270 



CONGRESS, U. S. 



United States Las already declared that this is no 

 longer an. insurrection, but a civil war. Every 

 department of the Government concurs that this 

 is a civil war and not an insurrection. When the 

 President of the United States originally called 

 out seventy-five thousand volunteers he treated 

 it partly as an insurrection and partly as a civil 

 war a kind of incongruous condition not 

 easily understood ; but Congress, as soon as it 

 convened, treated it as a civil war, authorized 

 the employment of half a million men, and 

 called it war. The President issued a procla- 

 mation declaring a blockade, a thing not known 

 as against insurgents. Finally, the decision of 

 the Supreme Court in the prize cases during 

 the December term, 1862, declared that it was 

 civil war and not insurrection. 



u The decision goes on upon that basis, treats 

 these rebels, as we commonly call them, these 

 enemies, as enemies in war, open war, to be 

 put down according to the laws of war. That 

 point was, however, previously settled by 

 another tribunal. We are one of the family 

 of nations. Great Britain, with a hasty in- 

 decency, before the facts were known, when 

 our minister was on his way to take his place 

 at that court, a minister whose very name 

 should have commanded the respect of Great 

 Britain, recognized the insurgents as belliger- 

 ents ; and France followed her example. By 

 that fact we are bound, as one of the family of 

 nations ; and after that acknowledgment by 

 Great Britain and France we dared not treat 

 the rebels as simple insurgents, but we were 

 bound to wage the war against them according 

 to the laws of war. 



"Mr. President, the effect of civil war in 

 substituting new laws for our Government 

 is stated very clearly by Vattel, and at the 

 risk of being wearisome I will read an extract : 



A civil war breaks the bands of society and gov- 

 ernment, or at least suspends their force and effect ; 

 it produces in the nation two independent parties, 

 who consider each other as enemies, and acknowl- 

 edge no common judge. Those two parties, there- 

 fore, must necessarily DC considered as thenceforward 

 constituting at least for a time two separate bodies, 

 two distinct societies. Though one of the parties 

 may have been to blame in breaking the unity of the 

 State, and resisting the lawful authority, they are 

 not the less divided in fact. Besides, who shall 

 judge them? who shall pronounce on which side the 

 right or wrong lies? On earth they have no common 

 superior. They stand therefore in precisely the same 

 predicament as two nations who engage in a contest, 

 and, being unable to come to an agreement, have re- 

 course to arms. Vattel, page 425. 



" The Constitution of the United States now 

 furnishes no guide. There are no rules pre- 

 scribed in the Constitution pointing out how 

 we shall treat public enemies who are regard- 

 ed as such. The Constitution only deals with 

 people in a state of peace, or, at most, in a 

 state of insurrection. It does not define our 

 relations or our duties to enemies. When 

 these people assumed the power and position 

 of enemies, you could no longer look in the 

 Constitution of the United States, or to the laws 



made in pursuance thereof, for the mode and 

 manner in which you should treat them. This 

 principle is clearly laid down in the laws of na- 

 tions. . By their unity, by their vigor, by their 

 strength they have won the position of ene- 

 mies, and you cannot treat them as insurgents. 

 Civilized society would not allow you to treat 

 these enemies, who by their vigor and courage 

 have held you at bay for nearly three years, aa 

 common insurgents or traitors and felons. You 

 must treat them as enemies. 



" Now, Mr. President, let us apply these prin- 

 ciples to the bill before us. We are in war. 

 Have we the right in war as against public en- 

 emies to emancipate their slaves ? Have we a 

 right according to the laws of war to employ 

 the slaves of our own citizens in arms against 

 the public enemy ? Have we a right in accord- 

 ance with the laws of war to emancipate them 

 and their families, those that are connected 

 with them by domestic ties? These are the 

 questions. I have already passed over the prin- 

 cipal difficulty in the way, and that is the argu- 

 ment so often made that we are restrained 

 from doing this because these enemies are our 

 fellow-citizens. I have shown you that the 

 men in rebellion have won a position beyond 

 the reach of your Constitution ; that our war 

 with them must be tested by the laws of war ; 

 and these questions must be decided by the 

 laws of war as recognized and practiced among 

 civilized nations in ancient and modern times. 

 That is the position which I hold. 



" Then, by the laws of war, have we a right 

 to arm our own slaves, and to arm the slaves of 

 our enemies and emancipate them? Now, sir, 1 

 say that there never was a country in the 

 world, in ancient or modern times, which held 

 slaves, that did not at some period of its his- 

 tory arm them, and employ them against the 

 common enemy ; and there never was a case 

 where, when those slaves were so employed, 

 they were not emancipated. This proposition, 

 I think, will be sustained by the most careful 

 examination of history." 



Mr. Sherman then proceeded to state the ac 

 tions of the Grecians and Eomans, and of the 

 Governments of Great Britain and the United 

 States, in their wars. 



He said: "-I have thus, Mr. President, per- 

 haps at the risk of being wearisome, shown 

 that in ancient and in modern times, by all civ- 

 ilized nations, by our own country and by our 

 enemies, in all of our wars, negro soldiers both 

 free and slave have been used in the military 

 service, and in every case where slaves have 

 been so used they have been secured their lib- 

 erty. It would be an intolerable injustice, to 

 which no people would ever submit, to serve 

 in the military service without securing that 

 greatest of boons. My answer, then, to the 

 main question, whether the employment of ne 

 groes, free or slave, is justified by the laws of 

 war, is, that by the practice of all nations it i 

 justified. 



I come then to another question that it la 



