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word ought ever to be sacred, is bound to the faithful observance of every promise he has made, even to rebels.” [Vattel's Law of Nations, pp. 423 and 424.]
The terms of capitulation have not only been agreed upon in this case, but the Civil War is at an end. The vanquished have in good faith complied with those terms on their part. The Northern construction of the Constitution is established, and slavery is forever abolished. The amnesty has been published and accepted. Then, in the language of this distinguished author, the “ past should be buried in oblivion,” and neither Judge Law nor any one else should be called to account here or elsewhere, by test oath or otherwise, for what was done by him in accordance with the usages of civilized warfare, “ during the disturbance.”
This view of this question has also the sanction and authority of Divine Inspiration. In the Bible the distinction between the blood of war and the blood shed in peace, is clearly drawn—the binding obligation to carry out in good faith an amnesty once tendered and accepted is enforced—and the infliction of punishment upon the party who has received the pardon or amnesty for acts done during the war, is condemned.
After the death of Saul, King of Israel, war existed between his son as his heir, and David, the anointed of God, about the succession to the throne. Abner commanded the forces of the son of Saul, and Joab those of David. A battle was fought, in which Joab was victorious. While Abner was retreating, he was followed by Asahel, the brother of Joab, who, after having been warned to desist from the pursuit which he refused to do, was slain by Abner. After this Abner sought an interview with King David, received amnesty, and was sent away in peace.
On learning this Joab was greatly displeased, and without the knowledge of the King sent and brought him back and slew him because he had slain his brother in battle. In other words, Joab slew Abner after he had made peace with the King, because of an act done during the war.
At a later period in King David's life, his son Absalom rebelled against him, and drove him from his throne, and without just cause plunged Israel into civil war. Absalom inade Amasa the leader of his forces, and the forces of King David were led by Joab. Before the battle commenced, King David gave strict orders to Joab, that neither he nor any of his men should harm the person of Absalom. During the battle Absalom became entangled by his hair in the boughs of a tree, where Joab found him and slew him, in violation of the King's orders, though peace had neither been made, nor had Absalom been pardoned, nor did the act violate any of the then usages of war. King David wept bitterly over the death of his rebellious son. Afterwards Amasa who commanded the armies of Absalom during the war was pardoned by the King, and placed in command of his forces in an expedition against Sheba, who had raised an insurrection. Joab met Amasa on the march, and smote and slew him.
King David was a man inspired of God, and is said to have been a man after God's own heart. He was a warrior most of his life; and understood both the rules of war, and the Divine will upon the snbject. Finally he lay upon his death-bed on the brink of the grave and the verge of eternity. this solemn hour with full knowledge of his condition, filled with the spirit of inspiration, he gave his memorable charge to Solomon, his son, who was to succeed him upon his throne. In that charge among other things he commanded him to slay Joab, or in other words not to let his hoary head go down to the grave in peace. Not because he slew Absalom, the King's son, in violation to the King's order. The blood of Absalom was shed in battle ; it was therefore the blood of war; and much as it grieved the King's heart, he remembered it not upon his death-bed, against Joab as a crime. But Joab had slain Abner and Arnasa after the war, in each case, was at an end and they had made peace with the King. For their slaughter David ordered Solomon, his son, to take the life of Joab. Why? In David's own language, because he shed “the blood of war in peace.” This showed the obligation which in the estimation of this inspired man rested upon the victor, after he had made peace and extended amnesty, to protect the rights of the vanquished and to maintain the utmost good faith in carrying out the terms of the capitulation. The fact that Abner had slain Joab's brother in battle was held to be no justification for the slaughter of Abner by Joab after the war was at an end. The slaughter of Asahel was the shedding of the blood of war. The slaughter of Abner was the shedding of the blood of war in peace. The first was justifiable homicide, the second was murder.
In conclusion, I have only to add that I have satisfied my own mind, and I trust the mind of the Court, that the statute requiring the test oath is in violation of the Constitution of the United States, and is for that reason void. And that the Divine law and the laws of nations agree, that when war is at an end, and peace is proclaimed or amnesty and pardon granted to the vanquished, as to the applicant in this case, all the past must be buried in oblivion, and no one should be called to account for what was done "during its continuance." And that he who forfeits the property of those who have made peace, for acts done during hostilities, violates the law of nations ; while he who sheds the blood of those who have conformed to the terms of the capitulation after hostilities have ended, “ sheds the blood of war in peace,” and violates not only the law of nations, but the law revealed by the living God.
Atlanta Constitution, Wednesday, July 7, 1880.
OUR COUNTRY.-SPEECH OF Hon. JOSEPH E. Brown, DELIVERED ON THE
THIRD OF JULY, 1880, AT THE City HALL IN ATLANTA, GA., ON CON-
The citizens of Atlanta, celebrating the 4th of July on Saturday, the 3d, assembled in large numbers at the city hall. And at 3 o'clock Capt. John Milledge read the Declaration of Independence. After which Senator Brown, being present by invitation, spoke as follows:
Ladies and Gentlemen: I have been invited here by the committee of arrangements to discuss, as the invitation says, “the national issues of the present presidential campaign.”. Of course on an occasion of this character it is not expected that I will discuss those issues in a partisan manner, or that there will be any vituperation or abuse of any one in my address. The object of the committee doubtless was that I should refer to the great principles of our grand constitutional system, and should point out such course as in my opinion will best promote the future happiness and welfare of the American people.
I shall not go, as is usual in a Fourth of July speech, into a history of the colonies, or the causes that produced the rupture which separated us from Great Britain. That the colonies had sufficient cause to justify their course no American now doubts, and I believe no Englishman will deny. Suffice it to say, however, that this grand declaration which my friend has just read
in your presence was a masterly presentation of the great principles upon which the war was begun, which lasted for seven years and ended in the complete overthrow of British dominion in this country and the establishment of a free and independent government of free and independent States.
After a short period the bond of union between these States, called the Articles of Confederation, was found to be insuflicient to meet the emergencies of the times and foster the great interests of the country, because they did not give to the central government power to carry out the objects necessary in our complex system.
A convention was called, therefore, for the purpose of amending those articles. After mature deliberation, they concluded to recommend to the States of the Union a new constitution—the present Constitution of the United States, without the amendments. That Constitution was submitted for ratification to the respective States, and, after certain delays and reservations that I need not now recite, it was ratified by all the thirteen original States. That Constitution became, therefore, the sheet-anchor and foundation of a great system of constitutional government like no other known to the world. It was an experiment hazardous at the time; and the general prediction of the crowned heads of Europe was that we could not live under such a system, and that it would soon topple to the ground.
The object of our fathers was to have a confederation, or a union of the thirteen original States, and of all other States that might afterwards be admitted into that union, with power to do all that was necessary by a general government for the defence and general welfare, and to preserve to each State individually all the necessary powers to conduct local self-government, and to look after and protect all the great interests of the people of each State. That design was very happily carried out in the Constitution brought forth as the result of the labors of that convention.
That Constitution confers certain great powers upon Congress that were necessary for the general government which had to take charge of the external affairs of a great people, as well as such internal affairs as could not be managed by each State individually. I will call attention to a few of those powers. Power is given by the Constitution to Congress to regulate commerce with foreign nations among the several States and with the Indian tribes.
To establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies, etc.
To coin money, regulate the value thereof, and of foreign coins, and to fix the standard of weights and measures.
To establish post offices and post roads.
To define and punish piracies and felonies committed on the high seas, and offences against the laws of nations.
To declare war, grant letters of marque and reprisal, etc.
To provide for calling forth the militia to execute the laws of the Union, to suppress insurrections and repel invasions.
These were great fundamental powers delegated by the States under the Constitution to the general government. And when you come to look at them you see they are founded in wisdom. In each case it is a power that can only be exercised by the general government, and could not on account of conflicting interests be exercised by the individual States. Therefore these great powers were delegated by the States to the general government; and it was authorized to execute them.
Then, in order to be guarded, for our ancestors who framed this instrument were great and wise men, they imposed certain restrictions upon Congress. Two or three of the principal ones were, that: The privileges of the writ of habeas corpus should not be suspended, unless when in case of rebellion or invasion the public safety may require it. All Englishmen and all Americans have for centuries put the highest estimate upon this great right for the protection of individual liberty. And the right is denied to Congress to suspend it, unless when in cases of insurrection or invasion the public safety requires its suspension.
Then, again, it is provided that no bill of attainder or ex post facto law shall be passed. And no title of nobility shall be granted by the United States. There are also other restraints put upon the powers of the general government. I do not speak now of the rights or powers reserved by the States. But the convention in forming the Constitution conferred or dele. gated certain great powers to the general government. Then there are inhibitions to restrain its action.
Then come certain restraints upon the powers of the States. In other words, in delegating certain powers to the general government for the general good and restraining the action of Congress in reference to certain other matters, it was found necessary to negative the powers of the States to do certain acts in conflict with the delegated powers. What consummate wisdom there was in providing these checks and balances for the government!
The Constitution provides that no State shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold or silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. These powers are expressly denied to the States. Again, no State shall without the consent of Congress levy any duty of tonnage, keep troops or ships of war, in time of peace; enter into any agreement or contract with any other State, or with a foreign power; or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. These are express inhibitions upon the power of the States. And if you look to them, you will see that while the convention forming the Constitution was delegating certain powers to the Federal Government necessary to its existence, it carefully denied the exercise of those powers to the States. The object was to have the line between the powers of the two so well defined that there might be no just cause of conflict.
In summing up the general powers delegated to Congress this provision occurs : That Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." Therefore the Federal Government is limited in its sphere of action to the exercise of delegated powers and the passage of such laws as are necessary to carry into eflect the delegated powers. There it is. There is the whole extent of power delegated by the States to the general government. As long as it mores within that sphere and the States move within the sphere reserved by them, there is no room for conflict, and the system works harmoniously and beautifully.
But some of the States were not pleased with the Constitution as it came from the hands of the convention ; and they adopted it only with the understanding that at an early period there were to be certain amendments defining the powers of Congress more unmistakably, and making clearer the reserved rights of the States.
The ninth and tenth amendments to the Constitution which followed as the result of that understanding, are as follows: The ninth amendment declares that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Amendment ten says:
· 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."
Take the Constitution then as it came from the hands of the fathers and as amended at an early period, and there seemed to be no room for future trouble or conflict between the two governments. Each was to move within its sphere and, when doing so, the system was a grand, a glorious and a beautiful one.
Thus established upon principles of equity and justice, and founded in the greatest wisdom, the system moved off harmoniously for many years. But the principal disturbing element was found to be slavery. On that point our fathers had difficulty in framing the Constitution. And in order to do justice to all, they were careful to incorporate into it this provision :
“No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up ou claim of the party to whom such labor or service may be due.”
Without that provision in the Constitution it is well known it would never have been agreed to by the slave-holding States. For a long time we had no difficulty, but finally the anti-slavery feeling in the North grew to a point where certain of the Northern States positively refused to carry out that essential fundamental provision of the compact of union. We of the South felt that this was a great grievance, and we remonstrated and did all in our power to have that provision faithfully met and carried out. While this question was progressing in a very unsatisfactory manner, the difficulties about slavery in the Territories reached a point where there was great excitement all over the Cnion, and we were almost in the throes of a revolution. At that time a sectional party was organized, and that party, with great strength in all the Northern States, placed a candidate in the field opposed to the extension of slavery in the Territories, which the South thought of the utmost importance. When the election of Mr. Lincoln was an accomplished fact, the people of the South naturally looked about for new safeguards. We felt that the right of secession was an inherent right. That was our honest opinion. We determined after consultation among the different Southern States that it was the only remedy left for the protection of slavery. It may have been unwise to exercise it. On that subject there were honest differences of opinion. As it turned out, it proved unfortunate, although if we had not met the issue then, we would have had to do it at a little later period, or our children would. Probably it was as well to meet it then if it had to come. We undertook to exercise that right. The Federal Government then in the hands of the Northern States made war upon us to compel us to return to the Union. That war was long and bloody. On both sides deeds of gallantry of the highest order were performed. No people ever fought more gallantly. It was American meeting American on the bloody field of battle. [Applause.] Suffice it to say, that on account of a vast superiority of numbers possessed by the people of the North, and on account of the blockade thrown around us, after a grand and gallant struggle, we were forced to surrender.
Then came one of the difficult periods in the history of the government; the reconstruction period. After we surrendered the great trouble was to determine what was our status-whether we were in the Union or out of the