, 

 at present, no constitutional right to elect a member 

 to Congress. 



We, the inhabitants of the non-insurrectionary 

 States, may, by law, restore to them that right ; and 

 with us it rests to decide upon what conditions it shall 

 be restored. 



The preliminary condition ought to be some suf- 

 ficient guarantee that the emancipation proclamation 

 shall never be repudiated, and that the institution of 

 slavery shall never again, in any part of the insur- 

 rectionary territory, be revived. 



Our own national faith, already pledged before the 

 world to three millions of suffering people, demands 

 this. The law of nations permits and enjoins it. 



We had a right, by that law, to destroy slave-prop- 

 erty belonging to a public enemy. It was a national 

 duty to destroy property so dangerous, in order to 

 render the enemy " incapable of doing mischief with 

 the same ease in future." 



We offend against no principle of humanity in de- 

 stroying this property ; in other words, in cancelling 

 life-long claims to servjce or labor. The inhumanity 

 would have been to refrain from cancelling them. 



Nor do we actually harm the slave-claimant by can- 

 celling his claims. In point of fact it is greatly to his 

 advantage, socially and pecuniarily, to be without 

 them. Are we impertinently interfering with his bus- 

 iness arrogantly and improperly assuming to judge 

 what is best for him when we determine this? Not 

 at all. The business is emphatically our own ; for it 

 intimately concerns our national safety. In deciding 

 it as we see fit, there is neither impropriety nor arro- 

 gance, but proper precaution and prudent foresight. 

 If he had refrained from levying war against his Gov- 

 ernment, he would have had the undoubted right to 

 judge and to act in this affair. As it is, he has lost 

 it ; and we have now the right and the power to de- 

 cide the matter ; not he. 



Before the vacant chairs in Congress are filled, let 

 us make the decision. Failing in this high duty, we 

 sacrifice at once the publie honor and the public safety. 



"While these views were cheerfully embraced 

 and earnestly defended by the more earnest 

 emancipationists or unconditional Union men, 

 they were attacked by others who contended 

 that the conclusions were not fairly drawn from 

 the decision of the court. J. J. Combes, Esq., 

 of Washington, reviewing the argument of Mr. 

 Whiting as deduced from that decision, says: 



What the learned judge delivering the opinion of the 

 court did say on this point was in tnese words: 



It [the rebellion] is no loose, unorganized insurrection, 

 having no definite boundary or possession. It baa a bound- 

 ary marked by lines of bayonets, and which can be crossed 

 only by force. South of this line is enemies' territory, be- 

 cause it is claimed and held in possession by an organized, 

 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. 



To understand the force and effect of this language, 

 it is necessary to know what questions were before the 

 court. In the language of the court, they were aa follows : 



1st. Had the President a right to institute a blockade of 

 ports in possession of persons in armed rebellion against 

 the Government, on the principles of international law, as 

 known and acknowledged among civilized States ? 



2d. Was the property of persons domiciled and residing 

 within these States a proper subject of capture on the sea as 

 "enemies' " property? 



These were the questions and the onlv questions 

 decided. The learned judge delivering the decision 

 in support of it reasoned thus: When a civil war be- 

 comes territorial, the Government may enforce certain 

 belligerent rights against the territory, to cripple the 

 resources of the enemy, by acts which are territorial in 

 their operation and effect, among which is the right of 

 blockade. As to the enforcement of such rights, " all 

 persons residing within the hostile territory ' are " li- 

 able to be treated as enemies," because " their property 

 may be used to increase the revenues of the hostile 

 power." The learned judge might have given another 

 reason why they are liable to be so treated, that is to 

 say, because, in resorting to belligerent acts which are 

 territorial in their operation an<T effects, it is impos- 

 sible to discriminate between friends and foes in the 

 territory assailed. Loyal persons residing in the hostile 

 territory are liable to be treated as enemies not be- 

 cause they are such in fact or in law, but because bel- 

 ligerent acts against the territory necessarily operate 

 upon all the inhabitants alike. This is one_ of the many 

 misfortunes incident to their unhappy situation and 

 surroundings. 



It is impossible that the court could have intended 

 to affirm any such principle as the learned writer de- 

 duces from their decision. If his deduction is legiti- 

 mate, it puts one, if not two, of the judges in the ridic- 

 ulous position of deciding that he himself was a public 

 enemy to the Government whose highest judicial func- 

 tions he was then administering.* Two of the Su- 

 preme Judges are citizens and in law residents of re- 

 volting States. One of them lives in a State [Tennes- 

 see] excepted by the President in his proclamation of 

 January 1st, 1863 ; and the writer seems to entertain 

 the opinion that somehow or other this would save him 

 from becoming a public enemy or, rather, would take 

 him out of that category which, according to his the- 

 ory, he certainly must have been in prior to the pro- 

 clamation. But the other has no such chance of escape. 

 No portion of his State [Georgia] is excepted by the 

 proclamation. It is probably true that he has not been 



Eersonally within the limits of that State since the re- 

 ellion broke out ; but he has never renounced his 

 citizenship, nor abandoned his residence there. He is 

 in the condition of thousands of loyal refugees, who 

 have temporarily fled from the rebellious territory, in- 

 tending to return to their estates and homes as soon 

 as the rebellion is put down. They are still in law 

 citizens and residents of their respective States. No 

 principle of law is better settled than that a man does 

 not lose his residence by leaving it for a temporary 

 purpose, with the intention to return when that tem- 

 porary purpose is accomplished, even though he may 

 remain absent for years. So long as the animu* refer- 

 tendi oxists, his legal dnmicil remains unchanged. The 

 loyal citizen of a rebellious State, who, being absent 

 from the rebellious territory when the war broke out, 

 has remained away with the intention of returning to 

 his home when the rebellion shall be suppressed, is in 



* Judges Wayne of Georgia, and Catron of Tennessee. 



