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"It is insisted on the part of the defence, that Opinion of Mr.
“ Justice Betts. the President, under the Constitution, had no power, upon the facts before the court, to institute, de. clare, or recognize, by executive acts, a condition of war between the United States and the insurgents and their forces, which will carry with it, in behalf of the United States, the incidents of a public war, in relation to their enemies in this contest, and alsr to neutral nations, as between them and this government. As consequent to that position, it is urged that the steps taken by the President to establish a blockade of ports in the possession of the insurgents, are inoperative and void to that end, because the insurgents cannot be, within the meaning of the public law, enemies of the United States, but are only citizens of the same country in a state of internal and domestic contention; and because the President has no authority, under the Constitution and laws of the United States, to declare and impose a blockade of any port or place, and particularly not of one within the limits of the United States; and further, that the preliminaries and conditions indispensable to a valid blockade, by the law of nations, have not been observed and fulfilled in any of the cases now on hearing.
" It is first to be observed in respect to the general bearing and features of these defences, which seem grounded on the assumption that the President ini. tiated and inaugurated the war against the rebels or insurgent enemies, that no public or private document or official act of the President is given in proof, conducing to show that the existing state of hostilities was produced by any authority or act of the government of the United States. The war, so
far as the government have been proved to be actors in it, and so far as the evidence characterizes it, has been wholly defensive, and in protection of the property and existence of the government itself, and in no particular, up to the captures in question, did it partake of the character of an offensive and aggressive war, in its conduct on the part of the United States.
“ The question pressed earnestly during the discussion, whether the President, without the authority of Congress, can declare or initiate an offensive war, therefore, becomes merely speculative on the merits of the debates. The inquiry is, if he is, by the Constitution and laws of the country, clothed with power to defend the nation against an aggressive war waged for its extermination by internal enemies; and if so, what public condition in relation to the belligerents and neutral powers results from such warfare.
“Much stress has been laid in the progress of the argument on the want of an open declaration of war by the President, previous to his adopting and employing forcible means to repel or counteract warlike measures of an enemy, persisting in hostile attacks on the government and its property.
“No one can claim as a right that a public declaration of war shall be promulgated, unless it be the nation by whose government it is made, and then it serves only as a notice to their own citizens or subjects. The declaration by manifestoes, heralds, or nuncios, does not constitute war, and the omission of the declaration can no way impair its justness or efficacy, especially in a case of defensive war. (1 Kent, 51, 54. Wheat., on Captures, 13, 15. The
Eliza Ann, 1 Dod.'s Rep., 247; Duponceau, on War,chs. 1, 2.)
“A civil war of alarming proportions was waged with extraordinary forces and activity ; to promote the public defence, and impair the resources of the enemy, the President proclaimed the blockade of the ports referred to in the pleadings and proofs before the court. If the competency of a foreign government to question, in a prize court, the power of a belligerent to institute a blockade be conceded, or to do more than exact a strict observance of pub. lie law in maintaining and enforcing such blockade by the belligerent who imposes it, I am not convinced by the proofs or argument adduced in oppo. sition to the cases on trial, that the lawfulness or efficiency of the blockade established have been impeached. I hold, in time of civil war, of insurrection, and rebellion, the nation assailed and attacked by hostile and rebel forces, may rightfully resist war levied against itself, alike by closing, embargoing, or blockading ports held by their enemies, as a means of war calculated to weaken and defeat hostile operations to its detriment, as to accomplish the end by direct force and superior power; and that no sound distinction exists whether such defensive proceedings are employed in civil, internal, or domestic warfare, or war between nations foreign to each other. Under the law of nations, the rights incident to a war waged by a government to subdue an insurrection or revolt of its own subjects or citizens, are the same in regard to neutral powers as if the hostilities were carried on between independent nations, and apply equally in captures of property for municipal offences, or as prize of war
(Rose vs. Himely, 4 Cranch, 241. Ibid., appendix, 509. S. C. in Circuit Court, 4 Ibid., 293. Hudson vs. Gustien, 7 Wheat., 306, Santissima Trinidada.
“Commercial ports, in time of war, may become efficacious allies to an enemy holding them, through neutral trade. So far as that aid avails the enemy, it is warlike in its nature, and may be repelled by war means. Blockade is the measure recognized by the law of nations as the appropriate remedy, and that in character and operation is peaceful as to neutrals, and warlike in respect to the enemy. The President, as commander-in-chief of the army and navy, is the functionary, under our govern ment, who has, as incident to his office, the power and right to exercise the resisting and repelling means of legitimate warfare, whenever the exigen. cies of the case require them.
“ It certainly can be of no consequence whether the ports blockaded belong technically or in reality, to the United States, or were the property of individuals, innocent of any warlike purposes against the United States, or of aiding its enemies. It is sufficient if the evidence shows the ports to be under the power and use of enemies of the United States. This use may be an usurped one, and in wrong of the actual proprietary authority of the places. The right of the United States to prevent such use being turned to their prejudice, rests not at all upon the character of the true ownership and rightful authority over the places, but on that of their employment by the occupants. Whilst under the military power of an enemy it is enemy's territory. (U. S. vs. Rice, 4 Wheat., 253. This consid. eration meets, also, another ground of defence, earnestly urged on the part of the claimants, that these various ports which are subjected to blockade are portions of states of the Union, and, as such, a portion of the Union itself, and cannot, therefore, be made, territorially, objects of hostile control, but only of municipal regulation and gov. ernment. Nor that more eminently can they become, as countries or people, enemies of the government of which they are constituent parts; because, in that relation, they also hold an independent sovereignty as states, which cannot be infringed nor molested by authority of the United States, acting directly upon that independency.
“The Union is not composed of subtleties and abstractions. The notion of a government con. structed of numerous parts, each part separate and sovereign in itself, and also sovereign of, or as. against the whole, was never adopted or declared by the founders of the Constitution, and probably not contemplated or comprehended at that day.
“The officers of the United States government, act within particular states, to enforce or defend the laws of the United States the same as if no state demarcation existed. The whole extent of the country is one nation and one government. In respect to the United States and its constitutional laws, there are no state lines, and state sovereignty is a nonentity. .
“The denominations of states existing for local and domestic purposes, are made use of and applied by the insurgents in the present war, in designation of combinations of persons disrupted, so far as they had material or political power so to do, from their citizenship of and subjection to the government of