of our Government. It was on this occasion that he quoted the words of Bynkershoek, that "it stands to reason that whatever property of an enemy is found in his enemy's country changes its owner and goes to the treasury, . . . . even immovables, as is the practice in regard to movables." And in the course of his argument he distinctly asserts that "an Act of the Legislature confiscating lands stands in place of an office found in ordinary cases, and that, on the passage of the Act, as on the finding of the office, the State stands ipso facto possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State." 2

This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,3 where it was declared that "a State may make what rules it pleases, and those rules must necessarily have place within itself," 4

that "the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,"5-and that "the right acquired by war depends on the power of seizing the enemy's effects." The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall,

1 American State Papers, Foreign Relations, Vol. I. p. 201.

2 Ibid., p. 205.

8 Ware v. Hylton et al., 3 Dallas, R., 222.

4 Ibid., p. 282.

5 Ibid., p. 227.

• Ibid., p. 264.

afterwards our honored Chief Justice, in words applicable to our own times.

"It has been conceded that independent nations have in general the right of confiscation, and that Virginia at the time of passing her law was an independent nation. But it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary to show a parallel case in history, since it is incumbent on those who wish to impair the sovereignty of Virginia to establish on principle or precedent the justice of their exception. That State, being engaged in a war, necessarily possessed the powers of war, and confiscation is one of those powers, weakening the party against whom it is employed, and strengthening the party that employs it."1

In closing what I have to say of the confiscation bills of the Revolution, I cannot disguise that they have been thought severe in some cases beyond the acknowledged exigencies of the times; but, admitting their severity, they testify none the less to those Rights of War in which they had their origin.

Such, Sir, are examples of history, so far as I can gather them, to guide on the present occasion. The embarrassment of Hercules is constantly repeated. There are paths to avoid, as well as paths to take; and it is for you to determine, under the lights of the past, how your course shall be directed.

There are considerations of policy, and, I rejoice to believe, of justice also, which furnish illumination such

1 Ware v. Hylton et al., 3 Dallas, R., 210.

as cannot be found in any other instances of history. If we go astray, it must be from blindness.

In determining what powers to exercise, you will be guided to a certain extent by the object you seek to accomplish. Do you seek really to put down the Rebellion, and to tread it out forever, or do you seek only the passage of a penal statute? Do you seek a new and decisive weapon in the war our country is compelled to wage, or do you seek nothing more than to punish a few rebels? Or, if the object you seek is simply punishment, do you wish it to be sure and effective, or only in name? Are you in earnest to strike this rebellion with all the force sanctioned by the Rights of War, or do you refuse to use anything beyond the peaceful process of Municipal Law? I put these questions sincerely and kindly. You will answer them by your votes. If you are not in earnest against the rebellion now arrayed in war, if you are content to seem without acting, to seem without striking, in short, to seem rather than to be, you will pass a new penal statute, and nothing more.

It is clear that such a statute will be of perfect inefficiency. It will not produce even a moderate intimidation, not so much as a Quaker gun. With the provision in our Constitution applicable to jury trials in criminal cases, it is obvious that throughout the whole Rebel country there can be no conviction under such statute. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. People talk flippantly of the gallows as the certain doom of the Rebels. This is a mistake. For weal or woe, the gallows is out of the question. It is not possible as a

punishment for this rebellion. Nor would any forfeiture or confiscation whatever be sanctioned by a jury in the Rebel country. I think that in this judgment I do not err. But if this be correct, surely we should take all proper steps to avoid such failure of justice. Let Senators see things as they are; let us not deceive ourselves or deceive others. A new statute against treason will be simply a few more illusive pages on the statute-book, and that is all.

I cannot doubt that Senators are in earnest, that they mean what they say, and that they intend to do all in their power, by all proper legislation, to bring the war to a final close. But if this be their purpose, they will not hesitate to employ all the acknowledged Rights of War calculated to promote this end. Two transcendent powers have been exercised without a murmur: first, to raise armies, and, secondly, to raise money. These were essential to the end. But there is another power, without which, I fear, the end will escape us. It is that of confiscation and liberation; and this power is just as constitutional as the other two. The occasion for its exercise is found in the same terrible necessity. An army is not a posse comitatus; nor is it, when in actual war, face to face with the enemy, amenable to the ordinary provisions of the Constitution. It takes life without a jury trial, or any other process of law; and we have already seen, it is by virtue of the same. Right of War that the property of enemies may be taken, and freedom given to their slaves. On the exercise of these rights there can be no check or limitation in the Constitution. Any such check or limitation

1 How completely this early prophecy has been fulfilled appears in our history.

would be irrational. War cannot be conducted in vinculis. Seeking to fasten upon it the restraints of the Constitution, you repeat the ancient tyranny which compelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war, bringing into being other rights which know no master. An Italian publicist has said that there is no right which does not, in some measure, impinge upon some other right. But this is not correct. The Rights of War can never impinge upon any rights under the Constitution, nor can any rights under the Constitution impinge upon the Rights of War. Rights, when properly understood, harmonize with each other.

Assuming, then, what is so amply demonstrated, that the Rights of War are ours without abridgment, and assuming also that you will not allow the national. cause, which has enlisted such mighty energies, to be thwarted through any failure on your part, I ask you to exercise these rights in such way as to insure promptly and surely that permanent peace in which is contained. all we desire. But to this end mere victory will not be enough. The Rebellion must be so completely crushed that it cannot again break forth, while its authors have penalties to bear, all of which may be accomplished only by such a bill as I have proposed. The reasons of policy, as well as of duty, are controlling.

But while all desire to see the Rebellion completely crushed, there may be difference with regard to the Rights of War to be exercised. Some may be for part; others may be for all. Some may reject the examples of the past; others may insist upon them. It