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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used in promoting the rebellion, in levying war against
the United States, is lawful prize of war. This would
include the arms, munitions, and provisions of war, in
actual use or procured for the purpose. The rule ex-
tends to goods used, not strictly as munitions or imple-
ments of war, but so as to defeat the military and naval


operations resorted to to subdue the rebellion : as goods
on their way to relieve besieged towns or forts ; or ships
or cargo violating a blockade, or proceeding to or from
ports with which commercial intercourse has been inter-
dicted. It may extend to ships and cargo upon the high
seas, the property of those levying war against the
United States ; enemies, not because of their domicile or
residence upon one part rather than another of the ter-
ritory of the Union, but because they are in arms
against it.

Perhaps we should add to these, requisitions or con-
tributions, within military districts, levied upon those at
war with the Government, for the support of the invad-
ing army. Such requisitions were, however, regarded
by Wellington, a great statesman as well as great com-
mander, as iniquitous ; as a system for which the
British soldier was unfit. I would refer also to the ex-
cellent remarks on this subject by President Woolsey,
in his admhable Introduction to " International Law,"
p. 304.

Beyond the points suggested, it is believed the usages
of international war do not extend. By the modern
usages of nations, private property on the land is ex-
empt from confiscation. This exemption, Mr. Wheaton
says (and there is no higher authority), is now held to
extend " to cases of the absolute and unqualified con-
quest of the enemy's country " ( Wheaton's " Elements
of International Law," p. 421). We refer also, as
tending to the same result, to Vattel, book 3, chap. 8,
sect. 147; to 1 Kent's " Commentaries," pp. 102, 104;
3 PhiUimore, p. 140 ; Woolsey, p. 304. To this miti-


gated rule of war, there are doubtless exceptions. Of
these, Mr. Wheaton says, —

" The exceptions to these general mitigations of the extreme rights
of war, considered as a contest of force, all grow out of the same
original principle of natural law, which authorizes us to use against
an enemy such a degree of violence, and such only, as may be neces-
sary to secure the object of hostilities. The same general rule which
determines how far it is lawful to destroy the persons of enemies, will
serve as a guide in judging how far it is lawful to ravage or lay waste
their country. If this be necessary in order to accomplish the just
ends of Avar, it may be lawfully done ; but not otherwise. Thus, if
the progress of an enemy cannot be stopped, nor our own frontier
secured, or if the approaches to a town intended to be attacked can-
not be made, without laying waste the intermediate territory, the ex-
treme ca'se may justify a resort to measures not warranted by the
ordinary purposes of war." — Page 421.

The exceptions growing out of military exigencies,
and measured and governed by them, cannot be foreseen
and provided for by legislation, but must be left, where
the law of nations leaves them, with the military com-

It has been said that these acts of general confisca-
tion find support under the provision of the Constitution
which authorizes Congress " to make rules concerning
captures by land and water." The Constitution does
not define the meaning of the word " captures." It
refers us in such cases to the law of nations, as in others
to the common law. Congress has power to declare
" war." What war is, the just causes of war, the rights
and duties of nations in conducting it, are to be found
in the law of nations. The " captures " referred to are
very plainly not seizures of property under legal pro-
cess, confiscation, or forfeiture, but the taking of enemy's


property by force or strategy, jure mdorlce. The title is
acquired by capture, and liable to be lost by recapture.
To make rules concerning " captures " is not to make
rules in conflict with or beyond the law of nations. The
extent to which the power conferred by the law of na-
tions shall be exercised, and the disposition to be had of
captures when made, are the proper subjects of munici-
pal law, and of the provision of the Constitution.

The case of Brown vs. the United States (8 Cranch,
110) has been cited as expressly deciding that Congress
has power to pass a confiscation bill. I submit, with
great respect, that it decides no such thing. The only
point decided in the case was, that British property
found in the United States, on land, at the commence-
ment of international hostilities (war of 1812), could not
be condemned as enemy's property, without an act of
Congress for that purpose. The court, dealing with a
question arising under war with a foreign nation, had no
occasion to consider the powers or duties of Congress
in the case of rebellion. The discussions of the court
recognize a distinction between the right of the sove-
reign to take the persons and confiscate the property of
the enemy wherever found, and the mitigations of the
rule which the humane usages of modern times have
introduced. With all my reverence for the great magis-
trate who delivered the opinion of the court, I must be
permitted to say, that usage is itself the principal source
of the law of nations, and that these humane usages
have become the rules of war in Christian States. The
law of nations, says Bynkershoek, is only a presumption
founded on usage (Deforo Legatoi^imi, chap. 18, sect. 6).


It is suggested, that, if the confiscation of private
jiroperty violated the law of nations, the courts could
not overrule the interpretation of that law by the politi-
cal department of the Government, and that no other
power could intervene. Possibly this may be so ; but
surely it is not intended that we shall violate the law of
nations in dealing with our subjects, because there is no
appeal or redress for the subject. It is in the exercise
of irresponsible power that the nicest sense of justice,
and the greatest caution and forbearance, are demanded.
In suppressing a rebellion so atrocious, marked by such
fury and hate against a Government felt only in its bless-
ings, forbearance seems to us weakness, and vengeance
the noblest of vu'tues ; but, in our calmer moments, we
hear the Divine Voice : " Vengeance is mine ; I will

I conclude what I have to say upon this branch of the
subject with the remark, that, in substance and effect,
the bills before the House seek the permanent forfeiture
and confiscation of property, real and personal, without
the trial of the offender. I am unable to see how, un-
der the Constitution, that result can be reached.

The temporary use of property in districts under mili-
tary occupation, and of estates abandoned by their
owners, rests upon distinct principles, which it is not
now necessary to consider. We have only to remark,
in passing, that the use of such property and the rule
in such districts can be provisional only, waiting the
regular action of the State governments, and in no way
impairing their permanent powers.

I proceed to the question of the deepest interest in-


volved ill this discussion, — the emancipation of slaves in
the "seceding States." There is no subject on which
our feelings are so likely to warp our judgment ; in
which calmness is so necessary and so difficult, and
declamation so easy or so useless. The general princi-
ples stated in relation to the power and duty of Congress
as to confiscation are applicable to the subject of eman-

On the question of policy, the plausible and attractive
argument is, that the only effectual way to suppress
rebellion is to remove its cause. The position, when
thoroughly probed, is, not that the National Government
has not the power to put down the rebellion without
resort to emancipation, but that the continued existence
of slavery is incompatible with the future safety of the
Republic. This plainly is not a question of present
military necessity, but one affecting the permanent
structure of the Government, and involving material
changes in the Constitution. This can be done in one
of two ways: in the method the Constitution points out ;
or by successful revolution on the part of the free
States, and the entire subjugation of the slave States.
No man can foresee to-day what policy a severe and
protracted struggle may render necessary. It is suffi-
cient to say, that into such a war of conquest and exter-
mination the people of the United States have no jiresent
disposition to enter. They have too thorough a convic-
tion of the capacity of the Government to subdue the
Rebellion by the means the Constitution sanctions, to be
desirous of looking beyond its pale.

Upon the legal aspect of the question, it may be


stated, as a general proposition, that Congress, in time
of peace, has no power over slavery in the States. By
that is meant the institution itself; for the National
6rovernment may, in my judgment, forfeit the right of
the master in the labor of the slave, as a penalty for
crime of which the master shall be convicted; and, when
so forfeited, it may dispose of the right as it sees fit.
Nor is there any intrinsic difficulty in the use of this spe-
cies of property under the right of eminent domain. If
the Government were constructing a fort or digging an
intrenchment, it might hire this species of labor, or, if
necessary, take it, as it might other labor or property,
giving reasonable compensation therefor.

The provision as to the return of fugitives from ser-
vice cannot be deemed an exception to the general rule
before stated ; for the provision applies to escapes from
one State into another, and not to escapes within the
State. Of which we may remark, in passing, that, as to
the former class, the power of the Government is strictly
civil, to be executed by judicial process ; and that, as to
the latter, the National Government, in time of war or
peace, has no concern.

Nor would an act of the National Government liberat-
ing the slaves within a State, having the consent of the
State and providing compensation for the masters, mili-
tate with the rule. Conventio vlncet legem. The consent
of the State would relieve the difficulty.

But the question arises, how far the existence of the
Rebellion confers upon Congress any new power over
the relation of master and slave. Strictly speaking, no
new power is conferred upon any department of the



Government by war or rebellion ; but it may have
powers to be used in those exigencies which are dormant
in time of peace. Such, for example, are the power to
call out the militia (art. 1, sect. 8), to try by martial law
cases arising in the militia (Amendments, 5), to sus-
pend the writ of habeas corpus (art. 1, sect. 9), to quarter
troops in private houses (Amendments, 3). But, when
the National Government is called to the stern duty of
repressing insurrection or repelling invasion, may not
new power over the relation of master and slave be
brought into action'? Such, I think, is the result.

A plain case is presented by slaves employed in the
military and naval service of the rebels. If captured,
they may be set free.

The Government may refuse to return a slave to a
master who has been engaged in the Eebellion, or suf-
fered the slave to be employed in it.

It may require the services of all persons subject to
its jurisdiction by residing upon its territory, when the
exigency arises, to aid in executing the laws, in repress-
ing insurrection, or repelling invasion. This right is, in
my judgment, paramount to any claim of the master to
his labor, under the local law. There might be a ques-
tion of the duty of the slave to obey ; but the will of the
master could not intervene. His claim, if any, would be
a reasonable compensation for the labor of his slave.

But, though the power may exist, there is, with pru-
dent and humane men, no desire to use it. Nothing
but the direst extremity would excuse the use of a
power fraught with so great perils to both races ; and
the recent triumphs of our arms, evincing our capacity


to subdue the Eebellion without departure from the
usages of^civiKzed warfare, have, I trust, indefinitely
postponed the question.

There is one other exigency in which the relation of
master and slave must give way to military necessity.
If the commander of a military district shall find that
the slaves within it, by the strength they give to their
rebellious masters, — by bearing arms, or doing other
military service, or acting as the servants of those who
do, — obstruct his efforts to subdue the Eebellion, he
may deprive the enemy of this force, and may remove
the obstruction, by giving freedom to the slaves. This,
it is apparent, is not a civil or legislative, but a strictly
military right and power, springing from the exigency,
and measured and limited by it, to be used for the sub-
duing of the enemy, and for no ulterior purpose. If the
commander-in-chief and the generals under him shall
observe faithfully this distinction, the use of the power
ought to be no just ground of complaint. If, in conse-
quence of the protraction of the war, the effect of the
use of this power should be to put an end to slavery in
any of the States, or to weaken and impair its force, we
may justly thank God for bringing good out of evil.

In my judgment, it would be impracticable for the
Legislature, even if it had the power, to anticipate by
any general statute the exigencies or prescribe the rules
for the exercise of this power. The Legislature and the
people will be content to leave the matter to the sound
discretion and patriotism of the magistrate selected to
execute the laws.

To avoid misconstruction, I desire to sav that the


power of Congress over slavery in this District is abso-
lute ; that no limitation exists in the letter qr spirit of
the Constitution or the acts of cession. All that is re-
quisite for abolishing slavery here is just compensation
to the master. Equally absolute, in my judgment, is the
power of Congress over slavery in the Territories.

Mr. Chairman, in a letter to a friend, published on the
first day of the last year, I ventured to say that secession
should be resisted to the last extremity, by force of arms ;
that it cost us seven years of war to secure this Govern-
ment, and that seven years, if need be, would be
wisely spent in the struggle to maintain it; that for
this country there was no reasonable hope of peace but
within the pale of the Constitution, and in obedience
to its mandates. The progress of events has served
only to deepen those convictions. They are as firmly
rooted as my trust in God and his providence. Who-
ever else may falter, I must stand by the Constitution I
have sworn to support. I am not wise enough to build
a better. I am not rash enough to experiment upon a
nation's life. There is, to me, no hope of " one country "
but in this system of many States and one nation, work-
ing in their respective spheres as if the Divine Hand
had moulded and set them in motion. To this system
the integrity of the States is as essential as that of the
central power. Their life is one life. A consolidated
government for this vast country would be essentially a
despotic government, democratic in name, but kept
buoyant by corruption, and efiicient by the sword.

Desiring the extinction of slavery with my whole mind
and heart, I watch the working of events with devout


gratitude and with patience. The last year has done the
work of a generation. By no rash act of ours, much
less any radical change in the Constitution, shall we
hasten the desired result. If, in the pursuit of objects
however humane ; if, beguiled by the flatteries of hope
or of shallow self-conceit; if, impelled by our hatred
of treason, and desire of vengeance or retribution ; if,
seduced by the " insidious wiles of foreign influence,"
we yield to such change, we shall destroy the best hope
of freeman and slave, and the best hope of humanity
this side the grave.



May 24, 1862.

The House having under consideration the bills to confiscate the
property, and free from servitude the slaves, of rebels, Mr. Thomas
said, —

Mr. Speaker, — Before proceeding to the discussion
of the measures before the House, I hope I may be
pardoned for making one or two preUminary sugges-
tions. At an early day, I expressed my earnest convic-
tion of the course to be pursued by the Government and
people of this country in relation to secession ; that it
was but another and an unmanly form of rebellion, and
that it must be met at the threshold, and crushed by
arms ; that after an ordinance of secession, as before, it
was the duty of the Government to execute in every
part of this indivisible Republic the Constitution and
the laws.

But I believed then, and believe now, that the life of
the States is just as essential a part of this Union as the
life of the central power ; that their life is indeed one
life ; and when the gentleman from New York [Mr.
Sedgwick] yesterday assured the House that the state-
ment made by me in a former speech, " that, when the
conflict of arms ceases, the nation will remain, and the


States will remain essential parts of the body politic,"
" was one of those bold and audacious propositions
which cannot fail to shock the common sense of man-
kind," I felt that either he or I had wholly miscon-
ceived the nature and structure of the Government
under which we live. E j^hirihiis unum ; Of many
States, one nation. The Union is not a graveyard for
the burial of dead commonwealths. The body politic is
safer with a severed limb than with a dead one. But
the gentleman from New York has made progress in
this doctrine of State suicide, and assures the House
not only of the death of the States, but that the people,
"by permission of the military power, and not before,"
can form new governments, and seek again admission
here. Mark the words, " by permission of the military
power, and not before." Where are we drifting, Mr.
Speaker ? and what is the end ? These are not hasty
words, but the deliberately uttered language of one, who,
no less by culture and capacity than by your appoint-
ment, is a leader of the House. " By permission of the
military power, and not before." I repeat the question,
Where are we drifting X What is the end \

I was guilty of another audacious act in the view of the
gentleman from New York. I awoke " St. Paul from
the dead" to give countenance to my doctrine. The
gentleman must pardon me, Mr. Speaker. I must be an
old fogy. It never occurred to me that the Epistles of
Paul were among the dead things of the past. I sup-
posed they were the well-springs of immortal life, and,
like the Gospels, the same to-day, yesterday, and for
ever. I am bound to presume this was a heedless


remark ; for I am sure the gentleman can have no sym-
pathy with the new school of philosophy which has
outgrown the gospel, and which, making equal war
with the Christian Church and with the Union, has
issued the new evangel, in which abstract love of the
race is substituted for practical love of our neighbor,
confusion for social order, freedom from restraint for
the liberty of obedience. But let this pass.

Mr. Speaker, no man can desire more earnestly than
I do the suppression of this Rebellion, and the restora-
tion of order, unity, and peace. But there are two
things I cannot, I will not do. I will not trample be-
neath my feet the Constitution I have sworn before God
to support. I will not violate, even against these rebels,
the law of nations as recognized and upheld by all
civilized and Christian States. I believe I must do both
to vote for these bills, and at the same time do an act
unwise, and especially adapted to defeat the end in
view, if that end be the restoration of the Union and
the salvation of the Republic.

I propose, very briefly, to examine the bills before
the House (and especially that as to the confiscation of
property), under the law of nations and under the Con-
stitution of the United States, and then to say a word
upon their policy.

The positions assumed by the friends of these mea-
sures are, that we may deal with those engaged in this
Rebellion as public enemies and as traitors ; that, re-
garding them as enemies, we may use against them all
the powers granted by the law of nations, and, viewing
them as rebels or traitors, we may use against them all


the powers granted by the Constitution ; and that, in
either view, these bills can be sustained.

Dealing with them as public enemies, it is said, that,
under the existing law of nations, we have a clear right
to confiscate the entire private property, on the land as
well as the sea, real and personal, of those in arms, and
of non-combatants who may in any way give aid
and comfort to the Rebellion. This first bill sweeps over
the whole ground. I deny the proposition, Mr. Speaker.
In the name of that public law whose every humane
sentiment it violates ; in the name of that civilization
whose amenities it forgets and whose progress it over-
looks ; in the name of human nature itself, whose better
instincts it outrages, I deny it. Such is not the law of

To give a plausible aspect to the proposition, the
advocates of this bill have gone back to Grotius and to
Bynkershoek for the rules of war ; and even then have
omitted to give what Grotius calls the temper amenta^ or
restraints upon the rules. You might as well attempt
to substitute the code of Moses for the beatitudes of the
gospel. Any thing can be established by such resort
to the authorities. By the older writers, you can prove
not only all the property of the vanquished may be
taken, but that every prisoner may be put to death. By
Grotius, I can show that all persons taken in war are
slaves, and that this is the lot even of all found
within the enemy's boundaries when the war broke out ;
that this iron rule applies, not to men only, but to their
wives and children ; nay, further, that the master has
over the slaves the power of life and death. — De Jure


Belli et Pads, book 3, chap. 7, sects. 1, 2, and 3. I
cite a short passage from the chajDter referred to: —

" The effects of this right are unlimited ; so that the master may do
any thing lawfully to the slave, as Seneca says. There is no suffer-
ing Avhich may not be inflicted on such slaves Avith impunity ; no act
which may not in any manner be commanded or extorted : so that
even cruelty in the masters towards persons of servile condition is
unpunished, except so far as the civil law imposes limits, and punish-
ments for cruelty. In all nations alike, says Caius, we may see that
the masters have the power of life and death over slaves. He adds
afterwards, that, by the Roman law, limits were set to this power ;
that is, on Roman ground. So Donatus in Terence : ' What is not
lawful from a master to a slave ? ' "

By Bynkershoek, you may establish that the con-
queror has over the vanquished the power of Hfe and
death, and the power of selling them into slavery ; that
every thing is lawful in war, — the use of poison and the
destruction of the unarmed and defenceless. — Law of
War, Duponceau s translation, pp. 2, 18, 19, 20.

But what then, Mr. Speaker'? Does any man sup-
pose that these writers give us the laws of war, as
upheld, sanctioned, and used by the Christian and civil-
ized States of to-day ? Nothing would be further from
the fact. Commerce, civilization. Christian culture, have
tempered and softened the rigor of the ancient rules ;
and the State which should to-day assume to put them
in practice would be an outcast from the society of na-
tions. Nay, more : they would combine, and rightfully
combine, to stay its hand. For the modern law of war,
you must look to the usages of civilized States, and to
the publicists who have explained and enforced them.
Those usages constitute themselves the laws of war.


In relation to the capture and confiscation of private
property on the land, I venture to say with great confi-
dence, and after careful examination, that the result of
the whole matter has never been better stated than by
our own great publicist, Mr. Wheaton : —

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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 3 of 15)