In these few words of this great authority is found the very discrimination which enters into the present discussion. The war in which we are now engaged is not precisely “public,” because on one side there is no Government; nor is it “private,” because on one side there is a Government; but it is “mixed,”—that is, public on one side and private on the other. On the side of the United States, it is under authority of the Government, and therefore “public”; on the other side, it is without the sanction of any recognized Government, and therefore “private.” In other words, the Government of the United States may claim for itself all belligerent rights, while it refuses them to the other side. And Grotius, in his reasoning, sustains his definition by showing that war becomes the essential agency, where public justice ends,—that it is the justifiable mode of dealing with those who are not kept in order by judicial proceedings,—and that, as a natural consequence, where war prevails, the Municipal Law is silent. And here, with that largess of quotation which is one of his peculiarities, he adduces the weighty words of Demosthenes: “Against enemies, who cannot be coerced by our laws, it is proper and necessary to maintain armies, to send out fleets, and to pay taxes; but against our own citizens, a decree, an indictment, the state vessel are sufficient.”[15] But when citizens array themselves in multitudes, they come within the declared condition of enemies. There is so much intrinsic reason in this distinction that I am ashamed to take time upon it. And yet it has been constantly neglected in this debate. Let it be accepted, and the constitutional scruples which play such a part will be out of place.
Senators seem to feel the importance of being able to treat the Rebels as “alien enemies,” on account of penalties which would then attach. The Senator from Kentucky [Mr. Davis], in his bill, proposes to declare them so, and the Senator from Wisconsin [Mr. Doolittle] has made a similar proposition with regard to a particular class. But all this is superfluous. Rebels in arms are “enemies,” exposed to all the penalties of war, as much as if they were alien enemies. No legislation is required to make them so. They are so in fact. It only remains that they should be treated so, or, according to the Declaration of Independence, that we “hold them, as we hold the rest of mankind, enemies in war, in peace friends.”
Mark now the stages of the discussion. We have seen, first, that, in point of fact, we are in the midst of rebellion and in the midst of a war,—and, secondly, that, in point of law, we are at liberty to act under powers incident to either or both of these conditions, treat the people engaged against us as criminals, or as enemies, or, if we please, as both. Pardon me, if I repeat these propositions; but it is essential that they should not be forgotten.
Therefore, Sir, in determining our course, we may banish all question of power. The power is ample and indubitable, being regulated in the one case by the Constitution, and in the other case by the Rights of War. Treating them as criminals, then are we under the restraints of the Constitution; treating them as enemies, we have all the latitude sanctioned by the Rights of War; treating them as both, then may we combine our penalties from the double source. What is done against them merely as criminals will naturally be in conformity with the Constitution; but what is done against them as enemies will have no limitation except the Rights of War.
The difference between these two systems, represented by two opposite propositions now pending, may be seen in the motive which is the starting-point of each. Treating those arrayed in arms against us as criminals, we assume sovereignty, and seek to punish for violation of existing law. Treating them as enemies, we assume no sovereignty, but simply employ the means known to war in overcoming an enemy, and in obtaining security against him. In the one case our cause is founded in Municipal Law under the Constitution, and in the other case in the Rights of War under International Law. In the one case our object is simply punishment; in the other case it is assured victory.
Having determined the existence of these two sources of power, we are next led to consider the character and extent of each under the National Government: first, Rights against Criminals, founded on sovereignty, with their limitations under the Constitution; and, secondly, Rights against Enemies, founded on war, which are absolutely without constitutional limitation. Having passed these in review, the way will then be open to consider which class of rights Congress shall exercise.