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“Some have thought that because the rebels are traitors, their hostilities cannot be deemed war, in the legal or constitutional sense of that term. But without such war, there can be no traitors. Such is the clear language of the Constitution. It declares that treason against the United States, 'shall consist only in levying war against them; or in adhering to their enemies, giving them aid and comfort. Some have apprehended that, if this conflict of arms is to be deemed war, our enemies must have, against the government, all the immunities of international belligerents. But this is to overlook the double character which these enemies sustain. They are at the same time belligerents and traitors, and subject to the liabilities of both; while the United States sustain the double character of a belligerent and sovereign, and have the rights of both. These rights coexist, and may be exercised at pleasure. Thus, we may treat the crew of a rebel privateer merely as prisoners of war, or as pirates, or traitors; or, we may, at the same time, give to a part of the crew the one character, and to the residue the other. And, after treating them as prisoners of war, we may exercise our sovereign power, and deal with them as traitors. The temporary non-user of such rights is not a renunciation of them, but they may be called into practical exercise at pleasure. In modern times, if a rebellion has assumed such dimensions as to raise armies and involve great numbers, it has not been usual during the contest, to exercise toward prisoners the sovereign right of dealing with them as traitors. They have generally been treated as prisoners of war until the contest is over. But this forbearance does not
preclude their government from afterward inflicting such punishment as justice and policy may require.
“Mr. Wheaton, in his Elements of International Law, p. 365, so strongly maintains belligerent rights in civil war, that some of his language would imply that there are no other rights. This, how. ever, could not have been intended; for, if sovereiga rights be at an end, the war is merely international. Civil war, ex vi termini, imports that sovereign rights are not relinquished but insisted on. The war is waged to maintain them. Rose vs. Himely, 4 Cranch, 272, was a case arising out of the exercise of sovereign rights by France, in her civil war with St. Domingo. The court recognized the coëxistence of belligerent and sovereign rights. Cherriot vs. Foussatt, 3 Binney, 252, also arose out of a municipal regulation made by France, in the same civil war, and the court remarked that France was possessed of belligerent rights which might be exercised against neutral nations. Dobrie vs. Napier, 3 Scott's R., 225, arose out of the blockade of the coast of Portugal by the Queen of that country, and the condemnation of a vessel as prize for the breach of it, was holden to be valid. See also the Santissima Trinidad, 7 Wheat., 306, and United States vs. Palmer, 3 Wheat., 635.
“The United States have, during the present war, exercised both belligerent and sovereign rights.
“Examples of the former are, receiving capitulations of the enemy as prisoners of war, and holding and exchanging them as such; and a still more prominent instance is the blockade, which, before the assembling of Congress, was established by the military authority of the commander-in-chief.
“I am satisfied that the United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.
“But it is insisted that if these rights exist, still the authority to exercise them, by arresting and condemning enemy's property, must emanate from the legislature, and that there has been no legislation authorizing this capture.
“Congress has established permanent prize tribunals, and created an army and navy. The Consti: tution declares that the President shall be the commander-in-chief of the army and navy of the United States. He is thus clothed with all the power appertaining to that high office, and he is not only authorized, but bound, to exert it, when the exigency for which it was given shall arise. If a hostile power, either from without or within our territory, shall assail and capture our forts, and raise armies to overthrow our government, and invade its soil, and menace the capital of the nation, and shall issue commissions to public and private armed ships to depredate on our commerce, the President is bound to use the army and navy to carry on the war effectively against such an enemy, both by land and by sea. And he may do so in the manner, and by the measures, usual in modern civilized warfare; one of the most familiar of which, is the capture of enemy's property, public and private, on the ocean.
“In war, the commander-in-chief is not only authorized to make captures by sea and conquests by land, but he may even govern the conquered territory until Congress shall have seen fit to interpose by legislation. In our last war, California having been subjugated, the commander-in-chief imposed duties, established custom-houses, and collected revenues; and this was sanctioned by the Supreme Court as a legitimate exercise of military power. (Cross et al. vs. Harrison, 16 Howard, 164.) There can be no doubt of the right of the President to make maritime captures, and submit them to judicial investigation. It is one of the best established, and least dangerous, of his powers, as commander-inchief. Further than this, Congress have legislated upon the subject, although it was not necessary for them to do so.
“The statute of 1807, ch. 39, provides that, whenever it is lawful for the President to call forth the militia, to suppress an insurrection, he may employ the land and naval forces of the United States for that purpose.
“The authority to use the army and navy is thus expressly confirmed, but the manner in which they are to be used is not prescribed. That is left to the discretion of the President, guided by the usages and principles of civilized war, and these principles and usages undoubtedly authorize the capture of enemy's property at sea.
“What is enemy's property, is a judicial question, to be decided by the prize court; and unless otherwise instructed by their own sovereign, they must be guided by the rules and principles of public
“Property may be condemned as hostile without proof of the personal sentiments of the owner being disloyal.
“Acts which tend to subserve the interests of the enemy, may impress a hostile character upon property, without regard to the political views or wishes of the owner. Residence of the owner in the enemy's country, may be of such a character as to stamp the property conclusively as hostile. How far residence may, in any case, be open to explana. tion, or the presumption arising therefrom be repelled, I have no occasion to consider. When a hostile character is imputed to property because of the residence of the owner, the court may be compelled to decide whether the place of his residence be enemy's country.
“What shall be deemed enemy's country is sometimes a question of much difficulty. Some nations or tribes can hardly be said to have any country. Such are the nomadic Arabs, and such were the children of Israel during some part, at least, of their migration from Egypt to Palestine. A belligerent nation may invade a neutral province and hold the control of it, and yet the possession be such as not necessarily to impress upon the inhabitants a hostile character. Thus, in the case of The Gerasimo, 11 Moore, P. C., 101, it was decided that, although Russia had taken forcible possession of the Danubian Principalities, and for a time held dominion over them, yet, that a ship of a resident of Wallachia was not liable to capture by a British cruiser as enemy's property; the occupation of that province by Russia, being not only forcible, against the will of the inhabitants, but avowedly temporary and for a special purpose. If Wallachia, by its local government, the Hospodar and Divan, had voluntarily joined with Russia, and made common cause in the war against England, the inhabitants would,