CONGRESS, U. S. 



281 



cisely the same footing as foreign nations at 

 war with each other. For all the consequences 

 of war, of combat, and of conquest they are 

 foreign nations. Judge Grier, iu a most able, 

 lucid, and conclusive opinion delivered in the 

 prize cases, says: 



The parties belligerent in a public war are inde- 

 pendent nations. 



"No one acquainted with the magnitude 

 of this contest can deny to it the character of 

 a civil war. For nearly three years the Con- 

 federate States have maintained their declara- 

 tion of independence by force of arms. True, 

 they have met with sad defeats. But success 

 has not been all on one side. But what ren- 

 ders their position beyond controversy is, the 

 great powers of Europe have acknowledged 

 them as belligerents, entitled from foreign na- 

 tions to equal rights with the parent Govern- 

 ment. What is still more conclusive, we have 

 acknowledged them as belligerents ourselves. 

 With unfortunate haste we blockaded their 

 ports. A blockade is declared only against a 

 foreign nation. If they were still members of 

 the Union we should repeal the laws granting 

 ports of entry. A nation does not blockade 

 itself. We have treated their captive soldiers 

 as prisoners of war, not as rebels ; we have 

 exchanged prisoners; we have sent and re- 

 ceived flags of truce. This is not the usage 

 awarded to an unorganized banditti. 



" What, then, is the effect of this public war 

 between these belligerents, these foreign na- 

 tions ? Before this war the parties were bound 

 together by a compact, by a treaty called a 

 ' Constitution.' They acknowledged the valid- 

 ity of municipal laws mutually binding on each. 

 This war has cut asunder all these ligaments, 

 abrogated all these obligations. 



The conventions, the treaties made with a nation, 

 are broken or annulled by a war arising between the 

 contending parties. Vattd, Book 3, chap. 10, sec. 

 125. 



" Phillimore says, p. 662 : 



It was at one time an international custom that 

 the belligerents should, at the breaking out of 

 the war, make a public and solemn proclamation 

 that the obligation of treaties between them had 

 ceased. That custom has become obsolete. In the 

 place of it has arisen the general maxim that war, 

 ipso facto, abrogates treaties between the bel- 

 ligerents. 



" Chancellor Kent says : 



As a general rule, the obligations of treaties are 

 dissipated by hostility. 1 Kent, 175. 



" Professor Lieber, the most learned of living 

 publicists, in a communication to Major-General 

 Halleck, containing instructions for the govern- 

 ment of our armies, which were revised by a 

 board of officers and approved of by the Presi- 

 dent, treats the rebel States as subject to mar- 

 tial law only, and not subject to the municipal 

 laws of the United States or to the Constitution. 

 On page 8 he says : 



All municipal law of the ground on which the 

 armies stand or of the countries to which they be- 



long 

 fielo 



is silent and of no effect between armies ia the 



" Hence he declares the slaves free, and not 

 to be reenslaved, passim. 



" The Supreme Court of the United States 

 (in Hilton rs. Jones, Dalt., 224) lays down the 

 same doctrine. It decided that the revolted 

 provinces of America, by the Declaration of 

 Independence, the formation of a government, 

 and supporting it by arms, became an inde- 

 pendent foreign nation in 1776. Years before 

 their independence was acknowledged by any 

 other nation, courts applied the law of prize to 

 them as to other foreign nations. Sergeant 

 Wildman (page 8) says : 



The primary effect of war is to extinguish all civil 

 intercourse, and to place all the subjects of bel- 

 ligerents in the condition of enemies. This princi- 

 Ele extends not only to the natural-born subjects, 

 ut to all persons domiciled in the enemy's terri- 

 tories ; to all who come to reside there with knowl- 

 edge of the war, and who having come to reside 

 before the war, continued their residence after the 

 commencement of hostilities for a longer time than 

 is necessary for their convenient departure. 



" But it is said that this must be considered 

 a contest with rebel individuals only, as States 

 in the Union cannot make war. That is true 

 so long as they remain in the Union. But they 

 claim to be out of the Union ; and the very 

 fact that we have admitted them to be in a 

 state of war, to be belligerents, shows that 

 they are no longer in the Union, and that they 

 are waging war in their corporate capacity 

 tinder the corporate name of the ' Confederate 

 States,' and that such major corporation is 

 composed of minor corporations called States, 

 acting in their associated character. It is idle 

 to say that townships and counties and parishes 

 within such States are at peace while the States 

 by acknowledged majorities have declared war. 

 It is still more idle to say that individuals with- 

 in the belligerent territory, because they were 

 opposed to secession, and were loyal to the 

 parent Government, are the State, though 

 comprising but five per cent, of the people, 

 and hence that the States are not at war. 

 This is ignoring the fundamental principle of 

 democratic republics, which is that majorities 

 must rule, that the voice of the majority, how- 

 ever wicked and abandoned, is the law of the 

 State._ If the minority choose to stay within 

 the misgoverned territory, they are its citizens 

 and subject to its conditions. The innocence 

 of individuals forms no protection (except in a 

 personal point of view) to those residing in a 

 hostile territory. Yattel, page 311, says: 



When the sovereign or ruler of a State declares 

 war against another sovereign, it is understood that 

 the whole nation declares war against another nation. 

 Hence the two nations are enemies, and all the sub- 

 jects of the one are enemies of all the subjects of the 

 other. Since women and children are subjects of the 

 State and members of the nation, they are to be 

 ranked in the class of enemies. 



" Even the innocence of women and children 

 does not screen them from the fate of their na- 

 tion. True, in dealing with fhem personally, 



