THE
War Powers of the President,
AND THE
LEGISLATIVE POWERS OF CONGRESS
IN RELATION TO
reasona ant $a!r.
BY WILLIAM WHITING.
BOSTON.
JOHN L. SH O REY,
13 WASHINGTON STREET.
1 8 6 2.
3,t -f 7
. E           c...!   
,t e1t to 
Entered, according to Act of Congress, in the year 1862, by
WILLIAM WHITING,
In the Clerk's Office of the District Court of the District of Massachusetts. 
CONSTITUTION
}
UNITED STATES OF AMERICA.
INTRODUCTION.
THE PURPOSE FOR WHICII IT WAS FOUNDED.
THE Constitution of the United States, as declared in
the preamble, was ordained and established by the
people, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the
commnion 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.
OF THE 
CONSTITUTION OF THE UNITED STATES.
"THE INSTITUTION" vs. THE CONSTITUTION.
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 "privleged class" of persons who have been admitted into the
Union. They alone have the right to vote for their
property as well as for themselves. In the free States
citizens vote only for themselves. The former are
allowed to count, as part of their representative numbers, 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 endangered by the temporary toleration of this " institution,"
although it was inconsistent with the principles which
that instrument embodied, and revolting to the sentiments cherished by a people who had issued to the
world the Declaration of Independence, and had fought
through the revolutionary war to vindicate and maintain the rights of man.
UNEXPECTED GROWTHI OF SLAVERY.
The system of involuntary servitude, which had
received, as it merited, the general condemnation of
4 
INTRODUCTION.
the leading southern and northern statesmen of the
country,- of those who were most familiar with its
evils, and of all fair-minded persons throughout the
world, - seemed, at the time when 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, have rapidly swept over and desolated the
southern states; and, as that local, domestic institution,
which seemed so likely to pass into an ignominious and
unlamented grave, has risen to claimn an unbounded
empire, hence the present generation is called upon to
solve questions and encounter dangers not foreseen by
our forefathers.
SLAVERY ABOLISHED BY EUROPEAN GOVERNMENTS.
In other countries the scene has been reversed.
France, with unselfish patriotism, abolished 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 highest
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 the pecn
5 
CONSTITUTION OF THE UNITED STATES.
niary means for carrying that measure into effect; and
now all the slaves have become freemen.
Charles VIII., King of Denmark, celebrated the anniversary of the birth of the Queen Dowager by abolishing slavery in his dependencies, on the 28th of
July, 1847.
In 1862, Russia has consummated the last and grandest
act of emancipation of modern times.
While Europe has thus practically approved of the
leading principle of the American constitution, as
founded on justice, and as essential to public welfare,
the United States, as represented by the more recent administrations, have practically repudiated and abandoned
it. Europe, embarrassed by conservative and monarchical institutions, adopts the preamble to that instrument, as a just exposition of the true objects for which
governments should be established, and accordingly
abolishes slavery- while, in this country, in the mean
time, slavery, having grown strong, seeks by open rebellion to break up the Union, and to abolish republican deniocracy.  [Note A.]
SLAVERY IN 1862 NOT SLAVERY IN 1788.
However harmless that institution may have been in
1788, it is now believed by many, that, with few but
honorable exceptions, the slave-masters of the present
day, he privileyed class, 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." And since the
wide-spread but secret conspiracies of traitors in the
6 
INTRODUCTION.
slave states for the last thirty years; their hatred of the
Union, and determination to destroy it; their abhorrence of republican institutions, and of democratic
government; their preference for an "oligarchy with
slavery for its corner stone," have become known to the
people, - their causeless rebellion; 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, and
of all 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 "privileged class" must be abol
ished; otherwise the unity of the American people must
be destroyed, the government overthrown, and constitutional liberty abandoned.
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 removed; the perennial fountain of all our national
woes must be destroyed; otherwise "it will be in 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 involving
the whole country in ruin must be left in the hands of
a small privileged class, to be used at their discretion?
Must the blessing of peace and good government be
dependent upon the sovereign will and pleasure of a
handful of treasonable and unprincipled slave-masters?
7 
CONSTITUTION OF THE UNITED STATES.
Has the constitution bound together the peaceable
citizen with the insane assassin, so that his murderous
knife cannot lawfully be wrenched from his grasp even
in self-defence?
If the destruction of slavery be necessary to save
the country from defeat, disgrace, and ruin, -and if, at
the same time, the constitution guarantees the perpetuity of slavery, whether the country is saved or lost,
-it is time that the friends of the government should
awake, and realize their awfill destiny. If the objects
for which our government was founded can lawfully be
secured only so far as they do not interfere with the
pretensions of slavery, we must admit that the interests 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 constitution, and the laws, like Laocoon and his sons, are
to be strangled and crushed, in order that the unrelenting 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, utnder the coizslilttion,
interpreted by commoni 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 TOLERATED.
It is true, that indirectly, and for the purpose of a more
eqtcal distribution of direct taxes, the framers of the con
8 
INTRODUCTION.
stitution tolerated, while they condemned slavery; but
they tolerated it because they believed that it would
soon disappear. They even refused to allow the charter of their own liberties to be polluted by the mention
of the word "slave."  Having called the world to witness
their heroic and unselfish sacrifices for the vindication
of their own inalienable rights, they could not, consistently with honor or self-respect, transmit to future
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,
we should dishonor the memory of those who organized
that government to suppose that they did not intend
to bestow upon it the power to maintain its own
authority- the right to overthrow or remove slavery,
or whatever might prove fatal to its permanence, or
destroy its usefulness. We should discredit the good
sense of the great people who ordained and established
it, to deny that they bestowed upon the republic, created by and for themselves, the right, the duty, and the
powers of self-defence.  For self-defence by the governmnent was only maintaining, through the people's agents,
the right of the people 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 anad purpose of our hostilities to
lay waste lands, burn bridges, break up railroads,
sink         ships, blockade harbors, destroy commerce, capture, imprison, wound, or kill citizens; to seize, appro
2
t
9 
CONSTITUTION OF THE UNITED STATES.
priate, confiscate, or destroy private property; to
interfere with families, or domestic institutions; to
remove, employ, liberate, or arm slaves; to accumulate national debt, impose new and burdensome taxes;
or to cause thousands of loyal citizens to be slain in
battle.  But. as  eans of carrying on the contest, it has become necessary and lawful to lay waste, burn, sink, destroy, 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 convenient for the more certain, speedy, and effectual overthrow 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 government, claim for'themselves only the rights of belligerents.
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 regarding 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 construc
10
i 
INTRODUCTION.
tion, having stuck to the letter of the text, and not
appreciating the spirit in which it was framed, are
opposed to all who view it as only a frame of government, a plan-iz-outline, for regulating the affairs of an
enterprising and progressive nation. Some treat that
frame of government as though it were a castiron
mould, incapable of adaptation or alteration - as one
which a blow would break in pieces. Others think it a
hoop placed around the trunk of a living tree, whose
growth must girdle the tree, or burst the hoop. 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 nation, like a
distant planet in the solar system, mnay sweep round a
wide orbit; but in its revolutions it never gets beyond
the reach of the central light. The sunshine of constitutional law illumines its pathway in all its changing
positions. We have not yet arrived at the s" dead point"
where the hoop must burst- the mould be shatteredthe tree girdled-or the sun shed darkness rather than
light. By a liberal construction 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
11 
CONSTITUTION OF THE UNITED STATES.
conquered regions are now legally a part of the United
States. The admission of new States containing a privileged class, the incorporation into our Union of a foreign people, are held to be lawful and valid by all the
courts of the country. Thus far from the old anchorage have we sailed under the flag of "1 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 designed, 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 amendment.s, we find that powers essential to its own perpetuity are vested in the executive and legislative
departments, to be exercised accordiny 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
tile rights of the people. Those who founded a goverment 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
12 
INTRODUCTION.
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 numerous 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 legislation to call into action those powers which the constitution 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 constitution; for now the garrison is summoned to surrender;
and if there be any cannon, it is time to unlimber and
run them out the port-holes, to fetch up the hot shot,
to light the match, and hang out our banner on the
outer walls.
THE UNION IS GONE FOREVER IF THE CONSTITUTION DENIES THE
POWER TO SAVE IT.
The question whether republican constitutional government shall now cease in America, must depend upon
13 
CON STITUTION OF THE UNITED STATES.
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 destroying rights solemnly guaranteed by the constitution
we  are defending?   If so, the next question will
be, whether the law of self-defence and overwhelminog 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 hamipered, as
some have asserted, that even if war end in reestablishing the Union, and enforcing the laws over all the
land, the results of victory will 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 superiority over the citizens of Free States, which, as the
only "privileged class," they have hitherto enjoyed?
Have they who alone have made this rebellion, while
committing treason and other high crimes against the
republic, a protection, an immunity against punishment
for these crimes, whether by forfeiture of life or property, by reason of any clause in the constitution? Can
:14 
INTRODUCTION.
government, the people's agent, wage genuine and effectual war against their enemy? or must the soldier of
the Union, when in action, keep one eye upon his rifle,
and the other upon the constitution? 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 belligerelnt traitors?
THE LEADING QUESTIONS STATED.
What limit, if any, is prescribed to the war-making
power of the President, as Comnzander-in-Chief of the
army and navy of the United States? What authority
has Congress to frame laws interfering with the ordinary civil rights of persons and property, of loyal or
disloyal citizens, in peaceful or in rebellious districts;
of the enemy who may be captured as spies, as pirates,
as guerrillas or bush-whackers; as aiders and comforters
of armed traitors, or as soldiers in the battle-field?
What rights has Congress, or the President, in relation
to belligerent distraicts of country; in relation to slaves
captured or escaping into the lines of our army, or
escaping into Free States; or slaves used by the enemy
in military service; or those belonging to rebels, not
so used? Whether they are contraband of war? and
whether they may be released, manumitted, or emancipated, and discharged by the civil or military authority?
or whether slaves may be released from their obligation
to serve rebel masters? and whether slavery may be
abolished with or without the consent of the masters,
as a military measure, or as a legislative act, required
by the public welfare and common defence? Where
the power to abolish it resides, under the constitution?
15 
CONSTITUTION OF THE UNITED STATES.
And whether there is any restraint or limitation upon
the power of Congress to punish treason? What are
the rights of government over the private property of
loyal citizens? What are the rights and liabilities of
traitors? 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, that the following suggestions have been
prepared.
16 
PUBLIC USE OF PRIVATE PROPERTY.
CHAPTER I.
THE CONSTITUTIONAL RIGHT OF THE GOVERNMENT TO AP  PROPRIATE PRIVATE PROPERTY TO PUBLIC USE, EITHER
IN TIME OF PEACE OR IN TIME OF WAR.
The general governmnent of the  United  Slates  has, in
time of peace, a leyal right, under the constilttion, to appropriate to public use the private property of any subject, or
of any number of subjects, owin# it alleyiance.
Each of the States claimns and exercises a similar
right over the property of its own citizens.
THE 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 authority, and even to their existence. The
construction of military defences, such as forts, arsenals, roads, navigable canals, however essential to the
protection of a country in war, might be prevented by
private interests, if the property of individuals could
not be taken by the country, through its government.
Internal improvements in time of peace, however important to the interests of the public, 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 use
requires. And as it is the government which protects
all citizens in their rights to life, liberty, and property,
they are deemed to hold their property subject to the
3
17 
CONSTITUTION OF TUE UNITED STATES.
claim of the supreme protector to take it from them
when demanded by "public welfare." It is under this
quasi sovereign power that the State of Massachusetts
seizes by 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 this commonwealth to be as legal, and
as constitutional, as if purchased and conveyed by deed,
under the hand and seal of the owner.
INDEMNITY IS REQUIRED.
But, when individuals are called upon to give up
what is their own- for the advantage of the commnunity, 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, (Amendments, Art. V, last clause,) "2lor shall
private property be taken for public use wizhout just compensaltiog." *
The language of this amendmont admits the right of
the United States to take private property for public
use. This amendment, being now a part of the constitution, leaves that right no longer open to question, if
it ever was questioned.
* Similar provisions are found in the constitution of Massachusetts, and
several other states.
18 
PUBLIC USE OF PRIVATE PROPERTY.
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 mnore than his due share for
public purposes.
It is not a little singular that the framlers of the
constitution should  have been  ess careful to secure
equality in distributing the burden of taxes.  Sect. 8
requires dlties, imzposts, 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 private property appropriated to the public benefit.
'" PUBLIC USE."
What is "public use" for which private property may
be taken?
Every appropriation of property for tze 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 interests, is "public use."  Public use is contradistinguished
from private use. That which is for the use of the countzlr#,
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, or
destroyed. And destruction of private property may be
the best public use it can be put to.
19 
CONSTITUTION OF THE UNITED STATES.
Suppose a bridge, owned by a private corporation,
were so located as to endanger a military work upon
the bank of a river. The destruction of that bridge to
gain a military advantage would be appropriating it to
public use.
So also the blowing up or demolition of buildings in
a city, for the purpose of preventing a general conflagration, would be an appropriation of them to public
use. The destruction of arms, or other munitions of war,
belonging to private persons, in order to prevent their
falling into possession of the enemy, would be applying
them to public use.  Congress has power 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 requires them to authorize the appropriation of
private property to public use, - whether that use be
She employment or destrruction of the property taken, - they
have the right to pass such laws; to appropriate private property in that way; and whatever is done with
it is "public use," and entitles the owner to just compensation therefor.
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 mnay be lawfully thus appropriated, whether it be real estate, personal estate, rights
in action or in possession, obligations 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, may lawfully be appropriated to public use, or
20
I 
PUBLIC USE OF PRIVATE PROPERTY.
discharged and destroyed, for public benefit, by Congress, with the proviso that just compensation shall be
allowed to the parent or master.
Our government, by treaty, discharged the claims
of its own citizens against France, and thus appropriated private property to public use. At a later
date the United States discharged the claims of certain
slave owners 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 tile United States.
During the present rebellion, many minors, apprentices, 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
descrzption 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
21 
CONSTITUTION OF THE UNITED STATES.
were equally with them citizens and subjects of this
government  would any one doubt or deny the right
of government to accept these apprentices  as soldiers, to discharge them from the obligation of their
indentures, providing just compensation to their employers  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 raniitar# duty. If those who owe labor
and service to others, either by contract, by indenture, by common or statute law, or by local usage,
could not be lawfully called upon to leave their emnployments  to serve their country, no inconsiderable
portion of the able-bodied men would thus be ex
empt, and  the  constitution and laws  of the land
22 
PUBLIC USE OF PRIVATE PROPERTY.
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 overthrow the claims of the country to
the services of every 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 individuals. 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 subjets to aid
in its military defence will be deemed paramount to the
claims of any private person upon such subjects, and that 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. 16 Mar. 1802, was forbidden to enlist him
without the master's consent. Commonwealth v. Robinson, 1 S. & R. 353;
Commonwealth v. Harris, 7 Pa. 16 J. 283.
23 
CONSTITUTION OF THE UNITED STATES.
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 political 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 benefI, or public defence, such abolishment is an appropriation of private
property for public use, within ithe meaning of the constitution.
INDEMNITY TO MIORMONS.
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.  Congress has the power to pass naturalization laws, by Art.
I. Sect. 8. This power has never been doubted. The
only question is, whether this power is not exclusive.*
Congress may thus give the privileges of citizenship to
* See Chirac v. Chirac, 2 Whea. 269; U. S. v. Villato, 2 Dall. 372;
Thirlow v. Mass., 5 How. 585; Smith v. Turner, 7 ib. 556; Golden v. Prince,
3 W. C. C. P., 314.
24
O 
PUBLIC USE OF PRIVATE PROPERTY.
any persons whatsoever, black or white. Colored men,
having been citizens in some of the States ever since they
were founded, having acted as citizens prior to 1788 in
various civil and military capacities, are therefore citizens of the United States.*
Under the present laws of the United States, according to the opinion of the attorney-general of Massachusetts, colored men are equally with while men required( to
be enrolled in the militia of the United States,t 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.1 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, as part of
tIe nilitia of the United Slates, 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 overwhelming necessity, could be required by the constitution to recognize the private relations in which the
soldier mnight stand, by local laws, to persons setting up
* See case of D)red 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. U. S. July 17, 1862. -                      8 Gray's R. 615.
4
25 
CONSTITUTION OF THE UNITED STATES.
claims against him?  If white subjects or citizens owe
labor and service, even by formal indentures, such
obligations afford no valid excuse against the requisition
of government to have them drafted into the militia to
serve the country. The government does not compensate
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 and
service) has to run, or the evidence by which the existence
of the obligation is proved, can make an essential difference between the different kinds of labor and service,
reinains to be seen.   The question  is, whether the
soldier or seaman, serving his country in arms, can be
deemed privateproperty, as recognized in the constitution
of the United States?
DOES THiE 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 mililar# offcers,
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;* 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
* Amendments, Art. V. last clause.
26 
PUBLIC USE OF PRIVATE PROPERTY.
in war, without exercising the right to take for public
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 AS TO THE CONSTITUTION, SHOWING THE WAR POW                    ERS OF CONGRESS.
The powers of the leyislatie department in relation
to war are contained chiefly in the following sections
in the constitution: -
Art. I., Sect. 8, C1. 11.  Congress may institute war by
declaring it against an enemy. The President alone
cannot do so. Also, Congress may make laws concerning captures on land, as well as on water.
Art. I., Sect. 8, C1. 12.   Congress  may  raise and
support armies: and provide and maintain a navy.
Art. I., Sect. 8, C1. 14.   Congress may make laws
for the government of land and naval forces.
Art. I., Sect. 8, Cl. 15. Congress may provide for
callinigforth the militia to execute the laws of the Union,
suppress insurrection, and repel invasion.
Art. I., Sect. 8, Cl. 16: And  may 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.
The preamble to the constitution declares the objects
for which it was framed to be these: "to form a more
perfect Union;  establish justice; insure domestic  raznqitllity; provide for the common defence; promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity."  In Art. I., Sect. 8, Cl. 1,
27 
CONSTITUTION OF THE UNITED STATES.
the first power given to Congress is to lay and collect
taxes, duties, imposts, and excises, to pay the debts,
and provide for the commnzon defence and general welfare of the United States.  And in the same  article (the
eighteenth clause) express power is given to Congress
to msnake all laws which shoall be necessary and proper for carrying into execution the foregoing and all other powers vested by
the constitution in the government of the United States, or in any
department or offcer thereof."
SLAVE PROPERTY SUBJECT TO THE SAME LIABILITY AS OTHER
PROPERTY TO BE APPROPRIATED FOR WAR PURPOSES.
If the public welfare, or common defence, in time of war,
requires that the claims of masters over their apprentices or slaves should be cancelled or abrogated, against
their consent, and if a general law carrying into execution such abrogation, is, in the judgment of Congress,  "a
necessary and proper measure for accomplishing that
object," there can be no question of the constitutional
power and right of Congress to pass such laws. The
only doubt is in relation to the right to compensation.
If it should be said that the release of slaves from their
servitude would be tantamount to impairing or destroying the obligation of contracts, it may be said, that though
states have no right to pass laws impairing the obligation of contracts, Congress is at liberty to pass such
laws. It will be readily perceived that the right to
abrogate and cancel the obligations of apprentices
and slaves does not rest solely upon the power of
Congress to appropriate private property to public use;
but it may be founded upon their power and obligation
to accomplish one of the chief objects for which the
Union was formed, viz., to provide for the common defence
and general welfare of the United States.
28
It 
PUBLIC USE OF PRIVATE PROPERTY.
IMPORTANCE AND DANGER OF THIS POWER.
The powers conveyed in this 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 discretionary. They are more than imperial. But it was intended by the framers of the constitution, or, what is
of more importance, by the people who made and adopted it, that the powers of government in dealing with
civil rights in time of peace, should be defined and limited; but the powers "to provide for the general welfare
and the common defence" should be unlimited. 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 representatives 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 regulate the conduct of the army and navy in service; or
where falls 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 reason 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 power 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
29 
CONSTITUTION OF THE UNITED STATES.
and on the water.  If slaves are captured, and are treated
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 require the removal of the
condition of slavery, it is within the scope of their
constitutional authority to pass laws for that purpose.
If such  laws are deemed  to take private  property 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 constiltulion co)tains no clause or sentence prohibitizg the exercise by
Congress of the plenary power of abroyatizg iIioluntary servitide. 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 labor and service
in one state, under the laws thereof, escaping into another,
shall, in consequence of any law or reulation "therein,"
be discharged from such service or labor; but shall be
delivered up on claim of the party to whom such service or labor may be due." Thus, if a slave or appren
* Constitution, Art. I., Sect. 8, C1. 11.
30 
PUBLIC USE OF PRIVATE PROPERTY.
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 fromn his liability to his employer. This restriction is, in express termzs, applicable only to Slate leqislactures,
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 belons to t(he United States,
unless expressly prohibited, if it is embraced within
the scope of powers necessary to the safety and preservation 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 conidition of slaves in any of the states where they
are held, while another clause in the constitution
relates to fugitives from justice.*  Neither clause has
any application to citizens or persons who are not
fityitives. And it would be a singular species of reasoning to conclude that, because the constitution presecribed certain rules of conduct towards persons eseaing
fron  one Stale into anollher, therefore there is no power
to make rules relating to other persons who do not esceape
fromn one Slate into another.  If Congress were expressly
empowered to pass laws relating to persons when
eseaping 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.
31 
CONSTITUTION OF THE UNITED STATES.
menit 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 all
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 anly State and therefore there
would be no person to whom the clause in the constitution restraining State legislation could apply. This
clause, relating to fugitive slaves, has often been misunderstood, as it has been supposed to limit the power of
Congress, while in fact it applies in plain and express terris
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 instrumient a proviso that Congress should pass no law prohibiting 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 design that the legislature should exercise control over
the subject of domestic slavery, whenever it should
assumne such an aspect as to involve national interests,
the introduction of the proviso relating to the slave
* Constitution, Art. I. Sect. 9.
32 
PUBLIC USE OF PRIVATE PROPERTY.
trade, and of several other clauses in the plan of government, makes the omission of any prohibition of
legislation on slavery unaccountable.
CONCLUSION.
Thus it has been shown that the government have
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, whenever laws to that effect are required by
"public  welfare  and  common  defence;"  that this
power is left to the discretion of Congress, who are
the sole and exclusive judges as to the occasions when
it shall be exercised, and from whose judgment there
is no appeal.  The right to "just comnpensation" for
private property so taken, depends upon the circunmstances under which it is taken, and the loyalty and
other 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.
5
33 
CONSTITUTION OF THE UNITED STATES.
CHAPTER II.
WAR POWERS OF CONGRESS.*
CONGRESS has power to frame statutes not only for the
punishment of crimes, but also for the purpose of aiding the President, as commander-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 carrying into execution all the powers granted to the government 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 Congress, see ante, pp. 27, 28.
34 
WAR POWERS OF CONGRESS.
are indispensably necessary, there can be neither sense nor utility in
adding the word'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 or
the government of both; to direct their operations; to provide for their
support.  These powers ought to exist WITHIOT 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 support 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." t
The doctrine of the Supreme Court of the United
States, announced by Chief Justice Marshall, and approved by Daniel Webster, Chancellor Kent, and Judge
Story, is thus stated:  "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 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 or
* 3 Story's Commentaries, Sec. 122.   t Federalist, No. 23, pp. 95, 96.
35 
CONSTITUTION OF THE UNITED STATES.
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 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
c.rried into execution. It would render it too prolix. Its nature
requires that only the great outlines 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 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 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 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 calculated 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
36 
WAR POWERS OF CONGRESS.
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 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." *
Guided by these principles of interpretation, it is
obvious that if the confiscation of property, or the liberation 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 tile
war powers conferred upon that department of government, a broad distinction is to be observed between
confiscation or emancipation laws, passed in time of
peace, for the punishment of crime;, and 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 enacted under the war powers of Congress, we rmust determine, in order to test their validity,
whether. in suppressing a rebellion of colossal proportions, the United States are, within the meaning of
On the interpretation of constitutional power, see 1 Kent's Com. 351,
352; McCulloch v. The State of AIaryland, 4 Wheat. R. 413-420.
37
ID  
CONSTITUTION OF THE UNITED STATES.
the constitution, at war with its own citizens? whether
confiscation and emancipation are sanctioned as belligerent rights by the law and usage of civilized nations?
and whether our government has flil 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 rebellion; or as an attempt, by a considerable portion
of the subjects, to overthrow their governmentwhich 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 either of the modes
above mentioned, without a declaration of war by either
of the hostile parties. Congress has the sole power,
under the constitution, to make that declaration, and
38 
WAR POWERS OF CONGRESS.
to sanction or authorize the commencement of offensive
war. If the United States commence hostilities against
a foreign nation, such commencement is by proclamation,
which is equivalent to a declaration of war. But this is
quite a different case from a defensive or acivil war. The
constitution establishes the mode in which this government shall commence wars, and what authority shall ordain,
and what declarations 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 domestic. 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 commander-in-chief could not
call out his forces to repel an invasion until Congress
should have made a formal declaration of war, a foreign
army might march from Canada to the Gulf before
such declaration could be made, if it should commence the campaign while Congress was not in session.   Before a majority of its members  could  be
convened, our navy  might be swept from  the seas.
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
to declare war, whenever war is initiated by the United
,States, also makes it the duty of the President, as com
39 
CONSTITUTION OF THE UNITED STATES.
mander-in-chief, to engage promptly and effebctually 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. Nothing is clearer than this, that when such a state of hostilities exists as justifies the President ii calling the
army into actual service, without the authority of Conogress, no declaration of war is requisite either in form or
substance, for any purpose whatsoever. Hence it follows, that government, while engaged in suppressing a
rebellion, is not deprived of the rights of a belligerent
ayainst rebels, by reason of the fact that no formal declaration of war has been made against them. as though
they were an alien enemy, - nor by reason of the circunistance that this great civil war originated, so far as
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 suitable 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
* See 1 Kent's Corn. p. 54.
40 
WAR POWERS OF CONGRESS.
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 rebellion places the country in the attitude of making war
on rebels, nor that the commander-in-chief has the constitutional right of conducting his military operations
as he might do if he were actually at war (in the ordinary sense of the term) against an alien enemy. Misapprehension 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, confiscation, 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 them; they concede
that rebels may be taken captive, their gunboats may
be sunk, and their property may be seized; that martial 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
somnething 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. All these men in arms are not,
they fancy, ",makin waar." When the citizens of Charleston bombarded Fort Sumter, and captured property
exclusively owned by the United States, it is not
6
41 
CONSTITUTION OF THE UNITED STATES.
denied that they were "waying war" upon the government. When Major Anderson returned the enemy's
fire and attempted to defend the fort and the guns
from capture, it is denied that the country was" waging
war."  While other nations, as well as our own, had
formally or informally conceded to the rebels the character and the rights usually allowed to belligerents,that is, to persons making war on us,- we, according to
the constitutional scruple above stated, were not entitled to the rights of belligerents against them. It
therefore becomes important to know what, according
to the constitution, the meaning of the term "levying
war" really is; and as the military forces of this country
are in actual service to suppress rebellion, whether such
military service is making war upon its own citizens; and
if war actually exists, whether there is any thing in the
constitution that limits or controls the full enjoyment
and exercise by the -government of the rights of a belligerent against the belligerent enemy?
IS " SUPPRESSING REBELLION" BY ARMS MAKING WAR ON THE
CITIZENS OF THE UNITED STATES, IN THE SENSE OF THE CON  STITUTION?
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 active
service against a public enemy.
When rebels are organized into armies in large numbers, overthrow the government, invade the territory
of States not consenting thereto attack and seize, and
confiscate the property not of the government only, but
of all persons who continue loyal, such proceedings
constitute war in all its terrors -a war of subjugation
42 
WAR POWERS OF CONGRESS.
and of conquest, as well as of rebellion.  Far less than
these operations constitutes the lev1ing of war, as those
terms are explained in the language of the constitution.
-" War is levied" on the United States wherever and
whenever the crime of treason is committed, (see Coilstitution, Art. III., Sect. 3, Cl. 3,) and under that clause,
as interpreted by the Supremne Court, "war is levied"
when there exists a combination resorting to overt acts
to oppose generally the execution of any law of the
United States, even if no aroed 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 tile crime of treason, the constitution declares them to have levied ear.  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 constitution) 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
inhabitants of a section of this country have issued a
manifesto claiming independence; they have engaged
in open war 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 government and people, and have killed, captured, and imprisoned soldiers and private citizens. Of the million of
43 
CONSTITUTION OF THE UNITED STATES.
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 declares 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
follow from a state of war, in addition to those which
are derived from the fact that the rebels are also
subjects.)
REBELS 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 belligerents, 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 untrammnelled 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. (The right of a country to treat its rebellious citizens both as belligerents and as subjects has long
been recognized in Europe, and by the Supreme Court
of the United States) 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. Foussa#, 3 Binney, 252.
In Dobrie v. Napier, 3 Scott R. 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 lawful prize for running the blockade. (The cases
44 
WAR POWERS OF CONGRESS.
of the Santissima Trinidad, 7 Wheat. 306, and United
States v. Palmner, 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 belligerent 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 harbors 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
defines a rebel who commits treason as one who " levies
war" on the United States; and the laws punish this
45 
CONSTITUTION OF THE UNITED STATES.
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 to protect themselves under the shield of belligerent rights, must bear
the weight of that shield, and submit to the legal consequences 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, belligerentsubjects; 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 riqhts of
bellierents are, according to the law of nations.  It will
be observed that the law of nations is above the constitution 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 constitution, 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
home such men and women as they should select, and,
if these privileges should be put in practice, England
46 
WAR POWERS OF CONGRESS.
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 domestic 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 international 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 citizens, 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.
47 
CONSTITUTION OF THE UNITED STATES.
BELLIGERENT RIGHT OF CONFISCATION OF PERSONAL ESTATE.
Either belligerent ma# seize and conjfscate all the property
of the enemy, on land or on the sea, including real as well as
personal estate.
PRIZE COURTS.
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.  Capture passes the title.  This
is familiar law as administered in the courts of Europe
and America.*
TITLE BY CAPTURE.
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 in violation of the constitution, which declares that no man shall be deprived of life, liberty, or
* 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 I
Kent, 357.
48 
WAR POWERS OF CONGRESS.
property without due process of law; * that private
property shall not be taken for public use without just
compensation;t 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. 11I
THESE PROVISIONS NOT 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. Nrot a gun can be fired constiltutooal#y, because it might deprive a rebel foe of his life
without due process of lav -  firing a gun  not being
deemed "due process of law."
Sect. 4 of Art. IV. 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 invasion; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as
may be in the service of the United States.
* Constitutional Amendments, Art. V.
I Ibid. Art. IV.          ~ Ibid. Art. I.
7
49
44
i
t Ibid. Art. V.
11 Ibid. Art. II. 
CONSTITUTION OF THE UNITED STATES.
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.
Hle 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 commander-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 gunboats; 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 amendments to the constitution were intended as declarations
50 
WAR POWERS OF CONGRESS.
of the rights of peaceful and loyal citizens, and safeguards in the administration of justice by the civil tribunals; but it was necessary, in order to give the government the means of defending itself against domestic
or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should
have unlimited war powers; and it must not be forgotten that the same authority which provides those
safeguards, and guarantees those rights, also imposes
upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in
temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of
such war powers, and of the belligerent rights resulting 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.
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 they have become bellqerents
aygainst their own government. They thereby forfeit all
p)rotection 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
51
I 
CONSTITUTION OF THE UNITED -STATES.
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 provisions 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 constitution makes it the duty of the President to prosecute
war against them in order to suppress rebellion and
repel invasion.
THE CONSTITUTION ALLOWS CONFISCATION.
Nothing in the constitution interferes with the belligerent 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 confiscation belongs to the government as the necessary
consequence of the power and duty of making war -
offensive or defensive.  Every capture of enemy ammunition or arms is, in substance, a confiscation, without 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 confiscation, it may be found in 3 Dallas, 227; Vat. lib.
iii., ch. 8, sect. 188; lib. iii., ch. 9, sect. 161; Sinith v.
Masfeld, Cranch, 306-7; Cooper v. Telfair, 4 Dallas;
Brown v. U. S., 8 Cranch, 110, 228, 229.
52
I 
WAR POWERS  OF CONGRESS.
The following extract is from 1 Kent's Corn., p. 59:
"But however strong the current of authority in favor of the moderr and milder construction of the 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 possession 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 consideration 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
53
i
i 
CONSTITUTION OF THE UNITED STATES.
government has a right, as a belligerent power, to capture 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 judicial condemnation of enemy property be sought, in
order to pass the title to it by formal decree of courts,
by mere seizure, and 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 personal 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.
In addition to the right of conifscating personalproperty
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 maintaining military government over it, thereby suspending in part, or in the whole, the ordinary civil adminis
54
i
MILITARY GOVERNMENT UNDER MARTIAL LAW'. 
WAR POWERS OF CONGRESS.
tration. The exercise of this right has been sanctioned
by the decision of the Supreme Court of the United
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 conquered 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 due- none to restrain lawlessness,
none to secure to any persons any civil rights whatever. Hence, from the necessity of the case, the conqueror has power to establish a quasi military civil administration 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.
It is under this power of holding and establishing military rule over conquered territory, that all
provisional governments are instituted by conquerors.  The  President, as comnmander-in-chief, has formeally appointed Andrew  Johnson governor of Tennessee, with all the powers, duties, and functions pertaining to that office, during the pleasure of the President, or until the loyal inhabitants of that State shall
organize a civil government in accordance with the constitution 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 general, and his nomination was confirmed by the Senate.
Mr. Stanley acts as provisional military governor of North
Carolina, under similar authority. All acts of military
government which are within the scope of their authority, are as legal and constitutional as any other military
* Cross v. Harrison, 16 How. l164.
55 
CONSTITUTION OF THE UNITED STATES.
proceeding. Hence any section of this country, which,
hlaving joined in a general rebellion, shall have been
subdued and conquered by the military forces of the
United States, may be subjected to military government, and the rights of citizens in those districts are
subject to martial law, so long as the war lasts.  Whatever 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 nmartial law, because martia lalw, when in force, is conslilvtionzal law.,  The people of the United States, through
their lawfully chosen commander-in-chief, have the constitutional right to seize and hold the territory of a belligerent 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 debarred from enjoying the rights they would be entitled
to iii 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
together; the laws of peace and of war cannot operate
together; the rights and procedures of peaceful times
56
i
ii
I 
WAR POWERS OF CONGRESS.
are incompatible with those of war. It is an obvious but
pernicious error to suppose that in a state of war, the
rules of martial law, and the consequent modification
of the rights, duties, and obligations of citizens, private and public, are not authorized strictly under the
constlution.  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 government.*  That form of government having been overthrown 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.
A SEVERE RULE OF BELLIGERENT LAW.
"Property of persons residing in the enemy's country
is deemed, in law, hostile, and subject to condemnation
without any evidence as to the opinions or predilections
of the owner." If lie be the subject of a neutral, or a
citizen of one of the belligerent States, and has expressed no disloyal sentiments towards his country,
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
* Constitution, Art. IV., Sect. 4., C1. 1.
8
57
I
II
I 
CONSTITUTION OF THE UNITED STATES.
condemnation. This familiar principle of law is sanctioniled 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, mnay 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 President 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.
"The statute of 1807, chap. 39," says a learned judge,t
"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 confirmed, 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 civilized war."
* The Venus, 8 Cranch Rep.; The Hoop, 1 Robinson, 196, -and cases
there cited. The Amy Warwick, opinion of Judge Sprague.
t Judge Sprague.
58
II
t
f
i
I
I 
WAR POWERS OF CONGRESS.
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 compensation. This is an act of grace, which, though not required by the laws of war, may well be granted. iThe
commander-in-chief may  also grant the same  indulgence.  But the military commanders are always at
liberty to seize, in an enemy's country, whatever property 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 protecting 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 because law or constitution render 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.
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
HIeld in abeyance - If this were not so, the government
nulight itself be destroyed; the army and navy might
be sacrificed,and one part of the constitution would
NULLIFY the rest.
59
I
I
I
i
k 
CONSTITUTION OF THE UNITED STATES.
If freedom of speech cannot be suppressed, spies cannot 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 enemny'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, without 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 enenmy be taken prisoner?
It has been said that "amidst arms the laws are silent."
It would be more just to say, that while war rages, the
ryhts, 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 coutry, elaims to
be protected from its enemies, domestic and foreignfrom spies, from conspirators, and from traitors.  The
sovereign and almost dictatorial powers- existing
only in actual war; ending when  war ends-  to be
used in self:defence, and t6 be laid down when the occasion has passed, are, while they last, as lawful, as constitutional, as sacred, as the administration of justice by
judicial courts in times of peace. They may be dangerous; war itself is dangerous; but danger does not
make them unconstitutional. If the commander-in-chief
orders the army to seize the arms and ammunition of
the enemy; to capture their persons; to shell out their
batteries; to hang spies or shoot deserters; to destroy
the armed enemy in open battle; to send traitors to
I
60
I
i
;,r
t 
WAR  POWERS OF CONGRESS.
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 evidence of their having aided or abetted the rebels, or of
intending so to do,- the pretension that in so doing
he is violating 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 go to war with the enemy of his
country.  And the restraints to which he is subject
when in war, are not to be found in the municipal
regulations, which can be administered only in peace,
but in the laws and usages of nations regulating the
conduct of war.
BELLIGERENT RIGHT TO CONFISCATE ENEMY'S REAL ESTATE.
The belligerent right of the government to confiscate
enemny's real estate, situated in this countr, can hardly admit
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 countries, 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/iger     e    ts.,
61
Is
I 
CONSTITUTION OF THE UNITED STATES.
It Will be observed that the question as to the belligerent 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 unusuial, in case of conquest of a foreign country,
for the conqueror to do more than to displace its sovereign, 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 personal 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 interfered with.  The forbearance of a conqueror from confiscating 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 permanent addition to the power and territory of the conqueror. This object would be defeated by stripping
his subjects of every thing. The case is very different where confiscation will only break up a nest of
traitors, and drive them away fromn a country they have
betrayed.
Suppose that certain Englishmen owned large tracts
* United States v. Juan Richmond, 7 Peters, 51.
62
i
I 
WAR POWERS OF CONGRESS.
of real estate in either of the United States or territories thereof, and war should break out; would any one
doubt the right of Congress to pass a law confiscating
such estate?
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 between the different kinds of enemy property, whether
real, personal, or mixed, so far as regards their liability
to confiscation  by the war  power.   Lands, mioney.,
slaves, debts, may and have been subject to this liability. 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.
In Brown v. United States, 8 Cranich, 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 riyht to confiscate," &c.
63 
CONSTITUTION OF THE UNITED STATES.
Chancellor Kent says,
"When war is duly declared, it is not merely a war between this
and the adverse government in their political characters. Every
man is, in judgment of law, a party to the acts of his own government, 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 subjects are deducible from this principle.  When  hostilities have commenced, 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." *
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.t
It is for the government to decide how it shall
use its belligerent right of confiscation. The number of slaveholders in the rebellious States, who
* 1 Kent's Com., p. 55. See also Grotius, B. III. ch. 3, sect. 9; ch. 4,
sect. 8. Burlamaqui, Part IV. ch. 4, sect. 20. Vattel, B. III. ch. 5, sect. 70.
t See page 57.
64 
WAR POWERS OF CONGRESS.
are the principal land owners in that region, and
who are the chief authors and supporters of this rebellion, constitute, all told, less than one in one hundred
and twenty eyight of the people of the United States,
and less than one fifidth part of the inhabitants of their
own  districts, being  far less  in proportion to  the
whole population of the country than the old tories
in the time of the revolution were to the colonists.*
* In confirmation of these views of the War Powers of Congress, see the
chapter on the War Powers of the President, and NoTEs thereon.
9
65
16
i
i
i
I} 
CONSTITUTION OF THE UNITED STATES.
CHAPTER III.
WAR POWER OF THE PRESIDENT TO EMANCIPATE SLAVES.
THE power of the President, as commander-in-chief
of the army and navy of the United States, when ill
actual service, to emancipate the slaves of any belligerent section of the country, if such a measure becomes 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 strengthening 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 prosecuting war, as employees upon military works, or as
laborers furnishing by their industry the means of carrying 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 claimn 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 rebels either as belligerents or as subjects, and to subject
them to the severities of international belligerent law.
66
i
it
I
t 
WAR POWER OF THE PRESIDENT.
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 the 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, te call forth the mnilitia, 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 Supreme Court, ip Martin v. Most, 12 Wheaton, 19.
67
lI
(
I 
CONSTITUTION OF THE UNITED STATES.
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 concurrent right or duty to emancipate enemy's slaves, if in
tieirjudgment 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 incompatible with the peace or war powers of Congress; but
both coexist, and may be exercised upon the same subject. Thus, when the army captures a regiment of
soldiers, the legislature may pass laws relating to the
captives. So may Congress destroy slavery by abolishing 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 subject. 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 powerful 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 question, because the constitution, having given authority
to government to make war, has placed no limit what
68
I
II 
WAR POWER OF THE PRESIDENT.
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 civilized 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 enelmy'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 Dunmore, 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 convince 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 Cornwvallis's hands, that year, about thirty thousand slaves."
69 
CONSTITUTION OF THE UNITED STATES.
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 proclamations, to repair to their standard, promising them
freedom.* The slaves who went over to them were liberated, 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 preferred 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 Emperor of Russia, as arbitrator, who decided that indemnity 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 British 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 effect.t 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.
t "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 sess., 1841-2; vol. ii. p. 424.
70
i
I
.. 
WAR POWER OF THE PRESIDENT.
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 explained 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 leading statesmen of England and America have concurred
in the opinion that emancipation is a belligerent right.
St. Domingo, in 1793, contained more than five hundred thousand negroes, with many mulattoes and
whites, and was held as a province of France. Intestine commotions had raged for nearly three years between the whites and mulattoes, in which the negroes
had  remained  neutral.   The  Spaniards having effected an alliance with the slaves who had revolted
in 1791, invaded the island and occupied several important 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, see postea.
71
I 
CONSTITUTION OF THE UNITED STATES.
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 Convention 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 Inan,
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 of that government, 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
72 
WAR POWER OF THE PRESIDENT.
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 reestablish the slave trade and slavery in all the other islands 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
iHayti 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 exercised 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 government 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 Choix de Rapports- Opinions et Discours prononce's a la Tribune Nationale depuis 1789. Paris, 1821,
t. xiv. p. 425. - See Abolition d'Esclavage, (Colonies Francaises,)par Augus
tin Cochin. Paris, 1861. Vol. i. pp. 14, 15, &c.
10
73 
CONSTITUTION OF THE UNITED STATES.
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 authority 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 American 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 TIHE 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, recognized 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, captured 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 propositions are supported by the cases of General Jackson,
General Jessup, General Taylor, and General Gaines.
74 
WAR POWER OF THE PRESIDENT.
"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 remonstrated. 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 Congress, 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 administration sanctioned the contract, and Mr. Tyler's administration approved 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. Pacheco 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 became 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 opinion 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 slaves
75 
CONSTITUTION OF THE UNITED STATES.
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 approved 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 children 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
Representatives 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.
76 
WAR POWER OF THE PRESIDENT.
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 restricted 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 property, 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 peace 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 authority 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
77 
CONSTITUTION OF THE UNITED STATES.
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 interference 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 government 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 commanders; 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 transactions 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 violation of that engagement."
Mr. Adamis 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? The
issue of a servile war may be disastrous; it may become necessary for the
78 
WAR POWER OF THE PRESIDENT.
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 constitutional authority to interfere with the institution of slavery, in any
way, in the States of this confederacy? Sir, they must and will interfere 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 interference 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 Representatives, April 14th and 15th, 1842, on war with Great
Britain and Mexico:
"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 management of the States more peculiarly interested in it, just as long as
they can keep within their own bounds.  So far, I admit that Congress 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
79 
CONSTITUTION OF THE UNITED STATES.
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 institutions 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 statement. 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 o'
80 
WAR POWER OF THE PRESIDENT.
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 a       nd 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, l et this be proved -  I am open to conviction; but till that conviction 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 super
11
81 
CONSTITUTION OF THE UNITED STATES.
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, that by the law and usage of
modern civilized nations, confirmed by the judgment of
eminent statesmen, and by the former practice of this
government, that the President, as commander-in-chief,
has the authority, as- an act of war, to liberate the
slaves of the enemy, 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, C1. 1 and 7; Sect. 2, C1. 1;
Sect. 3, Cl1. 1; and in Sect. 1, C1. 1, and by necessary implication in Art. I.
Sect. 9, C1. 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, C1. 11, 14. Congress may effectually control 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 modifying 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
82 
WAR POWER OF THE PRESIDENT.
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 coipus 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-whackers,
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
mn,arshals, (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?
W hether 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 commanderin-chief, in time of war, to see that the laws of war are executed. In doing both
duties he is strictly obeying the constitution.
83 
CONSTITUTION OF THE UNITED STATES.
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 history, tyrannical governments have usually inflicted
their severest revenge upon traitors. The irresistible
power of law has been evoked to annihilate the criminal, 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 nmortuus."
PUNISHMENT BY ATTAINDER.
The refined cruelty which characterized the punishment of treason, according to the common law of Eng
84 
ATTAINDER.
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 disposal.*
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." t
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. Corn. 92.
t Lord Coke undertakes to justify the severity of this punishment by
examples drawn from Scripture.
85 
CONSTITUTION OF THE UNITED STATES.
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 tolerated in our constitution as one of the powers of government.
BILLS OF ATTAINDER ABOLISHED.
The constitution provides expressly,* that "no bill
of attainder, or ex post facto law, shall be passed by Congress; and that no State shall pass any bill of attainder,
ex post facto law, or law impairing the obligation of contracts." t  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
t Art. I. Sect. 10.
86
* Art. I. Sect. 9. 
ATTAINDER.
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 attainted 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 outlawry; 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 outlawry 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. t
BILLS OF PAINS AND PENALTIES.
It has been said that within the sense of the constitution, 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." I
* See Story on the Constitution, B. III. Sect. 678.
t Standf. PL. Co. 44, 122, 182.       t Fletcher v. Peck, 6 Cranch, R.
87 
CONSTITUTION OF THE UNITED STATES.
It is true that a bill of attainder may affect the life
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 acknowledged distinction between bills of attainder and
bills of pains and penalties; nothing which would authorize 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,* 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 authority 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
* Corn. Const. III. Ch. 32, Sect. 3.
88 
ATTAINDER.
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 invariable characteristics of bills of attainder, and of bills of
pains and penalties, that they were passed for the punishment 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 offenders.   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. HIence
in that respect they shut down the gate upon this sovereign power of government. They forbade any punishment, under any form, for crime not against some
standing law, which had been enacted before the time
of its commission. They prevented Congress from passing 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.
Bills 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
89 
CONSTITUTION OF THE UNITED STATES.
act of the State of New York, October 22, 1779, 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;t and these laws applied to persons who were dead at the timne of the proceedings. 
"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 certain 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 community." "The attainted person," says Sir Matthew
Hale, "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 treason, because many of the persons attainted had never
owed allegiance to the State. l
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. Cas. 236, decided in April, 1801.
t Jackson v. Sands, 2 Johns. 267.
t Jackson v. Stokes, 3 Johns. 15.         ~ Foster, 83, 84.
I Jackson v. Catlin, 2 Johns. R. 260.
90 
ATTAINDER.
in times or 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 regiment 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 characteristics 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 inflicted certain penalties, among
91
. 
CONSTITUITON OF THE UNITED STATES.
which were corruption of blood and forfeiture of estate.
The essence of attainder was in corruption of blood,
and without the corruption of blood no person was by
the English law attainted.
Unless a law of Congress shall contain these. four
characteristics -penalty of death, or outlawry, corruption of blood, and the legislative, not judicial condemnation - embodied in a law passed after the commission of the crime it seeks to punish, it is not a bill of
attainder under the sense of the constitution.
92
. 
PUNISHMiENT OF TREASON.
CHAPTER V.
RIGHT OF CONGRESS TO DECLARE BY STATUTE THE PUN  ISHMENT OF TREASON, AND ITrrs 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 forever 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
93 
CONSTITUTION OF THE UNITED STATES.
prevent Parliament from proclaiming any act of a subject to be treason, thereby subjecting him to all its terrible 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 vengeance 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, while avoiding responsibility. No
man's life or propertv was safe.  Tile 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., Parliament put an end to these judge-inade-treasons by declaring 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
94 
PUNISHMENT OF TREASON.
ments, and of the tendency of rival factions in republics 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 provisions 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 relating to
this subject, in order to a clear exposition of their
meaning, should be taken together as -parts of our
system.
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
attainder, 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 withheld, 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, his liberty abridged, nor his estate,
nor any part of it, seized for an act which had not, previously to the commission thereof, been declared by
some law as a crime, and the manner and extent of
punishment 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.
95: 
CONSTITUTION  OF THE UNITED STATES.
laws to which he is amenable in time of peace by reading the statutes. There can be no retrospective criininal 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 constitute 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 England, 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.t These acts must be proved either by
confession in open court, or by two witnesses to the
same act.: 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 11
And a person charged with treason against a State, and
fleeing from that State to another, was to be delivered
* Art. III. Sect. 3.
~ Art. I. Sect. 6.
96
t Ibid.
I! Art. II. Sect. 4.
t Ibid. 
PUNISHMENT OF TREASON.
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
during the life of the person attainted." t
CONGRESS HAVE UNLIMITED POWER TO DECLARE THE PUNISHMENT
OF TREASON.
By this article, the constitution has in express terms
given to Congress the power to declare the punishment
of treason; and the nature and extent of the punishment which they may declare are not limited. Congress
may impose the penalty of fine, or imprisonment, or
outlawry, or banishment, or forfeiture, or death, or of
death and forfeiture of property, personal and real.
Congress might have added to all these punishments
the more terrible penalty which followed, as a consequence of attainder of treason, under the law of England,
had the constitution not limited the effect and operation of that species of attainder.
A COMMON ERROR.
Some writers have supposed that this article in the
constitution, which qualifies the effect of an attainder
of treason, was a limnitation of the power of Congress to
declare the punishment of treason. This is an error. A
careful examination of the language used in the in
* Constitution, Art. IV. Sect. 6.
13
97
t Art. III. Sect. 3. 
CONSTITUTION OF THE UNITED STATES.
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 convicted, and when final judgment of guilty, and sentence
of death or outlawry, had been pronounced upon him,
the immediate and inseparable consequence, by coinmon 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 "altlinctus- stained, blackened, attainted."
CONSEQUENCES OF ATTAINDER.
Certain legal results followed from 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 anticipation 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,t but the law preserved
* 3 Inst. 213.
98
t Foster, 73. 
PUNISIIMENT OF TREASON.
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 resultingfros "'corruption of blood,"
which is the essence of attainder.* Blackstone says,t
"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, I because, whether the forfeiture enured to the benefit of the lord or of the king,
the effect was the same uption 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.        t 4 Corn. b. 388.
~ Co. Litt. p. 391.  Bla. Corn. Vol. II. p. 254
99
t See Co. Litt. 13.
l[ Co. Litt. p. 13.
ee ee ~  * 
!  c,<<<  
CONSTITUTION OF THE UNITED STATES.
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 disgrace and poverty. A punishment which might continue 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 abandonment of these odious penalties. The framers of
the constitution have deprived Congress of the power
of passing bills of attainder. They might have provided 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, personal 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 personal property, prior to that time, were valid, unless col
* See 4 Bla. Corn. p. 388.
-,..                  X
100 
PUNISHMENT OF TREASON.
lusive.* The estates thus forfeited were not mere
estates for life, but the whole interest of the felon, whatever 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 judgmenl and sentecee of the court t  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 infamous 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 corruption of blood and forfeiture of estates.~ To set this
subject in a clearer light, the learned reader will recollect that there were different kinds of attainder:
* See Stat. 13 Eliz. ch. 5; 2 B. & A. 258; 2 Hawkins's P. C. 454; 3
Ins. 232; 4 Bla. 387; Co. Litt. 391, b.
t See 2 Greenleaf's Cruise on Real Property, p. 145, and note; 2 Kent,
386; 1 Greenleafs 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 sect. of the Decl. of Rights. The constitutions of
10L 
CONSTITUTION OF THE UNITED STATES.
1. Attainders in a prcemunire; in which, "from the conviction, 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 prmmunire were not felonies, for
the latter are punishable only by common law, and
not by statute.t 2. Attainder by bill. 3. Attainders of
FELONY and treason; and the important distinction between attainders in treason and attainders in pra~munire is this: that in the former the forfeitures are consequences of the judgment, in the latter they are part
of the judgment and penalty. Blackstone } recognizes
fully this distinction. " I here omit the particular forfeitures created by the statutes of prmmunire  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
Kentucky, Delaware, and Pennsylvania declare that attainder of treason shall
not work forfeiture beyond the lifetime of the offender. In Alabama, 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 ease, 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 Greenleaf's
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.                y                 4 Corn. p.386.
102 
PUNISHMENT OF TREASON.
same opinion.*   And statutes of premunire and attainders 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
of Rochester;t in the latter the pains and penalties
are all expressly declared by statute, and not left as
consequences of judgment. That clause in the constitution 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 su'ch 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 FEngland, unless, 1. The judgment of death or outlawry has been pronounced against the traitor.   2.
Where the crime was a felony, and punishable according to common law; ~ and, 3. Where the attainder was
a consequence of the judgment, and not part of the
judgment and penalty. I] Congress may pass a law
condemning every traitor to death, and to the consequential 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 attaintiny the criminal of
* Co. Litt. 391, b.
t 4 Bla. 387.
11 Ib.; Co. Litt. 391, b.; 4 Bla. 381
103
t Stat. 9 Geo. I. ch. 17.
~ 4 Bla. 387. 
CONSTITUTION OF THE UNITED STATES.
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, defining crimes and all their penalties. No consequential
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 forfeiture 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 common 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 prmmunire, 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 punishment 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
104 
PUNISHMENT OF TREASON.
the authors of the constitution meant to say that Congress should pass no law punishing treason by attainder,
or by its consequences, viz., forfeiture of estate, or corruption 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 declare the punishment of treason, but shall not impose
the penalties of attainder upon the offender," they
said, " Congress shall have power to declare the punishment 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 uipon 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 convict 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.
The punishment of treason, by the statute of the
United States of April 30, 1790, is death, and nothing
more. Can any case be found, since the statute was
enacted, in which a party convicted and adjudged guilty
14
105
0 
CONSTITUTION OF THE UNITED STATES.
of treason and sentenced to death, has been held to be
"attainted" of treason, so that the attainder has worked
forfeiture of any of his estate, real or personal? Would
not any lawyer feel astonishment 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,
notwithstanding 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 by the English
doctrine of forfeitures worked by attainders, by operation of law, the criminal might be stripped of property
worth thousands of dollars, over and above the penalty
prescribed by statute?
TRUE MEANING OF ART. III. SECT. III. CL. II.
The constitution means that if traitors shall be attainted, unlimited forfeitures and corruption of blood
shall not be worked by attainders. It means to leave
untrammelled the power of Congress to cause traitors
to be attainted or otherwise; but if attainted Congress
must provide by statute for the attainder; and the
constitution settles how far that attainder shall operate
constitutionally; and when the legislature has awarded
one punishmnent for treason, the law shall not evoke
the doctrine of forfeitures worked by attainder, and
thus, by technical implication, add punishments not specifically 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,
106 
PUNISHIIMENT OF TREASON.
except during the life of the offender. The third article 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 forfeitures 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?
No one doubts the power of Congress to make treason 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 property 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 opinion, more sacred than life? Would all the property
of rebels forfeited to the treasury of the country repair
the injury of civil war?
107 
CONSTITUTION OF THE UNITED STATES.
FORFEITURES NOT LIMITED TO LIFE ESTATES.
Could the lawyers who drafted the constitution have
intended to limit the pecuniary punishment of forfeiture to a life interest in personal estate, when every
lawyer in the convention must have known than 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 enjoyment of personal property? If so, why did they not
say so? If they meant to prevent Congress from passing 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 constitution 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
estate, except during the life of the offender, then
the framers of that instrument have effectually protected 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 citizens. If so,
they have authorized far more severity against many
other felons than against them. If such were the purpose 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 between sentence of death and execution."   Instead
108 
PUNISHMENT OF TREASON.
of such a provision, they gave full power to punish
treason, including fines, absolute forfeitures, death, and
attainder, only limiting the technical eflect of the lastmentioned penalty, if that form of punishment should
be adopted; and Congress has the power, under the
constitution, to declare as the penalty for treason the
forfeiture of all the real and personal estate of the
offender, and is not limited, as has been supposed by
some, to a forfeiture of real estate for life only.
109
II 
CONSTITUTION OF THE UNITED STATES.
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 whereof 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,yfith intent to influence 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 dollars, 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, are
these: -
110 
STATUTES AGAINST TREASON.
Section 1. Persons committing  treason shall suffer
one of two punishments: 1. Either death, and freedom
to his slaves; or, 2. Imprisonment not less than five
years, fine not less than ten thousand dollars, and freedom 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 aiding 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 sections; 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. Rebel army and navy officers; 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, proviaded persons 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. Persons who, owning property in loyal States, in the territories, or in the District of Columbia, shall hereafter
assist, aid, or comfort such 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.
ill 
CONSTITUTION OF THE UNITED STATES.
ect. 6. Any persons within the United States, not
above named, who are engaged in armed rebellion, or
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 remn shall be instituted in the name of the United
States, in any District Court thereof, or in any territorial court, or in the United States District Court for
the District of Columbia, within which district or territory the property, or any part of it, may be found, or
into which, if movable, it may first be brought. Proceedings are to conform to those in admiralty or revenue cases. Condemnation shall be as of enemy's property, 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 government; 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
112 
STATUTES AGAINST TREASON.
person claiming him, nor restrained of his liberty, except
for crime, or offence against law, unless the claimant
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 surrender 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 proclamation to pardon any persons engaged in the rebellion,
on such terms as he deems expedient.
Sect. 14. Courts of the United States have full powers to institute proceedings, make orders, &c., to carry
the foregoing measures into effect.
A resolution, explanatory of the above act, declares
that the statute punishes no act done prior to its passage; and no judge or member of a State legislature,
who has not taken the oath of allegiance to support
the constitution of the Confederate States; nor shall
any punishment or proceedings 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 persons 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.
113
15 
CONSTITUTION OF THE UNITED STATES.
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 punishable as such. It provides for no attainlder 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 work forfeiture, as above stated.  Thus this statute
limits the constructive penalties which result from forfeitures 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.
114 
THE POWER TO PUNISH REBELS.
CHAPTER VII.
THE RIGHT OF CONGRESS TO DECLARE THE PUNISHMENT
OF CRIMES AGAINST THE UNITED STATES OTHIER 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 citizens 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; neglecting 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;
granting or taking letters of marque; conspiracy
115 
CONSTITUTION OF THE UNITED STATES.
against the lawful government; holding public meetings to incite the people to the comnmission 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 authority; 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 levving 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 overthrowing 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 fountain 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 preliminary 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,
depriving the criminal of the means of doing harm,
116 
THE POWER TO PUNISH REBELS.
will disgrace him in the community he has dishonored.
Imprisonment, fines, forfeitures, confiscation, are the
proper punishments for such hardened criminals, because 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 erroneously 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
* See Chap. V. page 93.
117 
CONSTITUTION OF THE UNITED STATES.
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 armns
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 proclanmation, and neglect or refuse to return to their allegiance;
the mere non-performance of the requisition of this act
is, not levyig 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 warning 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 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 punishment or proceedings, under said act, be so construed as to work a
118 
THE POWER TO PUNISH REBELS.
'forfeiture' of the real estate of the offender 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 iniprisonment, 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 mnay 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 "-proceedings" under said act shall be so construed
as to work a forfeiture, &c. Then the question will arise
whether the "c 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 punished 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 confiscated, without having been tried for or accused of
119 
CONSTITUTION OF THE UNITED STATES.
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
worked by allainzder. Another set of laws were confiscation acts against tory refuyees who had committed no
treason. These distinctions were familiar to those who
formed the constitution, and they used language relating 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 constitution, it is much to be regretted that the joint resolution 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 governmnent, viz., their real estate.
* See Willis v. Martin, 2 Bay 20.  See also Hinzleman v. Clarke and
Al., Coxe N. J., 1795.                                                 i,
120
i 
THE POWER TO PUNISH REBELS.
THE SIXTH SECTION OF THE CONFISCATION ACT OF 1862 IS NOT
WITHIN THE PROHIBITION OF THE CONSTITUTION, ARTICLE III.
SECTION III.
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" aiding 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 nothing else, than treason. This is a mistake. The constitution 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?   The crime committed by a few individuals by merely levyily 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
* To levy war is to raise or begin war; to take arms for attack; to
attack.- Webster's Quarto Dict.
To levy is, 1. To raise, as a siege. 2. To raise or collect; to gather.
3. To raise, applied to war. -Worcester's Quarto Dict.
16
121
z 
CONSTITUTION OF THE UNITED STATES.
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 punishment 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 conspirator 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 commit 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 murder 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-mnentioned crimes could
* See Chap. V. p. 93.
122 
THE POWER TO PUNISH REBELS.
be punished, unless the criminal were convicted of wilful 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 leniency, 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 legislated 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 murderers, 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.
123 
CONSTITUTION OF THE UNITED STATES.
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 rebellion, and for the seizure and confiscation of rebel property, 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 punishment of death for treason; section 2, which imposes
fines and penalties; section 3, which adds disqualification 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 petty jury, impanelled
according to law, and by courts having jurisdiction of
the person and of the alleged offence. A brief examination 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
124 
THE POWER TO PUNISH REBELS.
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 otherwise 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 committed.
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 inconvenience, 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. t
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.
125 
CONSTITUTION OF THE UNITED STATES.
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 favorable 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 RIGHTS AND SECESSION DOCTRINES IN THE JURY ROOM.
The jury are by law judges of the law and the fact,
according to the opinion of many eminent lawyers
and judges.   Whether this be so or not, their verdict, being upon the law and the fact, in a criminal
case, they become in effect judges of law and fact.
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 loyalty to the United States; or that the States had, and
have, a lawful right to secede from the Union.  Whatever the opinions of the judge presiding in the United
States court might be on these questions, 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 decide the issue, according to the conscientious judgment
of the jurymen upon the facts and the law, would require them to find a verdict against the United States.
126 
THE POWER TO PUNISH REBELS.
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 attendance 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 convict one of their own number, when either of the jurymen 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 conviction, even if laws against treason, and those which confiscate 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 treason, but not sooner.
LAWS ARE MOST EFFECTIVE WHICH REQUIRE NO REBEL TO AD                    MINISTER THEM.
Those sections of the act of 1862, empowering government 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
* Statute of April 30, 1790, Sect. 29.
127 
CONSTITUTION OF THE UNITED STATES.
make it available, and to authorize proceedings in rem,
conformably to proceedings in admiralty or revenue
cases, are of a different and far more effective character. Those clauses in the act which allow of the
employment in the service of the United States of
colored persons, so far as they mnay 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 punished 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 committing 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 regular proceedings in courts, all the criminals in the seceded States will escape by the operation of the statutes 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 start
utes are modified, those who have caused and maintained the rebellion will escape from punishment.
128 
SLAVERY.
CHAPTER VIII.
INTERFERENCE OF GOVERNMENT WITH THE DOMESTIC
AFFAIRS OF THE STATES.
PARTY PLATFORMS CANNOT ALTER THIE CONSTITUTION.
POLITICAL parties, in times of peace, have often declared that they do not intend to interfere with slavery
in the States. President Buchanan denied that government had any power to coerce the seceded States into
submission to the laws of the country. When President 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 domestic affairs. Those who have involved this country in
bloody war, all sympathizers in their treason, and others
who oppose the present administration, unite in denying the right of the President or of Congress to interfere with slavery, even if such interference is the only
means by which the Union can be saved from destruction.  No constitututional 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
enemy's slaves has been the subject of a preceding
chapter. Congress having power to pass all laws
"necessary and proper to provide for the public welfare and common defence of the country," as has been
explained in Chapters I. and II., it is the sole judge of
what legislation the public welfare and defence require;
17
i
129 
CONSTITUTION OF THE UNITED STATES.
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 constitution, 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
rght to interfere in any way with slavery   Their assumption is, that the States in which slaves are held are
alone competent to pass any law relating to an institution 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,) itwill be seen,
that if slaves are property, property can be interfered with
under the constitution; if slavery is a domestic institution,
as Mo3rmonism or apprenticeship is, each of them can lawfully be interfered with and annulled. But slavery has
a double aspect.  So long as it remains in truth "domestic," 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
130 
SLAVERY.
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  insignificance as a household affair, becomes a vast, an overwhelming 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 bellyerent power, acting against the "public
welfare and common  defence."  No  institution  continues to be simply " domestic" after it has become the
effective means of aiding and supporting a public
enemy.
When  an "institution" compels three millions of
subjcts 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 interfered 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. IV. Sect. 2, required that fugitive slaves should be
delivered up, and the fugitive slave laws were passed to
carry this clause into effect.
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 exceeding ten dollars per head.
Art. V.  provided that no amendment of the constitu                                               ~nnnn.nnn
.
131 
CONSTITUTION OF THE UNITED STATES.
tion should be made, prior to 1808, affecting the preceding clause.
Art. I. Sect. 2 provides that three fifths of all slaves
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 Uniited 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 IN THE STATES BY CUT      TING OFF 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
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
.:: ".    i 
132 
SLAVERY.
authority of the United States, the government are
bound to interfere with slavery, as much as in an insurrection of their masters, which may also require a similar
interference.  The President, with the advice and consent 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 sustainin
slavery that this government could claim indemnity for
slaves as property.  The treaty-making power may abolish
slavery in the whole country, as, by Art. VI., the constitution, 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, ipsofacto, become the
supreme law of the land, and there is no power whatever 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 conquest, 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
government to indemnify those who may suffer loss of
property by the cession." *
* 1 Kent Cornm. 178.
133 
CONSTITUTION OF THE UNITED STATES.
The State of New York had granted to her own citizens 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 independent 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 intervention, 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 conquerors 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.*  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, has
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
* Luther v. Borden, 7 How. 42.
134 
SLAVERY.
every State in the Union a republican form of government, and shall protect each of them against invasion, and, on the application of the legislature, 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 government, Congress must necessarily decide what government is established, before it can determine whether it is republican or not. And
when senators and representatives of a State are admitted into the councils 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-mentioned 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 "domestic 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 Congress 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 imimediate 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 proposed 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.
135 
CONSTITUTION OF THE UNITED STATES.
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 constitute no reason why such property may not be interfered 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 technical law, then the contemporary law writers must be
consulted. The question as to the meaning of the constitution 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 authority, and remains so until their views are changed
and new ones announced; and as often as the Supreme
Court change theirjudgments, so often the authoritative
136
it 
SLAVERY.
interpretation of the constitution changes.   The Su preme Court have the right to alter their opinions every
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 interpretation 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 constitutional right, as matter of equity, comity, or public pol                18
137
i 
CONSTITUTION OF TIlE UNITED STATES.
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 Republican 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 government, by a fair and liberal interpretation of all the provisions of the constitution.
Rising above the political platforms, the claims and
disclaimers of Federalists, Democrats, Whigs, Republicans, and all other parties, and looking upon the constitution as designed to give the governmenlt 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 government 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 several preceding chapters other branches of this subject have been
discussed.
138 
INDEX.
INTRODUCTION................................................
THE CONSTITUTION- purpose for which it was founded.............
"    how violated...............................
"    liberal and strict constructioni sts.............
"    powers we should expect to find in it..........
"    contains powers to make laws for peace and laws
for war...............................
result, if it denies the power to save the Union.
some leading questions under it stated.........
"    authoritative construction of.................
WAR -distinction between the. objects and the means of............
SLAVERY - its unexpected growth...............................
"  the "privileged class"................................
" abolished by European governments...................
"  in 1862, not slavery in 1788...........................
"  are slaveholders arbiters of peace and war..............
though hated, why it was tolerated.....................
recognition of, not inconsistent with the perpetuity of the
republic........................................
"  considered as belonging to the domestic affairs of States;
can government interfere with it?...................
constitutional rights over, not affected by party platforms..
"  domestic institutions.................................
"  may be interfered with by Congress, for its protection.....
"  Congress may interfere against it......................
may be interfered with by operation of militia laws.......
"  may be interfered with by laws regulating commerce be               tween the States................................
by the power to make treaties.........................
"     by the power to suppress insurrection...................
right to deal with it not to be sought in party platforms...
(13'9)
GE
3
3
3
. 10
12
13
13
15
136
9
4
4
5
6
7
8
9
129
129
130
131
132
132
132
133
135
137 
INDEX,
SLAVERY -may be interfered with (so far as taking away slaves may
be said to interfere with it) under the power to appro               priate private property to public use, as shown in
Chap. I, p...................................... 17
"     also by the exercise of the war powers of Congress, as
shown in Chap. II. p.............................   34
also by the war power of the President, as shown in Chap.
III. p............................ 66
"  also by the power to punish treason, as shown in Chap. V.p. 93
"  also by the power to punish rebels, as shown in Chap. VII. p. 115
CHAPTER I.
The constitutional right of the government to appropriate private prop    erty to public use, either in time of peace or in time of war...... 17
The right is founded in reason...................................    17
Indemnity is required.......................................... 18
"Public use," what it is.......................................19
All kinds of property, including slaves, may be so appropriated......    20
The United States may require all subjects to do military duty....... 22
Will slaveholders be entitled to indemnity if their slaves are used for
military purposes?..........................................    23
Indemnity to Mormons........................................ 24
Effect of naturalization and militia laws on the question of indemnity
to slave masters.......................................... 24
Does the war power of seizure supersede the civil power of Congress
to appropriate private property to public use?.................  26
References to the constitution, showing the war powers of Congress...  27
Slave property subject to the same liability as other property to be ap    propriated for war purposes................................. 28
Importance and danger of this power............................. 29
Powers of the President not in conflict with those of Congress....... 29
Congress has power under the constitution to abolish slavery.......... 30
CHAPTER II.
War powers of Congress........................................
Rules of interpretation......................................
Are the United States at war?...................................
Declaration of war not necessary on the part of the government to give
it full belligerent powers...................................
140
34
34
38
38 
INDEX.
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
Title by capture................................................ 48
Constitutional guarantees of civil rights to citizens in time of peace not
applicable thereto in time of war............................ 49
True application of these constitutional guarantees.................  50
Whether belligerents shall be allowed civil rights under the constitu    tion depends upon the policy of the government................      51
The constitution allows confiscation............................... 52
Military government under martial law............................ 54
Civil rights changed by martial law............................... 56
A severe rule of belligerent law.................................. 57
Civil rights of loyal citizens in loyal districts are modified by the exist    ence of war............................................... 59
Belligerent right to confiscate enemy's real estate...................61
CHAPTER' III.
War power of the President to emancipate slaves...................6
Why the power exists...........................................
The President the sole judge how and when to use it.................
Powers of the President not inconsistent with powers of Congress to
emancipate slaves..........................................
Is liberation of enemy's slaves a belligerent right P..................
The law of nations sanctions emancipation of enemy's slaves.........
Authority and usage confirm the right.............................
How far the government of the United States, under former adminis    trations, have sanctioned the belligerent right of emancipating
slaves of loyal and of disloyal citizens..........................
War powers of the President- in general.........................
CHAPTER IV.
BILLS OF ATTAINDER.......................................... 84
Bills of attainder in England..................................... 84
66
66
67
68
68
69
74
74
82 
I4      INDEX.
Punishment by attainder........................................
Attainders prohibited as inconsistent with constitutional liberty.......
Bills of attainder abolished......................................
What is a bill of attainder.......................................
Bills of pains and penalties.....................................
Ex postfacto laws prohibited- bills of pains and penalties as well as
attainders, unconstitutional..................................
Attainders in the colonies and States.................................
Bills of attainder, how recognized................................
CHAPTER V.
TREASON....................................................   93
Right of Congress to declare by statute the punishment of treason, and
its constitutional limitations.................................93
Ancient English doctrine of constructive treason................... 93
Power of Congress to define and punish treason limited.............. 94
Attainder and ex po     st facto laws................................. 95
Treason defined by statute......................................96
Congress have unlimited power to declare the punishment of treason.  97
Consequences of attainder....................................... 98
Corruption of blood........................................... 99
Savage cruelty of English law................................... 99
Forfeitures................................................... 100
Characteristics of attainders of treason............................ 103
Technical language, how construed............................... 104
True meaning of constitution, Art. III. Sect. 3, Cl. 2............... 106
If Congress can impose fines, why not forfeitures?.................. 107
Forfeitures for treason not limited to life estates....................  108
CHAPTER VI.
Treason - statutes against it - how administered.................. 110
Confiscation act of 1862 not a bill of attainder, not an ex post facto
law..................................................... 114
HAPTER VII.
The right of Congress to declare the punishment of crimes against the
United States other than treason.............................115
142
84
85
86
86
87
88
89
91 
INDEX.
New crimes require new penal laws............................... 115
Confiscation act of 1862......................................... 111
All attempts to overturn government should be punished............. 116
Act of 1862, Sect. 6, does not purport to punish treason.............    117
Legal construction of the act of 1862............................ 118
The severity of different punishments declared...................... 120
The sixth section of the confiscation act of 1862 is not within the pro    hibition of the constitution, Art. III. Sect. 1, Cl. 3.............. 121
Treason and confiscation laws in 1862: their practical operation....... 124
Legal rights of persons accused of treason........................ 124
Will secessionists indict and convict each other?.................... 125
How the juries are selected, and their powers......................  125
State rights and secession doctrines in the jury room................ 126
Laws are most effective which require no rebel to administer them..... 127
Statutes of limitation will protect traitors.......................... 128
CHAPTER VIII.
Party platforms cannot alter the constitution....................... 129
Domestic institutions........................................... 130
What they are, and when they cease to be so....................... 130
SLAVERY   Congress may interfere to protect it...................131
"    may interfere against it by militia laws.........132
"    may interfere with slavery in the States by cutting
off the supply of slaves to such States..... 132
4       " "  may interfere by laws preventing commerce in
slaves between the States.............. 132
"            "    may interfere by treaty-making power.........   132
" question as to indemnity.............................133
congress may interfere for suppression of rebellion.....135
"          "    may interfere to secure domestic tranquillity....  136
CONSTITUTION- authoritative construction of.................... 136
opinions of the Supreme Court upon..............137
I "    of the framers of the constitution.........137
gives all powers necessary to public welfare and com                    mon defence............................... 138
143 
4