"There is no law of nations which forbids our enemies to continue a war when no other cause of dispute remains besides our detention of such goods as we have taken in the war beyond the equivalent for damage and expenses. As the law of nature will allow this to be a just cause for continuing a war, so there is no practice of nations and no general opinion of mankind that determines otherwise. But, if any law of nations had given us property in such goods, the same law must necessarily condemn the adverse nation for continuing a war merely because we would not give them up; for the design of such a war would be to take from us what the law of nations had made our own.

"This opinion that all goods which are taken in war are not strictly our own by any law of nations till peace is concluded; that is, till some consent, either express or tacit, has made them our own by the law of nature, seems to be the general opinion of mankind in respect to immovable goods, such as fortified towns or provinces which have been overrun in war.

"The captors are looked upon, while the war lasts, to be only in possession of them; and though this possession may help them to make a better bargain for themselves in a treaty of peace than they could do otherwise, yet the property which they have in things of this sort is deemed to be precarious until a treaty of peace has ascertained and established it.

"It is usual in treaties of peace to mention such immovable goods particularly, and the captors, if they acquire property in them, acquire it by express consent. We may therefore reasonably conclude that the property which the captors have in all movable goods taken in war is likewise acquired in the same manner.

"The only difference is, that immovable goods, which are generally the most important, are in the hands of the public, and can readily be returned, whilst movable goods are of less consequence, are in private hands, and, because they have either been consumed or have not been kept together, cannot be returned so readily. For this reason, whilst the property in the former is adjusted by express con sent the property in the latter is left to pass from the original owners to the captors by tacit

consent."

Hence, we perceive that this right gives to the captor only the possession and use of the property of an alien enemy during war; but the title does not pass, except by the consent of the nation to which the property belongs.

This consent is presumed in favor of movable goods, on account of their perishable nature, and the difficulty of identifying them.

But this rule cannot be applied to rebels, in a civil war, and for obvious reasons. Because, if the "rebels in arms" have not, in fact, dismembered the Union and formed an independent sovereignty, they are to-day citizens of the United States, and their property is a part of its eminent domain; therefore, no law of war can confer upon the United States a higher claim to their property than it now has, by the Constitution.

To transfer the property from the citizens to the coffers of the Government would not increase the national wealth; it would add nothing to the national resources to take that which is already ours.

But, concede that the rebels have displaced the national sovereignty, and become a foreign nation, then, upon a re-conquest of that territory, our Government would enter upon their rights of sovereignty; take possession of their national domain and national revenues; seize and detain their citizens as prisoners, and their property, to compel them to do what is right.

But, if we destroy that rebel power altogether, and retain the territory, our claim to indemnity for the past and security for the future is satisfied.

Vattel says:

"The conqueror, who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom ne has taken up arms.

"But if the entire State be conquered; if the nation be subdued; *

if the

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conqueror thinks proper to retain the sovereignty of the conquered State, and has a right to retain it, reason plainly evinces that he acquires no other rights, by his conquest, than such as belonged to the sovereign whom he has dispossessed; and, on the submission of the people, he is bound to govern them according to the laws of the State."

Chancellor Kent says:

"It is a settled principle in the law and usage of nations. that the inhabitants of a conquered country change their allegiance, and their relations to their former sov. ereign is dissolved, but their relati ns to each other, and their rights of property, not taken from them by orders of the conqueror, remain undisturbed."

And he cites the Supreme Court as deciding that "the laws, usages, and municipal regulations, in force at the time of the conquest or cession, remain in force until changed by the new sovereign."

It follows, therefore, that the rebel territory, with the rights of persons and of property not destroyed by the struggle, fall at once under the protection of the Constitution and municipal laws.

We have had in our history but two occasions to exercise this right against foreign nations. In our war with Mexico, in which we sent our armies to her capital, for the purpose of obtaining indemnity. There, we respected private rights, and abstained from the seizure of private property; and being unable otherwise to obtain indemnity, we took, by conquest, a portion of her territory, paying her, in money, for the excess over and above the amount of our claim for indemnity. Now, had a proposition been made in Congress to confi cate the property of the people of the conquered territory, for the acts of the Mexican government, its repugnance to the law of nations would have shocked the moral sense, even of the Congress of that day.

The first act which broke their allegiance to the Mexican government and transferred it to the United States, did, in the judgment of all publicists, bar all claim on them for the acts of their former government.

But, in one respect, this civil war does resemble a war with a foreign nation. The insurgents have subjugated some eleven States of the Union, and have expelled all National and State authority, and have enforced acquiescence and qualified allegiance to their arms and revolutionary government.

This calls for the exercise of new duties, new, I mean, from the fact that there was never before any necessity on the part of our Government for their exercise.

But, though they are new, we cannot mistake our way if we will only consider the nature of this civil strife, and how far the relations of the citizen is affected while the national authority remains displaced by the rebel force.

On this point Senator Sumner cites from Grotius: "The first and most necessary partition of war is this, that war is private, public, and mixed. Public war is that which is carried on under the authority of him who has jurisdiction. Private, that which is not so. Mixed, that which is public on one side and private on the other." And he says, "In these few words of this great authority, will be found that very discrimination which enters into the present discussion. The war in which we are now engaged is 'mixed,' that is, public on one side and private on the other. On the side of the United States it is under the authority of the Government, and is therefore 'public;' on the other side it is without the sanction of any recognized government, and is therefore 'private.' In other words, the Government of the United States may claim for itself all belligerant rights, while it may refuse them to the other side."

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This is a false inference from the misapplied principle of Grotius.

Rutherforth, the recognized expositor of Grotius, in commenting upon this very passage in its application to civil war, says:

"If any one should ask whether these internal wars of a civil society are public or private, or mixed, we must certainly answer that in the language of the law of nations they are neither. For since this law takes no notice of what passes within a civil society, as far as what passes there has no reference to the rest of mankind, it has no occasion to mention wars of this sort, and therefore gives them no name. It does not so much as call them wars, and much less does it rank them under the head of public, or private, or mixed. The law of nations does not call them wars, not because they are not wars, but because they are such acts as do not come within its view, and as it has therefore given no name to. They have certainly the nature of war, for they are contentions by force. Common usage likewise has given them this name, and calls them civil

wars.

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"And, if we attend to the nature of the act, we shall find that civil wars may be either public, mixed, or private." "A civil war * * may be called a public one, when the heads of each party are respectively considered, by their own people, as public persons. A rebellion may be called a mixed war, when one of the parties is under the conduct of a public person, and the other consists of private persons: It may be called a private one, when there is no subjection on either side."

According to this very principle of Grotius, a civil strife partakes of the nature of a public war, whenever it is carried on against the Government by an organized force, acting through regular constituted authorities, regarded and accepted by the rebels as public persons.

It is then a contest between the lawful government on one side, and an unlawful, but de facto, government on the other.

Now to claim that this rebellion is "private" on their side because their government is not a "recognized government," shows a most singular confusion of principles in the mind of the Senator. For were their government" recognized," it would then cease to be a civil war at all, and would become a public war between two foreign nations.

From the very nature of things the claim to exercise a right is founded upon a corresponding obligation. Our Government cannot claim belligerent rights without conceding the existence of a power (call it what you may) that is under an obligation to yield them; and an obligation to yield implies a corresponding obligation on the other side.

While a rebellion remains within bounds, manageable by the civil force, or by the military force acting in aid of the civil authority, there is no claim to exercise or duty to yield belligerent rights; and the relation of no one to his government, in the theater of the rebellion, is affected in any way.

: But when a rebellion attains to such proportions as actually displaces all civil authority, and subjects a portion of the territory to its dominion, the relations are purely belligerent, and must remain belligerent, until the civil authority is restored. For there can be no civil relations without authority to protect the citizen; our Government can hold none whatever with the people of the subjugated States until the rebellion is suppressed, and its authority re-established. The fact that these rebels possess the military power competent to displace, and have actually displaced, all civil authority, elevates their struggle to the dignity of war. It calls for the exertion by the Government of its military power, and it must deal with this strife for the present only with this military force. Martial law may be applied to all the sections of country where the rebellion has displaced the civil authority, and every citi

zen of the United States may be subjected to martial law; their property may be seized and used by the military power, if the public safety shall require it.

But private property of the rebels, which may thus be captured, is not, by any law of nations, nor cannot be, by any act of Congress, vested in the United States, unless upon the recognition of their independence as a nation. For, by the rights of postliminium, upon the destruction of the rebel power, every person is restored to his former rights, and every thing that has not passed beyond the jurisdiction of the United States, which can be found and identified, returns to its former state, under the Constitution.

"The right of postliminium," says Vattel," is that in virtue of which persons and things, taken by the enemy, are restored to their former state, on coming again into the power of the nation to which they belonged.

"The sovereign is bound to protect the persons and property of his subjects, and to defend them against the enemy. When, therefore, a subject, or any part of his property, has fallen into the enemy's possession, should any fortunate event bring them again into the sovereign's power, it is undoubtedly his duty to restore them to their former condition, to re-establish the persons in all their rights and obligations, to give back the effects to the owners: in a word, to replace every thing on the same footing on which it stood previous to the enemy's capture."

"Among the Romans, indeed, slaves were not treated like other movable property; they, by the rights of postliminium, were restored to their masters, even when the rest of the booty was detained. The reason of this is evident, for it was always easy to recognize a slave and ascertain to whom he belonged."

The rights of postliminium are not under the cognizance of the law of nations. Manning, in speaking of the usages of different nations, says: "Thus it will be seen that no general rule obtains regarding postliminium; different States have different regulations on this subject; and, as it is a question which concerns members of the same State rather than subjects of different States, its details belong to municipal law rather than the law of nations."

When, therefore, a rebel is brought again, either by force, or by his own volition, under the power of the United States, the Government is, by the Constitution, bound to re-establish him in all his rights and obligations, and, upon his submission to its authority, give back to him his property.

It is too clear for argument that, during the military occupation of any town, district, or State of the Union, by an invading force of a foreign nation, Congress would have no authority to confiscate the property of any American citizen, inhabitant of that town, district, or State. And should the citizens, no matter from what motive, whether from instinct of self-preservation, or from disloyalty, join the invading force, and fight in its ranks against their country, they do not thereby become public enemies they do not forfeit their allegiance to the country-they cannot defeat the country's claim to punish them according to the laws of the land. They cannot plead upon the trial for giving aid and comfort to the enemy, that they were traitors, and fought willingly against their flag, though they may plead, and plead successfully, that the temporary inability of the Government to protect them against the superior hostile force, constrained their temporary submission.

True, the military generals of our country cannot distinguish the natiouality of the enemy in arms, but will capture or kill all alike, until they surrender to the authority of the Government, or flee beyond its frontiers. But the legislative power must distinguish a nationality, must recognize the American citizen, must recognize his constitutional rights to protection, and his liability to punishment for crime. While it may hold the nation, to which this foreign force belongs, responsible for indemnity

and security, and may look to every citizen or subject owing allegiance to this power, it cannot look to its own citizens, nor confiscate their property, nor hold them as hostages, in order to constrain a foreign government to make compensation for wrongs inflicted.

The same rules which apply to any portion of the citizens of the United States, which may be subjugated by an invading force, applies now to the citizens of the Southern States who are subjugated by the rebel force.

The duty of allegiance and protection are reciprocal; therefore, when a State loses the power to protect any portion of its territory and inhabitants, by reason of the superior force of a hostile power, the people so reduced necessarily must yield obedience to the de facto government.

Their property and persons are claimed by the conqueror, but their allegiance is not severed from their government, unless the conquest is confirmed by the consent of the conquered.

Castine, in the State of Maine, was captured and held by the British forces in September, 1814, and continued in their exclusive possession until the treaty of peace in 1815.

The Supreme Court decided that the sovereignty of the United States was suspended, and that the inhabitants passed under a temporary allegiance to the British Government.

The Territory of Michigan was surrendered to the British Government by Gen. Hull, on the 16th of August, 1812, and continued in its possession until September 30th, 1813. During this time, the American laws were continued in force, and the civil officers who remained in the territory were continued in office. Judge Witherill, and other officers of the territory, were paid their full salaries during the period of the British occupation.

The citizens and civil officers of Michigan who remained and submitted to British authority, were not regarded by our Government as enemies; but that was before the discovery of the theory of political felo de se.

Now, when a revolted people have actually expelled their lawful government, and, in its stead, established a de facto one, the condition of the citizens is precisely the same as in the case of a lawful government expelled by a foreign force. Therefore, while a government is unable to afford protection to its citizens, it cannot hold them responsible for any act they may commit while under the pressure of a usurping

power.

What, now, are the facts in reference to this Southern rebellion ?

Have not the rebels expelled every vestige of authority, both of the States and the United States, and established over that territory their revolutionary government?

Have they not gibbeted, imprisoned in dungeons, or driven into exile, all who would not submit to their despotism? For more than twelve months the Government of the United States has been unable to extend to these people the protection of its authority; no flag has been seen there, no emblem of authority on the part of the United States to protect and shield them. To punish these people for acts committed while under the dominion of this hostile force, and while the government of the United States was unable to protect them, would be a flagrant violation of every principle of natural and political law. It would place the authors and executioners of the injustice upon the scroll which bears to infamy the name of Jeffreys, the judicial murderer under Charles the Second.