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THE CIVIL WAR IN THE UNITED STATES;
DETERMINATIONS OF THE RIGHTS AND LIABILITIES
[In this supplement to the chapter which treats of the rights and liabilities resulting from war, it is proposed to consider the grave and interesting ques. tions connected with those rights and liabilities, which have constituted the basis of objections to the validity of the maritime captures made during the existing civil war in the United States; and to recite, at such length as the great importance of the subject may justify, the judicial discussions and determinations which have thus far been had upon
these questions. Belligerent The government of the United States, in entering cised by the upon the performance of its momentous duty of in the conduct suppressing an insurrection of its slaveholding citi
zens, which had assumed the character and proportions of civil war, saw fit to bring into exercise its belligerent rights, so far as they relate to the commerce and commercial intercourse of the insurgent section, carried on by means of the ports upon its coast or rivers.
These rights were asserted by the Executive institution of a blockade of these ports.
Having in view the purpose for which the blockade of the southern ports was established, namely, the cutting off the insurgents from all means of converting their movable property into warlike munitions and stores for subsistence, which would enable them to prosecute and prolong the unholy contest
of the civil
upon which they had entered, the wisdom of the The wisdom policy of resorting to a belligerent blockade, rather of the belligerthan to the sovereign right of closing the ports by of the insurmunicipal regulation, cannot be questioned. gent ports;
A belligerent blockade addresses itself to neutral commerce throughout the world. It speaks to neutral traders in all quarters of their dispersion, prohibiting them from fitting out their vessels for a voyage to any of the invested ports, forbidding their approach to such ports under any pretence whatsoever, and holding over them the terrors of capture and its consequences, not only for the actual but the attempted offence, and not only upon the voyage on which the interdict was evaded, but at any time on the voyage following that of the offence, and not only while in the act of violation, but anywhere upon the high seas, out of neutral jurisdiction.
The closing of the ports by municipal regulation, In preference declaring them no longer ports of entry and deliv- regulation, ery, is a sovereign right, which can be exercised and closing the
ports as ports enforced only within the territorial jurisdiction of of entry. the nation.
Beyond the few miles from the coast, to which that jurisdiction is limited, it is wholly inoperative.
The fitting out of vessels avowedly destined to ports thus closed, is no offence. The approach to, and hovering about, such closed ports, with the avowed design of entering whenever opportunity occurs to avoid the revenue cruiser, is not a culpable act, for which any penalty can be imposed; and seizure must be made of the offending vessel before she reaches that line which marks the restricted
limits of the sovereign's jurisdiction, or it cannot be made at all.
To enforce such a regulation, all the naval forces of the world would be hopelessly inadequate. When to this is added the consideration, that proceedings for the forfeiture of property seized for an infraction of the municipal regulation, must be taken upon the instance side of the Admiralty Courts of the sovereign, and conducted without any of the summary and speedy action and determination, which may and should distinguish the courts that are organized for the enforcement of belligerent rights under the law of nations, it seems incredible, that any one can have doubted the wisdom of the policy adopted to effect the purpose of commercial interdiction, or have seriously proposed its virtual abandonment, by a resort to the munici.
pal regulation. Objections
But, the institution of a blockade, under the law validity of cap
of nations, being the exercise of a purely belligerent tures for the right, presupposes the existence of war-of war the blockade. which carries with it the consequences of a public
war, imposing restrictions upon neutral commerce, and subjecting to confiscation, property impressed with hostility of character; and, it was urged by distinguished advocates, as a fundamental objection to the validity of captures made either for the violation of the asserted belligerent right, or as the property of public enemies, or impressed with a hostile character, that under the peculiar frame of government and written constitution of the United States, a state of war, carrying with it such consequences, could not result merely from the existence of an armed rebellion by a portion of its citizens,
whatever its organization, and however formidable its dimensions; that even under monarchical or other forms of government, without written constitutions, there is no authority for the position, that a state of war, with the incidents of public war, results from an armed insurrection, occupying portions or districts of an empire or kingdom, in the absence of any decree, edict, or act of legislation of the supreme power.
It was further argued, that if war, with its attendant consequences, did not exist as the result alone of the armed insurrection, it could not lawfully be called into existence by the mere exercise of the powers confided to the President by the Constitution of the United States, and the laws made in pursuance thereof, for the suppression of insurrection, because, by the terms of the Constitution, war can only be declared or called into existence by an act of the Congress of the nation.
It was therefore argued, that captures made prior to any legislative enactment, and which could be upheld solely under the law of nations, as affecting commerce during the existence of public war, were without warrant of law, and should be so decreed, by restitution of the captured property.
These positions were presented and illustrated with great ability and learning by the distinguished advocates, who represented the interests of neutral or rebel claimants, in the Federal courts of prize.
How they were met and answered will be best Judicial detershown by liberal extracts from the opinions of the mination of eminent judges presiding in those courts.
The case first deciđed was that of The Tropic
Court for the District of Colunbia.
The case of the Wind, in the District Court for the District of
This case assumed a peculiar interest, not only because it was the first which arose under the
proc lamation of blockade, but because the prize was a British vessel, and it was understood that Her Britannic Majesty's representative at Washington, assumed, to some extent, the direction of the defence, in order that the grave questions involved, affecting the rights of neutral commerce, should be thoroughly and ably presented and sustained.
The vessel was captured on the 21st of May, 1861, near the mouth of James River, by the United States ship Monticello, for the violation of the blockade of Richmond, by egress from that port, which she had entered prior to the proclamation.
Passing over the incidental, yet interesting ques. tions, which were raised in the case, as to notice of the blockade, the time when it became effective, the time allowed neutral vessels to depart, and the effect of taking in a cargo in a blockaded port, after notice of the blockade; in this connection it is proposed to limit quotation, to the language of the court in discussing and deciding the fundamental questions involved in the adjudication.
Upon these, the learned judge says: Opinion of Mr. “The authority of the President to institute the lop.
blockade, is denied by the respondents, who insist that this power, under the Constitution of the Uni. ted States, can only be exercised by the national legislature. And this is the first question to be considered.
“It is true no department of the Federal govern