To obtain a correct view of the meaning and application of the fifth, sixth, and seventh articles of the Amendment above cited, it will be necessary to observe that the citizens owing allegiance to the Government of the United States are by civil territorial war divided into classes of persons having different rights and liabilities.

First, the inhabitants of that section of the country which upholds that Government; and, second, the inhabitants of that section of country who have become public enemies; also, there are two classes of loyal citizens, first, those who are engaged in the military service; and, second, those who are not.

Military courts may be in two different conditions:First, ordinary courts organized and acting under provisions of statutes, and administering the laws of war upon persons engaged in our military service; and, second, courts established by the war power of the Commander-in-Chief, and administering the domestic government of territorial public enemies in a hostile district of country held by our military power.

None of these provisions of the Constitution have any application to military courts or the proceedings thereof. They relate only to judicial power conferred thereby on 'judicial courts.

The fifth article expressly excludes cases arising in the land and naval forces, among our own citizen soldiers and seamen.

Art. 6th secures a jury trial in open court in the State and district where the crime was committed, and refers only to a judicial proceeding relating to crimes in the ordinary judicial courts.

Art. 7th refers only to proceedings in common law courts.

These regulations of procedures in common law and other ordinary courts apply to tribunals of a character totally different from military courts. The Constitution sanctions courts military, and courts judicial, and it requires the latter to be constituted according to these amendments, while the former are under no such restrictions.

The Supreme Court recognize this distinction, and say, in the case of Dynes vs. Hoover, "These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practised by civilized nations, and that the power to do so is given without any connection between it and the third article of the Constitution, defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other."

Thus it is evident that whoever is subject to the jurisdiction of courts martial, etc., can claim none of the benefits of these Articles of Amendment, and that citizens of the United States who have been declared by our Government public enemies of the country, have no rights guaranteed to them under any provisions of our Constitution.

THE RIGHTS OF REBELS. WHAT THEY CLAIM.

To form correct opinions in relation to the rights of persons inhabiting that part of the country now subjected to the government de facto of the so-called Confederate States, it is proper to ascertain what rights they claim.

Having founded new governments within the terri

*20 Howard, Rep. 79. (See Appendix.)

tory over which our national sovereignty extends, under the asserted right of revolution; having ratified those governments, both confederate and state, by popular conventions, by legislative acts of secession, by submission, by profession of allegiance, and by all other known modes of expressing assent and adherence thereto, they have publicly withdrawn from and disclaimed all allegiance to the United States. They demand that we should treat them as an independent nation. They not only assert no right to protection under our constitution, but wage open, barbarous, offensive war against the inhabitants of the loyal States and against our government. They seek recognition from and alliance with foreign countries, and if successful in arms, they will be entitled to compel the United States to submit to them as conquerors. Our territory, our government, and our population will then be subjected to their control. Their laws and their institutions will then be forced upon us, and nothing but the overthrow and destruction of the public enemy can prevent this result.

They have already been recognized by leading European powers as BELLIGERENTS. They have demanded and have received from our government, the concession of many belligerent rights; as for instance, the exchange of prisoners of war captured on land; the release of confederate seamen condemned for piracy; and the recognition of flags of truce, and the blockade of seaports, under the law of nations.

The claim, so far as it can be ascertained, of the confederate de facto government, as against the United States, is, 1st, The concession of full belligerent rights, and, 2d, Their recognition as an independent nation. No demand of any right under our constitution or our laws has ever been made by the confederates. Those

who deny their liability to perform the obligations imposed on subjects of the United States, have not fallen into the absurdity of claiming the privileges of subjects. The confederates claim only such rights as the law of war, which is a part of the law of nations, secures to them. That claim this government is bound to concede, whenever it determines to treat them, not as subjects, but as belligerents.

Have the insurgents admitted liability on their part to regard our laws or constitution in carrying on war against us? Have they not forsworn their allegiance to this government, and can they claim protection while denying allegiance? Can an enemy justly assert any right under a constitution he is fighting to destroy? The insurgents deem themselves public enemies to the United States in open war, and admit their liability to abide by the stern rules of belligerent law. They demand no privilege under a constitution which, by commencing war, they have violated in every clause.

Is it not remarkable that persons who profess to adhere to our government, should set up pretensions on behalf of our adversaries which our adversaries themselves disclaim?

RIGHTS CONCEDED TO INSURGENTS.

Whoever makes war against a nation renounces all right to its protection. The people of the United States have founded a government to secure the "general welfare," by preventing enemies, foreign or domestic, from destroying the country. They did not frame a constitution so as to paralyze the power of self-defence. They have not forged weapons for their adversaries, or manacles for themselves.

The Constitution, in fact, guarantees no rights, but only

declares the liabilities, of public enemies, if they are invaders, that they shall be repelled; if they are insurgents, that they shall be put down by force; if they are rebels, banded together in territorial civil war, then that civil war shall be fought through, and conquest and subjugation shall reëstablish lawful government. Any other result must be a destruction of the country, and therefore an overthrow of the Constitution.

In the enforcement of these hostile measures against public enemies, the most liberal concession demanded by the code of civilized warfare, is that traitors should be deemed belligerents; but, while enjoying the immunities, they must be subject to the liabilities, of war.*

Therefore, whether the Articles of Amendment of the Constitution, previously cited, apply to martial proceedings or not, is immaterial in determining the rights of a hostile people engaged in civil war against the United States.

The appeal to arms and the laws of war was forced upon us, because the insurrectionary districts refused to submit to the Constitution. They cannot, therefore, justly complain that under the laws of war they are no longer sheltered by that constitution which they have spurned.

ARE THE INHABITANTS OF INSURRECTIONARY STATES PUBLIC ENEMIES?

Whether persons inhabiting insurrectionary States are in law to be deemed "public enemies," is a political question, which, like similar questions arising under our form of government, is to be determined, not by judicial courts of law, but by the Legislative and Executive Departments.†

* See the Prize Cases, 2 Black's R. 638. War Powers, 141.

† Some of the consequences flowing from the status of a public enemy, have been stated in a previous publication. (See War Powers, 8th Ed. pp. 236244.)