war. to sanction or authorize the commencement of offensive If the United States commence hostilities against a foreign nation, such commencement is by proclamation, ⚫ which is equivalent to a declaration of war. But this is quite a different case from a defensive or a civil war. The constitution establishes the mode in which this government shall commence wars, and what authority shall ordain, and what declarations shall precede, any act of hostility; but it has no power to prescribe the manner in which others should begin war against us. Hence it follows, that when war is commenced against this country, by aliens or by citizens, no declaration of war by the government is necessary. The fact that war is levied. against the United States, makes it the duty of the President to call out the army or navy to subdue the enemy, whether foreign or domestic. The chief object of a declaration of war is to give notice thereof to neutrals, in order to fix their rights, and liabilities to the hostile powers, and to give to innocent parties reasonable time to withdraw their persons and and property from danger. If the commander-in-chief could not call out his forces to repel an invasion until Congress should have made a formal declaration of war, a foreign army might march from Canada to the Gulf before such declaration could be made, if it should commence the campaign while Congress was not in session. Before a majority of its members could be convened, our navy might be swept from the seas. The constitution, made as it was by men of sense, never leaves the nation powerless for self-defence. That instrument, which gives the legislature authority to declare war, whenever war is initiated by the United States, also makes it the duty of the President, as com * See opinion of the Supreme Court of the U. S. on this subject, pronounced since the 4th edition of this work was published. Appendix, p. 141. mander-in-chief, to engage promptly and effectually in war; or, in other words, to make the United States a belligerent nation, without declaration of war, or any other act of Congress, whenever he is legally called upon to suppress rebellion, repel invasion, or to execute the laws against armed and forcible resistance thereto. The President has his duty, Congress have theirs; they are separate, and in some respects independent. Nothing is clearer than this, that when such a state of hostilities exists as justifies the President in calling the army into actual service, without the authority of Congress, no declaration of war is requisite, either in form or substance, for any purpose whatsoever. Hence it follows, that government, while engaged in suppressing a rebellion, is not deprived of the rights of a belligerent against rebels, by reason of the fact that no formal declaration of war has been made against them, as though they were an alien enemy, nor by reason of the cir cumstance that this great civil war originated, so far as we are parties to it, in an effort to resist an armed attack of citizens upon the soldiers and the forts of the United States. It must not be forgotten that by the law of nations and by modern usage, no formal declaration of war to the enemy is made or deemed necessary.* All that is now requisite is for each nation to make suitable declarations or proclamations to its own citizens, to enable them to govern themselves accordingly. These have been made by the President. HAS GOVERNMENT FULL WAR POWERS AGAINST REBEL CITIZENS? Some persons have questioned the right of the United States to make and carry on war against citi * See 1 Kent's Com. p. 54. zens and subjects of this country. Conceding that the President may be authorized to call into active service the navy and army "to repel invasion, or suppress rebellion," they neither admit that suppressing rebellion places the country in the attitude of making war on rebels, nor that the commander-in-chief has the constitutional right of conducting his military operations as he might do if he were actually at war (in the ordinary sense of the term) against an alien enemy. Misapprehension of the meaning of the constitution on this subject has led to confusion in the views of some members of Congress during the last session, and has in no small degree emasculated the efforts of the majority in dealing with the questions of emancipation, confiscation, and enemy's property. Some have assumed that the United States are not at war with rebels, and that they have no authority to exercise the rights of war against them. They admit that the army has been lawfully called into the field, and may kill those who oppose them; they concede that rebels may be taken captive, their gunboats may be sunk, and their property may be seized; that martial law may be declared in rebellious districts, and its pains and penalties may be enforced; that every armed foe may be swept out of the country by military power. Yet they entertain a vague apprehension that something in the constitution takes away from these military proceedings, in suppressing rebellion and in resisting the attacks of the rebels, the quality and character of warfare. All these men in arms are not, they fancy, "making war." When the citizens of Charleston bombarded Fort Sumter, and captured property exclusively owned by the United States, it is not" denied that they were "waging war" upon upon the government. When Major Anderson returned the enemy's fire and attempted to defend the fort and the guns from capture, it is denied that the country was "waging war." While other nations, as well as our own, had formally or informally conceded to the rebels the character and the rights usually allowed to belligerents, that is, to persons making war on us, we, according to the constitutional scruple above stated, were not entitled to the rights of belligerents against them. It therefore becomes important to know what, according to the constitution, the meaning of the term "levying war" really is; and as the military forces of this country are in actual service to suppress rebellion, whether such military service is making war upon its own citizens; and if war actually exists, whether there is any thing in the constitution that limits or controls the full enjoyment and exercise by the government of the rights of a belligerent against the belligerent enemy ? IS "SUPPRESSING REBELLION" BY ARMS MAKING WAR ON THE CITIZENS OF THE UNITED STATES, IN THE SENSE OF THE CONSTITUTION? To repel invasion" by arms, all admit, is entering upon defensive war against the invader. War exists wherever and whenever the army or navy is in active service against a public enemy. When rebels are organized into armies in large numbers, overthrow the government, invade the territory of States not consenting thereto, attack, and seize, and confiscate the property not of the government only, but of all persons who continue loyal, such proceedings constitute war in all its terrors a war of subjugation and of conquest, as well as of rebellion. Far less than these operations constitutes the levying of war, as those terms are explained in the language of the constitution. "War is levied" on the United States wherever and whenever the crime of treason is committed, (see Constitution, Art. III., Sect. 3, Cl. 3,) and under that clause, as interpreted by the Supreme Court, "war is levied" when there exists a combination resorting to overt acts to oppose generally the execution of any law of the United States, even if no armed force be used. The language of the constitution is clear and express. "Treason shall consist only in levying war upon the United States, or in giving aid and comfort to the enemy." If, therefore, any person, or collection of persons, have committed the crime of treason, the constitution declares them to have levied war. As traitors they have become belligerent, or war levying enemies. War may be waged against the government or by the government; it may be either offensive or defensive. Wherever war exists there must be two parties to it. If traitors (belligerents by the terms of the constitution) are one party, the government is the other party. If, when treason is committed, any body is at war, then it follows that the United States are at war. The inhabitants of a section of this country have issued a manifesto claiming independence; they have engaged in open war on land and sea to maintain it; they have invaded territory of peaceful and loyal sections of the Union; they have seized and confiscated ships, arsenals, arms, forts, public and private property of our government and people, and have killed, captured, and impris oned soldiers and private citizens. Of the million of |