law of England, is of two kinds, direct and constructive; direct, when the war is levied directly against the king or his forces, with intent to do some injury to his person, to imprison him, or the like, (1 Hale, 131, 132,)-such, for instance, as open rebellion, (1 Hale, 152,)--constructive, when it is levied for the purpose of effecting innovations of a public nature by an armed force, or any similar purpose, (Fost., 211; 1 Hawk., c. 17, s. 25; 1 Hale, 153; Rex v. Lord G. Gordon, Doug. 590.) An indictment for treason, under the criminal law of England, against a person compassing the king's death--for shooting at the king, for example, as in the case of Hadfield-charges him specifically with "levying war within the kingdom, against the king," (Arch. Crim. Plead., 379.) To compass the king's death includes every act deliberately done or attempted, whereby the king's life may be endangered, (Foster, 195.) Going armed for the purpose of killing the king is to compass his death, and is a "levying war" within the meaning of the criminal law, (Fost, 195.) When, therefore, the term "levying war" is used, it points to an overt act of treason committed against the government by a citizen owing allegiance to it, and not to waging a war by a foreign power under the general terms of the law of nations.

Ours, may it please the Court, is no doubt a remarkable case; but it is not without precedent. The independence of the United States was achieved by armed revolt against the British government. The struggle which ensued on our declaration of independence is designated in history as "the Revolutionary War;" but England treated it, as we treat the insurrection in the South, as rebellion; which, indeed, it was as well in law as in fact, so long as our independence was not achieved.

When

By the laws of England, (Black. Com., vol. 3, pp. 250, 384, 387,) the crime of treason involves severe penalties. Real estate escheats to the crown on attainder, and the finding of office for the crown vests the forfeiture. It is different with respect to personal estate, which is only forfeited on the conviction for treason. the revolt of the American colonies occurred, therefore, there was no law by which the ships and property of the Americans could be seized on the high seas, and lawfully confiscated. They could not have been captured as enemy property, jure belli, because a rebel is not an enemy, and war can only exist between foreign and independent powers. They could not be confiscated as the property of traitors, because, being personal property, a conviction for treason must precede forfeiture. What course did the government pursue? They introduced, and carried through Parliament, a special act to meet the case. We have all heard of the British Prohibitory Act, which forms so important a feature in the history of the Revolution. That act, and that act alone, enabled British cruisers to make prize of American ships, as well as the ships of foreign countries trading with the revolted colonies, on the high seas, or wherever found, and enabled the British Prize Court to condemn them "as if they were the property of an open enemy." Without that act no capture would have been lawful; without that act, which conferred special jurisdiction for that purpose, no Prize Court could have assumed or lawfully exercised jurisdiction over them. That act, (16, Geo. 3, Cap.

5.) provided, among other things, "That all ships and vessels of, or belonging to, the inhabitants of the colonies therein specified, together with their cargoes, apparel, and furniture, and all other ships and vessels whatsoever, with their cargoes, apparel, and furniture, which should be found trading in any port or place of the said colonies, or going to trade, or coming from trading in any such port or place, (except as therein after excepted,) should become forfeited to his majesty, as if the same were the ships and effects of open enemies, and should be so adjudged, deemed, and taken in all courts of admiralty, and in all other courts whatsoever." And further, "That, for the encouragement of the officers and seamen of his majesty's ships of war, the flag officers, captains, commanders, and other commissioned officers in his majesty's pay, and also all the seamen, marines, and soldiers on board, should have the sole interest and property of and in all and every such ship, vessel, goods, and merchandise, which they should seize and take, (being first adjudicated lawful prize in any of his majesty's courts of admiralty,) to be divided in such proportions, and after such manner, as his majesty should think fit to order by proclamation thereafter to be issued."

This act, it will be observed, closed the ports of the colonies against all external intercourse, and the jurisdiction, to which the ships and property captured under its provisions were expressly subjected, was not the ordinary Prize Court constituted under the law of nations, but the Court of Admiralty specially empowered to condemn vessels captured under its provisions as "lawful prize." "The Prohibitory Act itself," said Sir Jas. Marriott, in his judgment in the case of the Louisa, "regulates the mode of procedure." (See also The Dickenson, H. & M., 1. The William & Grace, H. & M., 76.)

It was not, therefore, under the law of nations that Great Britain made capture of the ships and property of the revolted colonists, or of foreign or neutral ships trading with them, or that her courts undertook to condemn either the one or the other, but under the act of Parliament to which I have just called your Honor's attention; by the provisions of which their capture and their condemnation were authorized in the same manner as the ships and property of " an open enemy." Had they been, in point of law, "open enemies" by the mere fact of their armed rebellion, such an act would have been unnecessary. No one can read the provisions of that act without being convinced that the Prize Court, adjudicating under its authority, was not a court of the law of nations, but a court specially empowered in aid of the municipal law of England, to punish treason by the confiscation of the property of those who, under that act, were attainted as traitors. The strong analogy existing in their abstract features between the present relations of the Federal Government to the States in insurrection, and that of Great Britain to the revolted Colonies in 1776, no doubt suggested to Congress the necessity of making similar provision for the confiscation of rebel property, and the prohibition of external trade with the ports of the insurrectionary States. I find such an act on the Statute book. On the 13th July, 1861, Congress passed an act "further to provide for the collection of duties on imports." By the fourth section of that act the President is empowered, whenever the duties on

imports cannot, by reason of unlawful combinations in opposition to the laws of the United States, be effectually collected in any collection district by the ordinary means and in the ordinary way, to close the port or ports of entry in said district, and in such case to give notice thereof by proclamation, and it is provided that if, while said ports are so closed, any ship or vessel from beyond the United States, or having on board any articles subject to duties, shall enter, or attempt to enter, any such port, the same, together with its tackle, furniture, apparel, and cargo, shall be forfeited to the United States. Sec. 5 provides, that whenever the President shall have called out the militia under the Act of 28th Feb., 1795, to suppress combinations against the government, and to cause the laws to be executed, and the insurgents shall have failed to disperse, the President shall be empowered by proclamation to declare the inhabitants of States disobeying to be in a state of insurrection against the government, and thereupon all commercial intercourse between such States and other States of the United States shall cease, and be unlawful so long as such condition of hostility shall continue, and all goods, &c., coming from or going to and between said States, shall be forfeited to the United States. Sec. 6 declares that after fifteen days from the issuing of such proclamation, any ship or vessel belonging in whole, or in part, to any citizen or inhabitant of said States, whose inhabitants shall be so declared in insurrection, found at sea, or in any port of the United States, shall be forfeited. Sec. 7 authorizes the President, in the execution of the act, and of the laws of the United States, providing for the collection of the duties on imports and tonnage, to employ, in addition to and in aid of the revenue cutters in service, such other suitable vessels as may, in his judgment, be required. Sec. 9 provides that proceedings on seizures, for forfeiture under the act, shall be pursued in the courts of the United States, in any district into which the property so seized may be taken, and proceedings instituted. Here, then, we have the material features of the Prohibitory Act. The rebel States may, by the President's proclamation, be declared to be in rebellion; the ships and goods of the inhabitants are declared forfeit ; external commerce with the insurrectionary States may be prohibited, under penalty of forfeiture; and the President is empowered to employ the public ships of the United States, without limit, in preventing intercourse with the prohibited ports. On the 16th day of August, 1861, the President issued a proclamation pursuant to the provisions of this act, declaring certain States to be in insurrection, and that all commercial intercouse between those States and other States and other parts of the United States would be unlawful. Whether this language is a closing of the ports within the meaning of the 4th section of the act, so as to forfeit ships from beyond the United States, entering or attempting to enter, is a question I do not care to discuss, as I think either view equally corroborates the position which I have taken upon this subject. Any doubt upon this point, however, would seem to be set at rest by the terms of another proclamation, issued on the 12th of May, 1862, by which the President declares these ports to be still in a state of blockade, under and in virtue of his proclamation of April 19, 1861.

The proclamation certainly does forfeit to the United States all property passing between any of the rebellious States and any other part of the United States, by land or water, together with the vessels or vehicles conveying the same, or carrying persons to or from said States to or from any other of the United States. And does, after fourteen days, forfeit to the United States all ships and vessels belonging in whole or in part to any citizen or inhabitant of any of said rebellious States, whether the same be found at sea or in any port of the United States.

We have at present no authoritative intimation of the causes for which, or the circumstances under which the capture of the Nassau has taken place. She may have been seized on any one of the following grounds-1. As a ship owned by rebels. 2. As a vessel owned by aliens, entering or attempting to enter the ports closed, or claimed to be closed, in virtue of the Act of July 13, above referred to, by the proclamation of August 16th. Or 3. She may have been seized as an alien ship attempting to enter a Southern port in violation of the President's proclamation of blockade of April 19, 1861; and, in connection with this supposed latter ground of seizure, it may be argued that the very existence of a blockade constitutes a state of war within the meaning of the law of nations.

Now, as regards the first of these grounds, if it be held that the Nassau, although colorably claimed by British subjects, belonged, as there are strong grounds for supposing she did belong, actually and bona fide to citizens residing in one or more of the insurrectionary States, then there can be no doubt that under the Act of 13th July, 1861, she was rightly captured, and is liable to forfeiture; but to forfeiture in what character, and by what jurisdiction? As Prize of war, and by a Prize Court? Assuredly not. The 5th and 6th sections of the Act of 13th July, 1861, declare a ship captured under such circumstances to be forfeited to the United States as rebel property simply; and the 9th section of the same act declares the District Court to be the jurisdiction by which that forfeiture shall be pronounced and enforced. The word prize does not occur throughout the act, and a ship seized under the 5th and 6th sections can no more be adjudged Prize of war, or be brought within the jurisdiction of a Prize Court, than could a vessel seized by revenue officers for a breach of the revenue laws. In the case of the Recovery, (6 C., Robinson, p. 348,) which was the case of a vessel seized for a breach of the navigation laws, and proceeded against for such offence in the Prize Court, Sir William Scott held that that branch of the Court of Admiralty, being a court of the law of nations, had not jurisdiction to entertain such a case, and ordered restitution to the neutral.

The two acts are strikingly similar in their leading features. The one declared the ships and goods of the inhabitants of the rebellious colonies to be forfeited to the crown, the other declares them forfeit to the government. The British act provided a specific jurisdiction in the nature of a Prize Court for the condemnation of vessels so seized; our act invests the ordinary district courts not sitting in admiralty, for the adjudication of maritime questions-not sitting as a Prize Court-but sitting as District Courts simply, with the jurisdiction to deal with every case arising

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under the act. If we assume that the act must be understood to confer this special jurisdiction on that department of the District Court which takes judicial cognizance of admiralty cases or revenue forfeitures, still the jurisdiction would be in this, the Instance Court, and not in the Prize Court, (The Recovery, 6 C., Rob., 347,) and a suit entered in the Prize Court would be taken coram non judice, and could not, by any torture of the language of precedent, be held to oust the jurisdiction of this Court to recognize and adjudicate upon the lien we claim.

It may be contended that the Prize act of March last confers on the Prize Court an inferential jurisdiction to deal with such a case. I have read that act with attention, and I have no hesitation in saying that it would have been an excellent prize act had the United States been engaged in war, (a legitimate war, within the meaning of the law of nations,) with any foreign power; but it no more touches this case-it has in fact no more connection with, or relation to, the insurrection of the South, than it has to the Tae-ping rebellion in China. The words rebellion and insurrection do not once occur throughout the act. It is an ordinary prize act, framed to correspond with a condition of foreign war, and to meet and enforce the inherent right of capture of enemy property, jure belli, under the law of nations. Will it be pretended for an instant that a jurisdiction to condemn the property of rebels, or of foreigners trading with rebels, can be inferred and assumed by a Prize Court so constituted, which is a Court of the law of nations only, in the face of, and in contradiction to, a specific municipal law which vests the special jurisdiction in every such case in the District Court? The British act authorized the capture and condemnation of rebel ships and of foreign ships trading with the colonists, "as if the same were the ships of an open enemy," authorized their condemnation as rebel property, and conferred jurisdiction in such cases upon the Prize Court, and yet the question arose in the Prize Court itself, whether the condemnation should be as Prize of war, or as prize of forfeiture for rebellion. The jurisdiction of the Prize Court was not questioned, because that jurisdiction was prescribed by the act itself; but if the act, instead of creating a special court for the purpose, had thrown the jurisdiction upon the Court of Assize for the County of any port into which such a capture were to be brought, does any one imagine that an ordinary Prize Court would have assumed to exercise a jurisdiction by inference?

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The case of "the Dickenson," (1 Hay and Marriott, 1,) is not without point in this connection. The Dickenson" was owned in Philadelphia, which port she left on 16th February, 1776, with a cargo for Nantz, with instructions to return with ammunition and other warlike stores. On the passage she was seized by the mate and crew; who navigated her to an English port, where she was first taken charge of by revenue officers on behalf of the crown, and subsequently seized as prize by an officer from the government tender "Rose" under the terms of the Prohibitory act. The case was heard in the Prize Court before Sir George Hay, claims being interposed, 1. By the admiralty, who claimed it as Prize of war, coming to the admiralty as a Droit; 2. By the treasury, who