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war, is asserted as a general proposition, and not as one applying to those parts of the country where the war is actually in progress, and where, therefore, the law of force may be, for the time being, the governing power. This kind of reasoning ignores the true meaning and application of the different clauses of the Constitution; and in this mode you may prove anything either way. For instance, the Constitution says no man shall be deprived of life, liberty, or property without due process of law,— firing a gun is not due process of law; therefore firing a gun for the purpose of taking life, even in self-defence, is unconstitutional. Or, take it the other way: The Constitution gives the right to make war; in making war the people are deprived of life, liberty, and property; — therefore, in making war, there is no constitutional guaranty on this subject, and you may deprive anybody of life, liberty, and property at pleasure.

But a very conclusive answer to this position is, that these amendments of the Constitution, thus unceremoniously discarded in time of war, are derived mainly from, and are substantially but repetitions of, provisions previously inserted in the Constitutions of several States; - Constitutions made in time of war, to go into effect immediately, some of their provisions being specifically applicable to a time of war; - that the provisions were introduced into those Constitutions to guard and protect the liberties of the people in time of war; that their effect and value is in time of war; that their absence from the Constitution of the United States, as originally framed, was one great objection to its adoption, and came near producing its rejection; that the belief that they would be adopted by way of amendment, doubtless saved it from that catastrophe; and that they were thus introduced from a jealousy lest the powers of the United States might, from the general language of the Constitution, be construed so as not to provide, in that Government, the security for their liberties which the people had provided in the State Constitutions.

The Bill of Rights prefixed to the original Constitution of Virginia, which was passed June 12, 1776, a short time before the Declaration of Independence was perfected, contains these declarations:

"That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

"That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted."

"That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments."

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

In the Declaration of Rights adopted in North Carolina, December 17, 1776, are provisions,—

"That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

"That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land."

"That every freeman restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed."

"That the freedom of the press is one of the great bulwarks of liberty, and, therefore, ought never to be restrained."

In the "Constitution or form of government" of that State, ratified in open Congress the next day, is a provision, —

"That the Declaration of Rights is hereby declared to be a part of the Constitution of this State, and ought never to be violated on any pretence whatever."

There are other provisions in the Declaration similar to those in Virginia.

The Constitution of South Carolina adopted on the 19th of March, 1778, contains some provisions of a similar character.

The Declaration of Rights in the Constitution of Massa

chusetts, adopted in 1780, has more ample and specific provisions for the security of liberty, among which are,

"Each individual of the society has a right to be protected by it, in the enjoyment of his life, liberty, and property, according to the standing laws." "And whenever the public exigencies require that the property of any individual shall be appropriated to public uses, he shall receive a reasonable compensation therefor."

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"No person shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him; . . . and no person shall be arrested, imprisoned, or despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.”

"Every person has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions."

"The liberty of the press is essential to security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth."

"The people have a right to keep and bear arms for common de-". fence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained, without the consent of the Legislature; and the military power shall always be held in exact subordination to the civil authority, and be governed by it."

"In time of peace, no soldier ought to be quartered in any house, without the consent of the owner; and in time of war, such quarters ought not to be made, but by the civil magistrate, in manner ordained by the Legislature."

"No person can, in any case, be subjected to law martial, or to any penalties or pains by virtue of that law, (except those employed in the army or navy, and except the militia in actual service,) but by the authority of the Legislature."

Such are some of the provisions of State Constitutions, adopted during the Revolutionary War.

We have but to look at the ratifications of the Constitution of the United States, collected in Elliot's Debates, to be satisfied where the amendments came from, what was their origin, and that they are applicable to a time of war. In truth the amendments themselves completely negative the position that the provisions cited by the author of the pamphlet are not applicable to a time of war, showing, as

some them do, by their express language, that they were designed for time of war, as well as for time of peace.

One fallacy in the reasoning which suspends the rights of the citizen under the Constitution of the United States in time of war, is in taking the distinction between the time of peace and the time of war, (the constitutional guarantees being operative and applied in time of peace, but being regarded as inoperative and inapplicable in time of war,) instead of making the distinction between the places and persons involved in the war, and those not within the limits of military occupation and actual hostilities. The rebel, with arms in his hands, may be shot down without further legal process, because the laws of war apply to him, and do not require other process. The loyal citizen who is so unfortunate as to have his habitation within the theatre of actual war, is subject to the law of force, which authorizes the occupation of his house and grounds, and denies to him freedom of speech, and a right to keep and bear arms. But the existence of a state of war, under which actual hostilities are waged in one part of the country, furnishes no reason why peaceable citizens at a distance from the theatre of war should be subjected, in the language of the author, to the pleas of "batteries and gunboats and arguments of hot shot," so that when the "fearful execution" of the Commander-inchief "is levied on the body, all that is left will be for the undertaker." Nor does it furnish any reason why a peaceable citizen, in no way involved in the actual hostilities, with no arms in his hands, and with no means of obstructing the military operations, should be deprived of the rights guaranteed to him by the Constitution; be seized, without process, upon the accusation of some irresponsible and unscrupulous partisan, immured in a dungeon, held without trial, and against his attempts or those of his friends to have an inquiry made into the cause of his imprisonment; with no opportunity to meet a charge against him, and to vindicate his innocence; and until it shall please some irresponsible power to order his release.

Again: The author quotes what he denominates a severe rule of belligerent law, to wit:—

"Property of persons residing in an enemy's country is deemed, in

law, hostile, and subject to condemnation without any evidence as to the opinions or predilections of the owner."

And thereupon he adds:

"If he be 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 condemnation. This familiar principle of law is sanctioned 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."

And he says further:
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"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 presumed hostile, and liable to condemnation, if captured within the rebellious districts."

This is put, as you perceive, as if the rule referred to were the same on land as on the ocean; whereas, in truth, the right of capture and confiscation, on the presumption of enemy's property, is a rule of maritime warfare, and does not in any manner apply to property found on land. So far from it, that the general rule does not recognize the right to capture and confiscate, on the ground of capture, the private property of individuals on land. General Halleck, who ought to be admitted as good authority in this instance, says:

"Private property on land, is now, as a general rule of war, exempt from seizure or confiscation; and this general exemption extends even to cases of absolute and unqualified conquest. Even where the conquest of a country is confirmed by the unconditional relinquishment of sovereignty by the former owner, there can be no general or partial transmutation of private property, in virtue of any rights of conquest." Halleck's International Law, 456.

In discussing the power of Congress, the author asserts that it does not follow, that because Congress has power to abrogate the claims of slaveholders, the President, as Commander, may not also do the same thing.

It would be difficult, upon the ordinary principles of law, to maintain concurrent powers, unless the principle were also

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