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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 1916, was cited by Sir George Ilay. (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 regulate 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 illsufficient. 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 consequences 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 him. self 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 cannot, 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 faith. fully 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-establish, 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 prosecute 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 forbidelen 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.
the Bctmist of The Iliawatha,
adjudicated in the District Court in New York. And here it is proper to state, that these adjudications in the several districts, of Columbia, of Pennsylvania, of New York, of Massachusetts, and of Maryland, were so nearly simultaneous, that the eminent judges had no opportunity of consultation, and their respective opinions may therefore be regarded as independent authorities upon the important questions submitted to them.
It is for this reason, superadded to that of the absorbing interest of the questions themselves, that a more liberal quotation from the respective opinions is indulged in, than might be desirable, if either of the learned judges had been controlled in his determination by the precedent of the other.
The cases in which the fundamental questions The cases of
us The Winnifred, Johnson, The Lynchburg, The General Green, The M. Johnson,
The LynchHallie Jackson, and The Forest King.
burg, T'he Gen
eral Green, The By consent, they were considered together, so far Hallie Jackson, as the fundamental questions were concerned, as an
King. United one case; but the utmost latitude of discussion was States District accorded by the court, to an array of counsel of Southern Disdistinguished ability, who represented the vast trict of New pecuniary interests of the respective claimants, and the questions raised were presented by them, severally, in exhaustive arguments of nine days duration, and were subsequently enforced by elaborate printed briefs. A statement of the facts of one case will suffice for all.
The ship Hiawatha, a British vessel, arrived in . '
and The Forest
Court for the
the James River, at City Point, a little below Richmond, on a voyage from Liverpool, with a cargo of salt, on the 29th of April, 1861, one day prior to the date of the proclamation of Commodore Pen. dergrast, announcing the effectiveness of the blockade of that river, which was ordered by the Executive proclamation, of the 19th of April. The voyage of the ship was projected, to include a return to Liverpool, with a cargo of cotton and tobacco. Such cargo was laden on board, in the blockaded port, on and after the 11th day of May ensuing, and on the 16th day of May, the same being after the expiration of the fifteen days from the actual establishment of the blockade (allowed to neutral vessels to leave the blockaded ports, as they were with respect to cargo, at the time they first knew of the blockade), the ship, with her cargo thus laden on board, commenced her voyage out of the river, and was captured outside, by one of the blockading vessels.
As will be seen by this statement, there were subordinate questions of interest, involved in this adjudication, as was also the case in the proceedings against the other vessels. These questions and their determination, are noticed in their proper connection. That portion only of the opinion of the distinguished judge will be here given, which directly relates to the fundamental questions common to all the cases.
After a brief review of the nature and character of the jurisdiction and proceedings of prize courts, and a lucid, preliminary statement of the points raised and presented in the arguments, the learned judge says: