Belligerent rights

“ Against our Rebels the Nation had two sources of power and two arsenals of rights,—one of these being the powers and rights of sovereignty, and the other the powers and rights of war,—the former being determined by the Constitution, the latter by International Law. The Nation might pursue a Rebel as traitor or as belligerent; but whether traitor or belligerent, he was always an enemy. ”

“ A belligerent may carry on his commerce by force; a neutral cannot. A belligerent may capture the property of his enemy on the ocean; a neutral has no authority whatever to make captures. The same act, therefore, that, with reference to the rights and duties of the one, may be tortious, may, with reference to the rights and duties of the other, be perfectly justifiable. ”

“ To conclude, it is manifest that another strong evidence of the control over military law in peace, and over these belligerent rights in civil strife, which is proper in a bold and independent judiciary, exists in this fact, that whenever they are carried beyond what the exigency demands, even in cases where some may be lawful, the sufferer is always allowed to resort, as here, to the judicial tribunals for redress. ”

“ In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. ”

“ But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnishes the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. ”

“ It assumes that where a civil war exists, the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other party. The insurgent may be killed on the battlefield or by the executioner; his property on land may be confiscated under the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is "unconstitutional!!!" ”

“ Instead of that protection in these rights, which was the due return for the sovereignty exercised over them, they have seen their defenceless towns wantonly laid in ashes, their unfortified country cruelly desolated, their property wasted, their people slain; the ruthless savage, whose inhuman war spares neither age nor sex, instigated against them; the hand of the servant armed against his master by public proclamation, and the very food which the sea that washes their coast, furnishes, forbidden them by a law of unparalleled folly and injustice. ”

“ If a belligerent cannot retaliate against an enemy without injuring the lives of neutrals, as well as their property, humanity, as well as justice and a due regard for the dignity of neutral powers, should dictate that the practice be discontinued. ”

“ I believe that it is the rightful exercise of a belligerent power to emancipate the slaves of the enemy, if we can get possession of them, just as it is the rightful exercise of a belligerent right to take any other property belonging to the enemy, which may be taken under the civilized rules of modern warfare, or as it is a belligerent right to capture any other person of the enemy. ”

“ I may be asked, whether the establishment of martial law and a dictator has not sometimes been justified and demanded by public danger, and whether, of course, the rights and liberties of the individual are not held at the discretion of the state. ”

“ But if the subjects of any country persist in a course of uniform crime, and aggression, repugnant to all natural and civil law, in defiance of the authority of their own government, so that the hand of justice cannot reach them, it will be lawful for any one to deprive them of their spoils, and to exercise upon them the same rigour, as if they were delivered up to punishment. ”

“ The question of according or of withholding rights of belligerency must be judged in every case in view of the particular attending facts. Unless justified by necessity, it is always, and justly, regarded as an unfriendly act and a gratuitous demonstration of moral support to the rebellion. It is necessary, and it is required, when the interests and rights of another government or of its people are so far affected by a pending civil conflict as to require a definition of its relations to the parties thereto. ”

“ In the performance of this duty, all the belligerents must be supposed to have an equal interest, and a disregard or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under any such circumstances, be restored. ”

“ Are you not setting us an example of rebellion yourselves? Must not we regret not having taken sterner measures to attain our rights? If you give orders to fire at unarmed people, you deserve to be called a murderer. ”

“ And on the same principle upon which a state is violating natural rights in maintaining slavery, it does the same in using force, except under the necessity of self-defence, against members of another community. ”

“ But the law of nations now under consideration is of wider extent both in its authority over persons, and its effects. For, as to persons, not only those, who surrender their rights, or engage themselves to servitude, are considered in the light of slaves, but all, who are taken prisoners in public and solemn war, come under the same description from the time that they are carried into the places, of which the enemy is master. ”

“ When the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise, some of its members must submit to the sacrifice of some or all of their rights. ”

“ By the right of the sword is understood the exercise of every kind of restraint, in the sense adopted by the Lawyers, not only over offenders amongst his own people, but against neighboring nations, who violate his own and his people's rights. ”

“ In war we have lately introduced definite rules for the exclusion of cruelty and injustice, and in some cases the rules are observed. The same thing could be done in rebellion. I have often urged that the rights of war, now guaranteed to belligerents, should be extended to rebels. The chances are that a rebellion or civil war has more justice on its side than international war, and there is no more reason why men should be tortured and refused quarter, or why women should be violated and have their children killed before their eyes by the agents of their own government than by strangers. ”

“ They were bound to respect and abide by them not only in the capacity of states, but they were bound by the exercise of their just powers of legislation and restraint, to compel their citizens to respect and abide by them. This obligation extended not merely to abstaining from all violent interference and active measures of wrong, but from all agitation or incitement to others to do wrong, by disturbing the peace, property or rights of other states and the citizens thereof. ”

“ But these rights belong to a state of war, and necessarily cease with the war. This is the case of the House bill under discussion.
3. All rebels are criminals, [Pg 141] liable to punishment according to penal statutes; and in all proceedings against them, as such, they are surrounded by the safeguards of the Constitution.
4. Rebels in arms are public enemies, who can claim no safeguard from the Constitution; and they may be pursued and conquered according to the Rights of War.
5. Rights of War may be enforced by Act of Congress, which is the highest form of the national will. ”

“ The principle is maintained, however, that this nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive or to independent nations at war with each other. ”

“ What will be the practical effect of declaring emancipation, not as an act of justice and beneficence, dispensed by [V2:pg 102] the Supreme Power of the State, but as an act of punishment and retaliation inflicted by a belligerent upon a hostile community, it is not difficult to foresee. Wherever the arms of the United States penetrate, a premium will be given to acts of plunder, of incendiarism, and of revenge. ”

“ That the establishment of such a militia is, at this time, peculiarly necessary, by the state of our laws, for the protection and defence of the country, some of which are already expired, and others will shortly be so; and that the known remissness of government in calling us together in legislative capacity, renders it too insecure, in this time of danger and distress, to rely that opportunity will be given of renewing them, in general assembly, or making any provision to secure our inestimable rights and liberties, from those further violations with which they are threatened. ”

“ And as, agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a government are not in aid of a state, in the sense of the statute. ”

“ To have destroyed the rebellion on the battlefield and then permit it to seize the power of eleven States and put a check on all changes in the organic law necessary to prevent future rebellion would have been a weak and wicked conclusion to the grandest contest ever waged for human rights and for constitutional liberty. ”

“ Are citizens to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? * * * Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? ”

“ Again, when belligerent measures do become authorized by extreme resistance, and a legitimate state of war exists, and civil authority is prostrate, and violence and bloodshed seem the last desperate resort, yet war measures must be kept within certain restraints in all civil contests in all civilized communities. ”

“ Certainly, if there is any force in this argument, then we are in a state of war with all the rights of war, and all the penal consequences attending it every time this power is exercised by calling out a military force to execute the laws or to suppress insurrection or rebellion; for the nature of the power cannot depend upon the numbers called out. ”

“ It may be further urged, that both modes are executed by troops equally mercenary, equally disciplined, and equally ready to obey orders; and that if a regular army is an overmatch for an undisciplined militia, a government combined with troops of exclusive privileges, must also be an overmatch for the unorganized, unpaid, and unsuspicious militia of equal rights. ”

“ And though individual fighting by violence to assert rights is out of date and not permissible, yet in the affairs of the collection of human beings known as nations the horrible waste of armaments and the menace of war are living evidence of the ultimate tribunal to which we still appeal. ”

“ So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies. ”

“ If resistance, arming, convoying, capturing, be the acknowledged attributes and characteristics of the belligerent, then deprive him of these attributes, and you reduce him to a state of neutrality, nay, worse than a state of neutrality ”

“ You must be aware, General, that no orders of yours can save from punishment spies, marauders, robbers, incendiaries, guerrilla bands, etc., who violate the laws of war. You cannot give immunity to crime. But let us fully understand each other on this point. If you send armed forces wearing the garb of soldiers and duly organized and enrolled as legitimate belligerents to destroy railroads, bridges, etc., as a military act, we shall kill them, if possible, in open warfare, or, if we capture them, we shall treat them as prisoners of war. ”

“ The danger of standing armies, always, to liberty—the incompatibility of martial law with the government of a well regulated city—the certainty of disputes between the soldier and the citizen, especially when they are in each other's eyes, respectively, a rebel, and an instrument of tyranny—all made it but just to fear the most disagreeable consequences. ”