icy; and this waiver may take the form of a denial of the existence of the power thus waived. In this manner Mr. Douglas not merely waived, but denied, the power of Congress to interfere with slavery in the territories; and in the same way members of the Re publican party have disclaimed the right, in time of peace, to interfere with slavery in the States; but such disclaimers, made for reasons of state policy, are not to be regarded as enlarging or diminishing the rights or duties devolved on the departments of govern ment, by a fair and liberal interpretation of all the provisions of the constitution.

Rising above the political platforms, the claims and disclaimers of Federalists, Democrats, Whigs, Republicans, and all other parties, and looking upon the constitution as designed to give the government made by the people, for the people, the powers necessary to its own preservation, and to the enforcement of its laws, it is not possible justly to deny the right of government to interfere with slavery, Mormonism, or any other institution, condition, or social status into which the subjects of the United States can enter, whenever such interference becomes essential as a means of "public welfare or common defence in time of war."*

* In several preceding chapters other branches of this subject have been discussed. See note to page 132.

NOTES ON THE WAR POWERS.

FIFTH EDITION.

MANY of the leading doctrines contained in the foregoing pages have received, since the publication of the fourth edition, the sanction of the Supreme Court of the United States, of whose authoritative and final decision in the prize cases, argued in the spring of 1863, the following is the substance:

IN THE SUPREME COURT OF THE UNITED STATES. Claimant of schooners Brilliant, Crenshaw, barque Hiawatha and others, appellants, vs. United States.

These causes came up by appeal from decrees in prize, of the Circuit Courts for the Southern District of New York, and the District of Massachusetts, affirming respectively the sentences of condemnation passed upon the vessels and cargoes by the District Courts for said districts. The following opinion is confined to the general questions of law which were raised by all the cases. It does not discuss the special facts and circumstances of the respective cases.

March 9th, 1863. Opinion of the Court by GRIER, J.

There are certain propositions of law which must necessarily affect the ultimate decision of these cases and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each. They

are,

First. Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the government, on the principles of international law, as known and acknowledged among civilized States ?

Second. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as enemies' property"?

I. Neutrals have a right to challenge the existence of a blockade de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion for the purpose of subduing the enemy.

That a blockade de facto actually existed and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases. That the President, as the executive chief of the government, and commander-in-chief of the army and navy, was the proper person to make such notification, has not been, and cannot be, disputed.

The right of prize and capture has its origin in the jus belli, and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel, or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory in possession of the other.

Let us inquire whether, at the time this blockade was instituted, a state (141)

of war existed which would justify a resort to these means of subduing the hostile force.

War has been well defined to be "that state in which a nation prosecutes its right by force." The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other.

When the

Insurrection against a government may or may not culminate in an organized rebellion; but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents the number, power, and organization of the persons who originate and carry it on. party in rebellion occupies and holds in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.

The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.

"A civil war," says Vattel, breaks the bands of society and government, or, at least, suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. This being the case, it is very evident that the common laws of war, those maxims of humanity, moderation, and honor, ought to be observed by both parties in every civil war. Should the sovereign conceive that he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., &c.; the war will be cruel, horrible, and every day more destructive to the nation."

As a civil war is never publicly proclaimed, eo nomine, 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 regular 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 government were foreign enemies invading the land." By the constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the constitution. The constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war, either against a foreign nation or a domestic State. But by the acts of Congress

of February 28th, 1795, and 3d of March, 1807, he is author.zed to call out the militia, and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.

If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral." Lord Stowell (1 Dodson, 247) observes, "It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge, to be accepted or refused at pleasure by the other."

This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

It is not the less a civil war, with belligerent parties in hostile array, because it may be called an "insurrection " by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of Santissima Trinidad, 7 Wheaton, 337, this Court says, "The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war. See also 3 Binn., 252.

As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, "recognizing hostilities as existing between the government of the United States of America and certain States styling themselves the Confederate States of America." This was immediately followed by similar declarations, or silent acquiescence, by other nations.

After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war, with all its consequences as regards neutrals. They 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 consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court are 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."

Whether the President, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him; and this Court must be governed by the decisions 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 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 case. The correspondence of Lord Lyons with the Secretary of State admits the fact and concludes the question.

If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in passing laws to enable the government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress, "ex majore cautela," passing an act, approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., "as if they had been issued and done under the previous express authority and direction of the Congress of the United States."

Without admitting that such an act was necessary under the circumstances, it is plain, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that the well-known principle of law, "Omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect.

In the case of Brown vs. United States, 8 Cranch, 131, 132, 133, Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes, “I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did. I would ask if the sovereign may not ratify his proceedings; and then, by a retroactive operation, give validity to them."

Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.

On this first question, therefore, we are of opinion that the President had a right jure belli to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.

II. We come now to the consideration of the second question. What is included in the term "enemies' property "?

Is the property of all persons residing within the territory of the States now in rebellion, captured on the high seas, to be treated as "enemies' property," whether the owner be in arms against the government or not?

The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the 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