*Whiting, a citizen of Massachusetts, was Solicitor General of Lincoln's Government.
We are involved in a war of self-defense.
Note: Whiting starts his argument with a bald lie, necessary as the predicate for which follows..
It is not the object of the war to lay waste to lands, kill citizens, or confiscate private property. But as a means of carrying on the war, it has become necessary to do these things.
We find that powers essential to the Government's perpetuity are vested in the executive and the Congress, to be exercised according to their discretion, for the good of the country.
Laws for peace, and laws for war
We must turn our attention to the hitherto unused powers contained in the constitution, which enable Congress to pass a body of laws to regulate the rights, liabilities, and duties of citizens in time of war.
Must the successful prosecution of the war against rebels be effected by destroying rights solemnly guaranteed by the constitution we are defending?
The Government May Require Slaves To Perform Military Duty
Slaves are subjects of the United States, whether or not they are citizens. The Government has the right to call upon slaves to perform military duty. Private rights cannot be set up to overthrow the claims of the Government to the services of every one of its subjects who owes it allegiance. Thus, compensation to the slave's owner is not required.
Congress Has Power Under the Constitution to Abolish Slavery
The constitution contains no words prohibiting the exercise of the power of abolishing slavery. The only prohibition in the document relating to persons held to labor is the Fugitive Slave Clause found in Art. IV. But this restriction, by its express terms, applies only to the States, not the Congress.
If Congress should discharge the obligations of slaves to render labor, by passing a law to that effect, such law would supercede and render void all rules, regulations, customs, or laws of any State to the contrary, for the Constitution is the supreme law of the land. If the framers intended to keep from Congress this power they would have drafted a clause to the effect.
Note: Whiting skates by the Fifth Amendment's requirement of "just compensation" for the appropriation of property for "public use" with the glib statement—"The right to "just compensation" depends upon the circumstances under which it is taken, and the loyalty and other legal conditions of the claimant."This is the real situation the Southern people, saddled with the Africans, faced; the civil war is their reaction.
War Powers Of Congress
The constitution provides that Congress shall have the power to pass "all laws necessary and proper" for carrying into execution all the powers expressly granted the Government. It is obvious, then, that if confiscation of property, or the liberation of slaves of rebels, be adapted to the suppression of rebellion, it is within the powers of Congress to pass laws for those purposes. Whether they are adapted to produce that result is for the Legislature alone to decide.
Note: This is the second whiff of Whiting's effort to blur the distinction between the people of the seceded States being subjects of the Federal Government and being subjects of a foreign Government. Under the law of nations, the Federal Government, as a conqueror, may liberate the conquered people's slaves, if, but only if, it is engaged in a "just" war. Under the constitution, it cannot. What counts, in other words, is the "higher law" of nations, but to admit this is to admit that the seceded states are out of the Union.
If confiscation or emancipation laws are enacted under the war powers of Congress, we must determine, in order to test their validity, whether, in suppressing rebellion, the Government is, within the meaning of the Constitution, at war with its own citizens. If so, the question becomes whether the Government has full belligerent rights against its rebellious citizens; and, if so, whether confiscation and emancipation are sanctioned as belligerent rights by the law of nations.
Civil war commences whenever any combination of citizens is formed to resist generally the execution of the laws of the Federal Government, if accompanied with overt acts to give that resistance effect.
Note: In 1861, the people of eleven so-called "sovereign" States, in conventions assembled in their States, voted to remove their States from the Union by secession.
As John Locke opined in his 1690 second treatise, On Government, the fundamental question is which is it that is actually the "rebel?" The people of the seceded States, or the Federal Government?
The constitution makes it the duty of the President, as Commander-in-Chief, to engage promptly in war, or, in other words, to make the United States a belligerent nation, without any act of Congress, whenever he is legally called upon to suppress rebellion."
Note: In April 1861, because it reasonably believed Lincoln was sending a fleet of U.S. Navy warships to force an entrance into Charleston Harbor, to reinforce the garrison at Fort Sumter, the Confederate Government authorized its armed forces, upon the appearance of the fleet at the harbor mouth, to reduce the fort by bombardment. (The Sunken Fact: Lincoln Instigated The War)
As John Locke observed, in 1690, "Whoever uses force without right, as everyone does in society who does it without law, puts himself into a state of war with those against whom he uses it; and in that state all former ties are canceled, all other rights cease, and everyone has a right to defend himself and to resist the aggressor. It is evident, then, that it is lawful for the people in some cases to resist their government and in such cases resistance is not rebellion.
Must men alone be debarred the common privilege of opposing force with force? Self-defense is a part of the law of nature, nor can it be denied the community, even against the king himself."(This is why Whiting, and Lincoln, pretended the Federal Government was engaging in "defensive war," that it was not the agressor.)
By the law of nations, no formal declaration of war is necessary. All that is required is for the Government to make a proclamation to its own citizens, to enable them to govern themselves accordingly. This the President has done.
When the citizens of Charleston bombarded Fort Sumter, it is not denied that they were waging war upon the government. When Major Anderson returned the enemy's fire, it is denied, by some, that the country was "waging war."
Note: Of course, it was not "the citizens of Charleston" who bombarded the fort; it was the armed forces of the Confederate States of America. In the exchange of gun fire, it cannot reasonably be denied that two "countries" were engaging in "war.
"War is levied" on the United States wherever and whenever the crime of treason is committed. The language of the Constitution is clear: "Treason shall consist only in levying war upon the United States, or in giving aid and comfort to the enemy." If, therefore, any person, or collection of persons, has committed the crime of treason, the Constitution declares them to have levied war. As traitors they have become belligerent, or war levying enemies.
Note: "Any person, or collection of persons, has committed the crime of treason. . . " This is hardly an accurate statement of the legal reality. It is not "persons" that the Constitution declares "traitors," but citizens of the United States.
As a matter of law, a person is a citizen of the United States, if, but only if, the person owes, at the time of the "traitorous" overt act, allegiance to the Federal Government. The people of South Carolina, in convention assembled, authorized their State government to secede from the Union. Thus, the duty of allegiance, of the citizens of South Carolina to the Federal Government, was legally abrogated, annulled, rendered void by the people's sovereign act. A legal reality Lincoln and, presumably, every president who follows him, was loath to admit. (General Lee's Decision: Was it Treason?)
What Whiting is hiding, here, is the legal reality that the Federal Government was engaging in war with a foreign power, and, as such, was operating solely as a belligerent under the law of nations. If Whiting admitted this, then the idea that the Government was merely suppressing "rebellion" evaporates into the air. Of, course, the Government does not want the people to think their States might legally secede from the Union.
Whiting's effort to hide reality leads him into the confusion of treating the people of South Carolina as both citizens of the United States, under the constitution, and belligerents under the law of nations. This creates a situation where the Carolinians must obey the dictates of the Federal Government while, at the same time, the Federal Government invades their State, destroys their real and personal property, and takes their lives.
Locke stated the ultimate political question best when he wrote, in 1690, "I grant that the pride, ambition, and turbulence of private men have sometimes caused great disorders in commonwealths, and factions have been fatal to states. But whether the mischief has oftener begun in the people's desire to cast off the lawful authority of their Government, or in the Government's insolence and endeavors to get and exercise an arbitrary power over its people—whether oppression or disobedience gave the first rise to the disorder— I leave it to impartial history to decide."
What do we want, as a people? One hundred percent security, as President Obama suggests? Or, for the sake of privacy, some reasonable degree of risk? And if the Government refuses to adhere to our view, that "terrorism" is more a police problem than a military problem, instead endeavoring to get and exercise an arbitrary power over us, whose moral fault is the resulting disorder?
The Law of Nations is Above the Constitution
The law of nations is above the constitution of any government; and no people would be justified by its peculiar constitution in violating the rights of other nations (read Confederate States of America). To determine what are the rights of different nations when making war upon each other, we look only to the law of nations. The peculiar constitutions of one party gives it no rights over the other than those which are sanctioned by international law. In the great tribunal of nations, there is a "higher law" than that which has been framed by either one of them.
Note: Think about it. Nazi Germany. Can the human race tolerate such a power to exist in the world? How close do we come to it? How close Israel? How close Syria? How close Pakistan? How close Rowanda? Lincoln, Roosevelt, Johnson, Bush, Obama: these are good men. But can we reasonably expect that always good men will gain control of government?
But while this supreme law (the law of nations) is in full force, and is binding on all countries, it is not conceded that the Federal Government, in a civil war for the suppression of rebellion among its own citizens, is subject to the same limitations as though the rebels were a foreign nation, owing no allegiance to the Government.
Note: Well, there it is! You can see it now, can't you? The trick of logic. Whiting is assuming, without legal foundation, that the people of South Carolina still owed "allegiance" to the Federal Government, when, as a matter of history and law, they did not. Whiting wants his cake and to eat it too! He wants the Federal Government to wage war without being restrained by the law of nations, on the theory that, because the Carolinians are still its "citizens," the law of nations cannot operate to limit how the Federal Government wages war against them. The primary reason why Whiting argues this theory, is that he wants to strip individuals of all their property, real and personal, regardless of military necessity. This, the law of nations does not allow (Think of Syria, today. And Israel.).
Nothing in the constitution interferes with the belligerent right of confiscation of enemy property. The Government has the right, as a belligerent power, to confiscate any and all the personal property of the enemy; confiscation passes a complete title to the property taken. No judicial process is necessary to give the Government title. Property of persons residing in the enemy's country is deemed, in law, subject to confiscation without any evidence as to the opinions of the owner. A person's residence in the enemy's country impresses upon his property a hostile character and subjects it to confiscation.
Here, Whiting is simply plain wrong: the law of nations, according to Vittel, did not, and does not, recognize the right of the belligerent to confiscate, much less permanently appropriate, private property per se. The belligerent may appropriate private property for the period of time in which military necessity requires its use. (Israel ignores this law.)
The belligerent right of the government to confiscate the enemy's real estate cannot be questioned. The question as to the belligerent right to confiscate an enemy's real estate situated in South Carolina is somewhat different from the question whether in conquering a foreign country it will be lawful to confiscate the private real estate of the enemy.
Note: Here it is again—the idea that the Federal Government can confiscate all the real estate owned by citizens of South Carolina, simply by pretending they are still "subjects" and "rebels."This idea was rejected by the United States Supreme Court after the war, when it ordered the Federal Government to return to General Lee's son, possession of Arlington Plantation which he had inherited from his grandfather, G.W.P. Custis, in 1859.
It is unusual in case of conquest of a foreign country, for the conqueror to do more than to displace its sovereign and assume dominion over the country. On a mere change of sovereignty of the country, it would be harsh and severe to confiscate the private property and annul the private rights of citizens generally. The case is very different where confiscation will only break up a nest of traitors, and drive them away from the country they have betrayed.
Note: There it is yet again. The law of nations does not recognize the right of the conqueror to confiscate private property, beyond the window of time military necessity requires it. In 1865, the Republicans passed laws to the effect that all the private real estate of citizens of South Carolina was confiscated and possession transferred to the use of the emancipated slaves through "freeman bureaus." The scheme quickly collapsed.
War Power of the President to Emancipate Slaves
The power of the President, as Commander-in-Chief, to emancipate slaves is not denied by any authority. It belongs to the President exclusively to judge when the exigency arises in which he has authority to do this. The right of the President to do this does not deprive the Congress of the concurrent right to do it.
Note: Whiting wrote his book in the spring of 1862, during the second session of the 37th Congress, when Congress was debating the terms of the proposed second Confiscation Act; one issue debated was whether to include emancipation as such within the terms of the Act. The issue was rejected because of the problem of "ex post facto" laws and "bills of attainder." After the Act was passed and became law, Lincoln took upon himself what Congress did not: emancipation, without conditions, of all slaves who lived in the Confederate States, or any part of any state which was then in "rebellion."He did this without legal authority, either of the Constitution or the law of nations. (See, What Happened in July 1862)
Here, we must appeal to the law of nations (Whiting shifts back and forth between the law of nations and the constitution as it pleases him). It is only the law of nations that can decide this question, because the constitution, having given authority to government to make war, has placed no limit whatever to the war powers. There is, therefore, no legal control over the war powers except the law of nations.
Note: Again, the shift in focus: In the Senate, the majority refused to include emancipation per se in the Confiscation Act, because it was constrained by recognition of the want of authority to do it, under the Constitution, if the "rebels" were viewed as still "citizens of the United States." So Whiting seizes on the "war power" as above the constitution by virtue of the "higher law" of the law of nations. Yet, according to Vittel, the historian of the "law of nations," it was far from clear whether, under the circumstances, the United States had the "belligerent right" against the Confederate States to emancipate four millions of slaves, much less confiscate their real property—the issue of Lincoln's act of emancipation turning on the issue of whether the war he instigated was "just" within the meaning of the law of nations. And the answer practically depends, as Locke observed, on who was, in fact, the "rebel."
At this point Whiting goes off on an excursion through history, bringing up the fact that, in the War of the Revolution, Cornwallis carried off 30,000 slaves from Virginia. Whiting discounts the fact that, under the subsequent Peace Treaty of Ghent, Britain agreed to compensate the slaveowners for the loss of their slaves. Britain did this again, on a lesser scale, during the war of 1812. John Quincy Adams, as Secretary of State, was instructed by the Government to demand indemnity from Britain for its action. The issue was referred to the Emperor of Russia as arbitrator, who decided indemnity should be paid. (In speeches before the House, in later years, Adams repudiated the Government's position that he asserted on its behalf against Britain.).
Nothing but overt acts are treasonable by the Constitution, and these overt acts must be acts of war. These acts must be proved either by confession in open court, or by two witnesses to the same act. Our ancestors took care that no one should be convicted of this infamous crime, unless his guilt is made certain.
Note: Compare the express language of the Constitution with President Obama's conduct in killing American citizens by drones.
The constitution is a piece of paper with words written on its face, nothing more or less. The President, whoever he is, operating in the full bloom of the "war power," trumps your constitutional right of privacy at every point: he scoops up your telephone call history, your internet activity, peeps at your library list, puts a spy in your church, opens your mail, sticks a swab in your mouth, sniffs at your door, and drops the dime on you, and, without so much as a by-your-leave to the constraints of the paper constitution, hides what he does behind the mask of "State Secret."
4th Edition, 1864
We are living in the Age of Lincoln, where our "more perfect" Union is being administered by the President's war power; where security—the fundamental purpose of the Union—tramples liberty.
What Is A General Doing In Charge Of Domestic Spying?
General Alexander Testifies Under Oath, in 2012
On June 11, 2013, before a Senate committee, General Alexander testified that the National Security Agency, which he commands, does not need to obtain a court order, but may unilaterally decide for itself whether it possesses "a reasonable suspicion" of a "terrorist link," to search the vast databank that Senator Rand Paul tells us contains "gadzillas" of telephone numbers, emails, and google searches of American citizens. General Alexander told the senators, "We won't search the databank unless we have some reasonable articulable suspicion about a terrorist organization."
According to General Alexander, the NSA does not need a specific court order to plumb the depths of the databank. Instead, he says, the NSA's "lawyers decide when a legal threshold is met to authorize access." General Alexander, like Senator Diane Feinstein of California, asserts the conduct of the NSA is "right" because "we are trying to protect America."
The Government's "lawyers" decide in secret the legal standard to apply to the decision of the Government to obtain a copy of your library reading list, read your emails, follow your google searches, listen to your telephone conversations? A secret court issues secret rulings based on secret searches.
Trust us, General Alexander says; we are trying to protect America. "America?" Protect "America?" And the method by which our Government means to do that, the Bill of Rights notwithstanding, is to monitor who each one of us talks to? What each one of us reads? And thereby know What each one of us thinks? How is this not the world of Orwell?