Therefore, according to the Rights of War, slaves, if regarded as property, may be declared free; or if regarded as men, they may be declared free, under two acknowledged rules: first, of self-interest, to procure an ally; and, secondly, of conscience and equity, to do an act of justice ennobling victory.
Such, Sir, are acknowledged Rights of War with regard to enemy property, whether within or beyond our territorial jurisdiction. I do little more than state these rights, without stopping to comment. If they seem harsh, it is because war in essential character is harsh. It is sufficient for our present purpose that they exist.
Of course, all these rights belong to the United States. There is not one of them which can be denied. They are ours under that great title of Independence by which our place was assured in the Family of Nations. Dormant in peace, they are aroused into activity only by the breath of war, when they all place themselves at our bidding, to be employed at our own time, in our own way, and according to our own discretion, subject only to that enlightened public opinion which now rules the civilized world.
Belonging to the United States by virtue of International Law, and being essential to self-defence, they are naturally deposited with the supreme power, which holds the issues of peace and war. Doubtless there are Rights of War, embracing confiscation, contribution, and liberation, to be exercised by any commanding general in the field, or to be ordered by the President, according to the exigency. Mr. Marcy was not ignorant of his duty, when, by instructions from Washington, in the name of the President, he directed the levy of contributions in Mexico. In European countries all these Rights of War which I have reviewed to-day are deposited with the executive alone,—as in England with the Queen in Council, and in France and Russia with the Emperor; but in the United States they are deposited with the legislative branch, being the President, Senate, and House of Representatives, whose joint action becomes the supreme law of the land. The Constitution is not silent on this question. It expressly provides that Congress shall have power, first, “to declare war,” and thus set in motion all the Rights of War; secondly, “to grant letters of marque and reprisal,” being two special agencies of war; thirdly, “to make rules concerning captures on land and water,” which power of itself embraces the whole field of confiscation, contribution, and liberation; fourthly, “to raise and support armies,” which power, of course, comprehends all means for this purpose known to the Rights of War; fifthly, “to provide and maintain a navy,” plainly according to the Rights of War; sixthly, “to make rules for the government and regulation of the land and naval forces,” another power involving confiscation, contribution, and liberation; and, seventhly, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” a power which again sets in motion all the Rights of War. But, as if to leave nothing undone, the Constitution further empowers Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” In pursuance of these powers, Congress has already enacted upwards of one hundred articles of war for the government of the army, one of which provides for the security of public stores taken from the enemy. It has also sanctioned the blockade of the Rebel ports according to International Law. And only at the present session we have enacted an additional article to regulate the conduct of officers and men towards slaves seeking shelter in camp. Proceeding further on the present occasion, it will act in harmony with its own precedents, as well as with its declared powers, according to the very words of the Constitution. Language cannot be broader. Under its comprehensive scope there is nothing essential to the prosecution of the war, its conduct, its support, or its success,—yes, Sir, there can be nothing essential to its success, which is not positively within the province of Congress. There is not one of the Rights of War which Congress may not invoke. There is not a single weapon in its terrible arsenal which Congress may not grasp.
Such are indubitable powers of Congress. It is not questioned that these may all be employed against a public enemy; but there are Senators who strangely hesitate to employ them against that worst enemy of all, who to hostility adds treason, and teaches his country
“How sharper than a serpent’s tooth it is