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siong, as will be seen by reference to the laws of the extra session of July last, pages 268, 274, 315 and 326. And the last law (p. 326), to which I refer, not only recognized a war as existing, but it approved and sanctioned all the proclamations of the President, thereby making valid the blockade declared by the President in his proclamations of the 19th and 27th of April, if the President alone, '(w commander-in-chief of the army and navy of the United States] did not possess this power under the existing circumstances of the country.
"The Supreme Court (Chief-Justice Taney delivering the opinion) in the case of Luther vs. Borden and others, 7 Howard, 45, say: 'Unquestionably a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the states of the Union as to any other government. The state itself must determine what degree of force the crisis demands, and if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the state, as to require the use of its military force, and the declaration of martial law, Ave see no ground upon Avhich the court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and overcome the unlawful opposition.'
"Now what say the writers on the law of nations? Vattel says, in book 3d, ch. 18, p. 425, 'When a party is formed in a state who no longer obey the sovereign, and are possessed of sufficient strength to oppose hirn, or where, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection against their sovereign, to distinguish that lawful resistance from rebellion which is open and unjust resistance.
"' But what appellation will they give to a war which arises in a republic torn by two factions, or in a monarchy, between two competitors for the crown? Custom appropriates the term civil war to every war between the members of one and the same political society.'
"And Wheaton, in his great work on international law, says, on page 365: "A civil war between the different members of the same society, is what Grotius calls a mixed war. It is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling the contending parties to all the rights of war as against each other, and even as respects neutral nations.'
"Judge Chase, of the Supreme Court, in the case of Ware vs. Hilton andotJiers, 3 Dallas, 199, speaking of the effect of the act of the Virginia Convention, in June, 1776, and the declaration of independence by Congress, on the 4th of July following, says: 'Before these solemn acts of separation from the crown of Great Britain, the war between Great Britain and the United Colonies, jointly and separate^ was a civil war; but instantly, on the great and ever memorable event, the war changed its nature and became a public war between independent governments; and immediately thereupon all the other rights of an independent nation attached to the government of Virginia.'
"Whether the learned judge be correct in his view, that the war became a public war after the declaration of independence, a view he may be excused from taking, if wrong, as his own name was appended to that imperishable document, we have the sanction of his»great name to the doctrine, that to such a contest there belonged all the rights of war.
"I am therefore clear in the opinion, that, as a blockade is an acknowledged belligerent right under the law of nations, where war exists, the blockade of the southern ports was lawfully proclaimed by the President.
"In the discussion of this question, I 'have said nothing in reference to the sovereign rights of the government: whether it may not at the same time exercise both sovereign and belligerent rights. Such a question does not arise in the case. I have confined myself to the examination of the existence or not of belligerent rights by the government, in reference to the present unfortunate state of the country.
"And Phillimore, in his commentaries on international law, vol. 3d, page 740, gives us a simple rule by which to determine this question. He says: 'In the case of a civil war, the English law furnishes a good criterion as to whether the country is to be considered at peace or at war—that whenever the king's courts are open it is a time of peace, in judgment of law.'
"Judged by thi^ standard, then, as the Federal
courts are closed in the Southern States, there is a state of civil war. And the government is remitted to its belligerent rights, to be exercised in accordance with those maxims of humanity, moderation, and honor which the law of nations has prescribed to be observed by both parties in every civil war."
The last case to be considered, but by no means the least in interest and importance, in view of the eminent character and ability of the counsel, by whom the arguments were conducted, and the great learning of the distinguished judge, to whom they were addressed, is that of the Amy Warwick, which was decided in the District Court of the United States for the district of Massachusetts.
The vessel, with a cargo of coffee, sailed from Rio de Janeiro on the 29th of May, 1861, bound for Hampton Roads, and was captured on the 10th of July, by the United States cruiser Quaker City, and sent to the port of Boston for adjudication, as prize of war, in the district of Massachusetts.
Condemnation was claimed on the ground that the prize was enemy's property, being owned by citizens of Richmond, hi the state of Virginia.
After a brief consideration of the established rules and principles in the law of nations, as to what shall be deemed enemy's property, the learned judge proceeds at once to the discussion of the great questions at issue. It is here given in its entirety. ?sot to do so, would be doing injustice to one of the ablest judicial disquisitions upon the legal character of the civil war in the United States, proceeding from a judge whose long experience, and exalted reputation as a jurist, give to his opinions the weight of authority:
"But it is contended that although this property Opinion of might be liable to confiscation if the contest were asprague. foreign war, yet that it is otherwise in a rebellion or civil war. This requires attention. As the Constitution gives Congress the power to declare war, some have thought that without such previous declaration, war in all its fulness, that is, carrying with it all the incidents and consequences of a war, cannot exist. This is a manifest error. It ignores the fact that there are two parties to a war, and that it may be commenced by either. If a foreign nation should send its fleets and armies, to capture our vessels, ravage our coast, and invade our soil. wrould not this be war—giving to the United States, as a nation, the position and rights of a belligerent?
"Such hostilities would impose upon the President the duty of exerting all his powers, as commanderin-chief of the army and navy, to capture or destroy the enemy, and if, under his instructions, an enemy's ship should be taken and sent in for adjudication, the prize court must proceed to decide the question of prize upon the principles of public law.
"Howr this civil wTar commenced, every one knows. A traitorous confederation, comprising several organized states, after seizing by force several forts and custom-houses, attacked a fortress of the United States, garrisoned with their soldiers, under the sanctity of their flag, and by superior military force compelled those soldiers to surrender, and that flag to be lowered. This was war—open, flagrant, flagitious war; and it has never ceased to be waged by the same confederates, with their utmost ability.