"It has already been stated that a King in whose name justice was administered in the Courts of law was usually regarded as in actual possession of the Government.
"Civil war of another kind occurs where an organized hostile faction is contending against an established Government, whose laws are still administered in all parts of its territory except places in the actual military or naval occupation of insurgents or their adherents.
"In such a case the question has been, whether a place in the actual military occupation of the revolutionary faction, or of its adherents, may, under the law of war, be treated by that Government as if the contest was a foreign war and the place occupied by public enemies. In the case of a maritime blockade of such a place, the affirmative of this question was decided in England, in the year 1836. It had previously been so decided by the Supreme Tribunal of Marine, at Lisbon (3 Scott, 201; 2 Bingh., N.C., 781)."
Judge Cadwalader then refers to Grotius (Proleg., sec. 23), citing with approval the statement by Demosthenes of the rule of public law in the case of the invasion by Deiopeithes, the Athenian commander in the Chersonese, of the dominions of Philip of Macedon, who had sent a military force to the relief of Cardia, when sought to be reduced to submission by Deiopeithes—that wherever judicial remedies are not enforceable by a Government against its opponents, the proper mode of restoring its authority is war,—and continues:
"This doctrine is of obvious applicability to civil war of a third kind, which occurs where the exercise of an established Government's jurisdiction has been revolutionarily suspended in one or more territorial Districts, whose willing or unwilling submission to the revolutionary rule prevents the execution of the suspended Government's laws in them, except at points occupied by its military or naval forces. The present contest exemplifies a civil war of this kind. It was also, with specific differences, exemplified in the respective contests which resulted in the independence of the United Netherlands and of the United States."
He then proceeds:
"Within the limits of two of the States in which so-called ordinances of secession have been proclaimed the execution of the laws of the United States has not been wholly suppressed. They are enforceable in the Western Judicial District of Virginia, and perhaps in the adjacent Eastern Division of Tennessee. In the other nine States which profess to have seceded, including South Carolina, those laws are not enforceable anywhere.
"The Constitution of the United States prohibits the enactment by Congress of a bill of attainder, and secures, in all criminal prosecutions, to the accused, the right to a speedy public trial, by Jury of the State and District wherein the crime shall have been committed, which District must have been previously ascertained by law. Therefore if a treasonable or other breach of allegiance is committed within the limits of one of these nine States, it is not at present punishable in any Court of the United States. This was practically shown in a recent case (Greiner's case, Legal Intelligencer, May 10, 1861). War is consequently the only means of self-redress to which the United States can, in such a case, resort, for the restoration of the constitutional authority of their Government.
"The rule of the common law is, that when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land. The converse is also regularly true, that when the Courts of a Government are open, it is ordinarily a time of peace. But though the Courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might perhaps be cases in which this converse application of the rule would not be admitted. (1 Knapp, 346, 360, 361; 1 Hale, P.C. 347; Co. Litt. 249 b.)"
Now, if your honors please, the last proposition with which I am compelled to trouble you is: