Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

Mr. Baker--I do; and that is the reason why I suggest to the honorable Senator that this criticism about States does not mean any thing at all. That is the very point. The objection certainly ought not to be that he can declare a part of a State in insurrection and not the whole of it. In point of fact the Constitution of the United States, and the Congress of the United States acting upon it, are not treating of States, but of the territory comprising the United States; and I submit once more to his better judgment that it cannot be unconstitutional to allow the President to declare a county, or a part of a county, or a town, or a part of a town, or a part of a State, or the whole of a State, or two States, or five States, in a condition of insurrection, if, in his judgment, that be the fact. That is not wrong. In the next place, it provides that that being so, the military commander in that district may make and publish such police rules and regulations as he may deem necessary to suppress the rebellion and restore order and preserve the lives and property of citizens. I submit to him, if the President of the United States has power, or ought to have power, to suppress insurrection and rebellion, is there any better way to do it, or is there any other? The gentleman says, do it by the civil power. Look at the fact. The civil power is utterly overwhelmed; the courts are closed; the judges banished. Is the President not to execute the law? Is he to do it in person or by his military commanders? Are they to do it with regulation or without it? That is the only question. Mr. President, the honorable Senator says there is a state of war. The Senator from Vermont agrees with him; or rather, he agrees with the Senator from Vermont in that. What then? There is a state of public war; none the less war because it is urged from the other side; not the less war because it is unjust; not the less war because it is a war of insurrection and rebellion. It is still war; and I am willing to say it is public war — public, as contra-distinguished from private war. What then? Shall we carry that war on? Is it his duty as a Senator to carry it on? If so, how? By armies under command; by military organization and authority, advancing to suppress insurrection and rebellion. Is that wrong? Is that unconstitutional? Are we not bound to do with whoever levies war against us as we would do if he was a foreigner? There is no distinction as to the mode of carrying on war; we carry on war against an advancing army just the same, whether it be from Russia or from South Carolina. Will the honorable Senator tell me it is our duty to stay here, within fifteen miles of the enemy, seeking to advance upon us every hour, and talk about nice questions of constitutional construction as to whether it is war or merely insurrection? No, sir. It is our duty to advance, if we can; to suppress insurrection; to put down rebellion; to dissipate the rising; to scatter the enemy; and when we have done so, to preserve in the terms of the bill, the liberty, lives, and property of the people of the country, by just and fair police regulations. I ask the Senator from Indiana, (Mr. Lane,) when we took Monterey, did we not do it there? When we took Mexico, did we not do it there? Is it not a part, a necessary and indispensable part, of war itself, that there shall be military regulations over the country conquered and held? Is that unconstitutional? I think it was a mere play of words that the Senator indulged in when he attempted to answer the Senator from New York. I did not understand the Senator from New York to mean any thing else substantially but this, that the Constitution deals generally with a state of peace, and that when war is declared, it leaves the condition of public affairs to be determined by the law of war, in the country where the war exists. It is true that the Constitution of the United States does adopt the law of war as a part of the instrument itself, during the continuance of war. The Constitution does not provide that spies shall be hung. Is it unconstitutional to hang a spy? There is no provision for it in terms in the Constitution; but nobody denies the right, the power, the justice. Why? Because it is part of the law of war. The Constitution does not provide for the exchange of prisoners; yet it may be done under the law of war. Indeed the Constitution does not provide that a prisoner may be taken at all; yet his captivity is perfectly just and constitutional. It seems to me that the Senator does not, will not, take that view of the subject. Again, sir, when a military commander advances, as I trust, if there are no more unexpected great reverses, he will advance, through Virginia and occupies the country, there, perhaps as here, the civil law may be silent; there perhaps the civil officers may flee as ours have been compelled to flee. What then? If the civil law is silent, who shall control and regulate the conquered district — who but the military commander? As the Senator from Illinois has well said, shall it be done by regulation or without regulation? Shall the general, or the colonel, or the captain, be supreme, or shall he be regulated and ordered by the President of the United States? That is the sole question. The Senator has put it well. I agree that we ought to do all we can to limit, to restrain, to fetter the abuse of military power. Bayonets are at best illogical arguments. I am not willing, except as a case of sheerest necessity, ever to permit a military commander to exercise authority over life, liberty, and property. But, sir, it is part of the law of war; you cannot carry in the rear of your army your courts; you cannot organize juries; you cannot have trials accorded to the forms and ceremonial of the common law amid the clangor of arms, and somebody must enforce police regulations in a