of the rights of peaceful and loyal citizens, and safe. guards in the administration of justice by the civil tribunals; but it was necessary, in order to give the government the means of defending itself against domestic or foreign enemies, to maintain its authority and dignity, and to enforce obedience to its laws, that it should have unlimited war powers; and it must not be forgotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carrying on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove inconsistent with the complete and effectual exercise of such war powers, and of the belligerent rights resulting from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact; it protects the citizen in peace and in war; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war.

CIVIL RIGHTS OF LOYAL CITIZENS IN LOYAL DISTRICTS ARE MODIFIED BY THE EXISTENCE OF WAR.

While war is raging, many of the rights held sacred by the constitution — rights which cannot be violated by any acts of Congress may and must be suspended and held in abeyance. If this were not so, the government might itself be destroyed; the army and navy might be sacrificed, and one part of the constitution would NULLIFY the rest.

If freedom of speech cannot be suppressed, spies cannot be caught, imprisoned, and hung.

If freedom of the press cannot be interfered with, all our military plans may be betrayed to the enemy.

If no man can be deprived of life without trial by jury, a soldier cannot slay the enemy in battle.

If enemy's property cannot be taken without "due process of law," how can the soldier disarm his foe and seize his weapons?

If no person can be arrested, sentenced, and shot, without trial by jury in the county or State where his crime is alleged to have been committed, how can a deserter be shot, or a spy be hung, or an enemy be taken prisoner ?

It has been said that "amidst arms the laws are silent." It would be more just to say, that while war rages, the rights, which in peace are sacred, must and do give way to the higher right, the right of public safety, the right which the country, the whole country, claims to protection from its enemies, domestic and foreign, from spies, from conspirators, and from traitors. The sovereign and almost dictatorial military powers, existing only in actual war, ending when war ends, to be used in self-defence, and to be laid down when no longer necessary, are, while they last, as lawful, as constitutional, as sacred, as the administration of justice by judicial courts in time of peace. They may be dangerous; war itself is dangerous; but danger does not make them unconstitutional. If the commander-in-chief orders his soldiers to seize the arms and ammunition of

* "Among absolute international rights, one of the most essential and important, and that which lies at the root of all the rest, is the right of self-preservation. It is not only a right in respect to other States, but it is a duty in respect to its own members, and the most solemn and important which a State owes to them." Wheaton, pp. 115, 116.

the rebels; to capture their persons; to shell out their batteries; to hang spies or shoot deserters; to destroy insurgents waging open battle; to send traitors to forts and prisons; to stop the press from aiding and comforting the enemy by betraying our military plans; to arrest within our lines, or wherever they can be seized, persons against whom there is reasonable evidence of their having aided or abetted the rebels, or of intending so to do, the pretension that he thereby violates the constitution is not only erroneous, but it is a plea in behalf of treason. To set up the rules of civil administration as overriding and controlling the laws of war, is to aid and abet the enemy. It falsifies the clear meaning of the constitution, which not only gives the power, but makes it the plain duty of the President, to wage war, when lawfully declared or recognized, against the public enemy of his country. The restraints to which he is subject, when in war, are not found in municipal regulations, which can be administered only in peace, but in the laws and usages of nations regulating the conduct of war.

WHETHER BELLIGERENTS SHALL BE ALLOWED CIVIL RIGHTS UNDER THE CONSTITUTION DEPENDS UPON THE POLICY OF GOVERNMENT.*

None of these rights, guaranteed to peaceful citizens, by the constitution belong to them after they have become belligerents against their own government. They thereby forfeit all protection under that sacred charter which they have thus sought to overthrow and destroy. One party to a contract cannot break it and at the same time hold the other to perform it. It is true that if the govern

* Sce Noto to Forty-third Edition, p. 425, and Index, title "Civil Rights.”

ment elects to treat them as subjects and to hold them liable only to penalties for violating statutes, it must concede to them all the legal rights and privileges which other citizens would have when under similar accusations; and Congress must be limited to the provisions of the constitution in legislation against them as citizens. But the fact that war is waged by these miscreants releases the government from all obligation to make that concession, or to respect the rights to life, liberty, or property of its enemy, because the constitution makes it the duty of the President to prosecute war against them in order to suppress rebellion and repel invasion.

THE CONSTITUTION ALLOWS CAPTURE AND CONFISCATION.

Nothing in the constitution interferes with the belligerent right of confiscation of enemy property. The right to confiscate is derived from a state of war. It is one of the rights of war. It originates in the principle of self-preservation. It is the means of weakening the enemy and strengthening ourselves. The right of confiscation belongs to the government as the necessary consequence of the power and duty of making waroffensive or defensive. Every capture of enemy ammunition or arms is, in substance, a confiscation, without its formalities. To deny the right of confiscation is to deny the right to make war, or to conquer an

enemy.

If authority were needed to support the right of confiscation, it may be found in 3 Dallas, 227; Vat. lib. iii., ch. 8, sect. 188; lib. iii., ch. 9, sect. 161; Smith v. Mansfield, Cranch, 306-7; Cooper v. Telfair, 4 Dallas; Brown v. U. S., 8 Cranch, 110, 228, 229.

The following extract is from 1 Kent's Com., p. 59:

"But however strong the current of authority in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country; and it has become definitively settled in favor of the ancient and sterner rule by the Supreme Court of the United States. Brown v. United States, 8 Cranch, 110; ibid. 228, 229.

"The effect of war on British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly considered in the case of Brown, and the Circuit Court of the United States at Boston decided as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all vessels and cargoes found afloat in our ports at the commencement of hostilities, were liable to seizure and confiscation; and the exercise of the right vested in the discretion of the sovereign of the nation.

"When the case was brought up on appeal before the Supreme Court of the United States, the broad principle was assumed that war gave to the sovereign the full right to take the persons and confiscate the property of the enemy wherever found; and that the mitigations. of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself.

"Commercial nations have always considerable property in possession of their neighbors; and when war breaks out, the question, What shall be done with enemy property found in the country? is one rather of policy than of law, and is one properly addressed to the consideration of the legislature, and not to the courts of law.

"The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation it could not be judicially condemned; and the act of Congress of 1812 declaring war against Great Britain was not such an act. Until some statute directly applying to the subject be passed, the property would continue under the protection of the law, and might be claimed by the British owner at the restoration of peace.

"Though this decision established the right contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right depend upon a special act of Congress."

From the foregoing authorities, it is evident that the