War powers under the constitution of the United States

Preface To The Second Edition

WAR POWERS OF THE PRESIDENT, AND LEGISLATIVE POW- ERS OF CONGRESS, IN RELATION TO REBELLION, TREASON, AND SLAVERY.

The following pages were not originally intended for publication, but were written by tbe author for his private use. He has printed them at the request of a few friends, to whom the opinions therein expressed had been communicated ; and he is not unaware of several errors of the press, and of some inaccuracies of expression, which, in one or two instances, at least, modify the sense of the statements intended to be made. The work having been printed, such errors can conveniently be corrected only in the "errata? This publication was principally written in the spring of 1862, the chapter on the operation of the Confiscation Act of July 17th, 1862, having been subsequently added. Since that time President Lincoln has issued his Emancipation Proclamation, and several military orders, operating in the Free States, under which questions have arisen of the gravest importance. The views of the author on these subjects have been expressed in several recent public addresses ; and, if circumstances permit, these subjects may be discussed in a future addition to this pamphlet.

To prevent misunderstanding, the learned reader is requested to observe the distinction between emancipating or confiscating sla\ es, and abolishing the laws which sustain slavery in the Slave

Preface

States. The former merely takes away slaves from the possession and control of their masters ; the latter deprives the inhabitants of those States of the lawful right of obtaining, by purchase or otherwise, or of holding slaves. Emancipation or confiscation operates only upon the slaves personally; but a law abolishing the right to hold slaves, in the Slave States, operates on all citizens residing there, and effects a change of local law. If all the horses now in Massachusetts were to be confiscated, or appropriated by government to public use, though this proceeding would change the legal title to these horses, it would not alter the laws of Massachusetts as to personal property ; nor would it deprive our citizens of the legal right to purchase and use other horses.

The acts for confiscation or emancipation of enemy's slaves, and the President's Proclamation "of the 22d of- September, do not abolish slavery as a legal institution in the States ; they act upon persons held as slaves ; they alter no local laws in any of the States ; they do not purport to render slavery unlawful ; they merely seek to remove slaves from the control of rebel masters. If slavery shall cease by reason of the legal emancipation of slaves, it will be because slaves are removed; nevertheless, the laws that sanction slavery may remain in fall force. The death of all the negroes on a plantation would result in a total loss to the owner of so much "property;" but that loss would not prevent the owner from buying other negroes, and holding them by slave laws. Death does not interfere with the local law of property. Emancipation and confiscation, in like manner, do not necessarily interfere with local law establishing slavery.

The riecht to liberate slaves, or to remove the condition or status of slavery, as it applies to all slaves living at any one time, or the right -to abolish slavery in the sense of liberating all existing slaves, is widely different and distinct from the right of repealing or annulling the laws of States which sanction the holding of slaves. State slave laws may or may not be beyond the reach of the legislative powers of Congress ; but if they are, that fact

PREFACE. Ill

would not determine the question as to the right to emancipate, liberate, or to change the relation to their masters of slaves now living ; nor the question as to the right of abolishing slavery, in the sense in which this expi'ession is used when it signifies the liberation of persons now held as slaves, from the operation of slave laws; while these laws are still left to act on other persons who may be hereafter reduced to slavery under them.

It is not denied that the powers given to the various departments of government are in general limited and defined ; nor is it to be forgotten that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Const. Amendment, Art. X.) But the powers claimed for the President and for Congress, in this essay, are believed . to be delegated to them respectively under the constitution, expressly or by necessary implication.

The learned reader will also notice, that the positions taken in this pamphlet do not depend upon the adoption of the most liberal construction of the constitution, Art. I. Sect. 8, CI. l,which is deemed by eminent statesmen to contain a distinct, substantive power to pass all laws which Congress shall judge expedient " to provide for the common defence and general welfare? This construction was held to be the true one by many of the original framers of the constitution and their associates ; among them was George Mason of Virginia, who opposed the adoption of the constitution in the Virginia convention, because, among other reasons, he considered that the true construction. (See Elliott's Debates, vol. ii. 327, 328.) Thomas Jefferson says, (Jefferson's Correspondence, vol. iv. p. 300,) that this doctrine was maintained by the Federalists as a party, while the opposite doctrine was maintained by the Republicans as a party. Yet it is true that several Federalists did not adopt that view, but Washington, Adams, Jefferson, Madison, Monroe, Hamilton, Mason, and others, were quite at variance as to the true interpretation of that much contested clause. Southern

IV PREFACE.

statesmen, drifting towards the state-rights doctrines, as time passed on, have generally adopted the sti-ictest construction oi the language of that clause ; but it has not yet been authoritatively construed by the Supreme Court. Whatever may be the extent or limitation of the power conveyed in this section, it is admitted by all that it contains the power of imposing taxes to an unlimited amount, and the right to appropriate the money so obtained to " the common defence and public welfare." Thus it is obvious, that the right to appropriate private property to public use, and to provide compensation therefor, as stated in Chapter I. ; the power of Congress to confiscate enemy's property as a belligerent right ; the power of the President, as commander-in-chief, as an act of war, to emancipate slaves ; or the power of Congress to pass laws to aid the President, in executing his military duties, by abolishing slavery, or emancipating slaves, under Art. I. Sect. 8, CI. 18, as war measures, essential to save the country from destruction, do not depend upon the construction given to the disputed clause above cited.

It will also be observed, that a distinction is' pointed out in these pages between the legislative powers of Congress, in time of peace, and in time of war. Whenever the words " the common defence'''' are used, they are intended to refer to a time, not of constructive war, but of actual open hostility, which requires the nation to exert its naval and military powers in self-defence, to save the government and the country from destruction.

The Introduction, and Chapters I. and VIII., should be read in connection, as they relate to the same subject; and the reader will bear in mind that, in treating of the powers of Congress in the first chapter, it is not asserted that Congress have, without any public necessity justifying i£,the right to appropriate private property of any kind to public use. There must always be a justifiable cause for the exercise of every delegated power of legislation.

It is not maintained in these pages that Congress, in time of peace, has the right to abolish slavery in the States, by passing

PREFACE.

laws rendering the holding of any slaves therein illegal, so long as slavery is merely a household or family, or domestic institution ■ and so long as its existence and operation are confined to the States where it is found, and concern exclusively the domestic affairs of the Slave States ; and so long as it does not conflict with or affect the rights, interests, duties, or obligations which appertain to the affairs of the nation, nor impede the execution of the laws and constitution of the United States, nor conflict with the rights of citizens under them. Yet cases miffht arise in which, in time of peace, the abolishment of slavery might be necessary, and therefore would be lawful, in order to enable Congress to carry into effect some .of the express provisions of the constitution, as for example, that contained in Art. IV. Sect. 4, 01. 1, in which the United States guarantee to every State in this Union a republican form of government ; or that contained in Art. IV. Sect. 2, CI. 1, which provides that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.

It is asserted in this essay that, when the institution of slavery no longer concerns only the household or family, and no longer continues to be a matter exclusively appertaining to the domestic affairs of the State in which it exists; when it becomes a potent, operative, and efficient instrument for carrying on war against the Union, and an important aid to the public enemy; when it opposes the national military powers now involved in a gigantic rebellion; when slavery has been developed into a vast, an overwhelming toar power., which is actually used by armed traitors for the overthrow of government and of the constitution; when it has become the origin of civil war, and the means by which hostilities are maintained in the deadly struggle of the Union for its own existence; when a local institution is perverted so as to compel three millions of loyal colored subjects to become belligerent traitors because they are held as slaves of disloyal masters, —then indeed slavery has become an

V] PREFACE.

affair most deeply affecting the national welfare and common defence, and has subjected itself to the severest enforcement of those legislative and military powers, to which alone, under the constitution, the people must look to save themselves from ruin. In the last extremity of our contest, the question must be decided whether slavery shall be rooted up and extirpated, or our beloved country be torn asunder and given up to our conquerors, our Union destroyed, and our people dishonored ? Are any rights of property, or any claims, which one person can assume to have over another, by whatever local law they may be sanctioned, to be held, by any just construction of the constitution, as superior to the nation's right of self-defence ? And can the local usage or law of any section of this country override and break down the obligation of the people to maintain and perpetuate their own government? Slavery is no longer local or domestic after it has become an engine of war. The country demands, at the hands of Congress and of the President, the exercise of every power they can lawfully put forth for its destruction, not as an object of the war, but as a means of terminating the rebellion, if by destroying slavery the republic may be saved. These considerations and others have led the author to the conclusion stated in the following pages, "that Congress has the right to abolish slavery, when in time of war its abolishment is necessary to aid the commander-in-chief in maintaining the ■ ' common defence?" -ty *y

Note. — The reader is referred to the Preface, pages iii. and iv., for remarks upon the Constitution, Art. I., Sect. 8, clause 1. relating to the alleged power of Congress " to provide for the general welfare and common defence-," and, in addition to the authorities there cited, reference may be had to the speeches of Patrick Henry, who fully sustains the views of Mr. Jefferson. See also Story on the Constitution, Sect. 1286.

CONTENTS OF THE "WAR POWERS," ETC.

Page

preface to the second edition i

The Constitution — purpose for which it was founded 1

" how violated 1

" liberal and strict constructionists 8

" powers we should expect to find in it 10

" contains powers to make laws for peace and laws

for war 1 1

" result, if it denies the power to save the Union. H

" some leading questions under it stated 13

«< powers not delegated are reserved Ill

«« are limited and defined Ill

«< power to provide for the general welfare and com-

mon defence, is not relied upon in this work

as the basis of argument Ill

" authoritative construction of 138

War — distinction between the objects and the means of 7

Slavery — its unexpected growth 2

the " privileged class " 2

abolished by European governments 3

in 1862, not slavery in 1788 4

are slaveholders arbiters of peace and war ? 5

though hated, why it was tolerated 6

recognition of, not inconsistent with the perpetuity of the

republic 7

considered as belonging to the domestic affairs of States ;

can government interfere with it ? 132

constitutional rights over, not affected by party platforms. . 131

domestic institutions 132

may be interfered with by Congress, for its protection 1 33

Congress may interfere against it 1 34

may be interfered with by operation of militia laws 134

may be interfered with by laws regulating commerce between the States 134

by the power to make treaties 135

by the power to suppress insurrection 137

right to deal with it not to be sought in party platforms. . . 139 distinction between emancipating slaves and abolishing

slavery preface i.

President's Proclamation and the emancipation acts — their

effect preface ii.

vii

Vlll CONTENTS.

SiiAVERY — may be interfered with (so far as taking away slaves may be said to interfere with it) under the power to appropriate private property to public use, as shown in Chap. I. p 11

" also by the exercise of the war powers of Congress, as

shown in Chap. II. p 34

" also by the war power of the President, as shown in Chap.

III. p 66

" also by the power to punish treason, as shown in Chap. V. p. 93

" also by the power to punish rebels, as shown in Chap. VII. p. 115

«• when and how it may be abolished by Congress . .pref. iv. v. vi.

Chapter I

The constitutional right of the government to appropriate private property to public use, either in time of peace or in time of war 17

The right is founded in reason 1 1

Indemnity is required 18

" Public use," what it is 19

All kinds of property, including slaves, may be so appropriated . . 20

The United States may require all subjects to do military duty 22

Will slaveholders be entitled to indemnity if their slaves are used for

military purposes ? 23

Indemnity to Mormons 24

Effect of naturalization and militia laws on the question of indemnity

to slave masters -"*

Does the war power of seizure supersede the civil power of Congress

to appropriate private property to public use ?

References to the "constitution, showing the war powers of Congress.. . 27 Slave property subject to the same liability as other property to be appropriated for war purposes 28

Importance and danger of this power 29

Powers of the President not in conflict with those of Congress 29

Congress has power under the constitution to abolish slavery

CHAPTER II. Rules of interpretation 34

Are the United States at war ? 38

Declaration of war not necessary on the part of the government to give

it full belligerent powers ■•• « 38

CONTENTS. IX

lias government full war powers against rebel citizens ? 40

Is " suppressing rebellion" by arms making war on the citizens of the

United States, in the sense of the constitution ? 42

Rebels may be treated as belligerents and subjects 44

The law of nations is above the constitution 46

International belligerent rights are determined by the law of nations.. . 47

Belligerent right of confiscation of personal estate 48

Prize courts 48

Title by capture 48

Constitutional guarantees of civil rights to citizens in time of peace not

applicable thereto in time of war 49

True application of these constitutional guarantees 50

Whether belligerents shall be allowed civil rights under the constitution depends upon the policy of the government 51

The constitution allows confiscation 52

Military government under martial law 54

Civil rights changed by martial law 56

A severe rule of belligerent law 57

Civil rights of loyal citizens in loyal districts are modified by the existence of war 59

Belligerent right to confiscate enemy's real estate 61

CHAPTER III. War power of the President to emancipate slaves 66

Why the power exists 66

The President the sole judge how and when to use it 67

Powers of the President not inconsistent with powers of Congress to

emancipate slaves 68

Is liberation of enemy's slaves a belligerent right ? 68

The law of nations sanctions emancipation of enemy's slaves 69

Authority and usage confirm the right 74

How far the government of the United States, under former administrations, have sanctioned the belligerent right of emancipating

slaves of loyal and of disloyal citizens 74

War powers of the President — in general 82

CHAPTER IV. Bills of Attainder 84

Bills of attainder in England 84

X CONTENTS.

Punishment by attainder 84

Attainders prohibited as inconsistent with constitutional liberty 85

Bills of attainder abolished 86

What is a bill of attainder 86

Bills of pains and penalties 87

Ex post facto laws prohibited — bills of pains and penalties as well as

attainders, unconstitutional 88

Attainders in the colonies and States 89

Bills of attainder, how recognized 91

CHAPTER V. Treason 95

Right of Congress to declare by statute the punishment of treason, and

its constitutional limitations 95

Ancient English doctrine of constructive treason 95

Power of Congress to define and punish treason limited 96

Attainder and ex post facto laws 97

Treason defined by statute 98

Congress have unlimited power to declare the punishment of treason . . 99

Consequences of attainder 100

Corruption of blood 101

Savage cruelty of English law 101

Forfeitures 102

Characteristics of attainders of treason 105

Technical language, how construed 106

True meaning of constitution, Art. III. Sect. 3, CI. 2 108

If Congress can impose fines, why not forfeitures ? 109

Forfeitures for treason not limited to life estates 110

CHAPTER VI. Treason — statutes against it — how administered 1 12

Confiscation act of 1862 not a bill of attainder, not an ex post facto

law ne

CHAPTER VII. Tin right of Congress to declare the punishment of crimes against the

United States other than treason 117

CONTENTS. XI

\ew crimes require new penal laws 1 17

Confiscation act of 1862 1]3

All attempts to overturn government should be punished 118

Act of 1S62, Sect. 6, does not purport to punish treason .-. 119

Legal construction of the act of 1 862 • 120

The severity of different punishments declared 122

The sixth section of the confiscation act of 1862 is not within the prohibition of the constitution, Art. III. Sect. 1, CI. 3 123

Treason and confiscation laws in 1862 : their practical operation 126

Legal rights of persons accused of treason 126

Will secessionists indict and convict each other ? 127

How the juries are selected, and their powers 127

State rights and secession doctrines in the jury room 128

Laws are most effective which require no rebel to administer them 129

Statutes of limitation will protect traitors 130

CHAPTER VIII. Party platforms cannot alter the constitution 131

Domestic institutions • • 132

What they are, and when they cease to be so 132

Slavery — Congress may interfere to protect it 133

" " may interfere against it by militia laws 134

" « may interfere with slavery in the States by cutting

off the supply of slaves to such States 134

« " may interfere by laws preventing commerce in

slaves between the States 134

" " may interfere by treaty-making power 134

" question as to indemnity 135

" congress may interfere for suppression of rebellion 137

« " may interfere to secure domestic tranquillity. .. . 138

Constitution — authoritative construction of 138

" opinions of the Supreme Court upon 139

" " of the framers of the constitution 139

" gives all powers necessary to public welfare and common defence HO

Appendix, containing the Prize Cases 131

CONTENTS OF MILITARY ARRESTS.

Paoi

Arrests — in loyal States regarded with alarm 161

" freedom from, claimed by public enemies 102 on suspicion

" abuse of power of 170

" safeguards against abuse 170

" not forbidden by the Constitution 173

" without warrant 174

" without indictment « 176

«« military arrests lawful 185

« military arrests sanctioned by the Constitution 171

«« officers making them not liable to civil suit or criminal prosecution 182

" on what ground justifiable 186

«« necessity of 188

«« of innocent persons 190

«< to prevent hostilities 193

«« cause of arrest cannot always be disclosed 193

" made by all governments in time of civil war 196

" who ought, and who ought not, to be arrested 198

" arbitrary distinguished from discretionary 184

" arbitrary not consistent with free government 183

Civil Liberty 161

" its safeguards 170

" inconsistent with arbitrary power 183

" restraint of by compulsory military duty exceeds temporary

restraint by arrest 195

Civil War — changes in our rights effected by <> 162

" effects on courts of law 171

" makes actions criminal which might not be so in time of peace 188 " renders persons liable to military as well as civil tribunals. .. 188 " necessities of 197

Martial Law — what it is 165-187

<» " foundation of 165

<< " its principles distinguished from arbitrary power 187

<> " limits to all war powers 168-200

CONTENTS. Xlll

Paob Martial Law — liability to, not inconsistent with liability to civil

process 188

«< " may punish acts which in time of peace would have

been innocent 189

" " territorial extent of 167-200

" " how instituted, or put in force 202

Military Commanders — their powers and responsibilities 167

" " powers may be delegated ; obedience to orders a justification 182

" " making arrests, not liable to civil suits or criminal

prosecutions 182

" " need not always disclose cause of arrest 193

" " their duty in case of service on them of habeas corpus.. 202

" " instructions of War Department 213

Military Crimes — or crimes of war, definition of 188

" " double liability, military and civil 188

" " acts made such by state of war 189

" " may be committed by persons not amenable to civil

process or indictment 211

" " prevention of, is the best use to be made of armies. . . . 193

'< " prevention of, is the object of most military operations 193

" " prevention of, is the justification of captures of prop-

erty and military arrests; object for which the President was authorized, in 1798, to imprison

aliens 195

" " prevention of, authorizes the call by the President of

the Army and Navy into service 195

Military Forces — constitutionality of act for enrolling 205

" " resistance to draft 189-199

" " how to be treated 213

" " how judges violating the law to be treated 213

" " indemnity claimed by persons arrested, when to be

granted and when refused 211

Opinion — and Dissenting Opinion in the Prize Cases 141

" in Kees v. Governor Tod 216

Order of the War Department - 213

War Powers — have definite limits 187

War Powers of the President — general powers 163-165

" " " power to suspend habeas corpus ... . 202

" " " power to establish martial law.... 202

Contents

RETURN OF REBELLIOUS STATES TO THE UNION.

Page

War of Arms and War of Ideas 229

CHAPTER I . War, its methods and its objects 2G1

Government in some form is necessary to secure a conquest 261

Government, why it is essential to secure a conquest 263

Government, military, is a mild form of hostilities 264

There must be military government, or no government 266

The right to erect military government is an essential part of the war power,

is founded in necessity and sanctioned by authority 267

Leading cases cited 268

Chapter II

The Constitution authorizes the President to establish military government. . 269

Power not granted in express terms 271

Military government is an act of war 272

Right organized by courts, etc 273

Duty of the conqueror to govern those whom he has subjugated 273

CHAPTER III. Distribution of powers under military government 274

Different kinds of law of war — martial law, military law, etc 274

Military tribunals 275

Power given by the Constitution to Congress to establish courts martial, etc. 276

Power of the President to establish courts of war 276

Do courts of war exercise judicial power ? 277

Would judicial courts be useful as war courts ? 278

xv

Xvi CONTENTS.

CHAPTER IV. Courts martial — legislative history ' 279

Courts martial, by statutes 2/9

Military courts of inquiry 230

Military courts of inquiry established by statute law 280

Military commissions 281

Military commissions under General Scott 281

Military commissions under our statutes 281

Similar courts instituted by President Lincoln 283

Courts of civil jurisdiction under military authority 284

General Shepley, General Butler, Judge Peabody, Sequestration Commission. 284

Jurisdiction of such courts 287

Docs the Constitution prohibit such procedures 1 288

Rebels— What rights they claim 290

" What rights are conceded to them 292

Public enemies — Are the inhabitants of seceded States public enemies 1 293

The question whether the inhabitants of insurrectionary States are to be deemed public enemies is determined by the political departments of our government ; not to be Judiciary 294-5

The polical departments of our government have finally determined that they

are public enemies 2""

The President ; and the acts of the Executive on that subject 296

Congress ; and the acts of the Legislative Department on that subject 299-304

The Judiciary ; and the position of the Supreme Court, which has adopted the action of the political departments, as it was bound by the Constitution to do 304

Chapter VI

Military government, how created and controlled, and how terminated by Con-

^09 gress ~UJ

Limits of power — conflict between the power of Congress and that of the

President

How these governments may be terminated by Congress 212

When the power of military government will cease 213

CHAPTER VII. Resume \

Jurisdiction of military government established by the Commander-in-Chief. . 216

CONTENTS. XVII

CHAPTER VIII. The law administered by military government 219

As to local laws in conquered districts, whether the municipal laws of the conquered district remain in force projirio vigore unless altered, etc 221

What laws of the invading country extent ipso vigore over the subjugated

district 221

The suppression of the present rebellion is not the conquest of a foreign country 221

Distinction between alit >i and public enemy 221-2

President's Proclamation, effect of in hostile country not under our control. . . 222 U. S. judicial courts may be reestablished, but are at present useless in the

rebellious districts 224

Appendix

Fleming vs. Page, 9 How. 614 326-330

Cross vs. Harrison, 16 How. 189 330-333

Jccker vs. Montgomery, 18 How. 112 333, 334

Dynes vs. Hoover, 20 How. 79 334-336

Lcitensdorfer vs. Webb, 20 How. 177 .' 336-338

Vallandigham's Case 338-342

The Prize Cases. (See " War Powers," page 141.) Kees vs. Todd. (See "War Powers," page 216.)

CONSTITUTION

OF THE

UNITED STATES OF AMERICA.

Introduction

THE PURPOSE FOR WHICH IT WAS FOUNDED.

The Constitution of the United States, as declared in the preamble, was ordained and established by the people, " in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

HOW IT HAS BEEN VIOLATED.

A handful of slave-masters have broken up that Union, have overthrown justice, and have destroyed domestic tranquillity. Instead of contributing to the common defence and public welfare, or securing the blessings of liberty to themselves and their posterity, they have waged war upon their country, and have attempted to establish, over the ruins of the Republic, an aristocratic government founded upon Slavery. 1

" THE INSTITUTION " vs. THE CONSTITUTION.

It is the conviction of many thoughtful persons, that slavery has now become practically irreconcilable with republican institutions, and that it constitutes, at the present time, the chief obstacle to the restoration of the Union. They know that slavery can triumph only by overthrowing the republic ; they believe that the republic can triumph only by overthrowing slavery.

" THE PRIVILEGED CLASS."

Slaveholding communities constitute the only "privileged class" of persons who have been admitted into the Union. They alone have the right to vote for their property as well as for themselves. In the free States citizens vote only for themselves. The former are allowed to count, as part of their representative numbers, three fifths of all slaves. If this privilege, which was accorded only to the original States, had not been extended (contrary, as many jurists contend, to the true intent and meaning of the constitution) so as to include other States subsequently formed, the stability of government would not have been seriously endangered by the temporary toleration of this " institution," although it was inconsistent with the principles which that instrument embodied, and revolting to the sentiments cherished by a people who had issued to the world the Declaration of Independence, and had fought through the revolutionary war to vindicate and maintain the rights of man.

UNEXPECTED GROWTH OF SLAVERY.

The system of involuntary servitude, which had received, as it merited, the general condemnation of