unquestionably, have been enemies, and their prop erty on the ocean, lawful prize.

"In cases which may come within the definition of civil war, there may be only an assemblage of individuals, in military array, without political organization or territorial limit; or, armed bands may make hostile incursions into a loyal state, or hold divided, contested, or precarious possession of portions of it, as now in Missouri and Kentucky. In such cases, local residence may not create any presumption of hostility. Far otherwise is it in Virginia. On the 17th day of April, 1861, being immediately after the rebel confederates had attacked and captured Fort Sumter, a convention of delegates, by solemn ordinance, undertook to place all the inhabitants of that state in an attitude of rebellion, and to join the war, which had been previ ously begun against the United States. The act of rebellion was to take immediate effect, and an alliance making common cause with the Confederate enemy was immediately formed and hostilities actively waged by armies raised within, and invited from without the state. All this was, indeed, subject to be disaffirmed by a vote of the whole people of the state, to be taken on the 23d day of May; but no part of it has been disaffirmed. On the contrary, the popular vote on that day, apparently by a large majority, ratified the proceedings of the convention, the alliance, and the war. The western counties in the state nobly vindicated their honor and their fidelity, by refusing submission to rebel mandates, and adhering to the Union. They did not, indeed, change their domicile, but they removed the power of rebel Virginia from the place

of their domicile. The Virginia rebellion was not the act of individuals asserting that moral right of revolution which belongs to all subjects, but it was the assertion of a pretended state right. It was founded solely on the deadly doctrine of secession, which claims that a state, as an organized political body, may sever itself from the Union. In attempting this, and carrying on the war, it acted by majorities claiming implicit obedience from the minority. The exterior boundaries of the state, and its internal division by counties, have been clearly defined, and the city of Richmond, where these claimants reside, is within the territory over which, by known limits, this political body has, for nine months past, held absolute dominion.

"Such residence subjects both property and person to the absolute control of the enemy, and augments his resources and his strength. And I see no sufficient reason why it is not to be deemed a continued residence in an enemy's country, which subjects property captured on the ocean to condemnation as lawful prize. In this case, it does not appear that the claimants ever had a domicile in any other place than Richmond; nor is there any evidence going to explain their continuance there, or to repel the presumption of hostility arising therefrom.

"It is not necessary therefore, to decide whether such evidence could be admitted, or what would be its effect. In questions so novel, I do not think fit to go farther than the case before me requires.

"But it is objected that the question, what persons or country are to be deemed hostile, is not a judicial one; or rather, that the courts cannot consider any person or country to be hostile, unless the

legislature has previously designated them as such. This is directly met by the case of The Gerasimo, 11 Moore, P. C., 101, above cited, in which the sole question was, whether the province of Wallachia was enemy's country so as to subject the property of a resident therein, to capture as prize. This question the High Court of Admiralty decided in the affirmative, and the Privy Council in the nega tive. Both decisions were founded exclusively upon the character of the Russian occupation, as exhibited by the evidence, the court having no aid or instruction, by any act either of the Queen or the Parliament. The cause was most elaborately discussed, both by the bar and the bench, and yet not a doubt was suggested of the question being strictly judicial.

"This objection, that it does not belong to the court to decide who shall be deemed enemies, or rather, that the court can decide only one way, and that against the captors, unless Congress has pre. viously declared who shall be considered enemies, really carries us back to the questions whether there can be war without a declaration by Congress, and, whether, in civil war, the parent country has full belligerent rights. Those questions have already been considered; and it is believed that such rights exist, and, among them, undoubtedly is that of making maritime captures of enemy's property. And when property is brought in for adjudication, the court must decide whether it be hostile or not; and in doing so, it must, in the absence of legisla tive instruction, be guided by general principles and usage, under which, one criterion of enemy's property is the residence of the owner. This is a

known and well-established rule of decision, which the court cannot disregard. It is not necessary, however, to determine how the court would deal with these questions, in the absence of any action, by other departments of the government, because there has been such action.

"In addition to other important acts, the President by proclamation of the 27th of April, established a blockade of the ports of Virginia. This was the exercise of a great belligerent right, and could have been done under no other. He could not prohibit or restrict the commerce of any state by a mere municipal regulation. The blockade was avowedly established as a belligerent act under the law of nations; and it was accordingly announced that it would be rendered effective by an adequate naval force; and in all proceedings in relation to it by our own country and other nations, it has been regarded as a belligerent act. Under it, there have been divers captures by our navy, and condemnations by our courts. Now such a blockade could not be valid unless it be of enemy's country.

"Some have thought that it was to be deemed enemy's country, because of the proclamation of the President. It seems to me rather that the proclamation and the blockade are to be upheld as legal and valid, because the territory is that of an enemy. But whichever view is adopted, the result is the same, namely, that the court must regard the country as hostile.

"Richmond, where these claimants reside, is one of the places that was thus blockaded. This is not all. The proclamation of a blockade of Virginia, as hostile territory, and the orders of the President

to the navy, under which captures like the present have been made, have been expressly confirmed by Congress.

"The statute of 6th August last, ch. 63, declares that such acts and orders shall have the same efficacy as if they had been previously authorized by legislative enactments.

"Without going into a discussion of the effect of that confirmation, it is evident that it must have the force of an instruction to prize tribunals, to regard those proceedings of the President as legal and valid.

"It has been urged that in a civil war, it may sometimes be very impolitic to confiscate the property of persons resident in the rebel country; and that the expediency of doing so is a political question to be determined by the legislature.

"We are now dealing only with maritime captures. It is true that policy may sometimes require that the property of such residents should be exempted from arrest; and it is quite as certain that sometimes it ought not to be exempted. There should therefore be somewhere lodged a discretionary power, to capture this property or not, as varying circumstances and exigencies may require.

"This power is now vested in the President. He controls the navy, and directs what captures shall be made. He may instruct inferior officers that particular vessels, or those belonging to certain persons, or engaged in a particular trade, are not to be arrested.

"What captures shall be made, like other questions of war policy, may safely be left to the discretion of the commander-in-chief.