to declare war, whenever war is initiated by the United States, also makes it the duty of the President, as commander-in-chief, to engage promptly and effectually in war; or, in other words, to make the United States a belligerent nation, without declaration of war, or any other act of Congress, whenever he is legally called upon to suppress rebellion, repel invasion, or to execute the laws against armed and forcible resistance thereto. The President has his duty, Congress have theirs; they are separate, and in some respects independent. Nothing is clearer than this, that when such a state of hostilities exists as justifies the President in calling the army into actual service, without the authority of Congress, no declaration of war is requisite, either in form or substance, for any purpose whatsoever. Hence it fol lows, that government, while engaged in suppressing a rebellion, is not deprived of the rights of a belligerent against rebels, by reason of the fact that no formal declaration of war has been made against them, as though they were an alien enemy, nor by reason of the circumstance that this great civil war originated, so far as we are parties to it, in an effort to resist an armed attack of citizens upon the soldiers and the forts of the United States. It must not be forgotten that by the law of nations and by modern usage, no formal declaration of war to the enemy is made or deemed necessary.* All that is now requisite is for each nation to make suitable declarations or proclamations to its own citizens, to enable them to govern themselves accordingly. These have been made by the President.

HAS GOVERNMENT FULL WAR POWERS AGAINST REBEL CITIZENS :

Some persons have questioned the right of the United States to make and carry on war against citi

* See 1 Kent's Com. p. 54.

zens and subjects of this country., Conceding that the President may be authorized to call into active service the navy and army "to repel invasion, or suppress rebellion," they neither admit that suppressing rebellion places the country in the attitude of making war on rebels, nor that the commander-in-chief has the constitutional right of conducting his military operations as he might do if he were actually at war (in the ordinary sense of the term) against an alien enemy. Misapprehension of the meaning of the constitution on this subject has led to confusion in the views of some members of Congress during the last session, and has in no small degree emasculated the efforts of the majority in dealing with the questions of emancipation, confiscation, and enemy's property.*

Some have assumed that the United States are not at war with rebels, and that they have no authority to exercise the rights of war against them. They admit that the army has been lawfully called into the field, and may kill those who oppose it; they concede that rebels may be taken captive, their gunboats may be sunk, and their property may be seized; that martial law may be declared in rebellious districts, and its pains and penalties may be enforced; that every armed foe may be swept out of the country by military power. Yet they entertain a vague apprehension that something in the constitution takes away from these military proceedings, in suppressing rebellion and in resisting the attacks of the rebels, the quality and character of warfare. All these men in arms are not, they fancy, "making war." When the citizens of Charleston bombarded Fort Sumter, and captured property exclusively owned by the United States, it is not

* Reference is here made to the Session of 1861–2.

denied that the enemy were waging war against the Union. When Major Anderson returned their fire and attempted to defend the fort and its guns from capture, it is denied that the Union was waging war against the enemy. While other nations, as well as our own, have formally or informally conceded to the rebels the character and the rights usually allowed to belligerents, that is, to persons making war on us, we, according to the technical scruple above stated, are not entitled to the rights of belligerents against them. It therefore becomes important to define the meaning of the term "levying war." levying war." As the military forces of this country are now in actual service to suppress rebellion, is such military service "making war" upon the rebels? And if war actually exists, is there anything in the constitution that limits or controls the full enjoyment and exercise by the government of the rights of a belligerent against the insurgents?

IS SUPPRESSING REBELLION BY ARMS MAKING WAR ON CITIZENS OF THE UNITED STATES?

To repel invasion by arms, all admit, is entering upon defensive war against the invader. War exists wherever and whenever the army or navy is in active service against a public enemy. When rebels, having organized themselves in armies, in large numbers, overthrow their lawful governments, invade the territory of States not consenting thereto, attack our citizens and soldiers, seize and confiscate the property not of our government only, but of all persons who continue loyal, such proceedings constitute a civil war in all its terrors, a war of subjugation and of conquest, as well as of rebellion. Operations less bloody

and less revolutionary than there are held to constitute the levying of war, as those terms are explained in the language of the constitution. War is levied against the United States wherever and whenever the crime of treason is committed (see Constitution, Art. III., Sect. 3, Cl. 3), and under that clause, as interpreted by the Supreme Court, "war is levied" when there exists a combination, resorting to overt acts, to oppose generally the execution of any law of the United States, even if no armed force be used. The language of the Constitution is clear and express. "Treason shall consist only in levying war upon the United States, or in giving aid and comfort to the enemy." If, therefore, any person, or collection of persons, have committed the crime of treason, the constitution declares them to have levied war. As traitors they have become belligerent, or war levying enemies.

War may be waged against the government or by the government; it may be either offensive or defensive. Wherever war exists there must be two parties to it. If traitors (belligerents by the terms of the constitution) are one party, the government is the other party. If, when treason is committed, any body is at war, then it follows that the United States are at war. The inhabitants of a section of this country have issued a manifesto claiming independence; they have commenced hostilities on land and sea to maintain it; they have invaded territory of peaceful and loyal sections of the Union; they have seized and confiscated ships, arsenals, arms, forts, public and private property of our government and people, and have killed, captured, and imprisoned soldiers and private citizens. Of the million of

men in arms, are those on one side levying war, and are those opposed to them not levying war?

As it takes two parties to carry on war, either party may begin it. That party which begins usually declares war. But when it is actually begun, the party attacked is as much at war as the party who made the attack. The United States are AT WAR with rebels, in the strictly legal and constitutional sense of the term, and have therefore all the rights against them which follow from a state of war, in addition to those which are derived from the fact that the rebels are also subjects.

REBELS MAY BE TREATED AS BELLIGERENTS AND AS SUBJECTS.

Wars may be divided into two classes, foreign and civil. In all civil wars the government claims the bel ligerents, on both sides, as subjects, and has the legal right to treat the insurgents both as subjects and as belligerents; and they therefore may exercise the full and untrammelled powers of war against their subjects, or they may, in their discretion, relieve them from any of the pains and penalties attached to either of these characters.* The right of a country to treat its rebellious citizens both as belligerents and as subjects has long been recognized in Europe, and by the Supreme Court of the United States. In the civil war between St. Domingo and France, such rights were exercised, and were recognized as legitimate in Rose v. Himely, 4 Cranch, 272. So in Cherriot v. Foussatt, 3 Binney, 252. In Dobrie v. Napier, 3 Scott R. 225, it was held that a blockade of the coast of Portugal, by the Queen of that country, was lawful, and a vessel was condemned as a lawful prize for running the blockade. The cases

*Note to the Forty-third Edition. See Mauran v. Insurance Company, 6 Wallace, 14, and other cases recently decided by the Supreme Court; also Note on "The Right of Capture of Enemy's Property," p. 451. † See Note A, p. 215.