claimed it as a forfeiture to the King's Exchequer under the act; and, 3. By the officer, who claimed it as prize of the Rose." The question was not, whether the ship and cargo should be condemned, because, being undeniably the property of colonists in revolt, she was clearly liable to forfeiture under the act of Parliament; but whether she should be condemned as a prize of forfeiture to the King's Exchequer, or as a Droit of admiralty, as being a Prize of war, captured by a non-commissioned officer-(the claim of "The Rose" being at once negatived, owing to the circumstance of her previous seizure by the officers of the Customs.). The argument of the King's advocate, the late Dr. Marriott, and perhaps one of the best admiralty lawyers who ever lived, is worthy of attention, because it contained what I believe to be a very clear exposition of the law upon this question. Dr. Marriott appeared to support the claim of the Treasury, and denied that she was Prize of war; but claimed the confiscation of the ship and cargo as a forfeiture to the Crown under the terms of the act of Parliament. "The word of the 'act,' "" he said, "is forfeiture, and when the word prize is used, it is only a subsequent to the forfeiture being first adjudged. For the right of the King's officers, as captors, is only in expectancy, after being first adjudged lawful prize, not Prize of war, but of forfeiture, first vested in the Crown." "A new crime arises unforeseen by the Legislature. It is declared by Parliament; and: a new penalty is provided for restraining it. This escheat and forfeiture, newly created, is not given to the Commissioners of the admiralty by the act; nor could it have been in the purview of their commissions. The act is clearly, in its operation, a bill of attainder. It punishes without the form of judgment, or conviction, and evidence. All the inhabitants of the rebellious colonies, however innocent, are involved, who come not under the peculiar exceptions of the act, and their ships and goods are escheated to the King." "The word prize is introduced in the end of the second clause, which vests the sole property in the captors, after being first adjudged lawful prize. The first clause declares the ships and goods, of the enumerated colonies in rebellion to be forfeited to the King. But giving that word prize all its force, it must be understood to be prize of forfeiture, for cause of rebellion, not of war; that the word prize follows, not leads, the proposition in the act of Parliament, and that in order to be adjudged prize, (under the act,) a ship must first be adjudged to be forfeited. The sentences of the court must conform themselves in their style to the terms of the act of Parliament. The style upon the war act will not suit this subject, nor the times which have given birth to it." By war act the learned advocate meant the General Prize act. The war act only said that prizes taken shall be the property of the captor. But here this act expressly says, that all the ships and goods of the inhabitants of the rebellious colonies shall become forfeited to His Majesty. They must therefore be adjudged accordingly. And when the act goes on to say, as if the same were the goods of open enemies, and shall be so adjudged, deemed, and taken in all courts of admiralty, if there is any grammar in the world, the word forfeited is the anter cedent, and the term to which every thing that follows is relative.

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It means, also, that they shall be proceeded in by monition, and by other modes prescribed by the act; and where the act does not mark the line, then the proceedings are to be in such form, as if" the same were in a lawful war, according to the usual course of admiralty proceedings, but still as forfeited to the King, simply and plainly."

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This argument was never answered. In order to constitute the ship a prize of war, under the provisions of the statute which authorized the capture, it was necessary to resort to the fiction that the act of Parliament amounted to a declaration of war. Sir George Hay decided the case upon this fiction, but I find from a note to the report, (Hay and Marriot, 50,) that he afterwards declared privately to the King's advocate that he was mistaken in his decision, and was very sorry for it; as well, indeed, he might, seeing that under the British constitution the prerogative of declaring war does not vest in the Parliament, but in the sovereign of the realm; and it is a notable circumstance that very shortly after, the same judge (The William and Grace, Hay and Marriot, 76,) condemned a ship and goods, the property of a Dutch citizen, captured on their passage from an American port, not as prize of war, but "as a forfeiture to His Majesty." Sir George Hay appears to have very shortly after this been succeeded, on the bench of the admiralty court, by Sir James Marriott, and thereafter we find this learned judge condemning American ships and property under the act, invariably as “rebel property "—not as Prizes of war, for the reasons so ably stated by him in his argument in the Dickenson's case, but as forfeitures to the King for rebellion. (See the Louisa, Hay and Marriott, 145. "Ship and stores condemned as rebel." The Rebecca, Hay and Marriott, 214. Cargo-rice-condemned as the property of rebel Americans.") Assuming, then, for the sake of argument, that a prize court in this country possessed jurisdiction to condemn a ship belonging to citizens of the insurrectionary States, it is manifest, on the strength of these authorities, that the vessel could not be condemned as Prize of war, but as a forfeiture to the government for rebellion; and in that case not only would the precedents borrowed from the judgments of the Prize Courts, in connection with Prizes of war captured and condemned, jure belli, under the law of nations, be totally inapplicable to the present case, but numerous cases in our books could be cited to show that the admiralty courts in cases of revenue forfeiture or other public claim, in rem, have invariably recognized and given priority to private liens, and especially to the liens of material men. The case of the St. Iago de Cuba, (9 Wheat., 409,) is a very strong one in this connection. The ship was seized and condemned as a slaver, but the claims of material men were interposed, and Mr. Justice Johnson held that "the forfeiture did not ride over the rights derived under maritime contracts, whether they were called liens or privileges," and ordered the claims of the material men, who were innocent of all knowledge of, or participation in, the illegal voyage to be allowed, preferably to the claim of forfeiture on the part of the government. In Phillips and al. v. Thomas Scattergood, Gilpin's R. 1, it was held that material men, having a lien on a vessel which had been taken and sold under a

judgment in favor of the United States, were entitled to a priority of payment out of the fund. But it is manifest that under the terms of the act of 13 July, 1861, the Prize Court can have no jurisdiction over this ship, supposing her to have been rebel property at the time of her capture, and that in that case she can only be declared confiscate by suit in the District Court. No such suit has been instituted. On the contrary, in that event, the only suit by which the ship is lawfully within the jurisdiction of the admiralty court is that in which we appear as libellants, and that suit it is now sought to dismiss peremptorily and without a hearing.

But the Nassau may have been captured upon the second ground to which I have referred, namely, as a foreign ship, (her nationality having been conveniently changed by sale since the commencement of the rebellion,) entering or attempting to enter the ports closed, or claimed to be closed, by the Act of July 13, and the proclamation of August 16. Supposing this to be the case, I do not see that the position of the captors in the Prize Court is at all improved by it. Unless this ship has been captured, jure belli, or unless a Prize Court has been specifically empowered by some municipal law of the United States, no Prize Court can have any jurisdiction to deal with her. We certainly are not at war with Great Britain, and therefore it is clear that the ship cannot have been captured jure belli as the property of British subjects simply, and cannot be condemned as prize of war on that ground. I am not going to contend that the right to seize the ships and goods of foreigners engaged in giving assistance to the rebels does not exist. The right of self-preservation is a right as inherent in a nation, and in a public sense, as it is in an individual. The citizens, who, in the phraseology of the criminal law, are engaged in "levying war" against the government of the United States, are guilty of treason; and every one, without regard to nationality or allegiance, who, within the jurisdiction of our Admiralty, conspires with, or assists, or by overt act manifests an intention or purpose to take part with, or assist, the rebels in that criminal purpose, is particeps criminis, and liable as a principal to the penalties of the criminal law, equally with the rebels themselves. But rebellion is only treason after all, and if the citizen rebel be not an open enemy within the meaning of the law of nations, it is clear that a foreigner who aids him in his treason can, by no torture of the language of public law, be held to be so. We possess, no doubt, the inherent right, as a measure of self-preservation, to seize within our own waters any foreign ship employed in the service of the rebels; but seizure is one thing, and condemnation is another. The law of the 13th July, 1861, gives the District Court power to declare the ships and goods of rebel citizens forfeit to the United States, but it makes no similar provision for the forfeiture of foreign ships employed in the service of the rebels simply. Nor does the right of forfeiture on such a ground exist either by the criminal or the common law of the United States. What are the penalties of treason under our criminal law? In this country there is no attainder for treason. Not only does the Constitution (Art. 1, sec. 9, § 3) forbid the passing by Congress of any bill of attainder, or ex post facto law; but by the Act of 13th April, 1790, Congress has declared that not

even conviction for treason shall work corruption of blood, or even forfeiture of estate. The punishment of forfeiture, therefore, which might have followed on our adopting the common law of England, must be considered to have been abolished in the United States. Confiscation and forfeiture, therefore, do not legally follow even upon a conviction for treason, and there is no law which empowers a Federal Court to adjudge a foreign ship forfeit because she is employed simply in aid of the rebellion. Does such a ship become Prize of war, and subject to the jurisdiction of a Prize Court, because she attempts to enter a port of the United States with which intercourse from without has been prohibited by the proclamation of the President, and wherewith, as far as is practicable, such intercourse is prevented by what, for convenience, probably, rather than in strictly legal phraseology, has been designated "the blockade ?" It can scarcely, I imagine, be necessary for me to point out the very transparent circumstances that distinguish the measures adopted by the President for prohibiting foreign intercourse with the rebellious States, from a blockade within the meaning of the law of nations. There are two modes by which intercourse with a prohibited coast may be lawfully and authoritatively interdicted. One of these is by blockade under the law of nations, and applies exclusively to the coasts of a foreign enemy with whom we are at open war. The other is a municipal regulation, whereby a nation at peace with foreign powers closes its own ports against external commerce, either for its own protection, or, as in the case now under review, for the purpose of shutting out external aid and comfort from citizens in insurrection. Either and both of these measures lie within the power of Congress; the President of the United States can, under the Constitution, establish neither the one nor the other.

All the ports which the proclamation of the 19th April professes to close against foreign intercourse, are in point of law ports of entry of the United States, in which, however, the authority of the Federal officers has, by the rebellion, been temporarily, (and only temporarily, as we are entitled to assume,) arrested. No one can doubt that it was in the power of Congress, as a measure of public safety, to prohibit intercourse with those ports, and to enforce that prohibition by what, in its practical features, assimilates to the character of a blockade under the law of nations; but giving such a measure its widest effect, it would amount only to a municipal regulation for preventing external aid and comfort being communicated to the rebels.

To close the ports of a foreign power, with which we are at war, it would be necessary to resort to a blockade under the law of nations. The interdiction of intercourse with our own ports is simply to close them as ports of entry under the acts regulating trade and commerce. Blockade is a belligerent right exercised under the law of nations by one independent power against the commerce of another. Sir William Scott describes it, (The Fox, Edw., 321,) as an operation of war." Again, in the case of the Henric and Maria, 1 C., Rob., 148, he says: "A declaration of blockade is a high act of sovereign authority. "Natural sovereignty," says Bouvier, (Law Dict., Art. Blockade,) "confers the right of declaring war, and the

right which nations at war have of destroying or capturing each other's citizens, subjects, or goods, imposes on neutral nations the obligation not to interfere with the exercise of this right within the rules prescribed by the law of nations. A declaration of a siege, or blockade, is an act of high sovereignty." In the case of our revolt against Great Britain, the ports of the American colonies were, as we have seen, statutably closed against all external commerce, by the terms of the Prohibitory act, not by the declaration of a blockade under the terms of the law of nations. Under the provisions of that act, the court held, in the case of "The William and Grace," (Hay and Marriott, 76,) that "all ships and goods, whether American or others, going to, or coming from, the rebellious colonies, were a forfeiture to His Majesty ;" and again, in the case of " The Sally," (Hay and Marriott, 93,) Sir George Hay, in giving judgment, said, that the act of Parliament was the rule to go by. "The prohibition," he said, “was clear, that all ships and goods of the inhabitants of the enumerated colonies declared (by the act) to be rebellious, and all other ships going to trade, and coming from trading there, were to be confiscated." In the case of "The Louisa, (Hay and Marriott, 145,) Sir James Marriott said, "The American prohibitory act regulates the modes of proceeding;" and he condemned the ship and stores as Prize of war? No; as rebel."

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But upon the third ground to which I have referred, does the measure, which, for the sake of argument I am willing to call a "blockade,” constitute the civil struggle in which we are engaged, a war within the meaning of the law of nations? Can your Honor fall back upon a fiction so erroneous as that which avowedly misled Sir George Hay, in the case of "The Dickenson?" I imagine not. The prerogative of declaring war, under our Constitution, lies with Congress alone. "To legalize a war," says Bouvier, (Art. War,) "it must be declared by that branch of the government entrusted by the Constitution with power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." The ports of the rebel States have been closed to foreign commerce, if closed at all, by the proclamation of the President, not by an act of Congress. There is no war within the meaning of that term as used in the law of nations, because no act of Congress has declared it. There is no war, because no independent power, recognized as such within the family of nations, has declared war against, or is at war with, the United States. How then will you hold this to be a blockade within the law of nations; and how will you condemn this ship in another department of this court as " Prize of war, because-for that is the true offence charged--she has sought to enter a port which has been municipally closed as a lawful port of entry of the United States? The President's proclamation, I know, professes to declare a blockade, not only under the laws of the United States, but "under the law of nations" as well. His power to do either the one or the other, save under the express authority of Congress, however, cannot be plausibly argued. "The power to declare war," says Mr. Justice Story, "is exclusive in Congress. It includes the exercise of all ordinary belligerent rights, and Congress may, therefore, pass suitable laws to enforce them." (Story on Const., art. 1177.) A block