But where do we find authority for the principle that the commander of an army may declare a general blockade of an enemy's country? I can safely defy any one to produce such an authority. There is a wide distinction between the declaration of a "general blockade" of an enemy's entire sea-board, under the law of nations, and the blockade, as an ordinary operation of active hostility, of any one port or place which may be the immediate object of reduction or siege.

A general blockade is invariably and necessarily the act of the government-that is to say, of that branch of the government, which, by the particular law or constitution of the belligerent declaring it, is invested with power to declare and enforce such a measure. In England the sovereign exercises the prerogative of declaring war, and the proclamation of the sovereign imposes and enforces a general blockade. So in France; so elsewhere throughout Europe. The sovereign exercises universally that act of high sovereignty which repeated judicial dicta have pronounced a blockade to be. In the United States, the sovereign people have by their Constitution expressly reserved this power to themselves, to be exercised only by their representatives in Congress. The right to declare war, and to enforce other belligerent rights, of which blockade is one of the most important, lies in Congress, and in Congress alone. The general blockade of an enemy's coast is a measure independent of, and has no necessary connection with, active military operations. It is a measure directed not against the ports themselves, but against the foreign commerce of the blockaded country. The blockade of a single town, or port, by a military or naval commander is an act of active hostility. Such a right is supposed to be expressly delegated to an officer charged with the command of a distant expedition. Sir William Scott, in the case of "The Rolla," (6 C., Rob., 366,) held that "a commander, going out to a distant station, might reasonably be supposed to carry with him such a portion of sovereign authority, delegated to him, as might be necessary to provide for the exigencies of the service on which he was employed. On stations in Europe, where government was almost at hand to superintend and direct the course of operations, under which it might be expedient that particular hostilities should be carried on, it might be different, but in distant parts of the world it could not be disputed, he conceived, that a commander must be held to carry with him sufficient authority to act, as well against the commerce of the enemy, as against the enemy himself, for the more immediate purpose of reduction." This blockade-if blockade it can be called--is proclaimed, not from a distant station, or by the commander of a distant expedition, and for the immediate reduction of a besieged port, or fortress, but from the very seat of executive government. It is, in fact, as appears on its face, a civil act of the executive made by the President, as President, and countersigned by the Secretary of State; and if it cannot-as I maintain it cannot, especially in the face of the express provisions of the act of 13th July, 1861-be maintained and justified in that point of view, it cannot be maintained at all.

But admitting, for the sake of argument, that the President, as commander in chief of the forces, in order to suppress this

insurrection, has power to close the ports of the insurrectionary States against all commerce, whether foreign or domestic; he has this power in virtue of municipal law, and not in virtue of the law of nations. He does not possess it by right of war, for there is no war, and rebels are not enemies. (Chenowith's case, above cited.) What, then, would be the penalty for the violation of this military prohibition? It is a fundamental principle that there is no penalty for the violation of a municipal prohibition, save that which the municipal law itself prescribes. What prescribed penalty is there in this case for such violation? You must look to the municipal law for it. You cannot look to one code for your prohibition, and to another for your penalty—especially if it is clear that the other code does not in any way apply to the case. It is clear, therefore, that if the President had power to close these ports, as a military commander, he has not the power to exact a penalty for the violation of his commandsstill less to constitute a capture made for such violation a Prize of

war.

The President, in the first instance, as a measure which, whether legal or not, he considered himself called upon by public opinion to adopt, until Congress should meet and deliberate upon the subject, saw fit to declare a general blockade of the insurrectionary States "under the laws of the United States, and the law of nations.' sage to Congress, 4 July, 1861.)

(MesAs a question of law it may be affirmed that a general blockade could not be enforced under the laws of the United States, and, at the same time, under the law of nations.

A blockade under the laws of the United States-as, for instance, under section 4 of the act of 13th July, 1861-would be a revenue measure simply, not cognizable by the law of nations. A blockade under the law of nations would be regulated wholly by international law, and could have no relation to the laws of the United States.

It is not surprising that a blockade so anomalous in its nature should have carried with it in its course a train of inconsistencies. On the 12th May, 1862, the President issued a proclamation by which, "pursuant to the authority vested in him by the 5th section of the act of the 13th July, 1861," he declared the blockade of certain ports named in the Proclamation of the 19th April, 1861, to have ceased, and that intercourse might be renewed with those ports under certain conditions.

This proclamation professed to withdraw the blockade under the authority of the fifth section of the act of 13th July, 1861-a section which has no reference whatever to the closing of the ports of entry.

The fourth (not the fifth) section of that act authorized the President to close the ports of entry of the insurrectionary States by Proclamation, and provided that "thereupon all right of importation, warehousing, and other privileges incident to ports of entry, should cease and be discontinued at such ports so closed-(that is, closed by Proclamation of the President to be issued under authority of that section) until opened by the order of the President on the cessation of obstructions.

But, until the President had made the Proclamation authorized

by the first part of the 4th section, the ports of the Southern States were not closed at all as ports of entry under the terms of that act; and unless they were closed under that act, the authority to re-open the ports so closed" could have no operation.

No such proclamation has been issued, and yet the President, while still claiming that the ports are blockaded, not under the terms of the act of 13th July, 1861, but under his proclamation of 19th April, 1861, professes to have withdrawn the blockade, of the ports specified, under the authority of the act. In other words, he claims to have blockaded the ports under the law of nations, and to have re-opened the ports under the provisions of a revenue act.

Those ports, however, have never been lawfully closed as ports of entry under the act of 13th July, 1861, or under any other revenue act of the United States; and therefore the Proclamation of 12th May, 1862, which professes to re-open them under the authority of an inapplicable section of the same act, only illustrates the depth of error into which the irregular and unconstitutional Proclamation of the 19th April, 1861, has plunged the executive. If the President had power to declare a blockade under the law of nations, without the authority of Congress, he clearly would possess the power to withdraw it, without falling back upon the section of an act, to which he had studiously avoided giving effect.

That he should be obliged to borrow the authority of that act to enable him to re-open the ports, with some appearance of constitutional authority, shows that, without the authority of Congress, he could have had no power to close them at all.

I assert, then, that the altered nationality of the "Nassau," posing it to be genuine and bona fide, and not merely colorable, as there is just ground for believing, does not in any manner affect the question. Assuredly, it cannot affect our lien, because any transfer of ownership can only have taken place subject to all liens affecting her at the date of sale.

In any case, the law of prize does not apply; and therefore we may dismiss from view the array of cases which go to deny a locus standi in a Prize Court to a material man under the hard rules of international law.

But, for the sake of argument, we will suppose war to exist, in the full sense in which it is understood by the law of nations. Will this Court still be forced, by the example of precedent, to deny us the rights to which Justice and Equity, and the protective Theory of government entitle us? It will be well for us to consider the able views of another judge respecting the force of precedent in a case so exceptional.

Under the Prohibitory Act of 1776, all intercourse between Great Britain and the revolted colonies was, as we have seen, prohibited, and the property of the inhabitants, without exception, was declared confiscated and liable to condemnation by a Prize Court on capture. Some colonists, professing to fly from the penalties of the act of Congress, known as the Abjuration Act, sailed for England in an American vessel, which they had bought for the purpose. That vessel was captured, and taken to the Prize Court for condemnation, under the act we have been considering. By the strict letter of the act

by a long array of precedent-she was clearly liable to forfeiture; but what said the Judge? "The precedents quoted," said Sir James Marriott, (The Rebecca. 1 Hay & Marriott, 197,) "show plainly that there are cases out of the view of the Prohibitory Act. I hear of precedents with pain, as well as this audience, when it is recollected by whom these precedents were made. The utmost respect is to be paid to great names, but I must judge in every case for myself, according to my own conviction and ideas. It is easy to decide, when an Act of Parliament marks the line by which a court is mechanically to be guided. When there is no act of the Legislature, or where it does not extend to the subject in dispute, His Majesty's commission directs the Judge of this Court to proceed in a summary manner, and according to the equity of the case. The late Judge, in the cases of Governor Bull, Angus Macauley, Milligan, Carne, and Savage, said he would be bound by no precedents; I say the same."

So, in this case, I ask your Honor to consider the equities. I ask you to throw aside the trammels of precedents which do not apply, and, as this is a new and exceptional case, at least in our country, to deal with our case in the exceptional manner that justice and equity prescribe. What are the circumstances? The Nassau, or, as she may be more accurately called, "the Gordon," is, or was, when our claim was contracted, an American ship, registered in an American port, and owned by American citizens. Unless the alleged transfer of her to foreign owners shall be shown to have been a bono fide one, she is still owned by individuals who, in contemplation of law, notwithstanding their rebellion, are citizens of the United States, owing allegiance to the Federal government. Our libel states that sometime in the month of July, 1860, the "Gordon" entered the port of Wilmington, in the State of Delaware, in a disabled condition. Application was made to my clients, who were material men doing business at Wilmington, to undertake such repairs to the ship and her machinery as would enable her to prosecute her voyage, and this my clients did. The owners of the" Gordon " were resident in another State, having no credit in that port, and were personally unknown to them, but they knew that by the laws of the United States the debt contracted for repairs and materials constituted a general lien on the ship, and it was upon the security of that lien, and in the confidence that the Federal courts would at any time enforce it against the vessel, that they undertook the costly repairs and outfit which the condition of "the Gordon " rendered necessary. Thus repaired at the expense of my clients, "the Gordon" sailed out of Wilmington, and never returned. Then came secession, and with it the impossibility of reaching the ship, owing to the fact that the authority of the Federal courts was paralyzed and suspended in the seceding States. Of the subsequent history of "the Gordon" we know nothing. What we do know is, that the libellants in this case have never had any control over her, and are innocent of any employment of her, should she ever have been so employed, hostile to the interests of the government. Well, in the month of June last, Messrs. Harlan, Hollingsworth, & Co., learn that "the Gordon," under what we suppose to be the assumed name of "the Nassau," had arrived at the port of New York, and they instruct me to libel her

for the balance of their claim, in this court. I do this, and now we are told that because the ship was brought into port by a public vessel of the United States, the lien that attached to her under the maritime law is forfeited and lost. Why, if this be so, what are the advantages of loyalty? The seceding States hastened to inflict punishment on loyalty by peremptorily forbidding the payment of any debt due to Northern creditors. That at least was natural. There was some excuse for it, in the passion of political antagonism. Is the same penalty to be meted out by the Constitutional courts of the country, under the fiction for it is nothing more-that a rebel ship becomes, on capture by a national vessel, a Prize of war, and, ipso facto, dis charged of its debts to loyal citizens? I confess I know no law by which so arbitrary, so unrighteous, a doctrine can be supported. Why, sir, the public ships of the United States are the common property of the citizens. The government itself is part and parcel of the people. As loyal citizens, the libellants in this case were entitled to claim the aid of government, and of the naval power, for the purpose of enforcing their claim against a ship owned by other citizens in rebellion against the Federal power. I hold it to be the highest duty of government to afford such aid, if called upon. Can any parallel be drawn between such a case as this, and the reported cases, all of which refer to the ships of a foreign country captured in open war? In the case of an alien ship, a material man, in making advances on the security of a maritime lien, is said to take the security subject to all the chances incident to it, and, among the rest, the chances of an ordinary war. Sir William Scott, in the case of " The Tobago," 5 C., Rob. 222, gives this as one material ground of an adverse decision. But whatever may be the chances to which a material man's lien may be supposed to be subject in the case of a domestic vessel, the chances of war are certainly not among them. What chance of war could reasonably have been supposed to exist, when the material man was an American citizen, and the ship a domestic ship, amenable to the jurisdiction of our own courts? The existence of such a war would have been a legal impossibility. But even in the case of a ship, the property of an alien enemy at open war with the country of the captor, the rule that capture as Prize of war overrides all private liens is not universal. The principle is that the captor takes cum onere, and although the extent of onus was, at periods more remote, somewhat restricted, yet, like many other rules connected with prize rights, it would seem to have received a more liberal interpretation under modern jurisprudence. The old rule has been quoted with considerable modification, in favor of claimants of the country of the captor. "Cases," said Lord Stowell, in "The Belvidere," (1 Dod., 356,) "have been stated, in which the court has certainly attended to claims somewhat similar;" but, in all those cases, the parties had some certain evidence of their right. They had either a positive lien on the ship, or some specific security." So in this case we claim a positive lien on the ship under the general maritime law of the United States.

In the Vrow Sarah, (cited in note to last case,) a lien for repairs was allowed.

In the case of "the Aina," captured during the last Russian war,

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