men in arms, are those on one side levying war, and are those opposed to them not levying war?

As it takes two parties to carry on war, either party may begin it. That party which begins usually declares war. But when it is actually begun, the party attacked is as much at war as the party who made the attack. The United States are AT WAR with rebels, in the strictly legal and constitutional sense of the term, and have therefore all the rights against them which follow from a state of war, in addition to those which are derived from the fact that the rebels are also subjects.

REBELS MAY BE TREATED AS BELLIGERENTS AND AS SUBJECTS.

Wars may be divided into two classes, foreign and civil. In all civil wars the government claims the belligerents, on both sides, as subjects, and has the legal right to treat the insurgents both as subjects and as belligerents; and they therefore may exercise the full and untrammelled powers of war against their subjects, or they may, in their discretion, relieve them from any of the pains and penalties attached to either of these characters. The right of a country to treat its rebellious citizens both as belligerents and as subjects has long been recognized in Europe, and by the Supreme Court of the United States. In the civil war between St. Domingo and France, such rights were exercised, and were recognized as legitimate in Rose v. Himely, 4 Cranch, 272. So in Cherriot v. Foussatt, 3 Binney, 252. In Dobrie v. Napier, 3 Scott R. 225, it was held that a blockade of the coast of Portugal, by the Queen of that country, was lawful, and a vessel was condemned as a lawful prize for running the blockade. The cases

*See note A. page 215.

of the Santisima Trinidad, 7 Wheat. 306, and United States y. Palmer, 3 W. 635, confirm this doctrine. By the terms of the constitution defining treason, a traitor must be a subject and a belligerent, and none but a belligerent subject can be a traitor.

The government have in fact treated the insurgents as belligerents on several occasions, without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, in express terms, and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded harbors ports of entry. They have relied solely on their belligerent rights, under the law of nations.

Having thus the full powers and right of making and carrying on war against rebels, both as subjects and as belligerents, this right frees the President and Congress from the difficulties which might arise if rebels could be treated only as SUBJECTS, and if war could not be waged upon them. If conceding to rebels the privileges of belligerents should relieve them from some of the harsher penalties of treason, it will subject them to the liabilities of the belligerent character. The privileges and the disadvantages are correlative. But it is by no means conceded that the government may not exercise the right of treating the same rebels both as subjects and as belligerents. The constitution defines a rebel who commits treason as one who "levies war" on the United States; and the laws punish this

highest of crimes with death, thus expressly treating the same person as subject and as belligerent. Those who save their necks from the halter by claiming to be treated as prisoners of war, and so to protect themselves under the shield of belligerent rights, must bear the weight of that shield, and submit to the legal consequences of the character they claim. They cannot sail under two flags at the same time. But a rebel does not cease to be a subject because he has turned traitor. The constitution expressly authorizes Congress to pass laws to punish traitor-that is, belligerent — subjects; and suppressing rebellion by armed force is making war. Therefore the war powers of government give full belligerent rights against rebels in arms.

THE LAW OF NATIONS IS ABOVE THE CONSTITUTION.

Having shown that the United States being actually engaged in civil war,-in other words, having become a belligerent power, without formal declaration of war, — it is important to ascertain what some of the rights of belligerents are, according to the law of nations. It will be observed that the law of nations is above the constitution of any government; and no people would be justified by its peculiar constitution in violating the rights of other nations. Thus, if it had been provided in the Articles of Confederation, or in the present constitution, that all citizens should have the inalienable right to practise the profession of piracy upon the ships and property of foreign nations, or that they should be lawfully empowered to make incursions into England, France, or other countries, and seize by force and bring home such men and women as they should select, and, if these privileges should be put in practice, England

and France would be justified in treating us as a nest of pirates, or a band of marauders and outlaws. The whole civilized world would turn against us, and we should justly be exterminated. An association or

agreement on our part to violate the rights of others, by whatever name it may be designated, whether it be called a constitution, or league, or conspiracy, or a domestic institution, is no justification, under the law of nations, for illegal or immoral acts.

INTERNATIONAL BELLIGERENT RIGHTS ARE DETERMINED BY THE

LAW OF NATIONS.

To determine what are the rights of different nations when making war upon each other, we look only to the law of nations. The peculiar forms or rights of the subjects of one of these war-making parties under their own government give them no rights over their enemy other than those which are sanctioned by international law. In the great tribunal of nations, there is a "higher law" than that which has been framed by either one of them, however sacred to each its own peculiar laws and constitution of government may be.

But while this supreme law is in full force, and is binding on all countries, softening the asperities of war, and guarding the rights of neutrals, it is not conceded that the government of the United States, in a civil war for the suppression of rebellion among its own citizens, is subject to the same limitations as though the rebels were a foreign nation, owing no allegiance to the country.

With this caveat, it will be desirable to state some of the rights of belligerents.

If these rules above cited have any application in a time of war, the United States cannot protect each of the States from invasion by citizens of other States, nor against domestic violence; nor can the army, or militia, or navy be used for any of the purposes for which the constitution authorizes or requires their employment. If all men have the right to "keep and bear arms," what right has the army of the Union to take them away from rebels? If "no one can constitutionally be deprived of life, liberty, or property, without due process of law," by what right does government seize and imprison traitors? By what right does the army kill rebels in arms, or burn up their military stores? If the only way of dealing constitutionally with rebels in arms is to go to law with them, the President should convert his army into lawyers, justices of the peace, and constables, and serve "summonses to appear and answer to complaints," instead of a summons to surrender. He should send "GREETINGS" instead of sending rifle shot. He should load his caissons with "pleas in abatement and demurrers," instead of thirty-two pound shell and grape shot. In short, he should levy writs of execution, instead of levying war. On the contrary, the commander-in-chief proposes a different application of the due process of law. His summons is, that rebels should lay down their arms; his pleas are batteries and gunboats; his arguments are hot shot, and always "to the point;" and when his fearful execution is "levied on the body," all that is left will be for the undertaker.

TRUE APPLICATION OF THESE CONSTITUTIONAL GUARANTEES.

The clauses which have been cited from the amendments to the constitution were intended as declarations