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?" "1. 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 the right to enter the ports of a friendly nation for the purpose of trade and commerce, but are bound to recognize the right 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 29th 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 of the high seas a war must exist de facto, and the neutral must have a knowledge or notice of the intentions 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 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. "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 acci dents the number, power and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory: have declared their independence; have organized armies; have cast off their allegiance; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest 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. "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 know. "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 war either against a foreign country or a domestic State. But by the Acts of Congress of February 28, 1795, and 3d of March, 1807, he is authorized 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 Presi dent 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 is 'unilateral.' "Whether the President, in fulfilling his duties as commanderin-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. "On the first question, therefore, we are of the 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. "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 be the sinews of war and as necessary in its conduct as numbers and physical force. Hence it is that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy by capturing his property on the high seas. "All persons residing within the territory, whose property may be used to increase the revenue of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors. "But in defining the meaning of the term 'enemies' property` we will be led into error if we refer to Fleta and Lord Coke for their definition of the word 'enemy.' It is a technical phrase peculiar to prize courts and depends upon principles of public policy as distinguished from the common law. "Whether property is liable to capture as 'enemies' property' does not in any manner depend on the personal allegiance of the owner. It is the illegal traffic that stamps it as 'enemies' property.' It is of no consequence whether it belongs to an ally or a citizen. 8 Cr. 384. The owner, pro hac vice, is an enemy. 3 Wash. C. C. R. 183. "The produce of the soil of the hostile country, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are always regarded as legitimate prize, without regard to the domicile of the owner. and much more so if he reside and trades within their territory." The importance of the decision in the Prize Cases is apt to be underestimated. A contrary decision at this time would have most seriously embarrassed the conduct of the war and might have caused its ultimate failure. That a decision adverse to the Government had been a possibility is shown by the fact that four judges dissented from the decision and that these four constituted a majority of the Court as it was composed before the increase in the number of the judges of the Court, which had taken place very shortly before this decision was rendered. In the case of Mrs. Alexander's Cotton," it was held that cotton, in the rebel districts of the South, could be seized by the United States Government, even if private property, regardless of the fact whether the individual owner was friendly or hostile to the United States Government. This decision was held to be justified under the general rules of International Law governing warfare, cotton being the chief reliance of the rebels for purchasing munitions of war. $266. The Reconstruction Period. The year following the close of the Civil War was marked by the attempt to restrain the carrying into effect of the Reconstruction Acts by means of an injunction against the President. The leading exposition rendered by the Supreme Court, on the nature and limitations of the writ of mandamus, is contained in the decision in this case of Mississippi v. Johnson. The principle is forcibly stated that the writ of mandamus will lie only to enforce a mere ministerial act, and the decision of the Court is summed up in the sentence: "We are fully satisfied that this Court has no juris 2 Wallace, 404. 4 Wallace, 475. diction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received. by us." In the case of Ex parte Milligans a limit was placed upon the powers which might be exercised by the Government under the excuse that they were war necessities. It was held in this case that no one, except one in the military or naval service, could be tried by the military power in districts of the United States not in actual rebellion. Among the minor cases growing out' of the war, involving questions of Constitutional law, decided by the Supreme Court, were the following: In Hickman v. Jones" it was decided that the rebellion being only an insurrection against the legal government, there was no rebel government de facto, and in such a sense as to protect anyone acting under it. There was no recognition of the Confederate Government by the fact that certain belligerent rights had been granted the insurgents in arms. The power of the President to establish provisional courts in those portions of the insurgent territory occupied by the Federal forces was sustained in the case of the Grapeshot.10 In Cummings v. Missouri11 and Ex parte Garland 12 it was decided that neither the United States nor any State could require any oath that the party had not previously engaged in or in any way assisted the rebellion, as a qualification for engaging in any profession or occupation, such an oath being held to be in conflict with the provisions of the Constitution prohibiting ex post facto laws, and also to impair the pardoning power granted by the Constitution to the President. In Klein's case13 an Act of Congress which undertook to limit the effect of a pardon granted by the President was held unconstitutional in the following words: "It is clear that the Legislature cannot change the effect of such a pardon any more than the Executive can change a law." 9 One of the most important series of cases arising out of the $ 4 Wallace, 2. 9 Wallace, 197. 109 Wallace, 129. 114 Wallace, 277. |