Year: 1863

The New Doctrines.


The new doctrine advanced by Messrs WHIT
ING and SUMNER. and supported by the Republi-
can press that the States that have adopted ordi-
nances of secession are no longer States of the
Union, has been pretty thoroughly ventilated and
exposed, but by paper so ably effectually as
by the National Intelligencer of Washington.
The review in that paper Of Mr.. Summers argu-
ment overwhelmng-crushng to powder
the stately edi6ce of supreme power in the gen
eral government. for all purposes. which the Sen
ator had erected with so much pride and arro-
gance.


In a recent number of the same paper, find
an article which considers the attempt by Messrs.
SUMNER and WHITING to sustain their theory by
the decisions of the Supreme Court in the admi-
rally cases which have arisen since the war, as
without excuse in law The Inteli-
gencer nails these gentlemen to the wall, by citing
the opinion of Judge SPRAGuE of the United
States District Court, sitting ia Boston in April,
1862, in the case of the 'Any Warwick and her
cargo" The United States Supreme Court in





piles laid down by Judge SPRAGUE. who. in decid-
ing that case, said:


An objection TO the prize decisions of the Dis
trict courts has arisen from apprehension of
radical consequences It has been supposed that
if the Government have the rights of belliger-
ent then after the rebellion is suppressed il will
have the rights of conquest; that n State and it,
inhabitants may be permanently divested of all
political privilege and treated as foreign terri
tory acquired by arms. This is an error-a grave
and dangerous error.


Conquest of foreign country gives absolute
and unlimited sovereign rights. But no nation
ever makes such conquest of its own territory.
Ii hostile power, either from without within
a nation, takes possession and holds absolute
dominion over any portion of its territory, and
the nation by force of arms expels or overthrows
the enemy, and suppresses hostilties, it acquires
no new ti!le, but merely regains the possession of
which il had been temporarily deprived. The
nation acquires no new sovereignty but merely
10 maintain its previous rights.


Another objection to these decisions of the
district courts is founded upon the apprehension
that they may lead to or countenance crdel and
impolitic confscations of private property found
on hand This apprehension is unfounded. No
such consequences can legitimately follow. These
decisions undoubtedly assert that the United
States have the rights of bellgerent; but the
extent of those rights on land, or the manner in
which they are to be exercised, were not discuss
ed They were not even adverted to, except to
say that the enemy's property found by belliger
ents on land, within his own country, on the
breaking out of war; will not be condemned by
the courts, although it could be if found at sea.
The distinction, so far as it goes, tends to show
that the doctrine OF maritime captures is not to
be applied to seizures on land But the danger
upon this objection is founded does not arise from
the administration of the prize laws by the
courts, or the exercise of begerent rights by
military commanders upon military exgncies.
The objection really arises from fear of the legs-
lation of Congress. 1t is apprehended that they
may pass sweeping general acts of confisca-
ton to take practical effect ony after the rebel
lion shall have been suppressed: that whole es-
tates, real and personal, which have not been
seized during the war, may be taken
and con6scated upon coming within
reach of the government after hostili-
ties shall have ceased. This, we have
seen, would not be the exercise of belligerent
rights. the war being at an end. Belligerent con-
6scatons take effect only upon property of which
possession is taken during the war AS against
property which continues under the control of
the enemy they are wholly imperative. If pos
session be acquired by or after the peace, then
previous legislation may take effect, but it will
be by the right of sovereignty. not act of
war. Under deSp0tic governments the power OF
municipal coniscation may be unlimited, but
under our government the right Of sovereignty
over anv portion of State is given and limited
by the Constitution, and will be the same after
the it before. When the United
States takes possession of any rebel district they
acquire no title, hut merely vindcate that
which previously existed, and are to do only what
is necessary for that purpose. Confscations of
property, not for any use that has been made of
it, which go not against offending thing, but
are inflicted for the personal delinquency of the
owner, are puna;ive, aud punishment should be
inflicted only upon due conviction of personal
guilt. What offenses shall be credited and what
penalties affixed must be left to the justice and
wisdom of Congress within the limits prescribed
by the Constitution. Such penal enactments
have no connection whatever with the decisions
of prize courts enforcing beligerent rights upon
property captured at sea during the war.