They are criminals, because they set themselves traitorously against the Government of their country.
They are enemies, because their combination assumes the front and proportions of war.
It is idle to say that they are not criminals. It is idle to say that they are not enemies. They are both, and they are either; and it is for the Government of the United States to proceed against them in either character, according to controlling considerations of policy. This right is so obvious, on grounds of reason, that it seems superfluous to sustain it by authority. But since its recognition is essential to the complete comprehension of our present position, I shall not hesitate to illustrate it by judicial decisions, and also by an earlier voice.
A judgment of the Supreme Court of the United States cannot bind the Senate on this question; but it is an important guide, to which we all bow with respect. In the best days of this eminent tribunal, when Marshall was Chief Justice, in a case arising out of the efforts of France to suppress insurrection in the colony of San Domingo, it was affirmed by the Court that in such a case there were two distinct sources of power open to exercise by a government,—one found in the rights of a sovereign, the other in the rights of a belligerent, or, in other words, one under Municipal Law, and the other under International Law,—and the exercise of one did not prevent the exercise of the other. Belligerent rights, it was admitted, might be superadded to the rights of sovereignty. Here are the actual words of Chief-Justice Marshall:—
“It is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and of the proceedings under it will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power.”[9]
Here are the words of another eminent judge, Mr. Justice Johnson, in the same case:—
“But there existed a war between the parent state and her colony. It was not only a fact of the most universal notoriety, but officially notified in the gazettes of the United States.… Here, then, was notice of the existence of war, and an assertion of the rights consequent upon it. The object of the measure was … solely the reduction of an enemy. It was, therefore, not merely municipal, but belligerent, in its nature and object.”[10]
Although the conclusion of the Court in this case was afterwards reversed, yet nothing occurred to modify the judgment on the principles now in question; so that the case remains authority for double proceedings, municipal and belligerent.
On a similar state of facts, arising from the efforts of France to suppress the insurrection in San Domingo, the Supreme Court of Pennsylvania asserted the same principle; and here we find the eminent Chief-Justice Tilghman—one of the best authorities of the American bench—giving to it the weight of his enlightened judgment. These are his words:—