commissioned officers of the enemy ought not to be delivered to the authorities of the respective States, as suggested in the said message, but all captives taken by the Confederate forces ought to be dealt with and disposed of by the Confederate Government.

SEC. 2. That, in the judgment of Congress, the proclamations of the President of the United States dated respectively September twenty-second, eighteen hundred and sixty-two, and January first, eighteen hundred and sixty-three, and the other measures of the Government of the United States and of its authorities, commanders, and forces, designed or tending to emancipate slaves in the Confederate States, or to abduct such slaves, or to incite them to insurrection, or to employ negroes in war against the Confederate States, or to overthrow the institution of African slavery, and bring on a servile war in these States, would, if successful, produce atrocious consequences, and they are inconsistent with the spirit of those usages which in modern warfare prevail among civilized nations; they may, therefore, be properly and lawfully repressed by retaliation.

SEC. 3. That in every case, wherein, during the present war, any violation of the laws or usages of war among civilized nations shall be, or has been, done and perpetrated by those acting under the authority of the Government of the United States, on the persons or property of citizens of the Confederate States, or of those under the protection or in the land or naval service of the Confederate States, or of any State of the Confederacy, the President of the Confederate States is hereby authorized to cause full and ample retaliation to be made for every such violation, in such manner and to such extent as he may think proper.

SEC. 4. That every white person, being a commissioned officer, or acting as such, who, during the present war, shall command negroes or mulattoes in arms against the Confederate States, or who shall arm, train, organize, or prepare negroes or mulattoes for military service against the Confederate States, or who shall voluntarily aid negroes or mulattoes in any military enterprise, attack, or conflict in such service, shall be deemed as inciting servile insurrection, and shall, if captured, be put to death, or be otherwise punished at the discretion of the court.

SEC. 5. Every person, being a commissioned officer, or acting as such in the service of the enemy, who shall, during the present war, excite, attempt to excite, or cause to be excited, a servile insurrection, or who shall incite, or cause to be incited, a slave to rebel, shall, if captured, be put to death, or be otherwise punished at the discretion of the court.

SEC. 6. Every person charged with an offence punishable under the preceding resolutions shall, during the present war, be tried before the military court attached to the army or corps by the troops of which he shall have been captured, or by such other military court as the President may direct, and in such manner and under such regulations as the President shall prescribe, and, after conviction, the President may commute the punishment in such manner and on such terms as he may deem proper.

SEC. 7. All negroes and mulattoes who shall be engaged in war, or be taken in arms against the Confederate States, or shall give aid or comfort to the enemies of the Confederate States, shall, when captured in the Confederate States, be delivered to the authorities of the State or States in which they shall be captured, to be dealt with according to the present or future laws of such State or States.

Approved May 1, 1863.

CHAP. XXXIII. An Act to amend an Act entitled "An Act to organize Military Courts to attend the Army of the Confederate States in the Field, and to define the Powers of said Courts.

The Congress of the Confederate States of America do enact, That the act entitled "An Act to organize military courts to attend the army of the Confederate States in the field, and to define the power of said courts," be so amended as to authorize the President to establish one in North Alabama, which shall sit at such times and places as said court may direct, and shall have all the powers and jurisdiction given to said military courts by said act; but the judges thereof shall give ten days' notice of the times and places of holding said courts before the same are held: Provided, however, That said court shall cease to exist after one year from the passage of this act, unless longer continued by Congress.

Approved February 13, 1864.

[No. 7. See pp. 48, 54, 59.]

THE RIGHT OF CAPTURE OF ENEMY'S PROPERTY
JURE BELLI.

In this essay, which was published after the passage of the law of Congress, approved July 13, 1861 (Chap. 3), commonly called the "Non-intercourse Act," and after the issue of the President's proclamation of August 16, 1861, which designated the territorial limits of the rebellion, the author claimed "that the United States, at that time, possessed full belligerent rights against the rebels; that all persons who had been, and voluntarily and permanently continued to be, domiciled within the district of country which had been declared in rebellion by the President's proclamation, were, in law, to be deemed public enemies; that all their property was to be deemed enemy's property, and was therefore liable to capture jure belli, or to seizure and confiscation, whether the owners thereof were loyal and friendly to the government, or otherwise; and that such capture, seizure, and confiscation could be made under the war powers, without violating the Constitution or the laws of nations."

It is interesting to observe the cautious steps by which the courts advanced towards a recognition of these principles of international law. In the case of the United States v. The Tropic Wind, decided June 13, 1861, by Dunlop, J., he maintained the right of the President, as commander of the navy in time of actual hostilities, to blockade the port of Richmond, and condemned an English schooner and her cargo for violating that blockade. In April, 1862, in the cases of the Amy Warwick (Edmonds et al. claimants), Judge Sprague, following the lead of Judge Dunlop and others in the prize cases of the 'Tropic Wind, the General Parkhill, the Crenshaw, the North Carolina, the Pioneer, and the Hattie Jackson, decided that property captured at sea by the naval forces of the United States on the 10th of August, 1861, owned by persons domiciled in Rich

mond, a city over which the rebels had at that time absolute dominion, there being no evidence to explain or rebut the presumption of the personal hostility of such owners, which arose from their continued residence therein, was lawful prize. (See Sprague's Reports, 124.) But having no occasion to pass upon the question whether the vessel or cargo would have been lawful prize, if the owners had been loyal or friendly to the Union, notwithstanding their residence at Richmond, the judge expressly declines to decide that point. "In questions so novel, I do not think fit,” says he, “to go farther than the case before me requires."

In the second prize case of the Amy Warwick (p. 143,) Dunlop, Moncure & Co. claimants, he places his decision more fully on the ground that residence in the city of Richmond, under the circumstances, was good cause for condemnation of the captured property. "These claimants," says he, "do not even offer proof of their loyalty, and there is a high probability that they are willingly co-operating with the enemy. But if this be not so, they were at the time of their capture, and have ever since continued to be, under his absolute control, and that control is an inexorable military despotism. Every dollar put into their hands, or under their control, is, to all practical purposes, in the hands of the enemy, and adds to his strength." The judge thus condemned as prize, property on the high seas belonging to persons who were actually hostile, or were presumed to be hostile, or were under the actual control of the rebels, and were so situated that the proceeds, if restored to the claimants, would, without doubt, have fallen into the hands of the enemy.

These cases, however, decided only questions of prize, and related only to captures on the sea. Judge Sprague expressed no opinion on the question as to the political status of the inhabitants of the rebel States. But neither his decision, nor those of the judges who had preceded him, were acquiesced in by the claimants; but all these prize cases were carried by appeal to the Supreme Court at Washington, and were finally decided at the December term, 1863-4. (See 2 Black's R.)

In relation to captures on land, no litigation had, at that early period of the war, been brought before the courts of the United States. No judicial decision could then be found, which claimed for the government the right, jure belli, to capture the property on land of ALL persons domiciled in the rebel territory. The existence of that right was almost universally questioned or denied. It was said that those only were liable to be treated as enemies, and to have their property seized or captured, who were enemies in fact, or who had engaged in open hostilities against the United States. It was denied that persons residing in the Confederate States, who were friendly to the Union, and had been guilty of no crime, could be transformed, in the eye of the law, into criminals by the acts of others, or could be made to suffer penalties for crimes which they had not committed. The rights and immunities guaranteed to citizens of the United States by the

Constitution were claimed by and for them; and they asserted that the failure of the government to secure and protect them in the enjoyment of those rights was a breach of its constitutional duty, which not only absolved them from any and all injurious consequences which might result from the rebellion, but even entitled them to indemnity therefor. The question was asked by judges, by statesmen, and by well-informed citizens, what justification could be found for treating innocent and loyal residents in the seceded States, like rebel soldiers in the southern armies, as public enemies; for subjecting their persons and property to seizure and capture ; for depriving them of civil and political rights? How could such injuries and indignities be inflicted on peaceable citizens, they asked, without violating, in every clause, that Constitution for the maintenance whereof our civil war was professedly carried on? In answer to such questions, it was necessary, at that time, to present such arguments as were set forth in the pages on the "War Powers," and to vindicate a right of our government, now no longer questioned, to capture and confiscate the property of all residents in rebel districts.

It seems strange, at this day (1870), to find how slow Congress was to recognize and put forth its powers against rebellion, and how tardily it asserted the right of war to capture enemy's property on land. August 6, 1861, an act was passed (Chap. 60), to confiscate such property of rebels as had been or was intended to be used by its owners in aid of insurrection; but it provided for the seizure of property only as a punishment for actual or intended crimes of individuals. It was in reality, if not in form, a prize act, and did not authorize the acquisition of enemy property by capture; for it did not assert the authority of the United States to capture the prop. erty, by the right of war, of persons other than active participants in rebellion. This statute was followed by that of July 17, 1862, Chap. 195, of which the chief provisions are explained in Chap. 6 (pp. 112–116), which was added to this essay when the law went into operation, as stated in the preface to the second edition. In this act Congress fell far short of carrying into effect the full extent of power, which, as the author believed, rightfully belonged to the government. It authorized the seizure of property of persons in the rebel States who were actually engaged in prosecuting war, and the condemnation of the same by judicial courts. The reader will find (on pages 126 to 130) the reasons then stated for believing that this law would prove practically inoperative. The history of the last six years has shown how far the anticipations of the author have been fulfilled. Congress was far from recognizing or sanctioning the right of the army to capture the property of rebels, in the rebel States, under the general laws of war, and left the question still open, whether our military forces could, without violating the laws and Constitution, capture the property of persons domiciled in the rebel States, unless they were engaged in hostilities, or unless the property seized was intended to be used in aid of rebellion.

By the act of March 12, 1863 (Chap. 120), it was provided that the Secretary of the Treasury might appoint agents "to receive and collect all abandoned or captured property" in the insurrectionary States, "excepting such as had been used, or was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance, ships, steamboats, or other water craft, and the furniture, forage, military supplies, or munitions of war" (these exceptions being embraced within the provisions of the former statute), and allowed such abandoned or captured property to be appropriated to public use; but treasury agents were required to receive the same, to keep records thereof, and to make returns of the proceeds to the treasury, so that the lawful owner might be able to recover the proceeds, if he should be rightfully entitled thereto. Even in this act Congress did not declare or sanction the belligerent right of capture, jure belli, of enemy's property, and the absolute transfer of title to enemy's property by capture alone, but undertook to provide a temporary stewardship for the care of such property, leaving the claims of owners for the proceeds, less expenses, to be prosecuted in the Court of Claims, at any time within two years after the war should be terminated, on proof of ownership, and of never having aided the rebellion.

It will be observed that the acts of Congress of July 13, 1861, August 16, 1861, and March 3, 1863, relate to confiscation for intra-territorial offences, and have no application to a libel suit against a prize captured at sea. (See the Sally Magee, 1863, Blatchf. Pr. Cases, 382.) They do not, by implication, exclude seizure and confiscation under the general powers of the government, upon principles of public law, and the forfeiture may be enforced by the court, either under the statute, or, through its powers, under process, in prize. (As to the first of these acts, see the Sarah Starr, 1861, Blatchf. Pr. Cases.) The power of "making rules concerning captures on land and water," which is superadded in the Constitution to that of declaring war, is not confined to captures which are extra-territorial, but extends to rules respecting enemy's property found within the territory, and is an express grant to Congress of the power of confiscating enemy's property found within the territory at the declaration of war, as an independent substantive power, not included in that of declaring war. (See Brown v. United States, 1814. 8 Cranch, 110.) By virtue of this power, articles of war were enacted by the act of 10th April, 1806, of which Art. LVIII. provided that "all public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, ammunition, clothing, forage, or provisions, shall be secured for the service of the United States; for the neglect of which the commanding officer is to be amenable." But it is remarkable that, during the civil war, no law should have been passed, which, in direct terms, asserts the rights of the United States to capture, jure belli, the property of all who have been declared public enemies of the country, domiciled in the rebellious district. Of the existence of that right probably few, if any, now entertain a doubt. It has