Preciat et
al v. United States (The Prize Cases)
67 U.S. 635, 636-639 (Facts), 665-671, 687-692, 17 L.Ed. 459 (1863).
[Facts. [67 U.S. 635, 636]
These were cases
in which the vessels named, together with their cargoes, were severally
captured and brought in as prizes by public ships of the United States. The
libels were filed by [67
U.S. 635, 637] the proper District
Attorneys, on behalf of the United States and on behalf of the officers and
crews of the ships, by which the captures were respectively made. In each case
the District Court pronounced a decree of condemnation, from which the
claimants took an appeal.
The Amy Warwick was a
merchant vessel, and belonged to Richmond. Her registered owners were David and
William Currie, Abraham Warwick and George W. Allen, who resided at that place.
Previous to her capture she had made a voyage from New York to Richmond, and
thence to Rio de Janeiro, Brazil. At the last named port she shipped a cargo of
coffee, 5,100 bags, to be delivered at New York, Philadelphia, Baltimore or
Richmond, according to the orders which the master would receive at Hampton
Roads. She was on her voyage from Rio to Hampton Roads and off Cape Henry when
she was captured (July 10th, 1861) by the Quaker City. At the time of the
capture the barque was sailing under American colors,
and her commander was ignorant of the war. The Quaker City carried her into
Boston, where she was libelled as enemy's property.
The claimants of the vessel were the persons already named as owners. James
Dunlap, Robert Edmonds, John L. Phipps, and Charles Brown claimed the cargo.
The claimants in their several answers denied any hostility on their part to
the Government or Laws of the United States, averred that the master was
ignorant of any blockade, embargo or other interdiction of commerce with the
ports of Virginia, and asserted generally that the capture was unlawful.
The Crenshaw was
captured by the United States Steamer Star, at the mouth of James River, on the
17th of May, 1861. She was bound for Liverpool with a cargo of tobacco from
Richmond, and was owned by David and William Currie, who admitted the existence
of an insurrection in Virginia against the Laws and Government of the United
States, but averred that they were innocent of it. The claimants of the cargo
made similar answers, and all the claimants asserted that they had no such
notice of the blockade as rendered the vessel or cargo liable to seizure for
leaving the port of Richmond at the time [67 U.S. 635, 638] when
the voyage was commenced. She was condemned as prize on the ground that she had
broken, or was attempting to break, the blockade at the time of her capture.
The Hiawatha was a
British barque, and was on her voyage from Richmond
to Liverpool with a cargo of tobacco. She left Richmond on the 17th of May,
1861, and was captured in Hampton Roads on the 20th by the Minnesota, and taken
to New York. Her owners were Miller, Massman &
Co., of Liverpool, who denied her liability to capture and condemnation on the
ground that no sufficient notice had been given of the blockade. The claimants
of the cargo put their right to restoration upon a similar basis.
The Brilliante was a Mexican schooner, owned by Rafael Preciat and Julian Gual,
residents of Campeche. She had on board a cargo of flour, part of which was
owned by the owners of the vessel, and part by the Senores Ybana
& Donde, who were also Mexican citizens. She had
a regular clearance at Campeche for New Orleans, and had made the voyage
between those ports. At New Orleans she took in her cargo of flour, part to be
delivered at Sisal and part at Campeche, and took a clearance for both those
places. On her homeward voyage she anchored in Biloxi Bay, intending to
communicate with some vessel of the blo kading fleet and get a permit to go to sea, and while so at
anchor she was taken by two boats sent off from the Massachusetts. She was
carried into Key West, where the legal proceedings against her were prosecuted
in the District Court of the United States for the District of Florida.
The minuter circumstances of each case, and the points of fact,
as well as law, on which all the cases turned, in this Court and in the Court
below, are set forth with such precision in the opinions of both Mr. Justice
Grier and Mr. Justice Nelson, that more than the brief narrative above given
does not seem to be necessary.
The case of the Amy
Warwick was argued by Mr. Dana, of Massachusetts, for Libellants, and by Mr.
Bangs, of Massachusetts, for Claimants. [67 U.S. 635, 639] The
Crenshaw, by Mr. Eames, of Washington City, for Libellants, and by Messrs.
Lord, Edwards, and Donohue, of New York, for Claimants.
The Hiawatha, by Mr.
Evarts and Mr. Sedgwick, of New York, for Libellants, and by Mr. Edwards, of
New York, for Claimants.
The Brilliante, by Mr. Eames, of Washington City, for
Libellants, and by Mr. Carlisle, of Washington City, for Claimants. ]
Mr. Justice GRIER rendered the opinion
of the court.
There are certain
propositions of law which must necessarily affect the ultimate decision of
these cases, and many others, which it will be proper to discuss and decide
before we notice the special facts peculiar to each.
They are, 1st. Had
the President a right to institute a blockade of ports in possession of persons
in armed rebellion against the Government, on the principles of international
law, as known and acknowledged among civilized States?
2d. Was the property
of persons domiciled or residing within those States a proper subject of
capture on the sea as 'enemies' property?'
I. Neutrals have a
right to challenge the existence of a blockade de facto, and also the authority
of the party exercising the right to institute it. They have a right to enter
the ports [67 U.S. 635, 666] of a
friendly nation for the purposes of trade and commerce, but are bound to
recognize the rights of a belligerent engaged in actual war, to use this mode
of coercion, for the purpose of subduing the enemy.
That a blockade de
facto actually existed, and was formally declared and notified by the President
on the 27th and 30th of April, 1861, is an admitted fact in these cases.
That the President,
as the Executive Chief of the Government and Commander-in-chief of the Army and
Navy, was the proper person to make such notification, has not been, and cannot
be disputed.
The right of prize
and capture has its origin in the 'jus belli,' and is goverend
and adjudged under the law of nations. To legitimate the capture of a neutral
vessel or property on the high seas, a war must exist de facto, and the neutral
must have knowledge or notice of the intention of one of the parties
belligerent to use this mode of coercion against a port, city, or territory, in
possession of the other.
Let us enquire
whether, at the time this blockade was instituted, a state of war existed which
would justify a resort to these means of subduing the hostile force.
War has been well
defined to be, 'That state in which a nation prosecutes its right by force.'
The parties
belligerent in a public war are independent nations. But it is not necessary to
constitute war, that both parties should be acknowledged as independent nations
or sovereign States. A war may exist where one of the belligerents, claims
sovereign rights as against the other.
Insurrection against
a government may or may not culminate in an organized rebellion, but a civil
war always begins by insurrection against the lawful authority of the
Government. A civil war is never solemnly declared; it becomes such by its
accidents-the number, power, and organization of the persons who originate and
carry it on. When the party in rebellion occupy and hold in a hostile manner a
certain portion of territory; have declared their independence; have cast off
their allegiance; have organized armies; have commenced hostilities [67 U.S. 635, 667] against their former
sovereign, the world acknowledges them as belligerents, and the contest a war.
They claim to be in arms to establish their liberty and independence, in order
to become a sovereign State, while the sovereign party treats them as
insurgents and rebels who owe allegiance, and who should be punished with death
for their treason.
The laws of war, as
established among nations, have their foundation in reason, and all tend to
mitigate the cruelties and misery produced by the scourge of war. Hence the
parties to a civil war usually concede to each other belligerent rights. They
exchange prisoners, and adopt the other courtesies and rules common to public
or national wars.
'A civil war,' says Vattel,
'breaks the bands of society and government, or at least suspends their force
and effect; it produces in the nation two independent parties, who consider
each other as enemies, and acknowledge no common judge. Those two parties,
therefore, must necessarily be considered as constituting, at least for a time,
two separate bodies, two distinct societies. Having no common superior to judge
between them, they stand in precisely the same predicament as two nations who
engage in a contest and have recourse to arms.
'This being the case,
it is very evident that the common laws of war- those maxims of humanity,
moderation, and honor-ought to be observed by both parties in every civil war.
Should the sovereign conceive he has a right to hang up his prisoners as
rebels, the opposite party will make reprisals, &c., &c.; the war will
become cruel, horrible, and every day more destructive to the nation.'
As a civil war is
never publicly proclaimed, eo nomine, against
insurgents, its actual existence is a fact in our domestic history which the
Court is bound to notice and to know.
The true test of its
existence, as found in the writings of the sages of the common law, may be thus
summarily stated: 'When the regular course of justice is interrupted by revolt,
rebellion, or insurrection, so that the Courts of Justice cannot be kept open,
civil war exists and hostilities may be prosecuted [67 U.S.
635, 668] on the same footing as if those opposing the
Government were foreign enemies invading the land.'
By the Constitution,
Congress alone has the power to declare a national or foreign war. It cannot
declare war against a State, or any number of States, by virtue of any clause
in the Constitution. The Constitution confers on the President the whole
Executive power. He is bound to take care that the laws be faithfully executed.
He is Commander- in-chief of the Army and Navy of the United States, and of the
militia of the several States when called into the actual service of the United
States. He has no power to initiate or declare a war either again t a foreign nation or a domestic State. But by the Acts of
Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to
called out the militia and use the military and naval forces of the United
States in case of invasion by foreign nations, and to suppress insurrection
against the government of a State or of the United States.
If a war be made by
invasion of a foreign nation, the President is not only authorized but bound to
resist force by force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative authority. And whether
the hostile party be a foreign invader, or States organized in rebellion, it is
none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war
on that account, for war may exist without a declaration on either side. It is
so laid down by the best writers on the law of nations. A declaration of war by
one country only, is not a mere challenge to be accepted or refused at pleasure
by the other.
The battles of Palo
Alto and Resaca de la Palma had been fought before the passage of the Act of
Congress of May 13th, 1846, which recognized 'a state of war as existing by the
act of the Republic of Mexico.' This act not only provided for the future
prosecution of the war, but was itself a vindication and ratification of the
Act of the President in accepting the challenge without a previous formal
declaration of war by Congress.
This greatest of
civil wars was not gradually developed by [67 U.S. 635,
669] pupular commotion,
tumultuous assemblies, or local unorganized insurrections. However long may
have been its previous conception, it nevertheless sprung forth suddenly from the
parent brain, a Minerva in the full panoply of war. The President was bound to
meet it in the shape it presented itself, without waiting for Congress to
baptize it with a name; and no name given to it by him or them could change the
fact.
It is not the less a
civil war, with belligerent parties in hostile array, because it may be called
an 'insurrection' by one side, and the insurgents be considered as rebels or
traitors. It is not necessary that the independence of the revolted province or
State be acknowledged in order to constitute it a party belligerent in a war
according to the law of nations. Foreign nations acknowledge it as war by a
declaration of neutrality. The condition of neutrality cannot exist unless
there be two belligerent parties. In the case of the Santissima
Trinidad, (7 Wheaton, 337,) this Court say: 'The Government of the United
States has recognized the existence of a civil war between Spain and her
colonies, and has avowed her determination to remain 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 American 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 acknowledges to be the greatest civil war known in the
history of the human race, and thus cripple the [67 U.S. 635,
670] 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 are now for the first time 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 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 entrusted. 'He must determine what degree of
force the crisis demands.' The proclamation of blockade 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 of 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' [“out of an
abundance of caution”] and in anticipation of such astute objections, passing
an act 'approving, legalizing, and making valid all the acts, proclamations,
and orders of the President, &c., as if they had been issued and done under
the previous express authority and direction of the Congress of the United
States.' [67 U.S. 635, 671] 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,'
[“Every consent given to what has already been done, has a retrospective effect
and equals a command”] 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.
Mr. Justice NELSON dissenting.
* * * *
The legal
consequences resulting from a state of war between two countries at this day
are well understood, and will be found described in every approved work on the
subject of international law. The people of the two countries become
immediately the enemies of each other-all intercourse commercial or otherwise
between them unlawful-all contracts existing at the commencement of the war
suspended, and all made during its existence utterly void. The insurance of
enemies' property, the drawing of bills of exchange or purchase on the enemies'
country, the remission of bills or money to it are illegal and void. Existing
partnerships between citizens or subjects of the two countries are dissolved,
and, in fine, interdiction of trade and intercourse direct or indirect is
absolute and complete by the mere force and effect of war itself. All the
property of the people of the two countries on land or sea are subject to
capture and confiscation by the adverse party as enemies' property, with
certain qualifications as it respects property on land, (Brown vs. United
States, 8 Cranch, 110,) all treaties between the belligerent parties are
annulled, The ports of the respective countries may be blockaded, and letters
of marque and reprisal granted as rights of war, and the law of prizes as
defined by the law of nations comes into full and complete operation, resulting
from maritime captures, jure belli. War also effects a change in the [67 U.S. 635, 688] mutual relations of all States
or countries, not directly, as in the case of the belligerents, but immediately
and indirectly, though they take no part in the contest, but remain neutral.
This great and
pervading change in the existing condition of a country, and in the relations
of all her citizens or subjects, external and internal, from a state of peace,
is the immediate effect and result of a state of war: and hence the same code
which has annexed to the existence of a war all these disturbing consequences
has declared that the right of making war belongs exclusively to the supreme or
sovereign power of the State.
This power in all
civilized nations is regulated by the fundamental laws or municipal
constitution of the country.
By our constitution
this power is lodged in Congress. Congress shall have power 'to declare war,
grant letters of marque and reprisal, and make rules concerning captures on
land and water.'
We have thus far been
considering the status of the citizens or subjects of a country at the breaking
out of a public war when recognized or declared by the competent power.
In the case of a
rebellion or resistance of a portion of the people of a country against the
established government, there is no doubt, if in its progress and enlargement
the government thus sought to be overthrown sees fit, it may by the competent
power recognize or declare the existence of a state of civil war, which will
draw after it all the consequences and rights of war between the con ending
parties as in the case of a public war. Mr. Wheaton observes, speaking of civil
war, 'But the general usage of nations regards such a war as entitling both the
contending parties to all the rights of war as against each other, and even as
respects neutral nations.' It is not to be denied, therefore, that if a civil
war existed between that portion of the people in organized insurrection to
overthrow this Government at the time this vessel and cargo were seized, and if
she was guilty of a violation of the blockade, she would be lawful prize of
war. But before this insurrection against the established Government can be
dealt with on the footing of a civil war, within the meaning of the law of
nations and the Constitution [67 U.S. 635, 689] of
the United States, and which will draw after it belligerent rights, it must be
recognized or declared by the war-making power of the Government. No power
short of this can change the legal status of the Government or the relations of
its citizens from that of peace to a state of war, or bring into existence all
those duties and obligations of neutral third parties growing out of a state of
war. The war power of the Government must be exercised before this changed condition
of the Government and people and of neutral third parties can be admitted.
There is no difference in this respect between a civil or a public war.
We have been more
particular upon this branch of the case that would seem to be required, on
account of any doubt or difficulties attending the subject in view of the
approved works upon the law of nations or from the adjudication of the courts,
but, because some confusion existed on the argument as to the definition of a
war that drew after it all the rights of prize of war. Indeed, a great portion
of the argument proceeded upon the ground that these rights could be called
into operation-enemies' property captured-blockades set on foot and all the
rights of war enforced in prize courts-by a species of war unknown to the law
of nations and to the Constitution of the United States.
An idea seemed to be
entertained that all that was necessary to constitute a war was organized
hostility in the district of country in a state of rebellion-that conflicts on
land and on sea-the taking of towns and capture of fleets-in fine, the
magnitude and dimensions of the resistance against the Government-constituted
war with all the belligerent rights belonging to civil war. With a view to
enforce this idea, we had, during the argument, an imposing historical detail
of the several measures adopted by the Confederate States to enable them to
resist the authority of the general Government, and of many bold and daring
acts of resistance and of conflict. It was said that war was to be ascertained
by looking at the armies and navies or public force of the contending parties,
and the battles lost and won-that in the language of one of the learned
counsel, 'Whenever the situation of opposing hostilities has assumed the
proportions [67 U.S. 635, 690] and
pursued the methods of war, then peace is driven out, the ordinary authority
and administration of law are suspended, and war in fact and by necessity is
the status of the nation until peace is restored and the laws resumed their dominion.'
Now, in one sense, no doubt this is war, and may be a war
of the most extensive and threatening dimensions and effects, but it is a
statement simply of its existence in a material sense, and has no relevancy or
weight when the question is what constitutes war in a legal sense, in the sense
of the law of nations, and of the Constitution of the United States? For it
must be a war in this sense to attach to it all the consequences that belong to
belligerent rights. Instead, therefore, of inquiring after armies and navies,
and victories lost and won, or organized rebellion against the general
Government, the inquiry should be into the law of nations and into the
municipal fundamental laws of the Government. For we find there that to
constitute a civil war in the sense in which we are speaking, before i can exist, in contemplation of law, it must be recognized
or declared by the sovereign power of the State, and which sovereign power by
our Constitution is lodged in the Congress of the United States-civil war,
therefore, under our system of government, can exist only by an act of
Congress, which requires the assent of two of the great departments of the
Government, the Executive and Legislative.
We have thus far been speaking of the war power under the
Constitution of the United States, and as known and recognized by the law of
nations. But we are asked, what would become of the peace and integrity of the
Union in case of an insurrection at home or invasion from abroad if this power
could not be exercised by the President in the recess of Congress, and until
that body could be assembled?
The framers of the Constitution fully comprehended this
question, and provided for the contingency. Indeed, it would have been
surprising if they had not, as a rebellion had occurred in the State of
Massachusetts while the Convention was in session, and which had become so
general that it was quelled only by [67 U.S. 635, 691] calling
upon the military power of the State. The Constitution declares that Congress
shall have power 'to provide for calling forth the militia to execute the laws
of the Union, suppress insurrections, and repel invasions.' Another clause,
'that the President shall be Commander-in- chief of the Army and Navy of the
United States, and of the militia of the several States when called into the
actual service of United States;' and, again, 'He shall take care that the laws
shall be faithfully executed.' Congress passed laws on this subject in 1792 and
1795. 1 United States Laws, pp. 264, 424.
The last Act provided that whenever the United States
shall be invaded or be in imminent danger of invasion from a foreign nation, it
shall be lawful for the President to call forth such number of the militia most
convenient to the place of danger, and in case of insurrection in any State
against the Government thereof, it shall be lawful for the President, on the
application of the Legislature of such State, if in session, or if not, of the
Executive of the State, to call forth such number of militia of any other State
or States as he may judge sufficient to suppress such insurrection.
The 2d section provides, that when the laws of the United
States shall be opposed, or the execution obstructed in any State by
combinations too powerful to be suppressed by the course of judicial
proceedings, it shall be lawful for the President to call forth the militia of
such State, or of any other State or States as may be necessary to suppress
such combinations; and by the Act 3 March, 1807, (2 U. S. Laws, 443,) it is provided
that in case of insurrection or obstruction of the laws, either in the United
States or of any State of Territory, where it is lawful for the President to
call forth the militia for the purpose of suppressing such insurrection, and
causing the laws to be executed, it shall be lawful to employ for the same
purpose such part of the land and naval forces of the United States as shall be
judged necessary.
It will be seen, therefore, that ample provision has been
made under the Constitution and laws against any sudden and unexpected
disturbance of the public peace from insurrection at home [67
U.S. 635, 692] or invasion from abroad. The whole military
and naval power of the country is put under the control of the President to
meet the emergency. He may call out a force in proportion to its necessities,
one regiment or fifty, one ship-of-war or any number at his discretion. If,
like the insurrection in the State of Pennsylvania in 1793, the disturbance is
confined to a small district of country, a few regiments of the militia may be
sufficient to suppress it. If of the dimension of the present, when it first
broke out, a much larger force would be required. But whatever its numbers,
whether great or small, that may be required, ample provision is here made; and
whether great or small, the nature of the power is the ame.
It is the exercise of a power under the municipal laws of the country and not
under the law of nations; and, as we see, furnishes the most ample means of
repelling attacks from abroad or suppressing disturbances at home until the
assembling of Congress, who can, if it be deemed necessary, bring into
operation the war power, and thus change the nature and character of the
contest. Then, instead of being carried on under the municipal law of 1795, it
would be under the law of nations, and the Acts of Congress as war measures
with all the rights of war. . . .
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