Nathan Clifford

“ Belligerents engaged in war may exercise the right of blockade, and they may capture contraband of war and enemies' property laden in neutral vessels; and if so, the contest, though it originated in rebellion, must in the progress of events, when it assumes such proportions as to be justly denominated civil war, be recognized as entitling both parties to the rights of war just as much as if it was waged between two independent nations. ”

“ Parties belligerent in a public war are independent nations; but it is not necessary that both parties should be acknowledged as such in order to the enjoyment of belligerent rights, as war may exist where one of the belligerents claims sovereign rights against the other, the rule being, that when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be open, civil war exists, and hostilities may be prosecuted to the same extent as in public war. ”

“ Somewhat different views are expressed by the court, but it admits in conclusion that the decision might have been placed on a different ground, and proceeds to remark that war in fact existed at the time of the loss; that hostile forces, each representing a de facto government, were arrayed against each other in actual conflict. Its existence, says the court, would not have been more palpable or real if it had been recognized by legislative action, and though it was a civil war, it was not the less a capture for that reason. ”

“ For the same reasons which render the observance of those maxims a matter of obligation between State and State, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties in the case of civil war. Should the sovereign conceive that he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, as in the example given in the note, and if he does not observe the terms of the capitulations and all other conventions with his enemies, they will no longer rely on his word. ”

“ Lawful blockade can only be established by a belligerent party, the rule being that a neutral country has a right to trade with all other countries in time of peace, and when in time of war the right is subjected to the conditions or restrictions resulting from blockade, the interruption of the untrammelled right can only be justified because the party imposing the conditions and restrictions is invested with belligerent rights under the law of nations. ”

“ History furnishes many examples of war between the government de jure of a country and a government de facto of a seceding portion of the same country; and in such cases jurists hold that other powers are entitled to remain indifferent spectators of the contest, and to allow impartially to both belligerents the free exercise of those rights which war gives to pubilc enemies against each other, such as the right of search, the right of blockade, the right of capturing contraband of war and enemy's property laden in neutral vessels. ”

“ In the first case, the foreign State fulfils all its obligations under the law of nations, and neither party has any right to complain, provided that it maintains an impartial neutrality; but in the latter case, the foreign State becomes the enemy of the party against which it declares, and the ally of the other. Lawrence's Wheaton, 40, and notes.
Belligerent rights cannot be exercised when there are no belligerents. Conquest of a foreign country, if permanent, gives absolute and unlimited right; but no nation can make such a conquest of its own territory. ”

“ Independent powers at war may seize and confiscate all contraband goods, without any complaint the part of the neutral merchant; and that right is conceded even when one of the parties is not acknowledged as a de jure government, in case of insurrection, where the contest has assumed such proportions as justly constitute it a civil war in the international sense. ”

“ Beyond all doubt, the Confederate government at the period of the alleged wrong was the supreme controlling power of the territory and people within the limits of their military dominion, and it is equally certain that the citizens resident within those limits were utterly destitute of means to resist compliance with military orders emanating from the commanding general, especially when given in obedience to an act of the Confederate congress. ”

“ Once enter that domain of strife, and countless litigations of endless duration may arise to review old animosities and to renew and inflame domestic discord, without any public necessity or individual advantage. ”

“ Such a concession is indispensable, as the neutral power will find it impossible to recognize the character of one as a belligerent without recognizing the belligerent character of the other, unless the war is confined entirely within the territory of the contending parties and does not extend in any respect to the highway of nations. ”

“ Apply those rules to the case, and it is as clear as any thing in legal decision can be, that the Confederate States were belligerents in the sense attached to that word by the law of nations. During the military occupation of the territory within the Confederate lines the sovereignty of the United States was so far suspended, that the Federal laws could no longer be enforced there, and the inhabitants passed under a forced allegiance, and were bound by such laws as the usurping government saw fit to recognize and impose. ”

“ That while it exists it must necessarily be obeyed, in civil matters, by private citizens, who, by acts of obedience rendered in submission to such force, do not become responsible as wrong-doers for those acts, though the acts are not warranted by the rightful government. ”

“ Matters to be taken into the account in determining such a question, it is said, are whether the insurgents present the existence of a de facto political organization, sufficient in character, population, and resources to constitute it, if left to itself, a State among the nations reasonably capable of discharging the duties of such an organization. Due weight should be given to the then existing character of the actual conflict, having respect to the military force on each side and the action of the parties in conducting military operations against each other ”

“ Attempt was made early in the war of the rebellion to maintain the theory that the officers and seamen of the Confederate cruisers were pirates, and not entitled to belligerent rights in case of capture. Ships and cargoes at sea were destroyed by such cruisers, and the owners, holding policies of insurance, brought suits to recover for the loss. Payment in certain cases was refused, the defence being that the policies did not cover the loss where the capture was by pirates. ”

“ Inquirty may also properly arise whether the insurgents have employed commissioned cruisers at sea, and whether the rightful government has exercised the right to blockade the ports of the insurgents against neutral vessels merce, and that of stopping and searching neutral vessels engaged in maritime commerce. If all these elements exist, says Dana, the condition of things is undoubtedly war, and it may be war before they are all ripened into activity. ”