To have a thankless child.”
The rebel in arms is an enemy, and something more; nor is there any Right of War which may not be employed against him in its extremest rigor. In appealing to war, he has voluntarily renounced all safeguards of the Constitution, and put himself beyond its pale. In ranging himself among enemies, he has broken faith so as to lose completely all immunity from the strictest penalties of war. As an enemy, he must be encountered; nor can our army be delayed in the exercise of the Rights of War by any misapplied questions of ex post facto, bills of attainder, attainder of treason, due process of law, or exemption from forfeiture. If we may shoot rebel enemies in battle, if we may shut them up in fortresses or prisons, if we may bombard their forts, if we may occupy their fields, if we may appropriate their crops, if we may blockade their ports, if we may seize their vessels, if we may capture their cities, it is vain to say that we may not exercise against them the other associate prerogatives of war. Nor can any technical question of constitutional rights be interposed in one case more than another. Every prerogative of confiscation, requisition, or liberation known in war may be exercised against rebels in arms precisely as against public enemies. Ours are belligerent rights to the fullest extent.
Sir, the case is strong. The Rebels are not only criminals, they are also enemies, whose property is actually within the territorial jurisdiction of the United States; so that, according to the Supreme Court, it only remains for Congress to declare the Rights of War to be exercised against them. The case of Brown,[33] so often cited in this debate, affirms that enemy property actually within our territorial jurisdiction can be seized only by virtue of an Act of Congress, and recognizes the complete liability of all such property, when actually within such territorial jurisdiction. It is therefore, in all respects, a binding authority, precisely applicable; so that Senators who would impair its force must deny either that the Rebels are enemies or that their property is actually within the territorial jurisdiction of the United States. Assuming that they are enemies, and that their property is actually within our territorial jurisdiction, the power of Congress is complete; and it is not to be confounded with that of a commanding general in the field, or of the President as commander-in-chief of the armies.
Pardon me, if I dwell on one point with regard to the property of rebels in arms by which it is distinguishable from the private property of enemies in international war. Every rebel in arms is directly responsible for his conduct, as in international war the government or prince is directly responsible; so that on principle he can claim no exemption from any penalty of war. And since Public Law is founded on reason, it follows that the rule subjecting to seizure and forfeiture all property, real as well as personal, of the hostile government or prince should be applied to all property, real and personal, of the rebel in arms. It is impossible for him to claim the immunity conceded generally to private property of an enemy in international war, and also conceded generally to land of an enemy within our territorial jurisdiction. For the rebel in arms there is no just exemption.
When claiming these powers for Congress, it must also be stated that there is a limitation of time with regard to their exercise. Whatever is done against the Rebels in our character as belligerents under the Rights of War must be done during war, and not after its close. Naturally the Rights of War end with the war, except in those consequences which have become fixed during the war. With the establishment of peace the Rights of Peace resume sway, and all proceedings are according to the prescribed forms of the Constitution. Instead of laws silenced by arms, there are arms submissive to laws. Instead of courts martial or military proceedings, there are the ordinary courts of justice with all constitutional safeguards. If this change needed illustration, it would be found in a memorable passage of French history. Marshal Ney, who had deserted Louis the Eighteenth to welcome Napoleon from Elba, was, after the capitulation of Paris, handed over to a council of war for trial; but the council, composed of marshals of France, declared itself incompetent, since the case involved treason, and the accused was carried before the Chamber of Peers, of which he was a member, according to the requirements of the French Charter. His condemnation and execution have been indignantly criticized, but the form of trial was a homage to the pacification which had been proclaimed. Therefore let it be borne in mind that all proceedings founded on the Rights of War will expire, when the Constitution is again established throughout the country. They are temporary and incidental, in order to secure that blessed peace which we all seek.
So completely are these rights distinguished from ordinary municipal proceedings against crime, that they are administered by tribunals constituted for the purpose, with well-known proceedings of their own. Courts of Prize have a fixed place in the judicial system of the United States, and their jurisdiction excludes that of municipal tribunals, so that no action can be brought in a court of Common Law on account of a seizure jure belli. It is their province to hear all cases of prize or capture,—in short, every case of property arising under the Rights of War; and although practically these cases are chiefly maritime, yet the jurisdiction of such courts is held to embrace hostile seizures on shore.[34] The hearing is by the court alone, without a jury, substantially according to forms derived from the Roman Law; and the ordinary judgment is against the thing captured, or in rem, pronouncing its condemnation and distribution. In every case of prize or capture, involving a question of property, and not of crime, these proceedings constitute “due process of law,” so as to be completely effective under the Constitution, and, according to acknowledged principles, they supersede the jurisdiction of all mere municipal tribunals.
Among the few cases illustrating this exclusive jurisdiction in matters of capture and prize on land is one which arose from the exercise of military power in a conquered province in India, and was at last considered and decided by the Privy Council in England, after most elaborate argument by the most eminent barristers of the time. The facts are few. Upon the conquest of Poonah, in 1817, Mr. Mountstuart Elphinstone, perhaps the most finished man, and of completest gentleness, who ever exercised power in British India, was appointed “sole commissioner for the settlement of the territory conquered, with authority over all the civil and military officers employed in it.” In the discharge of his dictatorial functions, he proceeded to appoint a “provisional collector and magistrate of the city of Poonah and the adjacent country,” whom he instructed “to deprive the enemy of his resources, and in this and all other points to make everything subservient to the conduct of the war.” After indicating certain crimes to be treated with summary punishment, he proceeded to confer plenary powers, saying: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, unless where they are clearly repugnant to reason and natural equity.” Under these instructions the provisional collector seized several bags of gold, in the house of a prominent enemy. In an action before the Supreme Court of Bombay for the value of this treasure, and of a quantity of jewels and shawls taken by the military, judgment was given for the claimant. But this was overruled by the Court of Appeals in England, on the ground, that, in the actual state of warfare at that time, there was no jurisdiction over a question of prize and capture in an ordinary municipal court. At the bar it was argued:—
“No country can ever be thoroughly brought under subjection, if it is to be held, that, where there has been a conquest and no capitulation, the mere publication of a proclamation, desiring the people to be quiet, and telling them what means would be resorted to, if they were not so, so far reduces the country under the civil rule, that the army loses its control, and the municipal courts acquire altogether jurisdiction, so that every action of the officers in the direction of military affairs is liable to their cognizance.”[35]