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Chap. IV.

Note I.

cases submitted for our consideration. The principles which have just been stated apply alike to all of them.

The Tropic Wind.-A decision to the same effect had been pronounced on the 17th June, 1861, by the Judge of the District Court of the United States for the District of Columbia, in the case of the British schooner Tropic Wind, captured on the 21st May.

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"The President," said the Judge, "in his Proclamation relating to the blockade of the ports of the Confederate States, calling out 75,000 Militia to suppress insurrection and the resistance to the Federal laws, 'that nine States have so resisted,' and have threatened to alleges, issue letters of marque, to authorize the bearers thereof to commit assaults against the vessels, property, and lives of citizens engaged in commerce on the high seas and in the waters of the United States; that public property of the United States has been seized, the collection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody as prisoners, or have been impeded in the discharge of their official duties, without due legal process, by persons claiming to act under authorities of the States of Virginia and North Carolina.'

"These facts, so set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists.

"Blockade itself is a belligerent right, and can only legally have place in a state of war; and the notorious fact that immense armies in our immediate view are in hostile array against each other in the Federal and Confederate States, the latter having organized a Government, and elected officers to administer it, attest the executive declaration that civil war exists; a sad war, which, if it must go on, can only be governed by the laws of war, and its evils mitigated by the principles of clemency engrafted upon the war code by the civilization of modern times."

The Amy Warwick." In addition," said Judge Sprague, in the case of the Amy Warwick, "to other important acts, the President, by Proclamation of the 27th of April, established a blockade of the ports of Virginia. This was the exercise of a great belligerent right, and could have been done under no other. He could not prohibit or restrict the commerce of any State by a mere municipal regulation. The blockade was avowedly established as a belligerent act under the law of nations; and it was accordingly announced that it would be rendered effective by an adequate naval force, and in all proceedings in relation to it by our own country and other nations it has been regarded as a belligerent act. . . That the United States in this war has on the ocean all the rights of belligerents, has never been distinctly controverted. To deny it is to break up the blockade, and every condemnation under it."

"I understand and agree," said Mr. Evarts, arguing as Counsel for

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Note I.

the United States in the prosecution of the crew of the Savannah, Chap. IV. "that for certain purposes there is a condition of war which forces itself on the attention and duty of Governments, and calls on them to exert the power and force of war for their protection and maintenance. . Nor, gentlemen, have I ever denied, nor shall I here deny, that when the proportions of a civil dissension or controversy came to the port and dignity of war, good sense and common intelligence require the Government to recognize it as a question of fact according to the actual circumstances of the case, and to act accordingly. I, therefore, have no difficulty in conceding that outside of any question of law and rightoutside of any question as to whether there is a Government down there, whether nominal or real, or that can be described as having any consistency of any kind under our law and Government-there is prevailing in this country a controversy which is carried on by the methods and which has the proportions and extent of what we call war. And I admit that if this Government of ours were not a party to this controversy if it looked at it from the outside, as England and France have done our Government would have had the full right to treat these contending parties in its courts and before its laws as belligerents engaged in hostilities, as it would have had an equal right to take the opposite course."

The reader may further consult an able pamphlet by a lawyer, highly esteemed in this country as well as in the United StatesMr. Whiting: The War Powers of the President, and the Legislative Powers of Congress in relation to Rebellion, Treason, and Slavery. (Boston: Seventh edition, 1863.)

Mr. Whiting observes, p. 45: "The Government have in fact treated the insurgents as belligerents without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, 'in express terms, and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded harbours ports of entry. They have relied solely on their 'belligerent' rights, under the law of nations."

It would be a correct account, probably, of the law of the United States as interpreted by the Supreme Court to say that, as regards inhabitants of the Confederate States, the rights of citizenship were suspended during the revolt, but not its obligations. Such persons, taken in arms against the Union, would have been held punishable as offenders against its laws. In the case of the crew of the Savannah, captured on the 3rd June, 1861, and in that of William Smith, one of the crew of the Jeff. Davis, taken prisoner on board of the schooner Enchantress, a re-captured prize, no doubt was entertained on that head. But the

Chap. IV
Note I.

crew of the Savannah were not, in fact, punished as malefactors, the proceedings against them being dropped, after a trial in which the jury were unable to agree upon a verdict; nor was Smith himself, though against him a conviction was obtained. They were transferred, under an order issued to the marshals in whose keeping they were by the Secretary of State, to a military prison, where they were detained as prisoners of war. The Confederate Government had threatened retaliation, and would certainly have executed the threat. To avoid this, as well as on general grounds of humanity, men taken in arms were throughout the contest treated as prisoners of war, and exchanges were effected by means of cartel arrangements between the Generals in command.

Some difference of opinion has existed, and, I believe, still exists, as to the time at which the state of war, with the rights which it conferred on the United States as against the people of the South, ought to be deemed to have terminated. The continued existence of those rights has been regarded as justifying the Reconstruction Acts, the Act of the 2nd March, 1867, by which the Southern States were parcelled out into military districts and placed under military control, and the exercise of military jurisdiction in those States. Upon this head the reader may refer to the opinion of Attorney-General Hoar on the case of Weaver, tried and sentenced by a military tribunal in 1868 (in which Mr. Hoar speaks of the war as having been a war between the States" as organized communities," and the United States), and the case of Semmes v. City Fire Insurance Company, in the United States' Circuit Court, American Law Review, October 1869.

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An Act recognizing the Existence of War between the United States and the Confederate States; and concerning Letters of Marque, Prizes, and Prize Goods.

(Passed by the Congress of the Confederate States, 6th May, 1861).

"Whereas the earnest efforts made by the Government to establish friendly relations between the Government of the United States and the Confederate States, and to settle all questions of disagreement between the two Governments upon principles of right, justice, equity, and good faith, have proved unavailing by reason of the refusal of the Government of the United States to hold any intercourse with the commissioners appointed by this Government for the purposes aforesaid, or to listen to any proposals they had to make for the peaceful solution of all causes of difficulty between the two Governments: and whereas the President of the United States of America has issued his proclamation making requisition upon the States of the American Union for 75,000 men for the purpose, as therein indicated, of capturing forts and other strongholds within the jurisdiction of and belonging to the Confederate States of

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Note II.

America, and has detailed naval armaments upon the coasts of the Con- Chap. IV. federate States of America, and raised, organized, and equipped a large military force to execute the purpose aforesaid, and has issued his other proclamation announcing his purpose to set on foot a blockade of the ports of the Confederate States: and whereas the State of Virginia bas seceded from the Federal Union and entered into a convention of alliance offensive and defensive with the Coufederate States, and has adopted the Provisional Constitution of the said States, and the States of Maryland, North Carolina, Tennessee, Kentucky, Arkansas, and Missouri have refused, and it is believed that the State of Delaware and the inhabitants of the the territories of Arizona and New Mexico, and the Indian territory South of Kansas, will refuse, to co-operate with the Government of the United States in these acts of hostilities and wanton aggression, which are plainly intended to overawe, oppress, and finally subjugate the people of the Confederate States: and whereas, by the acts and means aforesaid, war exists between the Confederate States and the Government of the United States and the States and territories thereof, except the States of Maryland, North Carolina, Tennessee, Kentucky, Arkansas, Missouri, and Delaware, and the territories of Arizona and New Mexico, and the Indian territory South of Kansas: therefore,

"1. The Congress of the Confederate States of America do enact, That the President of the Confederate States is hereby authorized to use the whole land and naval force of the Confederate States to meet the war thus commenced, and to issue to private armed vessels commissions, or letters of marque and general reprisal, in such form as he shall think proper under the seal of the Confederate States, against the vessels, goods, and effects of the Government of the United States, and of the citizens or inhabitants of the States and territories thereof: Provided however, That property of the enemy (unless it be contraband of war) laden on board a neutral vessel shall not be subject to seizure under this Act: And provided further, That vessels of the citizens or inhabitants of the United States now in the ports of the Confederate States, except such as have been since the 5th of April last, or may hereafter be, in the service of the Government of the United States, shall be allowed thirty days after the publication of this Act to leave said ports and reach their destination; and such vessels and their cargoes, excepting articles contraband of war, shall not be subject to capture under this Act during said period, unless they shall have previously reached the destination for which they were bound on leaving said ports.

"2. That the President of the Confederate States shall be, and he is hereby, authorized and empowered to revoke and annul, at pleasure, all letters of marque and reprisal which he may at any time grant pursuant to this Act.

"3. That all persons applying for letters of marque and reprisal pursuant to this Act shall state in writing the name and a suitable description of the tonnage and force of the vessel, and the name and place of residence of each owner concerned therein, and the intended number

Note II.

Chap. IV. of the crew; which statement shall be signed by the person or persons making such application, and filed with the Secretary of State, or shall be delivered to any other officer or person who shall be employed to deliver out such commissions, to be by him transmitted to the Secretary of State. "4. That before any commission or letters of marque and reprisal shall be issued as aforesaid, the owner or owners of the ship or vessel for which the same shall be requested, and the commander thereof for the time being, shall give bond to the Confederate States, with at least two responsible sureties not interested in such vessel, in the penal sum of 5,000 dollars, or if such vessel be provided with more than 150 men, then in the penal sum of 10,000 dollars, with condition that the owners, officers, and crew who shall be employed on board such commissioned vessel, shall and will observe the laws of the Confederate States, and the instructions which shall be given them according to law for the regulation of their conduct, and will satisfy all damages and injuries which shall be done or committed contrary to the tenor thereof by such vessel during her commission, and to deliver up the same when revoked by the President of the Confederate States.

"5. That all captures and prizes of vessels and property shall be forfeited and shall accrue to the owners, officers, and crews of the vessels by whom such captures and prizes shall be made, and, on due condemnation had, shall be distributed according to any written agreement which shall he made between them; and if there be no such written agreement, then one moiety to the owners and the other moiety to the officers and crew, as nearly as may be, according to the rules prescribed for the distribution of prize money by the laws of the Confederate States.

"6. That all vessels, goods, and effects, the property of any citizen of the Confederate States, or of persons resident within and under the protection of the Confederate States, or of persons permanently within the territories and under the protection of any foreign prince, Government, or State in amity with the Confederate States, which shall have been captured by the United States, and which shall be re-captured by vessels commissioned as aforesaid, shall be restored to the lawful owners, upon payment by them of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court having jurisdiction, according to the nature of each case, agreeably to the provisions established by law. And such salvage shall be distributed among the owners, officers, and crews of the vessels commissioned as aforesaid, and making such captures, according to any written agreement which shall be made between them; and in case of no such agreement, then in the same manner and upon the principles herein before provided in cases of capture.

"7. That before breaking bulk of any vessel which shall be captured as aforesaid, or other disposal or conversion thereof, or of any articles which shall be found on board the same, such captured vessel, goods, or effects shall be brought into some port of the Confederate States, or of a nation or State in amity with the Confederate States, and shall be

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