Year: 1862

together masters and slaves, and bidding the lat
ter 90 free, and if so, whether we shall simply
turn them loose, or make them available
for the prosecution of the WARFARE all questions
to be considered, and measures to be carried into
effect by the President as Commander-in Chief of
the army, and by those who act under him and by
his authority


If this be a fair and correct statement of the
laws of war as they now are-and that it is |
think will not be controverted by any one who
will take the pains TO give the subject candid
examination, then whence the necessity of such
legislation as is proposed by the bill, and what
other effect could the bill have if passed, than to
exasperate on the one side, and complicate and
embarrass on the otherI


WHAT RELATION THE REBELS SUSTAIN TO UNDER


THE CONSTITUTION.


To bring my own mind to satisfactory conclu-
siOns to powers of legislation upon the
great questions before us, it has seemed to me
that the first step was to determine what relation,
under the Constitution, the rebels sustain TO US,
and must sustain during the continuance of the
war? When this is done, our own course will be
disembarrassed of much which might otherwise
seem difficult. We cannot regard them alien
enemies To do so would admit the permanent
dismemberment of the States the overthrow of
the Union, the triumph of their cause, their sepa-
rate and independent nationality. 1t would be
to admit all for which they contend. and the fur
ther prosecution of the war would be both wick
ed and Obectless. Nothing would remain but to
adjust the terms Of settlement, close the strife
and accept the rebellion accomplished rev.
oluton. If not alien enemies, then they must
stand to us in one of two other relations:


First, as citizens in so formidable rebellion as
to reach the dignity of civil war, in which
event we must recognize them as belligerents and
public enemies while the war lasts, and deal with
them during that time according to the laws of
war, as asceItained and settled by the law of ma
tons, with the right unmpaired, when the rebel
lion shall be crushed, to resume authority over
them as citizens, and grant an amnesty for past
ofIenses or punish them for treason, in accord
ance with the Constitution and laws in such cases
provided; or,


Second, as nsurgent citizens, entitled to no
beIligerent rights, but subject to be indicted,
tried convicted and executed as traitors as soon
and as fast as captured. Very manifestly we can
not adopt this latter course. The rebellion is too
formidable, too huge in its proportions to admit
of it. If adopted it would soon degenerate into
the indiscrimnate slaughter on both sides of all
who were so unfortunate as to be captured rs
prisoners. 1t would become a wax of extermina-
ton, too barbarous sanguinary and relentless for
contemplation. The other nations of the world
would not stand by idle spectators of the murder
Gus strife, but, by common consent, would inter





to humanity, civilization and Christianity. Such
extreme measures would defeat their own ends
and aims. There is, then. but one course open
to us and that is, as long the war continues to
regard them as belgerents and public enemies,
entitled to be dealt with according to the laws of
war as settled by the law of nations.


This my colleague admits. He says:


when a rebellion becomes so formidable as
to be able to muster armies of hundreds of
thousands of men, and maintain itself in arms
against the forces of the Government for almost
year, it surely has attained a magnitude en-
titling it to be called civil war; and information
al law writer's agree that the common laws of
war are to be observed in a civil war in the
same manner as in war between independent
States"


THE RIGHTS OF THE REBELS AS BELLIGERENTs UN-


DER THE LAWS OF WAR.


Upon this, then, We all agree, that we must ac-
cord to the rebels while the war lasts the charac
ter of belligerents, and that, under the laws of
war, we can do to and with them Just what
could do to and with the citizens of Canada, if
we were at war with Great Britain, and nothing
more. And what would that be? Why, Just
what the laws as settled and established by the
law of nations, would permit kill in battle, cap
ture those in arms and hold them as prisoners Of
war, and capture and confscate all their muni
tions OF war; and all their property of every kind
and character which had any relation to the end
of the war, and by the capture and confscation
of which we would either strengthen ourselves or
weaken them. And this would be done by the
Generals in the field acting by the orders of the
President. And if Congress should attempt to
pass a law authorizing and directing the army TO
do anything to either person or property not
ranted by the law of nations, that act of Con-
gress would be null and void. 1t would be no
law. The law of nations, and not municipal
laws, fix and regulate belligerent rights, and
law of Congress can neither make nor modify a
law of nations and if the act of Congress should
conform to the law Of nations, then it would be
only declaratory, but it would give no additional
force or efficacy to the pre-existing law.


Now, sir, If we were at war with Great Britain,
the passage of law by US to conhscate the prop
erty of the citizens of Canada to the same extent
and in the same manner that this bill proposes to
confiscate the property OF the citizens of the rebel
States would bring upon us the ridcule of the
world; and if we executed the law, as it could only
be executed by marching an army into the ene-
my's country, and by the strong hand of war,
robbing and plundering all the people, in the Ian
guage of the bill Of all "the property, real and
personal, of every kind whatsoever, and whereso-
ever situated" and reducing them to abject pow
erty, to the pnchings of want, to the horrors of
famine, we would bring upon ourselves the de-
served execratio0s of mankind. Gould we do it?
Will any one contend that we would have the
power to do itT And would our own people con-
sent to such an act of barbarism if we had the
power7


And now, sir, | respectfully ask of my col.
league, and all other Senators who support this
bill, whether, if we regard the rebels as beliger-
ents and public enemies, we are not bound to deal
with them under the laws of nations as long as
the continues precisely we would be bound
to deal with foreign nation with which W. might
be at war; and further, whether, if we were at
with foreign nation, we could pass such
bill as this in regard to its people, and whether
we would have any right to execute il upon them
even if we did pass it? A correct answer 10 these
inquiries will dispose of the questions before us.
provided we recognize the rebels as bellige. snts
and public enemies.


But five do not recognize them as belIigerents
and pubic enemies. then the law of nations will
have no application, but we will be obliged to
treat them insurgent citizens, and deal with
them under the Constitution and municipal laws
made to carry into effect the provisions Of the
Constitution. And what in that event would be
the course OF proceedingT What in that event
would we have power to do in respect to the con-
fscation of their property III they were shot
down on the battlefield, nothing; there would
be an end of it. If they we're captured alive,
they would be subject to immediate trial and pun
ishment for treason without waiting for the end
of the war, according to the provisions of the
Constitution and laws in that regard. and in no
other way, and to greater extent And what
would that punishment be? The second clause
of the third section of the third article of the
Constitution declares:


"The Congress shall have power to declare
the punishment of treason, but no attainder
OF treason shall work corruption of blood. or
forfeiture, except during the lie of the person
attainted."


The law declares that the punishment of the
.o..o. ahoIl ho daafh Eorfoifura nj nrouarf y