290 



CONGRESS, U. S. 



" Now, it is well known that the great Pow- 

 ers of Europe, in congress assembled in Paris, 

 in 1856, proposed certain ameliorations in the 

 laws of nations regulating war, as follows: 

 first, to abolish privateering; second, enemy 

 cargo (except contraband of war) to be covered 

 by neutral flags ; third, neutral goods (except 

 contraband of war) not seizable under enemy 

 i'ags. 



" The United States were invited to agree to 

 those changes, and the Federal Government 

 was willing to do so, provided another change 

 was made, namely, 'that private property of 

 enemies should not be prize of war at sea any 

 more than on land.' 



" Now, allow me to ask, suppose our Govern- 

 ment had agreed, by what agency under our 

 Constitution could that result have been brought 

 about? Surely no one will say it would be 

 Congress; but every one must know that the 

 President, through his ministers abroad, would 

 have entered into treaty with the Powers pro- 

 posing ; that we would have been called on to 

 ratify it in this Senate ; and that, so far from 

 the House of Representatives having any thing 

 to do with it, we would have been bound not 

 to let them know any thing about it until our 

 action had been taken. 



" Here we see, beyond dispute, that to the 

 President and the Senate is intrusted the power 

 of proposing and agreeing to alterations and 

 amendments to the laws of nations. 



" Now, I wish to say further in this connec- 

 tion, that in pursuance of the doctrine I have 

 advanced, we have established courts to decide 

 cases arising under the laws of nations, and 

 that in deciding those cases an act of Congress 

 Avould have no binding force whatever, because 

 if it contravened the well-settled principles of 

 public law, the court would be bound to dis- 

 regard it." 



" I do not know whether the honorable Sen- 

 ator from Illinois is aware of it or not, but I 

 assert here that he is trying to make a law to 

 seize the real estate of belligerents as such, to 

 condemn and confiscate it as prize of war, and 

 to do all that I call adding a new provision to 

 the laws of nations and of war. If you take an 

 enemy's private ship at sea it may be condemn- 

 ed as prize by the laws of nations, but if you 

 take an enemy's private plantation, it cannot 

 be forfeited as prize under those laws. They 

 are defective in that respect; indeed they say 

 expressly it cannot be done, and that the title 

 is the same after the conquest as before. This 

 is the difficulty the honorable Senator is trying 

 to remove, and in doing so if he succeeds he 

 must repeal (or violate) the laws of nations and 

 enact a new and different rule here. He says 

 himself that he claims the right to do this on 

 the same grounds precisely that he has a right 

 to shoot & rebel on the field of battle ; that is, 

 that it is a war right. Now war rights are 

 regulated by the laws of war, which, as he has 

 well said, are the ' laws of nations in reference 

 to war.' The truth is he is trying to do that 



which is forbidden by the laws of war and by 

 the Constitution also if it were attempted a?. 

 municipal law. Nothing can be clearer than 

 this, and he may just as well submit to these 

 limitations first as last. Let him read the latter 

 if he wants to know what he may rightly inflict 

 upon rebels as citizens for violating their alle- 

 giance, and let him read the laws of war for 

 what he may do to them as public enemies.. 

 At present I am for confining myself to these 

 latter strictly. I think we are bound to make 

 war according to the rules they furnish us, and 

 I would as soon think of transcending them or 

 violating them as I would think of trampling a 

 statute under foot. The crime is the same in 

 both cases, for both are laws of the land. 



" The true question is, can we make prize of 

 war of the real and personal estates of those 

 who have been engaged in this rebellion, and 

 can we forfeit their real estates absolutely? 

 We have seen that we cannot do this by due 

 process of municipal law ; can we do it by vir- 

 tue of the laws of war as settled by civilized 

 and Christian nations ? I answer that we can- 

 not ; that there is to-day no conflict of au- 

 thority whatever on the question ; there is not 

 a book that treats of it or a chapter devoted to 

 it which does not lay down the rule that we 

 cannot all for the best reason in the world, 

 namely, that we can make war far more suc- 

 cessfully by not being able to exercise any such 

 power. 



" Mr. President, I have sometimes doubted 

 whether we could be serious when we expect 

 any good results to come from such measures 

 as this, which not only exposes us to ridicule 

 but does harm to our cause. What was want- 

 ing in this crisis of our history with new crimi- 

 nal legislation, when the code was complete 

 before? We had a statute punishing treason 

 Avith death, a just and proper punishment, one 

 well according with the magnitude of the crime 

 as well as with the majesty of the law which 

 inflicted it. For all those who conspired the 

 dismemberment of the Republic, who used the 

 means and perverted the State governments to 

 bring it, this is the fitting punishment, because 

 it is the highest, and falls upon the guilty alone, 

 where it ought. I would have had no addi- 

 tional laws ; in war they are not needed. I 

 would have contemplated no reforms within 

 the area of the rebellion ; they cannot be made 

 at such a time. What we wanted was men 

 and money; these granted, the true function 

 of Congress was over until peace was restored 

 and all parties again represented. But above 

 all things I would not have played into the 

 hands of the enemy ; I would not have done 

 that which the rebels most desired to have 

 done, because I have no doubt that this and all 

 kindred schemes have been the very ones which 

 they most wanted us to adopt. I do not know 

 that Jefferson Davis ever prays ; but if he does, 

 I have no doubt he would pray " 



Mr. Wade: "Pray for just such an adro 

 cate." 



