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(Rose vs. Himely, 4 Cranch, 241. Ibid., appendix, 509. S. C. in Circuit Court, 4 Ibid., 293. Hudson vs. Gustien, 7 Wheat., 306, Santissima Trinidada.

“Commercial ports, in time of war, may become efficacious allies to an enemy holding them, through neutral trade. So far as that aid avails the enemy, it is warlike in its nature, and may be repelled by war means. Blockade is the measure recognized by the law of nations as the appropriate remedy, and that in character and operation is peaceful as to neutrals, and warlike in respect to the enemy. The President, as commander-in-chief of the army and navy, is the functionary, under our government, who has, as incident to his office, the power and right to exercise the resisting and repelling means of legitimate warfare, whenever the exigencies of the case require them.

"It certainly can be of no consequence whether the ports blockaded belong technically or in reality to the United States, or were the property of individuals, innocent of any

purposes against the United States, or of aiding its enemies. It is sufficient if the evidence shows the ports to be under the power and use of enemies of the United States. This use may be an usurped one, and in wrong of the actual proprietary authority of the places. The right of the United States to prevent such use being turned to their prejudice, rests not at all upon the character of the true ownership and rightful authority over the places, but on that of their employment by the occupants. Whilst under the military power of an enemy it is enemy's territory. (U. S. vs. Rice, 4 Wheat., 253. This consideration meets, also, another ground of defence,


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earnestly urged on the part of the claimants, that these various ports which are subjected to blockade are portions of states of the Union, and, as such, a portion of the Union itself, and cannot, therefore, be made, territorially, objects of hostile control, but only of municipal regulation and government. Nor that more eminently can they become, as countries or people, enemies of the

government of which they are constituent parts; because, in that relation, they also hold an independent sovereignty as states, which cannot be infringed nor molested by authority of the United States, acting directly upon that independency.

“The Union is not composed of subtleties and abstractions. The notion of a government constructed of numerous parts, each part separate and sovereign in itself, and also sovereign of, or as against the whole, was never adopted or declared by the founders of the Constitution, and probably not contemplated or comprehended at that day.

“ The officers of the United States government, act within particular states, to enforce or defend the laws of the United States the same as if no state demarcation existed. The whole extent of the country is one nation and one government. In respect to the United States and its constitutional laws, there are no state lines, and state sovereignty is a nonentity

“The denominations of states existing for local and domestic purposes, are made use of and applied by the insurgents in the present war, in designation of combinations of persons disrupted, so far as they had material or political power so to do, from their citizenship of and subjection to the government of the United States, in disavowal and defiance of that allegiance, and, so far as their own purposes and acts can fix their political status, make themselves as alien and foreign from the United States gov. ernment, as if they assumed the name of citizens and subjects of various states of Mexico or South America.

“They thus make themselves avowed enemies, and wage war against the United States to accomplish its dismemberment and destruction. It can be of no consequence under what name or appellation those enemies unite and act, .whether as states, secessionists, southerners, or slaveholders; they are, in every just contemplation of our system of government, insurgents and rebels against a common gov. ernment, and waging war for its overthrow.

“The organism of states which furnishes a form of government for peaceful and domestic purposes is thus sought to be perverted by the insurgents into alien sovereignties, which may exercise, under the familiar name-of states, independent and coequal capacities with the national government. Such names or pretensions can have no effect to change the intrinsic nature of things, and transform the residents of particular states into any thing else than citizens and subjects of the United States, and, as such, subordinate to its Constitution and laws.

“But, by the instrumentality of the pretences and means employed, the insurrection has become developed into a hostile power of great magnitude and force, disavowing all unity with or subordination to the mother country, and taking to itself the attributes of a distinct nationality. It thus discards all common rights under the Federal government, and,


by force of arms, wages war to establish one overpowering that of the parent nation. They become enemies of the United States government by open hostilities waged against it, without losing their subjection to it individually as citizens. Govern- . ment represses their rebellion and treason legitimately, by force of arms and war, because the mag. nitude and force of the revolt is beyond the control of the law and civil magistracy. To that end, all the constitutional powers of the President, in his capacity of commander-in-chief of the army and navy, may be rightfully called into exercise. They confront the government in masses of armed men, holding fortified posts, or ports of trade and general commerce, and they thus become belligerents and enemies of the nation, against whom all the means of war allowed by the law of nations may be rightfully employed, as was held by the Supreme Court in the case of the St. Domingo insurgents. (4 Cranch, 241.) For the reasons hereafter suggested, I forbear adding a further support by citation of authorities, than reference to a very few upon fundamental points, and taken generally from decisions in our own courts.

“In my judgment, therefore, every branch of the general defences set up against these suits is inadequate and insufficient in law and fact to bar the prosecutions pending. I consider that the outbreaks in particular states, as also in the Confederate States, was an open and flagrant civil war, waged against the United States by the insurgents in the several disaffected states, referred to in the pleadings and proofs in these several causes, at the time the several proclamations, so also referred to and named, were issued and made by the President: That such insurrection was maintained by warlike means and forces tov powerful to be overcome or restrained by the civil authority of the government, and that it became lawful and necessary to resist and repel hostilities so levied against the United States and its laws, by aid of the armiy and navy of the United States: That the President possessed full competency, under the Constitution of the United States, and the existing laws of Congress, to call into service and employ the land and naval forces of the United States, in the manner they were used by him, for the purpose of maintaining the peace and integrity of the Union, and putting down hostilities waged against them; and the President had, rightly, power to establish blockades of ports held by those enemies, and enforced such blockades pursuant to the law of nations.”

The intelligent reader will find nothing to regret in the length of the preceding quotation.

In thought and expression it is alike characteristic of its distinguished author.

His cotemporaneous decisions in the law of mari. time capture—with this opinion upon the great fundamental questions involved in all his adjudications, will be preserved as instructive precedents, and as val. uable memorials of the vigorous and comprehensive intellect of him who has long been one of the brightest ornaments of the Federal judiciary.

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The case of
The F. W.
Johnson. U.S.

The next case to be considered is that of The F. District Court W. Johnson, decided in the United States District for the District Court for the district of Maryland. of Maryland.

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