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." 1

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." 2

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:

"We are not at liberty to consider the island in

1 Rose v. Himely, 4 Cranch, S. C. R., pp. 272, 273.

2 Ibid., pp. 288, 289.

any

other

light than as part of the dominions of the French Republic. But supposing it to be so, the Republic is possessed of belligerent rights....

.

"Although the French Government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which by the Law of Nations it was entitled in the existing circumstances. This was the course pursued by Great Britain in the Revolutionary War with the United States. . . . . Considering the words of the arrêté, and the circumstances under which it was made, it ought not to be understood simply as a municipal regulation, but a municipal regulation connected with a state of war with revolted subjects." 1

The principle embodied in these cases is accurately stated by a recent text-writer as follows.

.

"A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sovereign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent, the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, . . . . the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as Courts of Prize, governed by and administering the Law of Nations." 2

The same principle has received most authentic decla

1 Cheriot v. Foussat, 3 Binney, R., pp 252, 253.

2 Upton, The Law of Nations affecting Commerce during War, pp. 211,

212.

ration in the recent judgment of an able magistrate in a case of Prize for a violation of the blockade. I refer to the case of the Amy Warwick, tried in Boston, where Judge Sprague, of the District Court, expressed himself as follows.

"The United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war." 1

Among all the judges called to consider judicially the character of this Rebellion, I know of none whose opinion is entitled to more consideration. Long experience has increased his original aptitude for such questions, and made him an authority.

There is an earlier voice, which, even if all judicial tribunals had been silent, would be decisive. I refer to Hugo Grotius, who, by his work "De Jure Belli ac Pacis," became the lawgiver of nations. Original in conception, vast in plan, various in learning, and humane in sentiment, this effort created the science of International Law, which, since that early day, has been softened and refined, without essential change in the principles then enunciated. His master mind anticipated the true distinction, when, in definition of War, he wrote as follows.

"The first and most necessary partition of war is this: that war is private, public, or mixed. Public war is that which is carried on under the authority of him who has jurisdiction; private, that which is otherwise; mixed, that which is public on one side and private on the other." 2

1 Law Reporter, Vol. XXIV. p. 345, April, 1862.

2 Lib. I. cap. 3, § 1.

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." 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 constitu

1 Oratio de Chersoneso, p. 97: Grotius, De Jure Belli ac Pacis, Prolegom.