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Wheaton, Dana's edition, Part IV. sec. 296, p. 374.

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See, in the same place, Dana's note on 'Belligerent powers exercised in civil war."

"149. Insurrection is the rising of people in arms against their government, or a portion of it, or against one or Insurrection-Civil more of its laws, or against an officer or officers of the government. It may be confined to mere armed

war-Rebellion.

resistance, or it may have greater ends in view.

150. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government.

"151. The term rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same' who seek to throw off their allegiance to it and set up a government of their own.

“152. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.

"153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or Sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.

"154. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

"155. All enemies in regular war are divided into two general classes that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government.

"The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto.

"156. Common justice and plain expediency require that the military commander protect the manifestly loyal citizens in revolted territories against the hardships of the war as much as the common misfortune of all war admits.

"The commander will throw the burden of the war, as much as lies within its power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen. shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.

"Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide.

"157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 163.

4. PRIVATE.

§ 1104.

"If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war by the authority of its individual citizens. But this is not true, either on the general principles of society or by our Constitution, which gives that power to Congress alone, and not to the citizens individually. Then the first position was not true, and no citizen has a right to go to war of his own authority; and for what he does without right, he ought to be punished."

Mr. Jefferson, Sec. of State, to Mr. Morris, min. to France, Aug. 16, 1793, Am. State Papers, For. Rel. I. 167, 168; 4 Jefferson's Works, 37. Adopted by Mr. Webster, Sec. of State, report to President (Thrasher's case), Dec. 23, 1851, 6 Webster's Works, 527. (This report is not on record in the Department of State.)

"No hostilities of any kind, except in necessary self-defence, can lawfully be practiced by one individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority; ... and each individual on both sides is engaged in it as a member of the society to which he belongs, not from motives of personal malignity and ill will. . . . Even in the case of one enemy against another enemy, therefore, there is no colour of justification for any offensive hostile act, unless it be authorized by some act of the government giving the public constitutional sanction to it."

Mr. Justice Iredell, in Talbot v. Janson (1795), 3 Dall, 133, 160.

It is an offense against the law of nations for any persons, whether citizens or foreigners, to go into the territory of Spain with intent to recover their property by their own strength, or in any other manner than that permitted by its laws.

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Lee, At. Gen., 1797, 1 Op. 68.

While noticing the irregularities committed on the ocean by others, those on our own part should not be omitted nor left unprovided for. Complaints have been received that persons residing within the United States have taken on themselves to arm merchant vessels and to force a commerce into certain ports and countries in defiance of the laws of those countries. That individuals should undertake to wage private war, independently of the authority of their country, can not be permitted in a well-ordered society. Its tendency to produce aggression on the laws and rights of other nations and to endanger the peace of our own is so obvious that I doubt not you will adopt measures for restraining it effectually in future."

President Jefferson, annual message, Nov. 8, 1804, Richardson's Messages,
I. 370.

A citizen of the United States having intimated his intention to take guano from the Lobos Islands, the Department of State adverted to the fact that in 1842 the Peruvian Government issued two decrees prohibiting foreign vessels, on penalty of confiscation, from removing guano from any of the islands near the coast of Peru without a license from that Government, and said: "Under these circumstances, it is expected that the vessels which have proceeded thither under your auspices will not make use of the arms with which it

appears from your letter of the 16th instant they are provided for the purpose of forcibly resisting the Peruvian authorities. You must be aware that such a resistance would be an act of private war, which can never receive any countenance from this Government. The naval commander of the United States in the Pacific will also, under existing circumstances, be directed to abstain from protecting any vessels of the United States which may visit those islands for the purposes forbidden by the decrees of the Peruvian Government. until he shall receive further orders."

Mr. Webster, Sec. of State, to Mr. Jewett, Aug. 21, 1852, 40 MS. Dom.
Let. 300.

III. POWER TO MAKE.

$1105.

"To this state of general peace with which we have been blessed. one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger."

President Jefferson, annual message, Dec. 8, 1801, Richardson's Messages,
I. 326

On December 6, 1805, President Jefferson, when discussing Spanish depredations on our territory, said: “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided. I have barely instructed the officers stationed in the neighborhood of the aggressions, to protect our citizens from violence, to patrol within the borders actually delivered to us, and not to go out of them but when necessary to repel an inroad, or to rescue a citizen, or his property."

See 2 Am. State Papers, For. Rel. 613.

"The act of March 3, 1815, having premised that the Dey of Algiers had commenced a predatory warfare against the United States, gave to the President the same authority as in the preceding

case of Tripoli, to instruct, the commanders of public armed vessels, and to grant commissions to the owners of private armed vessels, to subdue, seize, and make prize of all vessels, goods, and effects of or belonging to the Dey of Algiers or to his subjects. (3 Stat. 230.)"

Lawrence's Wheaton (1863), 507.

A naval officer of the United States can not resort to force to compel delivery to him of American seamen unjustly imprisoned on a vessel in a foreign port. His duty is to demand the delivery of such seamen, and if this is refused, to resort to the civil authorities. He can, however, if there is an attempt forcibly to seize such seamen from their own vessels, forcibly intervene. "The employment of force is justifiable in resisting aggressions before they are complete. But when they are consummated, the intervention of the authority of government becomes necessary if redress is refused by the aggressor.”

Mr. Clay, Sec. of State, to Mr. Rebello, Mar. 22, 1827, MS. Notes to Foreign
Legs. III. 338.

“But if the claim were never so just, if it had been a case in which this Government were bound officially to interfere and if the amount due to the claimant had been acknowledged by the Hawaiian Government, the President could not employ the naval force of the United States to enforce its payment without the authority of an act of Congress. The war-making power alone can authorize such a measure. The President, therefore, regrets that you should have so far mistaken your powers as to have called upon Commander Du Pont of the Cyane in September last and inquired of him whether he would consider any directions or instructions from me [you] in my [your] official capacity as at all obligatory upon him in case I [you] should find it necessary to use the force under his command to compel compliance with any demands I [you] should think proper to make on this [Hawaiian] Government.' Commander Du Pont very properly replied in the negative; and informed you that under his general instructions he should feel bound to cultivate the most friendly relations with all the officials of this [the Hawaiian] Government.”

Mr. Buchanan, Sec. of State, to Mr. Ten Eyck, comr. to Hawaii, Aug. 28, 1848, MS. Inst. Hawaii, II. 1.

"In the first place, I have to say that the war-making power in this Government rests entirely with Congress; and that the President can authorize belligerent operations only in the cases expressly provided for by the Constitution and the laws. By these no power is given to the Executive to oppose an attack by one independent nation on the possessions of another. We are bound to regard both France and Hawaii as independent states, and equally independent, and though

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