652 



PUBLIC DOCUMENTS. 



option of the body to which it is given be used to de- 

 stroy, is a proposition repugnant to common sense ; 

 and yet as the late insurrection was put down by 

 means of that power, that being the only one con- 

 ferred upon Congress to that end, that proposition 

 is the one on which' alone it can be pretended that 

 the Southern States are not in the Union now as 

 well as at flrst. The idea that the war power, as 

 such, has been used, or could havet>een used, to ex- 

 tinguish the rebellion is, in the judgment of the un- 

 dersigned, utterly without foundation. That power 

 was given for a different contingency of a con- 

 flict with other governments, an international con- 

 flict. If it had been thought that the power was to 

 be resorted to to suppress a domestic strife, the words 

 appropriate to that object would have been used. 

 But so far from this having been done, in the same 

 section that confers it an express provision is in- 

 serted to meet the exigency of a domestic strife or 

 insurrection. 



To subdue that, authority is given to call out the 

 militia. Whether, in the progress of the effort to 

 suppress an insurrection, the rights incident to war 

 as between the United States and foreign nations may 

 not arise, is a question which in no way changes the 

 character of the contest as between the Government 

 and the insurrectionists. The exercise of such rights 

 may be found convenient or become necessary for 

 the suppression of the rebellion, but the character 

 of the conflict is in nc way changed by a resort to 

 them. That remains as at first, and must, from its 

 very nature, during its continuance, remain a mere 

 contest in which the Government seeks, and can only 

 se3k, to put an end to the rebellion. That achieved, 

 the original condition of things is at once restored. 

 Two judicial decisions have been made, by judges of 

 eminence and unquestionable ability, which fully 

 sustain our views. In one that of Amy Warbick, 

 before the U. S. District Court of Massachusetts 

 Judge Sprague, referring to the supposed effect of 

 the belligerent rights which, it was conceded, be- 

 longed to the Government during the rebellion, 

 by giving, when suppressed, the rigtits of conquest, 

 declared : 



" It has been supposed that if the Government 

 have the right of a belligerent, then, after the rebel- 

 lion is suppressed, it will have the right of conquest; 

 that a State and its inhabitants may be permanently 

 divested of all political advantages, and treated as a 

 foreign territory conquered by arms. This is an 

 error a grave and dangerous error. Belligerent 

 right cannot be exercised where there are no bel- 

 ligerents. Conquest of a foreign country gives abso- 

 lute, unlimited sovereign rights, but no nation ever 

 makes such a conquest of its own territory. If 

 a hostile power, either from without or within, takes 

 and holds possession and dominion over any portion 

 of its territory, and the nation, by force of arms, 

 expels or overthrows the enemy and suppress* hos- 

 tilities, it acquires no new title, and merely re- 

 gains the possession of that of which it has been 

 temporarily deprived. The nation acquires no 

 new sovereignty, but merely maintains its previous 

 rights. 



" When the United States take possession of a 

 rebel district, they merely vindicate their pre- 

 existing title. Under despotic governments confis- 

 cation may be unlimited, but under our Govern- 

 ment the right of sovereignty over any portion of a 

 State is given and limited by the Constitution, and 

 will be the same after the war as it was before." 



In the other an application for habeas corpus to 

 Mr. Justice Nelson, one of the judges of the Supreme 

 Court of the United States, by James Egan, to be 

 discharged from imprisonment to which he had been 

 sentenced by a military commission in South Caro- 

 lina, for the offence of murder alleged to have been 

 committed in that State, and the discharge was or- 

 dered, and in an opinion evidently carefully prepared, 

 among other things he said: "For all that appears, 



the civil local courts of the State of Scuth Carolina 

 were in the full exercise of thei r judicial functkns a 

 the time of this trial, as restored by the suppres^ 

 sion of the rebellion some seven months previously, 

 and by the revival of the laws and the reorganiza- 

 tion of the State in obedience to, and in conformity 

 with, its constitutional duties to the Union. Indeed, 

 long previous to this, the provisional government 

 had been appointed by the President, who is cpm- 

 mander-in-chief of the army and navy of the United 

 States (and whose will under martial law constitutes 

 the only rule of action), for the special purpose of 

 changing the existing state of things, and restoring 

 the civil government over the people. In operation of 

 this appointment a new constitution had been formed, 

 a Governor and Legislature elected under it, and 

 the State placed in the full enjoyment of all her con- 

 stitutional rights and privileges. The constitutional 

 laws of the Union were thereby enjoyed and obeyed, 

 and were as authoritative and binding over the peo- 

 ple of the State as in any other portion of the coun- 

 try. Indeed, the moment the rebellion was sup- 

 pressed, and the Government growing out of it sub- 

 verted, the ancient laws resumed their accustomed 

 sway, subject only to the new reorganization by the 

 appointment of the proper officers to give them oper- 

 ation and effect. This organization and appoint- 

 ment of the public functionaries, which was under 

 the superintendence and direction of the President, 

 the commander-in-chief of the army and navy of the 

 country, and who, as such, had previously governed 

 the State, from imperative necessity, by the force of 

 martial law, had already taken place, and the neces- 

 sity no longer existed." 



This opinion is the more authoritative than it might 

 possibly be esteemed otherwise, from its being the 

 first elaborate statement of the reasons which gov- 

 erned the majority of the Supreme Court at the last 

 term, in their judgment in the case of Milligan and 

 others, that, military commissions for the trial of 

 civilians are not constitutional. Mr. Justice Nelson 

 was one of that majority, and_ of course was advised 

 of the grounds of their decision. We submit that 

 nothing could be more conclusive in favor of the doc- 

 trine for which they are cited than these judgments. 

 In the one the proposition of conquest of a State as 

 a right under the war to suppress the insurrection is 

 not only repudiated by Judge Sprague, but because 

 of the nature of our government, is considered to be 

 legally impossible. " The right of sovereignty over 

 any portion of a State will," he tells us, " only be 

 the same after the war as it was before." In the 

 other we are told that " the suppression of the rebel- 

 lion restores the courts of the State, and that when 

 her government is reorganized she at once is in the 

 full enjoyment, or entitled to the full enjoyment, of 

 all her constitutional rights and privileges." 



Again, a contrary doctrine is inconsistent with the 

 obligations which the Government is under to each 

 citizen of a State. Protection to each is a part of 

 that obligation, protection not only as against a for- 

 eign but a domestic foe. To hold that it is in the 

 power of any part of the people of a State, whether 

 they constitute a majority or minority, by engaging 

 in insurrection and adopting any measure in its pros- 

 ecution, to make citizens who are not engaged in it, 

 but opposed to it, enemies of the United States, hav- 

 ing no right to the protection which the Constitution 

 affords to citizens who are true to their allegiance, 

 is as illegal as it would be flagrantly unjust. During 

 the conflict, the exigency of the strife may justify a 

 denial of such protection, and subject the unoffend- 

 ing citizen to inconvenience and loss ; but the con- 

 flict over, the exigency ceases, and the obligation to 

 afford him all the immunities and advantages of the 

 Constitution one of which is the right to be repre- 

 sented in Congress becomes absolute and impera- 

 tive. A different rule would enable the Government 

 to escape a clear duty, and to commit a gross viola- 

 tion of the Constitution. It has been said that the 



