The Hiawatha and others.

It was understood and agreed between counsel, that official documents, correspondence, proclamations and enactments in print, as published by authority of the United States and British governments, by the separate seceded States, and by the Confederate States, should be read and used as evidence without other proof, to wit: The proclamations of the President of April 15, 19, and 27, and May 2, 1861; his message to Congress, of July 5, 1861; the proclamation of Commodore Pendergrast, of April 30, 1861; the correspondence of the Secretary of State with Lord Lyons, on the subject of the blockade of American ports, printed by Parliament; the secession ordinances and resolutions of the States of Virginia, South Carolina, Louisiana, Florida, Texas and Georgia; the act of the confederate government, declaring a state of war with the United States to exist; and the proclamation of Jefferson Davis, president thereof, of April 17, 1861.

Those causes were discussed with distinguished ability and learning, orally and upon written and printed points and briefs, and nine days of the sittings of the court were devoted to hearing those particular actions. They were argued by the district attorney, (Mr. E. Delafield Smith,) and Mr. William M. Evarts, on the part of the libellants, and by Messrs. Charles Edwards, Benjamin D. Silliman, and Daniel Lord, on the part of the claimants. For six days ensuing, further arguments were addressed to the court on collateral and auxiliary points embraced within those three particular cases, together with occasional supplementary observations upon the main topics also; and very ample and exhausting discussions were added upon the facts and law involved in the other seven causes above named. All these considerations were comprehended in the body of ten suits pending before the court, and were regarded by counsel as essentially pertinent and important to the just appreciation and decision of the respective causes. Those discussions were maintained by the district attorney, by Mr. Woodford, assistant district attorney, and by Messrs. Evarts and Upton, for the libellants and captors, and by Messrs. Edwards, Lord, Wright, Merrihew, Woodman, Mason, Donohue, Burrill, and Whiting, for the respective defendants and claimants.

After the hearings in the above suits were terminated, Mr. Lord produced and read in court the act of Congress entitled “ An act further to provide for the collection of duties on imports and for other purposes," approved July 13, 1861, which was then found just published in the newspapers, and submitted to the court that the true import and effect of the act was to counteract and rescind all the pro

The Hiawatha and others.

ceedings of the President in authorizing acts of war on the part of the United States, or in establishing the blockades of ports, or the seizures or captures referred to in the pleadings and proceedings in those several suits, and that the statute amounted to conclusive proof that those acts of the President were without authority of law, and invalid.

Whilst the decision in these several causes was in course of preparation, Mr. Silliman, with the consent of the district attorney, enclosed to me a copy of an act of Congress entitled "An act to confiscate property used for insurrectionary purposes," (cut from a newspaper,) but the date of the approval of which, if ever made, is not stated, (and I am inclined to the opinion that the bill was included, with other provisions, in an act of like title passed at the close of the session, a copy of which has not yet been furnished me,) as being a clear exposition of the law, and amounting to a legislative determination, that the vessel now on trial was not confiscable merely as the property of insurrectionists or rebels, without an enactment of Congress to that end.

It is observable that no express declaration is used, in either of the above enactments, that it was the purpose of Congress to give those acts a retrospective or retroactive effect, or to pronounce a legislative opinion upon the true purport and scope of municipal or public law in reference to those subjects, as it then existed.

As the statutes were passed in the light of the antecedent acts of the President, and with full knowledge of the considerations upon which those acts were founded, and of the assertion by the Executive of their imminent necessity and justness, as measures conducing to the support of the national defence and existence, and the enactments, in terms, no way disclaim or disapprove of the action of the Executive in respect to those measures, the implication, in my judgment, would be that the intent of Congress was to signify an implied sanction to the employment of the powers used by the President, rather than to disaffirm or rescind the policy or provisions of the measures adopted by him.

It is the established rule of construction to interpret statutory law as taking effect from the time of its passage, and not as varying the law or its administration by retroactive operation (Matthews v. Zane, 7 Wheat., 211; 1 Kent's Comm., 455, notes.)

If a statute may avail retrospectively in any description of cases, it would seem that the purpose of the legislature to give it such effect should be manifest in the terms of the act, or be unmistakably deducible from the intent of the enactment and its policy. (1 Kent's Comm.,

The Hiawatha and others.

456, note b.) But it does not seem to me it can rightfully be claimed that there is any legal incongruity with the propriety of previous administrative acts performed by the Executive, of high moment and exigency in his opinion, although Congress may subsequently appoint a precise law for future occurrences of a like nature; nor that such enactment of a permanent law would draw after it a doubt of the validity of the Executive acts previously performed under the pressure of a political and public necessity; nor that a law declaratory of the rightfulness or invalidity of those acts would control the interpretation in a court of justice of the authority previously used. (1 Kent's Comm., 456, note b.)

In my opinion, however, neither of the acts referred to is to be interpreted as countervailing or derogating from any powers exercised by the President before their passage, and which were within his official competency; nor were those acts passed by Congress with intent to have such effect.

The pleadings in all the cases seem to have been constructed on a common understanding, and they essentially put in contestation the main features of fact and law which afford grounds of prosecution and defence in a prize court upon the subjects now in litigation here.

The matters debated in exception and bar to all the suits may be classed under five general heads:

1. That this court, as a prize court, or otherwise, has no jurisdiction over the actions.

2. That the public disturbances now subsisting throughout the country, or between different portions of the United States, do not constitute a state of war, carrying with it the consequences or incidents of public war, under the public law or law of nations.

3. That no lawful blockade has been established by the government of the United States against any port within the United States; nor has a blockade been maintained conformably to the rules of the law of nations, or been violated against such rules, within the United States.

4. That no particular State, or number of particular States, or the citizens or inhabitants of particular States, can become or be treated as enemies of the United States, by the government of the latter.

5. That the President of the United States has no power, without authorization by Congress, to create or declare a state of war with any State or States of the United States, or to establish a blockade of any port or ports within such State or States.

The Hiawatha and others.

It is not attempted, in this summary of the points raised in bar of the suits under prosecution, to reproduce the objections with the formalities under which they were presented. It is, however, intended that all grounds of defence embraced within all the causes of action alleged in the libels shall be distinctly met and disposed of by the judgment of the court.

Proceedings in prize courts are subject to different considerations from those in the instance courts of admiralty, (The Athol, 1 Wm. Rob., 380,) and may be framed with great simplicity and directness. (2 Wheat., Appendix, p. 19.) An averment that the capture was prize of war would, in ordinary instances, be sufficient fulness of pleading to call out the defences of claimants against the seizure. (The Fortuna, 1 Dods., 81.) A like freedom from technical formalities, or diffusiveness in pleadings in defence, is allowed and encouraged in prize proceedings.

The libels now under consideration have adequate amplitude of averments to cause condemnation of the property seized, if it be not protected by the defences set up. The main stress in all the suits, therefore, lies in the defensive matters put forth against them.

The objection taken to the jurisdiction of this court rests on the limitation of jurisdiction over civil causes of admiralty and maritime jurisdiction to cases of seizures within its territorial dimensions, or on the high seas. (1 U. S. Stats. at Large, 76, sec. 9.)

The Constitution of the United States confers upon the judiciary cognizance of all cases of admiralty and maritime jurisdiction. (Const., art. 3, sec. 2.)

In 1794, the Supreme Court, after hearing a protracted argument, decided that the district courts possess, under this grant in the Constitution, all the powers of a court of admiralty, whether considered as an admiralty court specially or a prize court. (Glass v. The Sloop Betsey, 3 Dallas, 16; Penhallow v. Doane's Administrators, Id., 97; Jennings v. Carson, 4 Cranch, 2.)

Under the English jurisprudence, prize cases appertained to the jurisdiction of the admiralty court, as a part of that system; (Le Caux vs. Eden, Dougl., 594, note;) although the authority of the admiralty judge to hear and determine prize causes depended entirely upon independent and separate commissions issued to the judge. (2 Chitty's Gen. Practice, 538, ch. 5, sec. 12.) That doctrine in respect to the admiralty was also applied to our system by the Supreme

Court, in the decision above cited, before Congress had designated the

The Hiawatha and others.

tribunals which should specially take cognizance of the prize branch of admiralty jurisdiction. Since that time the appointment of that jurisdiction by Congress is made exclusively to the district courts, without any restriction to territory or place. (2 U. S. Stats. at Large, 759, 761, secs. 4, 6.) And more recently the doctrine is declared that the admiralty court possesses the instance and prize jurisdiction. (Jecker v. Montgomery, 13 How., 498.) The practice only in the prize court, after it takes cognizance of the case, is to be "as in civil cases in admiralty." (Wheat. on Captures, 273.) The exception to the jurisdiction of the court is, accordingly, overruled.

The other general propositions brought under consideration in these proceedings respect essentially the acts of the President of the United States, and their nullity towards proving a state of public war to exist between the United States and the insurgent and rebel forces now carrying on hostilities against the United States and its government; and the other various branches under which the defences were discussed may well be comprehended in the general topic respecting his powers as Chief Magistrate, particularly as no point of moment is further contested in respect to the blockade, except in regard to the adequacy of notice, and that particular point in the defences may be deferred to the cases in which it specifically arises.

It is insisted, on the part of the defences, that the President, under the Constitution, had no power, upon the facts before the court, to institute, declare or recognize, by executive acts, a condition of war between the United States and the insurgents and their forces, which will carry with it, in behalf of the United States, the incidents of a public war in relation to their enemies in the contest, and also to neutral nations, as between them and this government. As consequent to that position, it is urged that the steps taken by the President to establish a blockade of ports in the possession of the insurgents are inoperative and void to that end, because the insurgents cannot be, within the meaning of the public law, enemies of the United States, but are only citizens of the same country, in a state of internal and domestic contention; and because the President has no authority, under the Constitution and laws of the United States, to declare and impose a blockade of any port or place, and particularly not of one within the limits of the United States; and, further, that the preliminaries and conditions indispensable to a valid blockade, by the law of nations, have not been observed and fulfilled in any of the cases now on hearing.

It is first to be observed, in respect to the general bearing and fea