gentes, converts every citizen of the hostile State into a public enemy, and treats him accordingly, whatever may have been his previous conduct." That all the rights derived from the laws of war low the decision Court must fol- of belligerents, is a question to be decided by him, and this of the President. court must be governed by the decision and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands." The proclamation of blockade is of itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the Belligerent right to seizure and case. "The right of one belligerent, not only to coerce the other destruction of by direct force, but also to cripple his resources by the enemy's proper- seizure or destruction of his property, is a necessary result ty of all kinds, on land or sea. 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. Page 671. All persons re gerent districts CONFISCATION. "All persons residing within this territory (seceded States) siding in belt whose property may be used to increase the revenues of the are public ene- hostile power, are, in this contest, liable to be treated as mies, and their property liable enemies, though not foreigners. They have cast off their to be captured. allegiance, and made war on their government, and are none the less enemies because they are traitors.” Opinion, page 674. Public war enti to the rights of EXTRACTS FROM THE DISSENTING OPINION. "A contest by force, between independent sovereign States, tles both parties is called a public war; and when duly commenced, by proclawar against each mation or otherwise, it entitles both of the belligerent parties to all the rights of war against each other, and as respects neutral nations. " Page 686, 687. other. Legal conse quences of war, "The legal consequences resulting from a state of war shown by inter- between two countries, at this day, are well understood, and will be found described in every approved work on the subject of international law." national law. may now, since 1861, be lawfully and constitutionally exercised against all the citizens of the districts in rebellion.* two countries become, in law, enemies. All enemies' property on land and sea is subject to capture and confiscation. "The people of the two countries immediately become the People of the enemies of each other, &c. 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. (Brown vs. U. S., 8 Cranch, 110.) All treaties between the belligerent parties are annulled." Page 677. “This great and pervading change in the existing condition of a country, and in the relation of all her citizens or subjects, external and internal, is the immediate effect and result of a state of war." Page 688. The government "In the case of a rebellion, or resistance of a portion of the people of a country, against the established government, there is no doubt, if, in its progress and enlargement, the government thus sought to be overthrown, sees fit, it may, by the competent power, recognize or declare the existence of a state of civil war, which will draw after it all the conse- Civil war draws quences and rights of war, between the contending parties, rights of war, as in the case of a public war, Mr. Wheaton observes, speaking of civil war : "But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war, as against each other, and even as respects neutral nations." Page 688. the same as in a foreign war. "Before this insurrection against the established government can be dealt with on the footing of a civil war, within the meaning of the law of nations and the Constitution of the United States, and which will draw after it belligerent rights, it must be recognized or declared by the war-making power of the government. No power short of this can Civil war must be recognized by change the legal status of the government, or the relations Congress before of its citizens from that of peace to a state of war, or bring it can draw after it full belligerinto existence all those duties and obligations of neutral ent rights. third parties, growing out of a state of war. The war power of the government must be exercised before this changed condition of the government and people, and of neutral third parties, can be admitted. There is no difference in this respect between a civil or a public war." Page 689. * See Lawrence's note to Wheaton, p. 522, and authorities there cited. THE RIGHTS OF REBELS AS CITIZENS OF STATES, AND AS SUBJECTS OF THE UNITED STATES, ARE, ACCORDING TO THE CONSTITUTION, TO BE SETTLED BY THE LAWS OF WAR. Such being the law of the land, as declared by the Supreme Court, in order to ascertain what are the legal or constitutional rights of public enemies, we have only es to it all the Civil war attach- It must be a war in a legal sense (in the sense of the consequences of law of nations, and of the Constitution of the United States) belligerent to attach to it all the consequences that belong to belligerent once recognized rights. Instead, therefore, of inquiring after armies and by Congress. rights, when Civil war con verts every citi navies, and victories lost and won, or organized rebellion against the general government, the inquiry should be into the law of nations, and into the municipal and fundamental laws of the government. For we find there, that to constitute a civil war, in the sense in which we are speaking, before it can exist in contemplation of law, it must be recognized or declared by the sovereign power of the state; and which sovereign power, by our Constitution, is lodged in the Congress of the United States. Civil war, therefore, under our system of government, can exist only by an act of Congress, which requires the assent of two of the great departments of the government, the executive and the legislative." Page 690. "The laws of war, whether the war be civil or inter gentes, zen of the hostile as we have seen, convert every citizen of the hostile state state into a pub- into a public enemy, and treats him accordingly, whatever may have been his previous conduct." lic enemy. Innocent per sons lawfully be pun Congress alone can determine whether war exists or cannot should be declared. And until they have so acted, no citizen ished, or their of the state can be punished in his person or property unless as enemies, until he has committed some offence against a law of Congress, Congress has lands confiscated state of civil war. recognized a passed before the act was committed, which made it a crime and defined the punishment. Until then, the penalty of confiscation for the acts of others with which he had no concern, cannot lawfully be inflicted." Congress did recognize civil war by Act July 13, 1861 "By the Act of 16 Geo. III., 1776, all trade between the colonies and Great Britain was interdicted." “From this time the war (of the revolution) became a of territorial, civil war between the contending parties, with all the rights of war known to the law of nations.” "The Act of Congress of July 13, 1861, we think recog to refer to the settled principles of the belligerent law of nations or the laws of war. Some of the laws of war are stated in both the Opinions in the case above mentioned. A state of foreign war instantly annuls the most solemn treaties between nations.* It terminates all obligations in the nature of nized a state of civil war between the government and the Confederate States, and made it territorial." Page 695. "We agree, therefore, that the Act of the 13th of July, 1861, recognized a state of civil war between the government and the people of the States described in that Proclamation (of August 16, 1861). Page 696. "But this (the right of the President to recognize a state of civil war as existing between a foreign government and its colonies) is a very different question from the one before us, which is, whether the President can recognize or declare a civil war, under the Constitution, with all its belligerent rights, between his own government and a portion of its citizens in a state of insurrection. That power, as we have Courts must seen, belongs to Congress. We agree when such a war is recognized, or declared to exist by the war-making power, but not otherwise, it is the duty of courts to follow the decision of the political power of the government." Page 697. follow the de cision of the po litical powers. Civil war did July 13, 1861, so not exist until as to carry with No civil war existed between this government and the States in insurrection till recognized by the Act of Congress of July 13, 1861. The President does not possess the power, it all belligerent under the Constitution, to declare war, or recognize its exist- rights. ence 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. This power belongs exclusively to the Congress of the United States, and consequently the President had no power to set on foot a blockade under the law of nations, and the capture of the vessel and cargo in all the cases before, in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemy's property, is illegal and void." Page 699. Mr. Chief Justice TANEY and Messrs. Justices CATRON and CLIFFORD concurred with Mr. Justice NELSON in the Dissenting Opinion. * See 2 Twiss, 68, sect. 36. compacts or contracts, at the option of the party obligated thereby. It destroys all claims of one belligerent upon the other, except those which may be sanctioned by a treaty of peace. A civil territorial war has the same effect, excepting only that the sovereign may treat rebels as subjects or merely as belligerents. Hence civil war, in which the insurgents have become public or territorial enemies, instantly annuls all their rights or claims against the United States, under the constitution or laws, whether that constitution be called a compact, a treaty, or a covenant, and whether the parties to it were States, in their sovereign capacity, or the people of the United States, as individuals. Any other result would be as incomprehensible as it would be mischievous. A public enemy cannot lawfully claim the right of entering Congress and voting down the measures taken to subdue him. Why not? Because, by becoming a public enemy, he has annulled and lost his rights in the government, and can never regain them except by our consent. STATE RIGHTS ARE UNDER OUR CONTROL. If the inhabitants of a large part of the Union have, by becoming public enemies, surrendered and annulled their former rights, the question arises, Can they recover them? Such rights cannot be regained by reason of their having ceased to fight. The character of public enemies having once been stamped upon them by the laws of war, remains fixed until it shall have been, by our consent, removed. To stop fighting does * By Joint Resolution No. 12 (February 18, 1865), Congress declared that the rebel States were not entitled to vote for electors of President and Vice-President of the United States. By the reconstruction acts Congress has placed them under military government, and has carried into full effect the rights above claimed. † See Note on "Belligerents," p. 425. |