Chapter II (1)

And this brings me to the second chief head of inquiry, not less important than the first: _What are the Rights against Enemies which Congress may exercise in War?_

Clearly the United States may exercise all the Rights of War which according to International Law belong to independent states. In affirming this proposition, I waive for the present all question whether these rights are to be exercised by Congress or by the President. It is sufficient that every nation has in this respect perfect equality; nor can any Rights of War accorded to other nations be denied to the United States. Harsh and repulsive as these rights unquestionably are, they are derived from the overruling, instinctive laws of self-defence, common to nations as to individuals. Every community having the form and character of sovereignty has a right to national life, and in defence of such life may put forth all its energies. Any other principle would leave it the wretched prey of wicked men, abroad or at home. In vain you accord the rights of sovereignty, if you despoil it of other rights without which sovereignty is only a name. “I think, therefore I am,” was the sententious utterance by which the first of modern philosophers demonstrated personal existence. “I am, therefore I have rights,” is the declaration of every sovereignty, when its existence is assailed.

Pardon me, if I interpose again to remind you of the essential difference between these rights and those others just considered. Though incident to sovereignty, they are not to be confounded with those peaceful rights which are all exhausted in a penal statute within the limitations of the Constitution. The difference between a judge and a general, between the halter of the executioner and the sword of the soldier, between the open palm and the clenched fist, is not greater than that between these two classes of rights. They are different in origin, different in extent, and different in object.

I rejoice to believe that civilization has already done much to mitigate the Rights of War; and it is among long cherished visions, which present events cannot make me renounce, that the time is coming when all these rights will be further softened to the mood of permanent peace. Though in the lapse of generations changed in many things, especially as regards non-combatants and private property on land, these rights still exist under the sanction of the Law of Nations, to be claimed whenever war prevails. It is absurd to accord the right to do a thing without according the means necessary to the end. And since war, which is nothing less than organized force, is permitted, all the means to its effective prosecution are permitted also, tempered always by that humanity which strengthens while it charms.

I begin this inquiry by putting aside all Rights of War against persons. In battle, persons are slain or captured, and, if captured, detained as prisoners till the close of the war, unless previously released by exchange or clemency. But these rights do not enter into the present discussion, which concerns property only, and not persons. From the nature of the case, it is only against property, or what is claimed as such, that confiscation is directed. Therefore I say nothing of persons, nor shall I consider any question of personal rights. According to the Rights of War, property, although inanimate, shares the guilt of its owner. Like him, it is criminal, and may be prosecuted to condemnation in tribunals constituted for the purpose, without any of those immunities claimed by persons accused of crime. It is _Rights of War against the property of an enemy_ which I now consider.

If we resort to the earlier authorities, not excepting Grotius himself, we find these rights stated most austerely. I shall not go back to any such statement, but content myself with one of later date. You may find it harsh; but here it is.

“Since this is the very condition of war, that enemies are
despoiled of all right and proscribed, 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. It is customary,
moreover, in almost every declaration of war, to ordain that
goods of the enemy, as well those found among us as those
taken in war, be confiscated.… Pursuant to the mere Right of
War, even immovables could be sold and their price turned
into the treasury, as is the practice in regard to movables;
but throughout almost all Europe only a register is made of
immovables, in order that during the war the treasury may
receive their rents and profits, but at the termination of the
war the immovables themselves are by treaty restored to the
former owners.”[20]

These are the words of the eminent Dutch publicist, Bynkershoek, in the first half of the last century. In adducing them now I present them as adopted by Mr. Jefferson, in his remarkable answer to the note of the British minister at Philadelphia on the confiscations of the American Revolution. There are no words of greater weight in any writer on the Law of Nations. But Mr. Jefferson did not content himself with quotation. In the same state paper he thus declares unquestionable rights:--

“It cannot be denied that the state of war strictly permits a
nation to seize the property of its enemies _found within its
own limits or taken in war_, and in whatever form it exists,
whether in action or possession.”[21]

This sententious statement is under date of 1792, and, when we consider the circumstances which called it forth, may be accepted as American doctrine. But even in our own day, since the beginning of the present war, the same principle has been stated yet more sententiously in another quarter. The Lord Advocate of Scotland, in the British House of Commons, as late as 17th March of the present year, declared:--

“The honorable gentleman spoke as if it was no principle of war
that private rights should suffer at the hands of the adverse
belligerent. But that was the true principle of war. If war was
not to be defined--as it very nearly might be--as a denial of
the rights of private property to the enemy, that denial was
certainly one of the essential ingredients in it.”[22]

In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by the _locality_ of the property; and this consideration makes it proper to consider them under two heads: _first_, rights with regard to enemy property actually within the national jurisdiction; and, _secondly_, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that, in the present war, rights against enemy property actually outside the national jurisdiction must exist _a fortiori_ against such property actually within the jurisdiction. But, for the sake of clearness, I shall speak of them separately.

* * * * *

_First._ I begin with the Rights of War over enemy property actually within the national jurisdiction. In stating the general rule, I adopt the language of a recent English authority.

“Although there have been so many conventions granting
exemption from the liabilities resulting from a state of
war, the right to seize the property of enemies found in our
territory when war breaks out remains indisputable, according
to the Law of Nations, wherever there is no such special
convention. All jurists, including the most recent, such as De
Martens and Klüber, agree in this decision.”[23]

This statement is general, but unquestionable even in its rigor. For the sake of clearness and accuracy it must be considered in its application to different kinds of property.

1. It is undeniable, that, in generality, the rule must embrace real property, or, as termed by the Roman Law and the Continental systems of jurisprudence, _immovables_; but so important an authority as Vattel excepts this species of property, for the reason, that, being acquired by consent of the sovereign, it is as if it belonged to his own subjects.[24] But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason for the exception of real property, _it loses all applicability where the property belongs to an enemy who began by breaking faith on his side_. Surely, whatever the immunity of an ordinary enemy, it is difficult to see how a rebel enemy, whose hostility is bad faith in arms, can plead any safeguard. _Cessante ratione, cessat et ipsa lex_, is an approved maxim of the law; and since with us the reason of Vattel does not exist, the exception which he propounds need not be recognized, to the disparagement of the general rule.

2. The rule is necessarily applicable to all personal property, or, as it is otherwise called, _movables_. On this head there is hardly a dissenting voice, while the Supreme Court of the United States, in a case constantly cited in this debate, has solemnly affirmed it. I refer to _Brown_ v. _United States_,[25] where the broad principle is assumed that war gives to the sovereign full right to confiscate the property of the enemy, wherever found, and that the mitigations of the rule, derived from modern civilization, may affect the exercise of the right, but cannot impair the right itself. Goods of the enemy actually in the country, and all vessels and cargoes afloat in our ports, at the commencement of hostilities, were declared liable to confiscation. In England, it is the constant usage, under the name of “Droits of Admiralty,” to seize and condemn property of an enemy in its ports at the breaking out of hostilities.[26] But this was not followed in the Crimean War, although the claim itself has never been abandoned.

3. The rule, in strictness, also embraces private debts due to an enemy. Although justly obnoxious to the charge of harshness, and uncongenial with an age of universal commerce, this application is recognized by the judicial authorities of the United States. Between debts contracted under faith of laws and property acquired under faith of the same laws reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property within the country on the breaking out of war. Both, it is said, require some special act expressing the sovereign will, and both depend less on any flexible rule of International Law than on paramount political considerations, which International Law will not control. Of course, just so far as slaves are regarded as property, or as bound to service or labor, they cannot constitute an exception to this rule, while the political considerations entering so largely into its application have with regard to them commanding force. In their case, by natural metamorphosis, confiscation becomes emancipation.

Such are recognized Rights of War touching enemy property within the national jurisdiction.

* * * * *

_Secondly._ The same broad rule with which I began may be stated touching enemy property beyond the national jurisdiction, subject, of course, to mitigation from usage, policy, and humanity, but still existing, to be employed in the discretion of the belligerent power. It may be illustrated by different classes of cases.

1. Public property of all kinds belonging to an enemy,--that is, property of the government or prince,--including lands, forests, fortresses, munitions of war, movables,--is all subject to seizure and appropriation by the conqueror, who may transfer the same by valid title, substituting himself, in this respect, for the displaced government or prince. It is obvious that in the case of immovables the title is finally assured only by the establishment of peace, while in the case of movables it is complete from the moment the property comes within the firm possession of the captor so as to be alienated indefeasibly. In harmony with the military prepossessions of ancient Rome, such title was considered the best to be had, and its symbol was a spear.

2. Private property of an enemy at sea, or afloat in port, is indiscriminately liable to capture and confiscation; but the title is assured only by condemnation in a competent court of prize.

3. While private property of an enemy on land, according to modern practice, is exempt from seizure simply as private property, yet it is exposed to seizure in certain specified cases. Indeed, it is more correct to say, with the excellent Manning, that it “is still considered as liable to seizure,” under circumstances constituting in themselves a necessity, of which the conqueror is judge.[27] It need not be added that this extraordinary power must be so used as not to assume the character of spoliation. It must have an object essential to the conduct of the war. But, with such object, it cannot be questioned. The obvious reason for exemption is, that a private individual is not personally responsible, as the government or prince. _But every rebel is personally responsible._

4. Private property of an enemy on land may be taken as a penalty for the illegal acts of individuals, or of the community to which they belong. The exercise of this right is vindicated only by peculiar circumstances; but it is clearly among the recognized agencies of war, and it is easy to imagine that at times it may be important, especially in dealing with a dishonest rebellion.

5. Private property of an enemy on land may be taken for contributions to support the war. This has been done in times past on a large scale. Napoleon adopted the rule that war should support itself. Upon the invasion of Mexico by the armies of the United States, in 1846, the commanding generals were at first instructed to abstain from taking private property without purchase at a fair price; but subsequent instructions were of a severer character. It was declared by Mr. Marcy, at the time Secretary of War, that an invading army had the unquestionable right to draw supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war.[28] Such contributions are sometimes called “requisitions,” and a German writer on the Law of Nations says that it was Washington who “invented the expression and the thing.”[29] Possibly the expression; but the thing is as old as war.

6. Private property of an enemy on land may be taken on the field of battle, in operations of siege, or the storming of a place refusing to capitulate. This passes under the offensive name of “booty” or “loot.” In the late capture of the imperial palace of Pekin by the allied forces of France and England, this right was illustrated by the surrender of its contents, including silks, porcelain, and furniture, to the lawless cupidity of an excited soldiery.

7. Pretended property of an enemy in slaves may unquestionably be taken, and, when taken, will of course be at the disposal of the captor. If slaves are regarded as property, then will their confiscation come precisely within the rule already stated. But, since slaves are men, there is still another rule of public law applicable to them. It is clear, that, where there is an intestine division in an enemy country, we may take advantage of it, according to Halleck, in his recent work on International Law, “without scruple.”[30] But Slavery is more than an intestine division; it is a constant state of war. The ancient Scythians said to Alexander: “Between the master and slave no friendship exists; even in peace the Rights of War are still preserved.”[31] Giving freedom to slaves, a nation in war simply takes advantage of the actual condition of things. But there is another vindication of this right, which I prefer to present in the language of Vattel. After declaring that “in conscience and by the laws of equity” we may be obliged to restore “booty” recovered from an enemy who had taken it in unjust war, this humane publicist proceeds as follows.

“The obligation is more certain and more extensive with regard
to a people whom our enemy has unjustly oppressed. For a
people thus spoiled of their liberty never renounce the hope
of recovering it. If they have not voluntarily incorporated
themselves with the state by which they have been subdued, if
they have not freely aided her in the war against us, _we ought
certainly so to use our victory as not merely to give them a
new master, but to break their chains_. To deliver an oppressed
people is a noble fruit of victory; it is a valuable advantage
gained thus to acquire a faithful friend.”[32]

These are not the words of a visionary, or of a speculator, or of an agitator, but of a publicist, an acknowledged authority on the Law of Nations.

Therefore, according to the Rights of War, slaves, if regarded as property, may be declared free; or if regarded as men, they may be declared free, under two acknowledged rules: _first_, of self-interest, to procure an ally; and, _secondly_, of conscience and equity, to do an act of justice ennobling victory.

* * * * *

Such, Sir, are acknowledged Rights of War with regard to enemy property, whether within or beyond our territorial jurisdiction. I do little more than state these rights, without stopping to comment. If they seem harsh, it is because war in essential character is harsh. It is sufficient for our present purpose that they exist.

* * * * *

Of course, all these rights belong to the United States. There is not one of them which can be denied. They are ours under that great title of Independence by which our place was assured in the Family of Nations. Dormant in peace, they are aroused into activity only by the breath of war, when they all place themselves at our bidding, to be employed at our own time, in our own way, and according to our own discretion, subject only to that enlightened public opinion which now rules the civilized world.

Belonging to the United States by virtue of International Law, and being essential to self-defence, they are naturally deposited with the _supreme power_, which holds the issues of peace and war. Doubtless there are Rights of War, embracing confiscation, contribution, and liberation, to be exercised by any commanding general in the field, or to be ordered by the President, according to the exigency. Mr. Marcy was not ignorant of his duty, when, by instructions from Washington, in the name of the President, he directed the levy of contributions in Mexico. In European countries all these Rights of War which I have reviewed to-day are deposited with the executive alone,--as in England with the Queen in Council, and in France and Russia with the Emperor; but in the United States they are deposited with the legislative branch, being the President, Senate, and House of Representatives, whose joint action becomes the supreme law of the land. The Constitution is not silent on this question. It expressly provides that Congress shall have power, first, “to declare war,” and thus set in motion all the Rights of War; secondly, “to grant letters of marque and reprisal,” being two special agencies of war; thirdly, “to make rules concerning captures on land and water,” which power of itself embraces the whole field of confiscation, contribution, and liberation; fourthly, “to raise and support armies,” which power, of course, comprehends all means for this purpose known to the Rights of War; fifthly, “to provide and maintain a navy,” plainly according to the Rights of War; sixthly, “to make rules for the government and regulation of the land and naval forces,” another power involving confiscation, contribution, and liberation; and, seventhly, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” a power which again sets in motion all the Rights of War. But, as if to leave nothing undone, the Constitution further empowers Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” In pursuance of these powers, Congress has already enacted upwards of one hundred articles of war for the government of the army, one of which provides for the security of public stores taken from the enemy. It has also sanctioned the blockade of the Rebel ports according to International Law. And only at the present session we have enacted an additional article to regulate the conduct of officers and men towards slaves seeking shelter in camp. Proceeding further on the present occasion, it will act in harmony with its own precedents, as well as with its declared powers, according to the very words of the Constitution. Language cannot be broader. Under its comprehensive scope there is nothing essential to the prosecution of the war, its conduct, its support, or its success,--yes, Sir, there can be nothing essential to its success, which is not positively within the province of Congress. There is not one of the Rights of War which Congress may not invoke. There is not a single weapon in its terrible arsenal which Congress may not grasp.

* * * * *

Such are indubitable powers of Congress. It is not questioned that these may all be employed against a public enemy; but there are Senators who strangely hesitate to employ them against that worst enemy of all, who to hostility adds treason, and teaches his country

“How sharper than a serpent’s tooth it is
To have a thankless child.”

The rebel in arms is an enemy, and something more; nor is there any Right of War which may not be employed against him in its extremest rigor. In appealing to war, he has voluntarily renounced all safeguards of the Constitution, and put himself beyond its pale. In ranging himself among enemies, he has broken faith so as to lose completely all immunity from the strictest penalties of war. As an enemy, he must be encountered; nor can our army be delayed in the exercise of the Rights of War by any misapplied questions of _ex post facto_, bills of attainder, attainder of treason, due process of law, or exemption from forfeiture. If we may shoot rebel enemies in battle, if we may shut them up in fortresses or prisons, if we may bombard their forts, if we may occupy their fields, if we may appropriate their crops, if we may blockade their ports, if we may seize their vessels, if we may capture their cities, it is vain to say that we may not exercise against them the other associate prerogatives of war. Nor can any technical question of constitutional rights be interposed in one case more than another. Every prerogative of confiscation, requisition, or liberation known in war may be exercised against rebels in arms precisely as against public enemies. Ours are belligerent rights to the fullest extent.

Sir, the case is strong. The Rebels are not only criminals, they are also enemies, whose property is actually within the territorial jurisdiction of the United States; so that, according to the Supreme Court, it only remains for Congress to declare the Rights of War to be exercised against them. The case of Brown,[33] so often cited in this debate, affirms that enemy property actually within our territorial jurisdiction can be seized only by virtue of an Act of Congress, and recognizes the complete liability of all such property, when actually within such territorial jurisdiction. It is therefore, in all respects, a binding authority, precisely applicable; so that Senators who would impair its force must deny either that the Rebels are enemies or that their property is actually within the territorial jurisdiction of the United States. Assuming that they are enemies, and that their property is actually within our territorial jurisdiction, the power of Congress is complete; and it is not to be confounded with that of a commanding general in the field, or of the President as commander-in-chief of the armies.

Pardon me, if I dwell on one point with regard to the property of rebels in arms by which it is distinguishable from the private property of enemies in international war. _Every rebel in arms is directly responsible for his conduct_, as in international war the government or prince is directly responsible; so that on principle he can claim no exemption from any penalty of war. And since Public Law is founded on reason, it follows that the rule subjecting to seizure and forfeiture all property, real as well as personal, of the hostile government or prince should be applied to all property, real and personal, of the rebel in arms. It is impossible for him to claim the immunity conceded generally to private property of an enemy in international war, and also conceded generally to land of an enemy within our territorial jurisdiction. For the rebel in arms there is no just exemption.

* * * * *

When claiming these powers for Congress, it must also be stated that there is a limitation of time with regard to their exercise. Whatever is done against the Rebels in our character as belligerents under the Rights of War must be done during war, and not after its close. Naturally the Rights of War end with the war, except in those consequences which have become fixed during the war. With the establishment of peace the Rights of Peace resume sway, and all proceedings are according to the prescribed forms of the Constitution. Instead of laws silenced by arms, there are arms submissive to laws. Instead of courts martial or military proceedings, there are the ordinary courts of justice with all constitutional safeguards. If this change needed illustration, it would be found in a memorable passage of French history. Marshal Ney, who had deserted Louis the Eighteenth to welcome Napoleon from Elba, was, after the capitulation of Paris, handed over to a council of war for trial; but the council, composed of marshals of France, declared itself incompetent, since the case involved treason, and the accused was carried before the Chamber of Peers, of which he was a member, according to the requirements of the French Charter. His condemnation and execution have been indignantly criticized, but the form of trial was a homage to the pacification which had been proclaimed. Therefore let it be borne in mind that all proceedings founded on the Rights of War will expire, when the Constitution is again established throughout the country. They are temporary and incidental, in order to secure that blessed peace which we all seek.

So completely are these rights distinguished from ordinary municipal proceedings against crime, that they are administered by tribunals constituted for the purpose, with well-known proceedings of their own. Courts of Prize have a fixed place in the judicial system of the United States, and their jurisdiction excludes that of municipal tribunals, so that no action can be brought in a court of Common Law on account of a seizure _jure belli_. It is their province to hear all cases of prize or capture,--in short, every case of property arising under the Rights of War; and although practically these cases are chiefly maritime, yet the jurisdiction of such courts is held to embrace hostile seizures on shore.[34] The hearing is by the court alone, without a jury, substantially according to forms derived from the Roman Law; and the ordinary judgment is against the thing captured, or _in rem_, pronouncing its condemnation and distribution. In every case of prize or capture, involving a question of property, and not of crime, these proceedings constitute “due process of law,” so as to be completely effective under the Constitution, and, according to acknowledged principles, they supersede the jurisdiction of all mere municipal tribunals.

Among the few cases illustrating this exclusive jurisdiction in matters of capture and prize on land is one which arose from the exercise of military power in a conquered province in India, and was at last considered and decided by the Privy Council in England, after most elaborate argument by the most eminent barristers of the time. The facts are few. Upon the conquest of Poonah, in 1817, Mr. Mountstuart Elphinstone, perhaps the most finished man, and of completest gentleness, who ever exercised power in British India, was appointed “sole commissioner for the settlement of the territory conquered, with authority over all the civil and military officers employed in it.” In the discharge of his dictatorial functions, he proceeded to appoint a “provisional collector and magistrate of the city of Poonah and the adjacent country,” whom he instructed “to deprive the enemy of his resources, and in this and all other points to make everything subservient to the conduct of the war.” After indicating certain crimes to be treated with summary punishment, he proceeded to confer plenary powers, saying: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, _unless where they are clearly repugnant to reason and natural equity_.” Under these instructions the provisional collector seized several bags of gold, in the house of a prominent enemy. In an action before the Supreme Court of Bombay for the value of this treasure, and of a quantity of jewels and shawls taken by the military, judgment was given for the claimant. But this was overruled by the Court of Appeals in England, on the ground, that, in the actual state of warfare at that time, there was no jurisdiction over a question of prize and capture in an ordinary municipal court. At the bar it was argued:--

“No country can ever be thoroughly brought under subjection, if
it is to be held, that, where there has been a conquest and no
capitulation, the mere publication of a proclamation, desiring
the people to be quiet, and telling them what means would be
resorted to, if they were not so, so far reduces the country
under the civil rule, that the army loses its control, and the
municipal courts acquire altogether jurisdiction, so that every
action of the officers in the direction of military affairs is
liable to their cognizance.”[35]

In giving judgment, Lord Tenterden, at the time Chief Justice of England, stated the conclusion, as follows.

“We think the proper character of the transaction was that
of _hostile seizure_, made, if not _flagrante_, yet _nondum
cessante bello_, regard being had both to the time, the place,
and the person, and consequently that the municipal court had
no jurisdiction to adjudge upon the subject, but that, if
anything was done amiss, recourse could only be had to the
Government for redress.”[36]

This is an important and leading authority, interesting in all respects; but I adduce it now only to show that municipal courts cannot properly take cognizance of questions of property arising under the Rights of War. This established principle testifies to the essential difference between _rights against criminals_ and _rights against enemies_. There is a different tribunal for each claim.

* * * * *

I have said what I have to say on the law of this matter, bringing it to the standard of the Constitution and of International Law, and I have exhibited the powers of Congress in their two fountains. It is for you to determine out of which you will draw, or, indeed, if you will not draw from both. Regarding the Rebels as criminals, you may so pursue and punish them. Regarding them as enemies, you may blast them with that summary vengeance which is among the dread agencies of war, while, by an act of beneficent justice, you elevate a race, and change this national calamity into a sacred triumph. Or, regarding them both as criminals and as enemies, you may marshal against them all the double penalties of rebellion and war, or, better still, the penalties of rebellion and the triumphs of war.

* * * * *

It now remains to borrow such instruction as we can from the _history_ of kindred measures. And here I am not tempted to depart from that frankness which is with me an instinct and a study. If there be anything in the past to serve as warning, I shall not keep it back, although I ask you to consider carefully the true value of these instances, and how far they are a lesson to us. If there be any course to which I incline, it will be abandoned at once, when shown not to be for the highest good. I have no theories to maintain at the expense of my country or of truth.

* * * * *

Confiscation is hardly less ancient than national life. It began with history. It appears in the Scriptures, where Ahab took the vineyard of Naboth, and David gave away the goods of a confederate of Absalom. The Senator from Wisconsin [Mr. DOOLITTLE] reminded us that it prevailed among the Persians and Macedonians. In the better days of the Roman Republic it was little known; but it appeared with the vengeful proscriptions of Sylla; and Cæsar himself, always forbearing, yet, while striving to mitigate the penalties of the Catilinarian conspirators, moved a confiscation of all their property to the public treasury. It flourished under the Emperors, who made it alternately the instrument of tyranny and of cupidity. But there were virtuous Emperors, like Antoninus Pius, under whom the goods of a convict were abandoned to his children, and like Trajan, under whom confiscation was unknown. Among the reforms of Justinian, in his immortal revision of the law, this penalty disappeared, except in cases of treason.[37] But these instances illustrate confiscation only as punishment. Throughout Roman history it had been inseparable from war. The auction was an incident of the camp. It was a distribution of bounty lands among the soldiers of Octavius, after the establishment of his power, that drove Virgil from his paternal acres to seek imperial favor at Rome.

In modern times confiscation became a constant instrument of government, both in punishment and in war. It was an essential incident to the feudal system, which was in itself a form of government. Ruthlessly exercised, sometimes against individuals and sometimes against whole classes, it was converted into an engine of vengeance and robbery, which spared neither genius nor numbers. In Florence it was directed against Dante, and in Holland against Grotius, while in early England it was the power by which William of Normandy despoiled the Saxons of their lands and parcelled them among his followers. In Germany, during the period of theological conflict which darkened that great country, it was often used against Protestants, and was at one time menaced on a gigantic scale. The Papal Nuncio sought nothing less than the confiscation of all the goods of heretics. Spain was not less intolerant than Germany, and the story of the Moors and the Jews, stripped of their possessions and sent forth as wanderers, protests against such injustice. In early France confiscation was not idle, although in one instance it received an application which modern criticism will not reject, when, by special ordinance, _rebels_ were declared to be _enemies_, and their property was subjected to confiscation as Prize of War.

By the law of England, it was the inseparable incident of treason, flourishing always in Ireland, where rebellion was chronic, and showing itself in Great Britain whenever rebellion occurred. But it was simply as part of punishment, precisely as the traitor was drawn and quartered and his blood corrupted, all according to law. The scaffold turned over to the Government all the estate of its victims. But there is another instance in English history entirely different in character, where Henry the Eighth, in warfare with the Catholic Church, did not hesitate to despoil the monasteries of their great possessions, with a clear annual revenue of one hundred and thirty-one thousand six hundred and seven pounds, or, according to Bishop Burnet, ten times that sum “in true value.”[38] This property, so enormous in those days, wrested at once from the mortmain of the Church, testifies to the boldness, if not the policy, with which the power was wielded.

It is in modern France that confiscation has played its greatest part, and been the most formidable weapon, whether of punishment or of war. At first abolished by the Revolution, as a relic of royal oppression, it was at length adopted by the Revolution. Amidst the dangers menacing the country, this sacrifice was pronounced essential to save it, and successive laws were passed, beginning as early as November, 1789, by which it was authorized. Never before in history was confiscation so sweeping. It aroused at the time the eloquent indignation of Burke, and still causes a sigh among all who think less of principles than of privileges. From an official report to the First Consul, it appears that before 1801 sales were authorized by the Government to the fabulous amount of two thousand five hundred and fifty-five millions of francs, or above five hundred millions of dollars, while still a large mass, estimated at seven hundred million francs, of confiscated property remained unsold.[39] The whole vast possessions of the Church disappeared in this chasm.

Cruel as were many of the consequences, this confiscation must be judged as part of the Revolution whose temper it shared; nor is it easy to condemn anything but its excesses, unless you are ready to say that the safety of France, torn by domestic foes and invaded from abroad, was not worth securing, or that equality before the law, which is now the most assured possession of that great nation, was not worth obtaining. It was part of the broad scheme of Napoleon, moved by politic generosity, to mitigate as far as possible the operation of this promiscuous spoliation, especially by restraining it, according to the principle of the bill which I have introduced, to the most obnoxious persons,--although this sharp ruler knew too well what was due to titles once fixed by Government to contemplate any restoration of landed property already alienated. “There are,” he exclaimed, in the Council of State, “above one hundred thousand names on these unhappy lists: it is enough to turn one’s head.… _The list must be reduced by three fourths of its number, to the names of such as are known to be hostile to the Government._”[40] Hostility to the Government constituted with him sufficient reason for continued denial of all rights of property or citizenship. And so jealous was he on this point, that, when he heard that some who were allowed to enter upon their yet unalienated lands had proceeded to cut down the forests, partly from necessity and partly to transfer funds abroad, he interfered peremptorily, in words applicable to our present condition: “We cannot allow the greatest enemies of the Republic, the defenders of old prejudices, to recover their fortunes and despoil France.”[41] This episode of history, so suggestive to us, will not be complete, if I do not mention, that, through this policy of confiscation, France passed from the hands of dominant proprietors, with extended possessions, into the hands of those small farmers now constituting so important a feature in its social and political life. Nor can I neglect to add, that kindred in character, though involving no loss of property, was the entire obliteration at the same time of the historic Provinces of France, and the substitution of new divisions into Departments, with new landmarks and new names, so that ancient landmarks and ancient names, quickening so many prejudices, no longer served to separate the people.

But this story is not yet ended. Accustomed to confiscation at home, France did not hesitate to exercise it abroad, under the name of contributions; nor was there anything her strong hand did not appropriate,--sometimes, it might be, the precious treasures of Art, paintings of Raffaelle, Titian, or Paul Potter, enshrined in foreign museums, and sometimes the ornaments of churches, palaces, and streets. Often in hard money were these contributions levied. For instance, in 1807, Napoleon exacted from Prussia, with little more than five million inhabitants, a war contribution of more than one hundred and twenty millions of dollars; and in 1809, the same conqueror exacted from Austria a like contribution of about fifty millions of dollars. In kindred spirit, Davoust, one of his marshals, stationed at Hamburg, levied upon that single commercial city, during the short term of twelve months, contributions amounting to more than fifteen, or, according to other accounts, twenty-five, millions of dollars. But the day of reckoning came, when France, humbled at last, was constrained to accept peace from the victorious allies encamped at Paris. The paintings, the marbles, and the ornaments ravished from foreign capitals were all taken back, while immense sums were exacted for expenses of the war, and also for spoliations during the Revolution, amounting in all to three hundred million dollars. Such is the lesson of France.

And still later, actually in our day, the large possessions of the late king, Louis Philippe, were confiscated by Louis Napoleon, while every member of the Orléans family was compelled to dispose of his property before the expiration of a year, under penalty of forfeiture and confiscation. This harsh act had its origin in the assumed necessities of self-defence, that this powerful family might be excluded from France, not only in person, but in property also, and have no foothold or influence there.

While it is easy to see that these interesting instances are only slightly applicable to our country, yet I do not disown any suggestion of caution or clemency they inculcate. Other instances in our own history are more applicable. All are aware that during the Revolution the property of Tories, loyalists, and refugees was confiscated; but I doubt if Senators know the extent to which this was done, or the animosity by which it was impelled. Out of many illustrations, I select the early language of the patriot Hawley, of Massachusetts, in a letter to Elbridge Gerry, under date of July 17, 1776. “Can we subsist,” said this patriot, “did any state ever subsist, without exterminating traitors?… It is amazingly wonderful, that, having no capital punishment for our intestine enemies, we have not been utterly ruined before now.”[42] The statutes of the time are most authentic testimony. I hold in my hand a list, amounting to _eighty-eight_ in number, which I have arranged according to States. Some are very severe, as may be imagined from the titles, which I proceed to give; but they show, beyond assertion or argument, how, under the exigencies of war for National Independence, the power of confiscation was recognized and employed. Each title is a witness.

1. _New Hampshire._--To confiscate estates of sundry persons
therein named. November 28, 1778.

2. _Massachusetts._--To prevent the return of certain persons
therein named, and others who had left that State, or either of
the United States, and joined the enemies thereof. 1778.

3. To confiscate the estates of certain notorious conspirators
against the government and liberties of the inhabitants of the
late Province, now State, of Massachusetts Bay. 1779.

4. For repealing two laws of the State, and for asserting the
rights of that free and sovereign Commonwealth to expel such
aliens as may be dangerous to the peace and good order of
government. March 24, 1784.

5. In addition to an Act made and passed March 24, 1784,
repealing two laws of this State. November 10, 1784.

6. _Rhode Island._--To confiscate and sequester estates, and
banish persons of certain descriptions. October, 1775.

7-13. To confiscate and sequester estates, and banish persons
of certain descriptions. February, March, May, June, July,
August, October, 1776.

14, 15. To confiscate and sequester estates, and banish persons
of certain descriptions. February, October, 1778.

16-20. To confiscate and sequester estates, and banish persons
of certain descriptions. February, May, August, September,
October, 1779.

21-23. To confiscate and sequester estates, and banish persons
of certain descriptions. July, September, October, 1780.

24, 25. To confiscate and sequester estates, and banish persons
of certain descriptions. January, May, 1781.

26-28. To confiscate and sequester estates, and banish persons
of certain descriptions. June, October, November, 1782.

29-32. To confiscate and sequester estates, and banish persons
of certain descriptions. February, May, June, October, 1783.

33. To send out of the State N. Spink and John Underwood, who
had formerly joined the enemy, and were returned into Rhode
Island. May 27, 1783.

34. To send William Young, theretofore banished, out of the
State, and forbidden to return at his peril. June 8, 1783.

35. Allowing William Brenton, late an absentee, to visit his
family for one week, then sent away, not to return. June 12,
1783.

36. To banish S. Knowles (whose estate had been forfeited), on
pain of death, if he return. October, 1783.

37. _Connecticut._--Directing certain confiscated estates to be
sold.

38. _New York._--For the forfeiture and sales of the estates of
persons who have adhered to the enemies of the State. October
22, 1779.

39. For the immediate sale of part of the confiscated estates.
March 10, 1780.

40. Approving the Act of Congress relative to the finances of
the United States, and making provision for redeeming that
State’s proportion of bills of credit to be emitted. June 15,
1780.

41. To procure a sum in specie, for the purpose of redeeming a
portion of the bills emitted, &c. October 7, 1780.

42. For granting a more effectual relief in cases of certain
trespasses. March 17, 1783.

43. For suspending the prosecutions therein mentioned. March
21, 1783.

44. To amend and extend certain Acts. May 4, 1784.

45. To preserve the freedom and independence of the State, &c.
May 12, 1784.

46. _New Jersey._--To punish traitors and disaffected persons.
October 4, 1776.

47. For taking charge of and leasing the real estates, and
for forfeiting personal estates, of certain fugitives and
offenders. April 18, 1778.

48. For forfeiting to and vesting in the State the real estates
of certain fugitives and offenders. December 11, 1778.

49. Supplemental to the Act to punish traitors and disaffected
persons. October 3, 1782.

50. To appropriate a certain forfeited estate. December 23,
1783.

51. _Pennsylvania._--For the attainder of divers traitors, and
for vesting their estates in the Commonwealth, if they render
not themselves by a certain day. March 6, 1778.

52. To attaint Henry Gordon, unless he surrender himself by
a given day, and the seizure of his estates by the agents of
forfeited estates confirmed. January 31, 1783.

53. _Delaware._--Declaring estates of certain persons
forfeited, and themselves incapable of being elected to any
office. February 5, 1778.

54. _Maryland._--For calling out of circulation the quota of
the State of the bills of credit issued by Congress. October,
1780.

55. To seize, confiscate, and appropriate all British property
within the State. October, 1780.

56. To appoint commissioners to preserve confiscated British
property. October, 1780.

57. To procure a loan, and for the sale of escheat lands and
the confiscated British property therein mentioned. October,
1780.

58. For the benefit of the children of Major Andrew Leitch.
June 15, 1782.

59. To vest certain powers in the Governor and Council.
November, 1785.

60. To empower the Governor and Council to compound with the
discoverers of British property, and for other purposes.
November, 1788.

61. _Virginia._--For sequestering British property, enabling
those indebted to British subjects to pay off such debts, &c.
October, 1777.

62. Concerning escheats and forfeitures from British subjects.
May, 1779.

63. For removal of seat of government. May, 1779.

64, 65. To amend the Act concerning escheats and forfeitures.
May, October, 1779.

66. To adjust and regulate pay and accounts of officers of
Virginia line. November, 1781.

67. For providing more effectual funds for redemption of
certificates. May, 1782.

68. Prohibiting the migration of certain persons to that
Commonwealth, &c. October, 1783.

69. To explain, amend, &c., the several Acts for the admission
of emigrants to the rights of citizenship, and prohibiting the
migration of certain persons to that Commonwealth. October,
1786.

70. _North Carolina._--For confiscating the property of
all such persons as are inimical to the United States, &c.
November, 1777.

71. To carry into effect the last mentioned act. January, 1779.

72. Directing the sale of confiscated property. October, 1784.

73. To describe and ascertain such persons as owed allegiance
to the State, and to impose certain disqualifications on
certain persons therein named. October, 1784.

74. To amend the last mentioned Act. November, 1785.

75. To secure and quiet in their possessions all such as have
or may purchase lands, goods, &c., sold or hereafter to be sold
by the commissioners of forfeited estates. December 29, 1785.

76. Act of pardon and oblivion. April, 1788.

77. _South Carolina._--For disposing of certain estates and
banishing certain persons therein mentioned. February 26, 1782.

78. To amend the last mentioned Act. March 16, 1783.

79. To vest land, late property of James Holmes, in certain
persons in trust for the benefit of a public school. August 15,
1783.

80. For restoring to certain persons their estates, and for
permitting the said persons to return, &c. March 26, 1784.

81. For amending and explaining the Confiscation Act. March 26,
1784.

82. To amend the Confiscation Act, and for other purposes
therein mentioned. March 22, 1786.

83. _Georgia._--For inflicting penalties on, and confiscating
the estates of, such persons as are therein declared guilty of
treason, &c. May 4, 1782.

84. To point out the mode for the recovery of property
unlawfully acquired under the British usurpation, and withheld
from the rightful owners, &c. February 17, 1783.

85. Releasing certain persons from their bargains, &c. July 29,
1783.

86. For ascertaining the rights of aliens, and pointing out a
mode for the admission of citizens. February 7, 1785.

87. To authorize the auditor to liquidate the demands of
such persons as have claims against the confiscated estates.
February 22, 1785.

88. To compel the settlement of public accounts, for inflicting
penalties, and for vesting auditor with certain powers.
February 10, 1787.[43]

Such is the array which illustrates the terrible earnestness of those times. In their struggle for National Independence, our fathers did not hesitate to employ all the acknowledged Rights of War; nor did they higgle over questions of form with regard to enemies in arms against them. To this extent, at least, we may be instructed by their example, even if we discard their precedents.

In the negotiations for the acknowledgment of National Independence these Acts were much considered. It does not appear, however, that their legality was drawn into question, although, as is seen, they exercised the double rights of sovereignty and of war. The British Commissioner, Mr. Oswald, expresses himself, under date of November 4, 1782, as follows.

“You may remember, that, from the very first beginning of our
negotiation for settling a peace between Great Britain and
America, I insisted that you should positively stipulate for
the restoration of the property of all those persons, under
the denomination of the Loyalists or Refugees, who have taken
part with Great Britain in the present war: or, if the property
had been resold, and passed into such a variety of hands as
to render the restoration impracticable, (which you asserted
to be the case in many instances,) you should stipulate for a
compensation or indemnification to those persons adequate to
their losses.”[44]

The American Commissioners, John Adams, Benjamin Franklin, and John Jay, declared in reply, that “the restoration of such of the estates of the refugees as have been confiscated is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands.” As to the demand of compensation for these persons, the Commissioners said: “We forbear enumerating our reasons for thinking it ill-founded.”[45] In the course of the conference, and by way of reply or set-off, gross instances were adduced of outrages by the British troops in “the carrying off of goods from Boston, Philadelphia, and the Carolinas, Georgia, Virginia, &c., and the burning of the towns.” Franklin mentioned “the case of Philadelphia, and the carrying off of effects there, even his own library.” Laurens added “the plunders in Carolina of negroes, plate, &c.”[46] In a letter from Franklin to the British Commissioner, under date of November 26, 1782, the pretension of the loyalists was finally repelled in the plainest words.

“You may well remember, that, in the beginning of our
conferences, before the other Commissioners arrived, on
your mentioning to me a retribution for the loyalists whose
estates had been forfeited, … I gave it as my opinion and
advice, honestly and cordially, that, if a reconciliation was
intended, no mention should be made in our negotiations of
those people; for, they having done infinite mischief to our
properties, by wantonly burning and destroying farm-houses,
villages, and towns, if compensation for their losses were
insisted on, we should certainly exhibit against it an account
of all the ravages they had committed, which would necessarily
recall to view scenes of barbarity that must inflame, instead
of conciliating, and tend to perpetuate an enmity that we all
profess a desire of extinguishing.…