Benjamin Franklin Thomas.

Speeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) online

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their base ends. Morally, it is an aggravation of the
offence. It does not change its essential legal character.

In the Convention for forming the Constitution of the
United States, Luther Martin, of Maryland, was anxious
to insert a provision to save the citizens of the States
from being punishable as traitors to the United States
when acting expressly in obedience to the authority
of their own States. The provision offered by him
was, —

" That no act or acts done by one or more of the States against
the United States, or by any citizen of any one of the United States,
under the authority of one or more of the said States, shall be deemed
treason, or punished as such ; but, in case of war being levied by one
or more of the States against the United States, the conduct of each
party towards the other, and their adherents respectively, shall be
regulated by the laws of war and of nations."



This proposition was rejected, Mr. Martin says with
much feeling, because the leading members of the Con-
vention meant to leave the States at the mercy of the
National Government. The more obvious reason is,
that it was inconsistent with the whole theory of the
Constitution, which, springing from the people of the
United States, acted directly upon them as its subjects,
and with a force which no law or ordinance of a State
could impair.

This, then, is not a conflict of States ; nor is it a war
of countries or of geographical lines. It is a conflict
between Government and its disobedient subjects. He
only is the enemy of the United States who is commit-
ting treason by levying war against the United States,
or giving aid and comfort to those who do. The loyal,
faithful subject of the United States, wherever on the
soil of his country he may have his home, is not
the enemy of his country. No subtilty of logic, no
ingenuity of legal construction, no misapplication of
the laws of international war to this contest, can change
the nature of things ; can convert loyalty into treason,
or devotion into hostility. If there be to-day in Ten-
nessee or Georgia, or South Carolina even, a loyal
subject of the United States, " faithful among the faith-
less found," the Government is not at war with him.
I am aware, that, as to property taken on the high seas,
some of the district courts of the United States have
held otherwise ; but I venture to hope, that the court
of last resort will affirm the doctrine, stated by Mr. Jus-
tice Nelson of that court, to be good sense and sound
law: —


" On the breaking-out of a war between two nations, the citizens
or subjects of the respective belligerents are deemed by the law of
nations to be the enemies of each other. The same is true, in a quali-
fied sense, in the case of a civil war arising out of an insurrection or
rebellion against the mother-government. But, in the latter case, the
citizens or subjects residing within the insurrectionary district, not
implicated in the rebellion, but adhering to their allegiance, are not
enemies, nor to be regarded as such. This distinction was constantly
observed by the English Government in the disturbances in Scotland,
under the Pretender and his son, in the years 1715 and 1745. It
modifies the law as it respects the condition of the citizens or sub-
jects, residing within the limits of the revolted district, who remain
loyal to the Government."

The difference between a war and a rebellion is clear
and vital. War is the hostile relation of one nation to
another, involving all the subjects of both : rebellion
is the relation which disloyal subjects hold to the na-
tion, not involving or impairing the rights of loyal
subjects. The law may fail to protect obedient subjects ;
but it never condemns them. As between the Govern-
ment, and its subjects in arms against it, the legal relation
is not that of war, notwithstanding the war-power is
used to subdue and reduce them to obedience. Though
the Rebellion has assumed gigantic proportions, and the
civil power is impotent to repress it, the array of num-
bers, and extent of physical force, do not change its
essential legal character. It is still treason, — the levy-
ing of war against the United States by those who owe
to it allegiance. For this exigency the Constitution has
X^rovided. The war-power of the Government may be
evoked " to execute the laws of the Union, and to sup-
press insurrection." In levying war against the United
States, the rebels do not cease to be traitors, but are


doing the thing in which the Constitution declares trea-
son to consist (art. 3, sect. 3).

While using the powers and appliances of war for
the purpose of subduing the Rebellion, we are by no
means acting without the pale of the Constitution. We
are using precisely the powers with which the Constitu-
tion has clothed us for this end. We are seeking
domestic tranquillity by the sword the Constitution has
placed in our hands. In the path of war, as of peace,
the Constitution is our guide and our light, the cloud by
day, the pillar of fire by night.

AVhile using the powers of war for executing the
laws and subduing rebellion, we are, of course, bound
and restrained by the laws of war. It is our duty and
our privilege to respect the maxims of humanity and
moderation by which the law of nations and of Chris-
tian civilization has tempered the spirit of modern
hostilities. During the war, we may recognize in the
rebels the rights of belligerents ; may send them flags
of truce ; may make with them capitulations, cartels for
exchange of prisoners ; and extend to them the courte- '
sies which mitigate, to some extent, the iron rigor of
war. These things were done in the earliest stages
of our Revolution, not only before the separation of the
Colonies was declared, but before the idea of inde-
pendence had fairly taken possession of the public
mind. But it was never supposed, that, by adopting
the usages of civilized warfare, Great Britain was relax-
ing her hold upon the Colonies, or elevating them into
independent powers. Nothing is, I think, plainer in
principle, than that the recognition of these rights and


the observance of these usages — flagrante hello — can-
not affect the legal rekition of the parties ; does not
divest the sovereign of his power, or release the subject
from his duties, when the strife of arms ceases. It is
only when rebellion has ripened into successful revolu-
tion, that the permanent legal relations of the parties
are changed. The recognition of the " belligerent rights"
of the rebels by foreign powers, can, as between the
sovereign and his subjects, have no other or further
effect. Such recognition (if known to the law of na-
tions) proceeds upon the ground, that the revolution is
not accomjjlished, and that the connection is not dissolved.
Had this been done, the recognition would have been
of their separate national existence.

In my humble judgment, Mr. Chairman, the " seceded
States" (so called), and the people of those States, are
to-day integral parts of the Union, over whom, when
the conflict of arms ceases, the Constitution of the
United States, and the laws made under it, will resume
their peaceful sway. Traitors may perish ; some insti-
tutions may perish : the nation will remain ; and the
States Avill remain, essential parts of the body politic.
" The body is one, and hath many members ; and all
the members of that body, being many, are one body."

With this brief and imperfect development of the
principles involved in this great controversy, I proceed
to a more direct consideration of the subjects of confis-
cation and emancipation.

In seeking to know what this Government ought to
do in relation to the confiscation of private property, or
the emancipation of slaves, in the " seceding" States, the


obvious question presenting itself to every mind at
the threshold is, What is the end which the Government
and the people are seeking to attain 1 There can be
but one loyal answer to that question. It is to preserve
the Union and the Constitution in their integrity; to
vindicate in every part of this indivisible Republic its
supreme law. No purpose, however humane, benefi-
cent, or attractive, can divert our steps from the plain,
straight path of sworn duty. What is writ is writ. In
seeking to change it by force of arms, we become the
rebels we are striving to subdue.

It is a plain proposition, that, in seeking to enforce
the law, we are, as far as possible, to obey the law.
We are not to destroy in seeking to preserve. The
people do not desire a bitter and remorseless struggle
over the dead body of the Constitution. We may raise
armies and navies, and pour out as water the treasure
and life-blood of the people ; but we can neither think
nor act wisely, live well, or die well, for the Republic,
unless we keep clearly and always in view the end of
all our labors and sacrifices, — the Union of our fathers,
and the Constitution, which is its only bond. No
thoughtful man can believe there is a possibility of
reconstructing the Union on any other basis ; or that it
is within the province of Congress, in any other but the
peaceful way of amendment, to make the eff'ort.

The bills and joint resolutions before the House, pro-
pose, with some diff"erences of policy and method, two
measures, — the confiscation of the property of the
rebels, and the emancipation of their slaves. Some of
the resolutions propose the abolition of slavery itself,


with compensation for loyal masters. It is my duty to
examine, as briefly as I may, the wisdom, the justice,
and the constitutionality of the measures proposed.
And, flrst, of confiscation.

The propositions for confiscation include the entire
property of the rebels, real and personal, for life and in
fee. Within the class whose estates are to be confis-
cated are included not only those personally engaged in
the Rebellion, in arms against the Government, but
also those who adhere to them, giving them aid or com-
fort: so that within the sweep of the bills would be
brought substantially the property of eleven States and
six millions of people.

The mind instinctively shrinks from a proposition
like this. It relucts to include in one "fell swoop" a
whole people. It asks anxiously, if no consideration is
to be had for difl"erent degrees of guilt ; if the same
measure is to be meted to those who organized the
Rebellion and those who have been forced into it ; if no
consideration is to be given to the fact, that allegiance
and protection are reciprocal duties; and that, for the
last ten months, the National Government has found
itself incapable of giving protection to its loyal subjects
in the "seceding States," — neither defending them,
nor giving them arms to defend themselves ; and that,
deprived of our protection and incapable of resistance,
they have yielded only to superior force ; if a wise
Government is to forget the nature of man and the
influences of birth, of soil, of home, of society, and of
State, by which his opinions are insensibly moulded ; and
that this pestilent heresy of the right of secession, fatal



as it is now seen to be, not only to the existence of good
government, but of social order itself, has been a cardi-
nal article in the faith of a large portion of the people in
the Southern States ; and that they have been induced,
by the arts and sophistries and falsehoods of unprin-
cipled leaders, to believe that their future safety and
well-being required the exercise of the right. Those
leaders should atone for their crime by the just penalty
of the law. But you cannot, says Burke, indict " a
whole people ; " you cannot apply to them the ordinary
rules of criminal jurisprudence. To state the propo-
sition to confiscate the property of eleven States is to
confute it ; is to shock our common sense, and sense of
justice ; is to forget not only the ties of history and
of kindred, but those of a common humanity ; is to
excite the indignation of the civilized world, and to in-
voke the interposition of all Christian governments.

It is said that just retaliation requires the confisca-
tion of the property of the rebels. Doubtless nations
may feel compelled to resort to measures of severe
retaliation ; it may be their only security against future
outrage : but a firmly established government does not
resort to cruelty and injustice because its rebellious
subjects have done so. It must maintain a higher
standard of rectitude and justice. Its object is, not
vengeance, but to deter men from crime. It knows
that harsh and severe punishments but rouse pity
for the criminal, and indignation against the Govern-

Nor will the difi"erence between confiscation by the
rebels and by this Government be overlooked. Our


acts of confiscation, if within the limits of the Constitu-
tion, are effective and permanent : theirs, void in law,
are temporary in their effect. The title to one square
inch of land will not be changed by any confiscation by
the rebel authorities. Every man who has occupied
the land of a loyal citizen under their pretended acts of
confiscation will be liable for the full rent and damages
to the estate. Every man who is in possession of
personal property under them will be compelled to
disgorge. Every debt paid under them into rebel trea-
suries will still be due to the loyal creditor. The resto-
ration and indemnity will, I know, be imperfect. Many
grievous wrongs will go unredressed ; but every rebel,
whatsoever functions he may have usurped, — judicial
or executive, — who has invaded the rights of person or
of property of a loyal citizen, will be liable to his last
farthing for indemnity. So far, therefore, as our Go-
vernment confiscates the property of rebels to its own
use, it takes from the loyal citizen the sources to which
he may justly look for redress.

The acts of general confiscation proposed would de-
feat the great end the Government has in view, — the
restoration of order, union, and obedience to law. They
would take from the rebels every motive for submission ;
they would create the strongest possible motives to con-
tinued resistance. In the maintenance of the Confede-
rate Government, they might possibly find protection ;
in the restoration of ours, spoliation. Bpollatis anna
siq^ersimt. You leave them the great weapon of de-
spair. Sallust said of the old Romans, " Majores uostri
religiosissimi mortales nihil victis eripiebant pnrter inju-


rise licentiam," — " Our ancestors, the most religious of
men, took from the vanquished nothing but the license
of wrong-doing," — " words," says Grotius, " worthy of
having been said by a Christian."

It seems to be taken for granted, that our efforts to
suppress the Rebellion will be successful in proportion
to the severity of the measures we adopt. The assump-
tion is at war with the lessons of history and with the
nature of man. The most vigorous prosecution of
the war possible is best for the Government and its sub-
jects in arms against it. But the war is means to an
end. "Wise men labor in the hope of rest, and make
war for the sake of peace." It is only when justice is
tempered with mercy that it is justice.

Apart from the injustice and impolicy of these acts of
sweeping confiscation, I have not been able to find in
the Constitution the requisite authority to pass them.
There are two aspects in which the legal question may
be viewed, — first, the confiscation and forfeiture of pro-
perty as the punishment for crime ; secondly, under what
has popularly been called the " war-power " of the

Looking at confiscation as the penalty of crime, trea-
son, or any lower grade of off'ence, some things seem to
be plain : —

That such forfeiture can be created by statutes appli-
cable only to oftences committed after their passage.
Congress cannot pass an ex j^ost facto law (Constitu-
tion, art. 1, sect. 9).

The subject charged with treason may justly claim all
the muniments and safeguards of the Constitution.


He cannot be deprived of life, liberty, or property,
without due process of law (Amendments, art. 5) ; that
is, judicial process, as understood from the days of
Magna Carta.

He cannot be held to answer for a capital or other-
wise infamous crime, except in cases arising in the land
or naval forces, or in the militia when in actual service
in time of war or public danger, unless on present-
ment or indictment by a grand jury (ibid.).

After indictment, he must have a trial by an impartial
jury of the State and district wherein the crime shall
have been committed; which district shall have been
previously ascertained by law (art. 3, sect. 2 ; Amend-
ments, art. 6).

No attainder of treason can work a forfeiture, except
during the life of the person attainted (Constitution,
art. 3, sect. 2). By attainder is here clearly meant judi-
cial attainder ; as a bill of attainder (that is, an act of
the Legislature) is, by a prior provision of the Constitu-
tion, expressly forbidden (art. 1, sect. 9).

These sacred provisions of the Constitution, which, as
common-law muniments of life, liberty, and property,
have existed in substance for six centuries, — " the least
feeling their care, and the greatest not exempted from
their power," — lie directly in the path, and are fatal
obstructions to any legislation confiscating property as
the penalty of treason, except as the result of the judi-
cial trial and sentence of the offender.

It has been assumed, — I think, without sufficient re-
flection, — that, under our laws against treason, the most
obnoxious traitors even will escape the righteous punish-


inciil, of tlicir criiiK'S, Ixu^iiusc tlicy inusl: Ix* li'icul by ;i
jury in IIh; Sliil(> imd dislrict wluM-cin Uic oflriuu^ sliiill
li;iv(; been coiiimiljrd. 'riKTir only cscapo will be by
exile. Wbcrc war is actually l('vi(>(l af^Miiist tbo TFnitod
StalrM, wlicrc b()di(>s of iii(>ii ba.v(; Ixmmi actually ass(Mn-
blcd to olloct l)y fon^o of arnis tlioir troasoiiablo piir-
|>()S('S, all tlioHo wlio porforrri any part, bowevcu- iniuute
or iio\v('V(>r roinoto (Voin tli(> srcuv. of action, and who
arc actually l(>a<2;u('d in tli(> i;(.>ncrul eonspiraoy, arc to be
considenMl as traitors ( A'r /Htrfc, Holnvan, »!<:('., 4 ('raneli,
75). Wv bave not, indeed, adojjted tlie biw of eon-
stru(ti\'e |)resence, A\liicli bolds tliat a, man who incites
oi* jtrocures a, treasonable act, is, by foi'c(> of the iiu'ite-
nuMit or proeiirenient merely, lei;a,lly present at (lu^ act.
Hut it may \)r sullicient to eonslitute |)resence, il" be is
in a situation in wbicb iu' can eo-opcM-ate with any act of
liostility, or fnrnisb counsel and assistance* to tbe |)arties
if al(ack(Ml (United Sta((\s vs. Ibirr, I Crancb, 170).
'I'be mod(>rn facilities of coinmunicatiou fj^reatly enlaii;(>
\\\c field of co-opeiation. A comniauder at tbe end of a
tel(>«;ia|)b-Avir(\ directini;- tb(> assatdt upon a. fort of tbe
lluit(>(l Slates, or at, a. railroad station wifb troojjs r(M(ly
to be mo\(Ml to tin* assistance of tb(> rebel arm)' in
action, is, in law, i)res(Mit. at tbe oNcrt acts of treason.
'I'be leadiM's of tbis lvt>bellion will be found, tJierc^lore, to
ba\(' committed treason, and to be liable to indictment
and trial in many Stales and districts iu wbicb a jury
will be ready, upon ad(M[uati» proof, to convict.

In tb(> ])ropos(>d mea,sur(\s, tlu> tbini;- soni^bt to bc^
done is tb(> coidiscation of tbe propert\ of tbe yc\)v\
as tbe penalty of bis oliencis and tbe attaiuuu>nt of tbis


cud witliout tlic trial and conviction of tlic offcudcr.
Tlioup^li, under the Constitution, upon a, trial and r(»inlc-
tion of a traitor, you can only take the; life estate;, llicse
measures assume, that, without any trial or conviction,
you may take the fee-simple. Our le<jjal instincts slirink
from such a proposition. Its intrinsic diflicnltics liave
been seen and felt ; and a resort has l)ccn liad to analo-
gies and precedents, judicial and legislative, to find for
it some sanction and suj)p()rt; I tliiiik, without suc-

1. It is true, as has been said, tliat, under tlu; (Consti-
tution, men may be deprived of life and i)r()])(;r(y without
trial by jury. Cases arising in the land and naval forces,
and in the militia when in actual service; in time of war
or public danger, wyv. in terms e.\ccpt(;d from tlic g(Mu;-
ral iSile (Amendments, art. ;")); but the excei)tion, in-
steadjjof impairing, by the law of logic as of (common
sense, confirms tlic rule.

2. Property is taken for taxes, and certainly without
trial by jury, where tlie tax, and mode of assc^ssment, are
valid ; l)ut tliis is under an e\i)rcss gr;int of ])()\v(;r to
Congress " to lay and colhu;t taxes" (art. 1, sect. H), the
])rin(;iple and general method of which were perfectly
well understood when tin; Constitution was ado|)tcd.
Nor does the exercise of this power, as has been sug-
gested, take ])rivate pro])erty for ])ublic; use; without just
compensation : on the; contrary, tb(; true; and just tlicory
of taxation is, tliat the price ])aid is the reasonable (-om-
pensiition for the ])rote(;tion and s(;ciirity of life, liberty,
and pi'operty, which a wise and cllicient government



3. The forfeiture of goods for breach of the revenue-
laws has slight, if any, analogy to the confiscation of
property as a punishment for the crime of its owner.
To Congress is given the power to " regulate com-
merce," and " to levy and collect imports ; " and, of
course, to prescribe the terms and conditions upon
which goods may be imported. It may well avail itself
of a familiar principle by which property used in violat-
ing, defeating, or defrauding the law is liable to forfeit-
ure. Though the forfeiture of the common law did
not, strictly speaking, attach in rem, but was a part
or consequence of the judgment of conviction of the
offender, this doctrine was never applied to seizures and
forfeitures created by statute in rem, and cognizable on
the revenue side of the exchequer. The thing was then
primarily considered as the offender, and the offence was
attached to it. The same principle is applied to pro-
ceedings m rem, and seizures in the admiralty (2 Whea-
ton. The Palmyra). It is upon this distinction that the
statutes of July 19 and of Aug. 6, 1861, find their sup-
port. The principle is, that the thing used in violating
the law may be seized and condemned without a judg-
ment upon the guilt of the owner.

I proceed to inquire how far, if at all, the powers of
Congress are enlarged by the existence of this Eebellion,
and the use of the appliances of war to subdue it.

It would seem to be plain, that the resistance of any
portion of the people to the Constitution and laws can-
not operate to confer upon Congress any new substan-
tive power, or to abrogate any limitations of the powers
of Congress which the people have imposed. When


the Constitution intends that the existence of war or
rebellion shall put an end to any restriction on the
power of the Government, it says so : when it does not
say so, the fair inference is that it does not mean so.
Examples of such removals of restraint are found in
article one, section eight, providing that the privilege of
the " writ of habeas corpus shall not be suspended, un-
less when, in cases of rebellion or invasion, the public
safety may require it ; " and in article three of the
Amendments, forbidding, in time of peace, the quarter-
ing of soldiers in any house without the consent of the
owner, but in time of war permitting it to be done " in
a manner to be prescribed by law."

Engaged in suppressing a great and formidable rebel-
lion, the Governn>ent may use the instrumentalities of
war, so far as they are adapted to the end : but it is
never freed from the restraints of the Constitution ; can
never rise above it. The Constitution is never silent in
the midst of arms. In war, as in peace, it is the su-
preme law ; itself salus loopuU et siqwema lex.

When Government is compelled to use the power of
war, it observes its limitations. How far, in the use
of this power, it may confiscate, or subject to forfeiture,
private property, is the next question before us.

Some things are tolerably well settled. That property

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Online LibraryBenjamin Franklin ThomasSpeeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) → online text (page 2 of 15)