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of citizens engaged in commerce on the high seas and in the waters of the United States; that public property of the United States has been seized, the collection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody as prisoners, or have been impeded in the discharge of their official duties, without due legal process, by persons claiming to act under authorities of the states of Virginia and North Carolina, an efficient blockade of the ports of those states will also be established.'
“These facts, so set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists.
“Blockade itself is a belligerent right, and can only legally have place in a state of war; and the notorious fact that immense armies, in our immediate view, are in hostile array against each other in the Federal and Confederate States, the latter having organized a government and elected officers to administer it, attests the Executive declaration that civil war exists; a sad war, which if it must go on, can only be governed by the laws of war, and its evils mitigated by the principles of clemency, engrafted upon the war code by the civilization of modern times. . “Nor does the assertion of the right in the proclamation of the 19th of April, 1861, to proceed against privateersmen, under the laws of the United States, as pirates, militate against the construction I have above given, of the two proclamations as averring the existence of civil war.
“In the case of Rose vs. Himely (4 Cranch, 272,
273), Chief Justice Marshall, in delivering the opinion of the court, says: 'It is not intended to say, that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If, as a legislator, he publishes a law ordaining punishments for certain of fences, which law is to be applied by courts, the nature of the law and the proceedings under it, will decide whether it is an exercise of belligerent rights, or exclusively of his sovereign power; and whether the court, in applying this law to particular cases, actu as a prize court, or as a court enforcing munici. pal regulations.
“In this case I am sitting in admiralty, adjudging a question of prize, under a capture for alleged violation of blockade. .
"I do not find, on examination of the writers on public law, any difference as to belligerent rights, in civil or foreign war, and Judge Story, in the 7th Wheaton, as heretofore cited by me, says they are the same. Blockade, being one of the rights incident to a state of war, and the President, having in substance asserted civil war to exist, I am of opinion that the blockade was lawfully proclaimed by the Executive." The next case in order of time of adjudication, Case of The
General Parkis that of The General Parkhill, decided in the Dis- hill. United trict Court of the United States for the Eastern
States District District of Pennsylvania.
trict of PennThis vessel was captured on the 12th of May, sylvania.
Court for the
1861, while attempting, as alleged, to violate the blockade of Charleston, South Carolina, and sent for adjudication to the port of Philadelphia.
The claim interposed on behalf of the owners of the captured property, described the claimants as “ of the city of Charleston, in the state of South
Carolina, and citizens of the United States."... Opinion of Mr. “They are,” says the court, “ by their own show. Justice Cadvallader. ing, commercial residents of South Carolina. The
question which thus arises, independently of that of błockade, is whether, in the present hostile relation of South Carolina, a resident of that state can sus. tain a proprietary claim of restitution in a prize court of the United States.”
The general proposition established in the law of nations, is thus clearly stated :
“ One of the purposes of naval warfare, is to diminish the power of hostile governments, or of other hostile organizations, by the indiscriminate maritime capture of the private property of all persons, residing in places within hostile dominion, or in permanent or temporary hostile occupation. The capture and confiscation of such property, by destroying or suppressing the maritime trade of such places, diminishes, and thus reduces the power of their hostile rulers. The liberation of the property when captured, whether the individual residents who owned it are personally well or ill affected in feeling toward the government of the captors, would restore its value in wealth to the hostile place.”
The court then proceeds to enforce this doctrine, as well by historic illustration as by citation of judicial authority, showing it to have been applied
equally in civil as in public or international warfare, and adds:
“If during an organized hostile contest, like the present, against an established government, rules of decision, different from those which have been stated, prevailed in the prize courts of such a gov. ernment, it could not effectively prosecute maritime hostilities to suppress rebellion or insurrection.
“The question is, whether any different rules of public law determine the question of confiscability, during such a contest.”
The learned court then proceeds, in a disquisition of great research and ability, to consider the various kinds of civil war, as distinguished by the various purposes for which they are waged, in order to the determination of the question, whether the government, in resisting its opponents, may, under the law of nations, treat the contest as if it were a foreign war, and the places in the possession of the insurgents, as if occupied by public enemies.
In this connection, is cited the opinion of Grotius upon the views of Demosthenes, in a case so singularly analogous to the one under discussion, as to give to that opinion not only a peculiar interest, but, in the language of the court, “the force of a modern precedent.”
“In the opinion of Grotius, Demosthenes had, in . the case of the Thracian Chersonese, correctly stated the rule of public law to be, that wherever judicial remedies are not enforceable by a government against its opponents, the proper mode of restoring its authority, is war. (De Jur. Bel. et Pac. Proleg., $ 23.)
“The Chersonese was a dependency of Athens,
when other parts of Thrace were under the domin. ion of Macedonia. The city of Cardia, in the Cher. · sonese, resisted the Athenian authority. Deiopei. thes, the Athenian commander in the Chersonese, was prevented from reducing the Cardians to subinission, through the interference of Philip of Macedon—then professedly at peace with Athens—who sent a military force to their assistance.
“Deiopeithes, considering this measure an act of . hostility on the part of Philip, at once, without
waiting for instructions from Athens, invaded and · ravaged parts of Macedonian Thrace.
“ Philip complained to the Athenians of this conduct of Deiopeithes. Demosthenes, in sustaining it, avoided assuming a defensive position as to the previously intended subjugation by Deiopeithes of the Cardians, but incidentally justified it, upon reasons that would have sanctioned the prosecution of hostilities against them, on the same footing as if the war had been, as to them, a foreign one.
“Dismissing from consideration the charges against persons, whom the judicial administration of the laws could reach, and who might, at any time, be judicially prosecuted, he contrasted their case with that of those whom the laws could not thus reach, saying, that attempts to enforce like remedies against them, would only disorder and confuse the administration of public affairs. “Against those said he, 'whom the laws cannot reach, we must proceel as we oppose public enemies, by levying armies, equip. ping and setting afloat navies, and raising contributions for the prosecution of hostilities.”
The peculiar applicability of this doctrine to the civil war in the United States, is clearly set forth