elementary treatise, but for the extraordinary as sumption of the noble lords in the British Parlia ment, and the unfortunate position assumed by the British government toward the United States re sulting from that assumption.

It is greatly to be hoped that a more mature consideration, and, above all, the irresistible logic of events, may produce a conviction of the error into which the government of Great Britain has unhap pily fallen, and effect a change in her avowed pol

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the conflict to which it is directed, as for the reasonable apprehension that such a precedent in the law of nations, may, in after times, be a fruitful source of public calamity to the nation by which it was adopted.1

'Scarcely had the foregoing passed through the press, when information was received indicating a decided change in the policy of Great Britain, by an alleged ministerial construction of the Queen's proclamation of neutrality, which would seem to strip it of all significance.

It is said that, notwithstanding the proclamation of neutrality, the ships of war and privateers commissioned by the several bel ligerents will not be permitted to carry their prizes into British ports. Should this intelligence prove to be correct, althought be not possible to regard it as other than an acknowledgment that the proclamation of neutrality was premature, and should not have been made at all, yet such a salutary change of policy would be so gratifying in itself, as effectually to disarm criticism upon the method adopted to effect it.

The rights of lawful belligerents to claim the shelter and asylum of neutral ports with their prizes, there to await a sentence of condemnation by a competent tribunal of the country of the captors, is an established right, "settled," as Lord Stowell says, "by the inveterate practice of Great Britain." This right was the only substantial effect of the proclamation of neutrality, which is, beyond dispute, a virtual recognition of the confederate insur

efferuely
bluchated,

In connection with this subject a question has arisen as to the power of the President of the United States, under the Constitution, to institute the blockade of the ports of the states which are in rebellion against the national government.

The power to declare war, to grant letters of marque and reprisal, and to make rules concerning captures on land and water, is vested solely in the Congress of the nation, by the provisions of the 8th section of the 1st article of the Constitution.

That power, therefore, cannot be exercised by the President. But the institution of a blockade is notof itself a declaration of war. It is the exercise of

rectionists as lawful belligerents The exercise of such a right would undoubtedly enable the insurrectionists to inflict a blow of terrible severity upon the mercantile marine of the nation. Shorn of this right, the letters of marque issued by the rebels become dead-letters; for, their own ports being effectually blockaded, and the treaty stipulations existing between the United States and the governments of France and Spain, of Mexico, Central America, and the South American republics, precluding the use of the ports of these nations as asylums for prizes, a death-blow is inflicted upon the piratical expeditions of the insurgents, denominated privateering.

Such expeditions are inspired only by the hope of gain, and will not be undertaken, when, in addition to the ordinary hazard of the enterprise, no visible means exist of converting the captured property as lawful prize, after captures shall have been made.

In the rapidly shifting current of events, the test of the sincerity of Great Britain in this complete but satisfactory receding from her policy as first proclaimed, may be imposed upon her even before the publication of this work.

It requires but little political foresight to enable one to predict with confidence that the existence of amicable relations between the great nations of the world is suspended upon the manifestations of sincerity in this behalf, which shall be exhibited by that government.

what?

one of the rights incident to a condition of war, clearly defined and established in the law of nations.

The institution of a blockade of the ports of a foreign nation, by the direction of the President, prior to any legislative declaration of war, or to the actual existence of hostilities, might properly be regarded as tantamount to a declaration of war, and therefore an unlawful assumption of the fune tions of the legislature. But war may exist without any congressional declaration. Such indeed was the case with the war between the United States and Mexico. There was no legislative declaration of that war, but by an act of Congress, the actual existence of the war by virtue of Mexican hostilities against the United States, was set forth and promulgated. It was therefore decided by the Supreme Court of the United States, in questions growing out of the acts of the President during that war, that the actual existence of the war authorized the executive, by virtue of his position as commanderin-chief of the army and the navy, and without any legislative enactment or declaration whatever, to exercise all the belligerent rights recognized by the law of nations:-" to direct the movements of the naval and military forces," and "to employ them in such manner as he may deem most effectual, to harass and conquer and subdue the enemy."

The institution of a blockade is a right much more exactly defined and recognized in the law of nations than those exercised by the President,

1 Fleming et al. vs. Page, 9 How., 615; Cross et al. vs. Harrison, 16 How., 189.

and which were in question in the cases referred

to.

It would seem therefore that the constitutional power of the President to institute the blockade of the southern ports (as by his proclamations of the 19th and 27th of April, 1861) is not only clear as resulting from his office of commander-in-chief of the naval forces, but it is established and has become res adjudicata by the decision of that tribunal whose province it is to interpret the constitution, provided it be conceded that war actually existed

at the time of the institution of the blockade.

Of course it is matter of notoriety that hostilities of the most determined and most aggravated character were then actually being carried on by the insurrectionists against the United States. These acts of hostility and rebellion are recited in the proclamation of the President, and no one can doubt that they had reached that point which fully justified the declaration that civil war then existed. The proclamation of blockade, in its recital of the acts of hostility committed and threatened, must be considered as equivalent to a decla ration of the existence of civil war. Which LNO IN Jous The question then returns;-the institution of blockade, being the exercise of a right resulting from a condition of war which the President of the United States may constitutionally direct as commander-in-chief of the naval forces, without any legislative act-when war actually exists-is it competent for the President to determine that war does exist, and act accordingly?

This question also seems to have been definitively settled by the Supreme Court of the United States,

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establishing the power of the President to declare the actual existence of a civil war, as well between a foreign nation and its revolting citizens or subjects, as with reference to a domestic insurrection. In the cases already referred to,' it was decided that it was the province of the executive to deter mine as a political question, whether civil war actually existed between Spain and her colonies, and the executive having thus declared, it was the duty of the judiciary to extend to both parties all the rights of lawful belligerents.

By the 8th section (15th clause) of the 1st article of the Constitution, the Congress of the United States is clothed with the power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." Pursuant to this power the Congress has provided for calling forth the militia, by a special act, which vests in the President of the United States an absolute discretion over the subject matter.2

The Supreme Court has decided that this legisla tive enactment, clothes the executive with the exclusive authority of deciding whether the emer gency has arisen contemplated by the constutional provision, in other words to determine whether there is an invasion by a foreign power, which is a public war, or a domestic insurrection, which may be a civil war, to require or justify the calling forth the militia in defence of the national integrity.

'The Santissima Trinidad, 7 Wheaton, 305.

Act of 1795; ch. xxxvi., §§ 1, 2.

Martin vs. Mott, 12 Wheat., 29; vide also, Story's Com. on

the Const., §§ 1209, 1211.