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been commenced by the enemy before such declaration, and that all the rights, national and international, of belligerents Such was the method of procedure in the

will thence ensue.

war with Mexico.

§ 445. But it has been claimed that a declaration of this latter sort, at least, is necessary to clothe the government with belligerent rights; and that prior thereto the only power of the executive is a defensive one, to act under an old statute of Congress permitting the President to call out the militia in order to repel invasions or suppress insurrections.

Before referring to any authorities, it is proper to state another most important constitutional question which has been raised by the events of the past few years, namely, Whether the national government can wage war against any state organizations, or against any combinations of citizens; which includes the question whether, under the Constitution, a rebellion or insurrection against the national authority can take on the character of proper war, so as to confer the rights of belligerents upon the government, as against the rebels, and against neutrals, and subject the rebels to the incapacities and obligations of enemies.

§ 446. I do not purpose to enter into any discussion of the question whether states may secede. This subject was sufficiently examined in Part I. I will content myself with stating what appears to me a dilemma from which there is no escape. If states have no constitutional right to withdraw from the Union, then any armed opposition to the government, whether carried on by irresponsible combinations of men, or by the aid and support of state governments, is an insurrection. or rebellion, which the Constitution in terms allows to be suppressed by military force. If states may, under the Constitu tion, secede, they become, by the very act of secession, foreign nations, against whom Congress may declare and carry on war; for the organic law nowhere prescribes or limits the causes for which hostilities may be waged against a foreign country. The causes of war it leaves to the discretion and judgment of the legislature, and there probably never was a war concerning which it might not be urged that the causes,

on the one side or the other, were insignificant or unjust. For this reason it would have been utterly futile to have restricted Congress to the inception and waging of just wars. Herein seems to be a complete answer to the objections raised against the authority of the United States to coerce sovereign

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§ 447. Passing from this inquiry, which is political and international, rather than constitutional and municipal, the other points suggested above have been definitively settled by the Supreme Court of the United States in the Prize Cases 1 decided in 1863, growing out of the late hostilities. The cases arose from the capture of several vessels attempting to violate the blockade of Southern ports. Some of these vessels were neutral, and the sole question as to them was whether the blockade was lawful; others were owned by persons residing within the Southern states, and the question as to them was, whether the owners were, by the mere fact of such residence, public enemies, so that their property would be confiscable without any examination into their sentiments for or against the government. Both of these questions depended for their solution upon a more general one, namely, Whether at the time of the capture a state of proper war existed.

§ 448. It will be remembered that upon the first open act of hostilities, the taking of Fort Sumter, the President summoned 75,000 men to suppress the insurrection or rebellion, (April 15th, 1861;) that he proclaimed a blockade of the Southern ports, and stationed men-of-war to make such blockade effective, (April 19th and 27th, 1861.) Congress was also called to meet at a future day appointed. They did so meet, (July 4th, 1861;) and immediately passed statutes recognizing the state of hostilities, and maintaining the authority of the government. In the interval between the establishment of the blockade and the passage of these laws, the vessels in question were captured; they were libelled in the District Courts and condemned as good prize, and from the decrees of condemnation appeals were taken to the Supreme Court.

§ 449. The cases fairly presented three general questions 1 2 Black, 635.

of public law; and upon the answers would depend the prac tical inquiry as to the property in the captured vessels.

First. Can the government coerce the states assuming to act in a sovereign capacity, and to repudiate the authority of the nation? This was not openly and directly argued by the counsel; it was rather hinted that the power does not exist. Nor did the court in terms discuss it; the affirmative was, however, necessarily assumed in the decision which was reached.

Second. Can the forcible means employed by the government to suppress an insurrection or rebellion of its citizens ever be called a proper war, so as to confer belligerent rights upon the nation, and belligerent disabilities and incapacities the rebels? and

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Third. Assuming the affirmative of the last, can these forcible means be called a proper war, with all the consequences of such a war, before Congress has, by a legislative act, declared such state of war to exist?

§ 450. The negative of both the latter questions was urged and argued with great fulness by the counsel who opposed the legality of the captures, although the force of the argument was expended upon the last. It was claimed that, until Congress met and declared war to exist, the only power under which the President could act was that conferred upon him by statute passed in 1795, authorizing him to call out the militia to repress insurrections and rebellions; that as Executive he had no authority in the matter, his only capacity being to execute the law referred to; that this statute gave no power to use other belligerent measures than those indicated by its terms, the militia force; that the blockade was therefore a nullity, so far as all captures made before the legislative ratification were concerned.

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§ 451. The court was compelled to meet and decide all these questions; and decide them it did, in the affirmative. The first, as I have already said, was assumed; the others, (§ 448,) were definitively passed upon. The opinion of the court was delivered by Mr. Justice Grier, and I quote from it a few pertinent passages. He says: 1 "Let us inquire, whether, at 1 2 Black, 666.

1

The parties

But it is

the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing a hostile force. War has been well defined to be that state in which a nation prosecutes its rights by force.' belligerent in a public war are independent nations. 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 accidents, 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 cast off their allegiance; have organized armies; have commenced hostilities against the former sovereign, the world acknowledges them as belligerents, and the contest as 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." "As1 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 to know."

§ 452. Again: 2 "If a war be made by invasion of a foreign nation, the President 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 be unilateral. Lord Stowell observes: 3 It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A 8 1 Dodson Adm. 247.

1 2 Black, 667.

6

2 Ibid. 668.

declaration of war by one country only, is not a mere challenge, to be accepted or refused at the pleasure of the other."" "It is not the less a civil war with belligerent parties in hostile array, because it may be called an insurrection by one side, and the insurgents considered as rebels and traitors. It is not necessary that the independence of the revolted province or state be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations."

3

§ 453. In respect to the powers of the executive, he proceeds: "The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them, could "The law of nations contains no such change the fact." anomalous doctrine as that which this court are now, for the first time, desired to pronounce, to wit, That insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an insurrection. Whether the President, in fulfilling his duties 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. He must determine what degree of force the crisis demands. The proclamation of blockade is 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 case."

II. The Power to grant Letters of Marque and Reprisal.

It

§ 454. I need not stop to comment upon this clause. includes the power to provide for the commission of privateers

1 2 Black, 669.

2 Ibid. 669.

8 Ibid. 670.

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