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actual insurrection, or their inhabitants as subject in most respects to treatment as enemies.'

"Such intercourse, however, with any such state, place, or district, so occupied and controlled, was absolutely forbidden, unless the person or persons conducting it were furnished with a license and permit of the President, and conformed in all respects to the treasury rules and regulations."

The court held that the Secretary of the Interior possessed no power to issue a license and permit, and that the vessel and cargo were lawfully subject to seizure.

This decision settles two propositions that have an important bearing upon the question under consideration. The first is, that all intercourse with a place "occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents" was prohibited, except “intercourse for commercial purposes."

The second is, that "intercourse for commercial purposes was absolutely forbidden, unless the person or persons conducting it were furnished with a license and permit of the President, and conformed in all respects to the treasury rules and regulations."

The President, by his proclamation, had declared the entire State of Louisiana and all of her inhabitants to be in a state of insurrection against the United States, which made all of such inhabitants the enemies of the government and all the inhabitants of the states that adhered to the government, and had prohibited all kinds of intercourse except commercial intercourse, under the license and permit of the President. If such was the condition of things, upon what principle can it be maintained that such places were not "in actual insurrection," or "their inhabitants were not "subject in most respects to treatment as enemies." If such places and their inhabitants were not in insurrection, the government possessed no power under the laws of war, the acts of Congress, or the constitution of the United States, to blockade the ports or prohibit intercourse between them and the inhabitants of the other states. The constitution of the United States ex

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pressly provides, that "the citizens of such state shall be entitled to all privileges and immunities of citizens of the several states." The inhabitants of New Orleans could not be deprived of those privileges and immunities, unless they were in a state of insurrection against the government of the United States. This court is unwilling to believe that the highest judicial tribunal of this country intended to hold that the government of the United States had blockaded the ports and deprived the inhabitants of one of the states of this Union of the privileges and immunities secured to them by the paramount law of the land, when such state or part thereof was not in actual insurrection, and when the inhabitants thereof were not subject to treatment as enemies, but we prefer to believe that the expression used in the case of The Venice, and afterwards referred to in the case of The Reform, was a loose and unguarded expression, which was not at all necessary to the decision of the cases.

The Supreme Court, in the case of The Peterhoff, 5 Wal. 28, said: "It has been held, by this court, that persons residing in the rebel states at any time during the civil war, must be considered as enemies, during such residence, without regard to their personal sentiments or dispositions. Prize Cases, 2 Black, 635; The Venice, 2 Wal. 258; Mrs. Alexander's Cotton, id. 404.

The

"But this has never been held in respect to persons faithful to the Union, who have escaped from those states, and have subsequently resided in the loyal states or in neutral countries. Such citizens of the United States have lost no rights as citizens by reason of temporary and constrained residence in the rebellious portion of the country."

In this case the doctrine is broadly stated, that persons residing in the rebel states at any time during the civil war must be considered enemies during such residence, without regard to their personal sentiments or dispositions.

It was held by the Supreme Court, in the case of the United States v. Weed, 5 Wal. 62, that the property seized was not liable to seizure, because the owner was a loyal citizen of New

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Orleans and had a license and permit from the President, in conformity to the rules and regulations prescribed by the Secretary of the Treasury.

The Supreme Court, in the case of The Sea Lion, 5 Wal. 630, held that the vessel was liable to capture, for the reason that the owner was not protected by a license and permit of the Secretary of the Treasury; that the President alone possessed the power, by his license and permit, to render lawful commercial intercourse with the inhabitants of the rebellious states.

The Supreme Court, in the case of McKee v. The United States, 8 Wal. 163, say: "It is a familiar principle of public law, that unlicensed business intercourse with an enemy during a time of war is not permitted. Congress, therefore, in recognition of this principle, when it declared on the 13th of July, 1861, that commercial intercourse between the seceding states and the rest of the United States should cease and be unlawful, after the proclmation of the President that a state of insurrection existed, authorized the President, in his discretion, to license trade. But in so far as it was licensed, it was to be conducted in accordance with the regulations prescribed by the Secretary of the Treasury. The President proclaimed the fact of insurrection, and provided for a limited commercial intercourse, and the Secretary of the Treasury fixed the manner in which this intercourse should be carried on."

Judge TREAT, in the case of The United States v. One Hundred Barrels of Cement, 3 Am. Law Reg. N. S. 742, states the law thus: "Hence the rule, as laid down by publicists, that an alien enemy cannot sue, is so phrased because an alien may be in a state of amity as well as of enmity. As his persona standi depends on his friendly or hostile status, the term 'enemy' is used in connection with the word alien, to designate that hostile status. The claimants here are not aliens, they are not technically enemies, they are only 'enemies in a qualified sense,' as Justice NELSON has correctly said. They still owe paramount allegiance to the United States, are not citizens of any other recognized power. They are de jure subject to the United States laws. Those laws

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forbid them to carry on commercial intercourse with the loyal states, except on the conditions named.

The prohi

bition rests not on the law of nations, but on municipal statute or act of sovereignty, and the exception to the general prohibition is created by the same act. It was probably the intent of Congress to allow such discriminations to be made between the loyal and disloyal in the insurrectionary states, as the exigencies of the government would from time to time permit. Hence the power lodged in the President by the terms of the proviso to the fifth section, under which the permit in this case was obtained; also the terms of section 8, as to remission of forfeitures. The condition of quasi enmity, under which all the inhabitants of Tennessee were placed by the proclamation, was subject therefore to those exceptions, as to districts and persons, which the President might make from time to time. The temporary disqualification covering all its inhabitants is removed as to those who have special exemptions granted to them, which exemptions are evidenced by license duly obtained. Alienage the President could not remove, if it existed, but the legal status of quasi enmity, or hostility, as to districts, or individuals thereof, he is especially empowered to remove. Hence, the simple fact that the claimants are citizens of Tennessee, might, in the absence of any other fact, deprive them temporarily of the right to sue, or appear as claimants here; but when the other fact is proved, that they have been relieved of that temporary disability, their persona standi in judicio must be considered as fully restored, Such is the rule under this statute, and such is also the rule, as will be shown, in analogous cases during foreign wars."

The same learned judge, in the case of United States v. 129 Packages, 2 Am. Law. Reg. N. S. 430, says: "In short, the status of the country, as to peace or war, is legally determined by the political, and not the judicial department. When the decision is made, the courts are concluded thereby and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insur

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rection, must also decide when hostilities have ceased; that is, when peace is restored. In a legal sense, the state of war or of peace is not a question in pais for courts to determine. It is a legal fact ascertainable only from the decision of the political department. Gelston v. Hoyt, 3 Wheat. 246; The U. S. v. Palmer, id. 610; The Divinia Pastora, 4 Wheat. 52; The Neustra Senora de la Caridad, id. 497; The Santissima Trinidad, 7 Wheat. 283; Martin v. Mott, 12 Wheat. 19; Rose v. Himely, 4 Cranch, 241; Foster v. Neilson, 2 Pet. 253; Garcia v. Lee, 12 Pet. 511; M'Elmoyle, v. Cohen 13 Pet. 312; Luther v. Borden, 7 How. U. S. 1; Kennett v. Chambers, 14 How U. S. 38; Christy v. Scott, id. 282.

"Under the act of July 13th, the President, on the 16th of August, 1861, proclaimed Tennessee in a state of insurrection. The legal status thus determined must remain so long as the condition of hostility continues. He has never made a counter proclamation, nor has peace been officially announced. As a legal condition, that status is independent of actual daily strife in arms. A legal condition of hostilities may exist between this and a foreign nation long after the last battle has been fought between the opposing armies. That condition ceases when peace is concluded through competent authority, not before."

The circuit court of the United States for the district of Connecticut, in case of Sommes v. The Fire Ins. Co., 4 Am. Law Review, 175, says: "When war has existed between the United States and a foreign country, its termination is easily ascertained by reference to the treaty of peace which follows it, and which is consummated by the President, acting by and with the advice of two thirds of the Senate. As no such treaty did, or could, mark the close of this civil war, we must look to the action of the President or Congress, or both, and from that action ascertain when the war ended, and when the legal consequences which flowed from it ceased to act in any given case."

In the case of Jackson Ins. Co. v. Stewart, in the circuit court of the United States for the State of Maryland, GILES,