against public enemies of our belligerent rights of civil war. ATTITUDE OF THE GOVERNMENT IN THE BEGINNING OF THE WAR TOWARDS THE REBELS, AND TOWARDS LOYAL MEN IN REBEL DISTRICTS. When the insurrection commenced by illegal acts of secession, and by certain exhibitions of force against the government, in distant parts of the country, it was supposed that the insurgents might be quelled, and peace might be restored, without requiring a large military force, and without involving those who did not actively participate in overt acts of treason. Hence the government, relying upon the patriotism of the people, and confident in its strength, exhibited a generous forbearance towards the insurrection. When, at last, 75,000 of the militia were called out, the President, still relying upon the Union sentiment of the South, announced his intention not to injure peaceful citizens, but, on the contrary, to regard them as still under the protection of the constitution. The action of Congress was in accordance with this policy. The war waged by this government was then a personal war against rebels; a war prosecuted in the hope and belief that the body of the people were well disposed towards the Union, and would soon right themselves by the aid of the army. Hence Congress declared, and the President proclaimed, that it was not their purpose to interfere with private rights or domestic institutions. THE PROGRESS OF EVENTS CHANGED THE CHARACTER OF THE WAR, AND REQUIRED THE USE OF MORE EFFECTIVE WAR POWERS. This position of the government towards the rebellious States was forbearing, magnanimous, and just, while the citizens thereof were generally loyal. But the revolution swept onward. The entire circle of the southern States abandoned the Union, and carried with them all the border States within their influence or control. Having set up a new government for themselves; having declared war against us; having sought foreign aid; having passed acts of non-intercourse; having seized public property, and made attempts to invade States which refused to serve their cause; having raised and maintained large armies and an incipient navy; assuming, in all respects, to act as an independent, hostile nation, at war with the United States- claiming belligerent rights as an independent people alone could claim them, and offering to enter into treaties of alliance with foreign countries and treaties of peace with ours under these circumstances they were no longer merely insurgents and rebels, but became a belligerent public enemy. The war was no longer against "certain persons " in the rebellious States. It became a territorial war; that is to say, a war by all persons situated in the belligerent territory against the United States. CONSEQUENCES RESULTING FROM CIVIL TERRITORIAL WAR. It is a settled rule of public law that whenever two nations are at war, every subject of one belligerent is a public enemy of the other. If we were at war with England, every Englishman would become our public enemy, irrespective of his personal feelings towards us. * See Twiss, Law of Nations, pp. 80-82, sect. 43; Vattel, Droit des Gens, L. II. c. 2; Prize Cases, p. 141, 248, and cases in the Appendix. However friendly he might be towards America, his ships on the sea would be liable to capture, his property, situated in this country, would be subject to confiscation, and himself would be liable to be killed in battle. An individual may be a personal friend, and at the same time a public enemy, of the United States. When the civil war in America became territorial, every citizen residing in the belligerent districts became our public enemy, irrespective of his private sentiments, whether loyal or disloyal, friendly or hostile, unionist or secessionist, innocent or guilty. As public enemies these insurgents claim to be exchanged as prisoners of war. They deny our right to hang them as murderers or pirates. As public enemies they assume authority to make war upon us, and to repudiate many obligations which they would voluntarily perform if they should acknowledge the binding power or seek the protection of our constitution. If they had sought to secure State rights, under that constitution, they would not have violated every one of its provisions which limit the powers of States. Asserting no such rights, they claim immunity as States, as a people, or as individuals, from all obligations to this government or to the United States. WHEN DID THE REBELLION BECOME A TERRITORIAL WAR? This question has been settled by the Supreme Court of the United States, in the case of the Hiawatha, decided on the 9th of March, 1863. In that case, which should be read and studied by every citizen of the Union, the members of the court differed in opinion as to the time when the war became territorial. The majority decided, that when the fact of general hostili ties existed, the war was territorial, and the Supreme Court was bound to take judicial cognizance thereof. The minority argued that, as Congress alone had power to declare war, so Congress alone has power to recognize the existence of war; and they contended that it was not until the Act of Congress of July 13, 1861, commonly called the Non-intercourse Act, that a state of civil, territorial war was legitimately recognized. All the judges agree in the position "that since July 13, 1861, there has existed between the United States and the Confederate States, civil, territorial war." WHAT ARE THE RIGHTS OF THE PUBLIC ENEMY SINCE THE REBELLION BECAME A TERRITORIAL CIVIL WAR. The Supreme Court have decided, in the case above named, in effect: * "That since that time the United * If this decision be restricted to its most technical and narrow limits, the only point actually decided was, that the captured vessels and cargoes were lawful prize. The parties before the court are alone bound by the judgment. Viewed in like manner, the only point decided in the case of Dred Scott was, that the court had no jurisdiction of the matter. Nevertheless, learned judges have taken occasion to express opinions upon legal or political questions. Their opinions are of great importance, not because they are or are not technical decisions of points in issue, but because they record the deliberate judgment of those to whom the same questions will be referred for final determination. The judge who has pronounced an extra-judicial opinion, and has placed it upon the records of the court, is not, it may be said, bound to follow it; but it is equally true, that the court is never bound to follow its previous most solemn “decisions.” These decisions may be, and often have been, modified, overruled, or disregarded by the same court which pronounced them. If the members of a judicial tribunal, though differing upon minor questions, agree upon certain fundamental propositions, it is worse than useless to deny that these propositions, even though not “technically decided," have the authoritative sanction of the court. The unanimous agreement of all the members of a judicial court to certain principles, affords to the community as satisfactory evidence of their views of the law as could be derived from a decision in which these principles were technically the points in controversy. It is for these reasons that it has been stated in States have full belligerent rights against all persons residing in the districts declared by the President's Proclamation to be in rebellion. " That the laws of war, "whether that war be civil or inter qualified language "that the Supreme Court have decided in effect" the propositions quoted from their opinions. To show wherein all the judges agree, the following extracts are collected from the Decision and from the Dissenting Opinion. EXTRACTS FROM THE OPINION OF THE COURT. of war is neces civil war. "As a civil war is never publicly proclaimed eo nomine, No declaration against insurgents, its actual existence is a fact in our sary in case of domestic history, which the court is bound to notice and to know. The true test of its existence, as found in the writings Test of its exof the sages of the common law, may be thus summarily stated: "When the course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, CIVIL WAR EXISTS, and hostilities may istence. treated as for be prosecuted on the same footing as if those opposing the Rebels to be government were foreign enemies invading the land.' See eign invaders. 2 Black R. 667, 668. They (foreign nations) cannot ask a court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government, and paralyze its powers by subtle definitions and ingenious sophisms. The law of nations The law of nations is also called the law of nature. It is founded on the common sense as well as the common consent of the world. It contains no such anomalous doctrine, as that which this court is now, for the first time, desired to pronounce, to wit, 'that insurgents, who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are TRAITORS; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an "insurrection. " decide whether Whether the President, in fulfilling his duties as command- President must er-in-chief in suppressing an insurrection, has met with such the enemy shall armed hostile resistance, and a civil war of such alarming pro- gerents. be deemed belliportions, as will compel him to accord to them the character |