Page:Essays on the Civil War and Reconstruction.djvu/39

 of the United States against oppression by their officers and legislators disappear when resistance by those citizens to law becomes so formidable as to be deemed war.

Such was the theory upon which the exercise of the war power was based by all three departments of the government. The Supreme Court, though divided, in the Prize Cases, upon the question of the exact time when the attitude of belligerency could be assumed, was unanimous in respect to the consequences after that time had arrived. Justice Nelson, dissenting, said:

There is no doubt the government may, by the competent power, recognize or declare the existence of a state of civil war, which will draw after it all the consequences and rights of war between the contending parties, as in the case of a public war. &hellip; The laws of war, whether the war be civil or inter gentes, convert every citizen of the hostile state into a public enemy.

At the outbreak of the insurrection, then, two distinct courses lay open for the government to pursue. It could elect to repress the uprising by the civil power, through process of the courts, with the military arm as the marshal's posse; the insurgents then would be subject to the treatment of ordinary criminals. Or, on the other hand, the rebels could be recognized as belligerents and subdued by the exertion of military power alone. In the latter