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This vessel was captured for an alleged violation of the blockade of the port of Norfolk, in Virginia, and as enemy's property, being owned by a citizen of Norfolk.
The questions raised in the preceding cases, were here discussed with great ability, by distinguished counsel.
In disposing of them the learned judge says:
" It has been contended by the counsel for the Opinion of Mr. claimants that, in the present unhappy division in Justice Giles. our country, the government at Washington has no power,
either under the Constitution of the United States, or by the recognized principles of the law of nations, to treat the inhabitants of the states which claim to have seceded, as enemies, and to exercise in reference to them those belligerent rights which all concede belong to parties engaged in a public war. And, by a public war, is here meant a war between independent sovereign states. Now, I am sitting in this case, in a prize court, and the Supreme Court said (the case of The Rapid, 8 Cranch's Reports, 155, and the schooner Adeline and cargo, 9 Cranch, 264), “that the law of prize is a part of the law of nations. And I am, therefore, to decide this question by the principles of that universal law, to which all civilized princes and states acknowledge themselves to be subject.
“ In the first place, let us see what is the character of the present contest in this country, and in what light it has been regarded by the executive and legislative departments of the government. In the face of all that is passing around us, it needs no argument to show that a civil war of gigantic dimensions is sweeping over the land. We are
almost within sound of the cannon of two of the largest armies that have ever been marshalled in hostile array against each other on this continent. More than one-third of the confederacy has claimed to separate from the rest, and they are now fighting about the construction of the organic instrument of the government-one side alleging that under a true construction of the Constitution, each state has a right to withdraw from the Union whenever its people so determine; the other, that no such right exists, and that to attempt to secede is rebellion, and not the exercise of any constitutional right. And in the states which have claimed the right to withdraw, there are now open no courts of the United States, and the laws of the United States cannot now be executed in those states, by the ordinary course of judicial proceedings.
“Is this not civil war? And has it not been so regarded by the executive department of the gov. ernment? This is clear from the proclamations of the President of the 15th of April, of the 19th of April, of the 27th of April, of the 3d of May, and of the 10th of May, all recognizing the fact that the civil power of the government is no longer capable of enforcing the laws, and calling to its aid the power intended to be provided by the acts of 1795 and 1807, and, also, using the power of blockade, a war power belonging only to belligerents either in a civil or foreign war. And the legislative department has also recognized this contest as a war. Por, during the last session of Congress, it not only did so by the laws which it passed for the raising of armies and providing means for their support, but in express language, on (four) different occa
sions, as will be seen by reference to the laws of the extra session of July last, pages 268, 274, 315 and 326. And the last law (p. 326), to which I refer, not only recognized a war as existing, but it approved and sanctioned all the proclamations of the President, thereby making valid the blockade declared by the President in his proclamations of the 19th and 27th of April, if the President alone, “as commander-in-chief of tho army and navy of the United States," did not possess this power under the existing circumstances of the country.
“The Supreme Court (Chief Justice Taney delivering the opinion) in the case of Luther vs. Borden and others, 7 Howard, 45, say: 'Unquestionably a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the
existence of every government, essential to the pres· ervation of order and free institutions, and is as
necessary to the states of the Union as to any other government. The state itself'must determine what degree of force the crisis demands, and if the gov- . ernment of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the state, as to require the use of its military force, and the declaration of martial law, we see ground upon which the court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and overcome the unlawful opposition.'
“Now what say the writers on the law of nations? Vattel says, in book 3d, ch. 18, p. 425, 'When a party is formed in a state who no longer obey the
sovereign, and are possessed of sufficient strength to oppose him, or where, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection against their sovereign, to distinguish that lawful resistance from rebellion which is open and unjust resistance.
“ . But what appellation will they give to a war which arises in a republic torn by two factions, or in a monarchy, between two competitors for the crown? Custom appropriates the term civil war to every war between the members of one and the same political society.'
"And Wheaton, in his great work on international law, says, on page 365: “A civil war between the different members of the same society, is what Grotius calls a mixed war. It is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling the contending parties to all the rights of war as against each other, and even as respects neutral nations.'
“ Judge Chase, of the Supreme Court, in the case of Ware vs. Hilton and others, 3 Dallas, 199, speaking of the effect of the act of the Virginia Convention, in June, 1776, and the declaration of independence by Congress, on the 4th of July following, says: 'Before these solemn acts of separation from the crown of Great Britain, the war between Great Britain and the United Colonies, jointly and separately, was a civil war; but instantly, on the great and ever memorable event, the war changed its nature and became a public war between independent governments; and immediately thereupon all the other rights of an independent nation attached to the government of Virginia.'
" Whether the learned judge be correct in his view, that the war became a public war after the declaration of independence, a view he may be excused from taking, if wrong, as his own name was appended to that imperishable document, we have the sanction of his great name to the doctrine, that to such a contest there belonged all the rights of war.
“I am therefore clear in the opinion, that, as a blockade is an acknowledged belligerent right under the law of nations, where war exists, the blockade of the southern ports was lawfully proclaimed by the President.
“ In the discussion of this question, I have said nothing in reference to the sovereign rights of the government: whether it may not at the same time exercise both sovereign and belligerent rights. Such a question does not arise in the case. I have confined myself to the examination of the existence or not of belligerent rights by the government, in reference to the present unfortunate state of the country.
And Phillimore, in his commentaries on international law, vol. 3d, page 740, gives us a simple rule by which to determine this question. He says: 'In the case of a civil war, the English law furnishes a good criterion as to whether the country is to be considered at peace or at war—that whenever the king's courts are open it is a time of peace, in judgment of law.'
“Judged by this standard, then, as the Federal