Delaware State journal and statesman. [volume] (Wilmington, Del.) 1855-1870, 1864-02-05

ted, yeti contend that il even this test be applied
the Legislature will be vindcated in having pro-
vid0d the mode Of enforcement in conformity
with that principle.
Is il not manifest that the things con6scabl,
are valuable to the owners for the purpose o.
enabling them to maintain the struggle agains
the Government, and conducting to the violation
of the law which required that they should re
turn to their dutyi Doea the act oonhscatt
slaves? They are the laboring population by
whose active assistance breadstufs are raised fol
the support Of TIE army. Are cattle taken? Il
deprVes the offender of the power of converting
them into food for the maintenance of his troops
ls land seizedg 1t constitutes the very fountain
from which he draws his supplies, and forms the
basis Of taxation for the continuance of the re-
belliou.
But, MIR. Speaker. the doctrine is advanced By
gentlemen OF eminent ability on this fIoor and
elsewhere, that the United States are at war with
foreign nRtion, that the rebels are to be regard
ed as alien enemies, and the territory that may
be wrested from their possession is to be treated
as conquered country. | cannot agree to this
proposition. | hold that they are still within
and subject to the jurisdiction of the United
States. | maintain that, however organized in
rebellion, no act which they have committed has
absolyed them from the allegiance which they
owe to this Government, or from criminal re-.
sponsibillty TO Its laws; that the right of intra-
territorial Jurisdiction il perfect as before the
rebellion and that however they may have
affected their own condition so as 10 depriye
them of the right of denying the application Of
the stern rules of war when enforced in that
character, even such application il merely in
addition to the ordinary incidents of sovereignty;
and from this cause they can have no right to
claim that they do not owe allegiance TO the Gov
eminent of the United States.
The capacity of enforcement Of municipal law
may be suspended, the government Of States may
be temporarily overthrow, the instruments of
power may be usurped; but all these do not de-
prive the sovereign Of his right of jurisdiction
over his own territory and subjects. Nothing
can alter their condition or convert them into
aliens or relieve them from criminal liability ex-
Oepl ultimate success terminating in the estab-
lishment of their independence. So long as we
continue to employ against them the ordinary
means Of warfare with any reasonable prospect
of their reduction, thoy are still subjects Of the
United States and any other hypothesis would,
to my mind, carry with it the recognition, either
of the original right Of secession, thereby con-
verting them into AN independent people, or that
their relation has been changed by the successful
arbitrament of the sword.
These views seem TO me 10 derive entire con-
frmalion from the case Of Rose vs. Hinely, de-
cided by Chief Justice Marshall and reported in
4th CranCh, 24l. 1t arose upon an appeal from
the sentence of the circuit court for the district
of South Carolina, and briefly upon these facts:
the schooner Sarah, alter trading with the rebels
of San Domingo, sailed thence with a cargo pur-
chased there for the United States, and after
proceeding more than ten leagues at sea was cap
tured by French privateer, and the cargo sold
by the captors They were carried by the pur-
chaser into Charleston and there claimed on
behalf Of the former owners. The seizure and
condemnation were based upon decree of the
French Government, which declared that "the
port of santo Domingo was the only one Of the
colony Of Santo Domingo open to French and
foreign commerce, and that every vessel sailing
within the territorial extent Of the island Except
between Cape Raphael and the bay of 0coa)
found at less distance than two leagues from
the coast should be arrested and coRfscaied. -
The condemnation was reversed by the court, and
restitution awarded on tue ground that it was q
mere breach of the municipal regulation, and
therefore not warranted by the law of nations.
In pronouncing the opinion Of the court, Chief
Justice Marshall uses the following language,
which is go appropriate to the question under
consideration that quote it even at the expense
Of prolixity
admitting that the ordinary tribunal erected
in st. Domingo ;gas capable of acting as prize
court, and also Of taking oognizance of ohfenses
against regulations purely municipal, it is ma
terial to inquire in which character it pronounced
the sentence of condemnation in the case now
under consideration. In making this inquiry
the relative situation Of st. Domingo and France
must necessarily be considered.
mThe colony Of st. Domingo originally belong
ing to France had broken the bond which con-
nected her with the parent State, had declared
herself Independent, and was endeavoring to sup
port that independence by arms. France still
asserted her claim OF sovereignty, and had en-
ployed military force in support Of her claim.
A war ne fdct0 then unquestionably existed be-
tween France aud st. Domingo. 1t has been
argued that the COLONY, having declared itself o
sovereign State, and having thas far maintained
It's sovereignty by arms, must be considered and
treated by other nations as sovereign in fact, and
as being entitled to m0intRin the same inter
course with the world that is maintained by
other beligerent nations. In support OF this ar
eument the doctrines Of Vatte have been par
tcularly referred to. But the language of that
writer is obviously addressed to sovereigns. not
to courts. 1t is for Governments to decide
whether they will consider st. Domingo as an
independent nation, aud until such decision shall
be made, or Franco eball relinquish her claim,
courts Of Justice must consider the ancient state
of things US remaining uualtereq, and the cove
reign power of France over that colony as still
subsstng
alt is not intended to say that beligerent
rights may not be superadded to those of soTe-
reignty But admitting sovereign who is en-
deavoripg 10 reduce his reVolted subjects to
obedience to possess both sovereign and belliger-
ent rights, and to be capable Of acting in either
character, the manner in which he acts must de-
termine the character of the act. If, as a legis-
lator, he publishes law ordaining punishmenis
for certain olfenses, which law is to DO applied
by courts, the nature of the law and Of the pro-
ceedings under it will decide whether it Is an
exercise of belgerent rights or exclusively of the
sovereign power"
"Nothing can be more obvious ,hsl that these
are strictly territorial regulations proceeding
from the sovereign power Of st. Domingo, and
intended to enforce sovereign rights Seizure
for breach of this law is TO be made only within
those limits over which the sovereign claimed a
right to legislate 10 virtue OF the exclusive do
minion which every nation possesses within its
own territory and within such distance from
the land Rs may be considered as part Of Its
territory. This power is the same in peace and
in war. and is exercised according to the dscre-
ton Of the sovereign"
SIT is true that the revolt Of the colony is the
motive for this exercise Of sovereign power
Still it is an exercise OF sovereign power restrict
ing itself within those limits which are the pro-
vi9Sqsef municipal Law, not the exercise Of q
beiligerent right"
have cited this opinion at some length, Mr..
Speaker, as being more cOgent, more authorita-
tive, more conclusive than any argument could
possibly make. 1t establishes the position thai
municipal and belligerent rights may coexist and
be ooucuErently exercised.
Neither blockading ports nor exchanging pris-
| oners Ia in any respect ipcOmpatibe with the
maintenance Of sovereign power Miserable
would be the condition Of that nation whiot
would be compelled to leave its citizens languish
| In. in lnnnanna nndar nanaltu of ahandnntnenl