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legislation. In our last war, California having been subjugated, the commander-in-chief imposed duties, established custom-houses, and collected revenues; and this was sanctioned by the Supreme Court as a legitimate exercise of military power. (Cross et al. vs. Harrison, 16 Howard, 164.) There can be no doubt of the right of the President to make maritime captures, and submit them to judicial in. vestigation. It is one of the best established, and least dangerous, of his powers, as commander-inchief. Further than this, Congress have legislated upon the subject, although it was not necessary for them to do so.

“The statute of 1807, ch. 39, provides that, whenever it is lawful for the President to call forth the militia, to suppress an insurrection, he may employ the land and naval forces of the United States for

that purpose.


“The authority to use the army and navy is thus expressly confirmed, but the manner in which they are to be used is not prescribed. That is left to the discretion of the President, guided by the usages and principles of civilized war, and these principles and usages undoubtedly authorize the capture of enemy's property at sea.

“What is enemy's property, is a judicial question, to be decided by the prize court; -and unless otherwise instructed by their own sovereign, they must be guided by the rules and principles of public law.

“ Property may be condemned as hostile without proof of the personal sentiments of the owner being disloyal.

“ Acts which tend to subserve the interests of the

enemy, may impress a hostile character upon property, without regard to the political views or wishes of the owner. Residence of the owner in the enemy's country, may be of such a character as to stamp the property conclusively as hostile. How far residence may, in any case, be open to explanation, or the presumption arising therefrom be repelled, I have no occasion to consider. When a hostile character is imputed to property because of the residence of the owner, the court may be compelled to decide whether the place of his residence be enemy's country.

“What shall be deemed enemy's country is sometimes a question of much difficulty. Some nations or tribes can hardly be said to have any country. Such are the nomadic Arabs, and such were the children of Israel during some part, at least, of their migration from Egypt to Palestine. A bel. ligerent nation may invade a neutral province and hold the control of it, and yet the possession be such as not necessarily to impress upon the inhabi. tants a hostile character. Thus, in the case of The Gerasimo, 11 Moore, P. C., 101, it was decided that, although Russia had taken forcible possession of the Danubian Principalities, and for a time held dominion over them, yet, that a ship of a resident of Wallachia was not liable to capture by a British cruiser as enemy's property; the occupation of that province by Russia, being not only forcible, against the will of the inhabitants, but avowedly temporary and for a special purpose. If Wallachia, by its local government, the Hospodar and Divan, had vol. untarily joined with Russia, and made common cause in the war against England, the inhabitants would,


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 previously 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 mi. nority. 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 suffi. cient 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 negative. 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 legislative instruction, be guided by general principles and usage, under which, one criterion of enemy's property is the residence of the owner.

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