equally in civil as in public or international warfare, and adds:

"If during an organized hostile contest, like the present, against an established government, rules of decision, different from those which have been stated, prevailed in the prize courts of such a government, it could not effectively prosecute maritime hostilities to suppress rebellion or insurrection.

"The question is, whether any different rules of public law determine the question of confiscability, during such a contest."

The learned court then proceeds, in a disquisition of great research and ability, to consider the various kinds of civil war, as distinguished by the various purposes for which they are waged, in order to the determination of the question, whether the government, in resisting its opponents, may, under the law of nations, treat the contest as if it were a foreign war, and the places in the possession of the insurgents, as if occupied by public enemies. In this connection, is cited the opinion of Grotius upon the views of Demosthenes, in a case so singularly analogous to the one under discussion, as to give to that opinion not only a peculiar interest, but, in the language of the court, "the force of a modern precedent."

"In the opinion of Grotius, Demosthenes had, in the case of the Thracian Chersonese, correctly stated the rule of public law to be, that wherever judicial remedies are not enforceable by a government against its opponents, the proper mode of restoring its authority, is war. (De Jur. Bel. et Pac. Proleg., § 23.)

"The Chersonese was a dependency of Athens,

when other parts of Thrace were under the dominion of Macedonia. The city of Cardia, in the Cher. sonese, resisted the Athenian authority. Deiopeithes, the Athenian commander in the Chersonese, was prevented from reducing the Cardians to submission, through the interference of Philip of Macedon-then professedly at peace with Athens-who sent a military force to their assistance.

"Deiopeithes, considering this measure an act of hostility on the part of Philip, at once, without waiting for instructions from Athens, invaded and ravaged parts of Macedonian Thrace.

"Philip complained to the Athenians of this conduct of Deiopeithes. Demosthenes, in sustaining it, avoided assuming a defensive position as to the previously intended subjugation by Deiopeithes of the Cardians, but incidentally justified it, upon reasons that would have sanctioned the prosecution of hostilities against them, on the same footing as if the war had been, as to them, a foreign one.

"Dismissing from consideration the charges against persons, whom the judicial administration of the laws could reach, and who might, at any time, be judicially prosecuted, he contrasted their case with that of those whom the laws could not thus reach, saying, that attempts to enforce like remedies against them, would only disorder and confuse the administration of public affairs. 'Against those' said he, 'whom the laws cannot reach, we must procel as we oppose public enemies, by levying armies, equipping and setting afloat navies, and raising contributions for the prosecution of hostilities.""

The peculiar applicability of this doctrine to the civil war in the United States, is clearly set forth

by a designation of the character of that war, in the following terms:

"The exercise of the established jurisdiction of the government, has been revolutionarily suspended in one or more territorial districts, whose willing or unwilling submission to the revolutionary rule, prevents the execution of the suspended government's laws in them, except at points occupied by its military or naval forces."

The court then proceeds to state: "The rule of the common law is, that where the regular course of justice is interrupted, by revolt, rebellion, or insurrection, so that courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing, as if those opposing the government were foreign enemies invading the land. The converse is also regularly true, so that when the courts of a government are open, it is ordinarily a time of peace. But though the courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might, perhaps, be cases in which the converse application of the rule would not be admitted. (1 Knapp, 346, 360, 361; 1 Hale, P. C., 347; Co. Litt., 249, b.)

"The present case is one in which the courts are in the strongest sense closed. That such a war as the present, should be restricted in the modes of its prosecution, within limits more narrow than foreign wars, would prostrate its purpose, and place the former established government on an unequal footing with its hostile opponents. The doubt heretofore suggested, has been, whether the former government has not, in such a contest, greater belligerent privileges than in a foreign war.

"By a treaty between England and the States General, their merchant vessels might, when England was at war, carry her enemy's goods without their being liable to capture. In the war of American independence, it was decided in an English prize court, that this treaty did not exempt the ships and goods of rebellious Americans, carried in Dutch merchant vessels, from confiscability. (The Aletta, cited 1 Hay and Marriott, 13.)"

In illustration of the doctrine, discussed at some length in the first edition of this work, that a nation while engaged in the performance of the duty of suppressing a domestic insurrection, which aims to overthrow the established government, may lawfully exercise belligerent as well as sovereign rights, as declared by Chief Justice Marshall, in the case of Rose vs. Himely, the learned judge, in a note to his opinion, furnishes a valuable recital of the cir cumstances, out of which the discussion in that case grew, and elucidates the doctrine which was laid down and not questioned, both in the Supreme Court of the United States, and the Supreme Court of Pennsylvania.

It is the doctrine which lies at the foundation of this whole discussion. It cannot be too often or too emphatically enforced.

A vast deal of the protracted disputation upon the war measures of various kinds, proposed in either house of the Congress of the United States, at its last session, evinced a singular want of appreciation of this fundamental doctrine.

The following is the text of the note to which allusion has been made:

"During the civil war between the French Re

public and the revolted negroes of St. Domingo, the French, having been driven out of possession of the principal part of the island, their government prohibited all maritime communication with places on its coast occupied by the rebels, under the penalty of confiscation of vessels and cargoes; and after ward imposed the like penalty in all cases in which vessels going to or from such places might be captured at anchor, or under sail at a distance of less than two leagues from the coast. Merchant vessels of the United States trading with such places, having been captured at sea, at distances, in some cases of less, and in others of more, than two leagues from the coast, were alike condemned in French prize courts. The judges of the Supreme Court of the United States, agreed in opinion that the French government's ancient sovereignty over the colony, must be considered as still subsisting. That France might exercise belligerent rights in the contest, in addition to those of her sovereignty, was asserted by Chief Justice Marshall, and denied by no other judge. A majority of the judges ultimately differed from him in opinion upon the question, whether, if the above mentioned acts of the French government were to be considered, not as belligerent, but as mere municipal regulations, the proprietorship of the former owners of the vessels and cargoes had been divested by the judgments of confiscation, where the captures had been made more than two leagues from the coast. The majority of the court was ultimately of opinion that, whatever might have been, in this respect, the legal character of the regulations, the proprietorship had been changed by the judgments in these cases, as well as in those in