nations or by the Constitution which includes those laws, nor could any be made without doing violence to common sense. It is not always expedient to resort to the confiscation of lands, but in the late contest Congress judged it expedient and authorized it to a limited extent. The right to confiscate the lands of all the insurgents included, of course, the right to do less; and, for reasons that will readily occur to the reader, Congress ordered only the more influential classes of the domestic enemies to be touched in their property, real and personal. And even they were to be given an opportunity to appear as claimants in court, to deny their enemy character and affirmatively aver their right to the property and make out such a case as would prevent the government, in defending against such claim, from condemning the thing proceeded against, if the law and the facts were with them. The principal statute authorizing such procedure distinctly declares that if such property, "“ whether real or personal, shall be found to have belonged to a person engaged in rebellion, the same shall be condemned as enemies' property and become the property of the United States."1 § 274. Enemy Property does not Acquire its Status from Statutes. Now it is evident that neither the passage of that act, nor judicial condemnation under it, gives enemy property its status. The act could do nothing more than authorize procedure against it, (if such authorization is necessary, as some suppose,) adopt the methods, regulate the sales and dispose of the proceeds; the condemnation merely finds that the res is enemy property, and declares it such, and sentences it for hostility; but the enemy character, the hostile status of the thing proceeded against, must have been previously acquired. So soon as an owner, whether a citizen or not, becomes an enemy, all his property becomes enemy property, and is immediately liable to be captured or seized as such, and proceeded against in such way as Congress may determine. Nations may decline to seize or capture it, but it is liable to seizure and capture nevertheless. It is just as much a hostile thing when it is land or personal property upon land, as it is when in the form of a ship, 1 12 Stat. L. 591. upon water, owned by an enemy. No writer contends that the latter cannot be captured at once, without awaiting legislative expression of the government will to have it done. There is no less right to seize and capture enemy property on shore, except that it is not invariably the practice among nations to seize such things, and therefore there is not the same assurance that government designs to do so in any given war. So far as the law of nations is concerned, no difference exists between a thing at sea and a thing ashore, as to the time when either may be proceeded against after the enemy status has been acquired, § 275. Statutes Regulating the Exercise of the Right Find Warrant in the Constitution. But the statutes for seizing hostile property wherever found not only find warrant in the power to declare war, and to do whatever war means in the law of nations, but there are other powers given to Congress which authorize such laws. The express grant of power to make rules concerning captures on land and water, covers the case. It is true there is a difference, in legal parlance, between seizure and capture, but so far as concerns the grant, such a distinction would be too fine. If seizure is not expressed in the grant, it is clearly implied. And, whatever authority there is for seizing, extends to all such seizures of enemy things as may not be technically called captures. The § 276. No War Powers in the State Governments. powers entrusted by the people to the state governments for exercise embrace none of those above enumerated and discussed.1 There can be no allegiance due to a state, of such a character as to be in conflict with that due to the national government. States exist as de jure governments, under our system, only so long as they remain in accord with the general government. When several of them, by changing their constitutions, made 1 McCulloch v. Maryland, 4 Wh. 316; Cohens . Virginia, 6 Wh. 419; McIlvaine v. Cox, 4 Cr. 209; Buekner . Finley, 2 Pet. 586; Bank of United States v. Daniel, 12 Pet. 32; Rhode Island v. Massachusetts, 12 Pet. 657; Dodge v. Woolsey, 18 How. 336; United States v. Reese, 92 U. S. 214; United States v. Cruickshank, Ib. 542; Pennoyer v. Neff, 95 U. S. 714; Crandall v. Nevada, 6 Wall. 35; In re Steamboat Josephine, 39 N. Y. 19. those instruments repugnant to the national Constitution—as by requiring officers to swear allegiance to the Confederate States of America-they forfeit their de jure character. But, as they yet governed their former domain, they remained de facto state governments. They were such, however, only as to state functions-not as to their assumed national functions or belligerent character. Of course it is well settled that the Confederacy had no existence as a de facto government, since it did not extend over the whole realm of the United States. What follows in this work on the subject of the insurrectionists being treated as enemies, and the portion of the republic which they dominated for a time being treated as enemy territory in the application of the principles of war to the insurgents as a matter of convenience and necessity, should mislead no one into the impression that the late war was one between states, or that the insurgents had any legitimate title to belligerent rights. § 277. Effect of Public War Upon Enemy Property. When a sovereign power prosecutes its rights by force of arms against another sovereign power, public war exists.1 It exists, whether there has been any proclamation of war or not, though many writers have contended that it does not legally exist unless declared by the sovereign. In this they follow Grotius who says that the Law of Nations demands such declaration though the Law of Nature does not. Emerigon, 3 Vattel and Puffendorff support this position, though Bynkershoek takes the the opposite view. Other writers, among them Lord Stowell, following Bynkershoek, take the sensible ground that war may exist, and lawfully exist, without a formal declaration by either belligerent." The existence of war is a fact; and, when nations are fighting and killing each other, it cannot alter that fact if one should show that the contest had not been previously declared in due 1 Bynkershoek, Quæst. Jur. Pub. Liber i., c. 1, § 1; Albericus Gentilus, De Jure Belli, Lib. i., c. 2; Grotius, De Jure, Lib. i., c. 1, § 2. 2 De Jure, Lib. iii., c. 3, § 6. Traite des Assurances, i., 563. Liber iii., c. 4, § 51. 5 Lib. vii., c. 49. Quest. Jur. Pub. 1, c. 2. 7 The Eliza Ann, 1 Dodson, 247. form, either by the ancient method of announcing it by heralds. or the more modern form of printed proclamation. War between the governments of two nations renders all the people of the two mutually hostile, since the governments represent the will of the two peoples respectively. And it renders the property of the two warring nations mutually hostile; or to express the idea more clearly, it renders the property of either nation hostile to the people of the other nation. And this is entirely independent of individual opinions or of the quality of the property. Though the existence of war is a fact, yet it is a matter of importance that its beginning should have a date, since the relations of the contending people are so radically altered with regard to commerce and other matters, by the commencement of war, that it is necessary for the courts to know when the altered conditions were created. This period must be fixed, in some way, by the political power of government. As there can be no exchange nor sale of goods between belligerents, commerce is suspended by war.2 The neutrality of vessels and other property is lost by unlawful commerce with an enemy and the wronged belligerents may declare the status of such property to be hostile, and may con demn it. 3 Commerce, being suspended between belligerents in war, is also suspended between their respective allies; that is, the one party with its allies cannot trade with the other and its allies.4 And it has been held that the enemy character is impressed upon property purchased before the commencement of hostilities, as soon as they commence, so that a ship was condemned as trading with the enemy in its attempt to bring such goods out, but this is subject to exception and qualification. 11 Kent's Com., 63. 2 The Hoop, 1 Rob. 196; Potts v. The Lord Wellington, 2 Gall. Id. 532; The Mary, Id. 620; The • La Rosine, 2 Rob. 872; The Mary Potts v. Bell, 8 Term Rep. 548. |