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Chap. IV. force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war. Money and wealth, Note I. the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy, by capturing his property on the high seas.

"The Appellants contend that the term 'enemy' is properly applicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the Common Law, which say, that persons who wage war against the King may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.'

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"They insist, moreover, that the President himself, in his Proclamation, admits that great numbers of the persons residing within the territories in possession of the Insurgent Government, are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party and its de facto Government' to submit to their laws and assist in their scheme of revolution; that the acts of the usurping Government cannot legally sever the bond of their allegiance ; they have, therefore, a co-relative right to claim the protection of the Government for their persons and property, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance and made war against the Government by treasonably resisting its laws.

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They contend, also, that insurrection is the act of individuals, and not of a Government or Sovereignty. That the individuals engaged are subjects of law. That confiscation of their property can be effected only under a municipal law. That by the law of the land such confiscation cannot take place without the conviction of the owner of some offence, and finally that the Secession Ordinances are nullities and ineffectual to release any citizen from his allegiance to the national Government, and consequently that the Constitution and laws of the United States are still operative over persons in all the States, for punishment as well as protection.

"This argument rests on the assumption of two propositions, each of which is without foundation in the established law of nations. It assumes that where a civil war exists, the party belligerent, claiming to be Sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being Sovereign, he can exercise only sovereign rights over the other party. The insurgent may be killed on the battle-field or by the executioner; his property on land may be confiscated under the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is ' unconstitutional.' Now, it is a proposition never doubted, that the belligerent party who claims to be Sovereign, may exercise both belli

Note I.

gerent and sovereign rights (see 4 Cranch, 272). Treating the other party Chap. IV. as a belligerent and using only the milder modes of coercion which the law of nations has introduced to mitigate the rigours of war, cannot be a subject of complaint by the party to whom it is accorded as a grace or granted as a necessity. We have shown that a civil war such as that now waged between the Northern and Southern States is properly conducted according to the humane regulations of public law as regards capture on the ocean.

"Under the very peculiar Constitution of this Government, although the citizens owe supreme allegiance to the Federal Government, they owe also a qualified allegiance to the State in which they are domiciled. Their persons and property are subject to its laws.

"Hence, in organizing this rebellion, they have acted as States claiming to be Sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new Confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force; south of this line is enemies' territory, because it is claimed and held in possession by an organized, hostile, and belligerent power.

"All persons residing within this territory whose property may be used to increase the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors.

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"But in defining the meaning of the term 'enemies' property,' we will be led into error if we refer to Fleta and Lord Coke for their definition of the word enemy.' It is a technical phrase peculiar to Prize Courts, and depends upon the principles of public policy as distinguished from the Common Law.

"Whether property be liable to capture as enemies' property' does not in any manner depend on the personal allegiance of the owner. It is the illegal traffic that stamps it as "enemies' property." It is of no consequence whether it belongs to an ally or a citizen. (8 Cranch, 384.) The owner, pro hac vice, is an enemy.' (3 Wash. C. C. R., 183.)

"The produce of the soil of the hostile territory, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are always regarded as legitimate prize, without regard to the domicil of the owner, and much more so if he reside and trade within their territory.

"III. We now proceed to notice the facts peculiar to the several

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Chap. IV.
Note I.

cases submitted for our consideration. The principles which have just been stated apply alike to all of them.

The Tropic Wind.-A decision to the same effect had been pronounced on the 17th June, 1861, by the Judge of the District Court of the United States for the District of Columbia, in the case of the British schooner Tropic Wind, captured on the 21st May.

"The President," said the Judge, "in his Proclamation relating to the blockade of the ports of the Confederate States, calling out 75,000 Militia to suppress insurrection and the resistance to the Federal laws, alleges, that nine States have so resisted,' and have threatened to issue letters of marque, to authorize the bearers thereof to commit assaults against the vessels, property, and lives of citizens engaged in commerce on the high seas and in the waters of the United States; that public property of the United States has been seized, the collection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody as prisoners, or have been impeded in the discharge of their official duties, without due legal process, by persons claiming to act under authorities of the States of Virginia and North Carolina.'

"These facts, so set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists.

“Blockade itself is a belligerent right, and can only legally have place in a state of war; and the notorious fact that immense armies in our immediate view are in hostile array against each other in the Federal and Confederate States, the latter having organized a Government, and elected officers to administer it, attest the executive declaration that civil war exists; a sad war, which, if it must go on, can only be governed by the laws of war, and its evils mitigated by the principles of clemency engrafted upon the war code by the civilization of modern times."

The Amy Warwick." In addition," said Judge Sprague, in the case of the Amy Warwick, "to other important acts, the President, by Proclamation of the 27th of April, established a blockade of the ports of Virginia. This was the exercise of a great belligerent right, and could have been done under no other. He could not prohibit or restrict the commerce of any State by a mere municipal regulation. The blockade was avowedly established as a belligerent act under the law of nations; and it was accordingly announced that it would be rendered effective by an adequate naval force, and in all proceedings in relation to it by our own country and other nations it has been regarded as a belligerent act. That the United States in this war has on the ocean all the rights of belligerents, has never been distinctly controverted. To deny it is to break up the blockade, and every condemnation under it."

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"I understand and agree," said Mr. Evarts, arguing as Counsel for

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Note I.

the United States in the prosecution of the crew of the Savannah, Chap. IV. "that for certain purposes there is a condition of war which forces itself on the attention and duty of Governments, and calls on them to exert the power and force of war for their protection and maintenance. Nor, gentlemen, have I ever denied, nor shall I here deny, that when the proportions of a civil dissension or controversy came to the port and dignity of war, good sense and common intelligence require the Government to recognize it as a question of fact according to the actual circumstances of the case, and to act accordingly. I, therefore, have no difficulty in conceding that outside of any question of law and right— outside of any question as to whether there is a Government down there, whether nominal or real, or that can be described as having any consistency of any kind under our law and Government-there is prevailing in this country a controversy which is carried on by the methods and which has the proportions and extent of what we call war. And I admit that if this Government of ours were not a party to this controversy if it looked at it from the outside, as England and France have done-our Government would have had the full right to treat these contending parties in its courts and before its laws as belligerents engaged in hostilities, as it would have had an equal right to take the opposite course."

The reader may further consult an able pamphlet by a lawyer, highly esteemed in this country as well as in the United StatesMr. Whiting: The War Powers of the President, and the Legislative Powers of Congress in relation to Rebellion, Treason, and Slavery. (Boston: Seventh edition, 1863.)

Mr. Whiting observes, p. 45: "The Government have in fact treated the insurgents as belligerents without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, 'in express terms,' and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded harbours ports of entry. They have relied solely on their 'belligerent' rights, under the law of nations."

It would be a correct account, probably, of the law of the United States as interpreted by the Supreme Court to say that, as regards inhabitants of the Confederate States, the rights of citizenship were suspended during the revolt, but not its obligations. Such persons, taken in arms against the Union, would have been held punishable as offenders against its laws. In the case of the crew of the Savannah, captured on the 3rd June, 1861, and in that of William Smith, one of the crew of the Jeff. Davis, taken prisoner on board of the schooner Enchantress, a re-captured prize, no doubt was entertained on that head. But the

Chap. IV
Note I.

crew of the Savannah were not, in fact, punished as malefactors, the proceedings against them being dropped, after a trial in which the jury were unable to agree upon a verdict; nor was Smith himself, though against him a conviction was obtained. They were transferred, under an order issued to the marshals in whose keeping they were by the Secretary of State, to a military prison, where they were detained as prisoners of war. The Confederate Government had threatened retaliation, and would certainly have executed the threat. To avoid this, as well as on general grounds of humanity, men taken in arms were throughout the contest treated as prisoners of war, and exchanges were effected by means of cartel arrangements between the Generals in command.

Some difference of opinion has existed, and, I believe, still exists, as to the time at which the state of war, with the rights which it conferred on the United States as against the people of the South, ought to be deemed to have terminated. The continued existence of those rights has been regarded as justifying the Reconstruction Acts, the Act of the 2nd March, 1867, by which the Southern States were parcelled out into military districts and placed under military control, and the exercise of military jurisdiction in those States. Upon this head the reader may refer to the opinion of Attorney-General Hoar on the case of Weaver, tried and sentenced by a military tribunal in 1868 (in which Mr. Hoar speaks of the war as having been a war between the States " as organized communities," and the United States), and the case of Semmes v. City Fire Insurance Company, in the United States' Circuit Court, American Law Review, October 1869.

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An Act recognizing the Existence of War between the United States and the Confederate States; and concerning Letters of Marque, Prizes, and Prize Goods.

(Passed by the Congress of the Confederate States, 6th May, 1861).

"Whereas the earnest efforts made by the Government to establish friendly relations between the Government of the United States and the Confederate States, and to settle all questions of disagreement between the two Governments upon principles of right, justice, equity, and good faith, have proved unavailing by reason of the refusal of the Government of the United States to held any intercourse with the commissioners appointed by this Government for the purposes aforesaid, or to listen to any proposals they had to make for the peaceful solution of all causes of difficulty between the two Governments: and whereas the President of the United States of America has issued his proclamation making requisition upon the States of the American Union for 75,000 men for the purpose, as therein indicated, of capturing forts and other strongholds within the jurisdiction of and belonging to the Confederate States of

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