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Speech on the Conquered Provinces,
April 4, 1863 to the Union League of Lancaster, Pennsylvania

 

    Mr. President and Gentlemen of the League: I came in compliance with your invitation to discuss the subjects referred to in your resolution. These questions are of the utmost importance in the present condition of the country. It is held by the Peace and Secession Democrats, and by the Border State slaveholders, that no steps can be taken by the Government, to suppress the rebellion except such as are specially enumerated in the Constitution. That in all our proceedings against traitors in arms we must pursue the remedies provided for peaceful times, when the laws could be enforced throughout the land. That to punish the rebels and confiscate their property, we must indict and try them in the Federal Court, within the State and district in which the crime was committed, and that when thus convicted we can forfeit their property only during the life of the offenders. It is very obvious that if this doctrine be true the war cannot be prosecuted with any effect; the criminals can never be punished and the property of the rebels can never be seized and appropriated to the expenses of the war and the payment of the vast debt which they have caused. You cannot now prosecute and convict one of them according to the Constitution. Within all the States now in secession there is no Federal court, no marshal, no judge or other Federal officer; and it is absurd to suppose that you can ever convict one of them in the district where the crime was committed. No twelve jurymen could be found, by the ordinary mode of selection, who would find them guilty.

    Nor by the provisions of the Constitution can you use those means necessary in war to weaken the enemy and compel submission. All loyal men now agree that so long as the rebels are allowed to have their slaves to do their work and earn their food, and let every able bodied white man go to war, they cannot be subdued. But emancipation by the General Government is nowhere authorized by the Constitution among the granted powers. If it exists at all, it is by virtue of war powers and the law of nations. But these powers cannot come into operation so long as the Constitution and municipal laws can be freely executed. Military Governors are nowhere authorized by the Constitution, yet they have been frequently appointed by the President. Hence it becomes of the most vital importance to know whether, in the present condition of our country, those who acknowledge the authority of the Confederate States, while they defy and trample on the Constitution and laws made under it, claim their protection when they choose; and whether the United States are trammeled and paralyzed by the provisions of the Constitution, as enumerated, in carrying on the war against the rebels. If they are, the traitorous Democrats and conservatives, who cry peace at any rate, are right, and we ought to lay down our arms at once and let treason triumph.

    Early after the commencement of the rebellion, as soon as the traitors had formed a separate government, and maintained their independence de facto by force of arms, and were acknowledged as a belligerent power, I expressed the opinion that the Constitution and laws of the United States had no longer any valid effect to restrain our action in the rebel States, or to afford them protection; although when peace should be restored the traitors might be dealt with under those revived laws for the treason they committed in their transition state, from insurgents to belligerents. That we were restrained by nothing but the law of nations. That we might seize all their territory, and hold and appropriate it as conquered provinces, and apply both their real and personal estate in fee simple to defray the expenses of the war. And in addition to all this, as when conquered, they would not be protected by their belligerent rights – might be tried and executed as traitors. This declaration when made on the floor of Congress, was received with a howl by Secession Democrats, by border state slaveholders, and was condemned by very many timid Republicans, who deemed it injurious to their party, and hastened to free themselves from its responsibility. Most of those Republicans I regret to say have been left at home by their constituents. But this doctrine must prevail, or success is impossible.

    Every measure of coercion which promised to prove effective whether introduced in Congress, or proposed by the President, has been met with a cry of the Constitution! Every secession democrat, and semi secession border man, the Vallandighams, Crittendens, Wickliffs, and Mallorys, to defeat every measure deemed essential by the administration have shouted “great is the Constitution!”

    I do not do those professed Unionists injustice when I call them more than half secessionists. They would endure the Union to be sure it protected slavery; but if they must elect between the two they will choose slavery. There are perhaps three or four men from the Border States whom I ought to except; but I will not name them, lest at home they should be called Abolitionist – a favorite term of reproach in the mouths of tyrants and blackguards. I may name one however who is now beyond their reach. I refer to John W. Noell, of Missouri, who has died since the adjournment of Congress. He was a sincere, bold emancipationist. His death is an irreparable loss to the nation. A purer man never ascended to his God.

    The questions, whose difficulty your resolutions show that you appreciate, have greatly impaired our warlike operations. The President, the best meaning of living men, has been restrained in his free action by the subtle metaphysics of Massachusetts Whigs; by the perverts of the New York School, who have sought to forget, and make others forget, that there ever was such a question as “Liberty or Slavery,” and who have sought to end the war in sixty days by not hurting or provoking the rebels; and by the bold defiant democrats who sought power, and have fought the battles of the rebels under the shield of the Constitution. The President has not had the sternness of purpose and the Jacksonian resolution to save the life of the nation by cutting the Gordian knot, instead of nibbling at its fibres.

     During the last session of Congress I again advanced sentiments like the foregoing; and as I have said, they were condemned by many on both sides of the House, who held that we were to be governed in our treatment of the rebels according to the express provisions of the Constitution; and that the general rules of war, and the Laws of Nations did not authorize us to treat them as alien enemies. To prove my position I had prepared a short argument, which I found no fitting time to deliver, and which I will use now. That I may be saved the trouble of altering some of the phrases I will consider myself as now addressing the House of Representatives. I must crave your pardon, gentlemen, for allowing my indolence to put you in that position.

 

    “Mr. Chairman, I have heretofore advanced two or three propositions with regard our power over the rebel States and the property of the rebels, which have of course have been condemned by the Democratic side of the House, always the fast allies of Slavery; and by certain members of the Republican side of great constitutional learning, but whose nerves are constructed of such delicate fibres that the shock of bold of a bold idea throws them into convulsions. One of those positions is, that the States in rebellion, who, by a regular convention of a majority of its people, have declared themselves out of the Union, and have maintained such declaration by an armed force sufficient to make them separate in fact, and have established a separate and independent government de facto, are in the double condition of traitors and of a belligerent power, whose compacts with the United States are broken and dissolved, so that they can claim no protection under the Constitution of the United States or the laws thereof, and that the United States may proceed against them untrammeled by any obligations but the laws of war; and that we may subdue them and hold them as conquered provinces. That the United States, if peace be conquered, is under no obligation to re admit them into the Union as it was, but may impose upon them such terms and stipulations as she may please, or may continue to hold and govern them as provinces.

    The first position to be established is, that a people in rebellion, who, by a majority of its freemen, have declared themselves independent, and are asserting that independence by w regular army and regular form of separate and independent government although rebels to the parent States, are during the war, to be treated as a belligerent power; and that all the laws regulations, and consequences exist and govern such hostile parties, as exist by the law of nations, between independent nations at war with each other.

    The first case I shall cite is the last in point of time, but being a decision of one of the ablest judges that ever sat on the Supreme Bench of the United States, and the condition of things then being analogous to our present condition, that I deemed it the most pertinent authority I could quote, and in my judgment ought to establish this point.  Several British provinces rebelled against their legitimate government, and after several months of war, declared themselves an independent power in 1776. No other nation acknowledged their independence for two years afterward; nor did the parent country admit it until 1783. The question raised in the case I am about to refer to was, what was the condition of the rebellious provinces in 1776, before any nation had recognized them as an independent power? And did the law of nations treat them with regard to the effect of the war the same as if they had been from the first an alien enemy? I cite the language of Judge Chase, delivering the opinion of the Supreme Court of the United States. In 3rd Dall 224 (Jones vs Hilton) he says:

    “Before these solemn acts of separation from the crown of Great Britain, the war between Great Britain, and the United Colonies jointly and separately was a civil war. But instantly on that great event, the Declaration of Independence, the war changed its nature and became a public war, and thereupon all the rights of public war attached – and all the former political connection between Great Britain and Virginia, and also between their respective subjects, were totally dissolved, and not only the two nations but all the subjects of each were in a state of war.”
    “That Virginia was a part of the dismembered British Empire, can in my judgment make no difference in the case. No such distinction is taken by Vattell (or any other writer; but Vattell when considering the rights of war between two parties, absolutely independent, and no longer acknowledging a common superior (precisely the case in question) thus expresses himself, (Lib. 3 ch. 18 SS 295). ‘In such case the State is dissolved and the war between the two parties in every respect is the same as that of a public war between two different nations.’’’

    But a civil war, without any formal declaration of independence when by its magnitude and power it rises above a mere insurrection has precisely the same effect as above stated without regard to the justice of cause. Vattell ch. 10, Book 3, SS 293, Page 425, says,

    “A civil war breaks the bands of society and government, or at least suspends their force and effect. It produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties must therefore necessarily be considered as thenceforward constituting, at least, for a time two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State, and resisting lawful authority, they are not less divided in fact.”


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