been exercised in many cases, and since the publication of the earlier editions of the "War Powers," this right of capture, in its amplest extent, has heen directly, or by necessary implication, recognized and sanctioned by the political departments of the government, and by solemn and repeated adjudications of the courts of the United States.

In addition to the authorities cited in the 10th (Boston) edition, the reader is referred to several more recent decisions in the Circuit and Supreme Courts. See Mrs. Alexander's Cotton, 2 Wallace, R. 417. (1864–5.) App. 532. The Battle, 6 Wallace, 498.

Armstrong's Foundry, 6 Wallace, 769.

U. S. v. Republican Banner Office, 11 Pitt's Leg. Reg. 153.

Cooledge v. Guthrie (Opinion of Mr. Justice Swayne. Appendix, p. 591).

WAR POWERS USED BY THE CONFEDERATES.

Every clause in our Constitution which contains or limits the war powers of our government, was copied unaltered into the Constitution of the Confederate States. The interpretation of these powers by the Confederates is embodied in the several acts of their Provisional Congress, and in their Statutes at Large. The act of the Provisional Congress, Chap. 3, approved May 6, 1861, in which war was declared, was as follows:

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

Goods.

Whereas, the earnest efforts made by this 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 proposal 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 seventy-five thousand men for the purpose, as therein indicated, of capturing forts and other strongholds within the jurisdiction of, and belonging to, the Confederate States of America, and has detailed naval armaments upon the coasts of the Confederate 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 has seceded from the Federal Union, and entered into a convention of alliance offensive and defensive with the Confederate 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 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,

SEC. 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, or of the citizens or inhabitants of the States and Territories thereof, except the States and Territories hereinbefore named: 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 fifth 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.

SEC. 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.

SEC. 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 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.

SEC. 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 five thousand dollars, or if such vessel be provided with more than one hundred and fifty men, then in the penal sum of ten thousand 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.

SEC. 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 be 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.

SEC. 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 recaptured 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.

SEC. 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 proceeded against before a competent tribunal, and after condemnation and forfeiture thereof shall belong to the owners, officers and crew of the vessel capturing the same, and be distributed as before provided; and in the case of all captured vessels, goods and effects, which shall be brought within the jurisdiction of the Confederate States, the district courts of the Confederate States shall have exclusive original cognizance thereof, as in civil causes of admiralty and maritime jurisdiction; and the said courts, or the courts, being courts of the Confederate States, into which such cases shall be removed, and in which they shall be finally decided, shall and may decree restitution in whole or in part, when the capture shall have been made without just cause. And if made without probable cause, may order and decree damages and costs to the party injured, for which the owners and commanders of the vessels making such captures, and also the vessels, shall be liable.

SEC. 8. That all persons found on board any captured vessels, or on board any recaptured vessel, shall be reported to the collector of the port in the Confederate States in which they shall first arrive, and shall be delivered into the custody of the marshal of the district, or some court or military officer of the Confederate States, or of any State in or near such port, who shall take charge of their safe keeping and support, at the expense of the Confederate States.

SEC. 9. That the President of the Confederate States is hereby authorized to establish and order suitable instructions for the better governing and directing the conduct of the vessels so commissioned, their officers and crews, copies of which shall be delivered by the collector of the customs to the commanders, when they shall give bond as before provided.

SEC. 10. That a bounty shall be paid by the Confederate States of twenty dollars for each person on board any armed ship or vessel, belonging to the United States, at the commencement of an engagement, which shall be burnt, sunk or destroyed by any vessel commissioned as aforesaid, which shall be of equal or inferior force, the same to be divided as in other cases

of prize money; and a bounty of twenty-five dollars shall be paid to the owners, officers and crews of the private armed vessels commissioned as aforesaid, for each and every prisoner by them captured and brought into port, and delivered to an agent authorized to receive them, in any port of the Confederate States; and the Secretary of the Treasury is hereby authorized to pay or cause to be paid to the owners, officers and crews of such private armed vessels commissioned as aforesaid, or their agent, the bounties herein provided.

SEC. 11. That the commanding officer of every vessel having a commission or letters of marque and reprisal, during the present hostilities between the Confederate States and the United States, shall keep a regular journal, containing a true and exact account of his daily proceedings and transactions with such vessel and the crew thereof; the ports and places he shall put into or cast anchor in; the time of his stay there and the cause thereof; the prizes he shall take and the nature and probable value thereof; the times and places when and where taken, and in what manner he shall dispose of the same; the ships or vessels he shall fall in with; the times and places when and where he shall meet with them, and his observations and remarks thereon; also, of whatever else shall occur to him or any of his officers or marine, or be discovered by examination or conference with any marines or passengers of or in any other ships or vessels, or by any other means touching the fleets, vessels and forces of the United States, their posts and places of station and destination, strength, numbers, intents and designs; and such commanding officer shall, immediately on his arrival in any port of the Confederate States from or during the continuance of any voyage or cruise, produce his commission for such vessel, and deliver up such journal so kept as aforesaid, signed with his proper name and handwriting, to the collector or other chief officer of the customs at or nearest to such port; the truth of which journal shall be verified by the oath of the commanding officer for the time being. And such collector or other chief officer of the customs shall, immediately on the arrival of such vessel, order the proper officer of the customs to go on board and take an account of the officers and men, the number and nature of the guns, and whatever else shall occur to him on examination material to be known; and no such vessel shall be permitted to sail out of port again until such journal shall have been delivered up, and a certificate obtained under the hand of such collector or other chief officer of the customs that she is manned and armed according to her commission; and upon delivery of such certificate, any former certificate of a like nature which shall have been obtained by the commander of such vessel, shall be delivered up.

SEC. 12. That the commanders of vessels having letters of marque and reprisal as aforesaid, neglecting to keep a journal as aforesaid, or wilfully making fraudulent entries therein, or obliterating the record of any material transactions contained therein, where the interest of the Confederate States is concerned, or refusing to produce and deliver such journal, commission or certificate, pursuant to the preceding section of this act, then and in such cases the commissions or letters of marque and reprisal of such vessel shall be liable to be revoked; and such commanders respectively shall forfeit for every such offence the sum of one thousand dollars, one moiety thereof to the use of the Confederate States, and the other to the informer.

SEC. 13. That the owners or commanders of vessels having letters of marque and reprisal as aforesaid, who shall violate any of the acts of Congress for the collection of the revenue of the Confederate States, and for the prevention of smuggling, shall forfeit the commission or letters of marque and reprisal, and they and the vessels owned or commanded by them shall

be liable to all the penalties and forfeitures attaching to merchant vessels in like cases.

SEC. 14. That on all goods, wares and merchandise captured and made good and lawful prizes of war, by any private armed ship having commission or letters of marque and reprisal under this act, and brought into the Confederate States, there shall be allowed a deduction of thirty-three and one third per cent. on the amount of duties imposed by law.

SEC. 15. That five per centum on the net amount (after deducting all charges and expenditures) of the prize money arising from captured vessels and cargoes, and on the net amount of the salvage of vessels and cargoes recaptured by the private armed vessels of the Confederate States, shall be secured and paid over to the collector or other chief officer of the customs, at the port or place in the Confederate States at which such captured or recaptured vessels may arrive, or to the consul or other public agent of the Confederate States residing at the port or place not within the Confederate States at which such captured or recaptured vessel may arrive. And the moneys arising therefrom shall be held and are hereby pledged by the Government of the Confederate States as a fund for the support and maintenance of the widows and orphans of such persons as may be slain, and for the support and maintenance of such persons as may be wounded and disabled on board of the private armed vessels commissioned as aforesaid, in any engagement with the enemy, to be assigned and distributed in such manner as shall hereafter be provided by law.

Approved May 6, 1861.

This act made all citizens of the United States, with certain exceptions, alien public enemies of the Confederacy, and subjected their persons and property, of every description, real and personal, to the sternest rules of belligerent law. It authorized letters of marque, and provided for the adjudications of captured prizes. The acts of August 8, August 30, December 23, 1861, and February 15, 1862, will show the application of the laws of war to the persons and property of others not embraced in this act, and will give a striking exposition of the extreme severity with which belligerent law may be applied, without going beyond the Constitution as understood by rebels then, and by loyal citizens now. For these acts, see note to page 116, "On Confiscation."

[See page 48.]

DISTINCTION BETWEEN CAPTURE AND PRIZE.

In

The distinction between captures on land and prizes on the high seas, in respect to the mode and time of passing or changing the title of the property from the owner to the captor, as stated in the text (p. 48), has been recognized by the courts of the United States in several recent cases. the former the title passes as soon as the capture is complete. In the latter the right of property remains unchanged until a final decree of condemnation by courts of the country of the captors. See The Peterhoff, Bl. Pr. Cas. 620. (1865.)