L Case of Seabrook and others. permission, or of more than that time with leave, is not such absence as the law forbids. I am, therefore, of opinion that the salary of Mr. Seibels may lawfully be paid him to the time when he ceased to hold his office, which, of course, was the day when his resignation took effect. I am, very respectfully, yours, &c., Hon. LEWIS Cass, Secretary of State. J. S. BLACK. CASE OF SEABROOK AND OTHERS. Categorical answers to questions propounded by the Secretary of the Treasury. ATTORNEY GENERAL'S OFFICE, April 29, 1858. SIR: Your communication of the 13th instant, on the claim of Whitemarsh B. Seabrook and others, has been received and duly considered. Other and equally pressing engagements will prevent me from going into a full discussion of the subject. But this is not necessary for any present purpose, since I have had a very free and full conference, orally, upon it, with yourself and the First Comptroller. I shall therefore content myself with a categorical answer to your questions. 1. To the first question I reply in the negative. 2. When the heirs in their own persons claim the money allowed them by the first law, I think they are entitled to receive it, unless there is a claim to it set up by the administrators of the same decedent. But in case of conflicting claims between the heirs and administrator, it is my opinion that the latter is to be preferred. 3. The act of Congress referred to in your letter makes your third question a very plain one, and I answer in the negative. 4. The Comptroller has stated to me that no difficulty about these claims can arise if the three first of your ques Civil War. tions shall be decided. The fourth is, therefore, unimportant, and I need not answer it for any purpose of this case. If you differ from me in this opinion I shall take pleasure in giving you a full reply at a future time. But I am very sure you will agree with me in saying that the claimants ought not to be delayed longer than is necessary to settle the points which actually stand in their way. I am, very respectfully, yours, &c., HON. HOWELL COBB, Secretary of the Treasury. J. S. BLACK. CIVIL WAR. 1. The conquest of a country, or portion of a country, by a public enemy, entitles such enemy to the sovereignty, and gives him civil dominion, as long as he retains his military possession. Inhabitants and strangers who go there during the occupation of the enemy, must take the law from him as the ruler de facto, and not from the government de jure which has been expelled. 2. Civil war is where the people of a country are divided into hostile parties who take up arms and oppose one another by military force. 3. A revolutionary party, like a foreign belligerent power, is supreme over the country it conquers, as far and as long as its arms can carry and maintain it. 4. Although it has been doubted whether a mere body of rebellious men can claim all the rights of a separate power on the high seas, without absolute or qualified recognition from foreign governments, there is no authority for a doubt that the parties to a civil war have the right to conduct it, with all the incidents of lawful war, within the territory to which they both belong. 5. When, during the existence of a civil war in Peru, American vessels found a port of that country, and points on its coast where guano is deposited, in the possession of one of the parties to the contest, and procured, under its authority and jurisdiction, clearances and licenses at the custom house to load with guano, they were guilty of nothing, having acted fairly in pursuance of the licenses, for which the other party to the civil war could lawfully punish or molest them afterwards. ATTORNEY GENERAL'S OFFICE, SIR: The questions you have submitted, relatve to the Civil War. seizure of the American vessels "Georgiana" and "Lizzie Thompson," by the Peruvian war steamer "Tumbez," on the coast of that country, have had my consideration. The two American vessels were engaged in lawful trade, without any intention on the part of master, owners or other persons to do injury to the Peruvian Government, or to violate any law which they might find to be in force for the regulation of commerce in that part of the world. They both went into the ports of Iquique, and there, after discharging the cargoes with which they were laden, they procured a regular clearance and license, at the custom house, to load with guano at certain points on the coast where that article is found. While they were engaged in taking in their cargoes of guano, agreeably to the license so obtained, they were forcibly seized by the Peruvian steamer, the persons on board were imprisoned, and the vessels carried into Callao, under a charge of being engaged in contraband trade. Neither the commander of the "Tumbez," nor the government which he served, has attempted to vindicate the justice or legality of these proceedings on the ground that the clearance and license under which the Americans acted were unlawful in form or substance. It is not pretended that the authority, given on the face of the license, was insufficient to cover the acts of the persons who had it. The whole objection to the papers is founded on the fact that the acting governor of Iquique and the collector, who was in possession of the custom house, held their offices, not under the authority of the supreme government of Peru, but by appointment from Viranco, a revolutionary chief, who had taken arms against it. But at the date of the license, the so-called revolutionary party had full possession of the port of Iquique, of the guano deposits, and the whole country southward to the Bolivian line. When the Americans went there they found a government organized, and its officers performing the functions which pertained to the execution of the local laws. If there was any other power in existence strong enough to dictate Civil War. the law at Iquique, it was not exercised, nor did the foreigners at Iquique receive even a notice that it would ever be exercised in the future. Under these circumstances, could the Peruvian government justly or lawfully treat the American vessels as violators of their law? When a portion of the territory of one nation is taken possession of by the forces of another, with which it is at war, the conquering party has an undoubted right to declare the law of the place as long as his occupation of it continues; and all the rights of the previous sovereign are suspended until his possession is renewed. The island of Santa Cruz, then recently captured by the British forces, was in their temporary occupation during our last war with that country. We held it to be a colony of our enemy, and for that reason our courts declared that a cargo of sugar shipped from there was the lawful prize of an American privateer, who had captured it. (9 Cranch, 191.) We conceded the same rule when it operated against us. The port of Castine was taken by the British in 1814, and it was decided that our revenue laws did not apply to it any more than to a foreign country. (4 Wheat., 246; 1 Gallison's Reps., 501.) Indeed, nothing can be clearer than that the conquest of a country, or portion of a country, by a public enemy entitles such enemy to the sovereignty, and gives him civil dominion as long as he retains his military possession. The inhabitants who remain and submit, and strangers who go there during the occupation of the enemy, must take the law from him as the ruler de facto, and not from the government de jure, which has been expelled. It is equally well settled that, when the former government resumes its possession of the territory, whether by force or under a treaty, it cannot call the citizens or subjects of a third nation to account for obeying the authority which was temporarily supreme during the enemy's occupation of the place. The jus post limini has no sort of application to such a case. It may be supposed that these principles refer only to a lawful war carried on between two separate and inde Civil War. pendent nations. But we shall see, I think, upon further examination, that they apply with equal force to a conflict like that in which Peru has been engaged. Where the people of a republic are divided into two hostile parties, who take up arms and oppose one another by military force-this is civil war. The fact that civil war exists does not depend, in the least, on the cause of the dispute. No foreign nation has a right to interfere between the parties, or to judge of the merits of the quarrel, unless with the purpose of making war upon one or the other. They have appealed to the sword, and the sword must decide it. Other powers are bound to observe a strict and impartial neutrality. If the party which opposes the previously established government succeeds. in overthrowing it entirely, and gets possession of the whole country, nobody can be perverse enough to deny that, in such a case, the new government is sovereign, and authorized to dictate the law which shall prevail. Supposing, however, that the rebellion is but partially successful, and the old government maintains itself in one part of its territory while it is obliged to surrender another, shall it then give law where it has no power to enforce obedience, or shall its authority be confined to the territory which it occupies? The answer to this question is not doubtful. A revolutionary party, like a foreign belligerent power, is supreme over the country it conquers, as far as and as long as its arms can carry and maintain it. Vattel (Book III, ch. 18, sec. 293) says, what all writers on the subject assent to, that the two parties to a civil war are to be regarded for the time as distinct political societies, and stand in the same predicament as two belligerent nations. They are entitled, one as much as the other, to the respect of foreigners who deal with them, or meet them on sea or land. They can, each of them, claim the same rights of asylum, hospitality and intercourse with other nations. (3 Wheaton, 643.) The captures made by both give titles to the prizes which their respective ships, lawfully commissioned, may take. (7 Wheaton, 337.) Each |