ment. They could have taken the vessel for military purposes. They could have taken the cargo for military necessities, with or without compensation as they should see fit. If they regarded the owner as an enemy, they could take it as a prize of war, or by way of confiscation.

(The law of prize of war, which condemns property that even by misfortune of a friendly owner, is impressed with a hostile character, or is going, when captured, into enemy's control, or will so go if restored, must not be confounded with municipal forfeiture or confiscation, which is usually penal or punitive for some offence of the owner.)

These reasons show that they are equally applicable to internal wars. The test is whether the residence of the owner is under the established de facto jurisdiction and control of the enemy.

In the Castine case, (U.S. vs. Rice, supra) there can be no doubt that it was competent for our Government to capture a vessel bound into that port in that state of things, and belonging to a person residing there, p. 659 without reference to whether he was, | as to his general political allegiance, a citizen of the United States, or a neutral alien, or a British subject.

It is not necessary to draw a fine line as to what is to be deemed enemy's territory, for the purpose of deciding this case,-if the above principles are applicable to internal war. I suppose it will be conceded that the nature and character of the occupation of Richmond, Va., was more than sufficient to constitute it enemy's territory, within the meaning of the rule.

We are now brought to another branch of the question before the Court. Conceding that the Sovereign may exercise belligerent powers in internal wars, and that capture on the ground of enemy's property is among those powers, and that Richmond was enemy's territory-it is still contended that under our Constitution, the exercise of these powers was not made by the proper authorities, and in the proper state of things.

It is contended that the President cannot exercise war powers until Congress shall first have declared war,' or, at least, done some act recognizing that a case exists for the exercise of war powers, and of what war powers.

There is nothing in the distribution of powers under our Constitution which makes the exercise of this war power illegal, by reason of the authority under which this capture was made.

I. It is not necessary to the exercise of war powers by the President, in a case of foreign war, that there should be a preceding act of Congress declaring war.

The Constitution gives to Congress the power to 'declare war.'

But there are two parties to a war. War is a state of things, and not an act of legislative will. If a foreign power springs a war upon us by sea and land, during a recess of Congress, exercising all belligerent rights of

capture, the question is, whether the President can repel war with war, and make prisoners and prizes by the army, navy and militia which he has called into service and employed to repel the invasion, in pursuance of general acts of Congress, before Congress can meet ? or whether that would be illegal?

In the case of the Mexican war, there was only a subsequent | recognition p. 660 of a state of war by Congress; yet all the prior acts of the President were lawful acts of war.

It is enough to state the proposition. If it be not so, there is no protection to the State.

The question is not what would be the result of a conflict between the Executive and Legislature, during an actual invasion by a foreign enemy, the Legislature refusing to declare war. But it is as to the power of the President before Congress shall have acted, in case of a war actually existing. It is not as to the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.

II. In case of civil war, the President may, in the absence of any Act of Congress on the subject, meet the war by the exercise of belligerent maritime capture.

The same overwhelming reasons of necessity govern this position, as the preceding.

This position has been recognized by every Court into which the prize causes have been brought in this country, by Judge Dunlop, the District of Columbia; Judge Giles, in Maryland; Judge Marvin, in Florida; Judge Betts, in New York; Judge Sprague, in Massachusetts; Judge Cadwalader, in Pennsylvania.

There are general Acts of Congress clothing the President with power to use the army and navy to suppress insurrections. Act 1795, ch. 36, sec. 2; Act 1807, ch. 39.

And it must be admitted that the function of using the army and navy for that purpose is an Executive function. But it is contended that before they are used as belligerent powers, before captures can be made, on grounds of blockade and enemy property, Congress must pass upon the case, and determine whether the powers shall be exerted. Now, if Congress must so adjudge in the first instance, why not throughout the war? Civil wars change their character, from day to day and place to place. Congress should be a council of war in perpetual session, to determine when, how long, and how far this or that belligerent right shall be exerted.

The function to use the army and navy being in the President, the mode of using them, within the rules of civilized warfare, | and subject to p. 661 established laws of Congress, must be subject to his discretion as a necessary incident to the use, in the absence of any Act of Congress controlling him.

p. 662

III. There were no Acts of Congress at the time of this capture (July 10, 1861,) in any way controlling this discretion of the President. IV. Since the capture, Congress has recognized the validity of these acts of the President.

The Act Aug. 6, 1861, ch. 63, sec. 3, legalizes, among other things, the proclamations, acts and orders of the President respecting the navy. This includes the blockades, and the orders respecting captures.

The Act March 25, 1862, ch. 50, regulating prize proceedings, in sec. 5, recognizes prize causes as now pending' in the Courts.

The proclamations make the blockades belligerent acts, and not municipal surveillance. They are declared to be 'in pursuance of the law of nations,' and guaranteed to be made effective and actual, and provision is made for warning.

They had been always treated as blockades under the laws of war, by the Executive, by the Courts and by neutral powers, before the passage of this Act.

Act July 17, 1862, ch. 204, sec. 12, recognizes prize causes as now pending, and regulates them; and recognizes decrees of condemnation in pending cases.

The Resolution of July 17, 1862 (No. 65), regulates the custody of prize money now in the Registry of the Courts.

When these acts were passed, Congress knew that great numbers of captures had been made, solely on the ground of enemy property;' that the President had, through the several U. S. Attorneys, asked for their condemnation; that they had been condemned, solely on that ground, in all the chief districts; that condemnation on that ground had been refused in none; and that the proceeds of prizes condemned as enemy property were in the Treasury awaiting distribution.

All the acts for the increase of the army and navy, and for raising volunteers, speak of this state of things as a 'war.'|

It is contended that the Act of July, 1861, ch. 3, secs. 5 and 6, is an action by Congress on the subject, inconsistent with condemnation of this property.

To this, I reply:

I. The capture, in this case, was before the passage of the act. The statute does not retroact.

It is an established rule to interpret statutory law as taking effect from its passage, not as varying the law or its administration by retroactive operations. Matthew's vs. Zane, (7 Wheat., 211); I Kent's Com., 455, notes.

The statute does not in its terms contemplate a retroactive effect, but rather the reverse. Congress at the time of passing it knew that the President had exercised, as of right, full belligerent power to capture at

sea on all the recognized grounds of war,-contraband, breach of blockade, and enemy property; and that the Courts were entertaining prize jurisdiction on those grounds.

Under such circumstances, if Congress intended to make void all those acts, it should be expressed in terms, unless it were necessarily and unavoidably the result of the statute, construed with all the established presumptions against retroaction.

All the Courts of the United States which have acted on prize causes since the passage of the act, have construed it as not retroactive.

II. There is no inconsistency in Congress, declining to act on the exercise of war powers by the President in the past, and at the same time making new and special provisions, qualifying or altering the mode of exercising those powers after a future event.

III. To give it a retroactive effect, would render this statute inconsistent with the Act of August 6th, 1861, ch. 63, sec. 3.

IV. The Act of 13th of August, 1861, does not relate to belligerent captures and prizes. It provides for civil forfeitures and confiscations, in the exercise of civil jurisdiction.

(1.) The terms 'captures' and ' prize' are not used. The terms are 'seizure,'' forfeiture,' and 'confiscation.' The former are terms of war, the latter, of civil proceedings. Park on Ins. | c. 4, p. 73; 2 Arnould on p. 663 Ins. § 303; Richardson vs. M. F. & M. I. Co., (6 Mass., 108); Constitution of United States, Art. 1, sec. 8; Higginson vs. Pomeroy, (11 Mass., 110); Black vs. Marine I. Co., (II Johns., 292); Thompson vs. Reed, (12 S. & R., 443); Halleck's Int. Law, ch. 12, § 14; Halleck's Int. Gov., c. 30; Rhinelander vs. I. Co. of Pa., (4 Cr., 42, 44); Carrington vs. Merch. I. Co., (8 Pet., 518, 519); Bradstreet vs. Neptune I. Co., (3 Sumner, 605, 616); Davison vs. Seal Skins, (2 Paine, 324).

(2.) The Secretary of the Treasury has full powers of remission of the ́ forfeitures,' as in revenue cases, under Act of 1797, ch. 13, vol. 1, p. 506. This he may do, by general regulations of the Treasury Department. This is unknown to prize or belligerent proceedings, and inapplicable to them.

(3.) Sec. 9 gives jurisdiction over the 'forfeitures,' to certain Courts, which would be unnecessary if these were cases of prize.

(4.) The prize laws give an interest to the captors. Under this statute, the title rests in the United States by 'forfeiture.'

(5.) Sec. 6 introduces a principle unknown to prize law, to wit: That the whole vessel is condemned, on the sole ground that the owner of a part resided in enemy's territory. Congress can hardly have intended that.

That such is the true construction of the section, appears from the debates at the time of its passage.

P. 664

This construction has been put upon it by the Courts, and the Treasury has adopted it, and authorized a remission of the forfeiture of the shares owned by residents in loyal States, under certain circumstances.

The true construction of the act, I respectfully submit to be this: It is not an act specially providing for the present rebellion, or, in terms, alluding to it. It is a general act, applicable to all times, and to rebellions or civil wars, of every possible character. The President might or might not, at his option, apply it to the present rebellion by issuing or not his proclamation. The act is applicable, at the option of any President, to a rebellion which is carried on under State authority, and it is applicable to no other. |

Property may often be so situated as to become the subject both of condemnation as prize of war, and forfeiture by civil law. In that case, the prize law has the precedence. The cases of the Rapid, St. Lawrence, Alexander, and Joseph, in (1 Gallison's Rep.).

In further proof that this statute was not intended to establish or regulate or modify or affect the law of prize, it is observable that it touches small portions of entire matters over which the President had been exercising the right of belligerent capture, and has exercised them still without objection by Congress.

Sec. 6 does not forfeit vessels of persons residing in the rebel States, if found in the ports of those States. A rebel man-of-war could not be forfeited under that act if found in their own ports, nor if found elsewhere, if the title was in a neutral or a citizen of a loyal State. (Nor could it be condemned under the Act of August 6th, 1861, unless the owner of the vessel knowingly allowed it to be used in the war.)

Sec. 5 forfeits no property unless passing between the designated States and the other States. If found in the rebel States, or passing between rebel States, it is not forfeited, even if it be contraband of war. (Nor would it be forfeited if found there, under the Act of August 6th, 1861, unless the owner had knowingly allowed it to be used in the war.) If found at sea, passing between two rebel States, or between a rebel State and a neutral port, it would escape. Under this statute, no property could be seized for breach of blockade, unless passing between a rebel and a loyal State; no vessel could be seized for breach of blockade unless it was not only passing between a rebel and a loyal State, but carrying cargo; and the fact that the property was contraband would not forfeit it or the vessel carrying it, if it was bound from a neutral port.

That the rebellion had come to a state requiring the exercise by us of the war powers of blockade and capture, has been passed upon by the political department of the Government,-by both the Executive and Legislative branches. That is conclusive on the Courts. President's proclamations of April 15, April 19, 1861, and April 27, May 3, 1861;