
 
 < 
 
 
 
 C 
 
 CX r CL C C v c 
 
 exec; <,: c-cc 
 
 " ' <r < c 
 
 tc^r ^ V t . 
 
 ccc <:. <*<;<: 
 c:c-c:<c c <: c < 
 
 f , (_ 
 
 < <- < c 
 
 < < < c 
 
 W, llu
 
 tfy 
 
 LINCOLN ROOM 
 
 UNIVERSITY OF ILLINOIS 
 LIBRARY 
 
 MEMORIAL 
 
 the Class of 1901 

 
 (PIS'
 
 53 
 
 THE 
 
 War Powers of the President, 
 
 AND THE 
 
 LEGISLATIVE POWERS OF CONGRESS 
 
 IN RELATION TO 
 
 irni, Crason an& J 
 
 BY WILLIAM WHITING, 
 
 d. c ftf ^- ; J '-'f}wJL -*~4*n- ' 
 
 SIXTH EDITION, 
 PUBLISHED FOR THE EMANCIPATION LEAGUE. 
 
 BOSTON. , 
 
 JOHN L. SHOKEY, 
 
 13 WASHINGTON STREET. 
 
 1863.
 
 NOTICE. 
 
 THIS edition of the War Powers is published by the Emancipation League 
 fjr gratuitous distribution, under the impression that a more extended cir- 
 culation of the pamphlet might be productive of great good. 
 
 For the free use of the plates the gentlemen composing the League de- 
 sire to express their gratitude to Mr. WHITING ; and they would thank him, 
 in the name of the Country, for that patriotic devotion to the cause of hu- 
 man rights, and of American liberty, which has stimulated him to divert 
 from active and lucrative professional pursuits the time and toil evident in 
 the preparation of a work of so much legal research and reflection as that 
 hers given to the public. Let it be passed from hand to hand like a torch, 
 to illumine the dark places of the present crisis in our affairs. 
 
 Entered, according to Act of Congress, in the year 18f>2, by 
 
 WILLIAM WHITING, 
 In the Clerk's Office of tha District Court of the District of Massachusetts. 
 
 PRINTED BY 
 GEORGE C. RAND Si AVERT.
 
 PREFACE TO THE SECOND EDITION. 
 
 WAR POWERS OF THE PRESIDENT, AND LEGISLATIVE POW- 
 ERS OF CONGRESS, IN RELATION TO REBELLION, TREASON, 
 AND SLAVERY. 
 
 THE following pages were not originally intended for publica- 
 tion, but were written by the author for his private use. He has 
 printed them at the request of a few friends, to whom the opinions 
 therein expressed had been communicated ; and he is not unaware 
 of sevei-al errors of the press, and of some inaccuracies of expres- 
 sion, which, in one or two instances, at least, modify the sense of 
 the statements intended to be made. The work having been 
 printed, such errors can conveniently be corrected only in 
 the "errata" This publication was principally written in the 
 spring of 1862, the chapter on the operation of the Confiscation 
 Act of July 17th, 1862, having been subsequently added. Since 
 that time President Lincoln has issued his Emancipation Procla- 
 mation, and several military orders, operating in the Free States, 
 under which questions have arisen of the gravest importance. 
 The views of the author on these subjects have been expressed 
 in several recent public addresses ; and, if circumstances permit, 
 these subjects may be discussed in a future addition to this 
 pamphlet. 
 
 To prevent misunderstanding, the learned reader is requested ' 
 to observe the distinction between emancipating or confiscating 
 slaves, and abolishing the laws which sustain slavery in the Slave 
 
 (1)
 
 PREFACE. 
 
 States. The former merely takes away slaves from the possession 
 and control of their masters ; the latter deprives the inhabitants 
 of those States of the lawful right of obtaining, by purchase or 
 otherwise, or of holding slaves. Emancipation or confiscation 
 operates only upon the slaves personally; but a law abolishing 
 the right to hold slaves, in the Slave States, operates on all citizens 
 residing there, and effects a change of local law. If all the horses 
 now in Massachusetts were to be confiscated, or appropriated by 
 government to public use, though this proceeding would change 
 the legal title to these horses, it would not alter the laws of Mas- 
 sachusetts as to personal property; nor would it deprire our 
 citizens of the legal right to purchase and use other horses. 
 
 The acts for confiscation or emancipation of enemy's slaves, 
 and the President's Proclamation of the 22d of September, do 
 not abolish slavery as a legal institution in the States ; they act 
 upon persons held as slaves ; they alter no local laws in any of 
 the States ; they do not purport to render slavery unlawful ; they 
 merely seek to remove slaves from the control of rebel masters. 
 If slavery shall cease by reason of the legal emancipation of 
 slaves, it will be because slaves are removed; nevertheless, the 
 laws that sanction slavery may remain in fall force. The death 
 of all the negroes on a plantation would result in a total loss to 
 the owner of so much "property;" but that loss would not pre- 
 vent the owner from buying other negroes, and holding them by 
 slave laws. Death does not interfere with the local law of prop- 
 erty. Emancipation and confiscation, in like manner, do not 
 necessarily interfere with local law establishing slavery. 
 
 The right to liberate slaves, or to remove the condition or status 
 of slavery, as it applies to all slaves living at any one time, or the 
 right to abolish slavery in the sense of liberating all existing 
 slaves, is widely different and distinct from the right of repealing 
 or annulling the laws of States which sanction the holding of 
 slaves. State slave laws may or may not be beyond the reach 
 of the legislative powers of Congress ; but if they are, that fact
 
 PREFACE. Ill 
 
 would not determine the question as to the right to emancipate, 
 liberate, or to change the relation to their masters of slaves now 
 living / nor the question as to the right of abolishing slavery, in 
 the sense in which this expression is used when it signifies 
 the liberation of persons now held as slaves, from the operation 
 of slave laws ; while these laws are still left to act on other per- 
 sons who may be hereafter reduced to slavery under them. 
 
 It is not denied that the powers given to the various depart- 
 ments of government are in general limited and defined ; nor is 
 it to be forgotten that "the powers not delegated to the United 
 States by the constitution, nor prohibited by it to the States, are 
 reserved to the States respectively, or to the people." (Const. 
 Amendment, Art. X.) But the powers claimed for the President 
 and for Congress, in this essay, are believed to be delegated to 
 them respectively under the constitution, expressly or by neces- 
 sary implication. 
 
 The learned reader will also notice, that the positions taken in 
 this pamphlet do not depend upon the adoption of the most liberal 
 construction of the constitution, Art. I. Sect. 8, Cl. l,which is deemed 
 by eminent statesmen to contain a distinct, substantive power to 
 pass all laws which Congress shall judge expedient " to provide for 
 the common defence and general welfare" This construction was 
 held to be the true one by many of the original framers of the 
 constitution and their associates ; among them was George Mason 
 of Virginia, who opposed the adoption of the constitution in the 
 Virginia convention, because, among other reasons, he considered 
 that the true construction. (See Elliott's Debates, vol. ii. 327, 328.) 
 Thomas Jefferson says, (Jefferson's Correspondence, vol. iv. p. 306,) 
 that this doctrine was maintained by the Federalists as a party, 
 while the opposite doctrine was maintained by the Republicans 
 as a party. Yet it is true that several Federalists did not adopt 
 that view, but Washington, Adams, Jefferson, Madison, Monroe, 
 Hamilton, Mason, and others, were quite at variance as to the 
 true interpretation of that much contested clause. Southern
 
 IV PREFACE. 
 
 statesmen, drifting towards the state-rights doctrines, as time 
 passed on, have generally adopted the strictest construction of 
 the language of that clause ; but it has not yet been authorita- 
 tively construed by the Supreme Court. Whatever may be the 
 extent or limitation of the power conveyed in this section, it is 
 admitted by all that it contains the power of imposing taxes to 
 an unlimited amount, and the right to appropriate the money so 
 obtained to " the common defence and public welfare." Thus it 
 is obvious, that the right to appropriate private property to public 
 use, and to provide compensation therefor, as stated in Chap- 
 ter I. ; the power of Congress to confiscate enemy's property as 
 a belligerent right ; the power of the President, as commander-in- 
 chief, as an act of war, to emancipate slaves ; or the power of 
 Congress to pass laws to aid the President, in executing his mili- 
 tary duties, by abolishing slavery, or emancipating slaves, under 
 Art. I. Sect. 8, Cl. 18, as war measures, essential to save the 
 country from destruction, do not depend upon the construction 
 given to the disputed clause above cited. 
 
 It will also be observed, that a distinction is pointed out in 
 these pages between the legislative powers of Congress, in time 
 of peace, and in time of war. Whenever the words " the common 
 defence " are used, they are intended to refer to a time, not of con- 
 structive war, but of actual open hostility, which requires the 
 nation to exert its naval and military powers in self-defence, to 
 save the government and the country from destruction. 
 
 The Introduction, and Chapters I. and VIII., shoiild be read in 
 connection, as they relate to the same subject; and the reader will 
 bear in mind that, in treating of the powers of Congress in the 
 first chapter, it is not asserted that Congress have, without any 
 public necessity jiistifying it, the right to appropriate private prop- 
 erty of any kind to public use. There must always be a justifia- 
 ble cause for the exercise of every delegated power of legislation. 
 
 It is not maintained in these pages that Congress, in time of 
 peace, has the right to abolish slavery in the States, by passing
 
 PREFACE. V 
 
 laws rendering the holding of any slaves therein illegal, so long as 
 slavery is merely a household or family, or domestic institution 
 and so long as its existence and operation are confined to the 
 States where it is> found, and concern exclusively the domestic 
 affairs of the Slav'e States ; and so long as it does not conflict 
 with or affect the rights, interests, duties, or obligations which 
 appertain to the affairs of the nation, nor impede the execution 
 of the laws and constitution of the United States, nor con- 
 flict with the rights of citizens under them. Yet cases might 
 arise in which, in time of peace, the abolishment of slavery 
 might be necessary, and therefore would be lawful, in order to 
 enable Congress to cany into effect some of the express pro- 
 visions of the constitution, as for example, that contained in Art. 
 IV. Sect. 4, 01. 1, in which the United States guarantee to every 
 State in this Union a republican form of government ; or that 
 contained in Art. IV. Sect. 2, 01. 1, which provides that citizens 
 of each State shall be entitled to all the privileges and immuni- 
 ties of citizens in the several States. 
 
 It is asserted in this essay that, when the institution of slavery 
 no longer concerns only the household or family, and no longer 
 continues to be a matter exclusively appertaining to the domestic 
 affairs of the State in which it exists ; when it becomes a potent, 
 operative, and efficient instrument for carrying on war against the 
 Union, and an important aid to the public enemy; when it 
 opposes the national military powers now involved in a gigan- 
 tic rebellion ; when slavery has been developed into -a vast, 
 an overwhelming war power, which is actually used by armed 
 traitors for the overthrow of government and of the constitu- 
 tion ; when it has become the origin of civil war, and the 
 means by which hostilities are maintained in the deadly struggle 
 of the Union for its own existence; when a local institution 
 is perverted so as to compel three millions of loyal colored sub- 
 jects to become belligerent traitors because they are held as 
 slaves of disloyal masters, then indeed slavery has become an
 
 VI PREFACE. 
 
 affair most deeply affecting the national welfare and common 
 defence, and has subjected itself to the severest enforcement of 
 those legislative and military powers, to which alone, under 
 the constitution, the people must look t<j save themselves 
 from ruin. In the last extremity of our contest, the ques- 
 tion must be decided whether slavery shall be rooted up 
 and extirpated, or our beloved country be torn asunder and 
 given up to our conquerors, our Union destroyed, and our people 
 dishonored? Are any rights of property, or any claims, which 
 one person can assume to have over another, by whatever local 
 law they may be sanctioned, to be held, by any just construction of 
 the constitution, as superior to the nation's right of self-defence ? 
 And can the local usage or law of any section of this country 
 override and break down the obligation of the people to maintain 
 and perpetuate their own government? Slavery is no longer 
 local or domestic after it has become an engine of war. The 
 country demands, at the hands of Congress and of the President, 
 the exercise of every power they can lawfully put forth for its 
 destruction, not as an object of the war, but as a means of termi- 
 nating the rebellion, if by destroying slavery the republic may be 
 saved. These considerations and others have led the author to 
 the conclusion stated in the following pages, "that Congress 
 has the right to abolish slavery, when in time of war its abolish- 
 ment is necessary to aid the commander-in-chief in maintaining 
 the 'common defence?" -- -
 
 
 OF THE 
 
 UNITED STATES OF AMERICA. 
 
 INTRODUCTION. 
 
 THE PUEPOSE FOR WHICH 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, estab- 
 lish justice, insure domestic tranquillity, provide for the 
 common 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 Kepublic, an aristocratic 
 government founded upon Slavery.
 
 4 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 u privi- 
 leged 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 num- 
 bers, 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 endan- 
 gered by the temporary toleration of this " institution," 
 although it was inconsistent with the principles which 
 that instrument embodied, and revolting to the senti- 
 ments cherished by a people who had issued to the 
 world the Declaration of Independence, and had fought 
 through the revolutionary war to vindicate and main- 
 tain the rights of man. 
 
 UNEXPECTED GROWTH OF SLAVERY. 
 
 The system of involuntary servitude, which had 
 received, as it merited, the general condemnation of
 
 INTRODUCTION. 5 
 
 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 conti- 
 nent, when the spinning jenny of Crompton, the loom 
 of Wyatt, the cotton gin of Whitney, and the manu- 
 facturing 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 rekin- 
 dled, 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 claim 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 pecu-
 
 6 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 anni- 
 versary of the birth of the Queen Dowager by abol- 
 ishing slavery in his dependencies, on the 28th of 
 July, 1847. 
 
 In 1862, Russiahas 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 ad- 
 ministrations, have practically repudiated and abandoned 
 it. Europe, embarrassed by conservative and monar- 
 chical institutions, adopts the preamble to that instru- 
 ment, 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 rebel- 
 lion to break up the Union, and to abolish republican de- 
 mocracy. 
 
 SLAVEKT IN 1802 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, the privileged class, cannot, or will not, conduct them- 
 selves so as to render it longer possible, by peaceable 
 association with them, to preserve " the Union," to 
 * establish justice," u 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 
 
 * To the above examples we must add that of the Dutch West Indies, 
 where the law emancipating the slaves goes into operation in July, 1863.
 
 INTRODUCTION. 7 
 
 slave states for the last thirty years ; their hatred of the 
 Union, and determination to destroy it; their abhor- 
 rence 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 consti- 
 tutional 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 AXD 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 ?
 
 8 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 perpe- 
 tuity of slavery, whether the country is saved or lost, 
 it is time that the friends of the government should 
 awake, and realize their awful 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 inter- 
 ests 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 con- 
 stitution, and the laws, like Laocoon and his sons, are 
 to be strangled and crushed, in order that the unre- 
 lenting 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, under the constitution, 
 interpreted by common 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 
 equal distribution of direct taxes, the framers of the con-
 
 INTRODUCTION. 9 
 
 jr 
 
 stitution tolerated, while they condemned slavery; but 
 they tolerated it because they believed that it would 
 soon disappear. They even refused to allow the char- 
 ter 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, con- 
 sistently 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, cre- 
 ated by and for themselves, the right, the duty, and the 
 powers of self-defence. For self-defence by the govern- 
 ment 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 and purpose of our hostilities to 
 lay waste lands, burn bridges, break up railroads, 
 sink ships, blockade harbors, destroy commerce, cap- 
 ture, imprison, wound, or kill citizens ; to seize, appro- 
 2
 
 10 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 accumu- 
 late national debt, impose new and burdensome taxes ; 
 or to cause thousands of loyal citizens to be slain in 
 battle. But, as means of carrying on the contest, it has be- 
 come necessary and lawful to lay waste, burn, sink, de- 
 stroy, 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 con- 
 venient for the more certain, speedy, and effectual over- 
 throw 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 gov- 
 ernment, claim for themselves only the rights of bel- 
 ligerents. 
 
 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 construe-
 
 INTRODUCTION. 11 
 
 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 gov- 
 ernment, a plan-in-outline, for regulating the affairs of an 
 enterprising and progressive nation. Some treat that 
 frame of government as though it were a castriron 
 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 s.trong 
 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, may sweep round a 
 wide orbit ; but in its revolutions it never gets beyond 
 the reach of the central light. The sunshine of con- 
 stitutional law illumines its pathway in all its changing 
 positions. We have not yet arrived at the " dead point" 
 where the hoop must burst the mould be shattered 
 the 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
 
 12 CONSTITUTION OF THE UNITED STATES. 
 
 conquered regions are now legally a part of. the United 
 States. The admission of new States containing a privi- 
 leged class, the incorporation into our Union of a for- 
 eign people, are held to be lawful and valid by all the 
 courts of the country. Thus far from the old anchor- 
 age have we sailed under the flag of " 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 de- 
 signed, 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 amend- 
 ments, we find that powers essential to its own perpe- 
 tuity are vested in the executive and legislative 
 departments, to be exercised according 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 
 the rights of the people. Those who founded a gov- 
 erment 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
 
 INTRODUCTION. 13 
 
 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 numer- 
 ous 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 legis- 
 lation to call into action those powers which the con- 
 stitution 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 
 KESERVED 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 constitu- 
 tion ; for now the garrison is summoned to surrender ; 
 and if there be any cannon, it is time to unlirnber 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 gov- 
 ernment shall now cease in America, must depend upon
 
 14 CONSTITUTION 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 eifected by destroy- 
 ing rights solemnly guaranteed by the constitution 
 we are defending? If so, the next question will 
 be, whether the law of self-defence and overwhelm- 
 ing 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 hampered, as 
 some have asserted, that even if war end in reestab- 
 lishing 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 supe- 
 riority 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 prop- 
 erty? by reason of any clause in the constitution ? Can
 
 INTRODUCTION. 15 
 
 government, the people's agent, wage genuine and ef- 
 fectual 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 obliga- 
 tion to guard or respect rights set up by or for belliger- 
 ent traitors ? 
 
 THE LEADING QUESTIONS STATED. 
 
 What limit, if any, is prescribed to the war-making 
 power of the President, as Commander-in- Chief of the 
 army and navy of the United States ? What authority 
 has Congress to frame laws interfering with the ordi- 
 nary 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 districts 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 emanci- 
 pated, 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 ?
 
 16 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 pur- 
 pose of explaining some of the doctrines of law appli- 
 cable to them, that the following suggestions have been 
 prepared.
 
 PUBLIC USE OF PRIVATE PROPERTY. 17 
 
 
 
 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 ffeneral government of the United States has, in 
 time of peace, a legal right, under the constitution, to appro- 
 priate to public use the private property of any subject, or 
 of any number of subjects, owing it allegiance. 
 
 Each of the States claims and exercises a similar 
 right over the property of its own citizens. 
 
 THE EIGHT 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, arse- 
 nals, 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 im- 
 portant 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
 
 18 CONSTITUTION OF THE 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, tele- 
 graphs, 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 commu- 
 nity, justice requires that they should be fairly com- 
 pensated for it: otherwise public burdens would be 
 shared unequally. To secure the right to indemnifi- 
 cation, which was omitted in the original constitution 
 of the United States, an amendment was added, which 
 provides, (Amendments, Art. V, last clause,) " Nor shall 
 private property be taken for public use ivithout just compen- 
 sation" * 
 
 The language of this amendment admits the right of 
 the United States to take private property for public 
 use. This amendment, being now a part of the consti' 
 tution, leaves that right no longer open to question, if 
 it ever was questioned. 
 
 * Similar provisions are found in the constitution of Massachusetts, and 
 eeveraV other states.
 
 PUBLIC USE OF PRIVATE PROPERTY. 19 
 
 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 more than his due share fo'r 
 public purposes. 
 
 It is not a little singular that the framers of the 
 constitution should have been less careful to secure 
 equality in distributing the burden of taxes. Sect. 8 
 requires duties, imposts, 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 pri- 
 vate property appropriated to the public benefit. 
 
 
 
 "PUBLIC USE." 
 
 What is "public use " for which private property may 
 be taken ? 
 
 Every appropriation of property for the 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 inter- 
 ests, is " public use" Public use is contradistinguished 
 from private use. That which is for the use of the country, 
 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 maybe 
 the best public use it can be put to.
 
 20 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 
 ain 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 confla- 
 gration, 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 
 the employment or destruction of the property taken, they 
 have the right to pass such laws ; to appropriate pri- 
 vate property in that way ; and whatever is done with 
 it is "public use," and entitles the owner to just com- 
 pensation 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 may be lawfully thus appro- 
 priated, 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 chil- 
 dren 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
 
 PUBLIC USE OF PRIVATE PROPERTY. 21 
 
 discharged and destroyed, for public benefit, by Con- 
 gress, 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 appro- 
 priated 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 botrf 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 the United States. 
 
 During the present rebellion, many minors, appren- 
 tices, 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 poiver to appropriate every 
 description 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
 
 22 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 sol- 
 diers, to discharge them from the obligation of their 
 indentures, providing just compensation to their em- 
 ployers 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 military duty. If those who owe labor 
 and service to others, either by contract, by inden- 
 ture, by common or statute law, or by local usage, 
 could not be lawfully called upon to leave their em- 
 ployments 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
 
 PUBLIC USE OF PRIVATE PROPERTY. 23 
 
 providing for calling out the array 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 " persona 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 in- 
 dividuals. 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 subjects 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, hut 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. L. J. 283.
 
 24 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 polit- 
 ical 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 benefit, or pub- 
 lic defence, such abolishment is an appropriation of private 
 property for public use, within the meaning of the constitution. 
 
 INDEMNITY TO MORMONS. 
 
 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. Con- 
 gress 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 Ball. 372 ; 
 Thirlow v. Mass., 5 How. 585 ; Smith v. Turner, 7 ib. 556 ; Golden v. Prince, 
 3 W. C. C. Reports, 314.
 
 PUBLIC USE OF PRIVATE PROPERTY. 25 
 
 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 citi- 
 zens of the United States.* 
 
 Under the present laws of the United States, accord- 
 ing to the opinion of the attorney-general of Massa- 
 chusetts, colored men are equally with white men required to 
 le enrolled in the militia of the United States,^ 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. 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 
 the militia of the United /States, 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 over- 
 whelming necessity, could be required by the constitu- 
 tion to recognize the private relations in which the 
 soldier might stand, by local laws, to persons setting up 
 
 * See case of Dred 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. J 8 Gray's R. 615. 
 
 4
 
 ZO 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 differ- 
 ence between the different kinds of labor and service, 
 remains to be seen. The question is, whether the 
 soldier or seaman, serving his country in arms, can be 
 deemed private property ', as recognized in the constitution 
 of the United States ? 
 
 DOES THE 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 military officers, 
 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 xmld not, under all circumstances, be discharged 
 
 * Amendments, Art. V. last clause.
 
 PUBLIC USE OF PRIVATE PROPERTY. 27 
 
 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 legislative department in relation 
 to war are contained chiefly in the following sections 
 in the constitution : 
 
 Art. I., Sect. 8, Cl. 11. Congress may institute war by 
 declaring it against an enemy. The President alone 
 cannot do so. Also, Congress may make laws concern- 
 ing captures on land, as well as on water. 
 
 Art. I., Sect. 8, Cl. 12. Congress may raise and 
 support armies : and provide and maintain a navy. 
 
 Art. I., Sect. 8, Cl. 14. Congress may make laws 
 for the government of land and naval forces. 
 
 Art. I., Sect. 8, Cl. 15. Congress may provide for 
 catting forth the militia to execute the laws of the Union, 
 suppress insurrection, and repel invasion. 
 
 Art. L, Sect. 8, Cl. 16 : And may provide for or- 
 ganizing, 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 twn- 
 gidlliiy provide for the common defence; promote the 
 general welfare, and secure the blessings of liberty to 
 ourselves and our posterity." In Art. L, Sect. 8, Cl. 1,
 
 Zo 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 common defence and general tvel- 
 fare of the United States. And in the same article (the 
 eighteenth clause) express power is given to Congress 
 to make all laws which shall be necessary and proper for carry- 
 ing into execution the foregoing and all other poivers vested by 
 the constitution in the government of the United States, or in any 
 department or officer thereof" 
 
 SLAVE PROPERTY SUBJECT TO THE SAME LIABILITY AS OTHER 
 PROPERTY TO BE APPROPRIATED FOR WAR PURPOSES. 
 
 If the public ivelfare and common defence, in time of war, 
 require that the claims of masters over their appren- 
 tices or slaves should be cancelled or abrogated, against 
 their consent, and if a general law carrying into execu- 
 tion 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 destroy- 
 ing the obligation of contracts, it may be said, that though 
 states have no right to pass laws impairing the obli- 
 gation 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.
 
 PUBLIC USE OF PRIVATE PROPERTY. 29 
 
 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 discretion- 
 ary. They are more than imperial. But it was in- 
 tended by the framers of the constitution, or, what is 
 of more importance, by the people who made and adopt- 
 ed it, that the powers of government in dealing with 
 civil rights in time of peace, should be defined and lim- 
 ited ; but the powers " to provide for the general ivelfare 
 and the common defence" in time of war, should be un- 
 limited. 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 repre- 
 sentatives 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 regu- 
 late 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 rea- 
 son of the fact that the President, as commander-in-chief 
 of the army and navy, also has powers, equally consti- 
 tutional, to act upon the same subject-matters. It does 
 not follow that because Congress has power to abro- 
 gate the claims of Mormons or slaveholders, the Presi- 
 dent, as commander, may not also do the same thing. 
 
 These powers are not inconsistent, or conflicting. 
 Congress may pass laws concerning captures on land 
 
 i L *.
 
 30 CONSTITUTION OP 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, in time of war, 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 prop- 
 erty 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 constitu- 
 tion contains no clause or sentence prohibiting the exercise ty 
 Congress of the plenary power of abrogating involuntary servi- 
 tude. 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 laivs thereof, escaping into another, 
 shall, in consequence of any laiv or regulation " therein" 
 be discharged from such service or labor; but shall be 
 delivered up on claim of the party to whom such ser- 
 vice or labor may be due." Thus, if a slave or appren- 
 
 * Constitution, Art. I., Sect. 8, Cl. 11.
 
 PUBLIC USE OF PRIVATE PROPERTY. 31 
 
 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 from his liability to his employer. This restric- 
 tion is, in express terms, applicable only to State legislatures, 
 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 belongs to the United States, 
 unless expressly prohibited, if it is embraced within 
 the scope of powers necessary to the safety and pres- 
 ervation 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 condition 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 
 fugitives. And it would be a singular species of rea- 
 soning to conclude that, because the constitution pre- 
 scribed certain rules of conduct towards persons escaping 
 from one State into another, therefore there is no power 
 to make rules relating to other persons ivlio do not escape 
 from one State into another. If Congress were expressly- 
 empowered to pass laws relating to persons when 
 escaping 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.
 
 32 CONSTITUTION OF THE UNITED STATES. 
 
 ment 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 licld to labor 
 as a slave by the laws of any State, and therefore there 
 would be no person to whom the clause in the consti- 
 tution restraining State legislation could apply. This 
 clause, relating to fugitive slaves, has often been misun- 
 derstood, as it has been supposed to limit the power of 
 Congress, while in fact it applies in plain and express terms 
 only to the Slates, controlling or limiting their powers, but 
 having no application to the general government. If 
 the frame rs 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 instru- 
 ment a proviso that Congress should pass no law pro- 
 hibiting 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 de- 
 sign that the legislature should exercise control over 
 the subject of domestic slavery, whenever it should 
 assume such an aspect as to involve national interests, 
 the introduction of the proviso relating to the slave 
 
 * Constitution, Art. I. Sect. 9.
 
 PUBLIC USE OF PRIVATE PROPERTY. 33 
 
 trade, and of several other clauses in the plan of gov- 
 ernment, 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, as to all persons now held in servitude, when- 
 ever laws to that effect are required by " the public 
 welfare and the common defence " in time of war ; 
 that this power is left to the discretion of Congrfess, 
 who are the sole and exclusive judges as to the occa- 
 sions when it shall be exercised, and from whose judg- 
 ment there is no appeal. The right to "just compen- 
 sation " for private property so taken, depends upon 
 the circumstances 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
 

 
 
 INTRODUCTION TO CHAPTER H. 
 
 THE Constitution, Art. I., Sect. 8, clause 18, gives Congress power " to 
 make all laws which shall be necessary and proper for carrying into execu- 
 tion the foregoing powers, and all other powers vested by this Constitution 
 in the Government of the United States, or in any Department or officer 
 thereof." 
 
 Art. 1L, Sect. 2, clause 1, provides that "the President shall be Com- 
 mander-in-chief of the Army and Navy of the United States, and of the 
 Militia of the several States, when called into the actual service of the 
 United States." 
 
 Art. L, Sect. 8, declares that " Congress shall have power to provide for 
 calling forth the Militia to execute the laws of the Union, suppress insur- 
 rections, and repel invasions." 
 
 As the President is, within the sense of Art. L, Sect. 8, clause 18, " an 
 officer of government ; " and by virtue of Art. II., Sect. 2, clause 1, he is 
 Commander-in-chief of the Army and Navy ; and as, by virtue of Art. II., 
 Sect. 2, clause 1, and Art. I., Sect. 8, the power is vested in him as " an 
 officer of the government " to suppress rebellion, repel invasion, and to 
 maintain the Constitution by force of arms, in time of war, and for that 
 purpose to overthrow, conquer, and subdue the enemy of his country, so 
 completely as to "insure domestic tranquillity," 'it follows by Art. I., 
 Sect. 8, clause 18, that Congress may, in time of war, pass all laws which 
 shall be necessary and proper to enable the President to carry into exe- 
 cution " all his military powers. 
 
 It is his duty to break down the enemy, and to deprive them of their 
 means of maintaining war : Congress is therefore bound to pass such laws 
 as will aid him in accomplishing that object. 
 
 If it has power to make laws for carrying on the government in time of 
 peace, it has the power and duty to make laws to preserve it from destruc- 
 tion in time of war. 
 
 NOTE. The reader is referred to the Preface, pages 3 and 4, for remarks 
 upon the Constitution, Art. I., Sect. 8, clause 1, relating to the alleged 
 power of Congress " to provide for the general welfare and common de- 
 fence," and, in addition to the authorities there cited, reference may be had 
 to the speeches of Patrick Henry, who fully sustains the views of Mr. Jef- 
 ferson.
 
 34 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 aid- 
 ing 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 tlie 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." 
 
 KULES OF INTERPRETATION". 
 
 The constitution provides that Congress shall have 
 power to pass " all laws necessary and proper " for car- 
 rying into execution all the powers granted to the gov- 
 ernment 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.
 
 WAR POWERS OF CONGRESS. 35 
 
 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, 
 
 <l The authorities essential to the care of the common defence are 
 these : To raise armies ; to build and equip fleets ; to prescribe rules for 
 the government of both ; to direct their operations ; to provide for their 
 support. These powers ought to exist WITHOUT 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 sup- 
 port of the NATIONAL FORCES." 
 
 This statement, Hamilton says, 
 
 " Rests upon two axiom?, 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." f 
 
 The doctrine of the Supreme Court of the United 
 States, announced by Chief Justice Marshall, and ap- 
 proved by Daniel Webster, Chancellor Kent, and Judge 
 Story, is thus stated : 
 
 " The government of the United States is one of enumerated pow- 
 ers, 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 tvere 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.
 
 36 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 constitu- 
 tion dropped the word expressly, and left the question whether a par- 
 ticular 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 
 carried into execution. It would render it too prolix. Its nature 
 requires that only the great outlines should be marked, and its impor- 
 tant objects designated, and all the minor ingredients left to be de- 
 duced 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 gov- 
 ernment 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 exer- 
 cise by withholding a choice of means. The powers given to the 
 government imply the ordinary means of execution ; and the govern- 
 ment, 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 info 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 calcu- 
 lated 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 ag^s to come, and to be adapted to the various crises in human 
 affairs. To. prescribe the specific means by which government should
 
 WAR POWERS OF CONGRESS. 37 
 
 in all future time execute itsjpower, and to confine the choice of m Jans 
 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 legit- 
 imate, and within the scope of the constitution, all means which are 
 appropriate, and plainly adapted to this end, and which are not pro- 
 hibited by the constitution, are lawful." * 
 
 . 
 
 Guided by these principles of interpretation, it is 
 obvious that if the confiscation of property, or the liber- 
 ation 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 fotf those purposes. 
 Whether they are adapted to produce that result is for 
 the legislature alone to decide. But, in considering the 
 war powers conferred upon that department of govern- 
 ment, 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 suppress- 
 ing 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 Jaws 
 in peace or in war as are within the general powers con- 
 ferred on it, unless they fall within some express pro- 
 hibition of the constitution. If confiscation. or emanci- 
 pation laws are enacted under the war powers of Con- 
 gress, we must determine, in order to test their validity, 
 whether, in suppressing a rebellion of colossal pro- 
 portions, the United States are, within the meaning of 
 
 * On the interpretation of constitutional power, see 1 Kent's Com. 351, 
 352 j McCulloch v. The State of Maryland, 4 Wheat. R. 413-420.
 
 00 CONSTITUTION OF THE UNITED STATES. 
 
 the constitution, cd war with its own citizens ? whether 
 confiscation and emancipation are sanctioned as belli- 
 gerent rights by the law and usage of civilized nations ? 
 and whether our government has full 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 re- 
 bellion; or as 'an attempt, by a considerable portion 
 of the subjects, to overthrow their government 
 which 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
 
 WAR POWERS OF Cm 7 GRESS. 39 
 
 to sanction or. authorize the commencement of offensive 
 
 */ 
 
 war. If the United States commence hostilities agrainst 
 
 o 
 
 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 a civil war. The 
 constitution establishes the mode in which this govern- 
 ment shall commence wars, and what authority shall ordain, 
 and what declarations shall precede, any act of hostility ; 
 iut 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 gov- 
 ernment 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 com- 
 mence the campaign while Congress was not in ses- 
 sion. 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-
 
 40 CONSTITUTION OP THE UNITED STATES. 
 
 mander-in-chief, to engage promptly and effectually 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. Noth- 
 ing is clearer than this, that when such a state of hos^ 
 tilities exists as justifies the President in calling the 
 army into actual service, without the authority of Con- 
 gress, no declaration of war is requisite, either in form or 
 substance, for any purpose whatsoever. Hence it fol- 
 lows, that government, while engaged in suppressing a 
 rebellion, is not deprived of the rights of a belligerent 
 against rebels, by reason of the fact that no formal decla- 
 ration of war has been made against them, as though 
 they were an alien enemy, nor by reason of the cir- 
 cumstance 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 suita- 
 ble 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 Com. p. 54.
 
 WAR POWERS OF CONGRESS. 41 
 
 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 rebel- 
 lion places the country in the attitude of making war 
 on rebels, nor that the commander-in-chief has the con- 
 stitutional right of conducting his military operations 
 as he might do if he were actually at war (in the ordi- 
 nary sense of the term) against an alien enemy. Mis- 
 apprehension 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, confisca- 
 tion, and enemy's property. 
 
 Some have assumed that the United States are not 
 cd ivar 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 mar- 
 tial 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 
 something 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, " maJcing war" When the citizens of Charles- 
 ton bombarded Fort Sumter, and captured property 
 exclusively owned by the United States, it is not 
 6
 
 42 CONSTITUTION OF THE UNITED STATES. 
 
 denied that they were " waging war " upon the govern- 
 ment. 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 char- 
 acter and the rights usually allowed to belligerents, 
 that is, to persons making war on tis, we, according to 
 the constitutional scruple above stated, were not enti- 
 tled 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 bel- 
 ligerent 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 num- 
 bers, 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
 
 WAR POWERS OF CONGRESS. 43 
 
 and of conquest, as well as of rebellion. Far less than 
 these operations constitutes the levying of tvar, as those 
 terms are explained in the language of the consti- 
 tution. 
 
 " War is levied" on the United States wherever and 
 whenever the crime of treason is committed, (see Con- 
 stitution, Art. III., Sect. 3, Cl. 3,) and -under that clause, 
 as interpreted by the Supreme 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 armed force be used. The lan- 
 guage of the constitution is clear and express. " Trea- 
 son 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 the crime of treason, the constitution de- 
 clares them to have levied ivar. 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 constitu- 
 tion) 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 govern- 
 ment and people, a'nd have killed, captured, and impris- 
 onod soldiers and private citizens. Of the million of
 
 44 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 de- 
 clares 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. 
 
 KEBELS 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 bel- 
 ligerents, 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 untrammelled 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 rebel- 
 lious 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. Foussatt, 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 laivful prize for running the blockade. The cases
 
 WAR POWERS OF CONGRESS. 45 
 
 of the Santisima Trinidad, 7 Wheat. 306, and United 
 States v. Palmer, 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 belliger- 
 ent 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 har- 
 bors 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
 
 46 CONSTITUTION OF THE UNITED STATES. 
 
 highest of crimes with death, thus expressly ti eating 
 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 them- 
 selves under the shield of belligerent rights, must bear 
 the weight of that shield, and submit to the legal con- 
 sequences 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, belligerent 
 subjects ; 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 rights of 
 belligerents are, according to the law of nations. It will 
 be observed that the law of nations is above the con- 
 stitution 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 con- 
 stitution, 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
 
 WAR POWERS OF CONGRESS. 47 
 
 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 do- 
 mestic 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 in- 
 ternational 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 cit- 
 izens, 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.
 
 48 CONSTITUTION OF THE UNITED STATES. 
 
 BELLIGERENT EIGHT OF CONFISCATION OF PERSONAL ESTATE. 
 
 Either belligerent may seize and confiscate aU 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 con- 
 clusive 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 pro- 
 ceedings 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 de- 
 clares that no man shall be deprived of life, liberty, or 
 
 * Alexander v. Duke of Wellington, 2 Buss. & 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 1 
 Kent's Comm. 357.
 
 WAR POWERS OF CONGRESS. 49 
 
 property without due process of law ; * that private 
 property shall not be taken for public use without just 
 compensation ; f that unreasonable searches and seiz- 
 ures shall not be made ; J 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. || 
 
 THESE PROVISIONS LNOT APPLICABLE TO A STATE OP 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. Not a gun can be fired constitu- 
 tionally, because it might deprive a rebel foe of his life 
 without due process of law 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 in- 
 vasion ; to provide for organizing, arming, and disciplin- 
 ing the militia, and for governing such part of them as 
 may be in the service of the United States. 
 
 * Constitutional Amendments, Art. V. f Ibid. Art. V. 
 
 j Ibid. Art. IV. Ibid. Art. I. || Ibid. Art. LL 
 
 7
 
 50 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 u GREETINGS " instead of sending rifle shot. 
 He 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 com- 
 mander-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 gun- 
 boats ; 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 faeen cited from the amend- 
 ments to the constitution were intended as declarations
 
 WAR POWERS OF CONGRESS. 51 
 
 of the rights of peaceful and loyal citizens, and safe- 
 guards in the administration of justice by the civil tri- 
 bunals ; but it was necessary, in order to give the gov- 
 ernment the means of defending itself against domestic 
 or foreign enemies, to maintain its authority and dig- 
 nity, and to enforce obedience to its laws, that it should 
 have unlimited war powers ; and it must not be for- 
 gotten that the same authority which provides those 
 safeguards, and guarantees those rights, also imposes 
 upon the President and Congress the duty of so carry- 
 ing on war as of necessity to supersede and hold in 
 temporary suspense such civil rights as may prove in- 
 consistent with the complete and effectual exercise of 
 such war powers, and of the belligerent rights result- 
 ing 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. 
 
 \FHETHER BELLIGERENTS SHALL BE ALLOWED CIVIL RIGHTS UNDER 
 THE CONSTITUTION DEPENDS UPON THE POLICY OF GOVERNMENT. 
 
 None of these rights, guaranteed to peaceful citizens, ly the 
 constitution belong to them after they have become belligerents 
 against their own government. They thereby forfeit all 
 protection 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-
 
 52 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 pro- 
 visions 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 constitu- 
 tion 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 bel- 
 ligerent 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 con- 
 fiscation belongs to the government as the necessary 
 consequence of the power and duty of making war 
 offensive or defensive. Every capture of enemy am- 
 munition or arms is, in substance, a confiscation, with- 
 out 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 con- 
 fiscation, it may be found in 3 Dallas, 227 ; Vat. lib. 
 iii., ch. 8, sect. 188; lib. iii., ch. 9, sect. 161; Smith v. 
 Mansfield, Cranch, 306-7 ; Cooper v. Telfair, 4 Dallas ; 
 Brown v. U. S., 8 Cranch, 110, 228, 229.
 
 WAR POWERS OP CONGRESS. 53 
 
 The following extract is from 1 Kent's Com., p. 59 
 
 " But however strong the current of authority in favor of the mod- 
 ern 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 posses- 
 sion 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 considera- 
 tion 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
 
 54 CONSTITUTION OP THE UNITED STATES. 
 
 government has a right, as a belligerent power, to cap- 
 ture 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 judi- 
 cial 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 righjt, 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 per- 
 sonal 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. 
 
 MILITARY GOVERNMENT UNDER MARTIAL LAW. 
 
 In addition to the right of confiscating personal property 
 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 main- 
 taining military government over it, thereby suspend- 
 ing in part, or in the whole, the ordinary civil adminis-
 
 WAR POWERS OF CONGRESS. 55 
 
 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 con- 
 quered 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 what- 
 ever. Hence, from the necessity of the case, the con- 
 queror has power to establish a quasi military civil ad- 
 ministration 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 establish- 
 ing military rule over conquered territory, that all 
 provisional governments are instituted by conquer- 
 ors. The President, as commander-in-chief, has for- 
 mally appointed Andrew Johnson governor of Ten- 
 nessee, with all the powers, duties, and functions per- 
 taining to that office, during the pleasure of the Presi- 
 dent, or until the loyal inhabitants of that State shall 
 organize a civil government in accordance with the con- 
 stitution 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 gen- 
 eral, 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 author- 
 ity, are as legal and constitutional as any other military 
 
 * Cross v. Harrison, 16 How. 164.
 
 56 CONSTITUTION OF THE UNITED STATES. 
 
 proceeding. Hence any section of this country, which, 
 having joined in a general rebellion, shall have been 
 subdued and conquered by the military forces of the 
 United States, may be subjected to military govern- 
 ment, and the rights of citizens in those districts are 
 subject to martial law, so long as the war lasts. What- 
 ever 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 mar- 
 tial law, because martial law, when in force, is constitur 
 tioml hiv. The people of the United States, through 
 their lawfully chosen commander-in-chief, have the con- 
 stitutional right to seize and hold the territory of a bel- 
 ligerent 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 de- 
 barred from enjoying the rights they would be entitled 
 to in 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 j the rights and procedures of peaceful times
 
 WAR POWERS OF CONGRESS. 57 
 
 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, pri- 
 vate and public, are not authorized strictly under the 
 constitution. 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 govern- 
 ment* That form of government having been over- 
 thrown 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 he be the subject of a neutral, or a 
 citizen of one of the belligerent States, and has ex- 
 pressed 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., CL 1. 
 8
 
 58 CONSTITUTION OF THE UNITED STATES. 
 
 condemnation. This familiar principle of law is sanc- 
 tioned 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, may 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,f 
 "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 con- 
 firmed, 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 civil- 
 ized war." 
 
 .. 
 
 * The Venus, 8 Cranch Rep.; The Hoop, 1 Robinson, 196, and cases 
 there cited. The Amy Wat-wick, opinion of Judge Sprague. 
 f Judge Sprague.
 
 WAR POWERS OF CONGRESS. 59 
 
 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 compensa- 
 tion. This is an act of grace, which, though not re- 
 quired by the laws of war, may well be granted. The 
 conimander-in-chief may also grant the same indul- 
 gence. But the military commanders are always at 
 liberty to seize, in an enemy's country, whatever prop- 
 erty 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 pro- 
 tecting 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. Jt 
 is done from a sense of justice and humanity, not be- 
 cause 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 
 held in abeyance. If this were not so, the government 
 might itself be destroyed ; the army and navy might 
 be sacrificed, and one part of the constitution would 
 NULLIFY the rest.
 
 60 CONSTITUTION OF THE UNITED STATES. 
 
 If freedom of speech cannot be suppressed, spies can- 
 not 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 tvithout trial by jury, 
 a soldier cannot slay the enemy in battle. 
 
 If enemy'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, with- 
 out 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 enemy 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 
 rights, 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 country, claims to 
 be protected from its enemies, domestic and foreign 
 from 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 to be laid down when the occa- 
 sion has passed, are, while they last, as Iduful, as con- 
 stitutional, as sacred, as the administration of justice by 
 judicial courts in times of peace. They may be dan- 
 gerous; 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
 
 WAR POWERS OF CONGRESS. 61 
 
 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 evi- 
 dence 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 control- 
 ling 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 tvar, 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 rigJit of the government to confiscate 
 enemy's real estate, situated in this country, 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 coun- 
 tries, and their operation modified by treaties ; their 
 validity never was denied. The only authority which either 
 !)f the States or colonies ever had for passing such 
 laws was derived from the fact that they were bel- 
 ligerents.
 
 62 CONSTITUTION OF THE UNITED STATES. 
 
 It will be observed that the question as to the belli- 
 gerent 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 unusual, in case of conquest of a foreign country, 
 for the conqueror to do more than to displace its sov- 
 ereign, 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 per- 
 sonal 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 inter- 
 fered with. The forbearance of a conqueror from con- 
 fiscating 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 perma- 
 nent addition to the power and territory of the con- 
 queror. This object would be defeated by stripping 
 his subjects of every thing. The case is very differ- 
 ent where confiscation will only break up a nest of 
 traitors, and drive them away from a country they have 
 betrayed. 
 
 Suppose that certain Englishmen owned large tracts 
 
 * United States v. Juan Richmond, 7 Peters, 51.
 
 WAR POWERS OF CONGRESS. 63 
 
 of real estate in either of the United States or territo- 
 ries thereof, and war should break out ; would any one 
 doubt the right of Congress to pass a law confiscating 
 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 be- 
 tween the different kinds of enemy property, whether 
 real, personal, or mixed, so far as regards their liability 
 to confiscation by the war power. Lands, money, 
 slaves, debts, may and have been subject to this lia- 
 bility. 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. oit 
 
 In Broivn v. United States, 8 Cranch, p. 123, the Supreme 
 Court of the United States say, r " cfj 
 
 " 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 right to confiscate," &c.
 
 64 CONSTITUTION OF THE UNITED STATES. 
 
 Chancellor Kent says, 
 
 " When war is duly declared, it is not merely a war between tnis 
 and the adverse government in their political characters. Every 
 man is, in judgment of law, a party to the acts of his own govern- 
 ment, 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 sub- 
 jects are deducible" from this principle. When hostilities have com- 
 menced, 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 fc 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 .f 
 
 It is for the government to decide how it shall 
 use its belligerent right of confiscation. The num- 
 ber 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 p age 57.
 
 WAR POWERS OF CONGRESS. 65 
 
 are the principal land owners in that region, and 
 who are the chief authors and supporters of this rebel- 
 lion, constitute, all told, less than one in one hundred 
 and tiventy eight of the people of the United States, 
 and less than one fiftieth part of the inhabitants of their 
 own districts, being far less in proportion to the 
 whole population of the country than the old tones 
 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 NOTISS thereon. 
 
 9 

 
 66 CONSTITUTION OF THE UNITED STATES. 
 
 
 CHAPTER III. 
 
 . : 
 
 WAK 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 in 
 actual service, to emancipate the slaves of any belli- 
 gerent section of the country, if such a measure be- 
 comes 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 strength- 
 ening 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 prose- 
 cuting war, as employees upon military works, or as 
 laborers furnishing by their industry the means of car- 
 rying 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 claim 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.
 
 WAR POWER OF THE PRESIDENT. 07 
 
 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 j 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, to call forth the militia, 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 arid 
 
 * Such is the language of Chief Justice Taney, in delivering the opinion 
 of the Supreme Court, in Martinv. Mott, 12 Wheaton, 19.
 
 68 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 concur- 
 rent right or duty to emancipate enemy's slaves, if in 
 their judgment 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 incom- 
 patible with the peace or war powers of Congress ; but 
 both coexist, and may be exercised upon the same sub- 
 ject. Thus, when the army captures a regiment of 
 soldiers, the legislature may pass laws relating to the 
 captives. So may Congress destroy slavery by abolish- 
 ing 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 sub- 
 ject. 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 power- 
 ful 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 ques- 
 tion, because the constitution, having given authority 
 to government to make war, has placed no limit what-
 
 WAR POWER OP THE PRESIDENT. 69 
 
 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 civil- 
 ized 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 enemy'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 Dun- 
 more, 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 con- 
 vince 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 Corn- 
 wallis's hands, that year, about thirty thousand slaves." 
 .
 
 70 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 proc- 
 lamations, to repair to their standard, promising them 
 freedom.* The slaves who went over to them were lib- 
 erated, 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 pre- 
 ferred 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 Em- 
 peror of Russia, as arbitrator, who decided that indem- 
 nity 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 Brit- 
 ish 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.-}* 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 Xiles'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.
 
 WAR POWER OF THE PRESIDENT. 71 
 
 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 ex- 
 plained 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 lead- 
 ing statesmen of England and America have concurred 
 in the opinion that emancipation is a belligerent right. 
 
 St. Domingo, in 1793 ? contained more than five hun- 
 dred thousand negroes, with many mulattoes and 
 whites, and was held as a province of France. Intes- 
 tine commotions had raged for nearly three years be- 
 tween the whites and mulattoes, in which the negroes 
 had remained neutral. The Spaniards having ef- 
 fected an alliance with the slaves who had revolted 
 in 1791, invaded the island and occupied several im- 
 portant 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 postca.
 
 72 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 Conven- 
 tion 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 man, 
 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 govern- 
 ment, 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-
 
 WAR POWER OF THE PRESIDENT. 73 
 
 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 rees- 
 tablish the slave trade and slavery in all the other isl- 
 ands 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 
 Hayti 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 exer- 
 cised 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 gov- 
 ernment 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 Choixde Rapports Opin- 
 ions et Discours prononces a la Tribune Nationale depuis 1789. Paris, 1821, 
 t. xiv. p. 425. See Abolition d'Esdavage, (Colonies Francaises,)par Augus^ 
 tin Cochin. Paris, 1861. Vol. i. pp. 14, 15, &c. 
 10
 
 74 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 au- 
 thority among eminent ancient writers on the subject 
 has been found \o deny the right of emancipation, the 
 fact that England, France, Spain, and the South Amer- 
 ican 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 THE 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, recog- 
 nized 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, cap- 
 tured 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 prop- 
 ositions are supported by the cases of General Jackson, 
 General Jessup, General Taylor, and General Gaines.
 
 WAR POWER OF THE PRESIDENT. 75 
 
 "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 remon- 
 strated. 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 Con- 
 gress, 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 admin- 
 istration sanctioned the contract, and Mr. Tyler's administration ap- 
 proved 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. Pa- 
 checo 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 be- 
 came 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 ef Representatives 
 voted against the bill, which was rejected. All concurred in the opin- 
 ion 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
 
 76 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 ap- 
 proved 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 chil- 
 dren 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.
 
 WAR POWER OP THE PRESIDENT. 77 
 
 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 re- 
 stricted 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 prop- 
 erty, 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 bhe 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 author- 
 ity 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 manyways 
 by which Congress not only have the authority, but ARE BOUND TO 
 
 INTERFERE WITH THE INSTITUTION OP 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'
 
 78 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 inter- 
 ference 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 gov- 
 ernment 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 com- 
 manders ; 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 trans- 
 actions 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 viola- 
 tion of that engagement." 
 
 o o 
 
 Mr. Adams 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
 
 WAR POWER OF THE PRESIDENT. 79 
 
 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 con- 
 stitutional authority to interfere with the institution of slavery, in any 
 way, in the States of this confederacy? Sir, they must and will in- 
 terfere 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 in- 
 terference 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 Representa- 
 tives, April 14th and 15th, 1842, on war with Great 
 Britain and Mexico : r 
 
 " 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 man- 
 agement of the States more peculiarly interested in it, just as long as 
 they can keep within their own bounds. So far, I admit that Con- 
 gress 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 wheri 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. Giddiugs,) there were
 
 80 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 insti- 
 tutions 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 state- 
 ment. 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 f
 
 WAR POWER OF THE PRESIDENT. 81 
 
 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 and 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, let this be proved I am open to conviction ; but till that con- 
 viction 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
 
 82 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, Cl. 1 and 7 ; Sect. 2, Cl. 1 ; 
 Sect. 3, Cl. 1 ; and in Sect. 1, Cl. 1, and hy necessary implication in Art. I. 
 Sect. 9, Cl. 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, Cl. 11, 14. -Congress may effectually con- 
 trol 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 mod- 
 ifying 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, of
 
 WAR POWER OF THE PRESIDENT. 83 
 
 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 corpus 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 
 marshals, (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 ? 
 Whether 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'taay 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 commander- 
 in-chief, in time of war, to see that the laws of war are executed. In doing both 
 duties he is strictly obeying the constitution.
 
 84 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 his- 
 tory, tyrannical governments have usually inflicted 
 their severest revenge upon traitors. The irresistible 
 power of law has been evoked to annihilate the crimi- 
 nal, 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 mortuus." 
 
 PUNISHMENT BY ATTAINDER. 
 
 The refined cruelty which characterized the punish- 
 ment of treason, according to the common law of Eng-
 
 ATTAINDER. 85 
 
 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 dis- 
 posal.* 
 
 Blackstone informs us that these directions were, in 
 former times, literally and studiously executed. Judge 
 Story observes, they u indicate at once a savage and 
 ferocious spirit, and a degrading subserviency to royal 
 resentments, real or supposed." -j- 
 
 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. Com. 92. 
 
 t Lord Coke undertakes to justify the severity of this punishment by 
 examples drawn from Scripture.
 
 86 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, Avas an 
 outrage upon the rights of the people not to be toler- 
 ated in our constitution as one of the powers of gov- 
 ernment. 
 
 BILLS OF ATTAINDER ABOLISHED. 
 
 The constitution provides expressly, * that u no bill 
 of attainder, or ex post facto law, shall be passed by Con- 
 gress ; and that no State shall pass any bill of attainder, 
 ex post facto law, or law impairing the obligation of con- 
 tracts." f 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- 
 
 * Art. I. Sect. 9. f Art. I. Sect. 10.
 
 ATTAINDER. 87 
 
 sent from the country, or even long after his death. 
 Lord Coke says that the reigning monarch of England, 
 who was slain at Bos worth, is said to have been at- 
 tainted 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 les than that of death ? 
 
 In technical law, statutes were called bills of attainder 
 only when they inflicted the penalty of death or out- 
 lawry ; 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 out- 
 lawry 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, f 
 
 BILLS OF PAINS AND PENALTIES. 
 
 It has been said that within the sense of the consti- 
 tution, 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 
 attamder may affect the life of an individual, or may 
 confiscate his property, or both." J 
 
 * See Story on the Constitution, B. III. Sect. 678. 
 
 t Standf. PI. Co. 44, 122, 182. J Fletcher v. Peck, 6 Cranch, R.
 
 88 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 ac- 
 knowledged distinction between bills of attainder and 
 bills of pains and penalties ; nothing which would au- 
 thorize 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 au- 
 thority 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 
 
 * Com. Const. ILL. Ch. 32, Sect. 3.
 
 ATTAINDER. 89 
 
 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 invari- 
 able characteristics of bills of attainder, and of bills of 
 pains and penalties, that they were passed for the pun- 
 ishment of supposed crimes which had been committed 
 before the acts were passed. 
 
 The clause prohibiting Congress from passing any 
 ex post facto law T 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 of- 
 fenders. 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. Hence 
 in that respect they shut down the gate upon this sov- 
 ereign power of government. They forbade any pun- 
 ishment, under any form, for crime not against some 
 standing law, which had been enacted before the time 
 of its commission. They prevented Congress from pass- 
 ing 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
 
 90 CONSTITUTION OF THE UNITED STATES. 
 
 act of the State of New York, October 22, 1775, 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 ; f and these laws ap- 
 plied to persons who were dead at the time of the pro- 
 ceedings. J 
 
 "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 cer- 
 tain 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 com- 
 munity." " 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 trea- 
 son, because many of the persons attainted had never 
 owed allegiance to the State. || 
 
 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. 
 f Jackson v. Sands, 2 Johns. 267. 
 
 J Jackson \. Stokes, 3 Johns. 15. Foster, 83, 84. 
 
 ,| Jackson v. Catlin, 2 Johns. R. 260.
 
 ATTAINDER. 91 
 
 in times of public excitement, were understood by these 
 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 reoi- 
 
 O ' O 
 
 ment 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 char- 
 acteristics 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
 
 92 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, corrup- 
 tion of blood, and the legislative, not judicial condem- 
 nation embodied in a law passed after the commis- 
 sion of the crime it seeks to punish, it is not a bill of 
 attainder under the sense of the constitution.
 
 PUNISHMENT OF TREASON. 93 
 
 -KI 
 CHAPTER V. 
 
 RIGHT OF CONGRESS TO DECLARE BY STATUTE THE PUN- 
 ISHMENT OF TREASON, AND ITS CONSTITUTIONAL LIMI- 
 TATIONS. 
 
 TREASON. 
 
 THE highest crime known to the law is treason. It is 
 K 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 for- 
 ever 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
 
 94 CONSTITUTION OF THE UNITED STATES. 
 
 prevent Parliament from proclaiming any act of a sub- 
 ject to be treason, thereby subjecting him to all its ter- 
 rible 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 ven- 
 geance 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 property was safe. The 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., Parlia- 
 ment put an end to these judge-made-treasons by de- 
 claring 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-
 
 PUNISHMENT OF TREASON. 95 
 
 ments, and of the tendency of rival factions in repub- 
 lics 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 pro- 
 visions 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, of 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 with- 
 held, 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, pre- 
 viously 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.
 
 96 CONSTITUTION OF THE UNITED STATES. 
 
 laws to which he is amenable in time of peace by read- 
 ing the statutes. There can be no retrospective crimi- 
 nal 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 OP TREASON. Countless difficulties and 
 dangers were avoided by selecting from the English 
 statutes one crime only, which should be deemed to con- 
 stitute 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 Eng- 
 land, 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.-j- These acts must be proved either by 
 confession in open court, or by two witnesses to the 
 same act. t Our ancestors took care that no one 
 
 r 
 
 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. || 
 And a person charged with treason against a State, and 
 fleeing from that State to another, was to be delivered 
 
 * Art. III. Sect. 3. t Ibid, t Ibid. 
 
 Art. L Sect. 6. || Art II. Sect. 4.
 
 PUNISHMENT OF TREASON. 97 
 
 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."-]-- 
 
 CONGRESS HAVE UNLIMITED POWER TO DECLARE THE PUNISHMENT 
 
 OP 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 punish- 
 ment 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 conse- 
 quence of attainder of treason, under the law of England, 
 had the constitution not limited the effect and opera- 
 tion 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 limitation 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. f Art - HL Sect. 3. 
 
 13
 
 98 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 con- 
 victed, and when final judgment of guilty, and sentence 
 of death or outlawry, had been pronounced upon him, 
 the immediate and inseparable consequence, by com- 
 mon 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 " attinctus - 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 anti- 
 cipatidn 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 ,f but the law preserved 
 
 * 3 lust. 213. t Foster, 73.
 
 PUNISHMENT OF TREASON. 99 
 
 his physical existence only to vindicate its own majestj^ 
 and to inflict upon the offender an ignominious death. 
 
 CORRUPTION OF BLOOD. 
 
 Among the most important consequences of attainder 
 of felony, were those resulting from "corruption <of blood" 
 which is the essence of attainder:'* Blackstone says,f 
 
 " 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, J because, whether the for- 
 feiture enured to the benefit of the lord or of the king, 
 the effect was the same upon 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. u 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 OP 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. f 4 Com. b. 388. J See Co. Litt. 13. 
 
 $ Co. Litt. p. 391. Bla. Com. Vol. II. p. 254 Jl Co. Litt. p. 13.
 
 100 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 dis- 
 grace and poverty. A punishment which might con- 
 tinue for twenty generations, was indeed inhuman, and 
 received 1 , as it merited, the condemnation of liberal men 
 in all countries ; * but aristocratic influence in England 
 had for centuries resisted the absolute and final aban- 
 donment of these odious penalties. The frame rs of 
 the constitution have deprived Congress of the power 
 of passing bills of attainder. They might have pro- 
 vided 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, per- 
 sonal 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 person- 
 al property, prior to that time, were valid, unless col- 
 
 * See 4 Bla. Cora. p. 388.
 
 PUNISHMENT OF TREASON. 101. 
 
 lusive.* The estates thus forfeited were not mere 
 estates for life, but the whole interest of the felon, what- 
 ever 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 judgment and sentence of the court.-\ 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 in- 
 famous crimes. Disability to testify in courts, 01 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 cor- 
 ruption of blood and forfeiture of estates. J To set this 
 subject in a clearer light, the learned reader will rec- 
 ollect 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. 
 
 f See 2 GreenleaPs Cruise on Real Property, p. 145, and note ; 2 Kent, 
 386; 1 Greenleafs Cruise, p. 71, sect. 1, and note. 
 
 J 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
 
 102 CONSTITUTION OF THE UNITED STATES. 
 
 1. Attainders in a prcemunire ; in which, " from the convic- 
 tion, 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 prcemunire were not felonies, for 
 the latter are punishable only by common law, and 
 not by statute.^ 2. Attainder by bill. 3. Attainders of 
 FELONY and treason ; and the important distinction be- 
 tween attainders in treason and attainders in prcemu- 
 nire is this : that in the former the forfeitures are con- 
 sequences of the judgment, in the latter they are part 
 of the judgment and penalty. Blackstone J recognizes 
 fully this distinction. " I here omit the particular for- 
 feitures created by the statutes of prcemunire 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, Con- 
 necticut, 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, Mis- 
 sissippi, and Arkansas, there are statutes providing specifically for the punish- 
 ment 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 case, 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 Greenleafs 
 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. } 4 Com. p. 386.
 
 PUNISHMENT OF TREASON. 103 
 
 same opinion.* And statutes of praemunire and at- 
 tainders of treason are both different in law from Mils 
 of pains and penalties ; of which English history affords, 
 among many other examples, that against the Bishop 
 of Rochester ; f in the latter the pains and penalties 
 are all expressly declared by statute, and not left as 
 consequences of judgment. That clause in the con- 
 stitution 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 such 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 England, unless, 1. The judgment of death or out- 
 lawry has been pronounced against the traitor. J 2. 
 Where the crime was a felony, and punishable accord- 
 ing to common law ; and, 3. Where the attainder was 
 a consequence of the judgment, and not part of the 
 judgment and penalty. || Congress may pass a law 
 condemning every traitor to death, and to the conse- 
 quential 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 attainting the criminal of 
 
 * Co. Litt. 391, b. t Stat. 9 Geo. I. ch. 17. 
 
 t 4 Bla. 387. 4 Bla. 387. 
 
 || Ib. ; Co. Litt. 391, b. ; 4 Bla. 386.
 
 104 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, de- 
 fining 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 for- 
 feiture 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 com- 
 mon 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 praemu- 
 nire, 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 pun- 
 ishment 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
 
 PUNISHMENT OF TREASON. 105 
 
 the authors of the constitution meant to say that Con- 
 gress should pass no law punishing treason by attainder, 
 or by its consequences, viz., forfeiture of estate, or cor- 
 ruption 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 de- 
 clare the punishment of treason, but shall not impose 
 the penalties of attainder upon the offender," they 
 said, " Congress shall have power to declare the punish- 
 ment 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 upon 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 con- 
 vict 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
 
 106 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 opera- 
 tion of law, the criminal might be stripped of property 
 worth thousands of dollars, over and above the penalty 
 prescribed by statute ? 
 
 TRUE MEANING OP ART. III. SECT. III. CL. II. 
 
 The constitution means that if traitors shall be at- 
 tainted, 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 punishment for treason, the law shall not evoke 
 the doctrine of forfeitures worked by attainder, and 
 thus, by technical implication, add punishments not spe- 
 cifically 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,
 
 PUNISHMENT OF TREASON. 107 
 
 except during the life of the offender. The third ar- 
 ticle 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 forfeit- 
 ures 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 MAT IMPOSE FINES, WHY NOT FORFEITURES ? 
 
 No one doubts the power of Congress to make trea- 
 son 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 prop- 
 erty 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 opin- 
 ion, more sacred than life ? Would all the property 
 of rebels forfeited to the treasury of the country repair 
 the injury of civil war ?
 
 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 forfeit- 
 ure 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 enjoy- 
 ment of personal property ? If so, why did they not 
 say so ? If they meant to prevent Congress from pass- 
 ing 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 consti- 
 tution 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 pro- 
 tected 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 pur- 
 pose 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 be- 
 tween sentence of death and execution." Instead
 
 PUNISHMENT OF TREASON. 109 
 
 of such a provision, they gave full power to punish 
 treason, including fines, absolute forfeitures, death, and 
 attainder, only limiting the technical effect of the last- 
 mentioned 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. 
 

 
 110 CONSTITUTION OF THE UNITED STATES. 
 
 Ol;;V 
 
 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 where- 
 of 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, with intent to in- 
 fluence their controversies with the United States, pr 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 dol- 
 lars, and imprisonment during a term not less than six 
 months, nor exceeding three years. So the law has 
 stood during this centurv, until the breaking out of 
 
 CP */ w <J 
 
 the present rebellion. 
 
 The chief provisions of the law passed at the last 
 session of Congress, and approved July 17th, 1862, are 
 these :
 
 STATUTES AGAINST TREASON. Ill 
 
 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 free- 
 dom 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 aid- 
 ing 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 sec- 
 tions, 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 offi- 
 cers ; 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, provided per- 
 sons 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. Per- 
 sons who, owning property in loyal States, in the terri- 
 tories, 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
 
 112 CONSTITUTION OF THE UNITED STATES. 
 
 Sect. 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, rem shall be instituted in the name of the United 
 States, in any District Court thereof, or in any terri- 
 torial court, or in the United States District Court for 
 the District of Columbia, within which district or terri- 
 tory the property, or any part of it, may be found, or 
 into which, if movable, it may first be brought. Pro- 
 ceedings are to conform to those in admiralty or reve- 
 nue cases. Condemnation shall be as of enemy's prop- 
 erty, 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 gov- 
 ernment; 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
 
 STATUTES AGAINST TREASON. 113 
 
 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 sur- 
 render fugitive slaves. 
 
 Seat. 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 proclama- 
 tion to pardon any persons engaged in the rebellion, 
 on such terms as he deems expedient. 
 
 Sect. 14. Courts of the United States have full pow- 
 ers 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 pas- 
 sage ; 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 be- 
 yond his natural life." 
 
 The President's proclamation, in accordance with the 
 above act, was issued July 25th, 1862. Thus all per- 
 sons 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. 
 15
 
 4 
 
 114 CONSTITUTION OF THE UNITED STATES. 
 
 THE CONFISCATION ACT OF 1862 IS NOT A BILL OF ATTAINDER, NOB 
 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 attainder of 
 treason, and therefore for none of the penal conse- 
 quences 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 for- 
 feitures 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.
 
 THE POWER TO PUNISH REBELS. 115 
 
 
 CHAPTER VII. 
 
 THE RIGHT OF CONGRESS TO DECLARE THE PUNISHMENT 
 OF CRIMES AGAINST THE UNITED STATES OTHER 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 citi- 
 zens 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 ; neg- 
 lecting 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
 
 116 CONSTITUTION OF THE UNITED STATES. 
 
 against the lawful government; holding public meet- 
 ings to incite the people to the commission 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 author- 
 ity ; 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 levying 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 overthrow- 
 ing 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 foun- 
 tain 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 pre- 
 liminary 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 harnj,
 
 THE POWER TO PUNISH REBELS. J.17 
 
 will disgrace him in the community he has dishonored. 
 Imprisonment, fines, forfeitures, confiscation, are the 
 proper punishments for such hardened criminals, be- 
 cause 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 erro- 
 neously 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 18C2, 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.
 
 118 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 anns 
 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 procla- 
 mation, and neglect or refuse to return to their allegiance; 
 the mere non-performance of the requisition of this act 
 is, not levying 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 warn- 
 ing 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 pro- 
 ceedings, under said act, be so construed as to work a
 
 THE POWER TO PUNISH REBELS. 119 
 
 ' 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 pun- 
 ishment of treason, in the first section, is either death 
 arid freedom of slaves, or imprisonment, fine, and free- 
 dom 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 may 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 " 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 pun- 
 ished 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 confis- 
 cated, without having been tried for or accused of
 
 120 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 ty attainder. Another set of laws were confisca- 
 tion acts against tory refugees who had committed no 
 treason. These distinctions were familiar to those who 
 formed the constitution, and they used language re- 
 lating 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 con- 
 stitution, it is much to be regretted that the joint reso- 
 lution 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 government, viz., their real estate. 
 
 * See Willis v. Martin, 2 Bay 20. See also Hinzleman v. Clarke and 
 Al, Coxe N. J., 1795.
 
 THE POWER TO PUNISH REBELS. 121 
 
 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 " aid- 
 ing 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 noth- 
 ing else, than treason. This is a mistake. The consti- 
 tution 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 com- 
 mitted by a few individuals by merely kvying 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 Diet. 
 
 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 Diet. 
 
 16
 
 122 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 tto 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 punish- 
 ment 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 con- 
 spirator 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 com- 
 mit 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 mur- 
 der 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-mentioned crimes could 
 
 * See Chap. V. p. 93.
 
 THE POWER TO PUNISH REBELS. 123 
 
 t 
 
 be punished, unless the criminal were convicted of wil- 
 ful 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 leni- 
 ency, 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 legis- 
 lated 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 mur- 
 derers, 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. 

 
 124 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 rebel- 
 lion, and for the seizure and confiscation of rebel prop- 
 erty, 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 pun- 
 ishment of death for treason ; sectipn 2, which imposes 
 fines and penalties ; section 3, which adds disqualifica- 
 tion 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 exami- 
 nation 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 OP 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
 
 THE POWER TO PUNISH REBELS. 125 
 
 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 other- 
 wise 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 com- 
 mitted. f 
 
 By the statute of September 24, 17S9, 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 inconve- 
 nience, 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. -J* 
 
 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 Masa. 
 95-98 ; United States v. The Insurgents, 3 Ball. 518.
 
 126 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 favor- 
 able 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 EIGHTS 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 ver- 
 dict, Jaeing upon the law and the fact, in a criminal 
 case, they become in effect judges of law and fact. 
 Suppose that the juclge 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 loy- 
 alty to the United States ; or that the States had, and 
 have, a lawful right to secede from the Union. What- 
 ever 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 de- 
 cide the issue, according to the conscientious judgment 
 of the jurymen upon the facts and the law, would re- 
 quire them to find a verdict against the United States.
 
 THE POWER TO PUNISH REBELS. 127 
 
 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 attend- 
 ance 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 con- 
 vict one of their own number, when either of the jury- 
 men 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 convic- 
 tion, even if laws against treason, and those which con- 
 fiscate 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 w 7 ill punish trea- 
 son, but not sooner. 
 
 LATTS ABE MOST EFFECTIVE WHICH REQUIRE NO REBEL TO AD- 
 MINISTER THEM. 
 
 Those sections of the act of 1862, empowering gov- 
 ernment 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.
 
 128 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 char- 
 acter. Those clauses in the act which allow of the 
 employment in the service of the United States of 
 colored persons, so far as they may 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 OP LIMITATION WILL PROTECT TBAITOES. 
 
 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 pun- 
 ished unless indicted for treason within three years after 
 the treason \vas committed, if punishable capitally ; nor 
 unless indicted within two years from the time of com- 
 mitting 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 reg- 
 ular proceedings in courts, all the criminals in the se- 
 ceded States will escape by the operation of the stat- 
 utes 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 stat- 
 utes are modified, those who have caused and main- 
 tained the rebellion will escape from punishment.
 
 SLAVERY. 129 
 
 CHAPTER VIII. 
 
 INTERFERENCE OF GOVERNMENT WITH THE DOMESTIC 
 AFFAIRS OF THE STATES. 
 
 PARTY PLATFORMS CANNOT ALTER THE CONSTITUTION. 
 
 POLITICAL parties, in times of peace, have often de- 
 clared that they do not intend to interfere with slavery 
 in the States. President Buchanan denied that govern- 
 ment had any power to coerce the seceded States into 
 submission to the laws of the country. When Presi- 
 dent Lincoln catled 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 domes- 
 tic affairs. Those who have involved this country in 
 bloody war, all sympathizers in their treason, and others 
 who oppose the present administration, unite in deny- 
 ing the right of the President or of Congress to inter- 
 fere with slavery, even if such interference is the only 
 means by which the Union can be saved from destruc- 
 tion. No constitutional 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 ene- 
 my's slaves has been the subject of a preceding chapter. 
 Congress has power to pass laws necessary and proper 
 to provide for the defence of the country in time of war, 
 by appropriating private property to public use, with 
 just compensation therefor, as shown in Chapter I.; 
 also laws enforcing emancipation, confiscation, and all 
 other belligerent rights, as shown in Chapter II. ; and 
 it is the sole judge as to what legislation, to effect 
 these objects, the public welfare and defence require; 
 17
 
 130 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 constitu- 
 tion, 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 
 right to interfere in any way with slaver?/. Their assump- 
 tion is, that the States in which slaves are held are 
 alone competent to pass any law relating to an institu- 
 tion 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,) it will be seen, 
 that if slaves are property, property can be interfered with 
 under the constitution ; if slavery is a domestic institution, 
 as Mormonism or apprenticeship is, each of them can law- 
 fully be interfered with and annulled. But slavery has 
 a double aspect. So long as it remains in truth " domes- 
 tic? 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
 
 SLAVERY. 131 
 
 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 insignifi- 
 cance as a household affair, becomes a vast, an over- 
 whelming 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 belligerent power, acting against the " public 
 welfare and common defence." No institution con- 
 tinues 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 
 subjects 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 empmvers, but, under certain 
 contingencies, requires slavery in the States to be inter- 
 fered 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 tip, 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 ex- 
 ceeding ten dollars per head. 
 
 Art. V. provided that no amendment of the constitu-
 
 132 CONSTITUTION OF THE UNITSD STATES. 
 
 tion should be made, prior to 1808, affecting the pre- 
 ceding 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 TTITH 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 tJte United 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 info 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 th laws and
 
 SLAVERY. 133 
 
 authority of the United States, the government are 
 bound to interfere with slavery, as much as in an insurrec- 
 tion of their masters, which may also require a similar 
 interference. The President, with the advice and con- 
 sent 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 sustaining 
 slavery that this government could claim indemnity for 
 slaves as property. . The treaty-making poiver may abolish 
 slavery in the whole country, as, by Art. VI., the con- 
 stitution, 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, ipso facto, become the 
 supreme law of the land, and there is no power what- 
 ever 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 con- 
 quest, 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 Com. 178.
 
 134 CONSTITUTION OF THE UNITED STATES. 
 
 The State of New York had granted to her own citi- 
 zens man} 7 titles to real estate lying in that part of her 
 territory now called Vermont. Vermont separated 
 itself from New York, and declared itself an inde- 
 pendent 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 
 con quest- or by the violent dismemberment of the State. 
 
 Supposing England and France should, by armed in- 
 tervention, compel the dismemberment of Ithe United 
 States, and the cession of the slave States to them as 
 conquered territory; and that the laws of the con- 
 querors 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, 1 How. 42.
 
 SLAVERY. 155 
 
 every State in the Union a republican form of government, and shall pro- 
 tect each of them against invasion, and, on the application of the legisla- 
 ture, 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 gov- 
 ernment, Congress must necessarily decide what government is estab- 
 lished, before it can determine whether it is republican or not. And 
 when senators and representatives of a State are admitted into the coun- 
 cils 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-men- 
 tioned 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 "domes- 
 tic 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 Con- 
 gress 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 immediate 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 pro- 
 posed 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.
 
 136 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 consti- 
 tute no reason why such property may not be inter- 
 fered 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 tech- 
 nical law, then the contemporary law writers must be 
 consulted. The question -as to the meaning of the con- 
 stitution 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 au- 
 thority, and remains so until their views are changed 
 and new ones announced ; and as often as the Supreme 
 Court change their judgments, so often the authoritative
 
 SLAVERY. 137 
 
 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 then* 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 interpre- 
 tation 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 constitu- 
 tional right, as matter of equity, comity, or public pol- 
 18
 
 138 CONSTITUTION OF TELE 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 Re- 
 publican 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 govern- 
 ment, by a fair and liberal interpretation of all the pro- 
 visions of the constitution. 
 
 Rising above the political platforms, the claims and 
 disclaimers of Federalists, Democrats, Whigs, Republi- 
 cans, and all other parties, and looking upon the con- 
 stitution as designed to give the government 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 govern- 
 ment 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 time of war." * 
 
 * In several preceding chapters other branches of this subject have been 
 discussed.
 
 PAOB 
 
 INTRODUCTION 3 
 
 THE CONSTITUTION purpose for which it was founded 9 
 
 " how violated 3 
 
 " liberal and strict constructionists 10 
 
 " powers we should expect to find in it 12 
 
 " contains powers to make laws for peace and laws 
 
 for war 13 
 
 " result, if it denies the power to save the Union. 13 
 
 " some leading questions under it stated 15 
 
 " authoritative construction of. 136 
 
 WAR distinction between the objects and the means of 9 
 
 SLAVERY its unexpected growth 4 
 
 " the "privileged class" 4 
 
 " abolished by European governments 5 
 
 " in 1862, not slavery in 1788 6 
 
 " are slaveholders arbiters of peace and war ? 7 
 
 ." though hated, why it was tolerated 8 
 
 ' recognition of, not inconsistent with the perpetuity of the 
 
 republic 9 
 
 " considered as belonging to the domestic affairs of States ; 
 
 can government interfere with it ? 129 
 
 " constitutional rights over, not aifected by party platforms. . 129 
 
 " domestic institutions 130 
 
 " may be interfered with by Congress, for its protection 131 
 
 " Congress may interfere against it 132 
 
 " may be interfered with by operation of militia laws 132 
 
 " may be interfered with by laws regulating commerce be- 
 tween the States 132 
 
 44 by the power to make treaties 133 
 
 " by the power to suppress insurrection 135 
 
 M right to deal with it not to be sought in party platforms . . . 137 
 
 (139)
 
 140 INDEX, 
 
 SLAVERY maybe 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. 1 15 
 
 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 34 
 
 Rules of interpretation 34 
 
 Are the United States at war ? 38 
 
 Declaration of war not necessary on the part of the government to give 
 
 it full belligerent powers 38
 
 INDEX. 141 
 
 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 66 
 
 Why the power exists 66 
 
 The President the sole judge how and when to use it 67 
 
 Powers of the President not inconsistent with powers of Congress to 
 
 emancipate slaves 68 
 
 Is liberation of enemy's slaves a belligerent right ? 68 
 
 The law of nations sanctions emancipation of enemy's slaves 69 
 
 Authority and usage confirm the right 74 
 
 How far the government of the United States, under former adminis- 
 trations, h#ve sanctioned the belligerent right of emancipating 
 
 slaves of loyal and of disloyal citizens 74 
 
 War powers of the President in general 82 
 
 CHAPTER IV. 
 
 BILLS OF ATTAINDER 84 
 
 Bills of attainder in England 84
 
 142 INDEX. 
 
 Punishment by attainder 84 
 
 Attainders prohibited as inconsistent -with constitutional liberty 85 
 
 Bills of attainder abolished 86 
 
 What is a bill of attainder 86 
 
 Bills of pains and penalties 87 
 
 Ex post facto laws prohibited bills of pains and penalties as well as 
 
 attainders, unconstitutional 88 
 
 Attainders in the colonies and States- 89 
 
 Bills of attainder, how recognized 91 
 
 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 post 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. 
 
 Ths right of Congress to declare the punishment of crimes against the 
 
 United States other than treason 1 15
 
 INDEX. 143 
 
 New crimes require new penal laws 115 
 
 Confiscation act of 1862 Ill 
 
 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 
 
 " " 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 
 
 " " of the framers of the constitution 137 
 
 M gives all powers necessary to public welfare and com- 
 mon defence 138
 
 
 $s 
 
 / . X .A>U 

 
 I 
 
 
 O 3M* 
 
 >":>V2?*<1 
 
 
 '^ ^- 
 
 SM 
 
 3s ^7 
 
 -> :>,? 
 
 aaaSfSS 
 
 .I*- 
 
 3> 2>>liy