UNITED STATES. 



837 



and peace restored without requiring a large military 

 force, and without involving those wno did not active- 

 ly participate in overt acts of treason. Hence the Gov- 

 ernment, relying upon the patriotism of the people, 

 and confident in its strength, exhibited a generous 

 forbearance toward the insurrectionists. 



When, at last, seventy-five thousand of the militia 

 were called out, the President still relied upon the 

 Union sentiments of the South ; still announced the in- 

 tention not to interfere with loyal men ; but, on the 

 contrary, to regard their rights as still under the pro- 

 tection of the Constitution. The action of Congress 

 was in accordance with this policy. The war waged 

 by this Government was then a personal war, a war 

 against rebels ; a war prosecuted in the hope and belief 

 that the body of the people were still friendly to the 

 Union, who, temporarily overborne, would soon right 

 themselves by the aid of the army. Hence Congress 

 declared, and' the President proclaimed, that it was not 

 their object to injure loyal men ; to interfere with their 

 rights or their domestic institutions. 



This position of the Government toward the rebel- 

 lious States was just, forbearing, and magnanimous, 

 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 which they could in- 

 fluence or control. 



Having set up a new Government for themselves; 

 having declared war against us ; having sought foreign 

 alliances ; having passed acts of non- intercourse ; hav- 

 ing seized public property and made attempts to in- 

 vade 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 independ- 

 ent, hostile nation at war with the United States- 

 claiming belligerent rights as an independent people 

 alone could claim them, and offering to eqter into trea- 

 ties of alliance with foreign countries, and treaties of 

 peace with ours ; under these circumstances they 

 were no longer merely insurgents and rebels, but be- 

 came 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. 



If we were in a war with England, every English- 

 man would become a public enemy, irrespective of his 

 personal feelings toward America. However friendly 

 he might be toward America, his ships on the sea 

 would be liable to capture ; himself would be liable to 

 be killed in battle, op his property situated in this 

 country would be subject to confiscation. 



By a similar rule of the law of nations, whenever 

 two nations are at war, every subject of one belliger- 

 ent nation is a public enemy of the other. 



An individual may be a personal friend and at the 

 same time a public enemy to the United States. The 

 law of war defines international relations. 



When the civil war in America became a territorial 

 war, every.citizen residing in the belligerent districts 

 became a public enemy, irrespective of his private 

 sentiments, whether loyal or disloyal, friendly or hos- 

 tile, unionist or secessionist; guilty or innocent. 



As public enemies the belligerents have claimed to 

 be exchanged as prisoners of war, instead of admit- 

 ting our right to hang them as murderers and pirates. 

 As public enemies they claim the right to make war 

 upon us, in plain violation of many of the obligations 

 they would have admitted if they acknowledged the ob- 

 ligations or claimed the protection of our Constitution. 



If they had claimed any State rights under our Con- 

 stitution, they would not have violated every one of 

 the provisions thereof, limiting the powers of States. 

 Asserting no such rights, they claim immunity from 

 all obligations as States, or as people to this Govern- 

 ment or to the United States. 



Two questions must be considered : 1st. When did 

 the rebellion become a territorial, civil war? 2d. What 

 are the rights of the enemy under the laws of war ? 



The first question has been settled by the Supreme 



Court of the United States, in the case of the Hia- 

 watha, decided on the 9th of March, 1863. In that 

 case, which should be read and studied by every citi- 

 zen of the Union, the members of the court differed 

 in opinion as to the time when the war became terri- 

 torial. The majority decided that when the fact of 

 general hostilities existed, the war was territorial, and 

 the Supreme Court was bound to take judicial cogni- 

 zance thereof. The minority argued that Congress 

 alone had power to recognize the existence of war: 

 and they contended that it was not until the Act 01 

 Congress of July 13th, 1861, commonly called the Non- 

 intervention Act, that a state of civil, territorial war 

 was legitimately recognized. All the judges agree in 

 the position " that since July 13th, 1861, there has ex- 

 isted between the United States and the Confederate 

 States a civil, territorial war. That since that time 

 the United 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 gentes, convert every citizen of the hostile 

 States into a public enemy, and treat him according- 

 ly, whatever may have been his previous conduct" 



That all the rights derived from the laws of war, 

 may now, since 1861, be lawfully and constitutionally 

 exercised against all the citizens of the districts in re- 

 bellion. 



Such being the law of the land, as declared by the 

 Supreme Court, in order to ascertain what are the le- 

 gal or constitutional rights of public enemies, we have 

 only to refer to the settled principles of the belligerent 

 law of nations, or the laws of war. 



Some of the laws of war are stated in the dissenting 

 opinion, in the case above mentioned. 



A state of foreign war instantly annuls the most sol- 

 emn treaties between nations. It terminates all obli- 

 gations in the nature of compacts or contracts, at the 

 option of the party obligated thereby. It destroys all 

 claims of one (belligerent upon the other, except those 

 which may be sanctioned by a treaty of peace. A 

 civil, territorial war has the same effect, excepting, 

 only, that the sovereign may treat the rebels as sub- 

 jects as well as belligerents. 



Hence, civil war, in which the belligerents have be- 

 come territorial enemies, instantly annuls all rights or 

 claims of public enemies against the United States, 

 under the Constitution or laws, whether that Constitu- 

 tion be called a compact, a treaty, or a covenant, and 

 whether the parties to it were States, in their sovereign 

 capacity, or the people of the United States as indi- 

 viduals. 



Any other result would be as incomprehensible as it 

 would be mischievous. A public enemy cannot, law- 

 fully, claim the right of entering Congress, and voting 

 down the measures taken to subdue him. 



Why not ? Because he is a public enemv ; because, 

 by becoming a public enemy, he has annulled and lost 

 his rights in the Government, and can never regain 

 them, except by our consent. 



If the inhabitants of a large part of the Union have, 

 by becoming public enemies, surrendered and annulled 

 their former rights, the question arises, can they re- 

 cover them ? Such rights cannot be regained by rea- 

 son of their having ceased to fight. The character of 

 a public enemy having once been stamped upon them 

 by the laws of war, remains fixed until it shall have 

 been, by our consent, removed. 



To stop fighting does not make them cease to be 

 public enemies, because they may have laid down their 

 arms for want of powder, not for want of will. Peace 

 does not restore the noble dead who have fallen a sac- 

 rifice to treason. Nor does it revive the rights once 

 extinguished by civil, territorial war. The land of the 

 Union belongs to the people of the United States, sub- 

 ject to the rights of individual ownership. Each person 

 inhabiting those sections of the country declared by 

 the President's proclamation to be in rebellion, has the 

 right to what belongs to a public enemy, and no more. 

 He can have no right to take any part in Government. 

 That right does not belong to au enemy of the country 



