Year: 1862

perence had increased his original aptitude for such
relied upop Grotius who in his mastery work creating
the law Of nations has developed this very dscrmina-


on. He then projected 10 speak Of Senators who have
seemed feel the importance Of being able 70 treat
the rebels as "alien enemies'''-on account Of the
penalties which would then attach The Senator from
Kentucky lMr Davis) IN his oill, mas mas proposed
Doolttle) has made similar proposition with regard 70


particular class. But all this is superuous Rebels


in enemies exposed TO all the penalties OF
war as much as II they alien enemies. No legisa-
tion is required make them 50. They are so 10 iact
II only remains that they should be treated so or
according 20 the Declaration of Independence "that We
hold them the rest Of mankind enemies in war; IN
peace friends" Mark the stages Of the discussion
midst OF rebellion and in the midst of war; and Sc
condy that in point OF law at liberty to act under
the powers incident to either or to both Of these con-
dtons and that we may treat the people engaged against
criminals enemies, or, II please as both.
Pardon repeat these propositions, but II is essen


a that they should not be forgotten Therefore, sir in
determining course wo may bansh all ques-
tion OF power. The power is ample and IN
dubitabie, being regulated in the one case by
the constitution, and in the other by the rights OF
war. II we treat them rebels. then under
the restraints of the constitution II treat thom
enemies then have all the latitude sanctioned by
the rights Of war. II we treat them rs both then
combine penalties from the double sources What is
done against them merely criminals will naturally be
in conformity with the constitution; but what Is done
against them enemies will have limitation except
the rights or The difference between these sys
TENS Of conduct, represented by the two opposite propo





she starting point OF each In treating those arrayed
in arms against criminals assume sovereignty
and seek TO punish for a violation OF existing law In


treating them enemies, sovereignty, but
simply employ the means known to war in overcoming
enemy, and in obtaining security against him. In the
our course s founded in municipal law under
the constitution and in he other in the rights Of
under international law In the one our object
s simply punishment; in the other case It is assured
victory. After establishing in and authority the
existence Of the two Of power Mr. Sumner pro-
cesded to consider FIRST, the rights against criminals
founded sovereignty, with their limitation under
consiitution and, secondly the rights against
mics founded war which absolutely without
sttuona' limitation Under the first head, he passed
review the various limitations of the constitution
ing that he should not be less sensitive than any other
Senators with regard to any unconstitutional PROPOSE
tion Show him that any proposition is without support
safeguards and it could not receive his Congress
has power slavery the States but this
There must be post faco law g. No bill OF atainder.
A. No person shall be deprived Of life, liberty or pro-
perty, without due process Of law s. In all criminal
public trial by jury OF state and district where
the crime was committed. g. NO attander Of treason
shall work corruption Of blood forfeiture, except
during the life OF the person attainted. Thus
clearly the United States may exercise all the rights
OF war, which, according TO- international law, belong
to independent States In Offering this proposition
waive for the present all question whether these rights
be exercised by Congress by the President II
is sufficient that every nation has in this respect per-
feet equality; can any rights of accorded to
other nations be denied to the United States. Harsh
and repulsve these rights unquestionaby are they
derived from the overrung instructive law OF SELF
defence, which TO nations to individuals.
Every community having the form and character of
soveregny has right 70 national fe and in defence OF
principle would leave it the wreched prey Of wicked
men, abroad at home In vain you accord to it the
rights Of sovereignty you despoil 1t of other rights
without which sovereignty exist. al think there
fore, l am" was the sententious utterance by
which the first Of modern philosophers demon
strated personal existence. ~ am, therefore
have rightso may be the declaration OF
every sovereignty wien its existence is assail.d
This clause Mr.. sumner considered critically, showing
der OF treason which judgment Of DEATH and was
therefore, inappicable where there Judgment of
party had in himself convey the same absolutely
whether fee simple personally. Amidst the confusion
in which this clause is involved you expect that
will be strong restraint upon any exercise Of power
under the constitution which otherwise rational
and just Resides it is entirely inapplcabe to rights
against enemies Auxiliary TO other proceedings against
criminals, but not involving the trial Of the criminal
himself, are proceeding in rem, founded the idea
that the thing is in a certain sense the offender.
After this survey Of the limitations in the constitution
rights against criminals, Mr.. Sumner next con-
sidered in detail rights against enemies according
to the rights Of war He claimed for the United States
all acknowledged rights OF war belonging TO independent
States These rights considered under the heads of
"a rights against the enemy's property within
and R against snsmys property
preme Court Of the United States establishes the power
Congress to conscate all enemys property within our



perty of enemy land money! Ia liable TO seizure
while the property Ct private citizens is exempted but
the reason Of this clearly is, that inter-
national war the government alone is responsible for
private persons are not free to choose whereas the
present war, every rebel has chosen his part, ana
has assumed all the responsibilities of making him
self enemy. The robel cannot claim any ex
emption. He is as much liable the government
in international war in his lands well as his per-
sonal property All these rights of be welded
by Congress, but 1t must be while is pending When
war is then will come the time for penal statutes
After this survey Of questions OF law Mr. Summer next
reviewed in detail the history Of conscation ancient
and modern times-especally in France-and also the
numerous conlscation bills, upwards Of eighty In NUN.
bcr during Revolution, with the diplomatic contro-
versy to which they gave rise in the Of which
Mr. Jefferson asserted the strongest ground under the
rights Of war. Mr. Sumner then proceeded say that
in the examples Of history by which the Senate be
guided on the present occasion, the embarrassment
Of Hercules is constantly repeated. There paths
to avoid as vol as paths to take and it will be pro-
per FOR you TO determine, under the lights of the
past your shall be directed But there are
considerations OF policy, and rejoice to believe Of JUS
tce also which prevent Illumination such as cannot be
found any Of the Of history In determining
what powers TO exercise will be guided certain
extent by the object which you seek TO accomplish DO
you seek really to put down the rebellion and tread
out forever or do you seek only the passage penal
statuteY Do you seek and decisive weapon In the
war which country ID compelled wage do you
sesk nothing than to punish few rebess or, il
the object you sock simply punishment, do you wish
II TO be sure and effective or only in nameY Are You in
earnest 70 strike this rebellion with all the force sane
toned by the rights Of war; do you refuse use any
thing beyond ths peaceful process Of municipal law Iput
these questions sincerely and kindly. You will answer
them by your Yates II you not in against
this rebellion now arrayed IN you content
70 act without acting TO seem TO strike without
striking: In Short 70 seem rather than to be- you will
pass penal statute and nothing II s clear that
such statute would be Of perfect nefcency. 1t will
not produce even moderate intimdation; so much
quaker gun. With the provision our constitution
applicable 60 jury trials in criminal cases. it is obvious
that throughout the whole rebel country there can be
convictions under such statute Proceedings would fail
through the disagreement Of the jury, while the efforts
Of counsel would make every occasion of
tion. Nobody would be executed So strongly am
convinced Of this that accustomed consider the
gaows as ont OF the question. II is not possibility
punishment for this rebellion. Nor would any
siderable forfeiture con6scaton be sanctioned by
jury. think that in this judgment do err But IL
this be SO, surely ought TO take all proper steps
avoid such failure Of Justice Let Senators things
they are. Let not deceive ourselves or deceive
others. new statute against treason will be simply
few pages the statute book, and that is all.


cannot doubt that Senators in earnsst--that they
what they cay. and that they intend to do all in
their power by all proper legislation, to carry the
to lna close. But II this be their purpose they wiz
hesitate employ all the rights of