their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war: They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats. them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.

"The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.

6

"A civil war,' says Vattel, breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.

"This being the case, it is very evident that the common laws of war-those maxims of humanity, moderation, and honor-ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels the opposite party will make reprisals, etc., etc.; the war will become cruel, horrible, and every day more destructive to the nation.'

“As a civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know. The true test of its existence as found in the writing of the sages of the common law, may be thus summarily stated: When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the 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.'

"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution.

"The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United

States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile. party be a foreign invader, or States organized in rebellion, it is none. the less a war, although the declaration of it be unilateral.' Lord Stowell (1 Dodson, 247) observes, It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.'

6

"The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the Act of Congress of May 13th, 1846, which recognized a state of war as existing by the act of the Republic of Mexico. This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

"It is not the less a civil war, with belligerent parties in hostile array, because it may be called an 'insurrection' by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or state be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337), this Court say: The Government of the United States has recognized the existence of a civil war between

Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign right of war. (See also 3 Beim,, 252.)

"As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, recognizing hostilities as existing between the Government of the United States of America and certain States styling themselves the Confederate States of America.' This was immediately followed by similar declarations or silent acquiescence by other nations.

"After such an official recognition by the sovereign, a citizen of a foreign state is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a Court to affect ́a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms.

"The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court are now for the first time desired to pronounce, to wit: That insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are traitors; and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war, because it is an insurrection.'

"Whether the President in fulfilling his duties as Commanderin-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.

"The correspondence of Lord Lyons with the Secretary of State admits the fact and concludes the question.

"If it were necessary to the technical existence of a war, that

it should have legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress 'ex majore cautela' and in anticipation of such astute objections, passing an act 'approving, legalizing and making valid all the acts, proclamations and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.'

"Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well-known principle of law, ‘omnis ratihabitio retrotrahitur, et mandato equiparatur,' this ratification has operated to perfectly cure the defect. In the case of Brown v. United States (8 Cr., 131, 132, 133), Mr. Justice STORY treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, 'I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?'

"Although Mr. Justice STORY dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

"The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.

"On this first question, therefore, we are of opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.' (See the remainder of this decision under § 33.)

CHAPTER II.

EFFECTS OF WAR AS BETWEEN ENEMIES.

SECTION 29.-ENEMY'S PROPERTY WITHIN THE TERRITORY, and Debts DUE TO THE ENEMY.

WARE v. HYLTON.

SUPREME COURT OF THE UNITED STATES, 1796.

(3 Dallas, 199.)

All the justices admitted-some however with great reluctance-that, in strict law, debts due to an enemy might be confiscated. But this point was not necessary to the decision; for the act of confiscation in question (of Virginia) was held to be annulled by the 4th article of the treaty of 1783 with England.

CHASE, J.- "The defendant in error, on the *** day of July, 1774, passed their penal bond to Farrell and Jones for the payment of £2,976 11s. 6d., of good British money. In 1777, the war of the revolution having broken out, the legislature of Virginia passed a law to sequester British property; the 3d section of which was as follows:

"That it should be lawful for any citizen of Virginia, owing money to a subject of Great Britain) to pay the same, or any part thereof, etc., *** into the loan-office, taking thereout a certificate for the same, in the name of the creditor, with the endorsement, under the hand of the commissioner of said office, expressing the name of the payer.' The Governor and council were to see to the safekeeping of such sums, subject to the future directions of the legislature. In 1780 the defendants (in error) paid into the loan-office a part of their debt, in accordance with stipulations of the above law. After the return of peace, they were sued in the above bond in the circuit court of Virginia; and pleaded the said law of the legislature of