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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 commenced. 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 impolitic confiscations of private property found on land. This apprehension is unfounded. No such consequence 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 property 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 de crees 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
tribunal of the last resort, will be looked for by the profession and the community with an interest morė deep and absorbing than has attached to any ques. tions submitted to the arbitrament of the judicial power since the formation of the Constitution.
OF THE RIGHTS OF BELLIGERENTS TO INTERFERE
WITH THE COMMERCE, AND TO CAPTURE AND CON.
WE have said that from the established prin. ciple in the law of nations which recognizes the identity between the wealth of the nation and that of the aggregation of individuals composing the nation, many important rights accrue to the citizen in time of war, to enable him to indemnify his own or the state's injuries, by capture and reprisals of the property of the enemy. Before considering the subject of reprisals, captures, and confiscation, it is important to determine who are, in legal intendment, alien enemies, and who are clothed with that hostile character as to subject their property to seizure and confiscation as lawful prize; and also who are to be regarded as possessing the character of lawful belligerents, with the rights of such at the hands of neutral nations.
Alien enemy defined.
An alien enemy is one who is under the allegiance of a government at war with our own.
Where the allegiance due is of that permanent character which attaches to the citizen or subject, as such, there is no difficulty in determining his position and liabilities. His hostility is coeval with, and as permanent as, his allegiance. It begins with