“We are not at liberty to consider the island in any other light than as part of the dominions of the French Republic. But supposing it to be so, the Republic is possessed of belligerent rights.…
“Although the French Government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which by the Law of Nations it was entitled in the existing circumstances.… This was the course pursued by Great Britain in the Revolutionary War with the United States.… Considering the words of the arrêté, and the circumstances under which it was made, it ought not to be understood simply as a municipal regulation, but a municipal regulation connected with a state of war with revolted subjects.”[11]
The principle embodied in these cases is accurately stated by a recent text-writer as follows.
“A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sovereign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent, the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, … it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, … the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as Courts of Prize, governed by and administering the Law of Nations.”[12]
The same principle has received most authentic declaration in the recent judgment of an able magistrate in a case of Prize for a violation of the blockade. I refer to the case of the Amy Warwick, tried in Boston, where Judge Sprague, of the District Court, expressed himself as follows.
“The United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.”[13]
Among all the judges called to consider judicially the character of this Rebellion, I know of none whose opinion is entitled to more consideration. Long experience has increased his original aptitude for such questions, and made him an authority.
There is an earlier voice, which, even if all judicial tribunals had been silent, would be decisive. I refer to Hugo Grotius, who, by his work “De Jure Belli ac Pacis,” became the lawgiver of nations. Original in conception, vast in plan, various in learning, and humane in sentiment, this effort created the science of International Law, which, since that early day, has been softened and refined, without essential change in the principles then enunciated. His master mind anticipated the true distinction, when, in definition of War, he wrote as follows.
“The first and most necessary partition of war is this: that war is private, public, or mixed. Public war is that which is carried on under the authority of him who has jurisdiction; private, that which is otherwise; mixed, that which is public on one side and private on the other.”[14]