*

of judicial proceedings in ordinary criminal courts. Art. 7th is by its own terms expressly limited to suits at common law. These regulations of procedures in judicial courts apply to tribunals of a character totally different from military courts. The Constitution sanctions courts military and courts judicial, and requires the latter to be conducted according to these Articles of Amendment, while it places the former under no such restrictions. The Supreme Court, recognizing this distinction in the case of Dynes v. Hoover, says that "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 lawful courts of war, can claim none of the benefits of these Articles of Amendment. It has been also shown 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.

WHAT RIGHTS THE INSURGENTS 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 How. Rep. 79. (See Appendix, p. 520.)

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profession of allegiance, and by all other known modes of expressing assent and adherence thereto, they have publicly withdrawn from and disclaimed all allegiance to the United States.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 their government 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, is that the United States should concede to the insurgents full belligerent rights, and should recognize them as an independent nation. No demand of any right under our constitution or our laws has ever been made by them. Those

who deny their obligation to perform the duties imposed on all subjects of the United States, have not fallen into the absurdity of claiming the privileges of citizens. 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

* See Note, p. 425.

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, 141, 238; also, 2 Black's R. 638.

† Some of the consequences flowing from the status of a public enemy are stated on pp. 236-244.

See Notes to Forty-third Edition, p. 425. Also, titles "Public Enemies," The "Policy of the Government," and "A brief Statement of the War Powers,” p. 390.

Among those subjects which, as the Supreme Court of the United States has already decided, are finally to be determined by the political departments of government, are the following, viz.: (a) Questions of boundary between the United States and foreign countries.*

"A question like this," says Chief Justice Marshall, “respecting boundary of nations, is, as has been truly said, more a political than a legal question; and in its discussion the courts of every country must respect the pronounced will of the legislature." Taney, C. J., says, "The legislative and executive branches having decided the question, the courts of the United States were bound to regard the boundary determined on by them as the true one." †

(b) Questions as to the sovereignty of any foreign country; or as to its independence; or as to the international relations with our government of foreign invaders of our country, or of any nation whose provinces or dependencies are in a state of rebellion, are also political and not judicial.

"To what sovereignty any island or country belongs," says Judge McLean, "is a question which often arises before courts.

* * *

And can there be a doubt that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire whether the Executive is right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and gov. ernment of the United States. In the cases of Foster

*

*

v. Nelson and Garcia v. Lee, this court have laid down the rule

* Foster & Elam v. Nelson, 2 Pet. 307.

† United States v. Percheman, 7 Pet. 51. United States v. Arredondo (1832), 6 Pet. 711. Garcia v. Lee, 12 Pet. 516, 517, 520, 522.

Note to Forty-third Edition. — With regard to the jurisdiction of courts there is a distinction between questions of boundary which involve rights of sovereignty and of political jurisdiction, or political rights over the territory in question, and those which involve mere rights of property. See Georgia v. Stanton, Appendix, p. 548.