declared to exist by the war-making power, but not otherwise, it is the duty of the courts to follow the decision of the political power of the govern ment. The case of Luther vs. Borden, et al. (7 How., 45), which arose out of the attempt of an assumed new government in the State to overthrow the old and established government of Rhode Island by arms. The Legislature of the old government had established martial law, and the Chief Justice, in delivering the opinion of the court, observed, among other things, that "if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force, and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and overcome the unlawful opposition." But it is only necessary to say, that the term "war" must necessarily have been used here by the Chief Justice in its popular sense, and not as known to the law of nations, as the State of Rhode Island confessedly possessed no power under the Federal Constitution to declare war. Congress, on the 6th of August, 1862, passed an Act confirming all acts, proclamations, and orders of the President, after the 4th of March, 1861, respecting the army and navy, and legalizing them, so far as was competent for that body, and it has been suggested, but scarcely argued, that this legislation on the subject had the effect to bring into existence an ex post facto civil war, with all the rights of capture and confiscation, jure belli, from the date referred to. An ex post facto law is defined, when, after an action, indifferent in itself, or lawful, is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts punishment upon the person who committed it. The principle is sought to be applied in this case. Property of the citizen or foreign subject engaged in lawful trade at the time, and illegally captured, which must be taken as true if a confirmatory act be necessary, may be held and confiscated by subsequent legislation. In other words trade and commerce authorized at the time by acts of Congress and treaties, may, by ex post facto legislation, be changed into illicit trade and commerce with all its penalties and forfeitures annexed and enforced. The instance of the seizure of the Dutch ships in 1803 by Great Britain before the war, and confiscation after the declaration of war, which is well known, is referred to as an authority. But there the ships were seized by the war power, the orders of the government, the seizure being a partial exercise of that power, and which was soon after exercised in full. The precedent is one which has not received the approbation of jurists, and is not to be followed. See W. B. Lawrence, 2d ed. Wheaton's Element of Int. Law, pt. 4, ch. 1, sec. 11, and note. But, admitting its full weight, it affords no authority in the present case. Here the captures were without any constitutional authority, and void; and, on principle, no subsequent ratification could make them valid. Upon the whole, after the most careful consideration of this case which the pressure of other duties has admitted, I am compelled to the conclusion that no civil war existed between this government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861; that the President does not possess the power under the Constitution to declare war or recognize its existence 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; that this power belongs exclusively to the Congress of the United States, and, consequently, that the President had no power to set on foot a blockade under the law of nations, and that the capture of the vessel and cargo in this case, and in all cases before us in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemies' property, are illegal and void, and that the decrees of condemnation should be reversed and the vessel and cargo restored. Mr. Chief Justice TANEY, Mr. Justice CATRON, and Mr. Justice CLIFFORD, concurred in the Dissenting Opinion of Mr. Justice NELSON. From the foregoing opinion of the judges who dissented from the opinion of the majority of the Court, it will be seen that the Court were unanimous on several great questions treated of in the preceding work. The judges all agree in considering a civil war (with all the consequences to the residents of the seceding States of a public territorial war) to have existed since the act of July 13th, 1861, and still to exist. The question on which the judges differed was, whether the rebellion was or was not a civil territorial war prior to this Act of Congress. Among the points thus authoritatively settled by agreement of all the judges, are these: 1. Since July 13th, 1861, there has existed between the United States and the Confederate States a civil, territorial war. 2. That the United States, since that time, have full belligerent rights against all persons residing in the rebellious districts. 3. That whether the inhabitants of the rebellious districts are guilty or innocent, loyal or disloyal, such persons are, in the eye of the law, belligerent enemies, and they and their property are subject to the laws of war. "The laws of war, whether the war be civil or inter gentes, converts every citizen of the hostile State into a public enemy, and treats him accordingly, whatever may have been his previous conduct." 4. All the rights of war now may be lawfully and constitutionally exercised against all the inhabitants of the seceded States. The following extract from the same opinion shows what some of these belligerent rights are : — "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. The people of the two countries immediately become enemies of each other; all intercourse, commercial or otherwise, between them unlawful; all contracts existing at the commencement of the war suspended, and all made during its 'existence utterly void. The insurance of enemies' property, the drawing of bills of exchange or purchase in the enemy's country, the remission of bills or money to it, are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved, and in fine, interdiction of trade and intercourse, direct or indirect, is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries, on land or sea, is subject to capture and confiscation by the adverse party, as enemies' property, with certain qualifications as it respects property on land. (8 Cranch, 110, Brown vs. United States.) All treaties between the belligerent parties are annulled. The ports of the respective countaies may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prize, as defined by the law of nations, comes into full and complete operation, resulting from maritime captures iure belli. War also effects a change in the mutual relations of all States or countries, not directly, as in case of belligerents, but immediately and indirectly, though they take no part in the contest, but remain neutral. “The great and pervading change in the condition of a country, and in the relations of all her citizens and subjects, external and internal, from a state of peace, is the immediate effect and result of a state of war." PREFACE TO MILITARY ARRESTS. In November, 1862, when the author was first requested by the Government to act as Solicitor and special counsel of the War Department, civil suits and criminal prosecutions were pending against military officers and other persons who, acting under orders of the War Department, had arrested and detained in custody citizens of the United States, and aliens. It was a part of the duty assigned to him to instruct counsel employed in different parts of the country for the defence of those who had been wrongfully subjected to such proceedings by reason of their obedience to orders. As time advanced, suits and prosecutions multiplied, involving men in high position. Treason reared its head in many shapes and in many places in the Northern States. Attempts were constantly made to bring the judicial power of individual States into collision with the military forces of the Union. In all such cases, it was essential to preserve the power and dignity of the General Government unimpaired, and at the same time to avoid open rupture with the courts; hence it was desirable to meet and foil the secret enemies of their country by the use of judicial weapons. The stern demands of military necessity were to be reconciled with the maintenance of civil liberty, and with the preservation of local selfgovernment. It became necessary to show that when, in time of war, the life of the body politic was in danger, the surgeon's knife was the only instrument by which that life could be saved. The judicial mind was then far from comprehending either the perilous condition of public affairs, the change wrought by civil war in the rights, powers, and duties of the bench, or the danger of destroying the government itself by collision between its Political and Judicial Departments. The powers of war, the rights of war, and the courts of war, seemed equally strange and alarming; and it is a gratifying proof of the learning and wisdom of the bench, of the bar, and of Congress, that recognition and sanction of doctrines of constitutional law, 159 |