capture, was controlled and managed by the partners in the enemy country.* Even where the part-owners of a ship are tenants in common, the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of a ship's husband as managing owner.† Admiralty, however, in certain cases, if no ship's husband has been appointed, will interfere to prevent the majority from employing the ship against the will of the minority without first entering into stipulation to bring back the ship or pay the value of their shares. But the dissenting owners, in such a case, bear no part of the expenses of the voyage objected to, and are entitled to no part of the profits. Such are the general rules touching the employment and control of ships; but unless the co-owners agree in the choice of a managing owner, or the dissenting minority go into admiralty, the majority in interest control the employment of the ship, and appoint the master. ‡ Tenants in common of a ship can only sell their own respective shares, but where the ship belongs to a partnership, one partner may sell the whole ship. § 3. Proclamation of blockade was made by the President on the nineteenth day of April, 1861, and on the thirteenth day of July, in the same year, Congress passed a law authorizing the President to interdict, by proclamation, all trade and intercourse between the inhabitants of the States in insurrection and the rest of the United States. || The provision of the sixth section of the act is, that after fifteen days from the issuing of such proclamation, any ship or vessel belonging in whole or part to any citizen or inhabitant of a State or part of a State, whose inhabitants shall be so declared to be in insurrection, if found at sea or in the port of any loyal State, may be forfeited. Reference is made to those provisions, as showing that our citizens were duly notified that Congress, as well as the President, had recognized the undeniable fact that civil war existed between the constitutional government and the Confederate States; and that seasonable notice was given to all whose interests could be affected, and that ample opportunity and every facility were extended to them, which could properly be granted, to enable them to withdraw their effects from the States in rebellion, or to dispose of such interests as in the nature of things could not be removed. Open war had existed between the belligerents for more than two years before the capture in this case was made, and yet there is not the slightest evidence in the record that the appellant ever attempted, or manifested any desire, to withdraw his effects in the partnership, or to dispose of his interest in the steamer. The effect of the war was to dissolve the partnership, and the history of that period furnishes plenary evidence that ample time was afforded, to every loyal citizen desiring to improve it, to withdraw all such effects and dispose of all such interests. Partnership with a foreigner," says Maclachlan, "is dissolved by the same event which makes him an alien enemy;" and Judge Story says, that "there is, in such cases, an utter incompatibility, created by operation of law, between the partners, as to their respective rights, duties, and obligations, both public and private, * Helme v. Smith, 7 Bingham, 709. † Smith's Mercantile Law, 6th ed. 197. Maude and Pollock on Shipping, 67, 72. § 3 Kent's Com. 11th ed. 154; Wright v. Hunter, 1 East. 20; Lamb v. Durant, 12 Mass. 54. 12 Stat. at Large, 1258, 257. and therefore that a dissolution must necessarily result therefrom, independent of the will or acts of the parties.' Executory contracts with an alien enemy, or even with a neutral if they cannot be performed except in the way of commercial intercourse with the enemy, are ipso facto dissolved by the declaration of war, which operates to that end, and for that purpose with a force equivalent to that of an act of Congress.† The duty of a citizen when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable, and adhere to the regular established government. Domicile, in the law of prize, becomes an important consideration, because every person is to be considered in such proceedings as belonging to that country where he has his domicile, whatever may be his native or adopted country. ‡ 4. Personal property, except such as is the produce of the hostile soil, follows, as a general rule, the rights of the proprietor; but if it is suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicile, severing those business relations, or disposing of their effects, as matter of duty to their own government, and as tending to weaken the enemy. The presumption of the law of nations is against one who lingers in the enemy's country, and if he continues there for much length of time, without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy. § Ships purchased from an enemy by such persons, though claimed to be neutral, are for the same reasons liable to condemnation, unless the delay of the purchaser in changing his domicile is fully and satisfactorily explained. Omission of the appellant to dispose of his interest in the steamer, and his failure to withdraw his effects from the rebellious State, are attempted to be explained and justified, because the same wère, as alleged in the petition, confiscated during the rebellion, under the authority of the rebel government. More than a year, however, had elapsed, after the proclamation of blockade was issued, before any such pretended confiscation took place. Members of a commercial firm domiciled in the enemy country, whether citizens or neutrals, after having been guilty of such delay in disposing of their interests or in withdrawing their effects, cannot, when the property so domiciled and so suffered to remain is captured as prize of war, turn round and defeat the rights of the captors, by proving that their own domicile was that of a friend, or that they had no connection with the illegal voyage. Property suffered so to remain has impressed upon it the character of enemy property, and may be condemned as such or for breach of blockade. Prize courts usually apply these rules where the partnership effects of citizens or neutrals is suffered to remain in the enemy country, under the control and management of the other partners, who are enemies. But there are other rules applicable to ships owned under such circumstances which must not be overlooked in this case. * Maclachlan on Shipping, 475; Story on Partnership, § 316; Griswold v. Waddington, 15 Johnson, 57; same case, 16 Id. 438. † Exposito v. Bowden, 7 Ellis and Blackburne, 763. The Vigilantia, 1 C. Robinson, 1; The Venus, 8 Cranch, 288; 3 Phillimore's International Law, 128. § Maclachlan on Shipping, 480; The Ocean, 5 Robinson, 91; The Venus, 8 Cranch, 278. MAURAN v. INSURANCE COMPANY, 6 Wallace, 14. (1867-8.) The chief point in this case is well stated by Mr. Wallace, the excellent Reporter of the Supreme Court, thus: — "A taking of a vessel by the naval forces of a now extinct rebellious confederation, whose authority was unlawful, and whose proceedings in overthrowing the former government were wholly illegal and void, and which confederation has never been recognized as one of the family of nations, is a 'capture' within the meaning of a warranty on a policy of insurance having a marginal warranty, 'Free from loss or expense by capture'-if such rebellious confederation was at the time sufficiently in possession of the attributes of government to be regarded as in fact the ruling or supreme power of the country over which its pretended jurisdiction extended, and if it had been substantially, though informally, treated as a belligerent by our government. Accordingly, a seizure by a vessel of the late so-called Confederate States of America, for their benefit, was a capture within the terms of such a warranty." The court say, The Constitution of the United States, which is the fundamental law of each and all of them, not only afforded no countenance or authority for these proceedings (the organization of a rebel confederacy), but they were in every part of them in express disregard and violation of it. Still it cannot be denied but that, by use of these unlawful and unconstitutional means, a government in fact was erected greater in territory than many of the old governments of Europe, complete in the organization of all its parts, containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions, and during all which time the exercise of many belligerent rights were either conceded to it, or were acquiesced in by the supreme government, such as the treatment of captives, both on land and sea, as prisoners of war; the exchange of prisoners; their vessels captured recognized as prizes of war, and dealt with accordingly; their property seized on land referred to the judicial tribunal for adjudication; their ports blockaded, and the blockade maintained by a suitable force, and duly notified to neutral powers, the same as in open and public war. We do not inquire whether these were rights conceded to the enemy by the laws of war among civilized nations, or were dictated by humanity to mitigate the vindictive passions growing out of a civil conflict. We refer to the conduct of the war as a matter of fact, for the purpose of showing that the so-called Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as in possession of the country; and hence captures under its commission were among those excepted out of the policy by the warranty of the insured. We could greatly extend the opinion upon this branch of the case, by considerations in support of the above view; but the question has undergone very learned and able examinations in several of the State courts deservedly of the highest eminence, and which have arrived at the same conclusion, and to which we refer as rendering further examination * Dole v. New England Mutual Insurance Company, 6 Allen, 373; Fifield v. Insurance Company, 47 Penn. State. 166; Dole v. Merchants' Mutual Insurance Company, 51 Maine, 464. STATE OF GEORGIA v. STANTON, 6 Wallace, 63. In this case the counsel for the State of Georgia said, The Attorney General quite understates the effects of these Reconstruction Acts. Their actual effect is to restrain at once the holding of any election within the State for any officers of the present State government by any of the State authorities; to direct all future elections in the State to be held under the direction of, and by officers appointed by, the military commander; and that all persons of certain classes described shall be the electors permitted to vote at such election. It is, therefore, an immediate paralysis of all the power and authority of the State government by military force; a plain setting aside of the present State government, and depriving it of the necessary means of continuing its existence. It is substituting in its place a new government, created under a new constitution, and elected by a new and independent class of electors. What is the effect of this upon the State government and upon the State now existing? The same, just, as if in the case of a private corporation (which could only keep up its existence by regular periodical elections by its stockholders), the persons having an interest in it, the owners of its franchise, and the right to perpetuate it, were forbidden to vote, deprived of the right, or a large number of them were so forbidden and deprived; and a mass of persons, having no right whatever, were introduced. This is a direct attack upon the constitution of the corporation in the case supposed; a direct attack upon the constitution and fundamental law of the State in the case before the court. To grant an injunction in such a case is manifestly within the jurisdiction of equity.* The grievance of which Georgia complains is analogous; a proceeding to divest her of her legally and constitutionally established and guaranteed existence as a body politic and a member of the Union. To explain. By the fundamental law of Georgia, as we know, its constituent body is, and always has been, composed of the "free white male citizens of the State, of the age of twenty-one years, who have paid all taxes which may have been required of them, and which they have had an opportunity of paying agreeably to law for the year preceding the election, being citizens of the United States, and having resided six months either in the district or county, and two years within the State."† A State is a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests. It has its rules. It has its rights. A republican State, in every political, legal, constitutional, and judicial sense, as well under the law of nations as the laws and usages of the mother country, is composed of those persons who, according to its existing constitution or fundamental law, are the constituent body. All other persons within its territory, or socially belonging to its people, as a human society, are subject to its laws, and may justly claim its protection; but they are not, in contemplation of law, any portion of the body politic known and recognized as the State. On principle it * Ward v. The Society of Attorneys, 1 Collyer's New Cases in Chancery, 379; Simpson v. Westminster Palace Hotel Company, 8 Clark (House of Lord's Cases), 717; Dodge v. Woolsey, 18 Howard, 341. † Constitution of Georgia, 1865, Art. V. Sec. 1. Chisholm v. Georgia, per Wilson, J., 2 Dallas, 45. must be quite clear that the body politic is composed of those who by the fundamental law are the source of all political power, or official or governmental authority. Dorr's revolutionary government in Rhode Island was an attempted departure from it.* In that case the precise thing was done by Dorr and his adherents which these acts in the present instance seek to perform. There was a State government in the hands of a portion of the people of that State, constituting its whole electoral body. Dorr was of opinion, and his adherents supported him in it, that a greater number of electors ought to be admitted; and he thereupon undertook, by spontaneous meeting, to erect an independent State government. He failed in so doing. The court decided that it was no government, but that the original chartered government which there existed was the legitimate and lawful government, and consequently Dorr failed. The same reasons would lead to the overthrow of these acts of Congress. The State has a right to maintain its constitution or political association; and it is its duty to do what may be necessary to preserve that association; and no external power has a right to interfere with or disturb it.† In Rhode Island v. Massachusetts, this court says, that "the members of the American family [meaning the States] possess ample means of defence under the Constitution, which we hope ages to come will verify." What means of defence under the Constitution is possessed by Georgia, if this suit cannot be maintained? The change proposed by the two acts of Congress in question is fundamental and vital. The acts seize upon a large portion - whites of the constituent body, and exclude them from acting as members of the State. It violently thrusts into the constituent body, as members thereof, a multiude of individuals - negroes not entitled by the fundamental law of Georgia to exercise political powers. The State is to be Africanized. This will work a virtual extinction of the existing body politic, and the creation of a new, distinct, and independent body politic, to take its place and enjoy its rights and property. Such new State would be formed, not by the free will or consent of Georgia or her people, nor by the assent or acquiescence of her existing government or magistracy, but by external force. Instead of keeping the guarantee against a forcible overthrow of its government by foreign invaders or domestic insurgents, this is destroying that very government by force. Should this be done, and the magistracy of the new State be placed in possession, the very recognition of them by the Congress and President, who thus set them up, would be a conclusive determination, as between such new government and the State government now existing. This court would be, then, bound to recognize the latter as lawful.§ Independently of this principle, the forced acquiescence of the people, under the pressure of military power, would soon work a virtual extinction of the existing political society. Each aspect of the case shows that the impending evil will produce consequences fatal to the continuance of the present State, and, consequently, that the injury would be irreparable. The court say, The distinction (between political and judicial matters) results from the organization of the government into three great departments, executive, legislative, and judicial, and from the assignment and limitation of the * Luther v. Borden, 7 Howard, 1. † Vattel's Law of Nations, book 1, chap. 2, § 16; Id. book 2, chap. 4, § 57. 12 Peters, 745. § Buther v. Borden, 7 Howard, 1. |