Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-10-09

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DecIrIOn of a Prize 0uestIOn-ImPOrtanr
Opinion of Judge Giles : The Seeded
states Declared 80 be BeIIigerents.
/ From the Baltimore sun,sePt23.
In the United States District Court on Saturday
Judge Giles fled the following important opinion.
Judge Giles prefacsd the reading of his opinion with
the remark that the questions involved the case
| were Of the most interesting and important ehsrae
| ter, and in manner new, the Court not having
been called upon to decide upon questions of prize
for forty years and upwards, or since the war of
1872. The Court also paid high compliment to
the States Attorney and the counsel Cor claimants,
"a s. Ridgely Esq) for the ability which they had
exhibited in the argument of the case.
In he District Court of The United States TOR The Dis,
triet cf Maryland SEPTEMBER Term, 1861.
The United States VS.. the Schooner F. W. Johnson.
This is libel fled on behalf of the United States
to forfeit the schooner f. W. johnson q prize Of
war. The bill alleges that the said schooner was
captured by vessel Of-war Of the United States,
about twenty-five miles to the southwark of Cape
Henry, in the Atlantic ocean, having on board at
the time about twenty eight tons of railroad iron
That the said cargo of railroad iron was saved by
the said schooner for the use of the Norwegian bark
Albion, which had been cast away about the lst Of
May lsst at the spot where the capture was made.
That the said schooner belonged 70 the port of Nor
folk in Virginia. and was owned By citizens of said
Sate-a State at that time claiming to have separs-
ted from the UnitGd States and with other Southern
State1 then waging open war against the United
States by the various modes Of warfare usual
among hostile nations, and that the said schooner
left her port in Virginia bound to some port south
of Maryland, with intention to discharge her cargo
| in such Southern port --... a
Before discuss the facts of this present
ed to the courts in the pleadings, answers to the
Il -
lnterrogatories u PreparaoTo and other evidence
in the case, will state what believe to be the law
of nations in reference to the frat question which
has been so ably argued By the learned counsel IL
has been commended by the counsel for the claim
ants that in the present unhappy division in our
country the Government at Arlington has no pow
er, either under the Constitution of the United
States by the recognized principles Of the law Of
nations to treat the inhabitants of the Safes which
claim to have seeded as enemies, and to exercise
in reference them those beligsrent rights which
all concede belong to parties engaged in public
war. And by public war is here meant war
between independent sovereign States. Now, am
sitting in this case in Prize Court and the Supreme
Court said, the case of the Rapid, s Crsneh's re
pOrtG, lk5, and the schooner Adeline and cargo |
Craneh 264, shat the law Of prize is part Of the
law Of nations" And am, therefore, to decide !
this Qusstionthy the principle of that universal
law 10 which all civilized princes and States &C,
knowedge themselves to be subject q i
In the first place let US see what is the character
of the present contest in this country and in what
light it has been regarded by the executive and leg
islative departments of tie Government. In the !
face of all that is passing around US, il needs no
argument to show that civil war of gigantic di-
mensions is sweeping over the land. We almost
within sound of the cannon of two of the largest
armies that have ever been marshaled in hostile
array against each other this continent. More
than third of the Confederacy has claimed to
separate from the rest, and they are now fighting
about the construction of the organic instrument
of the Government -one side alleging that under a
true construction of the Constitution each State
has right to withdraw from the Union whenever
its people so determine; the ether that no such
right exists and that to attempt to secede is rebel
lion, and not the exercise of any constitutional
right. And in the States which have claimed the
right 70 withdraw there are now open no courts of
the United States and the laws of the United States
cannot be executed in those States by the Ordi
nary course of judicial proceedings.
Ia this not cIvIl war? aud has it not been so re-
garded by the executive department of the Govern
ments This is clear from the proclamation of the
President of the 18th of April of the 10Th of April
10th of Asy-al recognizing the fact that Il civil
power Of the GOvrnment is no longer capable of
enforcing the laws and calling to its aid the power
intended to be provided by the acts l795 and 1907,
and also using the power of blockade, q war power
belonging only to belligerents either in q civil or
foreign war. And the legislative department has
also recognized this CONTEXT as . war. For during
The last session of Congress it not only did so by the
avs winch II passed raising OF ARMIES and 1
providing means for their support but in express
language on (four) different occasions, as will be
in reference TO the laws Of TIE extra session Of
July last pages 26S, 274 3l5 and 326 And the last
aW (pSge 326) to which refer not only recognized ;
war as existing, but it approved and sanctioned !
Ill the proclauatons of the President thereby ma
King valid the blockade declared by the President
n his proclamation of the 10Th and 9th of April :
the President alone, las commander-in chief Of z
he army and navy of the United States" did not 1
ovisti .
# the country.
The Supreme Court. (Chief Justice fancy deliv- .
ring the opinion, in the of Luther rs. Borden
nd others, q Howard 46) says: " JnsnestiOnGbly =
State may use its military power to put down an =,
rmed instruction too strong to be controlled by Y
he civil authority The power Is essential TO the =
rstence of eUery Government essential to the preser-
alton of order and free institutions, and it s as
ecessaPy to the States Of the Union as TO any other
Government The State itself must determine what =
egree of force the crisis demands, and if the Gov
rnment Of Rhode Island deemed the armed oppos- n
ON too formidable, and so Famfed throughout the
tate to require the use Of the military force Y
nd the declaration of martial Law, we see no D
round upon which the Court can question its au- y
lority. II state of t0GT, and the established r
Government resorted to the rights and uSuages of "
ar to maintain itself and overcome the unlawful =
pposition. "
Now what say the writers on the law of nations? N
attel says, in book 81, CHI Is, page 425 when u
party is formed in State who no longer obey the
jveregn and are possessed Of sufficient strength 10
oppose him. or where, in republic, the nation 70
divided into opposite factions and both sides ~
Ike up arms this is called ciUl war. Some writ Of
conns this term to just insurTection against to
ler sovereign, to distinguish that law resistance in
ON rebellion which is open and unjust res Ince ct
"But what appellaEon will they give to a war "
Inch arises in republic torn by two factions, or be
a monarchy between two competitors for the 70
-own? Custom approPristes the term ciUa to CO
very war between the members of one and the en-
Ime political society"
And Wheaton, in his great work on international lei
W, says, on page 365, "a civil war between the W
ferent members Of the same society is what Gro ~
US calls mixed war. II is according to him, III
nblic on the side of the established Government WI
I'd private the part of the people resisting Al
ority. But the general usage Of nations regards Be
Ich emitting the contendiDg parties to all oh
70 rights of war against each other, and even a. su
spects neutral nstions" ~ $500 sal
Judge Chase. OF the Supreme Court in the case wa
Ware Vs. Hilton and others. Dallas 499, speak tic
of the effect of the act Of the Virginia Conven AM
in June 1776 and the Declaration Of Independ she
ce by Congress the 4th Of July following, says cor
Iefore these solemn acts of separation from the Ca
own Of Great Britain, the Wsr between Great ter
.tan and the United Colonies, jointly and seper ma
ely Eods c;ua mar but instantly on that great WI