States have full belligerent rights against all persons residing in the districts declared by the President's Proclamation to be in rebellion."

That the laws of war, "whether that war be civil or inter

qualified language "that the Supreme Court have decided in effect" the propositions as stated.

To show wherein all the judges agree, the following extracts are collected from the Decision and from the Dissenting Opinion.

EXTRACTS FROM THE OPINION OF THE COURT.

declaration of war is necessary in case of

civil war.

Test of its existence.

"As a civil war is never publicly proclaimed eo nomine, No 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 writings of the sages of the common law, may be thus summarily stated: When the 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 Rebels to be government were foreign enemies invading the land. See eign invaders. 2 Black R. 667, 668.

66

They (foreign nations) 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 powers by subtle definitions and ingenious sophisms. The law of nations is also called the law of nature. It is founded on the common sense as well as the common consent of the world. It contains no such anomalous doctrine, as that which this court is 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."

treated as for

decide whether

Whether the President, in fulfilling his duties as command- President must er-in-chief in suppressing an insurrection, has met with such the enemy shall armed hostile resistance, and a civil war of such alarming pro- gerents. portions, as will compel him to accord to them the character

be deemed belli

gentes, converts every citizen of the hostile State into a public enemy, and treats him accordingly, whatever may have been his previous conduct."

That all the rights derived from the laws of war

low the decision

Court must fol- of belligerents, is a question to be decided by him, and this of the President. court must be governed by the decision and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands." The proclamation of blockade is of 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

Belligerent right

to seizure and

ty of all kinds, on land or sea.

case.

"The right of one belligerent, not only to coerce the other destruction of by direct force, but also to cripple his resources by the enemy's proper- seizure or destruction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy by capturing his property on the high seas. Page 671.

All persons re

siding in bell

gerent districts

mies, and their

CONFISCATION.

"All persons residing within this territory (seceded States) whose property may be used to increase the revenues of the are public ene- hostile power, are, in this contest, liable to be treated as property liable enemies, though not foreigners. They have cast off their to be captured. allegiance, and made war on their government, and are none the less enemies because they are traitors." Opinion, page 674.

Public war enti

EXTRACTS FROM THE DISSENTING OPINION.

"A contest by force, between independent sovereign States, tles both parties is called a public war; and when duly commenced, by proclato the rights of war against each mation or otherwise, it entitles both of the belligerent parties to all the rights of war against each other, and as respects neutral nations." Page 686, 687.

other.

Legal consequences of war,

shown by inter national law.

"The legal consequences resulting from a state of war between two countries, at this day, are well understood, and will be found described in every approved work on the subject of international law."

may now, since 1861, be lawfully and constitutionally exercised against all the citizens of the districts in rebellion.

two countries

become, in law,

enemies.

enemies' property on land

to capture and confiscation.

"The people of the two countries immediately become the People of the enemies of each other, &c. . . All the property of the people of the two countries, on land or sea, are subject to capture and confiscation by the adverse party as enemies' pro- All perty, with certain qualifications as it respects property on and sea is subject land. (Brown vs. U. S., 8 Cranch, 110.) All treaties between the belligerent parties are annulled." Page 677. "This great and pervading change in the existing condition of a country, and in the relation of all her citizens or subjects, external and internal, is the immediate effect and result of a state of war." Page 688.

Civil war draws rights of war,

after it all the

"In the case of a rebellion, or resistance of a portion of The government may recognize the people of a country, against the established government, civil war. there is no doubt, if, in its progress and enlargement, the government thus sought to be overthrown, sees fit, it may, by the competent power, recognize or declare the existence of a state of civil war, which will draw after it all the consequences and rights of war, between the contending parties, as in the case of a public war, Mr. Wheaton observes, speaking of civil war : "But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war, as against each other, and even as respects neutral nations." Page 688.

the same as in a foreign war.

"Before this insurrection against the established government can be dealt with on the footing of a civil war, within the meaning of the law of nations and the Constitution of the United States, and which will draw after it belligerent rights, it must be recognized or declared by the war-making power of the government. No power short of this can Civil war must be recognized by change the legal status of the government, or the relations Congress before of its citizens from that of peace to a state of war, or bring it can draw after it full belligerinto existence all those duties and obligations of neutral ent rights. third parties, growing out of a state of war. The war power of the government must be exercised before this changed condition of the government and people, and of neutral third parties, can be admitted. There is no difference in this respect between a civil or a public war." Page 689.

RIGHTS OF REBELS AS PERSONS, AS CITIZENS OF STATES, AND AS SUBJECTS OF THE UNITED STATES, ARE, ACCORDING TO THE CONSTITUTION, TO BE SETTLED BY THE LAWS OF WAR.

Such being the law of the land, as declared by the Supreme Court, in order to ascertain what are the legal or constitutional rights of public enemies, we have only

Civil war attach

es to it all the

"It must be a war in a legal sense (in the sense of the consequences of law of nations, and of the Constitution of the United States) belligerent to attach to it all the consequences that belong to belligerent once recognized rights. Instead, therefore, of inquiring after armies and by Congress.

rights, when

Civil war con

verts every citi

navies, and victories lost and won, or organized rebellion against the general government, the inquiry should be into the law of nations, and into the municipal and fundamental laws of the government. For we find there, that to constitute a civil war, in the sense in which we are speaking, before it can exist in contemplation of law, it must be recognized or declared by the sovereign power of the state; and which sovereign power, by our Constitution, is lodged in the Congress of the United States. Civil war, therefore, under our system of government, can exist only by an act of Congress, which requires the assent of two of the great departments of the government, the executive and the legislative." Page 690.

"The laws of war, whether the war be civil or inter gentes, zen of the hostile as we have seen, convert every citizen of the hostile state state into a pub- into a public enemy, and treats him accordingly, whatever may have been his previous conduct.”

lic enemy.

Innocent per

sons

cannot

"Congress alone can determine whether war exists or lawfully be should be declared. And until they have so acted, no citizen ished, or their of the state can be punished in his person or property unless

pun

lands confiscated

state of civil

as enemies, until he has committed some offence against a law of Congress, Congress has recognized a passed before the act was committed, which made it a crime and defined the punishment. Until then, the penalty of confiscation for the acts of others with which he had no concern, cannot lawfully be inflicted."

war.

Congress

recognize

did

civil

"By the Act of 16 Geo. III., 1776, all trade between the colonies and Great Britain was interdicted."

"From this time the war (of the revolution) became a

war by Act of territorial, civil war between the contending parties, with all July 13, 1861.

the rights of war known to the law of nations."

"The Act of Congress of July 13, 1861, we think recog

to refer to the settled principles of the belligerent law of nations or the laws of war.

Some of the laws of war are stated in both the Opinions in the case above mentioned. A state of foreign war instantly annuls the most solemn treaties between nations. It terminates all obligations in the nature of

nized a state of civil war between the government and the Confederate States, and made it territorial." Page 695.

"We agree, therefore, that the Act of the 13th of July, 1861, recognized a state of civil war between the government and the people of the States described in that Proclamation (of August 16, 1861). Page 696.

follow the de

cision of the po

litical powers.

Civil war did

not exist until

"But this (the right of the President to recognize a state of civil war as existing between a foreign government and its colonies) is a very different question from the one before us, which is, whether the President can recognize or declare a civil war, under the Constitution, with all its belligerent rights, between his own government and a portion of its citizens in a state of insurrection. That power, as we have Courts must seen, belongs to Congress. We agree when such a war is recognized, or declared to exist by the war-making power, but not otherwise, it is the duty of courts to follow the decision of the political power of the government." Page 697. "No civil war existed between this government and the States in insurrection till recognized by the Act of Congress of July 13, 1861. The President does not possess the power, it all belligerent under the Constitution, to declare war, or recognize its exist- rights. ence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war. This power belongs exclusively to the Congress of the United. States, and consequently the President had no power to set on foot a blockade under the law of nations, and the capture of the vessel and cargo in all the cases before, in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemy's property, is illegal and void." Page 699.

Mr. Chief Justice TANEY and Messrs. Justices CATRON and CLIFFORD concurred with Mr. Justice NELSON in the Dissenting Opinion.

July 13, 1861, 80

as to carry with