This would seem to cover the entire ground. The facts recited in the executive proclamation, by which the blockade is ordered, and 75,000 militia are called into service, are equivalent to a declaration of the existence of a civil war, waged for the avowed purpose of effecting the destruction of the government-not a mere insurrection incited to resist the execution of an obnoxious law. This is a political question which it is the province of the executive to determine. Having thus determined that a civil war exists, as commander-in-chief of the army and the navy, the President becomes forthwith vested with the power of exercising all the rights resulting from a condition of war, known to the law of nations, prominent among which is that of blockading the ports of the enemy. The difficulty which at first seems to embarrass the solution of this question arises out of the ap parent inconsistency between the position which the parent government necessarily assumes in the institution of a blockade of the ports of its rebel we lious subjects, which is the position of a belligerent I que But in truth there is no such inconsistency. A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sover تصاد Амелькр 70 We wovid have been fucked Why? eign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, upon those who shall be found guilty of levying war against the nation, or of committing depredations upon its commerce, it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, and thereby interdicting their commercial intercourse with the world, and enforcing this meas ure by capturing its vessels and cargoes wheresoever found, and by capturing the vessels of all na tions that shall violate or attempt to violate the blockade imposed, or shall supply or attempt to supply them with any means whatever to enable them to continue their rebellion, the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as courts of prize, governed by and administering the law of nations. This position is very clearly stated by Chief-Justice Marshall. He says: "A sover eign who is endeavoring to reduce his revolted subjects to obedience, possesses both sovereign and belligerent rights, and is capable of acting in either character. If, as a legislator, he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and the proceedings under it will decide whether it is an exercise of belligerent rights, or exclusively of his sovereign power; and whether the court, in applying the law to particular cases, acts as a prize court or as a court enforcing municipal regulations."1 JUDICIAL CONSTRUCTION OF THE EX ECUTIVE PROCLAMATION. UNDER the early adjudications made in the Federal courts of New York and Massachusetts, during the existing war in the United States, upon captures made for violation of the blockade of the southern ports, an interesting and important question arose, as to the construction of the Executive proclamation, by virtue of which the blockade in question was set on foot. It was contended, with great earnestness and ability, by many distinguished counsel, representing the interests of claimants of captured property, that, by the terms of the proclamation of the 19th of April, 1861, a neutral vessel, having knowledge of the blockade, was not liable to capture for an attempted violation, unless that attempt were made after the vessel had been once warned of the existence of the blockade by one of the blockading vessels stationed off the port, and such warning had been indorsed upon her register. The language of the proclamation, relied upon to sustain this position, is as follows: "If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by one of the blockading vessels, who will indorse on her register the fact and date of such warning; 1 Rose vs. Himeley, 4 Cranch, 272. and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured. and sent to the nearest convenient port, for such proceedings against her and her cargo, as prize, as may be deemed advisable." It is obvious, that upon the peculiar phraseology here adopted, an argument of much plausibility and force may be presented, in support of the position taken. In the determination of the question whether such construction can be maintained, it is proper, first of all, to consider its effect, as accomplishing or defeating the purpose of interdicting commerce with the ports of the insurgent states, for which the blockade was established. And here, it is quite apparent, that if neutral vessels, with full knowledge of the blockade, may, without incurring the hazard of capture, enter and depart from any of the blockaded ports, as often as they can succeed in evading a warning by the commander of a blockading vessel, and an indorsement of the warning upon her register, such immunity would operate an utter defeat of the purpose of the interdict. It would be, in effect, a universal license to all neutral traders, whatever their knowledge of the inhibition, so long as they could succeed in avoiding the fatal warning and its indorsement, to do precisely that which it is the expressed purpose of the proclamation to prohibit, namely, to enter and depart from the interdicted ports, accomplishing the purposes of commerce, and supplying the enemy with the means of continuing and prolonging his revolt, without being subjected to any peualty therefor. It would be as if the Executive had thus proclaimed: "I intend to set on foot a blockade of the southern ports, which blockade shall interdict all approach of neutral vessels, after its establishment, and they have knowledge of it, because, if allowed to approach, under any pretence, they will be sure to avail of that pretence to secure an entrance, with immunity from capture if unsuccessful. Nevertheless, each neutral vessel of the world may once approach each one of these twenty or thirty blockaded ports, with full knowledge of the blockade-nay, with a view to violate it-and she shall be perfectly free from liability to capture, until after she shall have received a warning from the commander of one of the blockading vessels of the particular port she is attempting to enter, and such warning and its date, is indorsed on her register, and each vessel of every neutral nation is hereby expressly invited to violate the blockade of each one of these ports, and deliver a cargo tto he insurgent population, and purchase and carry away the produce of their country; and this she may do with entire impunity, as often as she can succeed in avoiding a warning from a naval commander off the port, and an indorsement on her register. If the vessel succeed in getting in without such warning, no offence shall be held to have been committed subjecting her to capture; and if the same vessel in coming out, laden with cotton or tobacco, should be so unfortunate as to receive such warning, she will be liable to capture only in the event that she shall again attempt to leave or enter the same port." That such would be the character of the block |