demned, by reason of the residence of the owner in the enemy's country. This question has been decided by the District Court of three judicial districts, all concurring in decrees of condemnation. This was well known, and yet Congress, in passing an act for the better administration of the prize law, in cases then pending, or hereafter to arise, does not prescribe any rules of decision, or in any way discountenance those which had been adopted by the courts; this may be deemed an acquiescence in, or a tacit approbation of those rules.

error.

"An objection to the prize decisions of the Dis -trict Courts, has arisen from an apprehension of radical consequences. It has been supposed that if the government have the rights of a belligerent, then, after the rebellion is suppressed, it will have the rights of conquest; that a state and its inhabit ants may be permanently divested of all political privileges, and treated as foreign territory acquired by arms. This is an error; a grave and dangerous The rights of war exist only while the war continues. Thus, if peace be concluded, a capture made immediately afterward on the ocean, even where the peace could not have been known, is unauthorized, and property so taken is not prize of war, and must be restored. (Wheat. Elements of International Law, 619.) Belligerent rights cannot be exercised when there are no belligerents. Titles to property or to political jurisdiction, acquired during the war, by the exercise of belligerent rights, may indeed survive the war. The holder of such title may permanently exercise, during peace, all the rights which appertain to his title; but they must be rights only of proprietorship or sovereignty;

they cannot be belligerents. Conquest of a foreign country, gives absolute and unlimited sovereign rights. But no nation ever makes such a conquest of its own territory. If a hostile power, either from without or within a nation, takes possession and holds absolute dominion over any portion of its territory, and the nation, by force of arms, expels or overthrows the enemy, and suppresses hostilities, it acquires no new title, but merely regains the possession of which it had been temporarily deprived. The nation acquires no new sovereignty, but merely maintains its previous rights. (Wheat. Elements of International Law, 616.) During the war of 1812, the British took possession of Castine, and held exclusive and unlimited control over it, as conquered territory. So complete was the alienation, that the Supreme Court held that goods imported into it were not brought into the United States, so as to be subject to import duties. (United States vs. Rice, 4 Wheat., 246.) Castine was restored to us under the treaty of peace, but it was never supposed that the United States acquired a new title by the treaty, and could thenceforth govern it as merely ceded territory. And if, before the end of the war, the United States had, by force of arms, driven the British from Castine, and regained our rightful possession, none would have imagined that we could thenceforth hold and govern it as conquered territory, depriving the inhabitants of all preexisting political rights. And when, in this civil war, the United States shall have succeeded in putting down this rebellion, and restoring peace in any state, it will only have vindicated its original authority, and restored itself to a condition to exercise its previous

sovereign rights under the Constitution. In a civil war, the military power is called in only to maintain the government in the exercise of its legitimate civil authority. No success can extend the powers of any department beyond the limits prescribed by the organic law. That would be not to maintain the Constitution, but to subvert it. Any act of Congress which would annul the rights of any state under the Constitution, and permanently subject. the inhabitants to arbitrary power, would be as utterly unconstitutional and void as the secession ordinances with which this atrocious rebellion com menced. The fact that the inhabitants of a state have passed such ordinances can make no difference. They are legal nullities; and it is because they are so, that war is waged to maintain the government. The war is justified only on the ground of their total invalidity. It is hardly necessary to remark, that I do not mean that the restoration of peace will preclude the government from enforcing any municipal law, or from punishing any offence against previous standing laws.

"Another objection to those decisions of the District Courts is founded upon the apprehension that they may lead to, or countenance, cruel and impoli tic confiscations of private property found on land. This apprehension is unfounded. No such conse quence can legitimately follow. Those decisions undoubtedly assert that the United States have the rights of a belligerent. But the extent of those rights on land, or the manner in which they are to be exercised, was not discussed. They were not even adverted to, except to say that enemy's prop erty found by a belligerent on land, within his own

country, on the breaking out of a war, will not be condemned by the courts, although it would be, if found at sea. This distinction, so far as it goes, tends to show that the doctrine of maritime captures is not to be applied to seizures on land. But the danger upon which this objection is founded does not arise from the administration of the prize laws by the courts, or the exercise of belligerent rights by military commanders upon military exigencies. The objection really arises from fear of the legislation of Congress. It is apprehended that they may pass sweeping or general acts of confiscation, to take practical effect only after the rebellion shall have been suppressed; that whole estates real and personal, which have not been siezed during the war, may be taken and confiscated, upon coming within reach of the government, after hostilities shall have ceased. This, as we have seen, would not be the exercise of belligerent rights, the war being at an end. Belligerent confiscations take effect only upon property of which possession is taken during the war. As against property which continues under the control of the enemy, they are wholly inoperative. If possession be acquired by or after the peace, then previous legislation may take effect, but it will be by the right of sovereignty, not as an act of war. Under despotic governments, the power of municipal confiscation may be unlimited, but under our government, the right of sovereignty over any portion of a state, is given and limited by the Constitution, and will be the same after the war as it was before. When the United States take possession of any rebel district, they acquire no new title, but merely vindicate that

which previously existed, and are to do only what is necessary for that purpose. Confiscations of property, not for any use that has been made of it, which go not against an offending thing, but are inflicted for the personal delinquency of the owner, are punitive; and punishment should be inflicted only upon due conviction of personal guilt. What offences shall be created, and what penalties affixed, must be left to the justice and wisdom of Congress, within the limits prescribed by the Constitution. Such penal enactments have no connection whatever with the decisions of prize courts enforcing belligerent rights upon property captured at sea during the war."

"I have thus noticed the objections which have been made to the former opinion of the court so far as they have come to my knowledge. They do not seem to be well founded."

The claimants, in several of the cases of largest pecuniary importance, and involving the great fundamental questions discussed and determined in the foregoing adjudications, have appealed from the decrees of condemnation.

These appeals, or some of them, having been heard in the Circuit Court of the United States for the circuit in which the district of adjudication is included, and the decrees having been affirmed therein pro forma, or upon deliberation, the cases are now pending upon further appeal, in the Supreme Court of the United States.

Their early discussion, upon the final appeals, is confidently anticipated; and the judicial determination of these momentous questions, by this august