Page images

by a designation of the character of that war, in the following terms:

"The exercise of the established jurisdiction of the government, has been revolutionary suspended in one or more territorial districts, whose willing 01 unwilling submission to the revolutionary rule, prevents the execution of the suspended government's laws in them, except at points occupied by its military or naval forces."

The court then proceeds to state: " The rule of the common law is, that where the regular course of justice is interrupted, by revolt, rebellion, or insurrection, so that courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing, as if those opposing the government were foreign enemies invading the land. The converse is also regularly true, so that when the courts of a government are open, it is ordinarily a time of peace. But though the courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might, perhaps, be cases in which the converse application of the rule would not be admitted. (1 Knapp, 346, 360, 361; 1 Hale, P. C, 347; Co. Litt., 249, 6.)

"The present case is one in which the courts are in the strongest sense closed. That such a war as the present, should be restricted in the modes of its prosecution, within limits more narrow than foreign wars, would prostrate its purpose, and place the former established government on an unequal footing with its hostile opponents. The doubt heretofore suggested, has been, whether the former government has not, in such a contest, greater belligerent privileges than in a foreign war.

"By a treaty between England and the States General, their merchant vessels might, when England was at war, carry her enemy's goods without their being liable to capture. In the war of American independence, it was decided in an English prize court, that this treaty did not exempt the "ships and goods of rebellious Americans, carried in Dutch merchant vessels, from confiscability. {The Aletta, cited 1 Hay and Marriott, 13.)"

In illustration of the doctrine, discussed at some length in the first edition of this work, that a nation while engaged in the performance of the duty of suppressing a domestic insurrection, which aims to overthrow the established government, may lawfully exercise belligerent as well as sovereign rights, as declared by Chief-Justice Marshall, in the case of Hose vs. Hitnely, the learned judge, in a note to his opinion, furnishes a valuable recital of the circumstances, out of which the discussion in that case grew, and elucidates the doctrine which was laid down and not questioned, both in the Supreme Court of the United States, and the Supreme Court of Pennsylvania.

It is the doctrine which lies at the foundation of this whole discussion. It cannot be too often or too emphatically enforced .

A vast deal of the protracted disputation upon the war measures of various kinds, proposed in either house of the Congress of the United States, at its last session, evinced a singular want of appreciation of this fundamental doctrine.

The following is the text of the note to which allusion has been made:

"During the civil war between the French Republic and the revolted negroes of St. Domingo, the French, having been driven out of possession of the principal part of the island, their government prohibited all maritime communication with places on its coast occupied by the rebels, under the penalty of confiscation of vessels and cargoes; and after ward imposed the like penalty in all cases in which vessels going to or from such places might be captured at anchor, or under sail at a distance of less than two leagues from the coast. Merchant vessels of the United States trading with such places, having been captured at sea, at distances, in some cases of less, and in others of more, than two leagues from the coast, were alike condemned in French prize courts. The judges of the Supreme Court of the United States, agreed in opinion that the French government's ancient sovereignty over the colony, must be considered as still subsisting. That France might exercise belligerent rights in the contest, in addition to those of her sovereignty, was asserted hy Chief-Justice Marshall, and denied by no other judge. A majority of the judges ultimately differed from him in opinion upon the question, whether, if the above mentioned acts of the French government were to be considered, not as belligerent, but as mere municipal regulations, the proprietorship of the former owners of the vessels and cargoes had been divested by the judgments of confiscation, where the captures had been made more than two leagues from the coast. The majority of the court was ultimately of opinion that, whatever might have been, in this respect, the legal character of the regulations, the proprietorship had been changed by the judgments in these cases, as well as in those in which the captures had been within the two leagues. (4 Cranch, 513, 272, 293; 6 Cranch, 281, 285.) The Supreme Court of Pennsylvania was afterward of opinion that the property had been changed in both cases. Chief-Justice Tilghman considered the acts of the French Republic as, not simple municipal regulations, but municipal regulations 'connected with a state of war with revolted subjects,' * in enforcing which 'the Republic might avail itself of all rights which are given by the law of nations to a government thus circumstanced.' He said, 'The government of the United States has taken no part between the contending parties. It has never acknowledged the independence of the revolters. We are not at liberty, therefore, to consider the island in any other light than as part of the dominions of the French Republic. But, supposing it to be so, the Republic is possessed of belligerent rights, which may be exercised against neutral nations who carry on commerce with the revolters. This is not denied; but it is said that the words of the arrete prove that there was no intention to exercise such rights. This argument is not conclusive. Although the French government, from motives of policy, might not choose to make,mention of war, yet it does not follow that it might not avail itself of all rights to which, by the law of nations, it was entitled under the existing circumstances, under the form of a law made for the regulation of the trade and commerce of one of its colonies. This was the course pursued by Great Britain in the revolutionary war with the United States; and it has not been supposed that she violated the law of nations, when she captured and confiscated

the vessels of neutrals who carried on trade with the United States, in whatever part of the ocean they were found by her ships of war and cruisers. (3 Binney, 252, 253.)"

The court, frpm this, proceeds to an elaborate and very learned review of the origin of the jurisdiction exercised in prize cases, for the purpose of facilitating the application of the authorities and the cognate doctrine next considered, as to what is regarded by such courts confiscable, or enemies property, and concludes as follows:

"During a civil war against an established gov. eminent, the phrase enemies^ property, as understood in prize courts of this government, includes all property captured at sea, which is actually or constructively hostile. During the civil war in Portugal, between the Queen and Don Miguel, she established a blockade of ports along the coast of her own kingdom. In a case already cited, the Supreme Tribunal of Marine at Lisbon, having condemned as prize, a vessel of English ownership, which had been captured for attempting to break the blockade, and supply Don Miguel's adherents with warlike stores, it was held by a British court, in the year 1836, that the judgment of the Portuguese prize court, whether on the ground of an attempted breach of blockade, or on that of an attempted supply of contraband goods, was conclusive proof that the vessel was owned by enemies of the Queen of Portugal, though Portugal was not then at war with any foreign government. (3 Scott, 202, 203, 228; 2 Bingh. N. C, 781, 782, 783, 798.)"

"At the time of the Duke of Monmouth's rebellion, in 1685, the goods of rebels which were cap

« PreviousContinue »