had power to avert it. If they had reflected that secession and rebellion would stamp them all as enemies of the lawful National Government, subject to have their property taken or destroyed, by or in aid of its military operations, or to weaken the power in revolt, without any compensation, it might have induced a vigilance which would have averted the calamity of civil war. Their inaction or want of energy in resisting secession brought death and all the woes of war. Even loyal men were not everywhere or in all cases guiltless. Their moral guilt was an omission of duty. In the transgression of active secessionists all in legal contemplation transgressed. If now, all loyal citizens should be compensated for all property taken or destroyed by the Union Armies, the rebellion might be to some of them, with the opportunity which always exists to fabricate fraudulent claims, rather a profitable pastime, The popular vote showed a majority for Union. Subsequently another convention was called for March 1, 1861, and after listening to a message from Jeff. Davis, that convention voted 39 to 35 not to secede from the Union. This last convention decided to provide for a vote of the people on August 1, 1861, and adjourned to meet August 17. On receiving the news of the firing on Fort Sumter the convention was reconvened at the instance of the governor, and May 6, 1861, passed an ordnance of secession by a vote of 69 to 1. (Ibid., vol. 1, pp. 348–486.)

Florida.-Legislature voted December 1, 1860, to call a convention for January 3, 1861, and January 10 passed an ordinance of secession by yeas 62, nays 7, many delegates expressly elected as Unionists voting for secession. (Ibid., vol. 1, p. 347.)

Georgia.-Was the first State to follow South Carolina. Legislature passed an act November 13, 1860, appropriating $1.000 000 to arm and equip the State, and called a convention for January 9, 1861. On the 18th it passed ordinance of secession by a vote of 208 to 89, A. H. Stephens and Herschel V. Johnson voting no, though the day previous a resolution declaring it to be the right and duty of Georgia to secede, was adopted by a vote of 165 to 130, and on March 16 following it ratified the confederate constitution by a vote of 96 to 5. (Ibid., vol, 1, p. 347.)

Louisiana.--Legislature met December 10, 1860, and called a convention for December 17. On the 26th of January, 1861, it passed an ordinance of secession by a vote of 103 to 17. The convention voted 84 to 45 to submit the ordinance of secession to a vote of the people. The popular vote stood 20,448 for secession to 17,296 against, only twofifths of the vote cast for President just before. (Ibid., vol. 1, 348.)

Mississippi.-Legislature assembled November 26, 1860, and fixed upon December 20 as date of election of delegates to a convention; the same to meet January 7, 1861. On January 9 it passed an ordinance of secession by a vote of 84 to 15. The slave population of Mississippi was at that time next to that of South Carolina. (Ibid., vol. 1, pp. 347, 348.)

North Carolina.-Legislature called a convention in November, 1860. This convention was strongly for the Union, and December 22, 1860, adjourned, having provided that it should not again meet. A State's-right convention was called for March 22, 1861, but no action was taken. After the firing on Fort Sumter, the governor called an extra session of the legislature for May 1, which called a convention for May 20, 1861, the delegates to be elected May 13. On that day an ordinance of secession was passed by a unanimous vote, inspired largely by a resolution reciting grossly false statements. (Ibid., vol. 1, pp. 347, 485.)

South Carolina.-Legislature called for November 5, 1860, and a convention was called for December 17, delegates to be elected on the 6th of December. On the 20th of December an ordinance of secession was reported from a committee of seven, and immediately passed without dissent, the yeas being 169. (Ibid., vol. 1, p. 347.)

Tennessee.-Legislature met January 7, 1861. On the 19th it decided to call a convention, subject to a vote of the people. That vote was taken early in March, and on the 10th the result was officially proclaimed as follows: for the Union, 91,803; for disunion, 24,749; a Union majority of 67,054, many counties not rendering any returns. After the firing on Fort Sumter, the legislature, on May 1, 1861, secretly adopted a resolution authorizing the appointment of "three commissioners on the part of Tennessee, to enter into a military league with the authorities of the Confederate States, and with the authorities of such other slave-holding States as may wish to enter into it; having in view the protection and defense of the entire South against the war which is now being carried on against it." These commissioners framed a convention "between the State of Tennessee and the Confederate States of America," which practically placed the military force of the State under the control and direction of the Confederate States, and turned over to said Confederate States all the public property,

and future attempts at revolt would stimulate them to no earnest resistance to prevent it.

Grotius, referring to foreign invasion and the liability of an invaded city to make compensation, assigns as a reason why "no action [that is, naval stores, and munitions of war belonging to the State of Tennessee, which had been acquired from the United States.

This convention was submitted to the legislature, in secret session, and was ratified in the senate by yeas 14, nays 6, absent or not voting 5; in the house by yeas 43, nays 15, absent or not voting 18. On the preceding day the legislature had passed an ordinance of secession, to be submitted to the people June 8, 1861. The State was covered with confederate soldiers, so that freedom of opinion and expression on the side of the Union was completely crushed out, as is illustrated by the following article from the Louisville Journal of May 13, 1861.

The Louisville Journal of May 13 said :

"The spirit of secession appears to have reached its culminating point in Tennessee. Certainly the fell spirit has as yet reached no higher point of outrageous tyranny. The whole of the late proceeding in Tennessee has been as gross an outrage as ever was perpetrated by the worst tyrant of all the earth. The whole secession movement, on the part of the legislature of that State, has been lawless, violent, and tumultuous. The pretense of submitting the ordinance of secession to the vote of the people of the State, after placing her military power and resources at the disposal and under the command of the Confederate States, without any authority from the people, is as bitter and insolent a mockery of popular rights as the human mind could invent." On the 24th of June, Governor Harris issued his proclamation, declaring that the vote of the 8th had resulted as follows:

A convention was held at Greenville, in East Tennessee, in which thirty-one counties were represented. This convention adopted a resolution which declared the result of the election as in no sense "expressive of the will of a majority of the freemen of Tennessee.” (Ibid., vol. 1, pp. 481, 482, 483, 484.)

Texas.-Convention assembled January 28, 1861, and passed ordinance of secession, yeas 166, nays 7, February 1, 1861, which was submitted to popular vote snd ratified by a considerable majority, in many districts it being safer to vote secession than not vote at all, and not to vote at all rather than vote Union. (Ibid., vol. 1, page 348.) Virginia.-Legislature met January 7, 1861, on call of Governor Fletcher; and, on the 13th, passed a bill calling a convention, a Union majority being returned. April 4 the convention decided, by a vote of 89 to 45, not to pass an ordinance of secession. Subsequently, April 17, three days after the firing on Fort Sumter, the convention passed an ordinance of secession by a vote of 88 to 55, the convention being largely influenced by an act of the confederate congress forbidding the importation of slaves from States out of the confederacy, a blow at Virginia's most important and productive branch of her industry. (Ibid., vol. 1, pp. 348, 452.)

The Louisville Journal of June 1 said:

"The vote of Virginia last week on the question of secession was a perfect mockery. The State was full of troops from other States of the confederacy, while all the Virginia secessionists, banded in military companies, were scattered in various places to overawe the friends of Union or drive them from the polls. The Richmond convention, in addition to other acts of usurpation, provided that polls should be opened in all the military encampments, besides the ordinary voting-places. No man voted against secession on Thursday last but at the peril of being lynched or arrested as an incendiary, dangerous to the State."

*

*

West Virginia. The people of West Virginia hostile to the confederacy met at Kingwood May 4, 1861. A similar meeting was held at Wheeling May 5, and another May 13, 1861; on the 13th, a convention of delegates, representing thirty-five counties of West Virginia, and, after calling a provisional convention for June 11, adjourned on the 15th. June 20 a unanimous vote in favor of ultimate separation was cast, the

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1965

no claim] may be brought against a city for damages by war," that it is "in order to make every man more careful to defend his own." Vattel assigns as reasons that the damages would be so great that "the public finances would soon be exhausted. Besides, these indemnifications would be liable to a thousand abuses, and there would be no end of the particulars. It is therefore to be presumed no such thing was ever intended."66

There is a maxim, too, the force of which cannot be overlooked: Salus populi suprema lex.

It is a principle of law, applicable alike to nations and individuals, that there is no wrong without a remedy. A nation has its rights-its remedies.

Citizens have their rights and remedies as well when a right of person or property is invaded by the nation as by individuals. The Constitution recognizes all these, leaving details to common or statutory or international law.

The fifth article of amendments to the Constitution provides that— No person shall be

deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. Article V, amendment.

The phrase "due process of law," in this connection means thatThe right of the citizen to his property as well as life or liberty could only be taken away upon an open, public, and fair trial before a judicial tribunal according to the forms prescribed by the laws of the land.67

If there were no other provision in the Constitution on the subject of life or property, the life of a rebel citizen could never be lawfully taken by command of the Government, even in battle, and property for army supplies, hospitals, and other military purposes, could never be taken for the public use against the owner's will, except by the tedious process of a judicial proceeding in court, in the exercise of the civil right of eminent domain.

In a foreign war the Government, of course, does not organize an army for the purpose of taking the lives of our citizens, and it may be said that the constitutional provision referred to may in such case be operative, and is not violated. But in a civil war the very object of organizing an army is to take the lives of rebel citizens without any 66 process of law," and the fifth article of amendments has no application to such case.

convention having voted two days previous that the separation of Western from Eastern Virginia was one of its paramount objects. Congress ratified the action taken, and January 6, 1862, admitted the State of West Virginia into the Union. (Ibid., vol. 1, pp. 519, 520.)

The following table exhibits the population of the States declared in insurrection in 1860, with the vote cast in each at the presidential election of that year :

67 Paschal, Annotated Constitution, 260, note 257; Whiting's War-Powers, 60.

a Elects by legislature.

But if it be said that on some principle recognized among nations, justified by reason and necessity, rebels forfeit all constitutional rights, yet some of the provisions of the fifth amendment still cannot apply to a state of war, because a citizen who is conscripted against his will, arrested, and carried into the army, is deprived of his "liberty" without any "process of law." The war-power in such case is operating, and the fifth amendment so far yields to it and is not applicable to such case.68

In what has been said no reference is intended to be made to the last clause of the fifth amendment, which requires compensation for private property taken for public use. That presents a separate inquiry as to what is a "public use," and whether compensation is to be made by force of that clause or on general principles of international law.

Since war could not be carried on if all the provisions of the fifth amendment applied in time and on the theater of war, the Constitution, in view of the fact that war would or might exist, gives to Congress the power

"to define and punish "offenses against the law of nations;"

"to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;'

"to raise and support armies;'

"to provide for the common defense and general welfare of the United States," and makes other equally emphatic provisions relative to a state of

war, 69

The Constitution recognizes, and, for their appropriate uses, adopts "the laws of nations," and these include the laws of war.

The laws of war, equally with the amendments to the Constitution, determine certain rights of person and property. Here, then, in the Constitution are two systems of law, each having a purpose. By well-known legal rules of construction they are to be construed in pari materia ; effect is to be given to each, so that neither shall fail of having an object or be defeated in its application to that object exclusively, when necessary to accomplish it.

Both systems of law cannot have full or exclusive force, effect, and operation at the same time and place or over the same rights of person and property.70

The laws of peace, and the amendments to the Constitution for the security of life and property, apply in time of peace and in time of war where no war or state of war exists.71

But where war is actually flagrant, or a state of war and the exercise of military authority exist, the laws of war prevail; and, so far as clearly necessary for all purposes of the war, they are so far exclusive that no antagonistic law or exercise of jurisdiction can be allowed.72

It is not to be inferred from this that there is no protection for life or property. The laws of peace, the ordinary tribunals, may be allowed,

69 In ex-parte Milligan, 4 Wallace, 137, Chief-Justice Chase said: "The Constitution itself provides for military government as well as civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former." P. 137. (See 11 Opinions, 297.) 69 Whiting's War Powers, 27.

70 Whiting's War Powers, 51.

71 Ex-parte Milligan, 4 Wallace, 127.

This view is taken in Grant vs. U. S., 1 N. & H. Court Claims, 44; but that case cannot be sustained in some other respects.

72 In ex parte Milligan, 4 Wallace, 127, the test applied as to whether the laws of war were in force quo ad rights of person, was whether the civil courts were open, and it was held that the court was the judge of this. And see Coke, Com. Lit., lib. 3, ch. 6, sec. 412, p. [249 b.]

even on the theater of war, to be operative, so far as practicable. And in all cases the laws of nations, including the laws of war, promise protection to life and property, as clearly and as sacred as if written in plain terms in the Constitution. The laws of war are, therefore, constitutional laws, as obligatory for their purposes as any other.

Loyal men residing in loyal States during the rebellion but having property, real or personal, in States proclaimed in rebellion, held it not as enemies, but nevertheless subject to the laws of war as affecting loyal citizens in a theater of war.74

From what has been said it will be seen that the laws of war prevailed

1. Generally in the eleven States proclaimed in rebellion, subject to some limitations, from the commencement to the close of the state of war. 2. In large portions of Missouri, Kentucky, Maryland, and West Virginia, during a less period, including only the actual state of war.

3. In the District of Columbia, while under martial law.

4. In a small portion of Ohio and Indiana, for a few days, during the actual existence of the "Morgan raid.”

5. In a small portion of Pennsylvania, during the actual existence of Lee's invasion and the battle of Gettysburgh.

The citizens of the eleven seceded States, for the period of war and by strict law, can only claim those rights of property accorded by the law of nations under the principles of the Constitution.

Elsewhere where actual war existed, and during its legal continuance, the rights of person and of property, so far as they were interrupted by warlike operations, are, in considering the liability of the Government, to be determined by the laws of war.

The laws of war affecting rights of person and property exist independent of legislative sanction back of the Constitution itself. It does not make but recognizes them as existing and known laws. This common law of war is liable to change by treaty stipulations, by circumstances, and for all internal purposes Congress may, and during the rebellion did, materially change it,75 and has since wisely ameliorated 76

Lawrence's Wheaton 526, (2 Am. ed.) Lawrence says this is the English rule, and applies to the seizure of real estate, "so as the courts were shut up, et silent inter leges arma." See U. S. vs. Russell, 13 Wallace, 627. As to this see note 113 post. Grant vs. U. S., 1 N. & H. Court Claims, 41.

But the mere fact that under the protection of military power civil courts aided the administration of justice could not exclude rightful military authority. The civil courts were open more or less in the District of Columbia and some of the States during a portion of the period of the rebellion.

Upon the same principle as in the text either branch of Congress has power to punish for contempts, and the 5th amendment of the Constitution has no application to it. See proceedings in House of Representatives, January, 1875, in relation to Richard B. Irwin.

73 There is a summary of these by Francis Lieber, p. 441 et seq., in Scott's Digest of Military Laws United States, and in the appendix to report of trial assassination of President Lincoln.

74 Lawrence's Wheaton, 565-576; The Gray Jacket, 5 Wallace, 342-364; Whiting's War Powers, (43d ed., 1872,) p. 582; Attorney-General's opinion, November 24, 1865; 11 Opinions, 405; Elliott's claim, September 7, 1868; 12 Opinions, 488; Prize cases, Black, 674; Senator Carpenter, in Cong. Record of March 20, 1874, p. 22.

75 U. S. vs. Klein, 13 Wallace, 128.

76 Act March 12, 1863-12 Stat., 591; Mrs. Alexander's Cotton, 2 Wallace, 404; act May 18, 1872-17 Stat., 134; act March 3, 1871-16 Stat., 524; act May 11, 1872-17 Stat., 97; act March 3, 1873-17 Stat., 577; House Mis. Doc. 16-2d sess. 42 Cong.; Mis. Doc. 21, Mis. Doc. 213, Mis. Doc. 218, all, 2 sess. 42 Cong.; Mis. Doc. 12, 3 sess. 42 Cong.; Joint Res. No. 50-1 sess. 39 Cong., June 18, 1866; Joint Res. No. 99-1 sess. 39 Cong., July 28, 1866; act July 4, 1864, ch. 240, 1 sess. 38 Cong. U. S. vs. Klein, 13 Wallace, 128.