The domestic and foreign relations of the United States

II Pkinteks To The Univeksity

18 6 2.

Memorandum. — The substance of the first part of the following Tract was contained in a Lecture delivered to the students in the Law School of Harvard College, by the author, as Royall Professor of Law in that Institution, on the 25th of June, 1861. Subsequent events have led to an enlargement of it, and to its publication in the January number of the North American Review. It is now issued as a separate Article, a single paragraph being omitted because it was little more than a repetition of what was expressed elsewhere, and some Notes being added in an Appendix.

Cambridge, January 1, 1862.

THE DOMESTIC AND FOREIGN RELATIONS

It may be stated as a result of our examination of the alleged Right of" Secession, that the people of the several States composing the United States, under the Constitution, — whether that instrument be regarded as an organic law, or as a compact, — form an entire Nation, for the purposes for which they are thus united ; while under their State organizations they exercise many powers of sovereignty, of a political and municipal character, some of which are subordinate to the powers of the General government, and others independent of that government because they do not fall within the scope of the purposes for which it was organized, and all " 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."

This nation has, for the accomplishment of the objects of its existence, all the attributes of sovereignty. The Constitution — providing that itself shall be the supreme law of the land, and binding upon all the judges of the several States, anything in the constitution or laws of any State to the contrary notwithstanding ; requiring all the legislators, and executive and judicial officers of the United States, and of the several States, to take an oath or affirmation to support it ; and defining what shall constitute treason against the United States — shows that, so far as the objects and purposes of the national government extend, an allegiance is due to that government from all the citizens within its limits, paramount to and exclusive of any allegiance due to the several States ; because the allegiance to the State arises under the State organization and constitution, which, to the extent covered by the Constitution of the United States, are subordinate to the authority of the United States, under that Constitution. There can be, therefore, no right on the part of any State, or of the people of any State, through or by any State authority or action, or by any popular vote, to terminate this allegiance to the United States.

The Union under the Constitution being perpetual and indissoluble, it is to be subverted only by the exercise of the right of revolution, for sufficient cause. And this right of revolution is a personal, and not a State right, and of an imperfect character ; for an attempt at revolution is legally, in its inception, and until it is attended with success, neither more nor less than rebellion against the existing government, which of course has at least an equal right to resist the attempt by all the forces at its command. It follows, therefore, that those persons who have been active in the attempted secession of the several States have, as respfects the United States, no authority derived from any State organization ; nor any exemption, through the color of any exercise of State authority, from the ordinary consequences which attach to an insurrection or rebellion. No convention of the people- of a State could confer any authority to resist the government of the United States, in the full exercise of its functions, in all of its departments, legislative, executive, and judicial ; and still less could any act of a State legislature give any color of legal authority for such resistance, whether such legislature assumed to act under the State constitution as it existed before the attempted secession, or under the authority of a convention which, having declared the secession, assumed to confer new legislative powers, or to adopt a new constitution. All persons who have placed themselves in hostility to the United States by acts of war, are of course responsible personally for those acts, as rebels and traitors. The State which they assume to represent is not responsible, because the State, as a State, did not, and could not, in any mode, give authority to commit acts of rebellion and treason. There is no war between any State, admitted into the Union, and the United States ; because the State itself — the legal, constitutionally organized State — is not in rebellion ; and there is therefore no authority to confiscate the property of any State, as State property, for any such State offence. The persons who have seized upon the State organization for the purposes of rebellion, and who wield an apparent State authority for such purposes, — who have, moreover, created a confederation under this usurpation, and style themselves governors and senators, generals and captains, president and secretaries, — are in no manner shielded by their titles or offices from the punishment due to their acts of treason, which are, in fact, in more senses than one, committed on private account.

This serves to show that the proclamation of President Lincoln, treating the seizure of forts, arsenals, and dock-yards, and the bombardment of Fort Sumter, as acts of insurrection, and requiring those concerned in them to retire peaceably to their respective abodes, was not only in precise accordance with the requisition of the statute of 1795, but was founded upon the only correct legal view of the existing state of things which called it forth. The acts of hostility against the government had, perhaps, assumed such formidable proportions as to be appropriately designated as war ; but it was a war of persons owing allegiance to the general or national government, and not a war of governments. Those acts were not more than acts of treason because millions were engaged in them, and they were not less than acts of treason because of the assumed titles, military and civil, or of the assumption of

State or Confederate authority, under color of which they were committed. There were millions of people in India engaged in a war against the government of Great Britain, within a short period ; and most of .them acted under the orders of persons who stood to them in the relation of kings and princes, for certain purposes, having recognized authority for such purposes, but who had no authority for the objects and purposes of such a war; and they were all, kings, princes, and sepoys, held alike as rebels against the paramount government, — their guilt differing only in degree, according to the circumstances of enormity attending it. We do not inquire into the causes of that revolt, when we consider the case in its political and legal aspects in regard to the United States. That is a matter between the persons engaged in it and Great Britain. The government of the United States has nothing to dread from such an inquiry, in the present instance ; but other nations will not enter into that inquiry, and it is foreign to our immediate purpose.

We perceive, therefore, that the criticism upon the proclamation of the President requiring the rebels to disperse, that it addressed its command in fact to millions, and that it was preposterous to require such large numbers, like an ordinary mob, to retire to their places of abode ; and that other criticism which assumed that the States were the actors in the warfare which was waged, and that the statute and the proclamation could not apply, because the States had no abodes to retire to, — fail entirely of their intended force. Rebels may form political associations for themselves, and may assume to have a government for which they ask and claim recognition. They may, as between themselves, wield the powers of a State government, if they can usurp the State authority, and use it as if they were the rightful possessors of it. They may thus have a government de facto, and it may be, as among themselves, de jure also. But all this does not change their legal relations to the government against which they are in arms, until they have by their power accomplished the purpose of the insurrection, by a practical maintenance of their assumed independence.

We deduce from these premises the conclusion, that, as regards the United States, there is no right in any organization which these rebels and traitors have constituted — whether designated as State or Confederation — to enact a law, or to adopt an ordinance, which shall be recognized by the United States as having force or effect as a legal enactment, or as conferring upon any person power to be used in hostility to the existing government. There can be no lawful confederation of the States involved in the attempted secession, because there has been no secession of those States which is recognized as having any validity. They still remain as component parts of the United States, having doubtless a large loyal population, although the violence of the insurgents has for a time suspended the due exercise of the authority of the United States, and that of the State also, by a usurpation of the powers of the latter, and an exercise of the semblance of authority under the State organization. As States in the Union, the Constitution expressly forbids any confederation among them ; and for that reason also, if there had been no insurrection, and no attempt to array State authority against the national government, the confederation of the States would be unconstitutional ; the self-styled Congress of the Confederate States an unauthorized body ; and the so-called President of that confederation, and his cabinet councillors, suitable subjects for the criminal jurisprudence of the United States, on an indictment for a conspiracy, — if their acts of war had not made them liable to the graver penalty attached to treason.

As a necessary consequence of all this, the proclamation of Mr. Jefferson Davis, calling himself President of the Confederate States, in which he invited applications for letters of marque and reprisal against the United States, — or, in other words, in a legal view, Mr. Davis's advertisement for proposals to rob, under his sanction, such citizens of the United States as might have property afloat, — was no better than the advertisement of any other private person ; and the letters of marque and reprisal issued by him as President, and countersigned by R. Toombs as if he were a Secretary of State, are, as respects the United States, no better than so much waste paper, for the justification and protection of those who capture property under them. Such persons are amenable to the laws of the United States as pirates, under the act of Congress of 1790, Chapter 9.

The eighth section of that statute provides that, " if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular State, murder or robbery, or any other offence which, if committed within the body of a county, would by the laws

of the United States be punishable with death ; every

such offender shall be deemed, taken, and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death." The ninth section enacts that, " if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and on being thereof convicted shall suffer death."

The insurgents are not absolved from responsibility under this statute by the fact that their offences were committed in the course of what in other aspects may have the character of war, nor by the fact that they have been taken prisoners in that war.

Martens admits the right of the conqueror to take the lives of prisoners in three cases : —

"1. When sparing their lives is inconsistent with his own safety;

2. in cases where he has the right to exercise the talio or to make reprisals ; 3. when the crime committed by those who fall into his hands justifies the taking of their lives." — Summary of the Law of Nations, Chap. 3, Sect. 4.

Vattel concedes a right to punish prisoners who have been personally guilty of some crime against the captor.

" Prisoners may be secured, and, for this purpose, they may be put into confinement, and even fettered if there be reason to apprehend that they will rise upon their captors or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case he is at liberty to punish them ; otherwise he should remember that they are men, and unfortunate."— Book III. Chap. 8, Sect. 150.

It is by no means clear that those who come under the condemnation of this statute of 1790 by acts of force and plunder on board the Confederate privateers, would not be liable to the same condemnation under the rules of public law ; for although a pirate is generally described as hostis humani generis, because the buccaneer ordinarily makes war indiscriminately upon the vessels of all nations, yet if a band of sea-robbers should confine their depredations to the commerce of a single nation, it would seem that, as to that nation, their crime might well be regarded as piracy, even if other nations whose commerce was not assailed did not so regard it.

It may be asked wherein consists the material difierence between persons who act under a privateer's commission, and capture property on the high seas, and those who wage war upon the land, and commit homicide, and burn, destroy, or capture property there. Why should the former when taken be held and treated as pirates, and the others when captured held and exchanged as prisoners of war ? It is a sufficient answer to this to say, that the war of the privateer is mainly upon the property of private persons, by private parties, for their private emolument. If the privateer attack a public 2 vessel, it is the exception, and not the rule ; she is not commissioned with that view. . On the other hand, the war of the land forces is of a more public character, such as fighting hatties offensive or defensive, assaults upon forts and batteries, and the like, and their interference with private property is usually incidental to those more direct and public operations. The object of the hostilities waged by privateers is mainly gain, by the plunder of commercial vessels ; the injury done to the enemy being only incidental to that object. The object of the military operations upon land is ordinarily the public object of the war, whatever that may be, the injury done to private property being incidental to the measures taken for that purpose. If, then, the hostilities of the privateer are not regarded as war under lawful authority, they have the character of private acts, to wit, murder and robbery.

Letters of marque and reprisal were originally granted to merchants who had lost goods by capture, in order that they might indemnify themselves by capture of the property of subjects of the offending nation. They were, and may still be, used before a war, as a means of procuring justice for a wrong or injury sustained by a nation, its citizens or subjects ; but a resort to this measure presupposes the existence of such wrong or injury.

" When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declare war (of which we shall treat in the following Book), there are various methods practised among nations, which remain to be treated of here. Among those methods of obtaining satisfaction has been reckoned what is called the law of retaliation, according to which we make another suffer precisely as much evil as he has done

" Let us say, then, that a nation may punish another which has done her an injury, as we have shown above (see Chap. IV. and VI. of this Book), if the latter refuses to give a just satisfaction ; but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the ambassador of a barbarian who had treated your ambassador in that manner ? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles ; and we shall speak of them in their proper place." — Vattel, Book II. Chap. XVIII. Sect. 339.

" Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, — if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, — the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages, — or keep it as a pledge till she has received ample satisfaction." — Ibid., Sect. 342.

" There are cases, however, in which reprisals would be justly condemnable, even' when a declaration of war would not be so ; and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute relates, not to an act of violence, or an injury received, but to a contested right, — after an ineffectual endeavor to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility, without a declaration of war, and would be contrary to public faith, as well as to the mutual duties of nations." — Ibid., Sect. 354.

" Reprisals by commission, or letters of marque and reprisal, granted to one or more injured subjects, in the name and by the authority of a sovereign, is another mode of redress for some specific injury, which is considered to be compatible with a state of peace, and permitted by the law of nations. The case arises when one nation has committed some direct and palpable injury to another, as by withholding a just debt, or by violence to person or property, and has refused to give any satisfaction." — 1 Kents Comm. 61.

The principle stated in these authorities relates to reprisals as a measure of redress before the existence of a war. But when reprisals are resorted to in time of war, for the purpose of weakening the enemy by depriving his subjects or citizens of their property, the principle that there can be no lawful reprisals until an injury is sustained is equally applicable.

Wheaton enumerates, " among the vaj'ious modes of terminating the differences between nations by forcible means short of actual war," —

4. " By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury."

He says : —

" Reprisals are also general or special. They are general when a state which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a pubUc war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the oflfending state. Special reprisals are where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation."

**• Reprisals are to be granted only in case of a clear and open denial of justice." — Elements of Int. Law, Part IV. Chap. I. Sect. 1, 2.

It is one of the singular features, however, of this controversy and warfare, and one of the strange perversions of all ordinary action, that the proposals by Mr. Jefferson Davis to issue "letters of marque and reprisal '^ were made before any article of property belonging to the Confederate States, or any one of them, or to any person claiming to be a citizen of any one of those States, had been interfered with ; or any person belonging to the Confederate States had been molested by the government of the United States, except in self-defence.* It is true that the United States in the war of 1812, by the same act in which they declared the existence of the war, authorized the President to issue letters of marque and reprisal ; but it must be recollected that they cofnplained of long-continued grievances by reason of the seizure of men and property, the confiscation of property, and the denial of reparation. The cases are not only unlike ; they are entirely dissimilar. The Confederate States can hardly claim to make reprisals because of the passage of a tariff long since repealed, even supposing it to have been onerous ; or the passage of personal-liberty laws by some of the States ; or the refusal of Congress to assent that slavery should be admitted into the Territories ; or the election of Mr. Lincoln. None of these things were done to, or suffered by, the Confederate States, which were not then in existence as a belligerent power, or in separation from the United States. In the war of the Revolution, the United Colonies did not attempt to authorize the capture of private property until nearly a year after the commencement of hostilities. Not so the Secessionists. There is no doubt that, from the first, even before any vote of secession, this warfare upon private property was relied upon as one of the means of insuring the success of the insurrection. " If you do not let us secede without any attempt at coercion, we will refuse to pay our debts, and, by means of privateers, ruin your commerce."

From what has been thus stated, we draw a further conclusion that the recent order of Mr. Judah P. Benjamin, acting Secretary of War for the Confederate States, subjecting Colonels Corcoran, Wood, and Lee, Major Revere, and others, who were taken prisoners by the Confederate forces at the battle of Ball's Bluff, to imprisonment in the dungeons of felons, in retaliation or reprisal for the imprisonment of persons taken prisoners on board of the Confederate privateers, some of whom have been tried for piracy under the statute of the United States before cited, is a gross violation of the rules of honorable warfare. The Confederates attempt to escape from the odium of treason by alleging the existence of war. They are bound, then, to conduct the warfare on their part according to the usages of civilized nations. But there is no usage of nations by which one belligerent, having prisoners who have never been amenable to its laws, and have committed no crime against them, but who have been taken in battle fighting under their own banners, can immure those persons in damp dungeons, and subject them to the treatment of convicts, merely because its belligerent adversary, finding among his prisoners those who according to his laws owe allegiance, and have committed treason, or who in violation of long-existing statutes have incurred the guilt of piracy, proceeds with such persons in the ordinary course of justice according to those laws. If one belligerent merely proceeds according to law, that furnishes no reason why the other should resort to measures sanctioned by no law. The law of reprisals, as it affects persons, — usually termed retaliation, or lex talionis, — may rightfully be resorted to in time of war by one nation, when a gross outrage in violation of the laws of war has been committed upon its citizens or subjects by the other, in order to restrain and prevent further outrage. Some of the accredited writers upon public and natural law will, however, hardly sustain even this proposition.

Rutherforth expressly denies the right of retaliation by killing prisoners, when the enemy has done the same thing : —

" The exceptions to this rule of not killing these persons, who never were in arms at all, or who, though they have been in arms, have surrendered themselves, are very few. If they, are considered as members of the nation with which we are at war, nothing more is necessary, in the first instance, than to get them into our power. The law of nature, therefore, will not allow us to go further. But if they whom we thus get into our power have been guilty of any previous crime for which they deserve death, this law does not forbid us to inflict this punishment, any more than if they and we wei'e members of no society at all, but were still in the original state of nature.

" The obstinacy of holding out long in a siege, is not one of these crimes ; for a discharge of their duty towards their own nation is not in its own iiature a crime against the other. There might, perhaps, be some advantage in putting a garrison to the sword for holding out long, as such an example might be a means to deter others from giving the besiegers the same trouble ; but neither this nor any other motive of mere utility will render it just to take away the lives of those who are in our power, and have not deserved to lose them. Neither is retaliation a justifiable cause for killing prisoners of war. Though our adversaries should have killed the prisoners whom they have taken from us, this will not justify us in killing the prisoners whom we have taken from them. The law of nature allows of retaliation only where they who have done harm are made to suffer as much harm as they have done. But to kill such prisoners of war as are in our power, because the nation to which they belong has treated our countrymen in this manner, would be to do harm to one person because harm had been done by another. An injury which is done by a nation does, indeed, communicate itself to all the' members of that nation ; and such a communication of guilt is all that can be pleaded for the retaliation of which we have been speaking. But Grotius very truly replies here, that to punish captives or prisoners of war in this manner would be to punish them in what is their own as individuals, whereas the national guilt can only be communicated to them as they are members of the offending nation ; and consequently the proper punishment of it should only be inflicted on them as they are members of the offending nation, and not as they are individuals." — Institutes of Natural Law, Book II. Chap. 9, Sect. 15.

" Prisoners of war are, indeed, sometimes killed ; but this is no otherwise justifiable than as it is made necessary, either by themselves, if they make use of force against those who have taken them, or by others, who make use of force in their behalf, and render it impossible to keep them. And as we may collect from the reason of the thing, so it likewise appears, from common opinion, that nothing but the strongest necessitj^ will justify such an act ; for the civilized and thinking part of mankind will hardly be persuaded not to condemn it till they see the absolute necessity of it." — Ibid.

Martens admits a more extended rule. Under the head of Reprisals, he says : —

" A sovereign violates his perfect obligations in violating tHe natural or perfect rights of another. It matters not whether these rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.

" In case of such violation, the injured sovereign may refuse to fulfil his perfect obligations towards the sovereign by whom he is injured, or towards the subjects of such sovereign. He may also have recourse to more violent means, till he has obliged the offending party to yield him satisfaction, or till he has taken such satisfaction himself, and guarded himself against the like injuries in future.

" There are many acts by which a sovereign refuses to do or to suffer what he is perfectly obliged to do or to suffer, or by which he does what he is ordinarily obliged to omit, in order to obtain satisfaction for a real injury sustained. All these acts are called reprisals. Consequently, reprisals are of many sorts. The talio, by which an injury received is returned by an injury exactly equal to it, is one sort of reprisals ; but the use of it is not indiscriminately permitted on all occasions." — Law of Nations, Book VIII. Chap. 1, Sect. 3.