neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.' (See also 3 Binn., 252.)

"As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, 'recognizing hostilities as existing between the Government of the United States of America and certain states styling themselves the Confederate States of America.' This was immediately followed by similar declarations or silent acquiescence by other nations.

"After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a Court to affect a technical ignorance of the existence of a war, which all the world acknowledged to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms.

"The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court for the first time are desired to pronounce, to wit: That insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember

1

and destroy it, is not a war because it is an 'insurrection.'

"Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was intrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blackade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.

"The correspondence of Lord Lyons with the Secretary of State admits the fact and concludes the question.

"If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature in 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress 'ex majore cautela,' and in anticipation of such astute objections, passing an act 'approving, legalizing, and making valid all of the acts, proclamations, and orders of the president, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.'

"Without admitting that such an act was necessary under the circumstances, it is plain that if the president

had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well known principle of law, 'omnis ratihabitio retrotrahitur et mandato equiparatur,' this ratification has operated to perfectly cure the defect. In the case of Brown vs. United States (8 Cr., 131, 132, 133), Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, 'I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them.

"Although Mr. Justice Story dissented from the majority of the court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

"The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.

"On this first question, therefore, we are of the opinion that the president had a right, jure belli, to institute a blockade of ports in possession of the states in rebellion, which neutrals are bound to regard.

"II. We come now to the consideration of the

second question. What is included in the term 'enemies' property?'

"Is the property of all persons residing in the

territory of the states now in rebellion, captured on the high seas, to be treated as 'enemies' property,' whether the owner be in arms against the government or not?

"The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war; money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy, by capturing his property on the high seas.

"The appellants contend that the term 'enemy' is properly applicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the common law, which say, 'that persons who wage war against the King may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.'

"They insist, moreover, that the president himself, in his proclamation, admits that great numbers of the persons residing within the territories in possession of the insurgent government are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party and its 'de facto government' to submit to their laws and assist in their scheme of revolution; that the acts of the usurping government cannot legally sever the bond of their allegiance; they have, therefore, a corelative right to claim the protection of the govern

ment for their persons and property, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance and made war against the government by treasonably resisting its laws.

"They contend, also, that insurrection is the act of individuals and not of a government or sovereignty; that the individuals engaged are subjects of law. That confiscation of their property can be effected only under a municipal law. That by the law of the land such cannot take place without the conviction of the owner of some offense, and finally that the secession ordinances are nullities and ineffectual to release any citizen from his allegiance to the national government, and that consequently the constitution and laws of the United States are still operative over persons in all the states for punishment as well as protection."

SECTION 45. COMMENCEMENT OF WAR.

War begins with the first act of hostility on the part of either country. The practice of sending heralds to make a declaration of war has long fallen into disuse, and no formal declaration of war, even, is required.

It is customary, however, for a country before attacking another to issue an "ultimatum" to such power, thus giving such power a last chance to redress the evils complained of.

"A proclamation of the blockade of Cuban ports preceded the declaration of war between Spain and the United States, in 1898. Similarly, hostilities were begun before the declaration of war between China and Japan in 1894. Indeed, few of the wars of the last two centuries have been declared before the outbreak