Слике страница
[ocr errors]

rights, arising out of a state of war, are vested in him as commander-in-chief of the army and navy.

But, war declared by Congress, is not the only war within the contemplation of the Constitution. In clause 15, art. 1, § 8, among the legislative pow. ers is this: 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,' and the legislature, in execution of this power, passed the act of 1795 (1 Statutes at Large, 424), vesting in the President, under the terms set forth in the statute, discretion. ary power over the militia, in the cases enumerated in the 15th clause of $ 8, article 1. The status of foreign nations whose provinces or dependencies are in revolution, foreign invasion of our own country, and insurrection at home, are political questions, determinable by the executive branch of our govern. ment. I refer on this subject to the following cases in the Supreme Court of the United States. The Santissima Trinidad (7 Wheaton, 305):

" This court has repeatedly decided that it will not undertake to determine who are sovereign states, but will leave that question to be settled by the other departments who are charged with the external affairs of the country, and the relations of peace and war. It may, however, be said, that both the judiciary and the Executive have concurred in affirming the sovereignty of the Spanish colonies now in revolt against the mother country. But the obvious answer to this objection is, that the court, following the executive department, have merely declared the notorious fact, that a civil war exists between Spain and her American provinces, and this, so far from affirming, is a denial of the sove.


reignty of the latter. It would be a public and not a civil war if they were sovereign states. The very object of the contest is to decide whether they shall be sovereign and independent or not; all that the court has affirmed is that the existence of this civil war gave to both parties all the rights of war against each other.'

“In cases of invasion by a foreign power or insurrection at home, in which cases, under the act of 1795, the President may call out the militia, the Supreme Court, in 12 Wheaton (case of Martin vs. Mott), pages 29, 30, says it is exclusively with the President to decide whether the exigencies provided for have arisen. These also are political questions, determinable by the Executive alone, and the courts follow that branch of the government. In this In this case, at page 32, the Supreme Court

, says: 'It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself.'

“Whether insurrection has grown to such a head, has become so formidable in power, as to have culminated in civil war, it seems to me must also belong, as to its decision, to the same political branch of the government. The President, in his proclamation relating to the blockade of the ports of the Confederate States, calling out seventy-five thousand militia to suppress insurrection, and the resistance to the Federal laws, alleges that nine states have so resisted,' and have threatened to issue letters of marque to authorize the bearers thereof to commit assaults against the vessels, property, and lives

[ocr errors]

of citizens engaged in commerce on the high seas and in the waters of the United States; that public property of the United States has been seized, the collection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody as prisoners, or have been impeded in the discharge of their official duties, without due legal process, by persons claiming to act under authorities of the states of Virginia and North Carolina, an efficient blockade of the ports of those states will also be established.'

“These facts, so set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists.

“Blockade itself is a belligerent right, and can only legally have place in a state of war; and the notorious fact that immense armies, in our immediate view, are in hostile array against each other in the Federal and Confederate States, the latter having organized a government and elected officers to administer it, attests the Executive declaration that civil war exists; a sad war, which if it must go on, can only be governed by the laws of war, and its evils mitigated by the principles of clemency, engrafted upon the war code by the civilization of modern times.

“Nor does the assertion of the right in the proclamation of the 19th of April, 1861, to proceed against privateersmen, under the laws of the United States, as pirates, militate against the construction I have above given, of the two proclamations as averring the existence of civil war.

“In the case of Rose vs. Himely (4 Cranch, 272,


273), Chief-Justice Marshall, in delivering the opinion of the court, says: 'It is not intended to say, that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If, as a legislator, he publishes a law ordaining punishments for certain of fences, which law is to be applied by courts, the nature of the law and the proceedings under it, will decide whether it is an exercise of belligerent rights, or exclusively of his sovereign power; and whether the court, in applying this law to particular cases, acts as a prize court, or as a court enforcing munici. pal regulations.'

“In this case I am sitting in admiralty, adjudging a question of prize, under a capture for alleged violation of blockade.

“I do not find, on examination of the writers on public law, any difference as to belligerent rights, in civil or foreign war, and Judge Story, in the 7th Wheaton, as heretofore cited by me, says they are the same. Blockade, being one of the rights inci. dent to a state of war, and the President, having in substance asserted civil war to exist, I am of opinion that the blockade was lawfully proclaimed by the Executive.”

The next case in order of time of adjudication, Case of The is that of The General Parkhill, decided in the Dis- hill. United trict Court of the United States for the Eastern Court for the District of Pennsylvania.

This vessel was captured on the 12th of May, sylvania.

General Park

States District

Eastern Dis. trict of PennJustice Cad. wallader.

[ocr errors]
[ocr errors]

1861, while attempting, as alleged, to violate the blockade of Charleston, South Carolina, and sent for adjudication to the port of Philadelphia.

The claim interposed on behalf of the owners of the captured property, described the claimants as “of the city of Charleston, in the state of South

Carolina, and citizens of the United States." Opinion of Mr. “They are,” says the court, “ by their own show

ing, commercial residents of South Carolina. The question which thus arises, independently of that of blockade, is whether, in the present hostile relation of South Carolina, a resident of that state can sustain a proprietary claim of restitution in a prize court of the United States."

The general proposition established in the law of nations, is thus clearly stated :

“ One of the purposes of naval warfare, is to diminish the power of hostile governments, or of other hostile organizations, by the indiscriminate maritime capture of the private property of all

persons, residing in places within hostile dominion, or in permanent or temporary hostile occupation. The capture and confiscation of such property, by destroying or suppressing the maritime trade of such places, diminishes, and thus reduces the power of their hostile rulers. The liberation of the property when captured, whether the individual residents who owned it are personally well or ill affected in feeling toward the government of the captors, would restore its value in wealth to the hostile place."

The court then proceeds to enforce this doctrine, as well by historic illustration as by citation of judicial authority, showing it to have been applied

« ПретходнаНастави »