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the United States, in disavowal and defiance of that allegiance, and, so far as their own purposes and acts can fix their political status, make themselves as alien and foreign from the United States government, as if they assumed the name of citizens and subjects of various states of Mexico or South America.
“They thus make themselves avowed enemies, and wage war against the United States to accomplish its dismemberment and destruction. It can be of no consequence under what name or appellation those enemies unite and act, whether as states, secessionists, southerners, or slaveholders ; they are, in every just contemplation of our system of government, insurgents and rebels against a common govérnment, and waging war for its overthrow.
“ The organism of states which furnishes a form of government for peaceful and domestic purposes is thus sought to be perverted by the insurgents into alien sovereignties, which may exercise, under the familiar name of states, independent and coequal capacities with the national government.
Such names or pretensions can have no effect to change the intrinsic nature of things, and transform the residents of particular states into any thing else than citizens and subjects of the United States, and, as such, subordinate to its Constitution and laws.
“But, by the instrumentality of the pretences and means employed, the insurrection has become developed into a hostile power of great magnitude and force, disavowing all unity with or subordination to the mother country, and taking to itself the attributes of a distinct nationality. It thus discards all common rights under the Federal government, and,
by force of arms, wages war to establish one overpowering that of the parent nation. They become enemies of the United States government by open hostilities waged against it, without losing their subjection to it individually as citizens. Government represses their rebellion and treason legitimately, by force of arms and war, because the mag. nitude and force of the revolt is beyond the control of the law and civil magistracy. To that end, all the constitutional powers of the President, in his capacity of commander-in-chief of the army and navy, may be rightfully called into exercise. They confront the government in masses of armed men, holding fortified posts, or ports of trade and general commerce, and they thus become belligerents and enemies of the nation, against whom all the means of war allowed by the law of nations may be rightfully employed, as was held by the Supreme Court in the case of the St. Domingo insurgents. (4 Cranch, 241.) For the reasons hereafter suggested, I forbear adding a further support by citation of authorities, than reference to a very few upon fundamental points, and taken generally from decisions in our own courts.
“ In my judgment, therefore, every branch of the general defences set up against these suits is inadequate and insufficient in law and fact to bar the prosecutions pending. I consider that the outbreaks in particular states, as also in the Confederate States, was an open and flagrant civil war, waged against the United States by the insurgents in the several disaffected states, referred to in the pleadings and proofs in these several causes, at the time the several proclamations, so also referred to
and named, were issued and made by the President: That such insurrection was maintained by warlike means and forces too powerful to be overcome or restrained by the civil authority of the government, and that it became lawful and necessary to resist and repel hostilities so levied against the United States and its laws, by aid of the army and navy of the United States: That the President possessed full competency, under the Constitution of the United States, and the existing laws of Congress, to call into service and employ the land and naval forces of the United States, in the manner they were used by him, for the purpose of main. taining the peace and integrity of the Union, and putting down hostilities waged against them; and the President had, rightly, power to establish blockades of ports held by those enemies, and enforced such blockades pursuant to the law of nations."
The intelligent reader will find nothing to regret in the length of the preceding quotation.
In thought and expression it is alike characteristic of its distinguished author.
His cotemporaneous decisions in the law of mari. time capture--with this opinion upon the great fundamental questions involved in all his adjudications, will be preserved as instructive precedents, and as valuable memorials of the vigorous and comprehensive intellect of him who has long been one of the brightest ornaments of the Federal judiciary.
The case of
The next case to be considered is that of The F. District Court W. Johnson, decided in the United States District for the District Court for the district of Maryland. of Maryland.
This vessel was captured for an alleged violation of the blockade of the port of Norfolk, in Virginia, and as enemy's property, being owned by a citizen of Norfolk.
The questions raised in the preceding cases, were here discussed with great ability, by distinguished counsel.
In disposing of them the learned judge says:
* It has been contended by the counsel for the opinion of Mr. claimants that, in the present unhappy division in Justice Giles. our country, the government at Washington has no power, either under the Constitution of the United States, or by the recognized principles of the law of nations, to treat the inhabitants of the states which claim to have seceded, as enemies, and to exercise in reference to them those belligerent rights which all concede belong to parties engaged in a public war. And, by a public war, is here meant a war between independent sovereign states. Now, I am sitting in this case, in a prize court, and the Supreme Court said (the case of The Rapid, 8 Cranch's Reports, 155, and the schooner Adeline and cargo, 9 Cranch, 264), 'that the law of prize is a part of the law of nations. And I am, therefore, to decide this question by the principles of that universal law, to which all civilized princes and states acknowledge themselves to be subject.
"In the first place, let us see what is the character of the present contest in this country, and in what light it has been regarded by the executive and legislative departments of the government. In the face of all that is passing around us, it needs no argument to show that a civil war of gigantic dimensions is sweeping over the land. We are
almost within sound of the cannon of two of the largest armies that have ever been marshalled in hostile array against each other on this continent. More than one-third of the confederacy has claimed to separate from the rest, and they are now fighting about the construction of the organic instrument of the government—one side alleging that under a true construction of the Constitution, each state has a right to withdraw from the Union whenever its people so determine; the other, that no such right exists, and that to attempt to secede is rebellion, and not the exercise of any constitutional right. And in the states which have claimed the right to withdraw, there are now open no courts of the United States, and the laws of the United States cannot now be executed in those 'states, by the ordinary course of judicial proceedings.
"Is this not civil war? And has it not been so regarded by the executive department of the gov. ernment? This is clear from the proclamations of the President of the 15th of April, of the 19th of April, of the 27th of April, of the 3d of May, and of the 10th of May, all recognizing the fact that the civil power of the government is no longer capable of enforcing the laws, and calling to its aid the power intended to be provided by the acts of 1795 and 1807, and, also, using the power of blockade, a war power belonging only to belligerents either in a civil or foreign war. And the legislative department has also recognized this contest as a war. For, during the last session of Congress, it not only did so by the laws which it passed for the raising of armies and providing means for their support, but in express language, on (four) different occa