Part 2

“During your Congressional career, I have so uniformly found my views and feelings on public affairs in accordance with those of your speeches, that I now feel myself obliged, for once at least (for I shall not often trouble you), to express my gratitude, and give a word of good cheer to you, who, amid so many discouragements, and under so much obloquy as has been attempted to be thrown upon you, have ever so faithfully and manfully stood up for the oppressed and for liberal principles.

“It appears to me, on reading your speeches, that I find my own views and principles announced, stated, and clothed with a richness and beauty of style and illustration that I admire, but cannot emulate.

“Again, I am much pleased that you always deal fairly with your opponents, not using misrepresentation and _ad captandum_ argument, but drawing your weapons from the armory of truth and right.”

Professor Ordronaux, of Columbia College, New York, wrote:--

“Last year, while in England, I had the honor of meeting many gentlemen of your acquaintance, and, amid the many bitter things I was compelled to listen to, it was a source of constant satisfaction and pride to hear them acknowledge the great confidence they reposed in you, and the earnest wish they expressed for the success of that _novus ordo sæclorum_ in the Senate, for which we are so much indebted to you. Reading over for the third time your famous Kansas speech, of May, 1856,[7] this morning, I was struck with the almost prophetic character of its language. The crime against Nature has indeed culminated. It struck you down, and then went dancing like a maniac, all the while approaching that bottomless abyss into which it is now descending. Can you doubt that Nemesis still wields her sword and flaming torch?”

These expressions of sympathy and good-will, overflowing from opposite quarters, are a proper prelude to other utterances, widely different in tone, aroused against Mr. Sumner by the very persistency of his course. Appearing in their proper place, these will be better comprehended from knowing already the other side.

SPEECH.

MR. PRESIDENT,--If I can simplify this discussion, I shall feel that I have done something towards establishing the truth. The chief difficulty springs from confusion with regard to different sources of power. This I shall try to remove.

* * * * *

There is a saying, often repeated by statesmen and often recorded by publicists, which embodies the direct object of the war we are now unhappily compelled to wage,--an object sometimes avowed in European wars, and more than once made a watchword in our own country: “Indemnity for the past, and Security for the future.” Such should be our comprehensive aim,--nor more, nor less. Without indemnity for the past, this war will have been waged at our cost; without security for the future, this war will have been waged in vain, treasure and blood will have been lavished for nothing. But indemnity and security are both means to an end, and that end is the National Unity under the Constitution of the United States. It is not enough, if we preserve the Constitution at the expense of the National Unity. Nor is it enough, if we enforce the National Unity at the expense of the Constitution. Both must be maintained. Both will be maintained, if we do not fail to take counsel of that prudent courage which is never so much needed as at a moment like the present.

Two things we seek as means to an end: Indemnity for the past, and Security for the future.

Two things we seek as the end itself: National Unity, under the Constitution of the United States.

In these objects all must concur. But how shall they be best accomplished?

The Constitution and International Law are each involved in this discussion. Even if the question itself were minute, it would be important from such relations. But it concerns vast masses of property, and, what is more than property, it concerns the liberty of men, while it opens for decision the means to be employed in bringing this great war to a close. In every aspect the question is transcendent; nor is it easy to pass upon it without the various lights of _jurisprudence_, of _history_, and of _policy_.

Sometimes it is called a constitutional question exclusively. This is a mistake. In every Government bound by written Constitution nothing is done except in conformity with the Constitution. But in the present debate there need be no difficulty or doubt under the Constitution. Its provisions are plain and explicit, so that they need only to be recited. The Senator from Pennsylvania [Mr. COWAN] and the Senator from Vermont [Mr. COLLAMER] have stated them strongly; but I complain less of their statement than of its application. Of course, any proposition really inconsistent with these provisions must be abandoned. But if, on the other hand, it be consistent, then is the way open to its consideration in the lights of history and policy.

If there be any difficulty now, it is not from the question, but simply from the facts,--as often in judicial proceedings it is less embarrassing to determine the law than the facts. If things are seen as they really are and not as Senators fancy or desire, if the facts are admitted in their natural character, then must the constitutional power of the Government be admitted also, for this power comes into being on the occurrence of certain facts. Only by denying the facts can the power itself be drawn in question. But not even the Senator from Pennsylvania or the Senator from Vermont denies the facts.

* * * * *

The facts are simple and obvious. They are all expressed or embodied in the double idea of Rebellion and War. Both of these are facts patent to common observation and common sense. It would be an insult to the understanding to say that at the present moment there is no Rebellion or that there is no War. Whatever the doubts of Senators, or their fine-spun constitutional theories, nobody questions that we are in the midst of _de facto_ Rebellion and in the midst of _de facto_ War. We are in the midst of each and of both. It is not enough to say that there is Rebellion; nor is it enough to say that there is War. The whole truth is not told in either alternative. Our case is double, and you may call it Rebellion or War, as you please, or you may call it both. It is Rebellion swollen to all the proportions of war, and it is War deriving its life from rebellion. It is not less Rebellion because of its present full-blown grandeur, nor is it less War because of the traitorous source whence it draws its life.

The Rebellion is manifest,--is it not? An extensive territory, once occupied by Governments rejoicing in allegiance to the Union, and sharing largely in its counsels, has undertaken to overthrow the National Constitution within its borders. Its Senators and Representatives have withdrawn from Congress. The old State Governments, solemnly bound by the oaths of their functionaries to support the National Constitution, have vanished; and in their place appear pretended Governments, which, adopting the further pretension of a Confederacy, have proceeded to issue letters of marque and to levy war against the United States. So far has displacement of the National Government prevailed, that at this moment, throughout this whole territory, there are no functionaries acting under the United States, but all are pretending to act under the newly established Usurpation. Instead of the oath to support the Constitution of the United States, required of all officials by the Constitution, another oath is substituted, to support the Constitution of the Confederacy; and thus the Rebellion assumes a completeness of organization under the most solemn sanctions. In point of fact, throughout this territory the National Government is ousted, while the old State Governments have ceased to exist, lifeless now from Rebel hands. Call it suicide, if you will, or suspended animation, or abeyance,--they have practically ceased to exist. Such is the plain and palpable fact. If all this is not rebellion, complete in triumphant treason, then is rebellion nothing but a name.

But the War is not less manifest. Assuming all the functions of an independent government, the Confederacy has undertaken to declare war against the United States. In support of this declaration it has raised armies, organized a navy, issued letters of marque, borrowed money, imposed taxes, and otherwise done all that it could in waging war. Its armies are among the largest ever marshalled by a single people, and at different places throughout a wide-spread territory they have encountered the armies of the United States. Battles are fought with the varying vicissitudes of war. Sieges are laid. Fortresses and cities are captured. On the sea, ships bearing the commission of the Rebellion, sometimes as privateers and sometimes as ships of the navy, seize, sink, or burn merchant vessels of the United States; and only lately an iron-clad steamer, with the flag of the Rebellion, destroyed two frigates of the United States. On each side prisoners are made, who are treated as prisoners of war, and as such exchanged. Flags of truce pass from camp to camp, and almost daily during the winter this white flag has afforded its belligerent protection to communications between Norfolk and Fortress Monroe, while the whole Rebel coast is by proclamation of the President declared in a state of blockade, and ships of foreign countries, as well as of our own, are condemned by courts in Washington, Philadelphia, New York, and Boston, as prize of war. Thus do all things attest the existence of war, which is manifest now in the blockade, upheld by judicial tribunals, and now in the bugle, which after night sounds truce, indubitably as in mighty armies face to face on the battle-field. It is war in all its criminal eminence, challenging all the pains and penalties of war, enlisting all its terrible prerogatives, and awaking all its dormant thunder.

Further effort is needless to show that we are in the midst of a Rebellion and in the midst of a War,--or, in yet other words, that unquestionable war is now waged to put down unquestionable rebellion. But a single illustration out of many in history will exhibit this double character in unmistakable relief. The disturbances which convulsed England in the middle of the seventeenth century were occasioned by the resistance of Parliament to the arbitrary power of the Crown. This resistance, prolonged for years and maintained by force, triumphed at last in the execution of King Charles and the elevation of Oliver Cromwell. The historian whose classical work was for a long time the chief authority relative to this event styles it “The Rebellion,” and under this name it passed into the memory of men. But it was none the less war, with all the incidents of war. The fields of Naseby, Marston Moor, Dunbar, and Worcester, where Cavaliers and Puritans met in bloody shock, attest that it was war. Clarendon called it Rebellion, and the title of one of his works makes it “The Grand Rebellion,”--how small by the side of ours! But a greater than Clarendon--John Milton--called it War, when, in unsurpassed verses, after commemorating the victories of Cromwell, he uses words so often quoted without knowing their original application:--

“Yet much remains To conquer still: Peace hath her victories No less renowned than War.”[8]

The death of Cromwell was followed by the restoration of King Charles the Second; but the royal fugitive from the field of Worcester, where Cromwell triumphed in war, did not fail to put forth the full prerogatives of sovereignty in the suppression of rebellion; and all who sat in judgment on the king, his father, were saved from the fearful penalties of treason only by exile. Hugh Peters, the Puritan preacher, and Harry Vane, the Puritan senator, were executed as traitors for the part they performed in what was at once rebellion and war, while the body of the great commander who defeated his king in battle, and then sat upon his throne, was hung in chains, as a warning against treason.

Other instances might be given to illustrate the double character of present events. But enough is done. My simple object is to exhibit this important point in such light that it will be at once recognized. And I present the Rebellion and the War as obvious _facts_. Let them be seen in their true character, and it is easy to apply the law. Because Senators see the facts only imperfectly, they hesitate with regard to the powers we are to employ,--or perhaps it is because they insist upon seeing the fact of Rebellion exclusively, and not the fact of War. Let them open their eyes, and they must see both. If I seem to dwell on this point, it is because of its practical importance in the present debate. For myself, I assume it as an undeniable postulate.

* * * * *

The persons arrayed for the overthrow of the Government of the United States are unquestionably _criminals_, subject to all the penalties of rebellion, which is of course treason under the Constitution of the United States.

The same persons arrayed in war against the Government of the United States are unquestionably _enemies_, exposed to all the incidents of war, with its penalties, seizures, contributions, confiscations, captures, and prizes.

They are _criminals_, because they set themselves traitorously against the Government of their country.

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.”[9]

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._”[10]

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 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.”[11]

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.”[12]

The same principle has received most authentic declaration 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.”[13]

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_.”[14]

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.