Thus it will be seen that Congress has first be express declaration restricted the operation of these articles to the armies of the Confederate States, and that to prevent all possibility of mistake it has clearly enumerated the persons who are to be regarded as composing these armies. It may be conceded that Congress has the constitutional power to confer upon courts-martial the right to try and punish any offense "not capital or otherwise infamous," though committed by a civilian, but I think a careful examination of all the Articles of War with reference to their object and in their proper connection cannot fail to lead to the conviction that they have not chosen to do so, except in a single instance, and in this instance it was so obviously necessary for the proper trial and punishment of military persons that it may properly be classed as one of the rules for the government of the Army. I allude to that article which gives to courts-martial the power of maintaining order and punishing those who interrupt their proceedings. And it is worthy of remark how much more emphatic and comprehensive the language here used is than that of Article 57. There the word used is "whosoever," but the article to which I refer (Article 76) reads as follows:

No person whatsoever shall use any insulting words, signs or gestures in presence of a court-martial, &c.

But that the Articles of War, and particularly the one providing for the punishment of spies, were not intended to apply to civilians is placed beyond all doubt by a reference to the second section of the act of which these articles form a part. This section reads as follows:

That in time of war all persons not citizens of or owing allegiance to the Confederate States of America who shall be found lurking as spies in and about the fortifications or encampments of the armies of the Confederate States, or any of them, shall suffer death according to the law and usage of nations by sentence of a general court-martial.

Here we have an explicit declaration that the power of a courti-martial to try and punish the very offense in question is restricted to those "not citizens. " I conclude therefore that as a spy is guilty of a "capital or otherwise infamous crime," a civilian charged with this offense can only be tried "upon a presentment or indictment of a grand jury," and that military courts have no jurisdiction to try civilians for any offenses except those enumerated in Article 76.

And I respectfully recommend that all persons not belonging to the Army or Navy or to the militia in actual service now held in military custody by immediately delivered to the civil authorities, and that all military officers and provost-marshals be instructed to make no more arrests of citizens unless upon a warrant issued by a magistrate, except in urgent cases where there is danger of escape, and in such cases that they be instructed immediately to take the party before a justice of the peace or other civil magistrate to be dealt with according to law.

It may not be improper for me to state that I entered upon the examination of this subject with a very different opinion from the one here expressed. The recent decision of one of the judges of the supreme court of this State in the case of Burlingame I confess startled me, and as the learned judge did not favor the public with the law on which he based his conclusions or the process of reasoning by which he arrived at them I at first regarded the position taken by him in reference to spies as altogether novel and wholly untenable. Never having investigated the subject and knowing the inconvenience and even danger to the country which might result from the want of prompt means for the punishment of this most dangerous class of enemies, I was not pre-