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 func 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.

771

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 char acter 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 declaration of the existence of civil war.

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,

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 abso lute discretion over the subject matter.2

The Supreme Court has decided that this legislative enactment, clothes the executive with the exclusive authority of deciding whether the emergency 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.

1 The Santissima Trinidad, 7 Wheaton, 305.

2 Act of 1795; ch. xxxvi., §§ 1, 2.

3 Martin vs. Mott, 12 Wheat., 29; vide also, Story's Com. on the Const., §§ 1209, 1211.

This would seem to cover the entire ground. The facts recited in the executive proclamation, by which the blockade is ordered, and 75,000 militia are called into service, are equivalent to a⚫ declaration of the existence of a civil war, waged for the avowed purpose of effecting the destruction of the government-not a mere insurrection incited to resist the execution of an obnoxious law.

This is a political question which it is the province of the executive to determine.

Having thus determined that a civil war exists, as commander-in-chief of the army and the navy, the President becomes forthwith vested with the power of exercising all the rights resulting from a condition of war, known to the law of nations, prominent among which is that of blockading the ports of the enemy.

The difficulty which at first seems to embarrass the solution of this question arises out of the apparent inconsistency between the position which the parent government necessarily assumes in the institution of a blockade of the ports of its rebellious subjects, which is the position of a belligerent power exercising a right incident only to a condition of war, whether it be a public or a civil war; and its position, by which it denies to the people in rebellion one of the principal belligerent rights, namely, that of annoying the enemy's commerce without being subjected to the penalties of the municipal law of piracy.

But in truth there is no such inconsistency. A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sover

eign and belligerent, according to the several measures resorted to for the accomplishmen: et its purpose. By inflicting, through its agent the judiciary, • the penalty which the law affixes to the capital crimes of treason and piracy, upon those who shall be found guilty of levying war against the nation, or of committing depredations upon its commerce, it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, and thereby interdicting their commercial intercourse with the world, and enforcing this measure by capturing its vessels and cargoes wheresoever found, and by capturing the vessels of all nations that shall violate or attempt to violate the blockade imposed, or shall supply or attempt to supply them with any means whatever to enable them to continue their rebellion, the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as courts of prize, governed by and administering the law of nations. This position is very clearly stated by Chief-Justice Marshall. He says: "A sovereign who is endeavoring to reduce his revolted subjects to obedience, possesses both sovereign and belligerent rights, and is capable of acting in either character. If, as a legislator, he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and the proceedings under it will decide whether it is an exercise of belligerent rights, or exclusively of his sovereign power; and whether the court, in applying the law to particular cases, acts as a