The Maryland Confederate Monument at Gettysburg. 431
legally enemies to all those on the other side, and no connection or communication is lawful between them unless by permission of their respective authorities. All business ceases, all compacts are dissolved between them, and they are as if they existed on separate planets. Therefore if the war between the States was determined to have been rebellion, every citizen of the Confederate States who had aided it would have been guilty of treason and liable to the law for his actions.
All official acts done by civil officers of the Confederate govern- ment, or of the States, judgments of courts, protests of commercial paper, probate of wills — every act necessary in civilized society to be done by officials — would have been void, and everything would have been in chaos. But if that war was held to be civil war, with all the legal consequences of public war, then there was no trea- son and no penalty for it — no personal responsibility for acts of law- ful war. All the transactions of the governments, city, county and State, would be recognized and affirmed, and society would go on undisturbed in the status of peace, which would ensue upon the ces- sation of war.
I prepared and delivered the first argument, I believe, which was delivered anywhere, at the October term, 1868, before the Court of Appeals of Maryland, to establish the position that the contest had been war and not rebellion, and had produced the legal consequences that result from war, and that, therefore, we had not been rebels nor traitors, and could not, under the law, be held responsible as such. The same views were afterwards pressed upon the Chief Justice of the Supreme Court of the United States in the proceedings against ex-President Davis by Charles O'Conor, and Mr. "Davis was never tried.
Nor was any man ever tried anywhere in any Federal Court for treason. The law of the United States, as declared by the executive and judicial departments for eighty years, had settled the fact that resistance by any great body of people, controlling a large territory for a considerable time against the government which they were en- deavoring to throw off, was war and not rebellion, and must be treated as war, with all the legal consequences of war. As O'Conor said, " Washington might have failed, Kosciusko did fail," but neither of them could have been treated, under the civilized code of nations, as traitors. The revolutions of the South American republics and of Greece were so treated by the Federal government. Mr. Webster, in his Bunker Hill oration, in 1825, had declared that the battle of
