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courts are closed in the Southern States, there is a state of civil war. And the government is remitted to its belligerent rights, to be exercised in accordance with those maxims of humanity, moderation, and honor which the law of nations has prescribed to be observed by both parties in every civil war."

The case of
The Amy
Warwick.

District of Mass

The last case to be considered, but by no means

the least in interest and importance, in view of the Court for the eminent character and ability of the counsel, by

whom the arguments were conducted, and the great learning of the distinguished judge, to whom they were addressed, is that of the Amy Warwick, which was decided in the District Court of the United States for the district of Massachusetts.

The vessel, with a cargo of coffee, sailed from Rio de Janeiro on the 29th of May, 1861, bound for Hampton Roads, and was captured on the 10th of July, by the United States cruiser Quaker City, and sent to the port of Boston for adjudication, as prize of war, in the district of Massachusetts.

Condemnation was claimed on the ground that the prize was enemy's property, being owned by citizens of Richmond, in the state of Virginia.

After a brief consideration of the established rules and principles in the law of nations, as to what shall be deemed enemy's property, the learned judge proceeds at once to the discussion of the great questions at issue. It is here given in its entirety. Not to do so, would be doing injustice to one of the ablest judicial disquisitions upon the legal character of the civil war in the United States, proceeding from a judge whose long experience, and exalted reputation as a jurist, give to his opinions the weight of authority:

“But it is contended that although this property Opinion of might be liable to confiscation if the contest were a Sprague. foreign war, yet that it is otherwise in a rebellion or civil war. This requires attention. As the Constitution gives Congress the power to declare war, some have thought that without such previous declaration, war in all its fulness, that is, carrying with it all the incidents and consequences of a war, cannot exist. This is a manifest error. It ignores the fact that there are two parties to a war, and that it may be commenced by either. If a foreign nation should send its fleets and armies, to capture our vessels, ravage our coast, and invade our soil, would not this be war-giving to the United States, as a nation, the position and rights of a belligerent?

“Such hostilities would impose upon the President the duty of exerting all his powers, as commanderin-chief of the army and navy, to capture or destroy the enemy, and if, under his instructions, an enemy's ship should be taken and sent in for adjudication, the prize court must proceed to decide the question of prize upon the principles of public law.

“How this civil war commenced, every one knows. A traitorous confederation, comprising several organized states, after seizing by force several forts and custom-houses, attacked a fortress of the United States, garrisoned with their soldiers, under the sanctity of their flag, and by superior military force compelled those soldiers to surrender, and that flag to be lowered. This was war-open, flagrant, flagi. tious war; and it has never ceased to be waged by the same confederates, with their utmost ability.

“Some have thought that because the rebels are traitors, their hostilities cannot be deemed war, in the legal or constitutional sense of that term. But without such war, there can be no traitors. Such is the clear language of the Constitution. It declares that treason against the United States, “shall con. sist only in levying war against them; or in ad. hering to their enemies, giving them aid and comfort.' Some have apprehended that, if this conflict of arms is to be deemed war, our enemies must have, against the government, all the immunities of international belligerents. But this is to overlook the double character which these enemies sustain. They are at the same time belligerents and traitors, and subject to the liabilities of both; while the United States sustain the double character of a belligerent and sovereign, and have the rights of both. These rights coexist, and may be exercised at pleasure. Thus, we may treat the crew of a rebel privateer merely as prisoners of war, or as pirates, or traitors; or, we may, at the same time, give to a part of the crew the one character, and to the residue the other. And, after treating them as prisoners of war, we may exercise our sovereign power, and deal with them as traitors. The temporary non-user of such rights is not a renunciation of them, but they may be called into practical exercise at pleasure. In modern times, if a rebellion has assumed such dimensions as to raise armies and involve great numbers, it has not been usual during the contest, to exercise toward prisoners the sovereign right of dealing with them as traitors. They have generally been treated as prisoners of war until the contest is over. But this forbearance does not

preclude their government from afterward inflicting such punishment as justice and policy may require.

“Mr. Wheaton, in his Elements of International Law, p. 365, so strongly maintains belligerent rights in civil war, that some of his language would imply that there are no other rights. This, however, could not have been intended; for, if sovereign rights be at an end, the war is merely international. Civil war, ex vi termini, imports that sovereign rights are not relinquished but insisted on. The war is waged to maintain them. Rose vs. Himely, 4 Cranch, 272, was a case arising out of the exercise of sovereign rights by France, in her civil war with St. Domingo. The court recognized the coëxistence of belligerent and sovereign rights. Cherriot vs. Foussatt, 3 Binney, 252, also arose out of a municipal regulation made by France, in the same civil war, and the court remarked that France was possessed of belligerent rights which might be exercised against neutral nations. Dobrie vs. Napier, 3 Scott's R., 225, arose out of the blockade of the coast of Portugal by the Queen of that country, and the condemnation of a vessel as prize for the breach of it, was holden to be valid. See also the Santissima Trinidad, 7 Wheat., 306, and United States vs. Palmer, 3 Wheat., 635.

“The United States have, during the present war, exercised both belligerent and sovereign rights.

“Examples of the former are, receiving capitulations of the enemy as prisoners of war, and holding and exchanging them as such; and a still more prominent instance is the blockade, which, before the assembling of Congress, was established by the military authority of the commander-in-chief.

"I am satisfied that the United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.

“But it is insisted that if these rights exist, still the authority to exercise them, by arresting and condemning enemy's property, must emanate from the legislature, and that there has been no legislation authorizing this capture.

“Congress has established permanent prize tribunals, and created an army and navy. The Constitution declares that the President shall be the com. mander-in-chief of the army and navy of the United States. He is thus clothed with all the power appertaining to that high office, and he is not only authorized, but bound, to exert it, when the exigency for which it was given shall arise. If a hostile power, either from without or within our territory, shall assail and capture our forts, and raise armies to overthrow our government, and invade its soil, and menace the capital of the nation, and shall issue commissions to public and private armed ships to depredate on our commerce, the President is bound to use the army and navy to carry on the war effectively against such an enemy, both by land and by sea. And he may do so in the manner, and by the measures, usual in modern civilized warfare; one of the most familiar of which, is the capture of enemy's property, public and private, on the ocean.

“In war, the commander-in-chief is not only author. ized to make captures by sea and conquests by land, but he may even govern the conquered territory until Congress shall have seen fit to interpose by

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