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the Conquered Provinces,
“They stand, therefore, in precisely the same predicament as two nations, who engage in a contest, and being unable to come to an agreement, have recourse to arms.”
“This being the case it is evident that the common laws of war ought to be observed by both parties.”
Page 427 he repeats:
“When a nation becomes divided into two parties, absolutely independent, and no longer acknowledging a common superior, the State is dissolved and the war between the two parties stands on the ground in every respect as a war between two different nations.”
The balance of my proposition is that the two parties being in the attitude of belligerent powers, and the contest having risen to the dignity of a civil war, all former constitutions, compacts and municipal obligations which existed between them are abrogated or suspended, and have ceased to be binding on the United States. We have seen that they occupy the place of independent nations at war. What is the effect of war between such nations on treaties, compacts, and municipal obligation? Vattell (book 3 chap. 10, sec 125) says:
“The conventions, the treaties made with a nation are broken or annulled by a war arising between contending parties… We are no longer bound to observe them towards an enemy who has himself been the first to violate them.”
Phillimore (662) says:
“It was at one time an international custom that the belligerents should, at the breaking out of the war, make a public and solemn proclamation that the obligation of treaties between them had ceased. That custom has become obsolete. In the place of it has arisen the general maxim, that war, ipso facto, abrogates treaties between the belligerents.”
Wildman lays down the same doctrine. I know of no writer who denies it. Judge Sprague says:
“They are no less belligerents because they are rebels.”
I think that the position I advanced, and which called down the rebuke of the gentleman from New York, Mr. Olin; Mr. Colfax of Indiana, and Mr. Lovejoy of Illinois; that the Confederate government, and the United States were two powers so far as to claim the rights, and be subject to all the disabilities, of independent nations in administering the law of nations and the laws of war, and no other obligations and duties, is most clearing and conclusively established. I hope these distinguished and constitution loving gentlemen, and others who agree with them, will deal charitably with the distinguished authors whom I have called to my aid; and who, having made a name for posterity, are no longer here to defend themselves.
But it is said we are at war, not with the States but with the individuals who are in rebellion, and that States as such cannot commit treason.
The Government of the United States is an anomaly in the family of nations. It consists of two independent sovereignties, each absolutely sovereign within its own sphere. The Constitution of the United States is a compact between the people of the several States and possesses only those powers expressly granted it. All other powers belong to the State. Except where bound by the powers thus granted, the States are wholly independent. The General Government has no control over them. Among the powers reserved to the States is the right to form State Constitutions, according to the will of the majority of the people thereof, and to change them at pleasure. They are subject to but one condition – that such constitutions shall be republican in form. All forms of government are republican which leave the control of affairs in the hands of a majority of the people, and whose rulers are elective. It may be that that majority is a wicked and rebellious majority; but that does not deprive them of the power to control state affairs. Is it supposeable that ninety-nine out of every hundred are because they are rebels, thereby to become subject to the rule of the other one loyal citizen? If he chooses to continue in such a State, he must submit to the will of the majority, so far as State laws and institutions are concerned. The single exception is, if laws are passed repugnant to the Constitution of the United States, he is not bound to obey them. Still the passage of such laws does not erect him into a majority for the purposes of State legislation. Whenever the majority rejects their allegiance to the Union, their acts are void so far as the Federal Government is concerned. But they are the only legislative power of the State for State purposes. The general government cannot repeal their acts nor legislate for the States. It can only punish traitors, and if the civil powers are insufficient and the rebels become a belligerent power, they may be treated as being no longer protected by the Constitution of the United States; may be conquered and treated as conquered provinces; military governors may be appointed over them, and Congress might allow them to be represented by delegates on this floor, or might admit them as new States.
If they submitted to the parent State, and peace was restored, they might be readmitted to their original condition, or might have terms imposed on them as Congress might choose.
It is only on those principles that the President can be justified in his appointment of military governors. There is no part of the Constitution that authorizes it. Still, I hold, as I said before, such appointments to be perfectly legitimate. By the laws of war, which are the only laws whose protection the rebel States can claim, the conquering power may appoint Military Governors over conquered provinces and maintain such government until the sovereign power prescribes other rules.
It is said that a State cannot commit suicide, and that, therefore, when a State secedes, it remains precisely as it was, and the loyal men in it, however, few, may proceed under its organization, and they are the State.
I know not what gentlemen mean by the word suicide in this connection. The majority of the people of any State may change its Constitution – but the State still lives. But in my opinion a majority of a State may, in Convention annul their Constitution, and authorize the people to meet en masse as in ancient Poland, and pass their laws and elect their rulers. If every man in a State should resolve to send no Senators and Representatives to Congress, or to pass any municipal laws, or appoint judges or other State officers, could the Federal Government pass laws to coerce them? If Congress passed laws to enable them to elect members of Congress, and no voters appeared, what has become of the State? It is felo de se. The corporation would fail by non user.
All this would not amount to treason. But if all the citizens could do this a majority could do it, or it would not be a republic. It seems to me idle to say that what citizens constitute a State, depends upon their loyalty. It depends on their numbers; a majority is the State, whether loyal or disloyal – even if it consists of Turks, Jews, infidels and convicts.
This brings us to another favorite dogma of the abstractionists, “That a State cannot commit treason;” and hence, that a majority of the people of the State, being disloyal, cannot determine the condition of the State. It is true you cannot indict or hang a State, but does that prove that a State may not go into armed rebellion. It is said the Constitution was formed by the people, not by the States. But the States, all of them, ratified the Constitution before it became binding. In doing so a majority bound the minority. It seems to me to follow that a majority may take a State, in its corporate capacity, into rebellion, and may raise armies and thus commit treason.
Since this argument was prepared I see the Supreme Court of
the United States has decided that very point. Judge Robert
C. Grier says:
Seeing what we have a right to do, what course does policy dictate to our government in the prosecution of this great struggle? It is plain that ordinary means cannot quell this rebellion. Not even a succession of brilliant victories will end the war and prevent its recurrence. According to my poor judgment, the government must steel itself with sterner resolves, and prepare, if need be, for a revolution.
First universal emancipation must be proclaimed as a military necessity with compensation to the few loyal slaveholders. Partial emancipation cannot be effective. The “Proclamation of Freedom,” as it is charitably called, although indicative of a sound heart does not reach the evil. It exempts from its operations every place where it could be enforced. What will the slaves of unconquered places think when they see those in the territory occupied by our troops held in bondage?
But even that great step alone will not sufficient. As we conquer the enemy’s country, we must hold it, or the moment our troops are withdrawn, the rebels take possession of their old homes, and renew hostilities. Let a military tribunal be created to follow the army, and as we conquer their territory, sell to the highest bidder the lands of every rebel, to military occupants, who with arms in their hands, shall take resident possession by themselves, or their tenants, and be ready to defend it against all comers. Take for example the State of Virginia. From the Rappahannock westward and northward, (a vast territory) it is now in our possession. Sell every acre of it belonging to traitors to bold and loyal settlers. How much better to have a friendly population, than the present hostile one, who are constantly betraying our troops and giving information to the enemy. The land might sell low; but in aggregate the sum would be large; and when all our conquests were thus disposed of, the National debt would be paid. Brave settlers and adventurers will always be ready for such speculations, even if they had to carry arms to the field like our frontiersmen against the Indians.