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to his country such as to entitle him to demand the rights of a citizen.
To attain the establishment of these I now
hold this alleged power of excluding them who have renounced their citizenship from the exercise of its powers, still I do not favor such exclusion against the mass of the common people, unless it shall appear that they continue incorrigibly disloyal, and insubordinate to our Government and laws. I only inquire now as to the power. The manner and extent of its employment will be a matter for the high, solemn, and most cautious exercise of the wisdom and discretion of Congress; to be done with due regard to the nature of ours as a popular Government resting upon the will of the loyal citizens, but also with regard to the perpetuity and safety of the Republic.
What makes the inquiry upon which I now enter, as to the right to exclude the disloyal from citizenship and from voting, of such vital moment just now is the sad fact that in at least ten of these States there is the highest reason to fear that more than half the white inhabitants desire the destruction of this nation.
The people could not learn a fact, so utterly unnatural and appalling, until each household spelled it out, letter by letter, line by line, for itself. But the nation did learn it at last, when every family had read it in the marble features of its own slain
"For there was not a house in which there was not one dead."
To again refuse to believe it as we did before, and to decline again to act upon it as true is only stark madness. For four years and a half that almost entire people strove for that destruction, with a ferocity of will which made the purposes of Danton and Robespierre almost timid, and with a cruelty of execution which makes the "September slaughters of the prisons" almost mercy.
And now, when the grass has not yet cov ered the graves where sleep the victims of this immense crime, and when, by no act, or speech, or sign, the great mass of the authors of it have even professed regrets for the past except regrets for the failure, and when they avow no new desires for the future, this nation must either accept this most unwelcome fact of general disloyalty or else the nation cannot live.
Mr. Speaker, has the Constitution, now that actual war for the attainment of the nation's destruction has been crushed out, deprived the Government of all power to accept this fact, and to provide against the imminent peril to the nation which it imports? To show that the Constitution has not is the work of this my hour.
To be fully and accurately apprehended, let me state now what I am about to maintain and what I shall not maintain.
I do not think that the Federal Government
has any power to exclude by law any civilized native of the United States from rights of national citizenship who has not violated or renounced his allegiance to the United States. I do not maintain that any citizen can, by any act of disloyalty or by discarding his allegiance, divest himself of the obligations of the allegiance which he owes his country; but, on the contrary, I hold that he cannot.
I do not hold that the United States can regulate the enjoyment of the elective franchise in the organized States so as to prescribe who, of them who are citizens, shall be permitted to vote. I think the second section of the first article of the Constitution gives this
power to the States.
What I do maintain and shall strive to establish is, that the United States is a supreme nationality with the sovereign power usually held by nations to define the obligations of citizenship and demand the paramount allegiance of all its citizens in return for national protection; and that, in virtue of such sov ereignty, the nation has the power by law to declare what gross, open, and palpable acts of abjuration and abandonment of the obligations of citizenship shall work a forfeiture of all the political rights and powers of citizenship, including the elective franchise; and may also prescribe what shall be deemed sufficient evidence of a return to true faith and allegiance
And then they set the purpose out again in the tiara of stars with which they bound the Constitution's brow, and made it read, "To form a more perfect Union."
This law, stated by Wheaton in the words, "The United States is a supreme Government, acting not only upon the sovereign members of the Union but directly upon the citizens," was thus made self-evident as the very foundation of the Government, both by the origin, the text, and the preamble of the Constitution. It was afterward affirmed by a thousand judgments of the highest courts of the States and of the nation. It was reannounced by the Government itself in the terrible dialect of war in the suppression of three successive revolts against that supremacy in the States of Pennsylvania, South Carolina, and Rhode Island. It became impressed upon the Constitution's history by the meanings assigned to it by those who made it. The same thing was enforced by the subsequent arguments of its great expounders, among which stands one -the reply to Hayne-unsurpassed by the achievements of the human intellect, and which has passed into undying history, the sole companion of its only peer, "the oration upon the Crown."
THE UNITED STATES IS A NATION.
It is upon this sublime and simple law that I lay the foundations of my argument.
Mr. Speaker, how strange has been the history of that law's enunciation and enforcement in our country. Its absence from "the Confederation" rendered that structure, which was reared in the storms of war, utterly weak and insecure, and at the end of the eighth year of its existence prostrated it in ruin. To remove in the new Constitution this cause of the feeand purpose of the new one's formation. That bleness and ruin of the old, was the very endship is high purpose they who made it engraved into its text in those vital words, "Shall be the supreme law of the land."
But, sir, after all these it was strangely, in God's orders, reserved to this Government to teach it to her children and the world in emphasis which startled the human race.
This lesson, which they who made it had thus written all over the Constitution, which the Government had three times more indicated by the accents of war, which for seventy years the courts had been framing into decrees and men had been illustrating with the best eloquence of earth, is comprehended at last. But, Mr. Speaker, it was only comprehended when it was written in letters of mingled fire and blood-the fires of a war which swept half a continent, and the blood of "the
right, it has also the right to the things necessary t its preservation."-Vattel, s. p. 6.
This right of self-preservation necessarily in volves all other incidental rights as a means to giv effect to the principal end." Wheaton, 115.
SELF-PRESERVATION A UNIVERSAL RIGHT AND DUTY OF NATIONS.
The next element of my argument I bring from the highest sources of public law; and assert that the right of self-preservation is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and important one which a State owes to them." (Wheaton, 115.) "Every nation is obliged to perform the duty of selfpreservation." (Vattel, s. p. 5.)
EVERY NATION IS ENTITLED TO THE MEANS OF SELFDEFENSE.
Mr. Speaker, from the same high sources of authority, I allege that—
'Since a nation is obliged to preserve itself, it has a right to everything necessary for its preservation." A nation has a right to everything that can ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and from that very same reason that establishes its
As we proceed we shall see that these principles, so evidently inherent in the very nature of sovereignty, are both held and employed by every independent State.
CITIZENSHIP IS A NATIONAL AND NOT A STATE QUALITY AND GIFT.
Let it be next thoroughly established and comprehended that in our Government there is, properly speaking, no State citizenship, and that, to adopt the language of the case of Lynch vs. Clark, (1 Sanford R., 583,) citizena national right or condition." Chancellor Kent affirms the authority of this case (2 Kent's Commentaries, s. p. 30, note) when he says:
The question [of citizenship as distinguished from alienage] is one of national and not of individual [State] sovereignty."
A State," says Judge McLean, "may authorize a foreigner to hold real estate within its jurisdiction, but it has no power to naturalize foreigners and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States which has no warrant in the Constitution."-19 Howard, 533.
"Every citizen of the United States is a component member of the nation, with rights and duties under the Constitution and laws of the United States which cannot be abridged by the laws of any particular State." "Every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State."-Opinion of Attorney General Bates, of 29th November, 1862.
By such authorities as these I show this other proposition of my argument, that by the very essence and nature of sovereignty it is and must be the nation, the supreme Government, that determines who shall be members of the nation's body, its citizens, and whom it will admit to demand its protection and enjoy its powers.
NATURE AND RIGHTS OF CITIZENSHIP.
In order that the legal consequences which flow from the fact that the nation bestows and controls citizenship may be completely understood, it is best now to look at the nature of American citizenship.
Although this is a subject of great difficulty in some of its aspects, yet it is in others of the very easiest and most obvious comprehension and statement.
In speaking of what privileges and powers are included in citizenship, Mr. Calhoun says:
There it stands now, written, comprehended. It is the judgment of by far the most august court which ever sat for "high resolve," the court of the mighty people; and men comprehend at last that this is a nation with right obligations toward the citizen, the latter may with
"If the body of society or he who represents it [the Government] absolutely fail to discharge their
"But though we may not be able to say with precision what a citizen is, we may say with the utmost certainty what he is not. He is not an alien. Alien and citizen are correlative terms, and stand in contradistinction to each other. They, of course, cannot so exist."
houn, that he cannot be held to be a citizen The principle here alluded to by Mr. Calwho does not owe, or who does not recognize or render the obligations of a citizen, is more fully expressed by Vattel (s. p. 106) in these
value upon international law which is in existence, and which is denied by none. This proposition is, that the "bond" which unites every sovereign State with its citizens is the recognition and rendering by the citizen of true loyalty, faith, and allegiance to his Government; and the reciprocal protection due and rendered by his Government to that citizen as the price of that allegiance; and when such faith is not recognized or rendered, there is no bond of citizenship and none of its rights. About the truth of this position there can be neither sensible dispute or doubt. The only question which can be made, bearing directly upon this doctrine of public law, is as to how the citizen may show he discards his allegiance, and how the Government may assert its right to forfeit his citizenship. This we shall presently come to and consider.
Again, Mr. Lawrence (in Wheaton, 910) destruction of both Congress and its supreme laws. You have a nation bound to exhaust every dollar of its treasures and every drop of its loyal blood to defend the rights and avenge the wrongs of its citizens, and yet with no power in that nation to declare that Mason, in England, and Slidell, in France, and Suratt and Saunders, in Canada, have ceased to have the rights of citizens; and you are, therefore, bound to exhaust this treasure and blood for the defense of these. You have a nation in which, like in all others, the "bond" which unites the citizen to his country is the fact that he acknowledges and renders allegiance to its laws; and yet you have that nation not only bound to protect them who defy and spurn their Government and its laws, but also bound to permit the disloyal States to enact into "supreme law" that none shall vote for President or Congress of the United States but such as have made war upon the United States.
Need I say that a doctrine leading to results like these is not false merely, but utterly shocking?
RELATIONS OF CITIZENSHIP TO SUFFRAGE.
I now assert another proposition which in principle is identical with and must result from the doctrine that "State laws and State legislation cannot in the nature of things be longer permitted to define, abridge, or enlarge the important privilege of citizenship in the United States." It is this: they from whom the United States may constitutionally withhold or withdraw the ordinary rights of national citizenship, such as the right of petition, of holding land, and of protection, cannot, except by the sufferance of the Government of the United States, have conferred upon them by the action of the States higher and more vital powers and rights of controlling the United States Government than would be derived by the possession of mere rights of national citizenship. In other words, those, whether native or foreign, whom the nation may rightly decline to permit the States to endow with citizenship merely, cannot be endowed by the States except by mere sufferance, as I have said, with the infinitely higher attributes of national sovereignty, which, by the elective franchise, selects all the rulers of the Republic. Judge Curtis (19 Howard R., 581) says truly that though
"The enjoyment of the elective franchise is not essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American constitutions; and the just and constitutional possession of this right is decisive evidence of national citizenship."
I aver that they to whom the nation has rightly denied the rights of citizenship are thereby denied being deemed a part of the "people of the States" in the sense of the second section of the first article of the Constitution; and no State can make such men the electors and rulers of this nation unless, as is true in a few States, this be permitted by the mere sufferance of the Government. I do not object to this sufferance where loyal men are the recipients of it.
Let us see how this is now by the great lights of the law. I first cite Story, (Constitution, section 1103,) who, with irresistible force of reason, declares that
"If aliens might be admitted indiscriminately to enjoy all the rights of citizens, at the will of a single State, the Union itself might be endangered by the influx of foreigners hostile to its institutions, ignorant of its forms, and incapable of a due estimation of its privileges."
Surely, whether the elective franchise be a right of citizenship or not, there is no other right so fatally dangerous to be intrusted, the will of a single State," to men not citizens, and "hostile to our institutions," as the power of selecting all the officers of the nation-a power which Judge Curtis well declares to be the "chiefest attribute of citizenship.'
Again, sir, Chancellor Kent, (Note c, s. p. 229, 1 vol. Comm.,) after declaring that in Ohio the right of suffrage is limited to naturalized and natural-born citizens, adds, "And so I think it ought to be in all sound policy; and the view taken of the subject in the above case (Spragins vs. Houghton, 2 Scammon, 377,) by one of the counsel who argued the cause, is a masterly argument." (See Mr. Butterfield's argument approved by Kent, in 2 Scammon, 882.)
"If they [the States] can admit to the elective franchise those who are not citizens, thereby neutralizing the votes of citizens, not only the Federal power of naturalization becomes a nullity, but in the latter case a minority of actual citizens by the aid of aliens may control the government of the States, and through the States the Government of the Union."
Once more I cite Mr. Calhoun, not merely because of the eminence of his learning and ability, but mainly because of the intrinsic force of what he says, and that it is said by one not too apt to restrict the powers of the States, nor to magnify those of the General Government. In the argument from which I have quoted (Wheaton, 905) he says:
"To suppose that a State can make an alien a citizen of the State, or confer upon him the right of voting, would involve the absurdity of giving him a direct and immediate control over the action of the General Government, from which he has no right to claim protection, and to which he has no right to present a petition. That the full force of the absurdity may be felt, it must be borne in mind that every department of the General Government is either directly or indireetly under the control of the voters in the several States." ** "Now, admit that a State may confer the right of voting on all aliens, and it will follow as a necessary consequence that we might have among our constituents persons who have not the right to claim the protection of the Government or to present a petition to it.
"But a still greater difficulty remains. Suppose a war should be declared between the United States and the country to which the aliens belong. They, as aliens, would be liable to be scized under the laws of Congress, to have their goods confiscated, and themselves sent out of the country. The principle that leads to such consequences cannot be true."
Surely Mr. Calhoun must be right. Surely the States cannot, if the nation should exercise its right to forbid it, authorize them to elect the American President and the American Congress, who can neither petition the Government they elect, demand the protection of the Government they elect, be required to bear arms in favor of the Government which they elect, be tried for treason against the Government they elect, nor remain, in time of war, in the country whose rulers they elect, and who are, by a law now in force, declared to be, in time of war, the enemies of the Government which they elect and required to be driven from the country. (See act of 6th July, 1798.)
Mr. Speaker, whether a nation endowed, as we have now seen ours to be, with the high attributes of supreme sovereignty-a nation with right to life; with right to all powers required to ward off danger to that life; with exclusive right to confer, define, and control national citizenship; with right, if it so choose, to exclude aliens from becoming citizens, and from either electing our rulers or demanding our protection until this nation shall deem them fit to become such; whether such a nation may withdraw the power of electing our rulers from men who have turned enemies of the Government and discarded all the duties of citizenship is the momentous inquiry to which all I have said was directed. If it be so that your Government has not this power, then, indeed, is it a prodigy of the hideous, a paragon of deformity, a very miracle of the monstrous, which has neither a peer nor proximate in the past of nations.
Look at the spectacle. A supreme Government exclusively creating and controlling allegiance and citizenship; but with States in that Government able to enact into supreme laws that all who have by acts of treason proved their purpose to destroy the Government shall elect its rulers, and that all who have not done this shall not vote for these rulers! You have a Government with exclusive power to decide whom it will permit to bear from State to State the right of abode, of holding land, and of exemption from unusual taxes, and yet with power in the States to declare that none but those whom the Union will not permit to have these lowest rights of citizenship shall elect all of the nation's supreme magistrates. You have a Congress able to make what the Constitution declares to be "the supreme law of the land," but with power in the States to enact by law that none shall vote in electing that Congress but they who, by taking part in rebellion, have shown that they aim at the
HOW RIGHTS OF CITIZENSHIP ARE FORFEITED.
I shall pursue these suggestions no further, but shall assume that there is some way by which this Government can deprive men whom it deems unfit to be members of society of such rights of citizenship and of electors as is demanded by the public safety.
It will be said that the only way within the Government's power to divest persons of the political powers of such citizenship, and of the right to elect the national officers, is to indict, try, and execute them; and hence that no right can be declared forfeited by a mere act of national sovereignty. In other words, it is alleged that in cases where the guilt and disloyalty of vast communities of men are open, notorious, confessed, historical, and established by years of persistent, general, and universal war, still their Government is bound to regard them as innocent, law-abiding, and patriotic, and worthy to rule the nation unless they are tried by a jury and executed!
Now, this assertion I meet with a flat denial; and I assert that it flies into the face of all law, common, constitutional, and international; of all reason, ordinary and extraordinary, and of all history, our own and all other nation's.
Look at these. Take our own recent and melancholy experience. We have eight million people, each of whom, with the exception of the women and children, has made war upon his country and forfeited his rights of citizenship and life. Unless secession be legal, then both the treason and forfeiture stand confessed by each one of the millions. Now, is it possible that each of these must be either convicted and executed, or else be permitted to be the rulers of this land? Is this great Government, indeed, sc impotent as this, that in matters of this stupendous moment, shown to be absolutely vital to its existence, it can choose but one of two things, and either one of which two things carried out, I affirm, would be fatal to the nation's life. If it must permit these eight millions who waged four years of war for the nation's death, and who may profess neither penitence, loyalty, or change of purpose, to resume the highest powers of Government under laws of disloyal States which exclude from government all the loyal men of the State, then that is national death. If, on the other hand, to prevent this you must try, convict, and execute these millions, that is both national dishonor and death.
It is no escape from this dilemma to say that I would convict them and then not execute them, but grant a partial pardon sparing life, but forfeiting franchises. That both proposes impossibilities and yields the case-impossi bilities, because no nation ever did, or will, or can, or ever ought to try and convict one third of its people; and it yields the case, because if a conditional and partial amnesty, which spares life but forfeits rights of citizenship, can be granted after conviction, so it can before, when the guilt is open and confessed. (6 Opinions Attorneys General, 20; Sulter's
case, Phil. R., 302.) I am not now to be understood as saying that a Government which assumes to exclude dangerous men from citizenship, or from higher powers than citizenship, as the elective franchise, deals with them in punishment of crime, or that in conceding to such men some rights of citizens, as that of residence, and depriving them of others, as that of voting, the Government is either punishing or pardoning crime as such. Such acts are no more a punishment of crime than the exclusion of aliens from the rights of citizens is a punishment of crime. And to admit such dangerous men to some rights of citizenship, as that of residing in the country, and of sparing their lives, is no more an assumption of the President's pardoning power than to permit aliens to reside and own property in the country is a pardon. These very same considerations prevent such laws from being bills of attainder, or of pains and penalties. This I argue not, because it is self-evident. You can no more punish and forfeit the property of an alien resident of the United States by the enactment of "attainder," or "pains and penalty" statutes, than you can so punish a citizen; and yet who ever dreamed that the act of July 6, 1798, banishing such aliens in time of war, was a bill of pains and penalties?
If it be true that our Government can withhold from none who are natives of our country the powers of citizenship, and if it cannot forfeit these powers by act of law and without conviction, when the citizen has openly renounced and trampled upon his obligations as a citizen, then some of the results would be the following: your Government could not exclude from citizenship the tribes of American Indians, at least not such as pay any tax. And yet that exclusion is as old as the Government. Neither could your Government exclude from powers of government pirates, or bands of robbers, or guerrillas, who are natives of your country and unconvicted. And yet such men, by the law of nations, are not only not citizens of any country, but are the declared enemies of the human race, whom any nation may destroy wherever found.
Neither could you declare men who flee their country in time of war to escape rendering to it military service to have lost citizenship. Such men you cannot try as criminals, or convict, because your process cannot reach them, and besides, the act of forfeiture may be one constituting no defined crime. Then, too, may Mason, Slidell, Breckinridge, and Wigfall, all not only demand the rights of citizen suitors in your courts, but, as has been said before, may demand that all this nation's loyal blood shall be expended in war to defend their rights and avenge their injuries.
We have already seen that the highest international authority in the world so expressly declares the law when he says that if a citizen does not "observe his engagements to the Government, then the Government is not bound to fulfill it, as the contract is reciprocal between society and its members," and that it is "on this principle also that society may expel a member who violates its laws." (Vattel, 106.) There is no authority nor judgment of any court that does not take for granted and assume as a postulate the very thing I now strive to establish, to wit, that nations may exclude from all national citizenship, fellowship, and rights men whose character is wholly incompatible with the enjoyment of such rights. Take in proof of this the learned opinion of the Attorney General, Bates, already quoted, in which he assumes that if a man's character "is so incompatible with citizenship that the two cannot exist together" then he cannot be a citizen. Or take the definition of what a citizen is. I care not whose definition you select. You may take the oldest, as that of Aristotle, that it is one who " 'enjoys a due share in the government of that community of which he is a member," or you may take that of Vattel, that they are citizens who are members of the civil society, bound to this society by certain duties, and subject to its authority; they
equally participate in its advantages." In every definition it is assumed that he is not entitled to be a citizen who does not discharge the duties which "bind" him to society and entitle him to be a member of the Government in which he shares its power."
Or take in further proof of this the express authority of every writer upon public law, all of whom, like Vattel, assert the power in the sovereign to deprive one of citizenship who will not perform his duties. Professor Felice (vol. 1, p. 145) expressly asserts the power of the sovereign to forfeit citizenship, and indeed so does every other judicious writer on public law.
I now appeal to history. I assert that there is not, and never was, a civilized nation in which the sovereign did not both hold and exercise the power of forfeiting and taking away, and that by law or edict of the sovereign rights of citizenship when its duties were not recognized or rendered.
Accepting foreign citizenship forfeits all its rights in France; and so does taking a foreign office. (Wheaton, 922.) The same is true in Prussia. (Ib., 922.) One who abandons his country forfeits citizenship in Austria. An Englishman loses his rights as a British subject by adhering to a foreign Power. (Wheaton, 917; 2 Blackstone, 410.) The same is the law of Bavaria, of Wurtemburg, of Russia, and of Spain. The same law has been enforced again and again by Switzerland, and by every other European State; and that throughout all the period of civilized history.
Mr. SHELLABARGER. I answer the gentleman, no, sir. Besides the gentlemen will find that one of our naturalization laws, that of 29th March, 1790, was repealed, in part, because it excluded from citizenship only those "proscribed" by the State laws, and did not include, in terms at least, those "legally convicted." And the repealing act of 29th January, 1795, added to those proscribed the other class of them convicted, making the clause read: "No person heretofore proscribed by any State, or who has been legally convicted of having joined the army of Great Britain," &c. So the law of 1802, now in force, is. So that either and both classes, the proscribed and the
Mr. SHELLABARGER. I answer the gentleman that it does take effect by act of the sovereign in the enactment of the law or ediet, whichever may be the channel of communicating the national will upon that subject-convicted, are excluded from American citimatter; and he will so find upon an examination of the authorities.
Mr. HALE. Will the gentleman from Ohio permit me to ask him a question upon the point he is now discussing?
Mr. SHELLA BARGER. Yes, sir.
Mr. HALE. Idesire to inquire whether this forfeiture of which the gentleman speaks can ever operate until office found by a court of competent jurisdiction?
I have not appealed to these to show that our Government has the arbitrary power over the citizen which is held by the absolute Powers of Europe, for it is not so. I appeal to these to show that, during all time, and in every truly Sovereign State which has the power to demand allegiance, and to confer citizenship, and to define its duties, whether that State be, like Austria and Russia, an absolute monarchy, or, like England, a limited one, or, like Switzerland and Rome, republics, they could also withdraw the same citizenship from them who per
formed none of these duties.
which will give a just idea of the character and legal effect of all.
Two years after the treaty of peace of 1783, Georgia and South Carolina passed laws forever disfranchising them who had made war against the United States; and Sir George Hammond, the British minister, in his elaborate debate with Mr. Jefferson as to these laws disfranchising and impoverishing these rebels, shows that these laws were in force in a majority of the States ten years after that treaty, and long after the adoption of our present Constitution. In 1787, Massachusetts passed a law which, for three years, excluded from voting, holding office, teaching school, and keeping hotel, all citizens of Massachusetts who had the year before engaged in the insignificant rebellion against Massachusetts which was headed by Daniel Shays. Those who had fired on or had wounded any citizen were forever deprived of citizenship, as was Shays and his principal offiAfterward some of them who had fired upon citizens were permitted to recover their citizenship by proving penitence and loyalty, and by taking an oath of allegiance.
Mr. HALE. Will the gentleman permit again a single question?
Mr. SHELLABARGER. Yes, sir.
Mr. HALE. Did not every one of those laws to which the gentleman has referred involve the trial, conviction, and sentence of the persons thus disfranchised before a court of competent jurisdiction?
The two powers of conferring and withdrawing are in their nature inseparable. That would be a preposterous state of national sovereignty that can define by general law what kind of faith, allegiance, and duties done shall alone admit one to become a citizen and to demand his Government's protection, and yet that Government be utterly powerless to declare by similar law that the citizenship had ceased when all the duties of citizenship were utterly discarded and incorrigible treason was put in their place.
THE UNITED STATES.
I now assert that this very power in question, of withdrawing and withholding either some or all of the rights of citizenship from them who renounce their allegiance, has been exercised by your Government ever since it was in existence, and by the States before it was a Government. There was not a State in which during the war of the Revolution laws were not passed forfeiting rights of citizenship of them who adhered to the enemies of the country. The dates and titles of these acts will be found in 1 American State Papers, page 198. I cannot here refer to more than one or two,
Mr. HALE. Then will the gentleman tell me how, under those laws, the fact of having been engaged in such rebellion was ever to be ascertained?
Mr. SHELLABARGER. Now, Mr. Speaker, I will state, in answer to that question, that a very proper provision in a law upon this subject, in execution of the power foravhich I am contending, would be to provide by law that wherever one who, coming apparently within the description of those proscribed, claimed to be entitled to exercise the prohibited right he should be permitted to establish his right by proofs.
Now, then, I go on with my argument; and the gentleman will see as I proceed how unimportant are the suggestions he makes.
The power of these States to pass these laws forfeiting the right to vote, and these other rights, was, I believe, never disputed in this discussion with Mr. Jefferson by the British Government. Many of these laws were long after the treaty. By both the British and American interpretation of that treaty they who were in the United States at its date, and who adhered to our Government, thereby became citizens of the United States. These acts of the State Legislatures, especially that touching Shays's rebellion, turned them into disfranchised men who never adhered to any foreign Government, never were out of the United States, and who, but for these laws, would have been citizens of the United States. And yet some of these laws, without any trial or conviction, forever disfran chised them. Some of these laws punished particular individuals by name for specified offenses. These were acts of attainder or of pains and penalties, and such the United States may not now, owing to an express constitutional provision, pass. But such as provided generally for forfeiting citizenship where men
had renounced their allegiance, were not bills of attainder, are not prohibited by our Constitution, and are a most ordinary and just exercise of a sovereign power which was and is conceded by all our history to have been possessed by every one of the colonies. And shall it be endured now, that this great nation shall hold less power over national allegiance when it is voluntarily discarded by a traitor than these colonies had?
These acts all expressly provide that no person proscribed by any of these State laws to which have ever be admitted to become citizens of the United States without the assent of the States.
Mr. HALE. I take a deep interest in the gentleman's argument, and if he does not take offense, I would like to ask him a question. Mr. SHELLABARGER. I will yield to the gentleman with pleasure.
Mr. HALE. As I understand the drift of the gentleman's argument now, it is that Congress may lawfully enact to-day forfeiture of citizenship as a penalty for having been engaged in the rebellion against the Government. I believe I am correct in that understanding. Then I submit whether there is not another difficulty in the case, which is simply this: that by another express provision of the Constitution, which he has omitted to notice, he is again precluded, for the imposition of a new penalty, for any crime whatsoever, committed before the passage of the act is expressly and directly within the definition of an ex post facto law; and whether it is not thereby forbidden by the Constitution of the United States, just as effectually as bills of attainder. I do not propose to argue or elaborate my suggestion. If to-day we may by legislation enact the penalty of the loss of citizenship for rebellion or disloyalty, may we not by the same operation enact another or different penalty before the passage of the act?
Mr. SHELLA BARGER. Mr. Speaker, the gentleman knows, of course, that no law is ex post facto which is not both a criminal law and one punishing an act in a manner in which it was not punishable when it was done. But he forgets what has so abundantly appeared already in what I have said, that the high obligations of citizenship are not created by criminal laws, but arise out of that reciprocal, civil, and political contract of the common and international law which these denominate allegiance," "the bond," "the ligament." He forgets that the obligations of these and the penalties which their violation brings to the violator, all existed when these men discarded their allegiance, and that the forfeiture, on their part, of rights then accrued. For this Government now to accept and by law declare that forfeiture thus already accrued, is neither attaching new penalties to an act nor punishing crime, as such, at all. The obligations of citizenship are as old as the Government; as old as any Government. They arise not at all out of any criminal law. Their violation is a violation of civil and political obligations, and works a forfeiture of the right to demand national protection and rights, as well where there is no law defining or punishing the act, either as treason or as any other crime; and also as well where the act of forfeiture is no defined crime (such as abandoning country to avoid defending it) as where it is treason. When, through Mr. Webster, this Government withheld from Thresher the rights of an American citizen to demand the Government's protection, and thus forfeited the highest rights of the citizen, the Government did not thereby impose new or ex post facto punishment, because that no law existed prohibiting the acts (which worked the forfeiture) of going abroad and engaging in the Lopez expedition. Of course these forfeitures by act of law ought never be resorted to except where the abjuration of allegiance is open and notorious; and then should not be extended to forfeiture of property, but only, as in Thresher's case, to withholding political power and protection.
But, sir, I go on. From the day of its birth to this hour your Government has by acts of Congress both asserted and exercised this identical power for which I argue. These acts bear date respectively April 14, 1802, and March 29, 1790, and were signed by Washington and
These acts of Congress are not pointed to as cases where the acts themselves first worked the forfeiture, for that was done by the State laws proscribing the traitors. But I do refer to them for the supremely important purpose of showing that it has stood for seventy-seven years as an unquestioned and unreversed judgment of the nation, that it is right and wise perpetually to deprive, by mere act of law, and without trial or conviction for any offense, men who are open and notorious rebels of all such rights and powers of citizenship as the public safety requires to be withheld or forfeited; and this, too, as against natives of this country who have never left it.
These laws were passed by the men who made your Constitution. They have remained upon your statute-book, and have been enforced throughout every day of your national existence. To-day they remain there, standing almost alone now, of all the statutes of our natal era, witnesses of that strange sagacity, genius, and power which conceived and planned and reared the awful structures of the Republic, and which started that Republic down through the ages upon its career of power and grandeur. There stand these statutes yet, like sentinels with swords of flame at gate of Eden, guarding the entrance to our national fellowship and power; and like monuments, too, of the wisdom of the Government's authors. These monuments of the nation's origin are now covered with the gray mosses of near a hundred years, and three generations of the nation's children have passed to the dead beneath their shade. And still they stand there to-day, their foundations resting upon the granites, justice and law, upon which lie, in eternal repose, the deep foundations of the Republic itself. And all over them, from base to summit, is written in characters as plain as those traced by the fingers of a man's hand over against the candlestick upon the plaster of the wall of the King's palace," that truth, upon which all human government is founded, and upon which stands the government of God, that true allegiance and fidelity to Government is the only foundation of Government that can be; and that men fall from citizenship by the same "sin by which fell the angels.'
But, Mr. Speaker, I quit this presentation of the authorities by pointing my countrymen, and you, fellow-members of this House, to the last and most terrible years of your life. In those fearful events which have been around you, and when good men had forgotten the partisan in the patriot, and when they were grasping with the awful energies of despair for the wisest and best means of national existence, you have again and again reenacted these principles of the Revolution; and your acts of Congress bear the now immortal signature of your honored and lamented President. Oh, how lamented now! By mere acts of law you have confiscated lands; you have deprived of power to hold office; you have deprived of the power to vote; and have wholly forfeited every quality of citizenship. The act of March 3, 1865, is an exercise of the very right of forfeiture without trial for which I argue. That act provides that
"All persons who have deserted the military or naval service of the United States"
And who do not report for duty within a prescribed time
"shall be deemed and taken to have voluntarily relinquished and forfeited the rights of citizenship, and their right to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States or of exercising any right of citizenship."
law will stand as a practical assertion, exercise, and application of all the national powers of self-preservation for which I contend.
Mr. Speaker, I here quit my great theme, recommending to my fellow-members and to this great people to complete the argument upon the elements and forces of which I have scarcely entered. But, sir, even in what I have so poorly said, the right of this nation to enact a law to exclude from the high powers of the nation them who, by treason, have become its enemies, and not its citizens, is seen to be established, nay, sir, irresistibly established, by the very nature of all government; by the combined forces of reason, justice, and public virtue; by the very terms, nature, and origin of citizenship; by the paramount allegiance owed by the people to the Government of the United States as the "supreme law of the land;" by the precepts of the international law; by the usages of all other civilized nations, and by the unvarying practices of your own.
Sir, if indeed it be so that all these are not enough to establish as among the powers of our great and beloved but most injured Government, the merest right of self-defense, and if indeed the chief architects of that ruin of States, which lies there before you yet, almost unalleviated; if the chief actors of this crime, a crime whose infernal shades and glares are, in all the long future, to at once darken and show all that is bad in human history; if all these chiefs of human infamy, with blood-drops dripping from every finger's end, and from "each particular hair;" if these men, unrepentant, unaneled, "no reckoning made," may stalk back, not to ordinary rights of citizenship merely, but to the higher, grander powers of electors of this mighty nation; nay, may come here into the very sanctuary of the nation's life, and to liberty's last retreat, and may come, too, as the rulers of the Republic, and all this in defiance of all power in the Government to forbid it, then, sir, have the precepts of all reason, all law, all morality, all history, all experience, and all common justice been discarded in the making of your Government; and then I turn away from looking at my country's future in anguish, in despair of the Republic.
But, Mr. Speaker, it is not so. Your coun try and mine has the power to be, and the Republic will live.
Mr. SCOFIELD obtained the floor. Mr. HALE. I ask the gentleman from Pennsylvania to yield to me for about five minutes. I do not think I will occupy more than that.
Unless somebody shall hereafter appear in the world strong enough to show that to desert our armies is a higher offense against the duties of citizenship and a plainer relinquishment and forfeiture of its rights than four years of war against the nation's existence is, then this
Mr. SCOFIELD. I yield to the gentleman on condition that I do not lose my right to the floor.
Mr. HALE. I do not wish, Mr. Speaker, to put myself in the position of the immortal gentleman to whom Goldsmith alluded in his "Retaliation," who only thought of convincing while others thought of dining, but I do beg the privilege of calling the attention of the gentleman who has just taken his seat, and who has made an argument which for elaborateness, learning, and fairness I have seldom heard equaled in this House, and in which I have been greatly interested, to one or two points.
In regard to the proposition I made that the legislation which he proposes partakes of the nature of an ex post facto law, I submit it is not an answer to say simply, that section has nothing to do with the case. It is proposed by him, as a penalty of treason and rebellion, that these men shall, by legislation of Congress at this day, be deprived of certain rights. I say that by all legal definition it is an ex post facto law and nothing else.
Another point; in regard to the statutes passed by Congress since the rebellion, the act of 1864, and others to which he has alluded, I submit to the gentleman, and I know his own fairness will lead him to the same conclusion, that every one of those laws was prospective in its operation and not retrospective or retroactive. The law of 1864, which the gentleman read, about deserters, in which he emphasized the word
their actual traveling expenses to their homes; which was referred to the Committee on Military Affairs and the Militia.
"those who have deserted or may desert"-has that word inserted in it for the express purpose of protecting it from the character of a retroactive law. It speaks of those who shall not return to their allegiance by a day fixed, making the prospective commission of the crime of desertion as the thing to be punished, and not the past offense.
A single word more and I have done. I believe I hold the crimes of rebellion and treason in as great detestation and horror as it is possible for a man to do. But there is one thing that I dread in this country more than armed rebellion, more than treason, and that is, to see true, honest, loyal, strong men of the nation, like the gentleman from Ohio, [Mr. SHELLABARGER,] in their zeal to put their condemnation upon the crime of treason, override, or seek to override, the plain and palpable provisions of the Constitution.
I regret that I am not prepared to go through with the gentleman's argument and point out where it seems to me he has departed from the true constitutional ground. I hope to be able to make that effort at some early day. Mr. SCOFIELD resumed the floor, but yielded to
Mr. WARNER, who moved that the House do now adjourn.
The motion was agreed to; and accordingly (at five o'clock and twenty-five minutes p. m.) the House adjourned.
The following petitions, &c., were presented under the rule and referred to the appropriate committees: By Mr. DELANO: The petition of L. C, Vernon, M. D., and others, of Muskingum county, Ohio, asking a revision of duties on foreign drugs and medicines.
Also, the petition of William Wolffe, and Henry Howe, and 200 others, citizens of Ohio, praying an increased duty on foreign wools, and the protection of the wool-growers of the country.
By Mr.WILLIAMS: The petition of wool-growers of Butler county, Pennsylvania, asking for increase of duty on foreign wools.
MONDAY, April 23, 1866.
Prayer by the Chaplain, Rev. E. H. GRAY. The Journal of Friday last was read and approved.
The PRESIDENT pro tempore laid before the Senate a message from the President of the United States, transmitting, in answer to the resolution of the Senate of the 8th of January last, a communication from the Secretary of War, covering copies of the correspondence respecting General Order No. 17, issued by the commander of the department of California, and also the Attorney General's opinion as to the question whether the order involves a breach of neutrality toward Mexico; which was ordered to lie on the table, and be printed.
PETITIONS AND MEMORIALS.
Mr. SUMNER. I offer the petition of Mary Johnson, of Norfolk, in Virginia, in which she sets forth sundry losses growing out of the rebellion, and asks that Congress will take her case into consideration and provide some indemnity for her. I move the reference of the petition to the Committee on Claims.
The motion was agreed to.
He also presented a petition of citizens of Michigan, praying for a grant of land to aid in the construction of a railroad from Saginaw to some point on Lake Michigan, in the direction of Bay de Noquette, and in the Grand Traverse region; which was referred to the Committee on Public Lands.
Mr. MORGAN. I have received a petition from the Chamber of Commerce of the State of New York, in which they express the opinion that the bill (S. No. 233) now before the Senate of the United States, being a bill in relation to the appointment of enlisted persons at the Naval Academy, and for other purposes, is, in the judgment of the chamber, calculated to improve the character and efficiency of our seamen. They therefore respectfully ask Congress to enact that bill into a law. I ask its reference to the Committee on Naval Affairs. It was so referred.
Mr. HOWE presented a petition of citizens of Columbia county, Wisconsin, praying for an increase of the duties on wool imported into this country; which was referred to the Committee on Finance.
He also presented a memorial of the common council of the city of Green Bay, a petition of citizens of Green Bay, and also a petition of citizens of Appleton, in the State of Wisconsin, praying for the improvement of the harbor at. the mouth of Fox river, in that State; which were referred to the Committee on Commerce.
Mr. HENDRICKS presented a petition of mechanics and laborers of Indianapolis, Indiana, setting forth that the present tariff does not afford them sufficient protection, and praying that the duties on imports may be increased so as to afford better protection to American industry; which was referred to the Committee on Finance.
Mr. VAN WINKLE presented the petition of John Gordon, praying compensation_for services rendered as messenger in the Post Office Department; which was referred to the Committee on Post Offices and Post Roads.
Joseph Nock to the Court of Claims. The bill was read and passed to a second reading, and the report was ordered to be printed.
PUBLIC LANDS IN NEVADA.
Mr. STEWART. I am instructed by the Committee on Public Lands, to whom was recommitted the bill (S. No. 215) concerning certain lands granted to the State of Nevada, to report it back with amendments. I ask for the present consideration of the bill; it is a short one, and is approved by the committee and by the General Land Office.
By unanimous consent, the bill was considered as in Committee of the Whole.
The first amendment reported by the Committee on Public Lands was so to amend the first section as to make it read as follows:
That the appropriation by the constitution of the State of Nevada to educational purposes of the five hundred thousand acres of land granted to said State by the law of September 4, 1841, for purposes of internal improvement is hereby approved and confirmed. The amendment was agreed to.
The next amendment was in the third line of the second section to insert the word
"hereby" before "granted;" so as to make the section read:
SEC. 2. And be it further enacted, That land equal in amount to seventy-two entire sections, for the establishment and maintenance of a university in said State, is hereby granted to the State of Nevada. The amendment was agreed to.
The next amendment was to strike out the words "anno domini" in the second line of the third section, so as to make that section read as follows:
SEC.3. And be it further enacted, That the grant made by law of the 2d day of July, 1862, to cach State, of land equal to thirty thousand acres for each of its Senators and Representatives in Congress, is extended to the State of Nevada: and the diversion of the pro
ceeds of these lands in from the agriculture and mechanic arts to that of the theory and practice of mining is allowed and authorized without causing a forfeiture of said grant.
The amendment was agreed to.
The next amendment was to strike out the fourth section of the bill, and in lieu of it to insert the following:
SEC. 4. And be it further enacted, That the President of the United States, by and with the advice and consent of the Senate, shall be, and he is hereby, authorized to appoint a surveyor general for Nevada, who shall locate his office at such place as the Secretary of the Interior shall from time to time direct, whose
compensation shall be $3,000 per annum, and whose duties, powers, obligations, responsibilities and allowances for clerk hire, office rent, fuel, and incidental expenses shall be the same as those of the surveyor general of Oregon, under the direction of the Secretary of the Interior, and such instructions as he may from time to time deem it advisable to give him.
The amendment was agreed to.
The next amendment was to strike out the fifth section, and in lieu of it to insert the following:
SEC. 5. And be it further enacted, That in extending the surveys of the public lands in the State of Nevada, the Secretary of the Interior may, in his discretion, vary the lines of the subdivisions from a rectangular form, to suit the circumstances of the country; but in all cases lands valuable for mines of gold, silver, quicksilver, or copper shall be reserved from sale. The amendment was agreed to.
The next amendment was to add the following as a new section:
SEC. 6. And be it further enacted, That until the State of Nevada shall have received her full quota of lands named in the first, second, and third sections of this act, the public lands in that State shall not be subject to entry, sale, or location under any law of the United States or any scrip or warrants issued in pursuance of any such law except the homestead act of May 20, 1862, and acts amendatory thereto, but shall be reserved exclusively for entry and sale by the said State for the period of two years after such survey shall have been made.