III

ARGUMENT IN THE UNITED STATES SUPREME COURT ON BEHALF OF THE GOVERNMENT IN THE CASE OF PETER MILLER AND OTHERS, CLAIMANTS OF THE BARQUE HIAWATHA, ETC., AGAINST THE UNITED STATES, AND OTHER CASES. (THE PRIZE CASES.)

NOTE

What were known at the time, and are reported in the Supreme Court Reports, as the "Prize Cases" (2 Black, 635-699) arose very soon after the outbreak of the Civil War, from the capture by vessels of the United States Navy of vessels and cargoes, either on the high seas or in the course of attempted breach of the blockade of Southern ports, which had been established under the proclamations of President Lincoln. The vessels and cargoes in question were captured under claim of lawful prize under the laws of war and taken into the ports of the United States, where condemnation under the law of Prize Courts followed. The cases, four in number, came before the Supreme Court on appeals from the judgments of condemnation, two from the U. S. Circuit Court for the Southern District of New York, one from the United States District Court for the Southern District of Florida, and one from the United States Circuit Court for the District of Massachusetts. It was arranged with the Court by the various counsel engaged that argument upon all the cases should be had at the same time.

The general questions involved in the decision of these cases may be stated in the language of the Court at the very beginning of the opinion delivered by Mr. Justice Grier. The Court says: "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?

2nd. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as "enemies' property"?

Mr. Evarts was retained by the Government in the court of first instance and in the Supreme Court in the two cases originating in New York. The case arising in the United States Circuit Court for the District of Massachusetts was conducted on behalf of the Government by Richard H. Dana, Jr., then U. S. District Attorney for Massachusetts, and involved the sole question of "enemies' property." Mr. Dana took a very prominent and effective part in the Argument before the Supreme Court, and added much to his reputation. The Argument in these cases occupied twelve days: February 10 to 13, 16 to 20 and 23 to 25, 1863, and the decision in favor of the Government's contention was rendered on the 10th of the following month. Mr. Evarts filed a general brief covering all the cases and made the argument that follows.

ARGUMENT

FIRST DAY

May it please the Court: Although the importance of the questions which have been presented, and properly presented, in the argument of this case before this Court cannot well be exaggerated, yet I am persuaded that whatever novelty attaches to them is to be found more in the attitude of our nation and our government to them than in the principles by which their decision is to be controlled; and the deep solicitude which watches the investigation and expects your just judgment is due much more to the vital interest that we all feel in them than to any difficulty which is to attend their solution. For war is no stranger on the theatre of human affairs; and whether it comes heralded and with acclaim or unbidden and unwelcome, it brings its whole train with it, and while it remains it is master of the scene.

War never comes

till war is over.

till peace is gone, and peace never returns They play no parts together on the same stage and at the same time. Brief as is the history of our own nation-not so long in its duration yet but that those who have reached the Homeric fame

renowned for justice and for length of years"

have seen its origin and now may contemplate the menace of its end—yet it has had experience of every kind and form of war. It came into being through the war of the revolution, which was, in its origin, a civil war, and worked itself up only on the part of the revolting colonies to a public war through the successes of their arms; and never till its close, in the recognition by the parent government making our nationality wholly legitimate, was it esteemed by the other belligerent power as other in its character, or in the leading principles which should govern it, than a war of rebellion.

So too, we, as neutrals, during the long contest growing out of the French revolution, stood as witnesses of public war, in the attitude specially relevant to the public law governing public war, for our attitude as neutrals thus brought us in connection with it.

At the close of the century, in 1798-9, we were involved in partial or in perfect war with France, and then learned that while it was war, and while, to the extent and purport and purpose of its hostilities, it imported the law as well as the force of war, yet the national power which limited the extent and character and effort of the hostilities, regulated as well, by the same measure however and by that alone, the application of the laws of war.

In 1812, in the open and public war with England, we came fully under the jurisdiction of the law of nations in its simplest form of absolute, adverse belligerents.

During the civil commotions which raised the SpanishAmerican colonies into independent states during their

war of independence, civil and public on one side or on the other-we, as neutrals, had our part to play, and most usefully we took the lead in establishing the principles and according to them the practical results which should govern such a contest as that.

In the war with Mexico, a war in self-defence, if you please, turned, as the Romans turned their wars of self-defence, into conquest, this Court had occasion to expound, to instruct the people, and to establish for the guidance of the future the principles which can govern a constitutional government and the application of all the powers of war-notwithstanding, a constitutional rule for its still proceeding into the domain of conquest.

And now we have the present war in which we occupy, in some sort at least,-to the apprehension of ourselves, perhaps, somewhat less than in the impartial observation of neutral nations-the attitude which Great Britain held to our struggle for independence, which Spain held to her revolted or warring colonies. It is true, in both of those contests there was present a marked fact, forming a leading feature of each of these transactions, which we miss here. The wide intervention of the ocean separating the revolting colonies, in one case and the other, from the parent country, and the separate and independent development under which the colonies in revolt had grown up, gave to those great transactions more the form of that struggle in the womb of the parent nation and that separation of the offspring of the mother which seemed a natural birth of a nation in progress of time. But, in this war, no such similes of hope and promise attend the contest. It is all of partition of a united people. It is a dismemberment of mutilation and of ruin. And though we thus find that the terrible traits and consequences of purely intestine war seem more brought home to us in this controversy than in the Spanish-American instance, or in the history of our own revolution, yet we shall find that,

after all, so far as those traits and features are concerned that are to affect our estimate of the character of the conflict-the fact of the confederated form of our government, the distribution of powers in the general and among the State governments, giving to the effort and front of war, without its legality of political tie and alliance, nevertheless, the form of organized communities struggling as if an existing or nascent state against the parent government—all this, if the Court please, should satisfy us that the situation, full as it is of public and of private griefs, for the first time to us, is, however, a situation not novel or unfurnished with guidance in the history of the world. We may know and feel that the instruction in the law of war which this nation has gained through those experiences are to serve for its rules now; for we know: "Nec erit alia lex Romae alia Athenis, alia nunc, alia posthac, sed ad omnes gentes, et omni tempore, una lex; et sempiterna et immutablis continebit."

The law which we are to administer is not different from that which is to be administered in the courts of London and in the courts of Paris. It is not other than was administered at the period of our own revolution, or during the struggle of the Spanish-American states. But, furnishing its pure, its everlasting and unchangeable rules, we are to bring the facts of our situation for its entire and perfect judgment.

Now, if this public and universal law of nations is to be the guide of the determinations of this Court, is there anything in the fact that this Court sits under a constitutional government and derives its power and authority through a constitutional government, ruled over by the organic law, that makes its administration other and different, more limited or more confined, than the simplicity of the law of nations dictates in all such situations? Why, certainly not. This Court sits here, in its full Bench precisely in the same jurisdiction as the Prize Court.

The Prize Court derives its authority from the federal