can be made upon the point of law at this day." "It cannot be doubted," says the same judge, in the Anna Catharina, "that there are transactions so radically and fundamentally national as to impress upon them the national character, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal residence and occupation."

The Supreme Court of the United States has confirmed and extended this doctrine. In the case referred to, the claimant, a Dane, owned a plantation in Santa Cruz. That island, then belonging to Denmark, was captured and held by Great Britain for a time. The claimant withdrew from it at the date of its surrender, and returned to his native country. While he was still in Denmark, his agent at Santa Cruz shipped a cargo of sugar, which was the produce of his plantation, and it was captured at sea by a United States cruiser as enemy property, during our last war with England. Although Denmark was a friendly power, and the claimant was also, so far as appears, well disposed towards the United States, the sugar, being the produce of a plantation in an island which, at the time of shipment, was in the actual possession and control of England, then our enemy, was held to be lawful prize of war, and was condemned as such.

* Thirty Hogsheads of Sugar, Benzon, claimant, 9 Cranch. R. 191–199.

"The opinion," says the Court, " that the ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, was an opinion which prevailed very extensively. It was not an unreasonable opinion. Personal property may fol low the person anywhere; and its character, if found on the ocean, may depend on the domicile of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It was no extravagant perversion of principle, nor was it a violent offence to the course of human opinion, to say, that the proprietor, so far as respects his interest in the land, partakes of its character, and that its produce, while the owner remains unchanged, is subject to the same disabilities."*

An act of the Congress of the Confederate States, approved May 6, 1861, recognized and declared war with the United States, and authorized the use of all their land and naval forces, and the issue of letters of marque and reprisal. By an act approved August 8, 1861, all citizens not acknowledging the authority of the Confederate government, with certain exceptions, were ordered to depart from the Confederate States, and were declared public enemies.†

The Judges of the Supreme Court of the United States, in the recent case of the Hiawatha and other prize cases, having unanimously agreed in the opinion

*Wheaton's Int. Law, Part IV. chap. i. § 21.

† Statutes of the Provisional Congress, pp. 100, 101. Acts of the Provisional Congress, chap. 19, p. 174.

† 2 Black's S, C. Rep. 638. For analysis of these opinions, see pp. 238-243.

that the districts of country declared by the proclamations of the President to be in rebellion, and which were included in the non-intercourse act of July 13, 1861, were, after the passage of that act, to be treated by the courts as engaged in civil war, and that the inhabitants thereof were public enemies of the United States,* and were liable to all the disabilities of belligerent enemies, it follows that the principles of law as above stated inter gentes, equally apply to our civil war.† Hence no neutral or friendly alien, whatever his domicile during the war, has the right to claim indemnity for the capture or destruction, by the forces of the United States, of property which was the produce of his own plantations in any district of the country which was declared in rebellion; nor has he any right to withdraw that property from the belligerent country, unless by virtue of express treaty stipulations, or special authority granted to him in pursuance of the laws of the land.

Provision has been made by treaties between the United States and some foreign nations, whereby, in case of war breaking out between the two nations, it is stipulated that merchants of either nation, in the towns or cities which they inhabit, should be allowed six months after the declaration of war, to collect and transport their merchandise; and that, should they suffer

* For an examination of the cases on this subject, and the action of all departments of our government, see Military Government, pp. 290-306.

†The decision that the inhabitants of those parts of the country which have been declared in rebellion are, by the laws of war and under the Constitution and laws of the United States, public enemies, rests upon the authority of the political departments of our government. That decision is binding on the judiciary, whose duty is to recognize and conform to it. That duty has been honorably performed by the Judges of the Supreme Court in the above-cited cases, in which they decide whether certain ships and cargoes were or were not lawful prizes.

any damage or injury in the mean while, at the hands of the citizens or subjects of either of the contracting parties, they should have full and entire satisfaction. As this privilege, which is deemed, by some authoritative writers on international law, a right by the common law of war, is conceded to certain foreigners when their country is in open hostility to the United States, it would be inconsistent to refuse that right or privilege to the same foreigners, if, while preserving neutrality towards us, they should be overtaken by a civil war in the United States. A violation of this privilege by the government, or by any persons acting under its authority, should be followed with prompt and full indemnity:

"Aliens residing in belligerent districts; non-combatants, whether neutral, friendly, or hostile; persons engaged in hostility; persons belonging to the invading country, and accompanying the army, are alike within the jurisdiction of military government, and of military courts duly established therein."+

Aliens, who are subjects of a foreign government, having voluntarily enlisted in the service of the United States as substitutes for drafted men, are not entitled to be discharged from such service by reason of alienage; but may, under the law of nations, be held to perform their engagements, without giving the government to whom their allegiance is due, just cause of complaint.

* See treaty between the United States and France, 5 Feb., 1778.

† Military Government, p. 318.

See Opinion, No. 448 (p. 374), in the case of deserters from a French corvette, who were enlisted as substitutes, and whose discharge was claimed by the French consul.

"Service in the rebel army by an alien does not deprive him of the benefit of the plea of alienage against any claim of this government for military service. The volunteering of an alien in the army of the United States to serve for a given period, subjects him to all the rules and regulations of the military service during the term of his enlistment. After his contract of enlistment has expired he still has the rights of alienage against the United States. The proclamation (of neutrality) of the Queen gives the United States no rights over British subjects, though its violation subjects them to the penalties of British laws, and to those of the laws of war."*

"Persons who reside in a country engaged in active hostilities, and who so conduct themselves as to give reasonable cause to believe that they are aiding and comforting a public enemy, or that they are participating in any of those proceedings which tend to embarrass military operations, may be arrested; and if such persons shall be arrested and imprisoned for the purpose of punishing or preventing such acts of hostility, they are not entitled to claim indemnity for the injury to themselves or to their property, suffered by reason of such arrest and imprisonment. If the persons so arrested are the subjects of a foreign government, they cannot lawfully claim indemnity, because their own hostile conduct, while it has deprived them of the shelter of neutrality, has subjected them to penalties for having violated the laws of war. If a foreigner join the rebels, he exposes himself to the treatment of rebels.

* See Opinion, No. 433, p. 374. See also Wilson v. Izard, 1 Paine, 68. Juando v. Taylor, 2 Ib. 652; also, contra, Judge Conkling's Opinion in Matter of Ross (Recorder's Court of Buffalo, 1842). Opinions of the Attorney General, vol. iv. p. 350.