1. Neutrals may question the existence of a blockade, and
challenge the legal authority of the party which has undertaken to
establish it.
2. One belligerent, engaged in actual war, has a right to
blockade the ports of the other, and neutrals are bound to respect
that right.
3. To justify the exercise of this right, and legalize the
capture of a neutral vessel for violating it, a state of actual war
must exist, and the neutral must have knowledge or notice that it
is the intention of one belligerent to blockade the ports of the
other.
Page 67 U. S. 636
4. To create this and other belligerent rights as against
neutrals, it is not necessary that the party claiming them should
be at war with a separate and independent power; the parties to a
civil war are in the same predicament as two nations who engage in
a contest and have recourse to arms.
5. A state of actual war may exist without any formal
declaration of it by either party, and this is true of both a civil
and a foreign war.
6. A civil war exists, and may be prosecuted on the same footing
as if those opposing the Government were foreign invaders, whenever
the regular course of justice is interrupted by revolt, rebellion,
or insurrection, so that the Courts cannot be kept open.
7. The present civil war between the United States and the
so-called Confederate States has such character and magnitude as to
give the United States the same rights and powers which they might
exercise in the case of a national or foreign war, and they have,
therefore, the right
jure bello to institute a blockade of
any ports in possession of the rebellious States.
8. The proclamation of blockade by the President is, of itself,
conclusive evidence that a state of war existed which demanded and
authorized recourse to such a measure.
9. All persons residing within the territory occupied by the
hostile party in this contest are liable to be treated as enemies,
though not foreigners.
10. It is a settled rule that a vessel in a blockaded port is
presumed to have notice of a blockade as soon as it commences.
11. The proclamation of blockade having allowed fifteen days for
neutrals to leave, a vessel which overstays the time is liable to
capture although she was prevented by accident from getting out
sooner.
12. To make a capture lawful, it is not necessary that a warning
of the blockade should have been previously endorsed on the
register of the captured vessel.
These were cases in which the vessels named, together with their
cargoes, were severally captured and brought in as prizes by public
ships of the United States. The libels were filed by
Page 67 U. S. 637
the proper District Attorneys on behalf of the United States and
on behalf of the officers and crews of the ships by which the
captures were respectively made. In each case, the District Court
pronounced a decree of condemnation, from which the claimants took
an appeal.
The
Amy Warwick was a merchant vessel, and belonged to
Richmond. Her registered owners were David and William Currie,
Abraham Warwick, and George W. Allen, who resided at that place.
Previous to her capture, she had made a voyage from New York to
Richmond, and thence to Rio de Janeiro, Brazil. At the last named
port, she shipped a cargo of coffee, 5,100 bags, to be delivered at
New York, Philadelphia, Baltimore or Richmond, according to the
orders which the master would receive at Hampton Roads. She was on
her voyage from Rio to Hampton Roads and off Cape Henry when she
was captured (July 10th, 1861) by the
Quaker City. At the
time of the capture, the barque was sailing under American colors,
and her commander was ignorant of the war. The
Quaker City
carried her into Boston, where she was libelled as enemy's
property. The claimants of the vessel were the persons already
named as owners. James Dunlap, Robert Edmonds, John L. Phipps, and
Charles Brown claimed the cargo. The claimants in their several
answers denied any hostility on their part to the Government or
Laws of the United States, averred that the master was ignorant of
any blockade, embargo or other interdiction of commerce with the
ports of Virginia, and asserted generally that the capture was
unlawful.
The
Crenshaw was captured by the United States Steamer
Star at the mouth of James River on the 17th of May, 1861.
She was bound for Liverpool with a cargo of tobacco from Richmond,
and was owned by David and William Currie, who admitted the
existence of an insurrection in Virginia against the Laws and
Government of the United States, but averred that they were
innocent of it. The claimants of the cargo made similar answers,
and all the claimants asserted that they had no such notice of the
blockade as rendered the vessel or cargo liable to seizure for
leaving the port of Richmond at the time
Page 67 U. S. 638
when the voyage was commenced. She was condemned as prize on the
ground that she had broken, or was attempting to break, the
blockade at the time of her capture.
The
Hiawatha was a British barque, and was on her
voyage from Richmond to Liverpool with a cargo of tobacco. She left
Richmond on the 17th of May, 1861, and was captured in Hampton
Roads on the 20th by the
Minnesota, and taken to New York.
Her owners were Miller, Massman & Co., of Liverpool, who denied
her liability to capture and condemnation on the ground that no
sufficient notice had been given of the blockade. The claimants of
the cargo put their right to restoration upon a similar basis.
The
Brilliante was a Mexican schooner, owned by Rafael
Preciat and Julian Gual, residents of Campeche. She had on board a
cargo of flour, part of which was owned by the owners of the vessel
and part by the Seniores Ybana & Donde, who were also Mexican
citizens. She had a regular clearance at Campeche for New Orleans,
and had made the voyage between those ports. At New Orleans, she
took in her cargo of flour, part to be delivered at Sisal and part
at Campeche, and took a clearance for both those places. On her
homeward voyage, she anchored in Biloxi Bay, intending to
communicate with some vessel of the blockading fleet and get a
permit to go to sea, and, while so at anchor, she was taken by two
boats sent off from the
Massachusetts. She was carried
into Key West, where the legal proceedings against her were
prosecuted in the District Court of the United States for the
District of Florida.
The minuter circumstances of each case, and the points of fact,
as well as law, on which all the cases turned, in this Court and in
the Court below, are set forth with such precision in the opinions
of both Mr. Justice Grier and Mr. Justice Nelson that more than the
brief narrative above given does not seem to be necessary.
Page 67 U. S. 665
Mr. Justice GRIER.
There are certain propositions of law which must necessarily
affect the ultimate decision of these cases, and many others which
it will be proper to discuss and decide before we notice the
special facts peculiar to each.
They are, 1st. Had the President a right to institute a blockade
of ports in possession of persons in armed rebellion against the
Government, on the principles of international law, as known and
acknowledged among civilized States?
2d. Was the property of persons domiciled or residing within
those States a proper subject of capture on the sea as "enemies'
property?"
I. Neutrals have a right to challenge the existence of a
blockade
de facto, and also the authority of the party
exercising the right to institute it. They have a right to enter
the ports
Page 67 U. S. 666
of a friendly nation for the purposes of trade and commerce, but
are bound to recognize the rights of a belligerent engaged in
actual war, to use this mode of coercion, for the purpose of
subduing the enemy.
That a blockade
de facto actually existed, and was
formally declared and notified by the President on the 27th and
30th of April, 1861, is an admitted fact in these cases.
That the President, as the Executive Chief of the Government and
Commander-in-chief of the Army and Navy, was the proper person to
make such notification has not been, and cannot be disputed.
The right of prize and capture has its origin in the "
jus
belli," and is governed and adjudged under the law of nations.
To legitimate the capture of a neutral vessel or property on the
high seas, a war must exist
de facto, and the neutral must
have knowledge or notice of the intention of one of the parties
belligerent to use this mode of coercion against a port, city, or
territory, in possession of the other.
Let us enquire whether, at the time this blockade was
instituted, a state of war existed which would justify a resort to
these means of subduing the hostile force.
War has been well defined to be, "That state in which a nation
prosecutes its right by force."
The parties belligerent in a public war are independent nations.
But it is not necessary, to constitute war, that both parties
should be acknowledged as independent nations or sovereign States.
A war may exist where one of the belligerents claims sovereign
rights as against the other.
Insurrection against a government may or may not culminate in an
organized rebellion, but a civil war always begins by insurrection
against the lawful authority of the Government. A civil war is
never solemnly declared; it becomes such by its accidents -- the
number, power, and organization of the persons who originate and
carry it on. When the party in rebellion occupy and hold in a
hostile manner a certain portion of territory, have declared their
independence, have cast off their allegiance, have organized
armies, have commenced hostilities
Page 67 U. S. 667
against their former sovereign, the world acknowledges them as
belligerents, and the contest a war. They claim to be in arms to
establish their liberty and independence, in order to become a
sovereign State, while the sovereign party treats them as
insurgents and rebels who owe allegiance, and who should be
punished with death for their treason.
The laws of war, as established among nations, have their
foundation in reason, and all tend to mitigate the cruelties and
misery produced by the scourge of war. Hence the parties to a civil
war usually concede to each other belligerent rights. They exchange
prisoners, and adopt the other courtesies and rules common to
public or national wars.
"A civil war," says Vattel,
"breaks the bands of society and government, or at least
suspends their force and effect; it produces in the nation two
independent parties, who consider each other as enemies and
acknowledge no common judge. Those two parties, therefore, must
necessarily be considered as constituting, at least for a time, two
separate bodies, two distinct societies. Having no common superior
to judge between them, they stand in precisely the same predicament
as two nations who engage in a contest and have recourse to
arms."
"This being the case, it is very evident that the common laws of
war -- those maxims of humanity, moderation, and honor -- ought to
be observed by both parties in every civil war. Should the
sovereign conceive he has a right to hang up his prisoners as
rebels, the opposite party will make reprisals, &c., &c.;
the war will become cruel, horrible, and every day more destructive
to the nation."
As a civil war is never publicly proclaimed,
eo nomine,
against insurgents, its actual existence is a fact in our domestic
history which the Court is bound to notice and to know.
The true test of its existence, as found in the writings of the
sages of the common law, may be thus summarily stated:
"When the regular course of justice is interrupted by revolt,
rebellion, or insurrection, so that the Courts of Justice cannot be
kept open,
civil war exists, and hostilities may be
prosecuted
Page 67 U. S. 668
on the same footing as if those opposing the Government were
foreign enemies invading the land."
By the Constitution, Congress alone has the power to declare a
national or foreign war. It cannot declare war against a State, or
any number of States, by virtue of any clause in the Constitution.
The Constitution confers on the President the whole Executive
power. He is bound to take care that the laws be faithfully
executed. He is Commander-in-chief of the Army and Navy of the
United States, and of the militia of the several States when called
into the actual service of the United States. He has no power to
initiate or declare a war either against a foreign nation or a
domestic State. But, by the Acts of Congress of February 28th,
1795, and 3d of March, 1807, he is authorized to called out the
militia and use the military and naval forces of the United States
in case of invasion by foreign nations and to suppress insurrection
against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President
is not only authorized but bound to resist force by force. He does
not initiate the war, but is bound to accept the challenge without
waiting for any special legislative authority. And whether the
hostile party be a foreign invader or States organized in
rebellion, it is nonetheless a war although the declaration of it
be "unilateral." Lord Stowell (1 Dodson 247) observes,
"It is not the less a war on that account, for war may exist
without a declaration on either side. It is so laid down by the
best writers on the law of nations. A declaration of war by one
country only is not a mere challenge to be accepted or refused at
pleasure by the other."
The battles of Palo Alto and Resaca de la Palma had been fought
before the passage of the Act of Congress of May 13th, 1846, which
recognized "
a state of war as existing by the act of the
Republic of Mexico." This act not only provided for the future
prosecution of the war, but was itself a vindication and
ratification of the Act of the President in accepting the challenge
without a previous formal declaration of war by Congress.
This greatest of civil wars was not gradually developed by
Page 67 U. S. 669
popular commotion, tumultuous assemblies, or local unorganized
insurrections. However long may have been its previous conception,
it nevertheless sprung forth suddenly from the parent brain, a
Minerva in the full panoply of war. The President was bound to meet
it in the shape it presented itself, without waiting for Congress
to baptize it with a name; and no name given to it by him or them
could change the fact.
It is not the less a civil war, with belligerent parties in
hostile array, because it may be called an "insurrection" by one
side, and the insurgents be considered as rebels or traitors. It is
not necessary that the independence of the revolted province or
State be acknowledged in order to constitute it a party belligerent
in a war according to the law of nations. Foreign nations
acknowledge it as war by a declaration of neutrality. The condition
of neutrality cannot exist unless there be two belligerent parties.
In the case of the
Santissima
Trinidad, 7 Wheaton 337, this Court said:
"The Government of the United States has recognized the
existence of a civil war between Spain and her colonies, and has
avowed her determination to remain neutral between the parties.
Each party is therefore deemed by us a belligerent nation, having,
so far as concerns us, the sovereign rights of war."
See also 3 Binn. 252.
As soon as the news of the attack on Fort Sumter, and the
organization of a government by the seceding States, assuming to
act as belligerents, could become known in Europe, to-wit, on the
13th of May, 1861, the Queen of England issued her proclamation of
neutrality,
"recognizing hostilities as existing between the Government of
the United States of American and certain States styling themselves
the Confederate States of America."
This was immediately followed by similar declarations or silent
acquiescence by other nations.
After such an official recognition by the sovereign, a citizen
of a foreign State is estopped to deny the existence of a war with
all its consequences as regards neutrals. They cannot ask a Court
to affect a technical ignorance of the existence of a war, which
all the world acknowledges to be the greatest civil war known in
the history of the human race, and thus cripple the
Page 67 U. S. 670
arm of the Government and paralyze its power by subtle
definitions and ingenious sophisms.
The law of nations is also called the law of nature; it is
founded on the common consent, as well as the common sense, of the
world. It contains no such anomalous doctrine as that which this
Court are now for the first time desired to pronounce, to-wit, that
insurgents who have risen in rebellion against their sovereign,
expelled her Courts, established a revolutionary government,
organized armies, and commenced hostilities are not enemies because
they are traitors, and a war levied on the Government by traitors,
in order to dismember and destroy it, is not a war because it is an
"insurrection."
Whether the President, in fulfilling his duties as
Commander-in-chief in suppressing an insurrection, has met with
such armed hostile resistance and a civil war of such alarming
proportions as will compel him to accord to them the character of
belligerents is a question to be decided by him, and this Court
must be governed by the decisions and acts of the political
department of the Government to which this power was entrusted. "He
must determine what degree of force the crisis demands." The
proclamation of blockade is itself official and conclusive evidence
to the Court that a state of war existed which demanded and
authorized a recourse to such a measure under the circumstances
peculiar to the case.
The correspondence of Lord Lyons with the Secretary of State
admits the fact and concludes the question.
If it were necessary to the technical existence of a war that it
should have a legislative sanction, we find it in almost every act
passed at the extraordinary session of the Legislature of 1861,
which was wholly employed in enacting laws to enable the Government
to prosecute the war with vigor and efficiency. And finally, in
1861, we find Congress "
ex majore cautela" and in
anticipation of such astute objections, passing an act
"approving, legalizing, and making valid all the acts,
proclamations, and orders of the President, &c., as if they had
been
issued and done under the previous express authority
and direction of the Congress of the United States. "
Page 67 U. S. 671
Without admitting that such an act was necessary under the
circumstances, it is plain that, if the President had in any manner
assumed powers which it was necessary should have the authority or
sanction of Congress, that, on the well known principle of law,
"
omnis ratihabitio retrotrahitur et mandato equiparatur,"
this ratification has operated to perfectly cure the defect. In the
case of
Brown vs. United States, 8 Cr. 131, 132, 133, Mr.
Justice Story treats of this subject and cites numerous authorities
to which we may refer to prove this position, and concludes,
"I am perfectly satisfied that no subject can commence
hostilities or capture property of an enemy when the sovereign has
prohibited it. But suppose he did, I would ask if the sovereign may
not ratify his proceedings, and thus, by a retroactive operation,
give validity to them?"
Although Mr. Justice Story dissented from the majority of the
Court on the whole case, the doctrine stated by him on this point
is correct, and fully substantiated by authority.
The objection made to this act of ratification, that it is
ex post facto and therefore unconstitutional and void,
might possibly have some weight on the trial of an indictment in a
criminal Court. But precedents from that source cannot be received
as authoritative in a tribunal administering public and
international law.
On this first question, therefore, we are of the opinion that
the President had a right,
jure belli, to institute a
blockade of ports in possession of the States in rebellion which
neutrals are bound to regard.
II. We come now to the consideration of the second question.
What is included in the term "enemies' property?"
Is the property of all persons residing within the territory of
the States now in rebellion, captured on the high seas, to be
treated as "enemies' property," whether the owner be in arms
against the Government or not?
The right of one belligerent not only to coerce the other by
direct force, but also to cripple his resources by the seizure or
destruction of his property, is a necessary result of a state of
war. Money and wealth, the products of agriculture and
commerce,
Page 67 U. S. 672
are said to be the sinews of war, and as necessary in its
conduct as numbers and physical force. Hence it is that the laws of
war recognize the right of a belligerent to cut these sinews of the
power of the enemy by capturing his property on the high seas.
The appellants contend that the term "enemy" is properly
applicable to those only who are subjects or citizens of a foreign
State at war with our own. They quote from the pages of the common
law, which say
"that persons who wage war against the King may be of two kinds,
subjects or citizens. The former are not proper enemies, but rebels
and traitors; the latter are those that come properly under the
name of enemies."
They insist, moreover, that the President himself, in his
proclamation, admits that great numbers of the persons residing
within the territories in possession of the insurgent government
are loyal in their feelings, and forced by compulsion and the
violence of the rebellious and revolutionary party and its "
de
facto government" to submit to their laws and assist in their
scheme of revolution; that the acts of the usurping government
cannot legally sever the bond of their allegiance; they have,
therefore, a co-relative right to claim the protection of the
government for their persons and property, and to be treated as
loyal citizens till legally convicted of having renounced their
allegiance and made war against the Government by treasonably
resisting its laws.
They contend also that insurrection is the act of individuals,
and not of a government or sovereignty; that the individuals
engaged are subjects of law. That confiscation of their property
can be effected only under a municipal law. That, by the law of the
land, such confiscation cannot take place without the conviction of
the owner of some offence, and finally that the secession
ordinances are nullities, and ineffectual to release any citizen
from his allegiance to the national Government, and consequently
that the Constitution and Laws of the United States are still
operative over persons in all the States for punishment, as well as
protection.
This argument rests on the assumption of two propositions,
Page 67 U. S. 673
each of which is without foundation on the established law of
nations. It assumes that where a civil war exists, the party
belligerent claiming to be sovereign cannot, for some unknown
reason, exercise the rights of belligerents, although the
revolutionary party may. Being sovereign, he can exercise only
sovereign rights over the other party. The insurgent may be killed
on the battlefield or by the executioner; his property on land may
be confiscated under the municipal law; but the commerce on the
ocean, which supplies the rebels with means to support the war,
cannot be made the subject of capture under the laws of war,
because it is "unconstitutional!!!" Now it is a proposition never
doubted that the belligerent party who claims to be sovereign may
exercise both belligerent and sovereign rights (
see 4 Cr.
272). Treating the other party as a belligerent and using only the
milder modes of coercion which the law of nations has introduced to
mitigate the rigors of war cannot be a subject of complaint by the
party to whom it is accorded as a grace or granted as a necessity.
We have shown that a civil war such as that now waged between the
Northern and Southern States is properly conducted according to the
humane regulations of public law as regards capture on the
ocean.
Under the very peculiar Constitution of this Government,
although the citizens owe supreme allegiance to the Federal
Government, they owe also a qualified allegiance to the State in
which they are domiciled. Their persons and property are subject to
its laws.
Hence, in organizing this rebellion, they have acted as States
claiming to be sovereign over all persons and property within their
respective limits, and asserting a right to absolve their citizens
from their allegiance to the Federal Government. Several of these
States have combined to form a new confederacy, claiming to be
acknowledged by the world as a sovereign State. Their right to do
so is now being decided by wager of battle. The ports and territory
of each of these States are held in hostility to the General
Government. It is no loose, unorganized insurrection, having no
defined boundary or possession. It has
Page 67 U. S. 674
a boundary marked by lines of bayonets, and which can be crossed
only by force -- south of this line is enemies' territory, because
it is claimed and held in possession by an organized, hostile and
belligerent power.
All persons residing within this territory whose property may be
used to increase the revenues of the hostile power are, in this
contest, liable to be treated as enemies, though not foreigners.
They have cast off their allegiance and made war on their
Government, and are nonetheless enemies because they are
traitors.
But in defining the meaning of the term "enemies' property," we
will be led into error if we refer to Fleta and Lord Coke for their
definition of the word "enemy." It is a technical phrase peculiar
to prize courts, and depends upon principles of public policy, as
distinguished from the common law.
Whether property be liable to capture as "enemies' property"
does not in any manner depend on the personal allegiance of the
owner.
"It is the illegal traffic that stamps it as 'enemies'
property.' It is of no consequence whether it belongs to an ally or
a citizen. 8 Cr. 384. The owner,
pro hac vice, is an
enemy."
3 Wash.C.C.R. 183.
The produce of the soil of the hostile territory, as well as
other property engaged in the commerce of the hostile power, as the
source of its wealth and strength, are always regarded as
legitimate prize, without regard to the domicil of the owner, and
much more so if he reside and trade within their territory.
III. We now proceed to notice the facts peculiar to the several
cases submitted for our consideration. The principles which have
just been stated apply alike to all of them.
I. The case of the brig
Amy Warwick.
This vessel was captured upon the high seas by the United States
gunboat
Quaker City, and, with her cargo, was sent into
the district of Massachusetts for condemnation. The brig was
claimed by David Currie and others. The cargo consisted of coffee,
and was claimed, four hundred bags by Edmund Davenport & Co.,
and four thousand seven hundred bags by Dunlap, Moncure & Co.
The title of these parties as respectively claimed
Page 67 U. S. 675
was conceded. All the claimants at the time of the capture, and
for a long time before, were residents of Richmond, Va., and were
engaged in business there. Consequently, their property was justly
condemned as "enemies' property."
The claim of Phipps & Co. for their advance was allowed by
the Court below. That part of the decree was not appealed from, and
is not before us. The case presents no question but that of
enemies' property.
The decree below is affirmed with costs.
II. The case of the
Hiawatha.
The Court below, in decreeing against the claimants, proceeded
upon the ground that the cargo was shipped after notice of the
blockade.
The fact is clearly established, and if there were no qualifying
circumstances, would well warrant the decree. But after a careful
examination of the correspondence of the State and Navy
Departments, found in the record, we are not satisfied that the
British Minister erred in the construction he put upon it, which
was that a license was given to all vessels in the blockaded ports
to depart with their cargoes within fifteen days after the blockade
was established, whether the cargoes were taken on board before or
after the notice of the blockade. All reasonable doubts should be
resolved in favor of the claimants. Any other course would be
inconsistent with the right administration of the law and the
character of a just Government. But the record discloses another
ground upon which the decree must be sustained. On the 19th of
April, the President issued a proclamation announcing his intention
to blockade the ports of the several States therein named.
On the 27th of April, he issued a further proclamation
announcing his intention to blockade the ports of Virginia and
North Carolina in addition to those of the States named in the
previous one. On the 30th of April, Commodore Pendergrast issued
his proclamation announcing the blockade as established. These
proclamations were communicated to the British Minister as soon as
they were issued. On the 5th of May, the British Consul at Richmond
wrote to Lord Lyons that he had advised
Page 67 U. S. 676
those representing the owners of the
Hiawatha that
there would be no difficulty in her leaving in ballast. He added,
"
but to this they will not consent." On the 8th of May,
Lord Lyons made an application to the Secretary of State relative
to this vessel. The matter was referred to the Navy Department. On
the same day, the Secretary of the Navy replied:
"Fifteen days have been specified as a limit for neutrals to
leave the ports
after actual blockade has commenced, with
or without cargo, and there are yet five or six days for neutrals
to leave; with proper diligence on the part of persons interested,
I see no reason for exemption to any."
Here was a distinct warning that the vessel must leave within
the time limited
after the commencement of the blockade.
On the 10th of May, she completed the discharge of her cargo.
On the next day she commenced lading for her outer voyage, and,
by working night and day, on the 15th of May, she had taken in a
full cargo of cotton and tobacco. On that day, the British Consul
gave her a certificate, wherein he referred to the proclamation of
the 27th of April, "in which it was announced that a blockade would
be enforced of the ports of Virginia," and added, that "the best
information attainable" "pointed to the 2d of May as the day when
an efficient blockade was supposed to have been established."
On the 16th of May, she was ready for sea, but there was no
steam-tug in port to tow her down the river. At six o"clock P.M. on
the 17th, she was taken in tow by the steam-tug
David
Currie. The tug had not sufficient power, and the Hiawatha
came to anchor again. On the 18th, at six o"clock A.M. she was
taken in tow by the steam-tug
William Allison and towed
out to sea. On the 20th of May, she was captured in Hampton Roads,
off Fortress Monroe, and taken with her cargo into the Southern
District of New York for condemnation.
The energy with which the labor of lading her was pressed
evinces the consciousness of those concerned of the peril of delay
beyond the time limited by the proclamation for her departure. The
time was fifteen days
from the establishment of the
blockade. The blockade was effectual on the 30th of April.
There is no controversy upon the subject. The fifteen days
Page 67 U. S. 677
expired on the 15th of May -- the day she completed her lading.
A vessel being in a blockaded port is presumed to have notice of
the blockade as soon as it commences. This is a settled rule in the
law of nations.
The certificate of the Consul states that, according to his
information, the blockade commenced on the 2d of May. It is not
easy to imagine how he could have arrived at this conclusion. The
James river is a great commercial thoroughfare. It would seem that
news of so important an event must have swept up its waters to
Richmond, as news of interest spreads along the streets of a city.
Such circumstances must have immediately become known to the
parties as were sufficient to put them upon inquiry, and were
therefore equivalent to full notice. But, conceding the 2d of May
to be the day from which the computation is to be made, then, the
fifteen days expired on the 17th of May. Her voyage down the river
was not effectively begun until the 18th of May. This was after the
expiration of the time allowed. In either view, she became
delinquent, and was guilty of a breach of the blockade. The
proclamation allowed fifteen days -- not fifteen days
and until
a steam-tug could be procured. The difficulty of procuring a
tug was one of the accidents which must have been foreseen, and
should have been provided for. Those concerned, notwithstanding the
warnings they received, in their eagerness to realize the profits
of a full cargo, took the hazards of the adventure, and must now
bear the consequences. If she could overstay the time limited for a
short period, she could for a long one. Whatever the excess of
time, the principle involved is the same.
It is insisted for the claimants that, according to the
President's proclamation on the 19th of April, the Hiawatha was not
liable to capture until "the commander of one of the blockading
vessels" had "duly warned" her, endorsed "on her register the date
and fact of such warning," and she had again attempted "to leave
the blockaded port." To this proposition there are several
answers:
1st. There is no such provision in the proclamation of the 27th
of April touching the
ports of Virginia.
Page 67 U. S. 678
It simply announces that a blockade of those ports would be
established.
2d. The proclamation of Commodore Pendergrast limits the warning
to those who should approach the line of the blockade in ignorance
of its existence. This action of the naval commander has not been
disavowed by his Government, and is conclusive in a Prize Court.
The warning proposed by this proclamation is according to the law
of nations, and it is all that the law requires.
3d. If the provision referred to in the Proclamation of the 19th
of April be applicable to the ports of Virginia, it must be
considered in the light of the surrounding circumstances.
It was intended for the benefit of the innocent, not of the
guilty. It would be absurd to warn parties who had full previous
knowledge. According to the construction contended for, a vessel
seeking to evade the blockade might approach and retreat any number
of times, and, when caught, her captors could do nothing but warn
her and endorse the warning upon her registry. The same process
might be repeated at every port on the blockaded coast. Indeed,
according to the literal terms of the proclamation, the
Alabama might approach, and, if captured, insist upon the
warning and endorsement of her registry, and then upon her
discharge. A construction drawing after it consequences so absurd
is a "
felo de se."
The cargo must share the fate of the vessel.
The decree below is affirmed with costs.
III. The case of the
Brilliante, No. 134, presents but
little difficulty. This was a Mexican vessel with a cargo belonging
to Mexican citizens, seized on the 23d of June, 1861, in Biloxi
Bay, in an attempt to escape from New Orleans by running the
blockade, which had been established there by an efficient force on
the 15th of May preceding. She was carried by the captors to Key
West, where she was libelled in the District Court of the United
States for the Southern District of Florida, and condemned with her
cargo as prize of war.
From the deposition of Don Rafael Preciat, who was part owner of
the vessel and partner in the ownership of the cargo,
Page 67 U. S. 679
and also was on board from the time she left her home port at
Campeche until her capture, the following facts may be
gathered.
In approaching New Orleans with a cargo from Sisal, she found
the United States ship-of-war
Brooklyn blockading the
mouth of the Mississippi River at Pass a Loutre, and was by the
officer of that vessel informed of the blockade and forbid to
enter. The witness had a son at Spring Hill College, near Mobile,
whom he desired to get away, and the Commander of the Brooklyn gave
him a letter to the Commander of the
Niagara recommending
that he should be permitted to land and get his son. On leaving the
Brooklyn, she started along the coast in the direction of
the
Niagara, but instead of seeking that vessel, she
evaded her and went to New Orleans by way of Lake Ponchartrain. At
New Orleans, she discharged her cargo and took in another, and, in
attempting to escape by the way she intended, was captured as
already stated.
Some attempt has been made to excuse her entrance to New Orleans
by showing that the crew refused to proceed towards Mobile, but
this is immaterial, as her condemnation is not for her successful
entrance, but for her unsuccessful attempt to escape.
It is also urged that she was entitled to warning at the time of
her capture by virtue of the provision in the President's
proclamation establishing the blockade. But whatever may be the
sound construction of that provision in reference to warning
vessels in its application to vessels which had notice of the
blockade, the question does not arise in this case, because, from
the statement of the owner of the vessel himself, she was warned by
the officer of the Brooklyn.
The fact that the vessel's register was not produced by either
party to show a warning endorsed on it can make no difference. It
cannot be supposed that such endorsement on the ship's register is
to be the only evidence of warning, for if this were admitted, the
vessel would only have to destroy her register, and with it the
only evidence in which she could be condemned, or she would only
need to keep several registers and destroy the one having the
endorsement.
We entertain no doubt that this vessel and cargo were justly
Page 67 U. S. 680
condemned as neutral property for running the blockade, of which
she had been fairly warned, and which she had once successfully
violated.
The judgment is therefore affirmed.
The case of the
Crenshaw, No. 163, on the other hand,
presents the question of "enemies' property" pure and simple. This
vessel was seized in Hampton Roads on the 17th of May, 1861, by the
blockading force at that point under flag-officer Stringham, and
was carried as a prize of war into New York. The vessel and the
larger part of the cargo were, at the time of the capture, owned by
citizens of the State of Virginia, residing in Richmond, and the
vessel had on board, among her papers, a clearance signed on the
14th of May by R. H. Lortin, Collector of the Port of Richmond, of
the Confederate States of America.
Upon the principles already settled, the vessel and such parts
of her cargo as came within the description of enemies' property
were rightfully condemned. It is, however, claimed that ten tierces
of tobacco strips shipped by Ludlam & Watson at Richmond, to be
delivered to shipper's order at Liverpool, and thirty tierces of
tobacco strips shipped by W. O. Clark at Richmond, to order of
Messrs. Sam'l Irven or assigns, Liverpool, are not enemies'
property, and should be restored to claimants.
The claim for the ten tierces, as interposed by Henry Ludlam in
behalf of himself and others, and the statement of the claimant's
petition, are sworn to by Gustave Henikin, who holds the bill of
lading which is endorsed -- "deliver to Ludlam & Henikin, for
Chas. Lear & Sons, Liverpool. Ludlam & Watson."
Mr. Henikin states that his partner, Henry Ludlam, was in
Europe, that Watson (the partner of Ludlam & Watson, resident
in Richmond) was out of the jurisdiction of the Court, and that his
knowledge of the facts embraced in the petition is derived from his
connections with it as partner of Ludlam, and from correspondence
and business relations with the shippers. The extent of his
knowledge thus set forth is not very satisfactory, nor is the claim
stated in a manner to relieve it of any embarrassment growing out
of this fact. He sets forth substantially that Ludlam & Watson,
the shippers, was a firm composed of
Page 67 U. S. 681
Henry Ludlam, a citizen and resident of Rhode Island, and G. F.
Watson, a citizen and resident of Richmond, Va., doing business in
Richmond, and that Henry Ludlam was also doing business in New York
in partnership with Gustave Henikin, under the style of Ludlam
& Henikin, and that Lear & Sons were a mercantile
partnership composed of British subjects residing in Liverpool.
Then, speaking in behalf of all these parties, the petitioner says,
they are owners of the ten tierces of tobacco, and
bona
fide owners of the bill of lading for the same, and that said
tobacco was, from the time of the shipment, on board of the
Crenshaw in the Port of Richmond, and still is the
property of the claimants.
It will be seen at once that the statement does not profess to
set out what are the distinct interests of each individual in this
property, nor the separate interests of the three partnership firms
thus claiming it. Nor is there any attempt to show how any person
beside Ludlam & Watson of Richmond, who were the shippers,
acquired any interest in it. It is a joint claim on the part of all
the persons mentioned, all of whom are asserted to be bona fide
holders of the bill of lading. It is perfectly consistent with all
that was stated that Ludlam & Watson were the real owners of
the property. The bill of lading, which is to shipper's order or
assigns, throws no light on the subject, and there is not a
particle of other testimony in reference to the claim in the
record. The Court decreed that the interest of Lear & Sons in
the ten tierces of tobacco be restored to them, and that they pay
costs, unless they furnished further proof that the property was
bona fide neutral. They failed to furnish better proof,
and appealed on account of the costs.
We are of the opinion that the decree does them no injustice,
and, in the doubtful circumstances in which this claim stands, on
their own statement, should have had great hesitation in giving
them the property if the captors had appealed.
In reference to the claim of Ludlam, we are not sufficiently
advised of what it is by his pleading or by the proof to set apart
for him, if it were just. But we are of the opinion that the firm
of Ludlam & Watson, doing business in Richmond, where
Page 67 U. S. 682
Watson, the active member of the firm, resided, must be ruled by
his status in reference to the property of the firm under his
control in the enemy country.
The property was, through his residence in that country,
subjected to the power of the enemy, and comes within the category
of "enemies' property."
There is more difficulty in reference to the claim of Irvin
& Co. to the thirty tierces of tobacco strips.
It very clearly appears that Irvin & Co., claimants,
purchased this tobacco before the war broke out, with their own
means, which were then in Richmond, and that they are citizens and
residents of New York.
It is claimed that the property should be condemned on the
ground that the transaction constitutes an illegal traffic with the
enemy. This certainly cannot be held to apply to the purchase of
the tobacco which was bought and paid for before hostilities
commenced. If it is intended to apply the principle of illegal
traffic to the attempt to withdraw the property from the enemy
country, it would seem that the order of the Secretary of the Navy
allowing fifteen days for all vessels to withdraw from the
blockaded ports, with or without cargo, should be held to apply to
the property of one of our own citizens, residing in New York,
already bought and paid for, as well as to any neutral cargo. If
this be correct, it would seem that the property of Irvin & Co.
should be restored to them as that of Laurie, Son & Co.
was.
The right of Scott & Clarke to commissions on profits really
constituted no interest in the property, and presents no cognizable
feature in the case.
This property will therefore be restored to the claimants.
Mr. Justice NELSON, dissenting.
The property in this case, vessel and cargo, was seized by a
Government vessel on the 20th of May, 1861, in Hampton Roads for an
alleged violation of the blockade of the ports of the State of
Virginia. The
Hiawatha was British vessel, and the cargo
belonged to British subjects. The vessel had entered the James
River before the blockade, on
Page 67 U. S. 683
her way to City Point, upwards of one hundred miles from the
mouth, where she took in her cargo. She finished loading on the
15th of May, but was delayed from departing on her outward voyage
till the 17th for want of a tug to tow her down the river. She
arrived at Hampton Roads on the 20th, where, the blockade in the
meantime having been established, she was met by one of the ships
and the boarding officer endorsed on her register, "ordered not to
enter any port in Virginia, or south of it." This occurred some
three miles above the place where the flagship was stationed, and
the boarding officer directed the master to heave his ship to when
he came abreast of the flag ship, which was done, when she was
taken in charge as prize.
On the 30th April, flag officer Pendergrast, U.S. ship
Cumberland, off Fortress Monroe, in Hampton Roads, gave
the following notice:
"All vessels passing the capes of Virginia, coming from a
distances and ignorant of the proclamation (the proclamation of the
President of the 27th of April that a blockade would be
established) will be warned off, and those passing Fortress Monroe
will be required to anchor under the guns of the fort and subject
themselves to an examination."
The
Hiawatha, while engaged in putting on board her
cargo at City Point, became the subject of correspondence between
the British Minister and the Secretary of State, under date of the
8th and 9th of May, which drew from the Secretary of the Navy a
letter of the 9th in which, after referring to the above notice of
the flag officer Pendergrast, and stating that it had been sent to
the Baltimore and Norfolk papers, and by one or more published,
advised the Minister that fifteen days had been fixed as a limit
for neutrals to leave the ports after an actual blockade had
commenced, with or without cargo. The inquiry of the British
Minister had referred not only to the time that a vessel would be
allowed to depart, but whether it might be ladened within the time.
This vessel, according to the advice of the Secretary, would be
entitled to the whole of the 15th of May to leave City Point, her
port of lading. As we have seen, her cargo was on board within the
time, but the vessel was
Page 67 U. S. 684
delayed in her departure for want of a tug to tow her down the
river.
We think it very clear upon all the evidence that there was no
intention on the part of the master to break the blockade, that the
seizure under the circumstances was not warranted, and, upon the
merits, that the ship and cargo should have been restored.
Another ground of objection to this seizure is that the vessel
was entitled to a warning endorsed on her papers by an officer of
the blockading force, according to the terms of the proclamation of
the President, and that she was not liable to capture except for
the second attempt to leave the port.
The proclamation, after certain recitals not material in this
branch of the case, provides as follows: the President has
"deemed it advisable to set on foot a blockade of the ports
within the States aforesaid (the States referred to in the
recitals) in pursuance of the laws of the United States and of the
law of nations, in such case made and provided. . . . If,
therefore, with a view to violate such blockade, a vessel shall
approach or shall attempt to leave either of said ports, she will
be duly warned by the commander of one of the blockading vessels,
who will endorse on her register the fact and date of such warning,
and if the same vessel shall again attempt to enter or leave the
blockaded port, she will be captured and sent to the nearest
convenient port for such proceedings against her and her cargo, as
prize, as may be deemed advisable."
The proclamation of the President of the 27th of April extended
that of the 19th to the States of Virginia and North Carolina.
It will be observed that this warning applies to vessels
attempting to enter or leave the port, and is therefore applicable
to the
Hiawatha.
We must confess that we have not heard any satisfactory answer
to the objection founded upon the terms of this proclamation.
It has been said that the proclamation, among other grounds, as
stated on its face, is founded on the "law of nations," and
Page 67 U. S. 685
hence draws after it the law of blockade as found in that code,
and that a warning is dispensed with in all cases where the vessel
is chargeable with previous notice or knowledge that the port is
blockaded. But the obvious answer to the suggestion is that there
is no necessary connection between the authority upon which the
proclamation is issued and the terms prescribed as the condition of
its penalties or enforcement, and, besides, if founded upon the law
of nations, surely it was competent for the President to mitigate
the rigors of that code and apply to neutrals the more lenient and
friendly principles of international law. We do not doubt but that
considerations of this character influenced the President in
prescribing these favorable terms in respect to neutrals, for, in
his message a few months later to Congress (4th of July), he
observes: "a proclamation was issued for closing the ports of the
insurrectionary districts" (not by blockade, but) "by proceedings
in the nature of a blockade."
This view of the proclamation seems to have been entertained by
the Secretary of the Navy, under whose orders it was carried into
execution. In his report to the President, 4th July, the observes,
after referring to the necessity of interdicting commerce at those
ports where the Government were not permitted to collect the
revenue, that,
"in the performance of this domestic municipal duty, the
property and interests of foreigners became to some extent involved
in our home questions, and with a view of extending to them every
comity that circumstances would justify, the rules of blockade were
adopted, and, as far as practicable, made applicable to the cases
that occurred under this embargo or nonintercourse of the insurgent
States. The commanders, he observes, were directed to permit the
vessels of foreigners to depart within fifteen days as in case of
actual effective blockade, and their vessels were not to be seized
unless they attempted, after having been once warned off, to enter
an interdicted port in disregard of such warning."
The question is not a new one in this Court. The British
Government had notified the United States of the blockade of
certain ports in the West Indies, but
"not to consider blockades as existing, unless in respect to
particular ports which may be
Page 67 U. S. 686
actually invested, and, then not to capture vessels bound to
such ports unless they shall have been previously warned not to
enter them."
The question arose upon this blockade in
Mar. In.
Co. vs. Woods, 6 Cranch 29.
Chief Justice Marshall, in delivering the opinion of the Court,
observed,
"The words of the order are not satisfied by any previous notice
which the vessel may have obtained, otherwise than by her being
warned off. This is a technical term which is well understood. It
is not satisfied by notice received in any other manner. The effect
of this order is that a vessel cannot be placed in the situation of
one having notice of the blockade until she is warned off. It gives
her a right to inquire of the blockading squadron, if she shall not
receive this warning from one capable of giving it, and,
consequently, dispenses with her making that inquiry elsewhere.
While this order was in force a neutral vessel might lawfully sail
for a blockaded port, knowing it to be blockaded, and being found
sailing towards such port, would not constitute an attempt to break
the blockade until she should be warned off."
We are of opinion, therefore, that, according to the very terms
of the proclamation, neutral ships were entitled to a warning by
one of the blockading squadron, and could be lawfully seized only
on the second attempt to enter or leave the port.
It is remarkable also that both the President and the Secretary,
in referring to the blockade, treat the measure not as a blockade
under the law of nations, but as a restraint upon commerce at the
interdicted ports under the municipal laws of the Government.
Another objection taken to the seizure of this vessel and cargo
is that there was no existing war between the United States and the
States in insurrection within the meaning of the law of nations,
which drew after it the consequences of a public or civil war. A
contest by force between independent sovereign States is called a
public war, and, when duly commenced by proclamation or otherwise,
it entitles both of the belligerent parties to all the rights of
war against each other, and as respects
Page 67 U. S. 687
neutral nations. Chancellor Kent observes,
"Though a solemn declaration, or previous notice to the enemy,
be now laid aside, it is essential that some formal public act,
proceeding directly from the competent source, should announce to
the people at home their new relations and duties growing out of a
state of war, and which should equally apprize neutral nations of
the fact, to enable them to conform their conduct to the rights
belonging to the new state of things. . . . Such an official act
operates from its date to legalize all hostile acts in like manner
as a treaty of peace operates from its date to annul them."
He further observes,
"as war cannot lawfully be commenced on the part of the United
States without an act of Congress, such act is, of course, a formal
notice to all the world, and equivalent to the most solemn
declaration."
The legal consequences resulting from a state of war between two
countries at this day are well understood, and will be found
described in every approved work on the subject of international
law. The people of the two countries become immediately the enemies
of each other -- all intercourse commercial or otherwise between
them unlawful -- all contracts existing at the commencement of the
war suspended, and all made during its existence utterly void. The
insurance of enemies' property, the drawing of bills of exchange or
purchase on the enemies' country, the remission of bills or money
to it, are illegal and void. Existing partnerships between citizens
or subjects of the two countries are dissolved, and, in fine,
interdiction of trade and intercourse direct or indirect is
absolute and complete by the mere force and effect of war itself.
All the property of the people of the two countries on land or sea
are subject to capture and confiscation by the adverse party as
enemies' property, with certain qualifications as it respects
property on land, (
Brown vs. United
States, 8 Cranch 110), all treaties between the
belligerent parties are annulled, the ports of the respective
countries may be blockaded, and letters of marque and reprisal
granted as rights of war, and the law of prizes as defined by the
law of nations comes into full and complete operation, resulting
from maritime captures,
jure belli. War also effects a
change in the
Page 67 U. S. 688
mutual relations of all States or countries, not directly, as in
the case of the belligerents, but immediately and indirectly,
though they take no part in the contest, but remain neutral.
This great and pervading change in the existing condition of a
country, and in the relations of all her citizens or subjects,
external and internal, from a state of peace, is the immediate
effect and result of a state of war, and hence the same code which
has annexed to the existence of a war all these disturbing
consequences has declared that the right of making war belongs
exclusively to the supreme or sovereign power of the State.
This power in all civilized nations is regulated by the
fundamental laws or municipal constitution of the country.
By our constitution, this power is lodged in Congress. Congress
shall have power "to declare war, grant letters of marque and
reprisal, and make rules concerning captures on land and
water."
We have thus far been considering the status of the citizens or
subjects of a country at the breaking out of a public war when
recognized or declared by the competent power.
In the case of a rebellion or resistance of a portion of the
people of a country against the established government, there is no
doubt, if in its progress and enlargement the government thus
sought to be overthrown sees fit, it may by the competent power
recognize or declare the existence of a state of civil war, which
will draw after it all the consequences and rights of war between
the con ending parties as in the case of a public war. Mr. Wheaton
observes, speaking of civil war,
"But the general usage of nations regards such a war as
entitling both the contending parties to all the rights of war as
against each other, and even as respects neutral nations."
It is not to be denied, therefore, that if a civil war existed
between that portion of the people in organized insurrection to
overthrow this Government at the time this vessel and cargo were
seized, and if she was guilty of a violation of the blockade, she
would be lawful prize of war. But before this insurrection against
the established Government can be dealt with on the footing of a
civil war, within the meaning of the law of nations and the
Constitution
Page 67 U. S. 689
of the United States, and which will draw after it belligerent
rights, it must be recognized or declared by the war-making power
of the Government. No power short of this can change the legal
status of the Government or the relations of its citizens from that
of peace to a state of war, or bring into existence all those
duties and obligations of neutral third parties growing out of a
state of war. The war power of the Government must be exercised
before this changed condition of the Government and people and of
neutral third parties can be admitted. There is no difference in
this respect between a civil or a public war.
We have been more particular upon this branch of the case that
would seem to be required not on account of any doubt or
difficulties attending the subject in view of the approved works
upon the law of nations or from the adjudication of the courts, but
because some confusion existed on the argument as to the definition
of a war that drew after it all the rights of prize of war. Indeed,
a great portion of the argument proceeded upon the ground that
these rights could be called into operation -- enemies' property
captured -- blockades set on foot and all the rights of war
enforced in prize courts -- by a species of war unknown to the law
of nations and to the Constitution of the United States.
An idea seemed to be entertained that all that was necessary to
constitute a war was organized hostility in the district of country
in a state of rebellion -- that conflicts on land and on sea -- the
taking of towns and capture of fleets -- in fine, the magnitude and
dimensions of the resistance against the Government -- constituted
war with all the belligerent rights belonging to civil war. With a
view to enforce this idea, we had, during the argument, an imposing
historical detail of the several measures adopted by the
Confederate States to enable them to resist the authority of the
general Government, and of many bold and daring acts of resistance
and of conflict. It was said that war was to be ascertained by
looking at the armies and navies or public force of the contending
parties, and the battles lost and won -- that, in the language of
one of the learned counsel,
"Whenever the situation of opposing hostilities has assumed the
proportions
Page 67 U. S. 690
and pursued the methods of war, then peace is driven out, the
ordinary authority and administration of law are suspended, and war
in fact and by necessity is the status of the nation until peace is
restored and the laws resumed their dominion."
Now, in one sense, no doubt this is war, and may be a war of the
most extensive and threatening dimensions and effects, but it is a
statement simply of its existence in a material sense, and has no
relevancy or weight when the question is what constitutes war in a
legal sense, in the sense of the law of nations, and of the
Constitution of the United States? For it must be a war in this
sense to attach to it all the consequences that belong to
belligerent rights. Instead, therefore, of inquiring after armies
and navies, and victories lost and won, or organized rebellion
against the general Government, the inquiry should be into the law
of nations and into the municipal fundamental laws of the
Government. For we find there that to constitute a civil war in the
sense in which we are speaking, before it can exist in
contemplation of law, it must be recognized or declared by the
sovereign power of the State, and which sovereign power by our
Constitution is lodged in the Congress of the United States --
civil war, therefore, under our system of government, can exist
only by an act of Congress, which requires the assent of two of the
great departments of the Government, the Executive and
Legislative.
We have thus far been speaking of the war power under the
Constitution of the United States, and as known and recognized by
the law of nations. But we are asked, what would become of the
peace and integrity of the Union in case of an insurrection at home
or invasion from abroad if this power could not be exercised by the
President in the recess of Congress, and until that body could be
assembled?
The framers of the Constitution fully comprehended this
question, and provided for the contingency. Indeed, it would have
been surprising if they had not, as a rebellion had occurred in the
State of Massachusetts while the Convention was in session, and
which had become so general that it was quelled only by
Page 67 U. S. 691
calling upon the military power of the State. The Constitution
declares that Congress shall have power "to provide for calling
forth the militia to execute the laws of the Union, suppress
insurrections, and repel invasions." Another clause, "that the
President shall be Commander-in-chief of the Army and Navy of the
United States, and of the militia of the several States when called
into the actual service of United States;" and, again, "He shall
take care that the laws shall be faithfully executed." Congress
passed laws on this subject in 1792 and 1795. 1 United States Laws,
pp. 264, 424.
The last Act provided that whenever the United States shall be
invaded or be in imminent danger of invasion from a foreign nation,
it shall be lawful for the President to call forth such number of
the militia most convenient to the place of danger, and, in case of
insurrection in any State against the Government thereof, it shall
be lawful for the President, on the application of the Legislature
of such State, if in session, or if not, of the Executive of the
State, to call forth such number of militia of any other State or
States as he may judge sufficient to suppress such
insurrection.
The 2d section provides that when the laws of the United States
shall be opposed, or the execution obstructed in any State by
combinations too powerful to be suppressed by the course of
judicial proceedings, it shall be lawful for the President to call
forth the militia of such State, or of any other State or States as
may be necessary to suppress such combinations; and by the Act 3
March, 1807 (2 U.S.Laws, 443), it is provided that, in case of
insurrection or obstruction of the laws, either in the United
States or of any State of Territory, where it is lawful for the
President to call forth the militia for the purpose of suppressing
such insurrection, and causing the laws to be executed, it shall be
lawful to employ for the same purpose such part of the land and
naval forces of the United States as shall be judged necessary.
It will be seen, therefore, that ample provision has been made
under the Constitution and laws against any sudden and unexpected
disturbance of the public peace from insurrection at home
Page 67 U. S. 692
or invasion from abroad. The whole military and naval power of
the country is put under the control of the President to meet the
emergency. He may call out a force in proportion to its
necessities, one regiment or fifty, one ship-of-war or any number
at his discretion. If, like the insurrection in the State of
Pennsylvania in 1793, the disturbance is confined to a small
district of country, a few regiments of the militia may be
sufficient to suppress it. If of the dimension of the present, when
it first broke out, a much larger force would be required. But
whatever its numbers, whether great or small, that may be required,
ample provision is here made, and whether great or small, the
nature of the power is the same. It is the exercise of a power
under the municipal laws of the country and not under the law of
nations, and, as we see, furnishes the most ample means of
repelling attacks from abroad or suppressing disturbances at home
until the assembling of Congress, who can, if it be deemed
necessary, bring into operation the war power, and thus change the
nature and character of the contest. Then, instead of being carried
on under the municipal law of 1795, it would be under the law of
nations, and the Acts of Congress as war measures with all the
rights of war.
It has been argued that the authority conferred on the President
by the Act of 1795 invests him with the war power. But the obvious
answer is that it procedes from a different clause in the
Constitution and which is given for different purposes and objects,
namely, to execute the laws and preserve the public order and
tranquillity of the country in a time of peace by preventing or
suppressing any public disorder or disturbance by foreign or
domestic enemies. Certainly, if there is any force in this
argument, then we are in a state of war with all the rights of war,
and all the penal consequences attending it every time this power
is exercised by calling out a military force to execute the laws or
to suppress insurrection or rebellion; for the nature of the power
cannot depend upon the numbers called out. If so, what numbers will
constitute war and what numbers will not? It has also been argued
that this power of the President from necessity should be construed
as vesting him with the war
Page 67 U. S. 693
power, or the Republic might greatly suffer or be in danger from
the attacks of the hostile party before the assembling to Congress.
But we have seen that the whole military and naval force are in his
hands under the municipal laws of the country. He can meet the
adversary upon land and water with all the forces of the
Government. The truth is, this idea of the existence of any
necessity for clothing the President with the war power, under the
Act of 1795, is simply a monstrous exaggeration, for, besides
having the command of the whole of the army and navy, Congress can
be assembled within any thirty days, if the safety of the country
requires that the war power shall be brought into operation.
The Acts of 1795 and 1805 did not, and could not under the
Constitution, confer on the President the power of declaring war
against a State of this Union, or of deciding that war existed, and
upon that ground authorize the capture and confiscation of the
property of every citizen of the State whenever it was found on the
waters. The laws of war, whether the war be civil or
inter
gentes, as we have seen, convert every citizen of the hostile
State into a public enemy, and treat him accordingly, whatever may
have been his previous conduct. This great power over the business
and property of the citizen is reserved to the legislative
department by the express words of the Constitution. It cannot be
delegated or surrendered to the Executive. Congress alone can
determine whether war exists or should be declared, and until they
have acted, no citizen of the State can be punished in his person
or property unless he has committed some offence against a law of
Congress passed before the act was committed which made it a crime
and defined the punishment. The penalty of confiscation for the
acts of others with which he had no concern cannot lawfully be
inflicted.
In the breaking out of a rebellion against the established
Government, the usage in all civilized countries, in its first
stages, is to suppress it by confining the public forces and the
operations of the Government against those in rebellion, and at the
same time extending encouragement and support to the loyal people
with a view to their cooperation in putting down the
Page 67 U. S. 694
insurgents. This course is not only the dictate of wisdom, but
of justice. This was the practice of England in Monmouth's
rebellion in the reign of James the Second, and in the rebellions
of 1715 and 1745, by the Pretender and his son, and also in the
beginning of the rebellion of the Thirteen Colonies of 1776. It is
a personal war against the individuals engaged in resisting the
authority of the Government. This was the character of the war of
our Revolution till the passage of the Act of the Parliament of
Great Britain of the 16th of George Third, 1776. By that act, all
trade and commerce with the Thirteen Colonies was interdicted, and
all ships and cargoes belonging to the inhabitants subjected to
forfeiture as if the same were the ships and effects of open
enemies. From this time, the war became a territorial civil war
between the contending parties, with all the rights of war known to
the law of nations. Down to this period, the war was personal
against the rebels, and encouragement and support constantly
extended to the loyal subjects who adhered to their allegiance, and
although the power to make war existed exclusively in the King, and
of course this personal war carried on under his authority, and a
partial exercise of the war power, no captures of the ships or
cargo of the rebels as enemies' property on the sea, or
confiscation in Prize Courts as rights of war, took place until
after the passage of the Act of Parliament. Until the passage of
the act, the American subjects were not regarded as enemies in the
sense of the law of nations. The distinction between the loyal and
rebel subjects was constantly observed. That act provided for the
capture and confiscation as prize of their property as if the same
were the proper "of open enemies." For the first time, the
distinction was obliterated.
So the war carried on by the President against the
insurrectionary districts in the Southern States, as in the case of
the King of Great Britain in the American Revolution, was a
personal war against those in rebellion, and with encouragement and
support of loyal citizens with a view to their cooperation and aid
in suppressing the insurgents, with this difference, as the
warmaking power belonged to the King, he might have recognized or
declared the war at the beginning to be a civil war,
Page 67 U. S. 695
which would draw after it all the rights of a belligerent, but
in the case of the President, no such power existed; the war
therefore, from necessity, was a personal war until Congress
assembled and acted upon this state of things.
Down to this period, the only enemy recognized by the Government
was the persons engaged in the rebellion, all others were peaceful
citizens, entitled to all the privileges of citizens under the
Constitution. Certainly it cannot rightfully be said that the
President has the power to convert a loyal citizen into a
belligerent enemy or confiscate his property as enemy's
property.
Congress assembled on the call for an extra session the 4th of
July, 1861, and among the first acts passed was one in which the
President was authorized by proclamation to interdict all trade and
intercourse between all the inhabitants of States in insurrection
and the rest of the United States, subjecting vessel and cargo to
capture and condemnation as prize, and also to direct the capture
of any ship or vessel belonging in whole or in part to any
inhabitant of a State whose inhabitants are declared by the
proclamation to be in a state of insurrection, found at sea or in
any part of the rest of the United States. Act of Congress of 13th
of July, 1861, secs. 5, 6. The 4th section also authorized the
President to close any port in a Collection District obstructed so
that the revenue could not be collected, and provided for the
capture and condemnation of any vessel attempting to enter.
The President's Proclamation was issued on the 16th of August
following, and embraced Georgia, North and South Carolina, part of
Virginia, Tennessee, Alabama, Louisiana, Texas, Arkansas,
Mississippi and Florida.
This Act of Congress, we think, recognized a state of civil war
between the Government and the Confederate States, and made it
territorial. The Act of Parliament of 1776, which converted the
rebellion of the Colonies into a civil territorial war, resembles,
in its leading features, the act to which we have referred.
Government, in recognizing or declaring the existence of a civil
war between itself and a portion of the people in insurrection,
usually modifies its effects with a view as far as
Page 67 U. S. 696
practicable to favor the innocent and loyal citizens or subjects
involved in the war. It is only the urgent necessities of the
Government, arising from the magnitude of the resistance, that can
excuse the conversion of the personal into a territorial war, and
thus confound all distinction between guilt and innocence; hence
the modification in the Act of Parliament declaring the territorial
war.
It is found in the 44th section of the Act, which for the
encouragement of well affected persons, and to afford speedy
protection to those desirous of returning to their allegiance,
provided for declaring such inhabitants of any colony, county,
town, port, or place, at peace with his majesty, and after such
notice by proclamation there should be no further captures. The Act
of 13th of July provides that the President may, in his discretion,
permit commercial intercourse with any such part of a State or
section, the inhabitants of which are declared to be in a state of
insurrection (ยง 5), obviously intending to favor loyal citizens and
encourage others to return to their loyalty. And the 8th section
provides that the Secretary of the Treasury may mitigate or remit
the forfeitures and penalties incurred under the act. The Act of
31st July is also one of a kindred character. That appropriates
$2,000,000 to be expended under the authority of the President in
supplying and delivering arms and munitions of war to loyal
citizens residing in any of the States of which the inhabitants are
in rebellion, or in which it may be threatened. We agree,
therefore, that the Act 13th July, 1861, recognized a state of
civil war between the Government and the people of the State
described in that proclamation.
The cases of the
United States v.
Palmer, 3 Wheat. 610,
Divina
Pastora, and 4
ibid. 52, and that class of
cases to be found in the reports are referred to as furnishing
authority for the exercise of the war power claimed for the
President in the present case. These cases hold that, when the
Government of the United States recognizes a state of civil war to
exist between a foreign nation and her colonies, but remaining
itself neutral, the Courts are bound to consider as lawful all
those acts which the new Government may direct against the enemy,
and we
Page 67 U. S. 697
admit the President who conducts the foreign relations of the
Government may fitly recognize or refuse to do so, the existence of
civil war in the foreign nation under the circumstances stated.
But this is a very different question from the one before us,
which is whether the President can recognize or declare a civil
war, under the Constitution, with all its belligerent rights,
between his own Government and a portion of its citizens in a state
of insurrection. That power, as we have seen, belongs to Congress.
We agree when such a war is recognized or declared to exist by the
warmaking power, but not otherwise, it is the duty of the Courts to
follow the decision of the political power of the Government.
The case of
Luther vs. Borden et
al., 7 How. 45, which arose out of the attempt of
an assumed new government in the State to overthrow the old and
established Government of Rhode Island by arms. The Legislature of
the old Government had established martial law, and the Chief
Justice in delivering the opinion of the Court observed, among
other things, that
"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,
we see no ground upon which this 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."
But it is only necessary to say, that the term "war" must
necessarily have been used here by the Chief Justice in its popular
sense, and not as known to the law of nations, as the State of
Rhode Island confessedly possessed no power under the Federal
Constitution to declare war.
Congress, on the 6th of August, 1862, passed an Act confirming
all acts, proclamations, and orders of the President after the 4th
of March, 1861, respecting the army and navy, and legalizing them,
so far as was competent for that body, and it has been suggested,
but scarcely argued, that this legislation on the subject had the
effect to bring into existence an
ex post facto civil war,
with all the rights of capture and confiscation,
jure
Page 67 U. S. 698
belli, from the date referred to. An
ex post
facto law is defined when, after an action, indifferent in
itself or lawful, is committed, the Legislature then, for the first
time, declares it to have been a crime and inflicts punishment upon
the person who committed it. The principle is sought to be applied
in this case. Property of the citizen or foreign subject engaged in
lawful trade at the time, and illegally captured, which must be
taken as true if a confirmatory act be necessary, may be held and
confiscated by subsequent legislation. In other words, trade and
commerce authorized at the time by acts of Congress and treaties
may, by
ex post facto legislation, be changed into illicit
trade and commerce with all its penalties and forfeitures annexed
and enforced. The instance of the seizure of the Dutch ships in
1803 by Great Britain before the war, and confiscation after the
declaration of war, which is well known, is referred to as an
authority. But there, the ships were seized by the war power, the
orders of the Government, the seizure being a partial exercise of
that power, and which was soon after exercised in full.
The precedent is one which has not received the approbation of
jurists, and is not to be followed.
See W. B. Lawrence, 2d
ed. Wheaton's Element of Int.Law, pt. 4, ch. 1. sec. 11, and note.
But, admitting its full weight, it affords no authority in the
present case. Here, the captures were without any Constitutional
authority and void, and, on principle, no subsequent ratification
could make them valid.
Upon the whole, after the most careful consideration of this
case which the pressure of other duties has admitted, I am
compelled to the conclusion that no civil war existed between this
Government and the States in insurrection till recognized by the
Act of Congress 13th of July, 1861; that the President does not
possess the power under the Constitution to declare war or
recognize its existence within the meaning of the law of nations,
which carries with it belligerent rights, and thus change the
country and all its citizens from a state of peace to a state of
war; that this power belongs exclusively to the Congress of the
United States, and, consequently, that the President had no power
to set on foot a blockade under the law of nations, and
Page 67 U. S. 699
that the capture of the vessel and cargo in this case, and in
all cases before us in which the capture occurred before the 13th
of July, 1861, for breach of blockade, or as enemies' property, are
illegal and void, and that the decrees of condemnation should be
reversed, and the vessel and cargo restored.
Mr. Chief Justice TANEY, Mr. Justice CATRON and Mr. Justice
CLIFFORD, concurred in the dissenting opinion of Mr. Justice
Nelson.