which the captures had been within the two leagues. (4 Cranch, 513, 272, 293; 6 Cranch, 281, 285.) The Supreme Court of Pennsylvania was afterward of opinion that the property had been changed in both cases. Chief Justice Tilghman considered the acts of the French Republic as, not simple munici pal regulations, but municipal regulations 'connected with a state of war with revolted subjects,' in enforcing which 'the Republic might avail itself of all rights which are given by the law of nations. to a government thus circumstanced.' He said, 'The government of the United States has taken no part between the contending parties. It has never acknowledged the independence of the revolters. We are not at liberty, therefore, to consider the island in any other light than as part of the dominions of the French Republic. But, supposing it to be so, the Republic is possessed of belligerent rights, which may be exercised against neutral nations who carry on commerce with the revolters. This is not denied; but it is said that the words of the arrêté prove that there was no intention to - exercise such rights. This argument is not conclu sive. Although the French government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which, by the law of na tions, it was entitled under the existing circumstances, under the form of a law made for the regulation of the trade and commerce of one of its colonies. This was the course pursued by Great Britain in the revolutionary war with the United States; and it has not been supposed that she violated the law of nations, when she captured and confiscated

the vessels of neutrals who carried on trade with the United States, in whatever part of the ocean they were found by her ships of war and cruisers. (3 Binney, 252, 253.)"

The court, from this, proceeds to an elaborate and very learned review of the origin of the jurisdiction exercised in prize cases, for the purpose of facilitating the application of the authorities and the cognate doctrine next considered, as to what is regarded by such courts confiscable, or enemies prop erty, and concludes as follows:

“During a civil war against an established gov. ernment, the phrase enemies' property, as understood in prize courts of this government, includes all property captured at sea, which is actually or constructively hostile. During the civil war in Portugal, between the Queen and Don Miguel, she estab lished a blockade of ports along the coast of her own kingdom. In a case already cited, the Supreme Tribunal of Marine at Lisbon, having condemned as prize, a vessel of English ownership, which had been captured for attempting to break the blockade, and supply Don Miguel's adherents with warlike stores, it was held by a British court, in the year 1836, that the judgment of the Portuguese prize court, whether on the ground of an attempted breach of blockade, or on that of an attempted sup ply of contraband goods, was conclusive proof that the vessel was owned by enemies of the Queen of Portugal, though Portugal was not then at war

with

any foreign government. (3 Scott, 202, 203, 228; 2 Bingh. N. C., 781, 782, 783, 798.)"

At the time of the Duke of Monmouth's rebellion, in 1685, the goods of rebels which were cap

tured at sea, appear to have been condemned in England as prize, in the Court of Admiralty. (Hay and Marriott, 47, 48.) This occurred likewise at the rebellion of 1715. The case of the ship Duke de Vendome, determined in 1816, was cited by Sir George Hay. (Hay and Marriott, 47)."

During the war for American independence, in the reported decisions of the English Admiralty Court, the successive judges exhibited strong desires to find reasons for exempting from confiscation, the captured property of persons residing in the United States, who adhered to the British cause. But by reference to these decisions (H. & M., 46, 78, 80, 94, 95, 83, 212, 216), it will be seen that both Sir George Hay and Sir James Marriott condemned all the property of all loyal colonists, except such as they took with them in the same vessel to England.

The learned judge thus briefly disposes of the sole remaining objection for determination, namely, that the President had no authority, without previous congressional legislation, to direct or regu late the prosecution of hostilities, because such direction and regulation could only be exercised when war actually exists, and that war can only exist as the result of the action of Congress.

"This objection," says the court, "is insufficient. Any nation may be involved in a war which has not been declared, and as to which her government has not legislated. Judges of English prize courts have agreed with Bynkershoek in the opinion, which publicists no longer dispute, that the legal conse quences of an actual war must be the same, whether it has or has not been formally declared. The only modern intimations of a contrary opinion as to a

foreign war are in Stewart's Reports, pages 304 and 414, which I consider as overruled, in 1 Dodson, 247. (See Hay and Marriott, 252, 253.)

"In the course of the argument partial war with a foreign state seems to have been somewhat confounded with informal war. A partial war may be informal, or may be more or less, or quite formal. But the present inquiry does not involve any distinctive doctrines of public law concerning partial war. Therefore, the cases which arose under acts of Congress authorizing the limited hostilities prosecuted against France, at the close of the last and commencement of the present century, may be dismissed from consideration.

"In 1846, when Congress was in session, the United States were involved in a general war which was informally begun. The war which Mexico had for some time threatened, then broke out suddenly. Congress thereupon declared that, by an act of Mexico, a state of war existed between her government and the United States. If no such law had been enacted, there would, not the less, have been war with Mexico. The President must, then, as commander-in-chief of the army and navy, have directed its prosecution conformably to the rules of public law. This he must, at all events, have done, if Congress had not been sitting when the Mexicans attacked our army.

"The case of a civil war is practically the same. The marshal of the United States, in order to keep the peace of his judicial district, and enable himself to execute the process of the courts, may arm himself and his deputies, and may also call in the aid of a warlike force. (Year B., 3 H., 7 pl. 1, 5 Co.,

72, a; Br. Riots, pl. 2; Dalton, ch. 95; 8 Watts & Serg., 191; 5 Carr & P., 254, 282.) When he can not, by such means, keep the peace of his district, and the courts in it no longer can direct their process to him, a state of war exists.

"The President in such a case is required by the Constitution to take care that the laws be faithfully executed.' While other officers only swear to support the Constitution, his official oath, as prescribed in it, requires him 'to the best of his ability' to 'preserve, protect, and defend the Constitution.' Therefore, when hostilities actually waged against the Constitution and laws, assume the dimensions of a general war, he must prosecute opposing hos tilities, offensive as well as defensive, upon such a proportional scale as may be necessary to re-estab lish, or to support and maintain the government.

"But he cannot make 'rules concerning captures on land and water.' The Constitution has vested this power in Congress. The President cannot pros ecute hostilities otherwise than according to the directions of existing acts of Congress, or to the rules of public law. Without his orders, an officer of the navy capturing this vessel would have performed a lawful act. Had the President forbidden her capture, the officer might have been punishable for disobedience of orders, but the vessel should not for that reason be liberated by a prize court, if she was in law confiscable.

"The claim is rejected."

The next case, or rather series of cases, were

See 8 Cranch, 126 to 129, 427; 9 Cranch, 422, and the Acts of Congress of March 3d, 1799, ch. 45; and March 3d, 1813, ch. 71.