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  The Government of the Rebellious States

May 2, 1864, in Congress


    Mr. Stevens. Mr. Speaker, I take this occasion to say a few words which have been long delayed, as I was unwilling to interrupt more important business. What I have to say is mainly supplemental to a speech which I made early in the session. I desire to restate some of the positions I then advanced, that they may not be misunderstood nor longer misstated as they have sometimes been. I should have preferred an earlier time, when some members now absent were present. I wish to reassert them, as I deem them essential to the final success of the cause of the Union. I have offered a substitute to the bill of the committee because that does not, in my judgment, meet the evil. It partially acknowledges the rebel States to have rights under the Constitution, which I deny, as war has abrogated them all. I do not inquire what rights we have under it, but they have none. The bill takes the ground that the President may partially interfere in their civil administration, not as a conqueror, but as President of the United States. It adopts in some measure the idea that less than a majority may regulate to some extent the affairs of the republic. But what I deem most objectionable, it seems to me to take away the chance of confiscation of property of the rebels. But I will proceed to the main object of my remarks.

    When the confiscation bill was under consideration I stated my views as to the condition of the seceded States. I spoke of their rights under the Constitution and municipal laws of the Union. I came to the conclusion that they were entitled to no rights under the Constitution and laws, which as to them were abrogated; that they could invoke the aid of neither in their behalf; that they could claim to be treated during the war as belligerents according to the laws of war and the law of nations; that they could claim no other rights than a foreign nation with whom we might be at war; and that they were subject to all the liabilities of such foreign belligerent.

    The discussion in this House was conducted with unusual ability, and until lately with great courtesy and great fairness except by a single member. His remarks, fraught with demagogical insinuations and personal allusions, excited more disgust than surprise. He belongs to no recognized party. Having apostatized from all principles which once gave him credit with the people, he has no sympathy with any body of men, in or out of the House, except his own family circle. He stood amidst us a political Ishmael.

    I will now notice some of the objections taken to my views. The gentleman from Kentucky (Mr. Wadsworth) has conducted the argument with great ability and with equal candor and courtesy. He agrees with me that the confederate States are a belligerent power; that they are entitled to the treatment accorded by the laws of war and the law of nations, both in their rights and liabilities; that they have no rights under the Constitution of the United States, and could plead none of its provisions in their defense. He adds more stringent penalties against them than the course of my argument renders it necessary for me to discuss. He says that they are still liable to be proceeded against for treason when peace shall be restored. I agree with him, as I long ago stated on this floor, that before they became belligerents they had, many of them, committed treason. But under the laws of war they cannot be tried for that offense by a military tribunal. A belligerent composed of traitors and rebels stands in a much worse predicament than an innocent foreign nation. And when we come to enforce the rights of conquest we should be justified in insisting upon the extreme rights of war, without yielding to the mitigations dictated by modern usage with regard to belligerents originally composed of foreign nations engaged in war which they deemed just.

    The fact of their being rebels as well as belligerents only extends our rights and justifies the summum jus of martial law. To allow them to plead in palliation that they are our “erring brethren” would be to allow malefactors to take advantage of their own wrong.

    But it is said that the confiscation of the property on land of private individuals is not sanctioned by modern practice. As a general rule this is true. But that is owing to the forbearance of the conqueror. The right still exists and may be exercised when the offense of the belligerent is so great, the war so unjust, as to deserve punishment.

    Halleck, following all other writers, says, page 457:
    “Some modern text writers, Hautefeuille for example, contend for the ancient rule, that private property on land is subject to seizure and confiscation. They are undoubtedly correct with respect to the general abstract right, as deduced from the law of nature and ancient practice; but while the general right continues, modern usages and the opinions of modern text writers of the highest authority have limited this right by limiting the rule of general exception.”

    When nations wage war for what they suppose their rights, each party has a right to call the war just. Modern usage then does not sanction the forfeiture of private property on land for the purposes of punishment. But when the war is palpably unjust, then Vattel says:

    “The whole right of a conqueror is derived from justifiable self-defense, which comprehends the support and prosecution of his rights. 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 he has sustained by it.”
    And further, page 389:
    “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 as a punishment.”

    In short, the well-established rule is that as a strict right the conqueror can confiscate all the property of the conquered nation; but unless the enemy has engaged in an unjust war requiring punishment, or are a stubborn people requiring severe treatment, the private property of land of individuals is left untouched.

    I leave the House and the country to decide whether this an unjust war, worthy of vengeance; whether the enemy is obstinate and fierce who ought to bear the burdens of war. If they answer in the affirmative, then the strict attaches. But in my remarks I did not insist on the execution of the strict right. I thought that the women and children, the non-combatants, and those who were forced by the laws of their State into the armies, should be spared; and the property of the guilty, morally as well as politically guilty, only should be taken. And yet we hear a howl of horror from conservative gentlemen at the inhumanity of the proposition. A band of men, sufficiently formidable to become acknowledged belligerent, have robbed the Treasury of the nation, seized the public property, occupied our forts and arsenals, severed in twain the best and most prosperous nation that ever existed, slaughtered two hundred thousand of our citizens, caused a debt of $2,000,000,000, and obstinately maintain a cruel warfare. If we are not justified in exacting the extreme demands of war, then I can hardly conceive a case where it would be applicable. England and France compelled China to pay the expenses of the war because they said they are waging a just war. In this, however, the world does not agree with them.

   The learned gentleman from Kentucky contends that only the property of the sovereign should be taken. I have conceded that in war which each party could claim as just such was the modern practice. In responsible or limited monarchies the private property of the kind is spared, because it does not belong to the Government, but to the individual who occupies the throne. In many European nations now, however, the law vests such private property in the Crown.

    But when a monarch is absolute, when he holds the sovereign power, his private property is subject to confiscation according to the most modern construction of the law of nations. In Chitty’s Vattel, in note to page 366, it is said:
    “In case the territory of a foreign sovereign or part of it is captured, the sovereign of the conquering State is entitled to all the property there of the conquered sovereign, (Amerchand’s case, Knapp’s R., 329) and the same case establishes that there is no distinction in this respect between public and private property of an absolute monarch.”

    The gentleman from Kentucky (Mr. Wadsworth) inquired where the sovereignty was lodged in a republic, and he answered very truly in the people. The people are the absolute sovereigns. They act through their representatives and executive officers, but they are the responsible, absolute sovereigns. Does it not follow as inevitable logic that when they make an unjust war, if conquered, all their property, public and private, is subject to forfeiture? “Whoever takes up arms without a lawful cause can absolutely have no right whatever.” (Vattel, 378) It was on this principle that the Romans took private property. “In wars between republics, the quarrel was in reality the common cause of all the citizens,” says Vattel, 388. The war was theirs and the property was theirs. They were the absolute sovereign, as was well said by the gentleman from Kentucky (Mr. Wadsworth.) The confederate States is a republic, however bad may be its citizens. The majority necessarily speaks for all. Their sovereign power have declared war, and all their property is subject to the laws of war. As I have often said, no one advises the execution of the extreme right. But the right exists and ought to be enforced against the most guilty. To allow them to return with their estates untouched, on the theory that they have never gone out of the Union, seems to me rank injustice to loyal men.

    The gentleman from Missouri, (Mr. Blair,) whose speech contains the distilled virus of the copperhead, who is not present, but has patriotically gone forth to command large armies without a commission, is as unhappy in stating the positions of his opponents as he is in answering the true ones. He says:
    The gentleman from Pennsylvania, (Mr. Stevens,) adopts the plan of making the penalty of death and levying a fine and selling in perpetuity the estate of a person attained of treason, accomplishing what a parliamentary attainder did in England.”



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