838 



UNITED STATES. 



while he ia waging war or after he has been subdued. 

 A public enemy has a right to participate in or to as- 

 sume the Government or the United States only when 

 he has conquered the United States. We find in this 

 well settled doctrine of belligerent law, the solution of 

 all questions in relation to State rights. After the in- 

 habitants of a district have become public enemies, 

 tliev have no rights, either State or personal, against 

 the" United States. They are belligerents only, and 

 have left to them only belligerent rights. 



Suppose that the inhabitants of South Carolina 

 should be swept off, so that solitude should reign 

 throughout its borders, unbroken by any living thing, 

 would the State rights of South Carolina still exist as 

 attached to the laud itself? 



Can there be a sovereignty without a people, or a 

 State without inhabitants? State rights, so far as they 

 concern the Union, are the rights of persons, as mem- 

 bers of a State, in relation to the General Government ; 

 and when the person has become a public enemy, then 

 he loses nil rights except the rights of war. And when 

 all the inhabitants have (by engaging in civil, terri- 

 torial war) become public enemies, it is the same, in 

 legal effect, as though the inhabitants had been anni- 

 hilated. So far as this Government is concerned, civil 

 war obliterates all lines of States or countries; the 

 only lines recognized by war are the lines which sepa- 

 rate us from a public enemy. 



Among the war measures sanctioned by the Presi- 

 dent, to which he has, more than once, pledged his sa- 

 cred honor, and which Congress has enforced by sol- 

 emn laws, is the liberation of slaves. The Government 

 has invited them to share the dangers, the honor, and 

 the advantages of sustaining the Union, and has pledg- 

 ed itself to the world for their freedom. 



Whatever disasters may befall our arms, whatever 

 humiliations may be in store for us, it is earnestly 

 hoped that we may be saved the unfathomable infamy 

 of (breaking the nation's faith with Europe, and with 

 colored citizens and slaves in the Union. 



Now if the rebellious States shall attempt to return 

 to the Union with Constitutions guaranteeing the per* 

 petuity of slavery : if the laws of those States shall be 

 again revived and put in force against free blacks and 

 slaves, we shall, at once, have reinstated in the Union, 

 in all its force and wickedness, that very curse which 

 has brought on the war and all its terrible train of suf- 

 ferings. The war is fought by slaveholders for the 

 perpetuity of slavery. Shall we hand over to them, 

 at the end of the war, just what they have been fight- 

 ing for ? Shall all our blood and treasure be spilled 

 uselessly on the ground? Shall the country not pro- 

 tect itself against the evil which has caused all our 

 woe? Will you breathe new life into the strangled 

 serpent, when, without your aid, be will perish? 



It you concede State rights to your enemies, what 

 security can yon have that traitors will not pass State 

 laws which will render the position of the blacks in- 

 tolerable ; or reduce them all to slavery ? 



Allow the inhabitants of conquered territory to form 

 themselves into States, only by adopting Constitutions 

 such as will forever remove all cause of collision with 

 the United States, by excluding slavery therefrom, or 

 continue military government over the conquered dis- 

 trict until there shall appear therein a sufficient number 

 of loyal inhabitants to form a republican government, 

 which, by guaranteeing freedom to all, shall be in ac- 

 cordance with the true spirit of the Constitution of the 

 United States. 



The same position was assumed by Robert 

 Dale Owen, in a letter to Mr. Seward, on the 

 subject of the representation of the seceded 

 States in Congress, dated August 27th : 



Who are constitutionally entitled to fill the vacant 

 chairs? 



The Supreme Court has decided, by a unanimous 

 vote, that since the passage of a law (sometimes called 

 the " non-intercourse law"'), approved July 13th, 1881, 

 the inhabitants of the insurrectionary portions of the 



Union are public enemies ; not the disloyal alone, not 

 those who have taken up arms alone, but all. After 

 stating that the territory "held in hostility to the 

 United States has a defined boundary,"* the court adds : 



The decision of our highest legal tribunal is, that 

 these men, without distinction as to individual loyalty 

 or disloyalty, have, in law, the same rights, and the 

 same rights only, as alien enemies invading the United 

 States. Men cannot, by their own act, release them- 

 selves from constitutional obligations; but they can 

 and they do, by levying war against the Government, 

 forfeit their constitutional rights. 



For war annuls all treaties, all conventions, all agree- 

 ments, how solemn soever, securing privileges or pro- 

 tection to a hostile party. The rights of war alone re- 

 main. By civil war the insurrectionists lose every 

 privilege, every protection, which the Constitution 

 affords to the citizen. We act upon this principle 

 every day. By the Constitution, the home and the 

 effects of the citizen are inviolate except after warrant 

 issued, upon probable cause and under oath, specially 

 describing the premises. Does this apply to the house 

 of a rebel in an insurrectionary State? The Consti- 

 tution declares that the citizen shall not be deprived 

 of life, liberty, or property, without due process of law. 

 What process of law precedes the opening of a battery 

 on the Confederate ranks? or the confinement of our 

 prisoners of war ? or the appropriation of the enemy's 

 ammunition or commissary stores? 



When we make and ratify, with a foreign nation in 

 time of peace, a treaty granting to the subjects of that 

 nation certain rights and immunities, that treaty be- 

 comes part and parcel of the supreme law of the land ; 

 as much so as the Constitution itself. But when that 

 nation declares war, its subjects can no more claim one 

 of these solemnly granted rights and immunities than 

 if the treaty had never existed. No single rule of in- 

 ternational law is better established than this. 



But under that rule the insurgents, having levied 

 war, and having thus become public enemies, can no 

 more claim any of the privileges or immunities once 

 guaranteed to them under the Constitution than an 

 alien enemy can claim rights under a treaty ratified 

 during peace, but cancelled on the day his government 

 declared war. 



Therefore, by a 'rule of public law, applicable in all 

 wars, and sanctioned by the assent and the constant 

 usage of every civilized nation, no inhabitant of the in- 

 surrectionary territory has a constitutional right to elect 

 a member to the Congress of the United States ; and no 

 Senator or Representative elected by these insurrec- 

 tionists, though according to thp forms prescribed by 

 the Constitution, can legally fill a single vacant seat in 

 our congressional halls. 



Nor is the legal aspect of the case one whit changed, 

 if the men lay down their arms. A treaty made during 



* This boundary, earlier defined by the respective acts of se- 

 cession, was oflicially declared by proclamation of the Presi- 

 dent, Issued under date of July 1st, 1862. Thin was done in 

 accordance with a requisition contained in the second section 

 of an act of Congress, approved June 7th, 1S62. The list in- 

 cludes eleven States, reckoning Eastern Virginia as one. It 

 does not include Western Virginia, nor Maryland, nor Ken- 

 tucky, nor Missouri. Nothing here said, therefore, applies to 

 the constitutional rights of the Inhabitants of any of these 

 States. To a proper understanding of the legal points in- 

 volved, it is indispensable to bear in mind which States are, 

 in the eye ol the law, insurrectionary, and which are not 



All persons residing within this territory, whose property 

 may be used to increase the revenue of the hostile power, are, 

 in this contest, liable to be treated as enemies, though not 

 foreigners. * * * When the regular course of justice is 

 Interrupted by rebellion or insurrection, so that the courts of 

 Justice cannot be kept open, civil wnr exists; and hostilities 

 may be prosecuted on the same footing as if those op- 

 posing the Government were foreign enemies invading tho 

 land. * * * Whether property be liable to capture as 

 enemy'* property, does not, In any manner, depend upon the 

 personal allegiance of the owner. t 



t Claimants of Brilliant, etc., versus United States. March 

 term, 1S68, Opinion by Grier J. Amer, La\v Register, April, 

 1S68, pp. 834 to 844. 



