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whatever its organization, and however formidable its dimensions; that even under monarchical or other forms of government, without written constitutions, there is no authority for the position, that a state of war, with the incidents of public war, results from an armed insurrection, occupying portions or districts of an empire or kingdom, in the absence of any decree, edict, or act of legislation of the supreme power.
It was further argued, that if war, with its attendant consequences, did not exist as the result alone of the armed insurrection, it could not lawfully be called into existence by the mere exercise of the powers confided to the President by the Constitution of the United States, and the laws made in pursuance thereof, for the suppression of insurrection, because, by the terms of the Constitution, war can only be declared or called into existence by an act of the Congress of the nation.
It was therefore argued, that captures made prior to any legislative enactment, and which could be upheld solely under the law of nations, as affecting commerce during the existence of public war, were without warrant of law, and should be so decreed, hy restitution of the captured property.
These positions were presented and illustrated with great ability and learning by the distinguished advocates, who represented the interests of neutral or rebel claimants, in the Federal courts of prize.
How they were met and answered will be best Judicial detershown by liberal extracts from the opinions of the mination of
these objeceminent judges presiding in those courts.
The case first decided was that of The Tropic
Court for the District of ('oc lumbia.
The case of the Wind, in the District Court for the District of U. S. Disirict Columbia.
This case assumed a peculiar interest, not only because it was the first which arose under the proclamation of blockade, but because the prize was a British vessel, and it was understood that Her Britannie Majesty's representative at Washington, assuned, to some extent, the direction of the defence, in order that the grave questions involved, affecting . the rights of neutral commerce, should be thoroughly and ably presented and sustained.
The vessel was captured on the 21st of May, 1861, near the mouth of James River, by the United States ship Monticello, for the violation of the blockade of Richmond, by egress from that port, which she had entered prior to the proclamation.
Passing over the incidental, yet interesting ques. tions, which were raised in the case, as to notice of the blockade, the time when it became effective, the time allowed neutral vescels to depart, and the effect of taking in a cargo in a blockadel port, after notice of the blockade; in this connection it is proposed to limit quotation, to the language of the court in discussing and deciding the fundamental questions involved in the adjudication.
Upon these, the learned judge says: Opinion of Mr. “ The authority of the President to institute the Justice Dunlop.
blockade, is denied by the respondents, who insist that this power, under the Constitution of the Uni. ted States, can only be exercised by the national legislature. And this is the first question to be considered.
“It is true no department of the Federal govern
ment can exercise any power not expressly conferred on it by the Constitution of the United States, or necessary to give effect to granted powers; all others are reserved to the states respectively, or to the people. In the second article, second section of the Constitution of the United States, is this provision : The President shall be commander-inchief 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.'
" In the war with Mexico, declared by Congress to exist by the act of Mexico (see 9 Statutes at Large, page 9), the Supreme Court have maintained, in two cases, that the President, without any act of Congress, as commander-in-chief of the army and navy, could exert the belligerent right of levying contributions on the enemy, to annoy and weaken him. In the case of Fleming et al. vs. Page (9 Howard, 615), the present Chief Justice says: “As commander-in-chief he is authorized to direct the movements of the naval and military forces, placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. Again, at page 616 : The person who acted in the character of collector, in this instance, acted as such, under the authority of the military commander, and in obedience to his orders, and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the President, in his character of commander-in-chief. The custom-house was established in an enemy's country as one of the weapons of war. It was established, not for the purpose of giving the people of Tamaulipas the benefit of commerce with the United States, or with other countries, but as a measure of hostility, and as a part of the military operations in Mexico; it was a mode of exacting contributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and the burdens of the war. The duties required to be paid, were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of war justify, when an army is operating in the enemy's country.
“The other case to which I allude is Cross et al. vs. Harrison (16 Howard, 189, 190). Judge Wayne in delivering the opinion of the Supreme Court, says: 'Indeed, from the letter of the secretary of state, and from that of the secretary of the treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct recognition under all the circumstances, and when we say rightful we mean that it was constitutional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. California, or the port of San Fran. cisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward, the United States had military possession of all the Upper California. Early in 1847 the President, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of our forces in California, to exercise the bellig. erent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army, which had the conquest in possession, &c. No one can doubt that these orders of the President, and the action of our army and navy commanders in California, in conformity with them, was according to the law of arms,' &c. (See also pages 191, 193, 195, 196, 201.)
“ Blockade is a belligerent right under the law of nations where war exists, and is as clearly defined as the belligerent right to levy contributions in the enemy's country. As the Supreme Court hold the latter power to be constitutionally in the President, without an act of Congress, as commander-in-chief of the army
and navy, it follows necessarily that the power of blockade also resides with him ; indeed it would seem a clearer right, if possible, because, as chief of the navy nobody can doubt the right of its commander to order a fleet or a ship to capture an enemy's vessel at sea, or to bombard a fortress on shore, and it is only another mode of assault and injury to the same enemy, to shut up his harbors, and close his trade, by the same ship or fleet. The same weapons are used. The commander only varies the mode of attack.
“In the 1st article, § 8, clause 11, of the Con. stitution, under the legislative head, power is granted to Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." These powers are therefore solely confided to and within the control of the legislature, and cannot be exercised by the President. The President cannot declare war, grant letters of marque, &c., though all other belligerent