1. The court reaffirms the doctrine in
Williams v.
Bruffy, 96 U. S. 176, that
an enactment of the Confederate States, enforced as a law of one of
the states composing that confederation, is a statute of such state
within the meaning of the act regulating the appellate jurisdiction
of this Court over the judgments and decrees of the state
courts.
2. A., a resident of Adams County, Mississippi, whose cotton was
there burnt by B. in May, 1862, brought an action for its value
against the latter, who set up as a defense that that state,
whereof he was at that date a resident, was then in subjection to
and under the control of the "Confederate States;" that an act of
their congress, approved March 6, 1862, declared that it was the
duty of all military commanders in their service to destroy all
cotton whenever, in their judgment, the same should be about to
fall into the hands of the United States; that in obedience to that
act, the commander of their forces in Mississippi issued an order,
directed to his subordinate officers in that state, to burn all
cotton along the Mississippi River likely to fall into the hands of
the forces of the United States; that the provost marshal of that
county was charged with executing within it that order; that A.'s
cotton was likely to fall into the hands of the United States; that
the provost marshal ordered and required B. to burn it; and that B.
did burn it in obedience to the said act and the orders of that
commander and the provost marshal.
Held l. that the said
act, as a measure of legislation, can have no force in any court
recognizing the Constitution of the United Staten as the supreme
law of the land; 2. that it did not assume to confer upon
Page 97 U. S. 595
such commanders any greater authority than they, by the laws and
usages of war, were entitled to exercise; 3. that the orders, as an
act of war, exempted a soldier of the Confederate army who executed
them from liability to the owner of the cotton who, at the time of
its destruction, was a voluntary resident within the lines of the
insurrection; 4. that the plea should, upon demurrer, be deemed as
sufficiently averring the existence of such relations between B.
and the Confederate military authorities as entitled him to make
the same defense as if he had been such soldier.
Ford filed his complaint against Surget in the Circuit Court of
Adams County, Mississippi, on the 2d of October, 1866, alleging
that he,
"at his plantation in said county, on the fifth day of May, in
the year 1862, was possessed, as of his own personal property, of
two hundred bales of cotton, averaging in weight four hundred
pounds per bale, and of the value of $600 per bale; and that he
being so possessed, Surget, at the place aforesaid, and upon the
day and year aforesaid, did willfully and utterly, and against the
consent and will of the plaintiff, destroy of fire the said two
hundred bales of cotton,"
to the plaintiff's damage in the sum of $120,000.
The defendant pleaded not guilty, and also filed numerous
special pleas.
The defense, although presented by the special pleas in
different forms, is in substance embraced by the following
allegations, namely:
That at and before the time the alleged trespasses were
committed, the people of Mississippi, and of Virginia, North
Carolina, South Carolina, Florida, Georgia, Alabama, Louisiana,
Arkansas, and Texas, had confederated together for revolt against,
and within their territorial limits had entirely subverted, the
government of the United States, and in place thereof, and within
and for their territory and people, had created a new and separate
government, called the Confederate States of America, having
executive, legislative, and judicial departments; that on the 6th
of March, 1862, and from that date until the time when the alleged
trespasses were committed, a war had been, and was then, waged and
prosecuted by and between the United States and the Confederate
States, and against each other, as belligerent powers and nations;
that the Confederate States, for the prosecution of the war and the
maintenance
Page 97 U. S. 596
of its powers, then and before had maintained in its service, in
the State of Mississippi, an army of which General Beauregard was
commander whereby the territory, property, and inhabitants of that
state were held in subjection to and under the control of the
Confederate States; that on the 6th of March, 1862, and by an act
on that day approved and promulgated by the Confederate Congress,
it was declared to be the duty of all military commanders in the
service of the Confederate state to destroy all cotton, tobacco,
and other property that might be useful to the forces of the United
States whenever in their judgment the same should be about to fall
into their hands; that afterwards, on the 2d of May, 1862, General
Beauregard, commanding the Confederate forces, in obedience to that
act, made and issued a general ordered, directed to officers under
his command in the State of Mississippi and in the service of the
Confederate States to burn all cotton along the Mississippi River
likely to fall into the hands of the forces of the United States;
that before and at the date last mentioned, and afterwards until
the time the supposed trespasses were committed, Alexander K.
Farrar was acting as provost marshal of the County of Adams,
charged with the duty, among others, of executing, within that
county the orders of military commanders in the State of
Mississippi in the service of the Confederate States, and in
pursuance thereof was commanded by the Confederate military
authorities to burn all the cotton along the bank of that river
likely to fall into the hands of the forces of the United States;
that the cotton in the complaint mentioned was near the bank of the
Mississippi within that county, and was, when burned, likely to
fall into the hands of the federal forces; that the defendant was
then ordered and required by said Farrar, acting as provost marshal
under the orders aforesaid, to burn certain cotton, including the
cotton in controversy; and that afterwards the defendant, in
obedience to the act of the Confederate Congress and the orders of
said military commanders and provost marshal, did burn Ford's
cotton, which is the supposed trespass complained of.
To each of the special pleas the plaintiff in error demurred,
assigning numerous causes of demurrer. The demurrers were
Page 97 U. S. 597
overruled and replications filed. The cause, being at issue, was
tried by a jury. Verdict for the defendant. Judgment having been
rendered thereon, the plaintiff removed the cause to the supreme
court of the state. Upon the affirmance of the judgment, he sued
out this writ of error.
Page 97 U. S. 602
MR. JUSTICE HARLAN, after stating the case, delivered the
opinion of the Court.
We can notice only the ground of demurrer, which suggests that
the defendant in his pleas sought to rely
"for justification of the trespass committed by him upon matters
in themselves wholly illegal, against peace and good policy, and
contrary to the Constitution of the United States, the supreme law
of the land, and the government thereof."
In view of the decision in
Williams v. Bruffy,
96 U. S. 176, but
little need be said upon the preliminary question of the
jurisdiction of this Court. What is there decided would seem to be
conclusive in this case upon the point of jurisdiction. That was an
action of assumpsit for goods sold in March, 1861, by citizens of
Pennsylvania to one Bruffy, a citizen of Virginia. The
administrator of Bruffy claimed that the estate was not liable for
the debt sued for because, pending the recent war, his intestate
paid the debt to a receiver of the Confederate States, in pursuance
of a decree of a Confederate district court in Virginia, rendered
in conformity with the provisions of an act of the Confederate
Congress passed Aug. 30, 1861, sequestrating the lands, tenements,
goods, chattels, rights, and credits within the Confederate States,
and of every rights and interest therein, held by or for any alien
enemy after May 21, 1861. That defense was sustained in the state
courts, and, upon error, it was insisted that this Court had no
jurisdiction to review the final judgment of the Supreme Court of
Appeals of Virginia. Referring to the provision in the statute
conferring appellate jurisdiction upon this Court,
"where is drawn in question the validity of a statute of, or an
authority exercised under, any state, on the ground of their being
repugnant to the Constitution, treaties, or laws of the United
States, and the decision is in favor of their validity,"
and referring also the provision conferring such
jurisdiction
"where any title, right, privilege, or immunity is claimed under
the Constitution, or any treaty or statute of, or commission held
or authority exercised under, the United States, and the
Page 97 U. S. 603
decision is against the title, right, privilege, or immunity
specially set up or claimed by either party under such
Constitution, treaty, statute, commission, or authority"
-- this Court decided that its right to review that judgment
could be maintained upon both of those clauses of the amended
Judiciary Act.
Some of the grounds of our decision are thus stated in the
opinion of the Court:
"The pleas aver that a confederation was formed by Virginia and
other states, called the Confederate States of America, and that
under a law of this confederation, enforced in Virginia, the debt
due to the plaintiffs was sequestrated. Now the Constitution of the
United States prohibits any treaty, alliance, or confederation by
one state with another. The organization whose enactment is pleaded
cannot therefore be regarded in this Court as having any legal
existence. It follows that whatever efficacy the enactment
possessed in Virginia must be attributed to the sanction given to
it by that state. Any enactment, from whatever source originating,
to which a state gives the force of law, is a statute of the state
within the meaning of the clause cited relating to the jurisdiction
of this Court. . . . By the only authority which can be recognized
as having any legal existence -- that is, the State of Virginia --
this act of the unauthorized confederation was enforced as a law of
the commonwealth. Its validity was drawn in question on the ground
that it was repugnant to the Constitution of the United States and
the decision of the court below was in favor of its validity."
We do not perceive that this case, upon the question of
jurisdiction, can be distinguished from
Williams v.
Bruffy. The defendant, Surget, justifies his burning of the
cotton under military orders, issued by a Confederate general, in
pursuance of authority conferred by an act of the Confederate
Congress. If we regard substance rather than mere from or technical
accuracy, the defense rested upon that act, the validity of which
was, in terms, questioned by the several demurrers to the special
pleas. The general orders of the state court overruling the
demurrers must be accepted, in every essential sense, as an
adjudication in favor of the validity of an act of the
Confederate
Page 97 U. S. 604
Congress, recognized and enforced as law in Mississippi, and
which act, according to the rule laid down in that case, must be,
therefore, regarded by us as a statute of that state within the
meaning of the provisions of the act declaring the appellate
jurisdiction of this Court. It results that we have power to review
the final judgment of the Supreme Court of Mississippi.
We come now to the consideration of the merits of the case so
far as they seem to be involved in the demurrers to the special
pleas.
The principles of public law, as applicable to civil and
international wars, have been so frequently under discussion here
that we shall not avail ourselves of the opportunity now afforded
to renew that discussion or enlarge upon what has been heretofore
said. The numerous decisions of this Court, beginning with the
Prize Cases, 2
Black 635, and ending with
Williams v. Bruffy, supra, and
Dewing v. Perdicaries, 96 U. S. 193,
render any further declaration as to these principles wholly
unnecessary for the purposes of the present case. Without
attempting to restate all the reasons assigned in adjudged cases
for the conclusions therein announced, we assume that the following
propositions are settled by or are plainly to be deduced from our
former decisions:
1. The district of country declared by the constituted
authorities, during the late civil war, to be in insurrection
against the government of the United States, was enemy territory,
and all the people residing within such district were, according to
public law, and for all purposes connected with the prosecution of
the war, liable to be treated by the United States, pending the war
and while they remained within the lines of the insurrection, as
enemies without reference to their personal sentiments and
dispositions.
2. There was no legislation of the Confederate Congress which
this Court can recognize as having any validity against the United
States or against any of its citizens who, pending the war, resided
outside of the declared limits of the insurrectionary
districts.
3. The Confederate government is to be regarded by the
Page 97 U. S. 605
courts as simply the military representative of the insurrection
against the authority of the United States.
4. To the Confederate army was, however, conceded, in the
interest of humanity and to prevent the cruelties of reprisals and
retaliation, such belligerent rights as belonged under the laws of
nations to the armies of independent governments engaged in war
against each other -- that concession placing the soldiers and
officers of the rebel army, as to all matters directly connected
with the mode of prosecuting the war, "on the footing of those
engaged in lawful war," and exempting "them from liability for acts
of legitimate warfare."
5. The cotton for the burning of which damages are claimed in
this civil action was, as to the United States and its military
forces engaged in the suppression of the rebellion, not only enemy,
but hostile property because, being the product of the soil, and,
when burned, within the boundary of the insurrectionary district,
it constituted also, as we know from the history of the
insurrection it did, "the chief reliance of the rebels for means to
purchase the munitions of war in Europe."
Young v. United
States, supra, p.
97 U. S. 39;
Mrs. Alexander's
Cotton, 2 Wall. 404. It was therefore liable at the
time to seizure or destruction by the federal army without regard
to the individual sentiments of its owner, whether the purpose of
effect of such seizure or destruction would have been to strengthen
that army or to decrease and cripple the power and resources of the
enemy.
It would seem to be a logical deduction from these doctrines --
a deduction strengthened by considerations of humanity and public
necessity -- that the destruction of the same cotton, under the
orders of the Confederate military authorities, for the purpose of
preventing it from falling into the hands of the federal army, was,
under the circumstances alleged in the special pleas, an act of war
upon the part of the military forces of the rebellion, for which
the person executing such orders was relieved from civil
responsibility at the suit of the owner voluntarily residing at the
time within the lines of the insurrection. We do not rest this
conclusion upon any authority conferred or attempted to be
conferred upon Confederate commanders by the statute of the
Confederate Congress, recited in
Page 97 U. S. 606
the special pleas. As an act of legislation, that statute can
have no force whatever in any court recognizing the federal
Constitution as the supreme law of the land. It is to be regarded
as nothing more than a declaration upon the part of the military
representative of the rebellion, addressed to Confederate
commanders, affording evidence to those adhering to the rebellion
of the circumstances under which cotton within the lines of the
insurrection might be destroyed by military commanders in the
service of the Confederate States. It however assumed to confer
upon such commanders no greater authority than, consistently with
the laws and usages of war, they might have exercised, without the
previous sanction of the Confederate legislative authorities, as to
any cotton within their military lines likely to fall into the
hands of the federal forces. They had the right, as an act of war,
to destroy private property within the lines of the insurrection
belonging to those who were cooperating directly or indirectly in
the insurrection against the government of the United States if
such destruction seemed to be required by impending necessity for
the purpose of retarding the advance or crippling the military
operations of the federal forces. Of that mode of conducting the
war on behalf of the rebellion no one could justly complain who
occupied the position of an enemy of the United States by reason of
voluntary residence within the insurrectionary district.
It is insisted with much earnestness that Surget should not be
allowed to take shelter under these doctrines, since it is not
averred in the special pleas that he constituted any part of or
held any official relations to the military forces of the
rebellion. But such a technical narrow construction of the special
pleas should not be allowed to prevail in a case like this. It is
distinctly alleged that the Confederate government was, at the time
of the burning of the cotton, exercising all the functions of civil
government within the State of Mississippi and over its property
and inhabitants. It is further alleged that the defendant was an
inhabitant and citizen of Mississippi, subject to Confederate
power, authority, and jurisdiction, and that he was ordered and
required by the provost marshal -- charged by the Confederate
department commander with the execution of
Page 97 U. S. 607
the order to burn the cotton in Adams County likely to fall into
the possession of the federal forces -- to burn the cotton on
Ford's plantation, and that it was so burned in obedience to the
act of the Confederate Congress and the orders of the military
authorities. These allegations seem to be sufficiently
comprehensive to admit evidence that the defendant acted under
duress or compulsion. Taking into consideration the extraordinary
circumstances in which the people of Mississippi were then placed,
especially the absolute authority which the Confederate government
and its military commanders were then exercising over that portion
of the territory and people of the United States, the special pleas
should be deemed, upon demurrer, as sufficiently averring the
existence of such relations between Surget and the Confederate
military authorities as entitled him to make the same defense as
any soldier, regularly enlisted in the Confederate army, acting
under like orders, could have made. Whether Surget was in fact
required to execute the order of the provost marshal does not
appear. No bill of exception was taken, and in view of the explicit
averment that Surget was required by military authority to burn
Ford's cotton, we cannot assume upon demurrer that he was a mere
volunteer to aid in its destruction.
It will be observed that we have assumed from the pleadings, as
we think we are justified in doing, that Ford resided on his
plantation in the insurrectionary district at the time his cotton
was burned. The contrary is not alleged, and was not claimed in
argument. He does not pretend that he resided in a loyal state or
adhered to the government of the Union in its efforts to suppress
the rebellion. There is no intimation that his residence in
Mississippi was in any degree constrained or temporary. Whether the
redress here sought could, consistently with the provisions of the
federal Constitution, be denied to one who, by the laws of war, is
to be deemed an enemy to the lawful government, solely by reason of
residence within the insurrectionary district pending the struggle,
but who, in point of fact, was a loyal citizen, adhering to the
United States, giving no voluntary aid or comfort to the rebellion,
it is not necessary for us now to decide. No such question is here
presented, and we forbear any expression of opinion upon it. It
will be
Page 97 U. S. 608
time enough to consider and determine that precise question when
it arises.
Our conclusion, therefore, is that the act of the Confederate
Congress recited in the special pleas was of no validity as an act
of legislation, and while the demurrers could not have been
overruled upon the ground that such unauthorized legislation
afforded protection to Surget, nevertheless the general facts set
out in the special pleas, considered in connection with the
belligerent rights conceded to the rebel army by the government of
the United States, do constitute a defense to this action, and upon
this last ground the demurrer might have been properly
overruled.
Whether the state court, in its instructions to the jury,
correctly expounded the law of the case we cannot upon this review
determine. No bill of exception was taken, either as to the
evidence or the instructions, and we cannot therefore determine
what errors, if any, were committed in the trial of the case. We
have limited our investigation altogether to the federal questions
raised by the demurrer to the special pleas.
Judgment affirmed.
MR. JUSTICE CLIFFORD concurred in the judgment of the court, and
delivered the following opinion:
Parties belligerent in a public war are independent nations, but
it is not necessary that both parties should be acknowledged as
such in order to the enjoyment of belligerent rights, as war may
exist where one of the belligerents claims sovereign rights against
the other, the rule being that when the regular course of justice
is interrupted by revolt, rebellion, or insurrection, so that the
courts of justice cannot be open, civil war exists and hostilities
may be prosecuted to the same extent as in public war.
Prize
Cases, 2 Black 666; Vattel 425.
Two hundred bales of cotton owned by the plaintiff were burned
by the defendant during the war of the rebellion at the time and
place alleged in the declaration, and the plaintiff, since the
restoration of peace, instituted the present action of trespass in
the state court to recover damages for the loss. Service was made
and the defendant appeared and pleaded the general issue and
several special pleas.
Page 97 U. S. 609
Reference need only be made to two of the special pleas:
1. That the defendant burned the cotton in obedience to an order
of the Confederate States, given through the commanding general of
their army and the acting provost marshal of the county.
2. That the Confederate Congress passed an act that it should be
the duty of all military commanders in the service of the
Confederate States to destroy all cotton, tobacco, or other
property that might be useful to the enemy (meaning the military
forces of the United States) whenever in their judgment the same
should be about to fall into their hands, and that the defendant
burned the cotton in litigation in pursuance of that act and the
said orders of the said military commander and provost marshal.
Suffice it to say in this connection the plaintiff demurred to
all the special pleas, and the subordinate court overruled the
demurrers, and the parties went to trial. Hearing was had before
the jury, and they returned a verdict in favor of the defendant.
Judgment was accordingly rendered upon the verdict, and the
plaintiff removed the cause to the high court of errors and appeals
of the state, where the parties were again heard, and the state
appellate court affirmed the judgment of the court of original
jurisdiction. No exceptions were filed by the plaintiff in either
of the subordinate courts, but he sued out the present writ of
error, and removed the cause into this Court.
Since the case was entered here, the plaintiff assigns the
following errors:
1. That the supreme court of the state erred in sustaining the
circuit court in overruling the demurrers of the plaintiff to the
special pleas filed by the defendant.
2. That the supreme court of the state erred in refusing to
grant certain instructions to the jury, which cannot be considered,
it not appearing that there was any trial by jury in the supreme
court, nor would either party be benefited if it were otherwise, as
all the material questions presented for decision in the prayers
for instruction are involved in the rulings of the court in
overruling plaintiff's demurrers to the defendant's special
pleas.
Insurrection may or may not culminate in an organized rebellion,
and it may or may not assume such aggressive
Page 97 U. S. 610
proportions as to be justly denominated territorial war, the
universal rule being that rebellion becomes such, if at all, by
virtue of its numbers and the organization and power of the persons
who originate it and are engaged in its prosecution. But when the
party in rebellion hold and occupy certain portions of the
territory of the rightful sovereign, and have declared their
independence, cast off their allegiance, and formed a new
government, and have organized armies and raised supplies to
support it, and to oppose, and if possible to destroy, the
government from which they have separated, the world and the law of
nations acknowledge them as belligerents engaged in civil war,
because they claim to be in arms to establish their liberty and
independence in order to become a sovereign state.
History furnishes many examples of war between the government
de jure of a country and a government
de facto of
a seceding portion of the same country, and in such cases jurists
hold that other powers are entitled to remain indifferent
spectators of the contest, and to allow impartially to both
belligerents the free exercise of those rights which war gives to
public enemies against each other, such as the right of search, the
right of blockade, the right of capturing contraband of war and
enemy's property laden in neutral vessels. Twiss, Law of Nations
(2d ed.) sec. 239.
Rebellions of the kind, when they become too formidable to be
suppressed by the duly constituted civil authorities, authorize the
de jure government to blockade the ports within the
territory occupied by the insurgents and to notify the same to
foreign powers that the same will be enforced pursuant to the law
of nations. Official notice of such a proclamation makes it the
duty of foreign nations to conform to the international rules of
war in that regard, and the same jurist says that the foreign power
must at once decide upon one of three alternative courses of
action. It may assist the government
de jure as an
independent power, or it may assist the insurgents, in either of
which cases it becomes a party to the war, or it may remain
impartial, still continuing to treat the government
de
jure as an independent power whilst it treats the insurgents
as a community entitled to the rights of war against its adversary.
Such a concession is indispensable, as the neutral power will
Page 97 U. S. 611
find it impossible to recognize the character of one as a
belligerent without recognizing the belligerent character of the
other, unless the war is confined entirely within the territory of
the contending parties and does not extend in any respect to the
highway of nations.
Id., p. 500.
Belligerents engaged in war may exercise the right of blockade,
and they may capture contraband of war and enemies' property laden
in neutral vessels; and if so, the contest, though it originated in
rebellion, must in the progress of events, when it assumes such
proportions as to be justly denominated civil war, be recognized as
entitling both parties to the rights of war just as much as if it
was waged between two independent nations.
Lawful blockade can only be established by a belligerent party,
the rule being that a neutral country has a right to trade with all
other countries in time of peace, and when in time of war the right
is subjected to the conditions or restrictions resulting from
blockade, the interruption of the untrammeled right can only be
justified because the party imposing the conditions and
restrictions is invested with belligerent rights under the law of
nations.
Ex parte Chavasse, In re Grazebrook, 4 De G., J.
& S. 655;
The Helen, Law Rep. 1 Ad. & Ec. 1;
DeBurgh, Marine Int.Law, 123;
The
Trinidad, 7 Wheat. 340.
Independent powers at war may seize and confiscate all
contraband goods, without any complaint the part of the neutral
merchant, and that right is conceded even when one of the parties
is not acknowledged as a
de jure government, in case of
insurrection, where the contest has assumed such proportions as
justly constitute it a civil war in the international sense. 1 Kent
Com. (12th ed.) 92.
Other nations as well as the United States conceded belligerent
rights to the Confederate States, as all admit, which renders it
unnecessary to inquire whether the concession was rightful or
premature. Matters to be taken into the account in determining such
a question, it is said, are whether the insurgents present the
existence of a
de facto political organization, sufficient
in character, population, and resources to constitute it, if left
to itself, a state among the nations reasonably capable of
discharging the duties of such an organization.
Page 97 U. S. 612
Due weight should be given to the then-existing character of the
actual conflict, having respect to the military force on each side
and the action of the parties in conducting military operations
against each other, as whether or not they conduct such operations
in accordance with the rules and customs of war, as by the use of
flags of truce, cartels, and exchange of prisoners, and whether the
parent state treats captured insurgents as prisoners of war.
Inquiry may also properly arise whether the insurgents have
employed commissioned cruisers at sea and whether the rightful
government has exercised the right to blockade the ports of the
insurgents against neutral vessels engaged in military commerce,
and that of stopping and searching neutral vessels engaged in
maritime commerce. If all these elements exist, says Dana, the
condition of things is undoubtedly war, and it may be war before
they are all ripened into activity. Dana's Wheaton, p. 34,
note.
Apply those rules to the case, and it is as clear as anything in
legal decision can be that the Confederate States were belligerents
in the sense attached to that word by the law of nations. During
the military occupation of the territory within the Confederate
lines, the sovereignty of the United States was so far suspended
that the federal laws could no longer be enforced there, and the
inhabitants passed under a forced allegiance, and were bound by
such laws as the usurping government saw fit to recognize and
impose.
United States v.
Rice, 4 Wheat. 254.
"Civil war," says Vattel,
"breaks the bands of society and government, or at least
suspends their operation and effect, for 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 thenceforward constituting, at least
for a time, two separate bodies, two distinct societies. Though one
of the parties may have been to blame in breaking the unity of the
state and resisting the lawful authority, they, the two parties,
are not the less divided in fact. . . . They stand therefore in
precisely the same predicament as two nations who engage in a
contest and, being unable to come to an agreement, have recourse to
arms. "
Page 97 U. S. 613
Publicists and courts of justice everywhere concur in these
sentiments and in certain corollaries which the author deduces from
the attending circumstances, to-wit, that the common laws of war --
those maxims of humanity, moderation, and justice previously
pointed out -- ought to be observed by both parties in such a
conflict. Vattel 425.
For the same reasons which render the observance of those maxims
a matter of obligation between state and state, it becomes equally
and even more necessary in the unhappy circumstance of two incensed
parties in the case of civil war. Should the sovereign conceive
that he has a right to hang up his prisoners as rebels, the
opposite party will make reprisals, as in the example given in the
note, and if he does not observe the terms of the capitulations and
all other conventions with his enemies, they will no longer rely on
his word. Should he burn and ravage, they will follow his example
and the war will become cruel, horrible, and every day more
destructive to the nation.
War, it is said, may exist without a formal declaration, and the
decision of the Court is that the laws of war as established among
nations have their foundation in reason, and tend to mitigate the
cruelties and miseries which such conflicts produce.
Prize
Cases, 2 Black 669. Hence, said the Court, the
parties to a civil war usually concede to each other belligerent
rights, for they exchange prisoners and adopt the other courtesies
and rules common to public or national war; nor is it necessary
that the independence of the revolted province or state should be
acknowledged in order to constitute it a party belligerent in a war
according to the law of nations, and the reason given for the rule
is one of frequent illustration, which is that foreign nations
acknowledge it as war by a declaration of neutrality, of which two
examples are given in the opinion of the Court from which these
rules are drawn.
1. When the United States recognized the existence of civil war
between Spain and her colonies.
The
Trinidad, 7 Wheat. 283, 327 [argument of counsel --
omitted].
2. When the Queen of England issued her proclamation of
neutrality recognizing hostilities as existing between the United
States and the Confederate States.
Other nations followed with a similar declaration or by
silent
Page 97 U. S. 614
acquiescence, and in speaking of that fact, this Court said that
a citizen of a foreign state, in view of such a recognition, 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 of the human race, and
thus cripple the arm of the government and paralyze its power.
Such a war usually operates as a temporary suspension of
obedience of the revolting party to the lawful sovereign, but other
nations may, until the revolution is consummated, remain
indifferent spectators of the controversy, treating the government
as sovereign and the new government as a society entitled to the
rights of war against its enemy, or they may espouse the cause of
the party which they believe to have justice on its side. In the
first case, the foreign state fulfills all its obligations under
the law of nations and neither party has any right to complain,
provided that it maintains an impartial neutrality; but in the
latter case, the foreign state becomes the enemy of the party
against which it declares and the ally of the other. Lawrence's
Wheaton 40 and notes.
Belligerent rights cannot be exercised when there are no
belligerents. Conquest of a foreign country, if permanent, gives
absolute and unlimited right; but no nation can make such a
conquest of its own territory. If a hostile power, either from
without or within a nation, takes possession and holds absolute
dominion over any portion of its territory, and the nation by force
of arms expels or overthrows the enemy and suppresses hostilities,
it acquires no new title, but merely regains the possession of what
it had been temporarily deprived.
Id., 605;
The Amy
Warwick and Cargo, 24 Law Reporter 494.
Cotton was the article destroyed, which was the subject during
the war of special legislation by each belligerent power. It was
treated by the army, the navy, and the civil arm of each as
possessing extraordinary qualities and as different from other
property, even in the hands of noncombatants. It formed the basis
of the credit which the Confederates were seeking to establish
abroad for the prosecution of the war. Its retention in the
Southern states and withdrawal from market except
Page 97 U. S. 615
when for war purposes were considered by the Confederate
authorities as of vital importance, for it was hoped that its
withdrawal from market would hasten a recognition of the
independence of the states in rebellion and the raising of the
blockade which was destroying their resources and crippling their
armies.
Prior to the burning of the cotton, the Confederate Congress had
directed by a legislative act, as a war measure, that cotton and
tobacco liable to fall into the hands of the federal forces should
be destroyed, and the history of the period shows that immense
quantities of these articles were accordingly destroyed.
Regulations upon the subject were adopted by the authorities of the
United States, and those regulations, as well as the decisions of
the federal courts, show that both the civil and military
authorities deemed it of great importance to prevent its
accumulation in the hands of the Confederate authorities.
Capture of cotton, says Mr. Chief Justice Chase, seems to have
been justified by the peculiar character of the property and by
positive legislation. It is well known that cotton constituted the
main reliance of the rebels to purchase the munitions of war in the
foreign market, and it is matter of history that rather than permit
it to come into the possession of the national troops, the rebel
government everywhere devoted it, however owned, to destruction.
Mrs. Alexander's
Cotton, 2 Wall. 420.
Judicial history shows that, early in 1861, the authorities of
seven states, supported by popular majorities, combined for the
overthrow of the national Union and for the establishment within
its boundaries of a separate and independent confederation.
Pursuant thereto, a governmental organization representing those
states was established at Montgomery, first under a provisional
constitution and afterwards under a constitution intended to be
permanent. In the course of a few months, four other states acceded
to that confederation, and the seat of the central authority was
transferred to Richmond. It was by the central authority thus
organized and under its direction that civil war was prosecuted
upon a vast scale against the United States for more than four
years, and its power was recognized as supreme in nearly the whole
of the territory of
Page 97 U. S. 616
the states confederated in insurrection.
Thorington
v. Smith, 8 Wall. 7.
Difficulty, says the Chief Justice, would attend the effort to
define the precise character of such a government, but he continues
to remark to the effect that the principles relating to
de
facto government will conduct to a conclusion sufficiently
accurate. Examples of a
de facto government are given by
him, where the usurpers expelled the regular authorities from their
customary seats and functions, and established themselves in their
places, and so became the actual government.
Such adherents to a usurping party in certain cases may not
incur the penalty of treason, as the
de jure government
when restored usually respects their public acts; but the
Confederate States were never acknowledged by the United States as
a
de facto government in that enlarged sense. Instead of
that, it was regarded as simply the military representative of the
insurrection, notwithstanding the duration and vast proportions of
the revolt. Eleven states were engaged in it, and the prior
existing governments were overthrown and new governments erected in
their stead, in violation of the Constitution and the acts of
Congress, and yet it cannot be denied but that by the use of these
unlawful and unconstitutional means a government in fact was
erected, greater in territory than most of the European
governments, complete in the organization of all its parts,
containing within its limits more than eleven millions of people,
and of sufficient resources in men and money to carry on a civil
war of unexampled dimensions from the period of its commencement to
its final termination, during all of which time many belligerent
rights were conceded to it by the United States, such as the
treatment of captives both on land and sea as prisoners of war, the
exchange of prisoners as in international war, their vessels
captured recognized as prizes of war and dealt with accordingly,
their property seized on land referred to the judicial tribunals
for adjudication, their ports blockaded and the blockade maintained
by a suitable force, and notified to neutral powers the same as in
open and public war.
Mauran v. Insurance
Company, 6 Wall. 1.
Governments
de facto are described by Mr. Chief
Justice
Page 97 U. S. 617
Chase as divided into classes, and, after having given a
description of two of the classes, he remarks that there is
another, called by publicists a
de facto government, but
which might perhaps be more aptly denominated a government of
paramount force. Its distinguishing characteristics as given by
that magistrate are as follows:
1. That while it exists, it must necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in
submission to such force, do not become responsible as wrongdoers
for those acts, though the acts are not warranted by the rightful
government. Actual governments of this sort are established over
districts differing greatly in extent and conditions. They are
usually administered directly by military authority, but they may
be administered also by civil authority, supported more or less
directly by military force.
2. Historical examples are then given of that sort of
de
facto government, to-wit, the temporary government at Castine
during the war of 1812 and the temporary government at Tampico
during the Mexican War.
United States v.
Rice, 4 Wheat. 253;
Fleming v.
Page, 9 How. 615;
The
Nuestra Senora, 4 Wheat. 502.
Those were cases where regular enemy governments acquired the
temporary possession of territory during war with the country of
which the territory so possessed was a part, and this Court
adverted to that difference in the case under consideration, but
decided unanimously that the government of the insurgent states
must be classed among the governments of which those are examples.
Among the reasons assigned in support of the conclusion were the
following:
1. That rights and obligations of belligerence were conceded to
it in its military character very soon after the war began, from
motives of humanity and expediency.
2. That the whole territory controlled by it was thereafter held
to be enemies' territory, and the inhabitants of the territory were
held, in most respects, as enemies, and, as a final conclusion, the
Court decided that to the extent of the actual supremacy
maintained, however unlawfully acquired, the power of the insurgent
government cannot be questioned.
Thorington v.
Smith, 8 Wall. 11; Halleck, Int.Law, c. 3, sec. 21,
p. 74;
United States v.
Klintock, 5 Wheat. 144,
18 U. S.
150.
Page 97 U. S. 618
Attempt was made early in the war of the rebellion to maintain
the theory that the officers and seamen of the Confederate cruisers
were pirates, and not entitled to belligerent rights in case of
capture. Ships and cargoes at sea were destroyed by such cruisers,
and the owners, holding policies of insurance, brought suits to
recover for the loss. Payment in certain cases was refused, the
defense being that the policies did not cover the loss where the
capture was by pirates. Such a case was presented to the Supreme
Court of Massachusetts, but the court decided that the persons who
seized and burned the ship were not to be regarded as pirates
within the ordinary signification of that word as used in the law
of nations or as commonly understood and applied in maritime
contracts and adventures; that they were not common robbers and
plunderers on the high seas. The court admitted that the acts of
the cruisers were unlawful, and that they could not be justified in
the courts of justice, but it proceeded to state that the proofs
offered showed that they acted under a semblance of authority which
took their case out of that class which can be properly termed
ordinary piracy; that the proofs offered showed that they sailed
under a letter of marque issued by a government
de facto,
claiming to exercise sovereign powers, and to be authorized to
clothe their officers and agents with the rights of belligerents
and to send out armed cruisers for the purpose of taking enemy's
vessels
jure belli.
Nor is that all. It was also offered to be proved that at the
time of the loss the
de facto government had proceeded to
raise armies and put them into the field, by which an actually
existing state of war between it and the United States was created,
which had led two of the leading nations of Europe to recognize the
persons who had thus conspired together against the authority of
the United States as exercising the rights and entitled to the
privileges of a belligerent power. Such a seizure, under such
circumstances, by an armed cruiser of such
de facto
government, the court held was a capture within the meaning of the
policy, and that the insurers were not liable for the loss.
Dole v. Merchants' Mutual Marine Insurance Co., 6 Allen
(Mass.) 373;
Planters' Bank v. Union
Bank, 16 Wall. 495.
Page 97 U. S. 619
Two cases of a similar character were pending at the same time
in the circuit court of the United States for that district, both
of which were decided in favor of the insurers upon the same
ground. In the first case, the facts were agreed between the
parties, as will be seen by the report of the case.
Dole v. New
England Mutual Marine Insurance Co., 2 Cliff. 394. Both judges
sat in the case, and their united opinion is fully reported. They
decided that where a ship was taken and burned by the commander of
a rebel privateer during the late rebellion, the capture was not a
taking by pirates or assailing thieves, inasmuch as it appeared
that the policy was executed before the rebellion broke out and
that the commander acted under a commission in due form issued by
the government of the rebellious states, and it appears that both
parties acquiesced in the decision of the court.
Nor could they well do otherwise, as the agreed statement showed
that the rebel states before the loss occurred had organized a
confederacy and a government for the same, and had established a
written constitution; that such a form of government was in fact
organized in all its departments -- legislative, executive, and
judicial; that they had raised and organized an army and created a
navy, elected a congress, and published a legislative act declaring
that war existed between the United States and the Confederate
States, and providing measures for its vigorous prosecution; that
they were carrying on hostilities at the time the loss occurred
against the United States by land and sea, and were in the exercise
of all the functions of government over all the territory within
their actual military limits.
Pressed with those facts, the plaintiff abandoned the further
prosecution of the claim in the first suit and sued out a writ of
error in the second, which was subsequently heard and decided in
this Court.
Mauran v. Insurance
Company, 6 Wall. 1. Offers of proof in this case
occupied the place of an agreed statement of facts in the other,
but the Supreme Court affirmed the judgment of the circuit court,
holding that the Confederate States were in the possession of many
of the highest attributes of government, sufficiently so to be
regarded as the ruling or supreme power of the country within their
military dominion,
Page 97 U. S. 620
and that captures made by their cruisers were excepted out of
the policy by the warranty of the insured.
Questions of the same character were also presented to the
Supreme Court of Pennsylvania about the same time as those
presented to the Supreme Court of Massachusetts, where the
questions were decided in the same way.
Fifield v. Insurance
Company of Pennsylvania, 47 Pa.St. 166. Three opinions were
given in the case in addition to the opinion of the court delivered
by the Chief Justice. His first effort was to show that the cruiser
was not a pirate, in which he remarked that if she was not a
privateer, she was a pirate, and that if she was a privateer, she
was made so by the commission she bore, the legal effect of which
must depend upon the status of the Confederate States, in respect
to which his conclusion was that any government, however violent
and wrongful in its origin, must be considered a
de facto
government if it was in the full and actual exercise of sovereignty
over a territory and people large enough for a nation, and he
quotes Vattel in support of the proposition, and finally decided
that the cruiser was a privateer and not a pirate, and that the
loss was a capture within the excepting clause of the policy, and
not a loss by pirates, rovers, or assailing thieves. Emerigon,
Ins., c. 12, secs. 28, 412.
Mr. Justice Strong concurred in the judgment and gave an
elaborate opinion in which he stated that he could not doubt that
these revolting states, confederated as they had been, claiming and
enforcing authority as they had done, were to be regarded as a
government
de facto.
Two objections to that proposition had been made at the bar:
1. That their claim of sovereignty had been constantly
opposed;
2. That their boundaries were uncertain and undefined -- to both
of which the judge responded to the effect that neither of the
objections were satisfactory: that they were none the less a
government
de facto because they had had no interval of
peaceful existence, nor because the geographical boundaries of the
district over which their power is exclusively felt were not well
defined.
Antecedent to that, the same court decided a similar case, which
was also a marine risk, in the same way. Two points ruled by the
court in that case are pertinent to the present
Page 97 U. S. 621
investigation:
1. That the loss was covered by the policy, it being a case of
capture by armed men professing to act under and by authority of
the Confederate States.
2. That the government of the United States had so conducted the
contest and so treated the Confederate States as to make it a war
in substance as essentially as it could be between foreign powers.
Monongahela Insurance Co. v. Chester, 43 Pa.St. 49;
Hamilton v.
Dillin, 21 Wall. 87.
Support to that proposition, of a decisive character, is found
in the opinion of the court in the
Prize Cases, in which
Mr. Justice Grier says it is no loose, unorganized insurrection,
having no defined boundary or possession. It has a boundary marked
by lines of bayonets, and which can be crossed only by force. South
of this line is enemies' property, because it is claimed and held
in possession by an organized, hostile, and belligerent power.
Prize
Cases, 2 Black 674.
Corresponding litigation arose about the same time in other
courts, and among the number in the Supreme Court of Maine, where
the case was argued by the same eminent counsel as in that cited
from the Massachusetts reports.
Dole v. Merchants' Mutual
Marine Insurance Co., 51 Me. 465. Somewhat different views are
expressed by the court, but it admits in conclusion that the
decision might have been placed on a different ground, and proceeds
to remark that war in fact existed at the time of the loss; that
hostile forces, each representing a
de facto government,
were arrayed against each other in actual conflict. Its existence,
says the court, would not have been more palpable or real if it had
been recognized by legislative action, and though it was a civil
war, it was not the less a capture for that reason. 51
id.
478;
Horn v.
Lockhart, 17 Wall. 570.
During the late rebellion, the Confederate States and the states
composing it, said the Supreme Court of North Carolina, were to all
intents and purposes governments
de facto with reference
to citizens who continued to reside within the Confederate lines;
hence the Confederate States and the Constitution of the state and
the acts of their congress constituted, as to such citizens, during
the rebellion, the law of the land.
Franklin v. Vannoy, 66
N.C. 145;
Reynolds v. Taylor, 43 Ala. 420.
Page 97 U. S. 622
Where cotton was destroyed during the late war between the
Confederate States and the United States by order of the county
provost marshal, acting in obedience to the orders of the
Confederate commanding general, the Supreme Court of Mississippi
held that the agent who obeyed these orders is not liable in an
action by the owner to recover the value of the property, the court
holding that the Confederate States had the rights of a belligerent
power, and that it is a legitimate belligerent right to destroy
whatever property is the subject of seizure and condemnation, in
order to prevent its falling into the hands and coming to the use
of the enemy.
Ford v. Surget, 46 Miss. 130. Exceptional
cases supporting the opposite view may be found in the state
reports; but they are not in accord with the decisions of this
Court, and are in direct conflict with the great weight of
authority derived from the same source.
Without due examination, it may be supposed that support to the
opposite theory is derived from the recent decision of this Court
in which it is held that certain confiscation proceedings
prosecuted under an act passed by the Confederate Congress are
void; but it requires no argument to show that the remarks upon the
subject in the opinion of the Court were wholly unnecessary to the
decision, as the proceedings were obviously in aid of the
rebellion, the intent and purpose of the prosecution having been to
raise means to prosecute war against the United States.
Conrad
v. Waples, 96 U. S. 279.
Authorities to show that all such acts are void are too numerous
for citation, no matter what may have been the status of the
Confederate States.
Certain decisions of this Court hold that the acts of a body
exercising an authority in an insurgent state as a legislature must
be regarded as valid or invalid, according to the subject matter of
legislation; but the Chief Justice decided in the case hereafter
referred to that the governor, legislature, and judges of the State
of Virginia, during the war, constituted a
de facto
government, giving as a reason for the conclusion that they
exercised complete control over the greater part of the state,
proceeding in all the forms of regular organized government, and
occupying the capital of the state.
Evans v. City of
Richmond, Chase Dec. 551.
Page 97 U. S. 623
Beyond all doubt, the Confederate government at the period of
the alleged wrong was the supreme controlling power of the
territory and people within the limits of their military dominion,
and it is equally certain that the citizens resident within those
limits were utterly destitute of means to resist compliance with
military orders emanating from the commanding general, especially
when given in obedience to an act of the Confederate Congress.
United States v.
Grossmayger, 9 Wall. 75;
Sprott v.
United States, 20 Wall. 459.
Cotton during the war was regarded by both belligerents as the
subject of seizure and condemnation, and as falling within that
class of property which a belligerent might destroy to prevent its
falling into the hands of the enemy and augmenting his resources.
Proof that the orders were given as alleged is sufficient, as that
is fully admitted by the demurrer.
Unless the Confederate States may be regarded as having
constituted a
de facto government for the time or as the
supreme controlling power within the limits of their exclusive
military sway, then the officers and seamen of their privateers and
the officers and soldiers of their army were mere pirates and
insurgents, and every officer, seaman, or soldier who killed a
federal officer or soldier in battle, whether on land or the high
seas, is liable to indictment, conviction, and sentence for the
crime of murder, subject of course to the right to plead amnesty or
pardon, if they can make good that defense. Once enter that domain
of strife, and countless litigations of endless duration may arise
to review old animosities and to renew and inflame domestic
discord, without any public necessity or individual advantage.
Wisdom suggests caution, and the counsels of caution forbid any
such rash experiment.
Viewed in the light of these suggestions, I am of the opinion
that there is no error in the record, and that the decree of the
supreme court of the state should be affirmed.