Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1863-09-24
THE UNCONSTITUTIONAL DOGMA.

X
II will be remembered by the reader that Mr.
Whiting, the Solicitor Of the War Department, in
recently expoundiDg the unconstitutional and re-
vlutionary doctrine that, in consequence of the
civil war now raging, the socalled Seeded States
have ceased to exist as States in the Union, aud
that the Southern people, as people, have for
feited all political rights save such the National
Government may see fit to allow them, professed
to find support of this heresy in the decision rem
dered by the Supreme Court of the United States
at its late term in the prize then brought be-
fore it for adjudication. To this effect he said:
"Two questions must be considered:
Il. When did the rebellion become territorial civil
war;
80 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 n the Of the Hawath
decided on the 9th of March, e63 In that case which
should be read and studied bv every citizen of the Unon
the members Of the court differed opinion to the time
when the became territorial The maj rity decided
that when the fact Of general hosities existed the
territorial and the Supreme Court bound to take
judicial cegDizanco thereof The minority argued that
Congress alone has power to declare war so Congress
alone has power to recognise the existence Of and
they conended that it not until the act Of Congress of
July 49, 1861, commonly called the nonintercourse act,
hat state of civil territorial legitimatey
cognsed All the judges agree in the position that since
July l3 1861 there has existed between the United States
and the Confederate States a civil territorial war;.
"That pince that time the Unied States have full bel
geren rights against all persons residing in the districts
declared by the Presidents proclamation to be in rebel
lion.'
"Tbat the laws of war; whether that war be civil or
inter gsntes converts every citizen of the h se State into
public enemy and treats him accordingly, whatever may
have been his previous conduct
That all the rights derived from the laws Of war may
now, since 1861 be lawfuy aud consttuonay exercised
against all the citizens of the districts in rebellion.
such being the law of the land declared by the Su
preme Court n order to ascertain what the legal
constitutional rights of public enemies have only to
fer to the settled principles of the belgerent law of
If the inhabitants Of large part of the Union have,
by becoming public enemies surrendered and annulled
their former rights the question ases they
them Such rights cannot be reQaned BY reason Of their
having ceased to fight The character of public enemy
having been stamped upon them by the laws of
remains fixed uatl it shall have been by consent
moved.
lie enemies because they may have laid down their
for want Of powder not for want o will Peace does not
restore the noble dead who have fallen sacrifice to trea
does it revive the rights extingushed by
civil territorial The land Of the Union belongs the
people Of the United States, subject t. the ghts OF nd
vdual ownership Each per nhsbiting those sections
of the country declared by the Presidents proclamation to
be in rebellion has the right to what belongs pun c
enemy, and He have right IN take any
part in Government The right does not belong to
my Of the country while be s wagng after he
has been subdued public enemy has right to parci
pate in to assume the Government of the United ates
only when he has conquered the United States We find
in the well seted doc of belgerrnt law the solution
of all questions in relation State rights After thr in
hsbitauts Of disrict have become public enemies hey
have rights either state personal against tn Uhi
ted Stats They belgerents only and have left them
only belgerent rights"
Such are the conclusions which purport to be
drawn from the late decision of the Supreme
Court. What was that decision Its gist is
found in the follow ng passage;
ave have shown that the civil war; such as that now
waged between the Northern and Southern States pro-
perly conducted according to the humane regulations of
public law regards captures on the oc an.
"Under peculiar Constitution al hough the citizens
owe supreme aeg to the Federal Government they
also qualified allegiance to the States which they
domced Their persons and prop-rty are subject t.
its laws Hence in organizing this rebellion they hsve
acted States claiming to be sovereign all persons
aud property within their respective limits and asserting
right absove their citizens from their allegiance to th
Federal Government Several If these States have CON-
kn wledged by the world as sovereign State. Their
right to do il now being tested by wager of battle
The ports and territory of esoh Of those States held
In hostility tn the General Government 1t no loose
unorganzed insure ctoo, having defined boundary
possession. 1t has boundary marked by lines of bayo
nets aid which be crossed only by force South Of
this territory whose property may be used 10 increase
the revenues Of the hostile power, in this condition
liable to be treated enemies, though not foreigLe
They have of their allegiance, and made war
their Government and not the less enemies because
they are traitors"
Now, in order to ascertain the purport and scope
Of this reasoning only necessary to note the ques
tion before the court, arising under "public law
as regards captures on the ocean," and as if ex-
pressly to exclude any such generaliaations as
those sophistically drawn from their language by
Mr. Whiting, the majority of the court proceed
Immediately to add, in passage not cited by Mr..
Solicitor Whiting, (for it would cut up bis dogma
by the roots,) the following Limitations of the doc
trine propounded under cover of the technical
meaning and extent of the term " enemies proper
ty," employed in prize cases:
"But in defining the meaning of the term enemies
property will be led into IL refer to Fleta
aud Lord Coke for their definition of the word enemy
1t is technical phrase peculiar to prize courts, and
depends upon principles OF pubic dis nguished from
common law. Whether property be liable to capture
personal allegiance of the IL 10 illegal traffic that
stamps 1t enemies property 1t is Of consequence
whether II beings to an ally citizen, q Crapch, 354
the owner pro hac rice is enemy. g Washington.
G. 1887 lie produce OF the soil Of the htste terri
tory, 40 we'll other property engaged n the commerce
Of the hostile power Of its wealth and strength
always regarded legitimate prize without regard to
the domicl Of the AMI much if he side
and trade within their territory. (see Upton, chap.
final shaaf of