War of the Rebellion: Serial 119 Page 0044 PRISONERS OF WAR AND STATE, ETC.

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The war that needs such auxiliaries carries infallible marks to distinguish it as an unholy and unchristian war.

The answer to these doctrines of military necessity is to be found in that title of the same code which relates to the subject of retaliation. It is not at all surprising that those who would make a law giver of military necessity should desire the abduction or dethronement of the rule of military retaliation, and so in this code retaliation is deprecated. A malignant, unscrupulous, revengeful enemy "leaves to his opponent no other means of securing himself against the repetition of barbarous outrage than is afforded by retaliation. " The Confederacy acknowledges the obligation to employ retaliation carefully and with circumspection. The infliction of merited punishment upon notorious offenders against law and humanity should always be characterized by a judicial moderation and temperance. It should not be employed as an instrument of cruelty or revenge, and should not be carried any further than to produce a thorough reformation of the offending nation.

To this extent the Confederate States have asserted their determination to resort to it. In the military orders of this Department, bearing date August 1, 1862, the military orders of General Pope, commanding the Army of the United States in Northern Virginia, were reviewed, and the mode and measure of redress, which practices of a similar nature would provoke, p[lainly declared.

Again, on December 24, 1862, the President of the Confederate States published his proclamation in reference to the military administration of Major General B. F. Butler. These public and authoritative expositions by the Confederate States of the laws and usages of war may be referred to as indicative of their temper and disposition that any practice on these institutes concerning necessity will incite.

The authorities who have issued Order Numbers 100 affect to be governed on of this war bylaws not prescribed by themselves, nor the offspring of their interest or passions, but which are derived from the usages of civilized nations, and have the sanction of the judgments of enlightened publicists. Nor do they openly contest the claim of the Confederate States to the full benefit of those laws.

The employment of a servile insurrection as an instrument of war is contrary to the usages of civilized nations, and the United States, under the counsel that prevailed in the better days of the Republic, would have regarded an attempt of the kind as dishonoring to the State or people who might be guilty of adopting it.

Since the existence of American Independence every one of its States recognized negro slavery asa legal relation within its limits, and its commercial population participated in the profits of the African slave-trade under the laws of the Union after the commencement of the present century. The ratio upon which representation in one of the branches of their Congress, and their direct taxes are apportioned, is settled with reference to the existence of a population of bondsmen within the limits of the Union.

The highest judicial tribunal has determined that slavery and the slave-trade are not contrary to the law of nations, and that the voluntary removal of slaves to a State where slavery does not exist does not prevent the renewal of the relation of master and slave on their return to the States of their domicile.

The diplomatic correspondence, the solemn treaties of the United States, show reclamations for the value of escaping slaves and of slaves abducted by a military force in time of war, and the recognition of that claim by the foreign nation. At this moment the Constitution and