proceeding. Hence any section of this country, which, having joined in a general rebellion, shall have been subdued and conquered by the military forces of the United States, may be subjected to military government, and the rights of citizens in those districts are subject to martial law, so long as the war lasts. Whatever of their rights of property are lost in and by the war, are lost forever. No citizen, whether loyal or rebel, is deprived of any right guaranteed to him in the constitution by reason of his subjection to martial law, because martial law, when in force, is constitutional law. The people of the United States, through their lawfully chosen commander-in-chief, have the constitutional right to seize and hold the territory of a belligerent enemy, and to govern it by martial law, thereby superseding the local government of the place, and all rights which rebels might have had as citizens of the United States, if they had not violated the laws of the land by making war upon the country.

By martial law, loyal citizens may be for a time debarred from enjoying the rights they would be entitled to in time of peace. Individual rights must always be held subject to the exigencies of national safety.

In war, when martial law is in force, the laws of war are the laws which the constitution expressly authorizes and requires to be enforced. The constitution, when it calls into action martial law, for the time changes civil rights, or rights which the citizen would be entitled to in peace, because the rights of persons in one of these cases are totally incompatible with the obligations of persons in the other. Peace and war cannot exist together; the laws of peace and of war cannot operate together; the rights and procedures of peaceful times

are incompatible with those of war. It is an obvious but pernicious error to suppose that in a state of war, the rules of martial law, and the consequent modification of the rights, duties, and obligations of citizens, private and public, are not authorized strictly under the constitution. And among the rights of martial law, none is more familiar than that of seizing and establishing a military government over territory taken from the enemy; and the duty of thus protecting such territory is imperative, since the United States are obligated to guarantee to each State a republican form of government.* That form of government having been overthrown by force, the country must take such steps, military and civil, as may tend to restore it to the loyal citizens of that State, if there be any; and if there be no persons who will submit to the constitution and laws of the United States, it is their duty to hold that State by military power, and under military rule, until loyal citizens shall appear there in sufficient numbers to entitle them to receive back into their own hands the local government.

A SEVERE RULE OF BELLIGERENT LAW.

"Property of persons residing in the enemy's country is deemed, in law, hostile, and subject to condemnation without any evidence as to the opinions or predilections of the owner." If he is the subject of a neutral, or a citizen of one of the belligerent States, and has expressed no disloyal sentiments towards his country, still his residence in the enemy's country impresses upon his property, engaged in commerce and found upon the ocean, a hostile character, and subjects it to

* Constitution, Art. IV., Sect. 4., Cl. 1.

condemnation. This familiar principle of law is sanc tioned in the highest courts of England and of the United States, and has been decided to apply to cases of civil as well as of foreign war.*

Thus personal property of every kind, ammunition, provisions, contraband, or slaves, may be lawfully seized, whether of loyal or disloyal citizens, and is by law présumed hostile, and liable to condemnation, if captured within the rebellious districts. This right of seizure and condemnation is harsh, as all the proceedings of war are harsh, in the extreme, but it is nevertheless lawful. It would be harsh to kill in battle a loyal citizen who, having been impressed into the ranks of the rebels, is made to fight against his country; yet it is lawful to do so.

Against all persons in arms, and against all property situated and seized in rebellious districts, the laws of war give the President full belligerent rights; and when the army and navy are once lawfully called out, there are no limits to the war-making power of the President, other than the law of nations, and such rules as Congress may pass for their regulation.

"The statute of 1807, chap. 39," says a learned judge,† "provides that whenever it is lawful for the President to call forth the militia to suppress an insurrection, he may employ the land and naval forces for that purpose. The authority to use the army is thus expressly confirmed, but the manner in which they are to be used is not prescribed. That is left to the discretion of the President, guided by the usages and principles of civilized war."

*The Venus, 8 Cranch Rep.; The Hoop, 1 Robinson, 196, -- and cases there cited. The Amy Warwick, opinion of Judge Sprague.

+ Judge Sprague.

As a matter of expediency, Congress may direct that no property of loyal citizens, residing in disloyal States, should be seized by military force, without compensation. This is an act of grace, which, though not required by the laws of war, may well be granted. The commander-in-chief may also grant the same indulBut the military commanders are always at liberty to seize, in an enemy's country, whatever property they deem necessary for the sustenance of troops, or military stores, whether it is the property of friend or enemy; it being usual, however, to pay for all that is taken from friends. These doctrines have been carried into effect in Missouri.

gence.

The President having adopted the policy of protecting loyal citizens wherever they may be found, all seizure of their property, and all interference with them, have so far been forborne. But it should be understood that such forbearance is optional, not compulsory. It is done from a sense of justice and humanity, not because law or constitution renders it inevitable. And this forbearance is not likely to be carried to such an extent as to endanger the success of the armies of the Union, nor to despoil them of the legitimate fruits of victory over rebels.

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 be protected from its enemies, domestic and foreign from spies, from conspirators, and from traitors.* The sovereign and almost dictatorial powers existing only in actual war; ending when war ends-to be used in self-defence, and to be laid down when the occasion has passed, are, while they last, as lawful, as constitutional, as sacred, as the administration of justice by judicial courts in times of peace. They may be dan gerous; war itself is dangerous; but danger does not make them unconstitutional. If the commander-in-chief orders the army to seize the arms and ammunition of the enemy; to capture their persons; to shell out their batteries; to hang spies or shoot deserters; to destroy the armed enemy in open battle; to send traitors to

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, p. 115, 116.