79. To vest land, late property of James Holmes, in certain
persons in trust for the benefit of a public school. August 15,
1783.
80. For restoring to certain persons their estates, and for
permitting the said persons to return, &c. March 26, 1784.
81. For amending and explaining the Confiscation Act. March 26,
1784.
82. To amend the Confiscation Act, and for other purposes
therein mentioned. March 22, 1786.
83. _Georgia._--For inflicting penalties on, and confiscating
the estates of, such persons as are therein declared guilty of
treason, &c. May 4, 1782.
84. To point out the mode for the recovery of property
unlawfully acquired under the British usurpation, and withheld
from the rightful owners, &c. February 17, 1783.
85. Releasing certain persons from their bargains, &c. July 29,
1783.
86. For ascertaining the rights of aliens, and pointing out a
mode for the admission of citizens. February 7, 1785.
87. To authorize the auditor to liquidate the demands of
such persons as have claims against the confiscated estates.
February 22, 1785.
88. To compel the settlement of public accounts, for inflicting
penalties, and for vesting auditor with certain powers.
February 10, 1787.[43]
Such is the array which illustrates the terrible earnestness of those
times. In their struggle for National Independence, our fathers did not
hesitate to employ all the acknowledged Rights of War; nor did they
higgle over questions of form with regard to enemies in arms against
them. To this extent, at least, we may be instructed by their example,
even if we discard their precedents.
In the negotiations for the acknowledgment of National Independence
these Acts were much considered. It does not appear, however, that
their legality was drawn into question, although, as is seen, they
exercised the double rights of sovereignty and of war. The British
Commissioner, Mr. Oswald, expresses himself, under date of November 4,
1782, as follows.
“You may remember, that, from the very first beginning of our
negotiation for settling a peace between Great Britain and
America, I insisted that you should positively stipulate for
the restoration of the property of all those persons, under
the denomination of the Loyalists or Refugees, who have taken
part with Great Britain in the present war: or, if the property
had been resold, and passed into such a variety of hands as
to render the restoration impracticable, (which you asserted
to be the case in many instances,) you should stipulate for a
compensation or indemnification to those persons adequate to
their losses.”[44]
The American Commissioners, John Adams, Benjamin Franklin, and John
Jay, declared in reply, that “the restoration of such of the estates
of the refugees as have been confiscated is impracticable, because
they were confiscated by laws of particular States, and in many
instances have passed by legal titles through several hands.” As to
the demand of compensation for these persons, the Commissioners said:
“We forbear enumerating our reasons for thinking it ill-founded.”[45]
In the course of the conference, and by way of reply or set-off, gross
instances were adduced of outrages by the British troops in “the
carrying off of goods from Boston, Philadelphia, and the Carolinas,
Georgia, Virginia, &c., and the burning of the towns.” Franklin
mentioned “the case of Philadelphia, and the carrying off of effects
there, even his own library.” Laurens added “the plunders in Carolina
of negroes, plate, &c.”[46] In a letter from Franklin to the British
Commissioner, under date of November 26, 1782, the pretension of the
loyalists was finally repelled in the plainest words.
“You may well remember, that, in the beginning of our
conferences, before the other Commissioners arrived, on
your mentioning to me a retribution for the loyalists whose
estates had been forfeited, … I gave it as my opinion and
advice, honestly and cordially, that, if a reconciliation was
intended, no mention should be made in our negotiations of
those people; for, they having done infinite mischief to our
properties, by wantonly burning and destroying farm-houses,
villages, and towns, if compensation for their losses were
insisted on, we should certainly exhibit against it an account
of all the ravages they had committed, which would necessarily
recall to view scenes of barbarity that must inflame, instead
of conciliating, and tend to perpetuate an enmity that we all
profess a desire of extinguishing.…
“Your ministers require that we should receive again into our
bosom those who have been our bitterest enemies, and restore
their properties who have destroyed ours,--and this while the
wounds they have given us are still bleeding. It is many years
since your nation expelled the Stuarts and their adherents,
and confiscated their estates. Much of your resentment against
them may by this time be abated; yet, if we should propose it,
and insist on it, as an article of our treaty with you, that
that family should be recalled and the forfeited estates of its
friends restored, would you think us serious in our professions
of earnestly desiring peace?
“I must repeat my opinion, that it is best for you to drop all
mention of the refugees.”[47]
But on this occasion there was a compromise. Instead of positive
stipulations in behalf of the loyalists, it was agreed in the treaty,
“that the Congress shall earnestly _recommend_ it to the Legislatures
of the respective States to provide for the restitution of all estates,
rights, and properties which have been confiscated, belonging to _real_
British subjects, and also of the estates, rights, and properties of
persons resident in districts in the possession of his Majesty’s arms,
_and who have not borne arms against the said United States_.”[48]
Thus, while in every other article of the treaty it was agreed that
certain things _shall be done_, here it was only agreed to _recommend_
that they shall be done; and even the recommendation of restitution
was confined to what are called “_real_ British subjects,” and others
“who have not borne arms against the United States,”--thus evidently
recognizing the liability of those who did not come within these two
exceptions.
After the adoption of our Constitution, this article came under
discussion between the United States and Great Britain, when Mr.
Jefferson, in the most elaborate diplomatic paper of his life, ably
vindicated the conduct of our Government. It was on this occasion
that he quoted the words of Bynkershoek, that “it stands to reason
that whatever property of an enemy is found in his enemy’s country
changes its owner and goes to the treasury, … even immovables, as
is the practice in regard to movables.”[49] And in the course of
his argument he distinctly asserts that “an Act of the Legislature
confiscating lands stands in place of _an office found_ in ordinary
cases,--and that, on the passage of the Act, as on the finding of the
office, the State stands _ipso facto_ possessed of the lands without
a formal entry. The confiscation, then, is complete by the passage of
the Act, both the title and possession being divested out of the former
proprietor and vested in the State.”[50]
This is strong language. Not only in our diplomacy, but also in our
courts, was the validity of these Acts upheld. Mr. Jefferson was
sustained by the Supreme Court of the United States in an early case
on the confiscation of British debts by Virginia,[51] where it was
declared that “a State may make what rules it pleases, and those rules
must necessarily have place within itself,”[52]--that “the right
to confiscate the property of enemies during war is derived from a
state of war, and is called the Rights of War,”[53]--and that “the
right acquired by war depends on the power of seizing the enemy’s
effects.”[54] The last remark has a subtle significance. But the whole
case was stated at the bar by John Marshall, afterwards our honored
Chief Justice, in words applicable to our own times.
“It has been conceded that independent nations have in general
the right of confiscation, and that Virginia at the time of
passing her law was an independent nation. But it is contended,
that, from the peculiar circumstances of the war, the citizens
of each of the contending nations having been members of the
same government, the general right of confiscation did not
apply, and ought not to be exercised. It is not, however,
necessary to show a parallel case in history, since it is
incumbent on those who wish to impair the sovereignty of
Virginia to establish on principle or precedent the justice
of their exception. _That State, being engaged in a war,
necessarily possessed the powers of war, and confiscation is
one of those powers, weakening the party against whom it is
employed, and strengthening the party that employs it._”[55]
In closing what I have to say of the confiscation bills of the
Revolution, I cannot disguise that they have been thought severe in
some cases beyond the acknowledged exigencies of the times; but,
admitting their severity, they testify none the less to those Rights of
War in which they had their origin.
* * * * *
Such, Sir, are examples of history, so far as I can gather them,
to guide on the present occasion. The embarrassment of Hercules is
constantly repeated. There are paths to avoid, as well as paths to
take; and it is for you to determine, under the lights of the past, how
your course shall be directed.
* * * * *
There are considerations of _policy_, and, I rejoice to believe, of
justice also, which furnish illumination such as cannot be found
in any other instances of history. If we go astray, it must be from
blindness.
In determining what powers to exercise, you will be guided to a certain
extent by the object you seek to accomplish. Do you seek really to
put down the Rebellion, and to tread it out forever, or do you seek
only the passage of a penal statute? Do you seek a new and decisive
weapon in the war our country is compelled to wage, or do you seek
nothing more than to punish a few rebels? Or, if the object you seek is
simply punishment, do you wish it to be sure and effective, or only in
name? Are you in earnest to strike this rebellion with all the force
sanctioned by the Rights of War, or do you refuse to use anything
beyond the peaceful process of Municipal Law? I put these questions
sincerely and kindly. You will answer them by your votes. If you are
not in earnest against the rebellion now arrayed in war, if you are
content _to seem_ without acting, _to seem_ without striking, in short,
_to seem_ rather than _to be_, you will pass a new penal statute, and
nothing more.
It is clear that such a statute will be of perfect inefficiency. It
will not produce even a moderate intimidation,--not so much as a Quaker
gun. With the provision in our Constitution applicable to jury trials
in criminal cases, it is obvious that throughout the whole Rebel
country there can be no conviction under such statute. Proceedings
would fail through the disagreement of the jury, while the efforts of
counsel would make every case an occasion of irritation. People talk
flippantly of the gallows as the certain doom of the Rebels. This is
a mistake. For weal or woe, the gallows is out of the question. It
is not possible as a punishment for this rebellion.[56] Nor would
any forfeiture or confiscation whatever be sanctioned by a jury in
the Rebel country. I think that in this judgment I do not err. But if
this be correct, surely we should take all proper steps to avoid such
failure of justice. Let Senators see things as they are; let us not
deceive ourselves or deceive others. A new statute against treason will
be simply a few more illusive pages on the statute-book, and that is
all.
I cannot doubt that Senators are in earnest, that they mean what they
say, and that they intend to do all in their power, by all proper
legislation, to bring the war to a final close. But if this be their
purpose, they will not hesitate to employ all the acknowledged Rights
of War calculated to promote this end. Two transcendent powers have
been exercised without a murmur: first, to raise armies, and, secondly,
to raise money. These were essential to the end. But there is another
power, without which, I fear, the end will escape us. It is that of
confiscation and liberation; and this power is just as constitutional
as the other two. The occasion for its exercise is found in the same
terrible necessity. An army is not a _posse comitatus_; nor is it, when
in actual war, face to face with the enemy, amenable to the ordinary
provisions of the Constitution. It takes life without a jury trial, or
any other process of law; and we have already seen, it is by virtue of
the same Right of War that the property of enemies may be taken, and
freedom given to their slaves. On the exercise of these rights there
can be no check or limitation in the Constitution. Any such check or
limitation would be irrational. War cannot be conducted _in vinculis_.
Seeking to fasten upon it the restraints of the Constitution, you
repeat the ancient tyranny which compelled its victims to fight in
chains. Glorious as it is that the citizen is surrounded by the
safeguards of the Constitution, yet this rule is superseded by war,
bringing into being other rights which know no master. An Italian
publicist has said that there is no right which does not, in some
measure, impinge upon some other right. But this is not correct. The
Rights of War can never impinge upon any rights under the Constitution,
nor can any rights under the Constitution impinge upon the Rights of
War. Rights, when properly understood, harmonize with each other.
Assuming, then, what is so amply demonstrated, that the Rights of War
are ours without abridgment, and assuming also that you will not allow
the national cause, which has enlisted such mighty energies, to be
thwarted through any failure on your part, I ask you to exercise these
rights in such way as to insure promptly and surely that permanent
peace in which is contained all we desire. But to this end mere victory
will not be enough. The Rebellion must be so completely crushed that it
cannot again break forth, while its authors have penalties to bear, all
of which may be accomplished only by such a bill as I have proposed.
The reasons of policy, as well as of duty, are controlling.
* * * * *
But while all desire to see the Rebellion completely crushed, there may
be difference with regard to the Rights of War to be exercised. Some
may be for part; others may be for all. Some may reject the examples of
the past; others may insist upon them. It is for you to choose; but,
in making election, you will not forget the object in view. At another
point I have leaned on the authority of Grotius. Turning now to Vattel,
a writer of masculine understanding, who has done much to popularize
the Law of Nations, I am influenced by the consideration, that, less
austere than others, he seems always inspired by the free air of his
native Switzerland, and filled with the desire of doing good, so that
what he sanctions cannot be regarded as illiberal or harsh. In grouping
the details entering into the object proposed, this benevolent master
teaches that we may seek these things:--