The Rise and Fall of the Confederate Government Volume II Part 14

That body had no sooner a.s.sembled than it brought forward the doctrine that the Government of the United States was engaged in a struggle for its existence, and could therefore resort to any measure which a case of self-defense would justify. It pretended not to know that the only self-defense authorized in the Const.i.tution for the Government created by it, was by the peaceful method of the ballot-box; and that, so long as the Government fulfilled the objects of its creation (see preamble of the Const.i.tution), and exercised its delegated powers within their prescribed limits, its surest and strongest defense was to be found in that ballot-box.

The Congress next declared that our inst.i.tution of slavery was the cause of all the troubles of the country, and therefore the whole power of the Government must be so directed as to remove it. If this had really been the cause of the troubles, how easily wise and patriotic statesmen might have furnished a relief. Nearly all the slaveholding States had withdrawn from the Union, therefore those who had been suffering vicariously might have welcomed their departure, as the removal of the cause which disturbed the Union, and have tried the experiment of separation. Should the trial have brought more wisdom and a spirit of conciliation to either or both, there might have arisen, as a result of the experiment, a reconstructed fraternal Union such as our fathers designed.

The people of the seceded States had loved the Union. Shoulder to shoulder with the people of the other States, they had bled for its liberties and its honor. Their sacrifices in peace had not been less than those in war, and their attachment had not diminished by what they had given, nor were they less ready to give in the future. The concessions they had made for many years and the propositions which followed secession proved their desire to preserve the peace.

The authors of the aggressions which had disturbed the harmony of the Union had lately acquired power on a sectional basis, and were eager for the spoil of their sectional victory. To conceal their real motive, and artfully to appeal to the prejudice of foreigners, they declared that slavery was the cause of the troubles of the country, and of the "rebellion" which they were engaged in suppressing. In his inaugural address in March, 1861, President Lincoln said: "I have no purpose, directly or indirectly, to interfere with the inst.i.tution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." The leader (Sumner) of the Abolition party in Congress, on February 25, 1861, said in the Senate, "I take this occasion to declare most explicitly that I do not think that Congress has any right to interfere with slavery in a State." The principle thus announced had regulated all the legislation of Congress from the beginning of its first session in 1789 down to the first session of the Thirty-seventh Congress, commencing July 4, 1861.

A few months after the inaugural address above cited and the announcement of the fact above quoted were made, Congress commenced to legislate for the abolition of slavery. If it had the power now to do what it before had not, whence was it derived? There had been no addition in the interval to the grants in the Const.i.tution; not a word or letter of that instrument had been changed since the possession of the power was disclaimed; yet after July 4, 1861, it was a.s.serted by the majority in Congress that the Government had power to interfere with slavery in the States. Whence came the change? The answer is, It was wrought by the same process and on the same plea that tyranny has ever employed against liberty and justice--the time-worn excuse of usurpers--necessity; an excuse which is ever a.s.sumed as valid, because the usurper claims to be the sole judge of his necessity.

The formula under which it was a.s.serted was as follows:

"Whereas the laws of the United States have been for some time past and now are opposed, and the execution thereof obstructed, etc., by combinations too powerful to be suppressed by the ordinary course of judicial proceedings," etc.

Therefore, says the plea of necessity, a new power is this day found under the Const.i.tution of the United States. This means that certain circ.u.mstances had transpired in a distant portion of the Union, and the powers of the Const.i.tution had thereby become enlarged. The inference follows with equal reason that, when the circ.u.mstances cease to exist, the powers of the Const.i.tution will be contracted again to their normal state; that is, the powers of the Const.i.tution of the United States are enlarged or contracted according to circ.u.mstances. Mankind can not be surprised at seeing a Government, administered on such an interpretation of powers, blunder into a civil war, and approach the throes of dissolution.

Nevertheless, these views were adopted by the Thirty-seventh Congress of the United States, and a system of legislation was devised which embraced the following usurpations: universal emanc.i.p.ation in the Confederate States through confiscation of private property of all kinds; prohibition of the extension of slavery to the Territories; emanc.i.p.ation of slavery in all places under the exclusive control of the Government of the United States; emanc.i.p.ation with compensation in the border States and in the District of Columbia; practical emanc.i.p.ation to follow the progress of the armies; all restraints to be removed from the slaves, so that they could go free wherever they pleased, and be fed and clothed, when dest.i.tute, at the expense of the United States, literally to become a "ward of the Government."

The emanc.i.p.ation of slaves through confiscation in States where the United States Government had, under the Const.i.tution, no authority to interfere with slavery, was a problem which the usurpers found it difficult legally or logically to solve, but these obstacles were less regarded than the practical difficulty in States where the Government had no physical power to enforce its edicts. The limited powers granted in the Const.i.tution to the Government of the United States were not at all applicable to such designs, or commensurate with their execution. Now, let us see the little possibility there was for const.i.tutional liberties and rights to survive, when intrusted to such unscrupulous hands.

In Article I, section 8, the Const.i.tution says:

"The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces," etc.

This is the grant of power under which the Government of the United States makes war upon a foreign nation. If it had not been given in the Const.i.tution, there would not have been any power under which to conduct a foreign war, such as that of 1812 against Great Britain or that of 1846 against Mexico. In such conflicts the nations engaged recognize each other as separate sovereignties and as public enemies, and use against each other all the powers granted by the law of nations. One of these powers is the confiscation of the property of the enemy. Under the law of nations of modern days this confiscation is limited in extent, made under a certain form, and for a defined object.

For the modern laws of war one must look to the usages of civilized states and to the publicists who have explained and enforced them.

These usages const.i.tute themselves the laws of war.

In relation to the capture and confiscation of private property on land, in addition to what has been said in previous pages, it may be added that the whole matter has never been better stated than by our great American publicist, Mr. Wheaton, in these words:

"By the modern usages of nations, which have now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country,"--("Elements of International Law," p. 421.)

Mr. John Quincy Adams, in a letter to the Secretary of State, dated August 22, 1815, says:

"Our object is the restoration of all the property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken. All private property on sh.o.r.e was of that description. It was ent.i.tled by the laws of war to exemption from capture."--(4 "American State Papers," 116, etc.)

Again, Mr. William L. Marcy, Secretary of State, in a letter to the Count de Sartiges, dated July 28, 1856, says:

"The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities... . It is a generally received rule of modern warfare, so far at least as operations upon land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual, property by an army even in possession of an enemy's country is against the usage of modern times. Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circ.u.mstances."

The words of the late Chief-Justice Marshall on the capture and confiscation of private property should not be omitted:

"It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign, and a.s.sume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed."--("United States vs. Percheman," 7 Peters, 51.)

The Government of the United States recognized us as under the law of nations by attempting to use against us one of the powers of that law. Yet, if we were subject to this power, we were most certainly ent.i.tled to its protection. This was refused. That Government exercised against us all the severities of the law, and outraged that sense of justice and of right which is acknowledged and felt by the whole civilized world by rejecting the observance of its ameliorations. The act of confiscation is a power exercised under the laws of war for the purpose of indemnifying the captor for his expense and losses; and it is upon this basis that it is recognized.

At the same time there is a mode of procedure attached to its exercise by which it is reserved from the domain of plunder and devastation. As has been already shown, there are, under the law, exemptions of certain cla.s.ses of property. It is further required that the property subject to confiscation shall be actually captured and taken possession of. It shall then be adjudicated as prize by a proper authority, then sold, and the money received must be deposited in the public Treasury. Such are the conditions attached by the law of nations to legal confiscation.

Now, compare these conditions with the act of Congress, that in its true light the usurpations of that body may be seen. The act of Congress allowed no exemptions of private property, but confiscated all the property of every kind belonging to persons residing in the Confederate States who were engaged in hostilities against the United States or who were aiding or abetting those engaged in hostilities.

This includes slaves as well as other property. The act provided that the slaves should go free; that is, they were exempted from capture, from being adjudicated and sold, and no proceeds of sale were to be put into the public Treasury. The following sections are from the act of the United States Congress, pa.s.sed on August 6, 1861:

"Section 1. That if, during the present or any future insurrection against the Government of the United States after the President of the United States shall have declared by proclamation that the laws of the United States are opposed and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the power vested in the marshals by law, any person, or persons, his, her, or their agent, attorney, or employee shall purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein, or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned.

"Section 3. The proceedings in court shall be for the benefit of the United States and the informer equally.

"Section 4. That whenever hereafter, during the present insurrection against the Government of the United States, any person claimed to be held to labor or service under the law of any State shall be required or permitted by the person to whom such labor or service is claimed to be due, or by the lawful agent of such person, to take up arms against the United States, or shall be required or permitted by the person to whom such labor or service is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy-yard, dock, armory, s.h.i.+p, intrenchment, or in any military or naval service whatsoever against the Government and lawful authority of the United States, then, and in every such case, the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwithstanding. And, whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States contrary to the provisions of this act."

The following sections are from the act of Congress pa.s.sed on July 17, 1862:

"Section 6. That if any person, within any State or Territory of the United States other than those named aforesaid" (Confederate officers, etc.), "after the pa.s.sage of this act, being engaged in armed rebellion against the Government of the United States or aiding or abetting such rebellion, shall not within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion and return to his allegiance to the United States, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof. And all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days from the date of such warning and proclamation, shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or use of such property, or any of it, to allege and prove that he is one of the persons described in this section.

"Section 7. That to secure the condemnation and sale of any such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings _in rem_ shall be inst.i.tuted in the name of the United States in any district court thereof, or in any territorial court, or in the United States District Court for the District of Columbia, within which the property above described, or any part thereof, may be found, or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases; and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemy's property and become the property of the United States, and may be disposed of as the court shall decree, and the proceeds thereof paid into the Treasury of the United States for the purposes aforesaid.

"Section 9. That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the Government of the United States; and all slaves of such persons found or being within any place occupied by rebel forces and afterward occupied by the forces of the United States, shall be deemed captives of war, and shall be for ever free of their servitude, and not again held as slaves.

"Section 10. That no slave escaping into any State, Territory, or the District of Columbia from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime or some offense against the laws, unless the person claiming said fugitive shall first make oath that the person, to whom the labor or service of such fugitive is alleged to be due, is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military and naval service of the United States shall, under any pretense whatever, a.s.sume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service."

These above-mentioned proceedings violated all the principles of the law of nations, without a shadow of authority for it under the Const.i.tution of the United States. The armies of the United States were literally authorized to invade the Confederate States, to seize all property as plunder, and to let the negroes go free. Our posterity, reading that history, will blush that such facts are on record. It was estimated on the floor of the House of Representatives that the aggregate amount of property within our limits subject to be acted upon by the provisions of this act would affect upward of six million people, and would deprive them of property of the value of nearly five thousand million dollars.

Said Mr. Garrett Davis, of Kentucky:

"Was there ever, in any country that G.o.d's sun ever beamed upon, a legislative measure involving such an amount of property and such numbers of property-holders?"

But this is only one feature of the confiscation act which was applied to persons who were within the Confederate States, in such a position that the ordinary process of the United States courts could not be served upon them. They could be reached only by the armies.

There was another feature equally flagrant and criminal. It was extended to all that cla.s.s of persons giving aid and comfort, who could be found within the United States, or in such position that the ordinary process of law could be served on them. It was derived from Article III, section 3, of the Const.i.tution, which says:

"The Congress shall have the 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."

The mode of procedure against persons under this power was determined by other clauses of the Const.i.tution. Article III, section 2, declared that--

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed."

In section 3, of the same article, it was provided that--

"No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

This feature of the confiscation act, pa.s.sed by the Congress of the United States, provided for the punishment of the owner of property, on the proof of the crime, but excluded the trial by jury, and made the forfeiture of the property absolute instead of a forfeiture for life. Heavy fines were imposed, and property was sold in fee. The property to which the act applied was not a prize under the law of nations, nor booty, nor contraband of war, nor enforced military contributions, nor used or employed in the war or in resistance to the laws. It was private property, outside of the conflict of arms, and forfeited, not because it was the instrument of offense, but as a penalty for the a.s.sertion of his rights by the owner, which was imputed to him as a crime. Such proceeding was, in effect, punishment by the forfeiture of a man's entire estate, real and personal, without trial by jury, and in utter disregard of the provisions of the Const.i.tution. It was an attempt to get a man's property, real and personal, "silver spoons" included, into a prize court, to be tried by the laws of war.

It will be seen that we were treated by the Congress of the United States as holding the twofold relation of enemies and traitors, and that they used against us all the instruments of war, and all the penalties of munic.i.p.al law which made the punishment of treason to be death. The practical operation, therefore, of these laws was that, under a Const.i.tution which defined treason to consist in levying war against the United States, which would not suffer the traitor to be condemned except by the judgment of his peers, and, when condemned, would not forfeit his estate except during his life, the Government of the United States did proceed against six million people, without indictment, without trial by jury, without the proof of two witnesses, did adjudge our six millions of people guilty of treason in levying war, and decree to deprive us of all our estate, real and personal, for life, and in fee, being nearly five thousand million dollars. And, after we had been thus punished, without trial by jury, and by the loss in fee of our whole estate, the Government of the United States a.s.sumed the power, on the same charge of levying war, to try us and to hang us.

The first object to be secured by this act of confiscation was the emanc.i.p.ation of all our slaves. Upon his approval of the bill, President Lincoln sent a message to Congress, in which he said:

"It is startling to say that Congress can free a slave within a State, and yet, if it were said the owners.h.i.+p of the slave had first been transferred to the nation, and Congress had then liberated him, the difficulty would at once vanish. And this is the real case. The traitor against the General Government forfeits his slave at least as justly as he does any other property; and he forfeits both to the Government against which he offends. The Government, so far as there can be owners.h.i.+p, thus owns the forfeited slaves, and the question for Congress in regard to them is, 'Shall they be made free or sold to new masters?'"

It is amazing to see the utter forgetfulness of all const.i.tutional obligations and the entire disregard of the conditions of the laws of nations manifested in these words of the President of the United States. Was he ignorant of their existence, or did he seek to cover up his violation of them by a deceptive use of language. It may not be unseasonable to repeat here the words of John Quincy Adams, in his letter of August 22, 1815, as above stated:

"Our object is the restoration of all the property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken."

Let posterity answer the questions: Who were the revolutionists? Who were really destroying the Const.i.tution of the United States?