The advocates of the theory that the rebel States are foreign enemies,
and may be treated according to all the laws of war with foreign
nations, seek support for their views in the decision of the Supreme
Court rendered last March in the Hiawatha and other prize cases. The
question was raised in those cases whether we had the right to
confiscate the property of persons resident in the rebel States who
might be non-combatants or loyal men. The Court decided that 'all
persons residing within this territory (the rebellious region) whose
property may be used to increase the revenues of the hostile power, are
_in this contest_ liable to be treated as enemies, _though not
foreigners_.' This decision defines the _status_ of persons in the
rebellion region _bello flagranti_, or while the war lasts. It calls all
persons within that region enemies, because their 'property may be used
to increase the revenues of the hostile power.' Could their property be
so used after the defeat of the rebellious power? The decision does not
assume to determine that question. Nor could it come within the province
of the Court to decide what might at some future time be the condition
and _status_ of loyal men at the South.
It is said that in accordance with this decision all persons in the
rebellious States are to be treated as alien enemies, and the deduction
is hastily made that as to them all the Constitution, like any treaty,
or compact, with foreign States, is, by the fact of rebellion, annulled.
Aside from the fact that the Constitution is not a compact, and when
rightly understood cannot be confounded with a compact, such a
conclusion is at war with that essential principle of our Government,
which denies to any body of men the right to absolve their unwilling
fellow citizens from their allegiance, that is, denies the right of
secession. Such citizens, whose will is overpowered by force, have never
proved false to their fealty. The Constitution is still theirs; they are
still parties to it; and their rights are still sacred under it.
That no such conclusion is warranted by the decision above referred to,
will still further appear from the following considerations:--Our
dealings with foreign nations are regulated by the principles of
international law, and, according to that law, war abrogates all
treaties between belligerents, as of course. But international law
supposes the belligerents to be of equal and independent sovereignty.
This is the very point in dispute in our contest with the rebellion. We
deny to the rebellion the attribute of independent sovereignty, as we
deny it to every one of the States included in the rebellion. Our
Constitution is, in no sense, a treaty between sovereign States. It is
an organic law, establishing a nation, ordained by the people of the
whole country. Therefore, only such persons under it as voluntarily wage
war upon it, can be strictly called enemies: only such persons, on the
defeat of the rebellion, will be liable to be treated as enemies. As to
all men who have not participated in the rebellion, it is not easy to
see how war, rebellion, usurpation, or any power on earth can destroy
their rights under the Constitution.