Delaware gazette. [volume] (Delaware, Ohio) 1855-1886, 1862-03-14
DELAWARE, OHIO, MARCH IA, 1862.

peace power IS limited by regulations and re-
strieted by provisions prescribed within the
Constitution itself. The war power is limited
only by the laws and usages of nations This
power is tremendous; it is strictly constitu-
tioual, but it breaks down every barrier so anx-
iously erected for the protection of liberty, of
property, and Of life
The purposes of the present inquiry lead me,
therefore, directly to ascertain what is the ''war
power" Of this Government, and what the rela-
lions of that power to the Constitution.
This requires that we should ascertain the
relation which the 'law of nations" sustains TO
the American Constitution. That the law of
think is incontestabe-
The Constitution, in terms, gives to Con-
greSs the power ''to punish offences against the
law of nations and thereby recognizes that
law as part of itself 1t also confers on Con
gress the''power to punish crimes only known
to the law of nations, Of which piracy is an
example. 1t employs terms, designations or
offices, and titles only employed by the law
of nations, as "captures,' LETTERS of nlarque,"
ambassadors y ''consuls,' and public minis
ters"
I The same important doctrine, that the law
Of nations is part of the constitutional law OF
the United States, is also established by the
invarabe practice of the Government itself,
by the authority of our own jurists, by the
opinions of the most eminent statesmen, by the
invarahe adjudcatiOns Of the Courts of the
States of the Union, and by repeated deci-
SONS of the Supreme Court of the United
/ States.
4 Tho mo nu1inpDf y-OYl- tho loy-
given to the profession in the United States,
in its opening senlelcc, states this doctrine
most explicitly. When" SAYS Chancellor
Kent. "the United States ceased to be part OF
the British empire, and assumed the character
of indepnd mt natiol, they thereby be-
came subject to that system of rules which rea-
son, morality, and custom had established
among civilized nations as the public law
Justice Story, in discussing the powers Of
the President in war. says:
"1e cannot lawfully transcend the ru'es Of
war as established among the CIVILIZED
tions." "1'he
modern uSages of nations are rcsortcd to
merely as a limitation to this discretion of the
President"
The Supreme Court of the United States
has again and again so declared the law. In
Jccker ct al, Is. Montgomery, (3 Howard)
that Court declared that the international law
forms part of the municipal law fevery coun-
try. 1t has, for centuries been held to be
part Of the common law of England, and I'll
is well settled that the Common law of Eng
land, so far as it is consistent with the Consti-
tuition of this country, and remains unaltcred
by statutes. is an essential part Of Americau
Jurisprudence"
In his letter of April 81, 1871, to Mr.. Fox
your Secretary ofSiate, Mr. Webster, commits
this Government 10 the absolutely binding
force of public law upon all The departments
of the Government.
In alluding to claim of Mcleod, a subject
of Great Britain, then on trial in New York
for a homicide, committed in that State, to be
discharged upon the ground that his offence
was committed by the authority of the British
Government, Mr.. " ebster says:
'Mr. McLeol demands indemnify from per
sonal responsibility by virtue of the law Of
nations. That law, in civilized States, is TO be
respected in all courts. None is either so high
or so low as TO escape from its authority, in
cases where its rules and principles apply"
That same eminent in rist, certainly the most
able of the present century, speaking upon the
same point, says;
f 'You cannot escape from the law of natious
where its principles apply. The air of every
judicature is full OF it. II pervades the courts
Of law of the highest character, AMI the court
Of pie poudre. 1t is part OF the universal
; law. 1t may share the glorious eulngy oil
Hooker OH law itself, that there is nothing so
b l,,t.
as TO be beneath its care
Mr.. Chairman, | will introduce but one
other single witness in support of this argument
make in favor of the reign OF law-of consti-
tutional law-now, even in the midst of the
clash OF arms and chaos of war. take tina,
witness from our most iIlustriOus dead. Mr..
Adams, audng 10 the force of the law ef
nations in war, says:
f "1'he war power is limited by the law Of
: nations ut is
strictly constitutional :
{ Congress must carry on war. whether Of in
vasiou or isurrection, according to the laws OF
5 war"
l conclude, therefore, that the law Of nrtions
! is so incorporated into and 50 become part nI
i the constitutional law as to have bc conc rules
limitations, and guides, controlling every d.-
{ partment of the Government Of the United
=, States in the exercise o. tie rights OF war;
: and whenever it controls or in erprets consti
, tutional powers, it cannot be escaped from
any more than can be the plainest provisions
r of the Constitution. But, sir, do the rules Ol
+ the international code apply to a c.ra war like
1 that which now involves the Government i'll
I its fearful perils? That they Go, is as pain as
h that they apply to ary war Neither prtcc-
: dents, aut uthoritieS, nor decisions cuniae thcSt
n rights OF war 10 any particular kind Of war,
Il but extend them to all that is "rIr, that is
: to all confess of force, in which the b.iiger-
v ents are sufficiently compact, organized and
e powerful 10 maintain organic d armies, and are
!. not mere "mobs' or "hordes ofwan1erinS saw
t ages" or 'pira es, or associations ofrobbcrs
Il Our government has. during its entire exls-
d tcncc, acted upon the same dpctrin'; ami it Is
e declared, in the special message of Presidenf
d jackson, Of the 2 Ist of December 1886, In he
' in accordance with the b,st principles Of plb
!. lie policy. The Supreme Court of the United
l. States has uniformly SO declared the pub. i,
l. law; as in Wheaton, 80, anil Wheaton
&c l-52: and Mr Adams in the celebrated speecl
n from which have qloted, declares the SAM
rule of public law when he says, IA war agdins
r, insurrection must be carried on according Il
ID the laws of war"
il Sir, the CUnslitution, therefore, brings t,
re its defence and shields ITSELF in times of civi
le war, in the panoply of public law, not b.
g. authorizing any violation of its provisions
ne but by invoking and bringing into operation
~ part of its own power-power silent IN peac
Il