840 



UNITED STATES. 



no different condition from the loyal refugee who has 

 fled and remained away from his home with the same 

 intention ; and neither of them is, or ought to be, in 

 any better condition than the loyal citizen who has re- 

 mained at home because he could not get away. They 

 an- all in the same boat. If one has lost his political 

 rights in the Union by becoming a public enemy to his 

 Govi-rumcnt, all bare. 



The discussion was continued in the public 

 journals of the day, and the positions taken, 

 attacked with much warmth. The "National 

 Intelligencer," in commenting upon the sub- 

 ject, after stating the positions and deductions 

 of Mr. Whiting, says : 



Now, in order to ascertain the purport and scope of 

 this reasoning it is only necessary to note the question 

 before the court, arising under " public law as regards 

 captures on the ocean, and as if expressly to exclude 

 any such generalizations as those sophistically drawn 

 from their language by Mr. Whiting, the majority of the 

 court proceeded immediately to add, in a passage not 

 cited by Mr. Solicitor Whiting (for it would cut up his 

 dogma* by the roots), the following limitations of the 

 doctrine propounded under cover of the technical 

 meaning and extent of the term " enemies' property," 

 employed in prize cases : 



But in defining the meaning of the term " enemies 1 prop- 

 erty," we will be led into error if we refer to Flcta and Lord 

 Coke for their definition of the word " enemy." It Is a 

 technical phrase peculiar to prize courts, and depends upon 

 principles of public as distinguished from common law. 

 Whether property bo liable to capture as enemies' property 

 docs not in any manner depend on the personal allegiance 

 of ibc owner. " It is illegal traffic that stamps it as enemies' 

 property." u It is of no consequence whether it belongs to 

 an ally or a citizen (8 Crancb, 864), the owner pro Aac vice 

 la an enemy (3 Washington, C. C. 183). The produce of the 

 soil of the hostile territory, as well as other property en- 

 gaged in the commerce of the hostile power, as sources of its 

 wealth and strength, are always regarded as legitimate 

 prize, without regard to the domicil of the owner, and much 

 more so if be reside and trade within their territory. (See 

 Upton, chap. 3.) That finishes the examination of these two 

 general questions. It remains to apply these conclusions, 

 and examine the several cases before us in reference to the 

 circumstances peculiar to each. 



This decision of the court, it will be seen, goes 

 limply to the extent of declaring that by the armed 

 insurrection now pending in a certain portion of the 

 territory of the United Mates the inhabitants thereof 

 are liable to be treated as " enemies," by the confisca- 

 tion, under admiralty law, of " property that may be 

 uied to increase the resources of the hostile power." 

 The decision has this extent and no more. Nor is the 

 doctrine new, though it seems to be new to Mr. Whit- 

 ing, because of the novel use he has made of it. The 

 tame doctrine, as we understand, was put forth by the 

 Supreme Court in the case of the United States vs. Rice 

 (4 Wheaton, p. 246), in which the court declared that 

 " by the conquest and military occupation of a portion 

 of the territory of the United States py a public enemy, 

 that portion is to be deemed a foreign country, so far 

 u regards our revenue laws." The circumstances 

 under which the case arose, it will be remembered, 

 were as follows: 



On the 1st day of September,! 814, Castine, in the State 

 of Maine, was captured by the British, and remained in 

 the exclusive possession of the enemy until after the 

 ratification of the treaty of peace in February, 1815. 

 During this period the British Government exercised 

 all civil and military authority over the place, and es- 

 tablished a customhouse, and admitted goods to be im- 

 ported according to the regulations prescribed by itself, 

 and among others admitted the goods upon which du- 

 ti'-s were subsequently demanded (after the resumption 

 of the national authority) by the United States au- 

 thorities in the case brought before the court. These 

 goods remained at Castine until after the town was 

 evacuated by the enemy, and, upon the reestablish- 

 ment there of the United States Government, the col- 

 lector of the customs, claiming a right to United Stated 



duties on the goods, took a bond from the defendant 

 as security for their payment, and it was in order to 

 enforce the payment of these duties that the action 

 was brought by the Government against Rice. The 

 decision of the court in the premises was as follows : 



Under these circumstances we are all of opinion that the 

 claim for duties cannot be sustained. By the conquest and 

 military occupation of Castine, the enemy acquired that firm 

 possession which enabled him to exercise the fullest rights 

 of sovereignty over that place. The sovereignty of the Unit- 

 ed States over the territory was of course suspended, and 

 the laws of the United States could no longer be rightfully 

 enforced there, or be obligatory upon the inhabitants who 

 remained and submitted to the conquerors. By the sur- 

 render the inhabitants passed under a temporary allegiance 

 to the British Government, and were bound by such laws, 

 and such only, as it chose to recognize and impose. From 

 the nature of the case no other laws could be obligatory 

 upon them, for where there is no protection, or allegiance, 

 or sovereignty, there can be no claim to obedience. Oastino 

 was, therefore, during this period, so far as respected our 

 revenue laws, to be deemed a foreign port ; and goods im- 

 ported into it by the inhabitants were subject to such duties 

 only as the British Government chose to require. Such 

 goods were in no correct sense imported into the United 

 States. The subsequent evacuation by the enemy, and re- 

 sumption of authority by the United States, did not, and could 

 not, change the character of the previous transactions. The 

 doctrines respecting the jus postlimini are wholly inappli- 

 cable to the case. The goods were liable to American duties, 

 when imported, or not at all. That they arc not so liable at 

 the time of importation is clear from what hns been already 

 stated: and when, upon the return of peace, the jurisdiction 

 of the United States was resumed, they were in the same pre- 

 dicament as they would have been if Castine had been a for- 

 eign territory, ceded by treaty to the United States, and the 

 goods had been previously "imported there. In the latter 

 case there would be no pretence to say that American duties 

 could be demanded; and, upon principles of public or muni- 

 cipal law, the cases are not distinguishable. 



Now, suppose there had been some pundit living in 

 the year 1819 (when this case was decided), who was 

 as learned in the law as Mr. Solicitor Whiting. Who 

 does not see that he would have educed from this de- 

 cision the marvellous conclusion that the people of the 

 town of Castine, in the State of Maine, by passing un- 

 der temporary allegiance to the British Government 

 (as the Southern people have passed under temporary 

 allegiance to the usurping authority of Gen. Jefferson 

 Davis), had thereby so forfeited all their rights as 

 citizens of the United States as henceforth to have 

 none save " such as the Federal Government might 

 allow them" by special enactment after the resto- 

 ration of the national authority in Castine. Nobody, 

 of course, was then found shallow enough to pro- 

 pound any such preposterous doctrine, because then 

 nobody had any motive to pervert a decision which 

 carried its meaning on its face. It was then seen, 

 as indeed the court state in making their deci- 

 sion, that " upon the return of peace the jurisdiction 

 of the United States was reassumed," and that all the 

 rights of the people and duties of the National Govern- 

 ment reverted to the status quo ante bellur^. And all 

 men would see the same truth with equal clearness as 

 regards the temporary domination 01 the insurgents 

 in a portion of the country, if some did not suppose 

 that a contrary theory would give them a right to affix 

 unconstitutional terms and conditions to what they 

 call " the readmission of the revolted States." 



Judge Sprague, of the U. S. District Court 

 at Boston, thus spoke of the error of drawing 

 political conclusions from the decisions of the 

 court in admiralty : 



An objection to the prize decisions of the District 

 Court has arisen from an apprehension of radical conse- 

 quences. It has been supposed that if the Govern- 

 ment have the rights of a belligerent, then, after the re- 

 bellion is suppressed, it will nave the rights of con- 

 quest ; that a State and its inhabitants may be perma- 

 nently divested of all political privileges, and treated as 

 foreign territory acquired by force of arms. This is 

 an error a grave and dangerous error. 



Conquest of a foreign country gives absolute 



