If we are also at liberty to treat them as never having been out of the Union, and that their declarations and acts were all void because they contravened the Constitution, and therefore they were never engaged in a public war, but were merely insurgents, let us inquire which position is best for the United States. If they have never been otherwise than States in the Union, and we desire to try certain of the leaders for treason, the Constitution requires that they should be indicted and tried “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.”
The crime of treason can be committed only where the person is actually or potentially present. Jefferson Davis sitting in Richmond, counseling, or advising, or commanding an inroad into Pennsylvania, has committed no overt act in this State, and can be tried, if any where, only in the Richmond District. The doctrine of constructive presence, and constructive treason, will never, I hope, pollute our statutes, or judicial decisions. Select an impartial jury from Virginia, and it is obvious that no conviction could ever be had. Possibly a jury might be packed to convict, but that would not be an “impartial” jury. It would be judicial murder, and would rank in infamy with the trial of Lord Russell, except only that the one was the murder of an innocent man, the other of a traitor. The same difficulties would exist in attempting forfeitures, which can only follow conviction in States protected by the Constitution; and then it is said only for the life of the malefactor—Congress can pass no “bill of attainder.”
Nor, under that theory, has Congress, much less the Executive, any power to interfere in remodelling those States upon reconstruction. What reconstruction is needed? Here are States which they say, have never been out of the Union, and which are consequently now in it without asking leave of any one. They are competent to send Senators and members to Congress. The state of war has broken no constitutional ligaments, for it was only an insurrection of individuals, not a public war waged by States. Such is the reasoning, notwithstanding every State acted in its municipal capacity; and the court in the prize cases (2 Black 673) say: “Hence in organizing this rebellion they have acted as States.” It is no loose unorganized rebellion, having no defined boundary or possession. It has a boundary, marked by lines of bayonets, and which can be crossed only by force—south of this line is enemy’s territories, because it is claimed and held in possession by an “organized, hostile and belligerent power.” What right has any one to direct a convention to be held in a sovereign State of this Union, to amend its constitution and prescribe the qualifications of voters? The sovereign power of the nation is lodged in Congress. Yet where is the warrant in the constitution for such sovereign power, much less the Executive, to intermeddle with the domestic institutions of a State, mould its laws, and regulate the elective franchise? It would be rank, dangerous and deplorable usurpation. In reconstruction, therefore, no reform can be effected in the Southern States if they have never left the Union. But reformation must be effected; the foundation of their institutions, both political, municipal and social, must be broken up and relaid, or all our blood and treasure have been spent in vain. This can only be done by treating and holding them as a conquered people. Then all things which we can desire to do, follow with logical and legitimate authority. As conquered territory, Congress would have full power to legislate for them; for the territories are not under the Constitution, except so far as the express power to govern them is given to Congress. They would be held in a territorial condition until they are fit to form State Constitutions, republican in fact, not in form only, and ask admission into the Union as new States. If Congress approve of their Constitutions, and think they have done works meet for repentance, they would be admitted as new States. If their Constitutions are not approved of, they would be sent back, until they have become wise enough so to purge their old laws as to eradicate every despotic and revolutionary principle—until they shall have learned to venerate the Declaration of Independence. I do not touch on the question of negro suffrage. If in the Union, the States have long ago regulated that, and for the Central Government to interfere with it would be mischievous impertinence. If they are to be admitted as new States they must form their own constitutions; and no enabling act could dictate its terms. Congress could prescribe the qualifications of voters while a Territory, or when proceeding to call a convention to form a State government. That is the extent of the power of Congress over the elective franchise, whether in a territorial or state condition. The President has not even this or any other power to meddle in the subject, except by advice to Congress—and they on territories. Congress, to be sure, has some sort of compulsory power by refusing the States admission until they shall have complied with its wishes over this subject. Whether those who have fought our battles should all be allowed to vote, or only those of a paler hue, I leave to be discussed in the future when Congress can take legitimate cognizance of it.
If capital punishments of the most guilty are deemed essential as examples, we have seen that, on the one theory, none of them can be convicted on fair trials—the complicity of the triers would defeat it. But, as a conquered enemy, they could not escape. Their trials would take place by courts-martial. I do not think they could thus be tried for treason; but they could be tried as belligerents, who had forfeited their lives, according to the laws of war. By the strict rights of war, as anciently practiced, the victor held the lives, the liberty and the property of the vanquished at his disposal. The taking of the life, or reduction to bondage of the captives, have long ceased to be practiced in case of ordinary wars; but the abstract right—the summum jus—is still recognized in exceptional cases where the cause of the war, or the character of the belligerent, or the safety of the victors justify its exercise. The same thing may be said of the seizure of property on land. Halleck (457) says some modern writers—Hautefeuille, for example—contends for the ancient rule, that private property on land may be subject to seizure. They are undoubtedly correct, with regard to the general abstract right, as deduced from “the law of nature and ancient practice.” Vattel says: “When, therefore, he has subdued a hostile nation, he undeniably may, in the first place, do himself justice respecting the object which has given rise to the war, and indemnify himself for the expenses and damages which he has sustained by it.” And at page 369: “A conqueror, who has taken up arms not only against the sovereign but against the nation herself, and whose intention it was to subdue a fierce and savage people, and once for all to reduce an obstinate enemy, such a conqueror may, with justice, lay burdens on the conquered nation, both as a compensation for the expenses of the war, and as a punishment.”
I am happy to believe that the Government has come to this conclusion. I cannot otherwise see how Capt. Wirz can be tried by a Court Martial at Washington for acts done by him at Andersonville. He was in no way connected with our military organization, nor did he as a citizen connect himself with our Army so as to bring his case within any of the Acts of Congress. If he committed murder in Georgia, and Georgia was a State in the Union, then he should be tried according to her laws. The General Government has no jurisdiction over such crime, and the trial and execution of this wretch by a United States Military Court would be illegal. But if he was an officer of a belligerent enemy, making war as an independent people, now being conquered, it is a competent, holding them as a conquered foe, to try him for doing acts contrary to the laws of war, and if found guilty to execute or otherwise punish him. As I am sure the loyal man at the head of the Government will not involve the nation in illegal acts and thus set a precedent injurious to our national character, I am glad to believe that hereafter we shall treat the enemy as conquered, and remit their condition and reconstruction to the sovereign power of the nation.
In short, all writers agree that the victor may inflict punishment upon the vanquished enemy, even to the taking of his life, liberty, or the confiscation of all his property; but that this extreme right is never exerci
sed except upon a cruel, barbarous, obstinate, or dangerous foe who has waged an unjust war.
Upon the character of the belligerent, and the justice of the war, and the manner of conducting it, depends our right to take the lives, liberty and property of the belligerent. This war had its origin in treason without one spark of justice. It was prosecuted before notice of it, by robbing our forts and armories, and our navy-yards; by stealing our money from the mints and depositories, and by surrendering our forts and navies by perjurers who had sworn to support the Constitution. In its progress our prisoners, by the authority of their government, were slaughtered in cold blood. Ask Fort Pillow and Fort Wagner. Sixty thousand of our prisoners have been deliberately starved to death because they would not enlist in the rebel armies. The graves at Andersonville have each an accusing tongue. The purpose and avowed object of the enemy “to found an empire whose corner-stone should be slavery,” rendered its perpetuity or revival dangerous to human liberty.
Surely, these things are sufficient to justify the exercise of the extreme rights of war—“to execute, to imprison, to confiscate.” How many captive enemies it would be proper to execute, as an example to nations, I leave others to judge. I am not fond of sanguinary punishments, but surely some victims must propitiate the manes of our starved, murdered, slaughtered martyrs. A court-martial could do justice according to law.
But we propose to confiscate all the estate of every rebel belligerent whose estate was worth $10,000, or whose land exceeded two hundred acres in quantity. Policy if not justice would require that the poor, the ignorant, and the coerced should be forgiven. They followed the example and teachings of their wealthy and intelligent neighbors. The rebellion would never have originated with them. Fortunately those who would thus escape form a large majority of the people, though possessing but a small portion of the wealth. The proportion of those exempt compared with the punished would be I believe about nine tenths.
There are about six millions of freedmen in the South. The number of acres of land is 465,000,000. Of this, those who own above two hundred acres each number about 70,000 persons, holding, in the aggregate, (together with the States,) about 394,000,000 acres, leaving for all the others below 200 each, about 71,000,000 acres. By thus forfeiting the estates of the leading rebels, the government would have 394,000,000 of acres, beside their town property, and yet nine-tenths of the people would remain untouched. Divide this land into convenient farms. Give, if you please, forty acres to each adult male freedman. Suppose there are one million of them. That would require 40,000,000 of acres, which, deducted from 394,000,000, leaves three hundred and fifty-four millions of acres for sale. Divide it into suitable farms, and sell it to the highest bidders. I think it, including town property, would average at least ten dollars per acre. That would produce $3,540,000,000—three billions five hundred and forty millions of dollars.
Let that be applied as follows to wit:
1. Invest $300,000,000 in six per cent government bonds, and add the interest semi-annually to the pensions of those who have become entitled by this villainous war.
2. Appropriate $200,000,000 to pay the damages done to loyal men, North and South, by the rebellion.
3. Pay the residue, being $3,040,000,000 towards the payment of the National debt.
What loyal man can object to this? Look around you, and every where behold your neighbors, some with an arm, some with a leg, some with an eye, carried away by rebel bullets. Others horribly mutilated in every form. And yet numerous others wearing the weeds which mark the death of those on whom they leaned for support. Contemplate these monuments of rebel perfidy, and of patriotic suffering, and then say if too much is asked for our valiant soldiers.
Look again, and see loyal men reduced to poverty by the confiscations by the Confederate States, and by the Rebel States—see Union men robbed of their property, and their dwellings laid in ashes by rebel raiders, and say if too much is asked for them. But above all, let us inquire whether imperative duty to the present generation and to posterity, does not command us to compel the wicked enemy to pay the expenses of this unjust war. In ordinary transaction he who raises a false clamor, and prosecutes an unfounded suit, is adjudged to pay the costs on his defeat. We have seen, that, by the law of nations, the vanquished in an unjust war must pay the expense.
Our war debt is estimated at from three to four billions of dollars. In my judgment, when all is funded, and the pensions capitalized, it will reach more than four billions.
The interest at 6 per cent., only
(now much more)
The ordinary expenses of our
Government are
For some years the extraordinary
expenses of our army and navy will be
Total
$240,000,000
120,000,000
110,000,000
$470,000,000
Four hundred and seventy millions to be raised by taxation—our present heavy taxes will not, in ordinary years, produce but little more than half that sum. Can our people bear double their present taxation? He who unnecessarily causes it will be accursed from generation to generation. It is fashionable to belittle our public debt, lest the people should become alarmed, and political parties should suffer. I have never found it wise to deceive the people. They can always be trusted with the truth. Capitalists will not be affected, for they can not be deceived. Confide in the people, and you will avoid repudiation. Deceive them, and lead them into false measures, and you may produce it.
We pity the poor Englishmen whose national debt and burdensome taxation, we have heard deplored from our childhood. The debt of Great Britain is just about as much as ours, ($4,000,000,000) four billions. But in effect it is but half as large—it bears but three per cent. interest. The current year, the chancellor of the exchequer tells us, the interest was $131,806,990. Ours, when all shall be funded, will be nearly double.
The plan we have proposed would pay at least three-fourths of our debt. The balance could be managed with our present taxation. And yet to think that even that is to be perpetual is sickening. If it is to be doubled, as it must be, if “restoration” instead of “reconstruction” is to prevail, would to God the authors of it could see themselves as an execrating public and posterity will see them.
Our new Doctors of National law, who hold that the “Confederate States” were never out of the Union, but only insurgents and traitors, have become wiser than Grotius, and Puffendorf, and Rutherford, and Vattel, and all modern publicists down to Halleck and Phillimore. They all agree that such a state of things as has existed here for four years is public war, and constitutes the parties independent belligerents, subject to the same rules of war as the foreign nations engaged in open warfare.
The learned and able Professor at Law in the Cambridge University, Theophilus Parsons, lately said in a public speech—
“As we are victorious in war we have a right to impose upon the defeated party any terms necessary for our security. This right is perfect. It is not only in itself obvious, but it is asserted in every book on this subject, and is illustrated by all the wars of history. The rebels forced a war upon us; it was a long and costly and bloody war; and now that we have conquered them, we have all the rights which victory confers.”
The only argument of the Restorationists is, that the States could not and did not go out of the Union because the Constitution forbids it. By the same reasoning you could prove that no crime ever existed. No man ever committed murder for the law forbids it! He is a shallow reasoner who could make theory overrule fact!
I prefer to believe the ancient and modern publicists, and the learned Professors of legal science, to the extemporized doctrines of modern Sciolists.
If “Restoration,” as it is now properly christened, is to prevail over “Reconstruction,” will some learned pundit of that school inform me in what condition Slavery and the Slave laws are? I assert that upon that theory not a Slave has been liberated, not
a Slave law has been abrogated, but on the “Restoration” the whole Slave code is in legal force. Slavery was protected by our constitution in every State in the Union where it existed. While they remained under that protection no power in the Federal Government could abolish Slavery. If, however, the Confederate States were admitted to be what they claimed, an independent belligerent de facto, then the war broke all treaties, compacts and ties between the parties, and slavery was left to its rights under the law of nations. These rights were none; for the law declares that “Man can hold no property in man.” (Phillimore, page 316.) Then the laws of war enabled us to declare every bondman free, so long as we held them in military possession. And the conqueror, through Congress, may declare them forever emancipated. But if the States are “States in the Union,” then when war ceases they resume their positions with all their privileges untouched. There can be no “mutilated” restoration. That would be the work of Congress alone, and would be “Reconstruction.”
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