MR. PRESIDENT,--If I can simplify this discussion, I shall feel that
I have done something towards establishing the truth. The chief
difficulty springs from confusion with regard to different sources of
power. This I shall try to remove.
* * * * *
There is a saying, often repeated by statesmen and often recorded
by publicists, which embodies the direct object of the war we are
now unhappily compelled to wage,--an object sometimes avowed in
European wars, and more than once made a watchword in our own country:
“Indemnity for the past, and Security for the future.” Such should be
our comprehensive aim,--nor more, nor less. Without indemnity for the
past, this war will have been waged at our cost; without security for
the future, this war will have been waged in vain, treasure and blood
will have been lavished for nothing. But indemnity and security are
both means to an end, and that end is the National Unity under the
Constitution of the United States. It is not enough, if we preserve the
Constitution at the expense of the National Unity. Nor is it enough, if
we enforce the National Unity at the expense of the Constitution. Both
must be maintained. Both will be maintained, if we do not fail to take
counsel of that prudent courage which is never so much needed as at a
moment like the present.
Two things we seek as means to an end: Indemnity for the past, and
Security for the future.
Two things we seek as the end itself: National Unity, under the
Constitution of the United States.
In these objects all must concur. But how shall they be best
accomplished?
The Constitution and International Law are each involved in this
discussion. Even if the question itself were minute, it would be
important from such relations. But it concerns vast masses of property,
and, what is more than property, it concerns the liberty of men, while
it opens for decision the means to be employed in bringing this great
war to a close. In every aspect the question is transcendent; nor is it
easy to pass upon it without the various lights of _jurisprudence_, of
_history_, and of _policy_.
Sometimes it is called a constitutional question exclusively. This is
a mistake. In every Government bound by written Constitution nothing
is done except in conformity with the Constitution. But in the present
debate there need be no difficulty or doubt under the Constitution.
Its provisions are plain and explicit, so that they need only to be
recited. The Senator from Pennsylvania [Mr. COWAN] and the Senator from
Vermont [Mr. COLLAMER] have stated them strongly; but I complain less
of their statement than of its application. Of course, any proposition
really inconsistent with these provisions must be abandoned. But if,
on the other hand, it be consistent, then is the way open to its
consideration in the lights of history and policy.
If there be any difficulty now, it is not from the question, but
simply from the facts,--as often in judicial proceedings it is less
embarrassing to determine the law than the facts. If things are seen
as they really are and not as Senators fancy or desire, if the facts
are admitted in their natural character, then must the constitutional
power of the Government be admitted also, for this power comes into
being on the occurrence of certain facts. Only by denying the facts can
the power itself be drawn in question. But not even the Senator from
Pennsylvania or the Senator from Vermont denies the facts.
* * * * *
The facts are simple and obvious. They are all expressed or embodied in
the double idea of Rebellion and War. Both of these are facts patent
to common observation and common sense. It would be an insult to the
understanding to say that at the present moment there is no Rebellion
or that there is no War. Whatever the doubts of Senators, or their
fine-spun constitutional theories, nobody questions that we are in
the midst of _de facto_ Rebellion and in the midst of _de facto_ War.
We are in the midst of each and of both. It is not enough to say that
there is Rebellion; nor is it enough to say that there is War. The
whole truth is not told in either alternative. Our case is double, and
you may call it Rebellion or War, as you please, or you may call it
both. It is Rebellion swollen to all the proportions of war, and it is
War deriving its life from rebellion. It is not less Rebellion because
of its present full-blown grandeur, nor is it less War because of the
traitorous source whence it draws its life.
The Rebellion is manifest,--is it not? An extensive territory, once
occupied by Governments rejoicing in allegiance to the Union,
and sharing largely in its counsels, has undertaken to overthrow
the National Constitution within its borders. Its Senators and
Representatives have withdrawn from Congress. The old State
Governments, solemnly bound by the oaths of their functionaries to
support the National Constitution, have vanished; and in their place
appear pretended Governments, which, adopting the further pretension
of a Confederacy, have proceeded to issue letters of marque and to
levy war against the United States. So far has displacement of the
National Government prevailed, that at this moment, throughout this
whole territory, there are no functionaries acting under the United
States, but all are pretending to act under the newly established
Usurpation. Instead of the oath to support the Constitution of the
United States, required of all officials by the Constitution, another
oath is substituted, to support the Constitution of the Confederacy;
and thus the Rebellion assumes a completeness of organization under the
most solemn sanctions. In point of fact, throughout this territory the
National Government is ousted, while the old State Governments have
ceased to exist, lifeless now from Rebel hands. Call it suicide, if
you will, or suspended animation, or abeyance,--they have practically
ceased to exist. Such is the plain and palpable fact. If all this
is not rebellion, complete in triumphant treason, then is rebellion
nothing but a name.
But the War is not less manifest. Assuming all the functions of an
independent government, the Confederacy has undertaken to declare
war against the United States. In support of this declaration it has
raised armies, organized a navy, issued letters of marque, borrowed
money, imposed taxes, and otherwise done all that it could in waging
war. Its armies are among the largest ever marshalled by a single
people, and at different places throughout a wide-spread territory they
have encountered the armies of the United States. Battles are fought
with the varying vicissitudes of war. Sieges are laid. Fortresses and
cities are captured. On the sea, ships bearing the commission of the
Rebellion, sometimes as privateers and sometimes as ships of the navy,
seize, sink, or burn merchant vessels of the United States; and only
lately an iron-clad steamer, with the flag of the Rebellion, destroyed
two frigates of the United States. On each side prisoners are made,
who are treated as prisoners of war, and as such exchanged. Flags of
truce pass from camp to camp, and almost daily during the winter this
white flag has afforded its belligerent protection to communications
between Norfolk and Fortress Monroe, while the whole Rebel coast is
by proclamation of the President declared in a state of blockade, and
ships of foreign countries, as well as of our own, are condemned by
courts in Washington, Philadelphia, New York, and Boston, as prize
of war. Thus do all things attest the existence of war, which is
manifest now in the blockade, upheld by judicial tribunals, and now in
the bugle, which after night sounds truce, indubitably as in mighty
armies face to face on the battle-field. It is war in all its criminal
eminence, challenging all the pains and penalties of war, enlisting all
its terrible prerogatives, and awaking all its dormant thunder.
Further effort is needless to show that we are in the midst of a
Rebellion and in the midst of a War,--or, in yet other words, that
unquestionable war is now waged to put down unquestionable rebellion.
But a single illustration out of many in history will exhibit this
double character in unmistakable relief. The disturbances which
convulsed England in the middle of the seventeenth century were
occasioned by the resistance of Parliament to the arbitrary power of
the Crown. This resistance, prolonged for years and maintained by
force, triumphed at last in the execution of King Charles and the
elevation of Oliver Cromwell. The historian whose classical work was
for a long time the chief authority relative to this event styles it
“The Rebellion,” and under this name it passed into the memory of
men. But it was none the less war, with all the incidents of war. The
fields of Naseby, Marston Moor, Dunbar, and Worcester, where Cavaliers
and Puritans met in bloody shock, attest that it was war. Clarendon
called it Rebellion, and the title of one of his works makes it “The
Grand Rebellion,”--how small by the side of ours! But a greater than
Clarendon--John Milton--called it War, when, in unsurpassed verses,
after commemorating the victories of Cromwell, he uses words so often
quoted without knowing their original application:--
“Yet much remains
To conquer still: Peace hath her victories
No less renowned than War.”[8]
The death of Cromwell was followed by the restoration of King Charles
the Second; but the royal fugitive from the field of Worcester,
where Cromwell triumphed in war, did not fail to put forth the full
prerogatives of sovereignty in the suppression of rebellion; and all
who sat in judgment on the king, his father, were saved from the
fearful penalties of treason only by exile. Hugh Peters, the Puritan
preacher, and Harry Vane, the Puritan senator, were executed as
traitors for the part they performed in what was at once rebellion and
war, while the body of the great commander who defeated his king in
battle, and then sat upon his throne, was hung in chains, as a warning
against treason.
Other instances might be given to illustrate the double character of
present events. But enough is done. My simple object is to exhibit this
important point in such light that it will be at once recognized. And
I present the Rebellion and the War as obvious _facts_. Let them be
seen in their true character, and it is easy to apply the law. Because
Senators see the facts only imperfectly, they hesitate with regard to
the powers we are to employ,--or perhaps it is because they insist upon
seeing the fact of Rebellion exclusively, and not the fact of War. Let
them open their eyes, and they must see both. If I seem to dwell on
this point, it is because of its practical importance in the present
debate. For myself, I assume it as an undeniable postulate.
* * * * *
The persons arrayed for the overthrow of the Government of the United
States are unquestionably _criminals_, subject to all the penalties of
rebellion, which is of course treason under the Constitution of the
United States.
The same persons arrayed in war against the Government of the United
States are unquestionably _enemies_, exposed to all the incidents
of war, with its penalties, seizures, contributions, confiscations,
captures, and prizes.
They are _criminals_, because they set themselves traitorously against
the Government of their country.
They are _enemies_, because their combination assumes the front and
proportions of war.
It is idle to say that they are not criminals. It is idle to say that
they are not enemies. They are both, and they are either; and it is for
the Government of the United States to proceed against them in either
character, according to controlling considerations of policy. This
right is so obvious, on grounds of reason, that it seems superfluous to
sustain it by authority. But since its recognition is essential to the
complete comprehension of our present position, I shall not hesitate to
illustrate it by judicial decisions, and also by an earlier voice.
A judgment of the Supreme Court of the United States cannot bind the
Senate on this question; but it is an important guide, to which we
all bow with respect. In the best days of this eminent tribunal, when
Marshall was Chief Justice, in a case arising out of the efforts of
France to suppress insurrection in the colony of San Domingo, it was
affirmed by the Court that in such a case there were two distinct
sources of power open to exercise by a government,--one found in the
rights of a sovereign, the other in the rights of a belligerent, or, in
other words, one under Municipal Law, and the other under International
Law,--and the exercise of one did not prevent the exercise of the
other. Belligerent rights, it was admitted, might be superadded to
the rights of sovereignty. Here are the actual words of Chief-Justice
Marshall:--
“It is not intended to say that belligerent rights may not be
superadded to those of sovereignty. But admitting a sovereign,
who is endeavoring to reduce his revolted subjects to
obedience, to possess both sovereign and belligerent rights,
and to be capable of acting in either character, the manner in
which he acts must determine the character of the act. If as a
legislator he publishes a law ordaining punishments for certain
offences, which law is to be applied by courts, the nature of
the law and of the proceedings under it will decide whether
it is an exercise of belligerent rights or exclusively of his
sovereign power.”[9]
Here are the words of another eminent judge, Mr. Justice Johnson, in
the same case:--
“But there existed a war between the parent state and her
colony. It was not only a fact of the most universal notoriety,
but officially notified in the gazettes of the United States.…
Here, then, was notice of the existence of war, and an
assertion of the rights consequent upon it. The object of
the measure was … solely the reduction of an enemy. _It was,
therefore, not merely municipal, but belligerent, in its nature
and object._”[10]
Although the conclusion of the Court in this case was afterwards
reversed, yet nothing occurred to modify the judgment on the principles
now in question; so that the case remains authority for double
proceedings, municipal and belligerent.
On a similar state of facts, arising from the efforts of France
to suppress the insurrection in San Domingo, the Supreme Court of
Pennsylvania asserted the same principle; and here we find the eminent
Chief-Justice Tilghman--one of the best authorities of the American
bench--giving to it the weight of his enlightened judgment. These are
his words:--
“We are not at liberty to consider the island in any other
light than as part of the dominions of the French Republic.
_But supposing it to be so, the Republic is possessed of
belligerent rights.…_
“Although the French Government, from motives of policy, might
not choose to make mention of war, yet it does not follow that
it might not avail itself of all rights to which by the Law of
Nations it was entitled in the existing circumstances.… This
was the course pursued by Great Britain in the Revolutionary
War with the United States.… Considering the words of the
_arrêté_, and the circumstances under which it was made, it
ought not to be understood simply as a municipal regulation,
but a municipal regulation connected with _a state of war_ with
revolted subjects.”[11]
The principle embodied in these cases is accurately stated by a recent
text-writer as follows.
“A sovereign nation, engaged in the duty of suppressing an
insurrection of its citizens, may, with entire consistency, act
in the twofold capacity of sovereign and belligerent, according
to the several measures resorted to for the accomplishment of
its purpose. By inflicting, through its agent, the judiciary,
the penalty which the law affixes to the capital crimes of
treason and piracy, … it acts in its capacity as a sovereign,
and its courts are but enforcing its municipal regulations. By
instituting a blockade of the ports of its rebellious subjects,
… the nation is exercising the right of a belligerent, and its
courts, in their adjudications upon the captures made in the
enforcement of this measure, are organized as Courts of Prize,
governed by and administering the Law of Nations.”[12]
The same principle has received most authentic declaration in the
recent judgment of an able magistrate in a case of Prize for a
violation of the blockade. I refer to the case of the _Amy Warwick_,
tried in Boston, where Judge Sprague, of the District Court, expressed
himself as follows.
“The United States, as a nation, have full and complete
belligerent rights, which are in no degree impaired by the fact
that their enemies owe allegiance, and have superadded the
guilt of treason to that of unjust war.”[13]
Among all the judges called to consider judicially the character of
this Rebellion, I know of none whose opinion is entitled to more
consideration. Long experience has increased his original aptitude for
such questions, and made him an authority.
There is an earlier voice, which, even if all judicial tribunals had
been silent, would be decisive. I refer to Hugo Grotius, who, by his
work “_De Jure Belli ac Pacis_,” became the lawgiver of nations.
Original in conception, vast in plan, various in learning, and humane
in sentiment, this effort created the science of International Law,
which, since that early day, has been softened and refined, without
essential change in the principles then enunciated. His master mind
anticipated the true distinction, when, in definition of War, he wrote
as follows.
“The first and most necessary partition of war is this:
that war is _private_, _public_, or _mixed_. Public war is
that which is carried on under the authority of him who has
jurisdiction; private, that which is otherwise; _mixed, that
which is public on one side and private on the other_.”[14]
In these few words of this great authority is found the very
discrimination which enters into the present discussion. The war in
which we are now engaged is not precisely “public,” because on one side
there is no Government; nor is it “private,” because on one side there
is a Government; but it is “mixed,”--that is, public on one side and
private on the other. On the side of the United States, it is under
authority of the Government, and therefore “public”; on the other side,
it is without the sanction of any recognized Government, and therefore
“private.” In other words, the Government of the United States may
claim for itself all belligerent rights, while it refuses them to the
other side. And Grotius, in his reasoning, sustains his definition by
showing that war becomes the essential agency, where public justice
ends,--that it is the justifiable mode of dealing with those who are
not kept in order by judicial proceedings,--and that, as a natural
consequence, where war prevails, the Municipal Law is silent. And here,
with that largess of quotation which is one of his peculiarities, he
adduces the weighty words of Demosthenes: “Against enemies, who cannot
be coerced by our laws, it is proper and necessary to maintain armies,
to send out fleets, and to pay taxes; but against our own citizens,
a decree, an indictment, the state vessel are sufficient.”[15] But
when citizens array themselves in multitudes, they come within the
declared condition of enemies. There is so much intrinsic reason in
this distinction that I am ashamed to take time upon it. And yet it has
been constantly neglected in this debate. Let it be accepted, and the
constitutional scruples which play such a part will be out of place.
Senators seem to feel the importance of being able to treat the Rebels
as “alien enemies,” on account of penalties which would then attach.
The Senator from Kentucky [Mr. DAVIS], in his bill, proposes to
declare them so, and the Senator from Wisconsin [Mr. DOOLITTLE] has
made a similar proposition with regard to a particular class. But all
this is superfluous. Rebels in arms are “enemies,” exposed to all the
penalties of war, as much as if they were alien enemies. No legislation
is required to make them so. They are so in fact. It only remains
that they should be treated so, or, according to the Declaration of
Independence, that we “hold them, as we hold the rest of mankind,
_enemies in war_, in peace friends.”
* * * * *
Mark now the stages of the discussion. We have seen, first, that, in
point of _fact_, we are in the midst of rebellion and in the midst of
a war,--and, secondly, that, in point of _law_, we are at liberty to
act under powers incident to either or both of these conditions, treat
the people engaged against us as criminals, or as enemies, or, if we
please, as both. Pardon me, if I repeat these propositions; but it is
essential that they should not be forgotten.
Therefore, Sir, in determining our course, we may banish all question
of power. The power is ample and indubitable, being regulated in the
one case by the Constitution, and in the other case by the Rights of
War. Treating them as criminals, then are we under the restraints of
the Constitution; treating them as enemies, we have all the latitude
sanctioned by the Rights of War; treating them as both, then may we
combine our penalties from the double source. What is done against
them merely as _criminals_ will naturally be in conformity with the
Constitution; but what is done against them as _enemies_ will have no
limitation except the Rights of War.
The difference between these two systems, represented by two opposite
propositions now pending, may be seen in the motive which is the
starting-point of each. Treating those arrayed in arms against us as
criminals, we assume sovereignty, and seek to punish for violation of
existing law. Treating them as enemies, we assume no sovereignty, but
simply employ the means known to war in overcoming an enemy, and in
obtaining security against him. In the one case our cause is founded
in Municipal Law under the Constitution, and in the other case in the
Rights of War under International Law. In the one case our object is
simply punishment; in the other case it is assured victory.
* * * * *
Having determined the existence of these two sources of power, we
are next led to consider the character and extent of each under the
National Government: first, _Rights against Criminals_, founded
on sovereignty, with their limitations under the Constitution;
and, secondly, _Rights against Enemies_, founded on war, which are
absolutely without constitutional limitation. Having passed these in
review, the way will then be open to consider which class of rights
Congress shall exercise.