« ПретходнаНастави »
adjudicated in the District Court in New York. And here it is proper to state, that these adjudications in the several districts, of Columbia, of Pennsylvania, of New York, of Massachusetts, and of Maryland, were so nearly simultaneous, that the eminent judges had no opportunity of consultation, and their respective opinions may therefore be regarded as independent authorities upon the important questions submitted to them.
It is for this reason, superadded to that of the absorbing interest of the questions themselves, that a more liberal quotation from the respective opinions is indulged in, than might be desirable, if either of the learned judges had been controlled in his determination by the precedent of the other.
The cases in which the fundamental questions The cases of were discussed and determined, in the district of The Hiawatha, New York, were ten in number, and as follows: Carolina, The Hiawatha, The North Carolina, The Pioneer, The Crenshaw,
The Winnifred, The Crenshaw, The Winnifred, The Hannah M. Johnson, The Lynchburg, The General Green, The M. Johnson, Hallie Jackson, and The Forest King.
By consent, they were considered together, so far Hallie Jackson, as the fundamental questions were concerned, as and The Forest one case; but the utmost latitude of discussion was States District accorded by the court, to an array of counsel of Southern Disdistinguished ability, who represented the vast trict of New pecuniary interests of the respective claimants, and the questions raised were presented by them, sev. erally, in exhaustive arguments of nine days duration, and were subsequently enforced by elaborate printed briefs. A statement of the facts of one case will suffice for all.
The ship Hiawatha, a British vessel, arrived in
The Lynchburg, The Gen
Court for the
the James River, at City Point, a little below Richmond, on a voyage from Liverpool, with a cargo of salt, on the 29th of April, 1861, one day prior to the date of the proclamation of Commodore Pendergrast, announcing the effectiveness of the blockade of that river, which was ordered by the Executive proclamation, of the 19th of April
. The voyage of the ship was projected, to include a return to Liverpool, with a cargo of cotton and tobacco. Such cargo was laden on board, in the blockaded port, on and after the 11th day of May ensuing, and on the 16th day of May, the same being after the expiration of the fifteen days from the actual establishment of the blockade (allowed to neutral vessels to leave the blockaded ports, as they were with respect to cargo, at the time they first knew of the blockade), the ship, with her cargo thus laden on board, commenced her voyage out of the river, and was captured outside, by one of the blockading vessels.
As will be seen by this statement, there were subordinate questions of interest, involved in this adjudication, as was also the case in the proceedings against the other vessels. These questions and their determination, are noticed in their proper connection. That portion only of the opinion of the distinguished judge will be here given, which directly relates to the fundamental questions com. mon to all the cases.
After a brief review of the nature and character of the jurisdiction and proceedings of prize courts, and a lucid, preliminary statement of the points raised and presented in the arguments, the learned judge says:
“It is insisted on the part of the defence, that Opinion of Mr. the President, under the Constitution, had no power, upon the facts before the court, to institute, declare, or recognize, by executive acts, a condition of war between the United States and the insurgents and their forces, which will carry with it, in behalf of the United States, the incidents of a public war, in relation to their enemies in this contest, and also to neutral nations, as between them and this
gov. ernment. As consequent to that position, it is urged that the steps taken by the President to establish a blockade of ports in the possession of the insurgents, are inoperative and void to that end, because the insurgents cannot be, within the meaning of the public law, enemies of the United States, but are only citizens of the same country in a state of internal and domestic contention; and because the President has no authority, under the Constitution and laws of the United States, to declare and impose a blockade of any port or place, and particularly not of one within the limits of the United States; and further, that the preliminaries and conditions indispensable to a valid blockade, by the law of nations, have not been observed and fulfilled in any of the cases now on hearing.
“It is first to be observed in respect to the general bearing and features of these defences, which seem grounded on the assumption that the President initiated and inaugurated the war against the rebels or insurgent enemies, that no public or private document or official act of the President is given in · proof, conducing to show that the existing state of hostilities was produced by any authority or act of the government of the United States. The war, so
far as the government have been proved to be actors in it, and so far as the evidence characterizes it, has been wholly defensive, and in protection of the property and existence of the government itself, and in no particular, up to the captures in question, did it partake of the character of an offensive and aggressive war, in its conduct on the part of the United States.
“The question pressed earnestly during the discussion, whether the President, without the authority of Congress, can declare or initiate an offensive war, therefore, becomes merely speculative on the merits of the debates. The inquiry is, if he is, by the Constitution and laws of the country, clothed with power to defend the nation against an aggressive war waged for its extermination by internal enemies; and if so, what public condition in relation to the belligerents and neutral powers results from such warfare.
“Much stress has been laid in the progress of the argument on the want of an open declaration of war by the President, previous to his adopting and employing forcible means to repel or counteract warlike measures of an enemy, persisting in hostile attacks on the government and its property.
“No one can claim as a right that a public declaration of war shall be promulgated, unless it be the nation by whose government it is made, and then it serves only as a notice to their own citizens or subjects. The declaration by manifestoes, heralds, or nuncios, does not constitute war, and the omission of the declaration can no way impair its justness or efficacy, especially in a case of defensive war. (1 Kent, 51, 54. Wheat., on Captures, 13, 15. The Eliza Ann, 1 Dod.'s Rep., 247; Duponceau, on War, chs. 1, 2.)
“A civil war of alarming proportions was waged with extraordinary forces and activity; to promote the public defence, and impair the resources of the enemy, the President proclaimed the blockade of the ports referred to in the pleadings and proofs before the court. If the competency of a foreign government to question, in a prize court, the
power of a belligerent to institute a blockade be conceded, or to do more than exact a strict observance of public law in maintaining and enforcing such blockade by the belligerent who imposes it, I am not convinced by the proofs or argument adduced in oppo. sition to the cases on trial, that the lawfulness or efficiency of the blockade established have been im. peached. I hold, in time of civil war, of insurrection, and rebellion, the nation assailed and attacked by hostile and rebel forces, may rightfully resist war levied against itself, alike by closing, embargoing, or blockading ports held by their enemies, as a means of war calculated to weaken and defeat hostile operations to its detriment, as to accomplish the end by direct force and superior power; and that no sound distinction exists whether such defensive proceedings are employed in civil, internal, or domestic warfare, or war between nations foreign to each other. Under the law of nations, the rights incident to a war waged by a government to subdue an insurrection or revolt of its own subjects or citizens, are the same in regard to neutral powers as if the hostilities were carried on between independent nations, and apply equally in captures of property for municipal offences, or as prize of war