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Mr. BRANCH, a member of the select committee of five, to whom was
referred the President's message of the 3d of January, not concurring with the majority of the committee, by leave submits to the House the following views in relation to the bill to be entitled "An act further to provide for the collection of duties on imports."
The first section of the bill provides that, whenever, by reason of any unlawful combination or other obstruction, it shall become impracticable to collect the revenue at any port of entry, it shall be the duty of the President to make proclamation of the fact.
The second section provides that, if any vessel not engaged in the coastwise trade shall thereafter attempt to enter such port, it shall be seized by the revenue officers, "and the master or other person having the charge or command of such ship or vessel shall forfeit, for every such neglect, refusal, [to exhibit his manifest,] or offence, the sum of five hundred dollars, in addition to the sum of five hundred dollars imposed by section twenty-six of the act of March 2, 1799 ; and such ship or vessel, together with her tackle, furniture, apparel, and cargo, shall be subject to seizure and forfeiture.
The third section imposes the same penalties and forfeitures on master and owner of any vessel which shall depart to a foreign port or place without delivering a manifest and obtaining a clearance from the customs officer.
The fourth section authorizes the taking of such vessel into any port of entry in the United States, and confers on the circuit or district court of the district in which such port of entry is situated “the same power and jurisdiction over said ship or vessel, tackle, furniture, apparel, or cargo, as if the same had been seized within the collection district into which the said ship or vessel, tackle, furniture, apparel, or cargo shall be so taken."
The fifth section authorizes the President to use the vessels of the navy in aid of revenue cutters in executing this law.
The sixth section gives to the Secretary of the Treasury the same power to mitigate or remit penalties as he has in reference to others of a similar character under existing laws.
The seventh section provides that, whenever the President shall issue his proclamation declaring that the obstruction in any port has ceased, then this act to be inoperative as to that port.
It is apparent, on the most cursory reading of the bill, that the title does not correctly set forth its character and objects. The object, as declared in the title, is “to provide for the collection of duties on imports,” and the means adopted in the body of the bill is preventing any goods from being imported which, by law, are subject to pay duties. There is so obvious an incompatibility between the proposed ends and the chosen means, that we may well assign to the bill an intent not named in the title.
It is one of a system of measures by which it is intended to punish certain States for asserting and endeavoring to maintain their independence, and to coerce them into obedience to the federal authority.
Its provisions are war-cruel war-upon the citizens of the seceding States, and must be so treated, especially in connession with other measures constituting a complete system of coercion and conquest which it is proposed by the majority to enact.
Its means are to blockade their ports, and render unavailable to them even the limited facilities nature has given to those States for trade and intercourse with the rest of the world.
In modern times, and amonyet Christian nations, it is an established maxim that a belligerent may inflict the largest amount of injury on the enemy nation, but must impose the least amount of distress on private individuals. It is a beneficient maxim, alike dictated by chivalry and by humanity. During the war of the revolution our forefathers were admitted to be rebels, and did not deny that their rebellion, if unsuccessful, would be treason. But private citizens engaged in peaceful avocations were not warred upon, even whilst their homesteads were in possession of British troops. So again in the war of 1812, large portions of our territory were invaded by the enemy's troops, but no attempt was made to ruin or distress private citizens. It is to be left to the government of the federal Union to war upon a portion of the States of the Union, and to subject them to its authority, by inflicting ruin and distress upon private citizens, whilst carefully placing itself out of reach of guns, sabres, and other usual and legitimate weapons of civilized warfare.
Other nations discriminate between friends and enemies, even in an enemy's country. We alone are to wage indiscriminate war upon friend and foe, dealing out to the most active promoter of secession, and to the most devoted friend of the Union, equal measures of our vengeance. Nor is this all. If South Carolina is rebellious, large portions of Tennessee and North Carolina, whose foreign supplies are derived through Charleston, must suffer equally with South Carolina; and if Louisiana refuses to submit to federal authority, the loyal States on the Upper Mississippi and its tributaries must pay the penalty when New Orleans is blockaded.
To the United States of America belongs the distinguished honor of having propounded to the nations of the world, as a new article in the international code, that private property on the high seas, not contraband of war, shall no longer be subject to capture. Shall it be reserved for what remains of that once glorious confederacy to inculcate by its example that war is to be confined to invading private property, and that nations are to be reduced by distressing individuals, and destroying private fortunes, whilst no attacks are made on the national organization ?
Already we may see foreshadowed in the proposed measure some of the barbarities and monstrous horrors of civil war.
It is pertinent to inquire whether the proposed commercial arrangements will probably inflict such wide-spread ruin and such unbearable distress on the citizens of the offending States as to reduce them to subjection.
This depends on circumstances, about which we are not fully informed.
I. If it is true, as alleged by well-informed persons at the north, that the secession movement has been originated and pushed forward at the south by peckless adventurers who have no property and but little stake in society, it is evident that a war upon property and domestic comforts will not reach them, but will only add to the sufferings of those who, as is alleged, are already the victims of an excitement they cannot control, and are afraid to resist. On this theory the remedy will tend to aggravate the disease by increasing the disorders in society and completing the destruction of values by which reckless adventurers may profit.
11. The bill sedulously guards against exportations from the infected ports to foreign countries; and this is the feature on which most reliance is placed for distressing and subduing the seceding States. To render the blockade effectual, the revenue cutters are authorized to examine vessels and cargoes going out of those ports, and forfeitures are inflicted for violation of the law. This system of police may be practiced towards vessels under our own flag wherever they may be overhauled, but except within a marine league of our own shores, we cannot visit or search any vessel sailing under a foreign flag so as to ascertain whether she has on board contraband cargo, or is engaged in a contraband voyage. This is the doctrine as to the right of visit and search which we ourselves have insisted on and fought for, and caused to be incorporated into the law of nations, at least so far as we are concerned ; and foreign nations will not fail to hold us to it when it will operate favorably to them. By employing vessels under foreign flags to carry their cotton, the citizens of the beleaguered States will avoid all the penalties of the law, unless the vessels should be overhauled within three miles of the shore. On the low, sandy coasts of the southern States the shallows extend so far out seaward that a belt of three miles affords very insecure cruising ground for even the smallest sea-going vessel ; and favored by the vicissitudes of wind and weather, and with the advantage of being able to choose their time of sailing, few vessels would be overhauled and captured within that distance. The principal effect of the law might be to transfer the profits of carrying the cotton crop from American to British ship-owners.
This is not the sole embarrassment we may encouter. Nearly five millions of souls in the British Isles are directly and indirectly dependent on a regular and sufficient supply of raw cotton for the means of subsistence. Cut off this supply, and the British government must feed or fight much the larger portion of this five millions. It may reasonably be expected that it will connive at any evasion of the provisions of a law the enforcement of which would entail upon its subjects such serious evils, and her own cruisers would probably have orders to pass merchantmen laden with cotton, whilst the cruisers of other nations would have no right to go on board, and consequently no means of ascertaining whether they are provided with clearance papers or not.
But Great Britain might not be content to rely for a commodity so essential to her on the successful evasion of our laws by merchantmen,
and might insist that we abide by another great principle of international law to which this government is fully committed, namely: that a blockade to be respected must be maintained by an adequate force. If she should do so, we could not contend that a few revenue cutters, with an armament on each scarcely more formidable than a few rifles of approved construction, is a force adequate to blockade two thousand miles of sea-coast, and to deny to the world its supply of raw cotton.
Not the least noticeable feature of the policy which this bill is to inaugurate is, that whilst the commerce of one portion of the States is nursed and fostered in every possible mode of bounties and special favors, that of another portion is to be utterly annihilated. The right to raise a revenue by imposing duties on imports is made to yield rich protection to the industry of favored States, so that to them the commercial and revenue powers of the federal government are as genial showers, blessing them with wealth, prosperity, and happiness: the same powers to the other States are to be a poisonous sirocco, drying up the fountains from which they draw their subsistence, blasting their prosperity, and consuming the fruits of their toil. Northern legislatures may pass personal liberty laws,” nullifying the laws of Congress ; northern governors may re use, in palpable and acknowledged violation of the Constitution, " to deliver up on demand” fugitives from justice; and northern mobs may, with impunity, rescue fugitives from labor out of the hands of officers bearing the commission of the United States : in the midst of it all, every change in the revenue laws adds to the favors and bounties heaped upon the offending States. But let a southern State murmur discontent or raise an arm to resist, and forth with the same revenue and commercial powers are found to be a whip of scorpions, with which they may be lashed into silent acquiescence and dutitul obedience.
Having commented on the injustice and impolicy of the proposed bill, it will now be considered with reference to its constitutional bearings.
Has Congress power to coerce a State, or, to state the question with more precision and more in the terms of the bill, has the Constitution conferred on Congress the right to carry on hostilities, either legislative or military, against a State, or all the people of a State, because obstructious and combinations, however formidable, prevent the execution of the laws in that State?
The question will be considered on the hypothesis most favorable to the existence of the right; that is to say, on the hypothesis that the State is still a member of the confederacy. If the State has been absolved from its federal obligations, and its citizens released from their obligations to obey its laws, by a “palpable, deliberate, and dangerous infraction” of the Constitution, the question, of course, does not admit of argument.
The undersigned has not heard any one contend that it is the right of the federal government to make war upon a State. Even in a case in which the Constitution, or Congress in pursuance of the Constitution, imposes a positive duty on a State, and the State neglects or refuses to perform it, no one pretends that Congress can march an army into the State or blockade its ports to enforce obedience, nor can the same thing be done if a State does that which the Constitution expressly forbids.
If a State cannot be held to this responsibility for its own acts of disobedience, much less can it be held to it for the acts of disobedience of its individual citizens.
But it is contended by those who hold that the federal bond of union is indissoluble, and who do not admit that a State can, in any case, declare its citizens absolved from their obligation to obey, that the laws must be enforced, under all circumstances, and by whatever amount of force may be necessary, against each and every citizen. If an individual commits an infraction of a federal law, this class of persons would not allow him to escape on a plea that he is not bound to obey, but would proceed to try and punish him as though he had not claimed absolution. But before proceeding to punishment, they would give him the benefit of all the provisions of the Constitution, especially of those incorporated into it from Magna Charta, and constituting the boast and bulwark of Anglo-Saxon liberty.
In this theory of the Constitution and of the nature of the government the bill proposed by the committee can find no sanction. So far from being in execution of the laws of the Union, it abrogates those very laws the enforcement of which is its professed object. Instead of compelling individuals to pay duties on imports, it puts it out of the power of those who wish to pay duties to do so. By its enactment into a law large numbers of persons, including those who are willing to pay all the duties exacted by the government, will be subjected to direful calamities; their property will be wasted and their means of subsistence will be destroyed, not for any refusal on their part to obey the law, but because of a governmental policy adopted by their State, over which they had no control. Charged with no violation of law, they will be summarily punished for disobedience, without “public trial by an impartial jury," without “ being informed of the nature and cause of the accusation," without being confronted with the witnesses against them,” without “ having compulsory process for obtaining witnesses in their favor," and without is having the assistance of counsel for their defence.
By its operation millions of dollars of the property of peaceful and industrious citizens, against whom no charge is made, and to whom no opportunity will be afforded to show the alacrity with which they will obey all laws, will be stricken down and destroyed. And yet the Constitution guarantees to every citizen the right to trial by jury " where the value in controversy shall exceed twenty dollars.
Thus the blow, which can be legitimately aimed only at the guilty, falls with equal weight upon the innocent, and both guilty and innocent are punished without allowing to them the benefit of those safeguards which the Constitution secures even to the vilest malefactor. In the execution of the laws hostile force can only be used against those individuals who will not otherwise obey them. Nine hundred and ninety of a thousand citizens in a given community may willingly obey the law, and force can only be used against the one who disobeys; nor can he be punished otherwise than according to the law and the Constitution. So, if but one obeys, no force can be used against him;