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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" But by the modern usage of nations, which has now acquired
the force of law, temples of religion, public edifices devoted to civil
purposes only, monuments of art, and repositories of science, are ex-
empted from the general operations of war. Private property on land
is also exempt from confiscation, Avith 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 Lato, p. 421.

It is not too much to say, that no careful student of
international law will deny that this passage from Mr.
Wheaton fairly expresses the modern usage and law
upon the subject ; but you will permit me to refer for a
moment to the doctrine stated by my illustrious prede-
cessor, whose name has been so often invoked in this
debate, John Quincy Adams. " Our object," he says in
a letter to the Secretary of State, " 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 shore was of that
description. It was entitled by the laws of war to ex-
emption from capture." — Mr. Adams to the Secretary
of State, Aug. 22, 1815.

Again, he says, in a letter to Lord Castlereagh, Feb.
17, 1816,—

" But as, by the same usages of civilized nations, private property
is not the subject of lawful capture in war upon the land, it is perfectly



44 CONFISCATION.

clear, that, in every stipulation, private property shall be respected ;
or that, upon the restoration of places during the war, it shall not be
carried away." — 4 American State Papers, pp. 116, 117, 122, 123.

A volume might be filled with like citations from
modern writers. I will content myself with perhaps
the latest expression, and from a great statesman, a
native of Massachusetts, and of my own county of
Worcester : —

" The prevalence of Christianity and the progress of civili-
zation 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 circumstances. Every conside-
ration which upholds this conduct in regard to a war on land favors
the application of the same rule to the persons and property of citi-
zens of the belligerents found upon the ocean." — Mr. Marcy to the
Count cle Sartiges, July 28, 1856.

Such I believe to be the settled law and usage of na-
tions. A careful examination of the arguments made
on this subject has served but to strengthen and deepen
this conviction.

I do not forget, Mr. Speaker, that the case of Brown
vs. The United States (8 Cranch, 110) has been often
referred to in this debate as afl[irming the contrary rule.
The points decided in that case I have before stated to
the House. The points, the only points, decided were,
that British property found in the United States on land
at the commencement of hostilities (war of 1812) could



CONFISCATION. 45

not be condemned as enemy's property, without an act
of Congress for that purpose ; and that the declaration
of war was not sufficient. Gentlemen have referred to
the obiter dicta, the discussions of the judges, as the
decision of the court. The distinction is familiar and
vital, but has been lost sight of in this debate. Only
the points necessarily involved in the result constitute
the decision. Let me illustrate the matter by a familiar
case, — that of Dred Scott. It is the matter outside of
the decision, what a distinguished jurist has called the
" slopping-over" of the court, that was so fruitful in mis-
chief. The point decided by the majority of the court
was, that Dred Scott was not a citizen of Missouri, so
as to be able to maintain an action in the courts of the
United States, upon the grounds of such citizenship.
Under the conflicting decisions in the courts of Mis-
souri, I have always thought that case might have been
decided either way, without attracting public attention
or animadversion. All that was said outside of that
point has no more legal force than the paper on which
it was written. Use the sayings of the judges in that
case, as they have used those in Brown vs. The United
States, and you can establish the rightful existence of
slavery in the Territories, the invalidity of the Missouri
Compromise, and God only knows how many other
errors in history and law. Treat what is said by the
majority of the court outside of the point decided as
argument, — and it is nothing more, — and slavery in the
Territories is without any legal prop or support. And
I may say, in passing, Mr. Speaker, there never was, in
my judgment, a plausible argument even to establish the



46 CONFISCATION.

power and right of the master to take his slave into
the Territories, and hold him in servitude. Slavery
exists by local law and usage only. It has no extra ter-
ritorial power. The moment the slave, with the consent
of the master, is taken beyond the line of the place
where the law tolerates its existence, the chains fall
from his limbs. Property in the slave there may be by
local municipal law, but not by the law of nature and
of nations ; not by that universal, immutable law of
which Cicero speaks so divinely in the " Republic." May
I give the Latin, Mr. Speaker ? Nee erit alia lex Ro-
mce, alia Athenis, alia nunc, alia j^osthac ; sed et omnes
genies et omni temjwre una lex et semjnterna et immuta-
hilis continebit. Nobler thought in nobler words never
fell from human lips or pen.

But I return from this digression to say, Mr. Speaker,
that the distinction sought to be established by the pas-
sages cited from the discussions in the case of Brown
vs. The United States, between the law of war and the
mitigations of that law which the usages of modern
nations have introduced, has no foundation in principle.
It is in the usages of civilized and Christian nations
that we are to seek the law of nations. As the law
merchant has grown up from the usages of trade and
commerce, so has the modern law of nations grown up
from the usages of enlightened States. The ancient
barbarous rules of war have been tempered and softened
by commerce, by the arts, by diffused culture, and, more
than all, by the spirit of the gospel ; and all Christian
States recognize with joy and with obedience the milder
law. In the jurisprudence of nations, as in our own,



CONFISCATION. 47

there is one law felt above all others, — the law of pro-
gress. Apparently at rest, it is ever silently moving
onward, qnickened, purified, and illumined by the in-
spiration of that higher law, " whose seat is the bosom
of God, and its voice the harmony of the world." The
great, prophetic thought of Pascal may yet be realized :
Deux lois suffisent pour regler la rqmhlique chreti-
enne, tnieux que toutes les lois jjolliiques, — V amour de
Dieu, et celui du prochain.

I do not know that I can more fitly conclude what I
can say, in the brief time allotted to me, on the capture
and confiscation of the private property of rebels,
viewed in the light of international law, than in the
words of John Marshall, near the close of his judicial
life : —

" It may not be unworthy of remark, that it is very unusual, even
in cases of conquest, for the conqueror to do more than to displace
the sovereign, and assume dominion over the country. The modern
usage of nations, which has become law," —

mark the words, Mr. Speaker, — " the modern usage of
nations, which has become law," —

— " would be violated ; that sense of justice and of right, which is ac-
knowledged 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. If this be the modern
rule, even in cases of conquest, who can doubt its application to the
case of an amicable cession of territory ? " — United States vs. Per-
cheman, 7 Peters, 51.

It is against the light of these considerations and
authorities, and against the prevailing law and judg-



48 CONFISCATION.

ment of the Christian world, that it has been so often
confidently, I will not say flippantly, asserted on this
floor, that there could be no doubt of our power, under
the law of nations, to seize and confiscate the entire
property of the rebels as public enemies.

I pass to the second branch of the subject, our
power, under the Constitution, to pass these bills. It
has been often said in the course of this debate, and in
terms without qualification, that the rebels hold to us
the twofold relation of enemies and traitors, and that
we may use against them all the appliances of war and
all the penalties of municipal law. To a certain limit-
ed extent, the proposition is sound. Treason consists
in levying w^ar against the United States. The act
of treason is an act of war, and you use the powers of
war to meet and subdue traitors in arms against the
Government.

It is also true, that, in the relations between the Gov-
ernment and its subjects, the rightful power of punish-
ment does not necessarily cease with the war; but is it
also true, that you can exercise both powers at the same
time "? And is not here the utter fallacy of this whole
argument 1 Take an example. You have been accus-
tomed to exchange flags of truce ; you have recognized,
to a certain extent, belligerent powers. An officer of
the rebel army comes to you under a flag of truce : can
you take him from under that flag, and hang him for
treason ] He stands to you in the double relation of
enemy and traitor ; but you cannot touch a hair of his
head while he is under that white flag. Take another
case. You have stipulated for an exchange of prisoners



CONFISCATION. 49

of war. The cartel has been sent, and the prisoner of
war is on his way to make the exchange. Does any
man on this floor say that you can take him on his way,
and try and hang him ? And if not, why not ^ The
plain answer is, Because, having recognized him as under
the law of nations, while he is subject to its power, he
is entitled to its protection.

Pass what bills Ave may, Mr. Speaker, when the war
is ended, these questions will come up to be settled. I
hope I may be pardoned for saying, with great respect,
to my friends on all sides of the House, that they will
be as difficult questions as statesmen or jurists were ever
called upon to decide ; and that it is wise to reserve, as
far as possible, our judgment. No thoughtful man will
content himself with the declaration, that belligerent
" rebels have no rights." Passion may say that ; reason,
never. Passion, sooner or later, subsides, and reason
re-ascends the judgment-seat ; and these questions must
be answered there, and to that august tribunal before
which the conduct of men and nations passes in view, —
the enlightened opinion of the Christian world. Such
questions are, how far, flagrante hello (while war was
raging), with respect to prisoners of war, the civil
power was restrained ; how far the treating with rebels,
and exchanging them as prisoners of war, may affect
their punishment as traitors, either in person or pro-
perty. I express no opinion, except to say they must be
calmly met and answered.

But assuming, for the sake of the argument, that
during the war even, and w^hile recognizing their belli-
gerent rights, you may visit upon the rebels the full force



50 CONFISCATION.

and weight of the municipal law, I proceed to inquke
whether the mode proposed by these bills is in confor-
mity to the organic and supreme law, the Constitution of
the United States. I am not to be deterred from the
discussion by any suggestions from weak or wicked
men — none other can make them — of leniency to
rebels, and compassion for traitors. There is but little
elevation in contempt ; but such suggestions do not rise
high enough to meet it. They pass by me as the idle
wind. If a man has no other arrows in his quiver, let
him use these: I am content.

The favorite argument, Mr. Speaker, of those who
claim for Congress the power to confiscate the property
of traitors without trial by jury is, that the want of this
power would show a fatal weakness in the Constitu-
tion, and a lack of wisdom and foresight in its framers.
They will not believe the Constitution is so weak and
helpless, so incapable of self-defence. Nothing, in my
judgment, so shows its majesty and strength ; pray God,
immortal strength. The powers of war are almost infi-
nite. The resources of this vast country spring to
your open hand. All that men have, even their lives,
are at the service of their country ; and in this great
conflict how nobly and freely given ! You can raise an
army of seven hundred thousand men ; you can give
them all the best appliances of war; you can cover
your bays and rivers and seas with your navy ; you can
blockade a coast of three thousand miles ; you may cut
down the last rebel on the field of battle. Such is the
power of war. But, Mr. Speaker, when you shall have
used all these powers, when peace shall have been



CONFISCATION. 51

restored, or when the rebels shall come and lay them-
selves at your feet or be taken captive by your arms, then
also will the power of that Constitution be made mani-
fest ; then also will this Government be shown to be the
most powerful and the noblest on the earth, not because
the captured rebel is at your mercy, but because he is
not; because, under the shield of the Constitution, the
rebel at your feet is stronger than armies, stronger than
navies. You cannot touch a hair of his head, or take
from him a dollar of his property, until you shall have
tried and condemned him by the judgment of his peers
and by the law of the land. Does this show the
weakness of the Constitution, or does it show its tran-
scendent strength] Are these written constitutions
established to give to Government power without limit
over the property, liberty, and life of the citizen ? or are
they made to define and limit the power of the Govern-
ment, and to shield and protect the rights of the
subject 1

I have always been taught that the people is the
sovereign ; that these constitutions are carefully defined
grants from the sovereign power, so framed as to esta-
blish justice, and at the same time secure the blessings of
liberty and the protection of law even to the humblest
and meanest citizen. I know, Mr. Speaker, that these
are getting to be old-fashioned sentiments. Magna Carta
is soiled and worm-eaten. The Bill of Rights, the
muniments of personal freedom, habeas corpus, trial
by jury, — what are they all worth in comparison with
this new safeguard of liberty, " the proceeding in rem'' f

Were you ever at Runnymede, Mr. Speaker? I



^^9



CONFISCATION.



remember going down, on a beautiful day in July, from
"Windsor Castle to the plain, and crossing the narrow
channel of the Thames to that little island, on which,
more than six centuries ago, in the early gray of morn-
ing, those sturdy barons wrested from an unwilling king
the first great charter of English freedom, the germ of
life of the civil liberty we have to-day. I could hardly
have been more moved, had I stood in the village and by
the manger in which was cradled " the son of Mary and
the Son of God." From the gray of that morning
streamed the rays, which, uplifting with the hours, cours-
ing with the years, and keeping piface with the centu-
ries, have encircled the whole earth with the glorious
light of English liberty, the liberty for which our
fathers planted these commonwealths in the wilderness ;
for which they went through the baptism of fire and
blood in the Revolution ; which they embedded and
hoped to make immortal in the Constitution ; without
which the Constitution would not be worth the parch-
ment on which it was written.

But I must not linger by the way, Mr. Speaker.
What do these bills propose 1 The immediate object is
to confiscate the property of the rebels. For what end ?
For punishment, is it not? If you strip these men of
their property, it is not because they are innocent;
although this bill does, in fact, confiscate the property
of persons who may be guiltless of any offence : but
the theory of the bill is to punish men for the crime of
rebellion, or treason, or give it what name you will.
The bill, indeed, recites, as an ulterior purpose, the
payment of the expenses of the Rebellion. But there is



CONFISCATION. 53

no man on this floor so verdant as to suppose this means
much. If the courts enforce the statute (I believe they
will not), how much treasure can you wring from those
States, poor at the best, but whom the close of this war
will leave impoverished, seared, and swept as by fire 1
You might as well pasture your cattle on the Desert of
Sahara. The land will indeed be left ; but who will be
your purchasers, when they know they must take at the
best a doubtful title, but a sure, bitter, and lasting feud 1
The strife and hate growing out of the confiscations of
the Revolution are scarcely yet appeased ; and it was
with these confiscations fresh in the memories of the
framers of the Constitution that the limitation of the
power of forfeiture was adopted. There never was a
wilder dream than that of paying the expenses of the
Rebellion with the fruits of confiscation.

The real object of the bill is punishment ; the punish-
ment of an off"ence clearly defined in the Constitution,
of the highest ofi"ence known to the laws. The punish-
ment is the forfeiture of the property of the offender.
The forfeiture is to be established before judicial tribu-
nals, and upon proof of the guilt of the owner. You
have, then, these three elements; punishment — upon
proof of the commission of crime — before a judicial
tribunal. One element is wanting ; one has been dili-
gently excluded, — trial by jury. Human ingenuity has
been exhausted to shut the door against it ; and your
bill is like Hamlet with the Prince of Denmark omit-
ted by particular request. Here is the plain, impera-
tive mandate of the Constitution, which he who runs
may read : —



54 CONFISCATION.

" The trial of all crimes, except in cases of impeachment, shall be
by jury." — Const., art. 3, sect. 2.

The property to which the bill applies is not, under
the laws of nations, prize ; it is not booty ; it is not
contraband of war ; it is not enforced military contri-
bution; it is not property used or employed in the
war or in resistance to the laws, and therefore clearly
to be distinguished from that covered by the statute of
Aug. 6, 1861. It is private property outside of the
conflict of arms ; forfeited, not because it is the instru-
ment of offence, but as a penalty for the crime of the
owner. The disguise of the proceeding in rem is too
thin and transparent. No lawyer, no man of common
sense, will be deceived by it. The proceeding, in spirit,
in substance, and in eff'ect, is the punishment of treason
by the forfeiture of a man s entire estate, real and per-
sonal, without trial by jury, and in utter disregard
of the provision of the Constitution, which limits the
forfeiture for treason to the life of the person attainted
(art. 3, sect. 3).

Was there ever a balder contrivance to get around
the plainest and most sacred provisions of the Consti-
tution than this attempt to get a man's farm, his cattle
and fodder, his plough, spade, and hoe, into a maritime
court, and try them by the law of prize? With all
respect for my excellent friends upon the committee,
such a proposition " shocks our common sense " as well
as our sense of justice and right. You make the plea
of necessity, and necessity is the mother of invention ;
but do yon expect to satisfy sensible men, when reason
resumes its sway, that under a Constitution which de-



CONFISCATION. 55

fines treason to consist in levying war against the United
States, which will not suffer the traitor to be condemned
except by the judgment of his peers, and, when con-
demned, will not forfeit his estate except during his
life, you can, by this proceeding in rem, without indict-
ment, without trial by jury, without the proof of two
witnesses (art. 3, sect. 3), for treason, for the act of
levying war, deprive him of all his estate, real and per-
sonal, for life and in fee'? Nay, more ; and that, after
he has thus been punished, without trial by jury, and
by the loss of his whole estate, you can, for the same
act of levying war, try him and hang him? To sug-
gest a doubt, whether, after all, this is plain sailing
under the flag of the Constitution, is to have too nice
constitutional scruples !

I have touched but upon one or two legal objec-
tions to these bills. Their name is Legion ; but I must
hasten to a more minute examination of the bills
themselves. I do not wish to say the bills are hastily
drawn. If right in principle, defects of form, or want
of detail, can be supplied. In attempting, however,
legislation involving a new principle, or a new applica-
tion of a principle, it is a pretty good test to let it be
run through the machinery of a carefully drawn statute,
and see how it works. I should have liked to have
seen that test applied here.

Looking now to the general features of the confis-
cation bill, I desire the House to observe that the bill,
though not in form, is, in substance and effect, retro-
active. It takes effect from its passage. It applies to
all acts committed after its passage. As there are whole



56 CONFISCATION.

districts, States even, where the law cannot be promul-
gated, and who will remain in ignorance of its pas-
sage, the law, as to them, will be ex j^ost facto. They
will neither know, nor have the means of knowing, of
the existence of the penalty when the act is commit-
ted. Will you say it is their own fault? I beg you
to consider, that since your protection has been lost,
and until it is restored, there has been and can be no
really free choice with the individual citizen whom he
shall obey. What measure of punishment would you
mete to a citizen of Jacksonville, who, after the with-
drawal' of your army, should yield to " the powers that
be," though certainly not " ordained of God " ?

I ask the attention of the House, and a just and
humane people, if these words shall ever reach them,
to the wide sweep of this bill. You would infer from
the arguments of its friends, that the bill was to reach
only the leaders and instigators of rebellion. How, if
that were so, the limitation and the payment of the
expenses of rebellion from confiscation would hang
together, has not been explained. But the fact is far
otherwise.

The first section includes several classes ; and, first,
all officers of the rebel army or navy, non-commis-
sioned as well as commissioned. Officers of high rank
should be included ; but there is no sound reason what-
ever for going down to sergeants and corporals. The
second, third, and fourth classes embrace persons who
shall hold certain offices in the Confederate States, or
any of them, including judges of the State Courts, and
members of State Legislatures and conventions. In all



CONFISCATION. 57

these cases, the mere holding of the office is made the
ground of confiscation, without regard to the manner in
which the duties shall be discharged, or to whether
those duties involve any active service against the
National Government ; men, it may be, whom the Re-
bellion found in office, and who continue in the regular
exercise of their functions. Here, for example, is the
judge of probate or surrogate of a county. Rebellion
breaks out : men will die, and estates must be settled,
and care had of widows and orphans. To visit this man
with the confiscation of his estate, for continuing quietly
to discharge his duties, is equally harsh and absurd.

The same remark applies, possibly with increased
force, to persons embraced in the fifth class ; those


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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 4 of 15)