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.

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

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 CONFISCATION.

Nothing in the constitution interferes with the bel ligerent 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.

"But however strong the current of authority in favor of the modern and milder construetion 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

government has a right, as a belligerent power, to cap ture or to confiscate any and all the personal property of the enemy; that there is nothing in the constitution which limits or controls the exercise of that right; and that capture in war, or confiscation by law, passes a complete title to the property taken; and that, if judicial condemnation of enemy property be sought, in order to pass the title to it by formal decree of courts, by mere seizure, and without capture, the confiscation must have been declared by act of Congress, a mere declaration of war not being ex vi termini sufficient for that purpose. The army of the Union, therefore, have the right, according to the law of nations, and of the constitution, to obtain by capture a legal title to all the personal property of the enemy they get possession of, whether it consist of arms, ammunition, provisions, slaves, or any other thing which the law treats as personal property. No judicial process is necessary to give the government full title thereto, and when once captured, the government may dispose of the property as absolute owner thereof, in the same manner as though the title passed by bill of sale: and Congress have plenary authority to pass such confiscation laws against belligerent enemies as they deem for the public good.

MILITARY GOVERNMENT UNDER MARTIAL LAW.

In addition to the right of confiscating personal property of the enemy, a state of war also confers upon the government other not less important belligerent rights, and among them, the right to seize and hold conquered territory by military force, and of instituting and maintaining military government over it, thereby suspending in part, or in the whole, the ordinary civil adminis

tration. The exercise of this right has been sanctioned by the decision of the Supreme Court of the United States, in the case of California.* And it is founded upon well-established doctrines of the law of nations. Without the right to make laws and administer justice in conquered territory, the inhabitants would be plunged into anarchy. The old government being overthrown, and no new one being established, there would be none to whom allegiance would be due-none to restrain lawlessness, none to secure to any persons any civil rights whatever. Hence, from the necessity of the case, the conqueror has power to establish a quasi military civil ad ministration of government for the protection of the innocent, the restraint of the wicked, and the security of that conquest for which war has been waged.+

It is under this power of holding and establishing military rule over conquered territory, that all provisional governments are instituted by conquerors. The President, as commander-in-chief, has formally appointed Andrew Johnson governor of Tennessee, with all the powers, duties, and functions pertaining to that office, during the pleasure of the Presi dent, or until the loyal inhabitants of that State shall organize a civil government in accordance with the constitution of the United States. To legalize these powers and duties, it became expedient to give him a military position; hence he was nominated as a brigadier general, and his nomination was confirmed by the Senate. Mr. Stanley acts as provisional military governor of North Carolina, under similar authority. All acts of military government which are within the scope of their author. ity, are as legal and constitutional as any other military

*Cross v. Harrison, 16 How. 164-190.

† See Fleming v. Page, 9 How. 615. Leitensdorfer v. Webb, 20 How. 177. As to California, see Stat. at Large, Vol. ix. p. 452. New Mexico, Stat. at Large, ibid. 446. Halleck on International Law, 781. Story on Const., Sect. 1324. Amer. Ins. Co. v. Canter, 1 Pet. S. C. R. 542-3.