proclamation of insurrection was extended so as to declare eleven States, with unimportant exceptions, in rebellion.47

War was continued in those States until the President's proclamation of August 20, 1866,48 proclaimed the "insurrection at an end." A "state

47 The Venice, 2 Wallace, 277. See proclamation of August 16, 1861, &c., and July 1, 1862, 12 Stat., 1260-1266. Proclamation September 22, 1862, and January 1, 1863, 12 Stat., 1267-1269. See letter of Quartermaster-General M. C. Meigs, in appendix to this report, February 26, 1874.

48 McPherson's History Reconstruction, 194; 13 Stat., 763. Tennessee, June 13, 1866; 14 Stat., 812, 816. Sundry States, April 2, 1866. Texas, August 20, 1866. Fleming v. Page, 9 Howard, 615. Cross v. Harrison, 16 Howard, 189. United States v. Anderson, 9 Wallace, 56. Grossmeyer v. United States, 9 Wallace, 72. Lawrence's Wheaton, 513, note. 7 Court of Claims, Protector v. United States, 9 Wallace, 637. Treaty of Washington of May 8, 1871, art. 12; 17 Stat., 867. Act March 2, 1867, sec. 2; 14 Stat., 428. Grossmeyer v. United States, 4 Court of Claims. Martin v. Mott, 12 Wheaton. 29 Law Reporter, July, 1861, p. 148.

Schedule of proclamations of Presidents Lincoln and Johnson respecting the condition of the insurrectionary States.

April 15, 1861.-Militia (75,000) called out, the laws of the United States having been opposed, and the execution thereof obstructed in the following States: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas.

April 19, 1861.-Whereas an insurrection has broken out in the following States, a blockade of the ports within the States is hereby declared: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas.

April 27, 1861.-Whereas, for reasons assigned in the proclamation of April 19, a blockade was established in States therein named; and whereas, since that date, the collection of revenue has been obstructed in North Carolina and Virginia, a blockade of the ports of these States is proclaimed.

May 19, 1861.-Whereas an insurrection exists in the State of Florida, the commander of the United States forces is allowed to suspend the writ of habeas corpus if

necessary.

August 16, 1861, (issued in compliance with an act of Congress prohibiting commercial intercourse.)-Whereas on the 15th of April, 1861, the militia were called out, in view of an insurrection which had broken out in the following States: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas;

And whereas such insurrection has since broken out, and yet exists, within the following-named States: Virginia, North Carolina, Tennessee, and Arkansas :

Now, therefore, I, Abraham Lincoln, in pursuance of act of Congress, July 15, 1861, do hereby declare the inhabitants of the following States to be in insurrection: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, Texas, Virginia, (except the part of Virginia lying west of the Alleghany Mountains,) North Carolina, Tennessee, and Arkansas. And except the inhabitants of such parts of the States herein before named as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied or controlled by forces of the United States engaged in the dispersion of said insurgents.

May 12, 1862.-Relaxes the blockade of the following-named ports: Port Royal, S. C., New Orleans, La., Beaufort, N. C.

July 1, 1862.—Whereas, by the act of Congress approved June 7, 1862, entitled "An act for the collection of direct taxes in insurrectionary districts," it is made the duty of the President to declare the following States in insurrection: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, Texas, a Virginia, North Carolina, Tennessee, and Arkansas.

January 1, 1863.-Emancipation proclamation declares the following States and parts of States to be in rebellion this day; the excepted parts to remain precisely the same as if this proclamation had not been issued: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, Texas, Virginia, North Carolina, and Arkansas.

a Except the following counties: Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Pleasants, Tyler, Ritchie, Doddridge, Harrison, Wood, Jackson, Wirt, Roane, Calhoun, Gilmore, Barbour, Tucker, Lewis, Braxton, Upshur, Randolph, Mason, Putnam, Kanawha, Clay, Nicho las, Cabell, Wayne, Boone, Logan, Wyoming, Webster, Fayette, and Raleigh; 39 counties.

b Except the parishes of Saint Bernard, Plaquemines, Jefferson, Saint John, Saint Charles, Saint James, Ascension, Assumption, Terre Bonne, La Fourche, Saint Mary, Saint Martin, and Orleans, including the city of New Orleans.

C

Except forty-eight counties of West Virginia, as follows: Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Tyler, Pleasants, Ritchie, Doddridge, Harrison, Wood, Jackson, Wirt, Roane, Calhoun, Gilmore, Barbour, Tucker, Lewis, Braxton, Upshur, Randolph, Mason, Patnam, Kanawha, Clay, Nicholas, Cabell, Wayne, Boone, Logan, Wyoming, Mercer, McDowell, Webster, Pocahontas, Fayette, Raleigh, Greenbrier, Monroe, Pendleton, Hardy, Hampshire, and Morgan; and also the counties of Berkely, Accomac, Northampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth.

of war" continued beyond this time, more or less extensive in its theater"non flagrante bello sed nondum cessante bello." 49

This condition of war is recognized by the law of nations.50

The existence of what is called "a state of war" after flagrant war had ceased is recognized on the same principle as the personal right of self-defense. This is not limited to the right to repel an attack; but so long as the purpose of renewing it remains-the animus revertendi-so long as the danger is imminent or probable, the party assailed may employ reasonable force against his adversary to disarm and disable him until the danger is past, and in doing this and judging of its necessity precise accuracy as to the means and time is not required, but only the exercise of reasonable judgment in view of the circumstances.51

If after the forces under the command of Lee surrendered in April, 1865, the United States forces had been immediately withdrawn, the rebellion would possibly have resumed its hostile purposes.

It was upon this theory, coupled with the Constitutional duty of Congress to "guarantee to each State a republican form of government,"52 that the reconstruction53 acts of Congress were passed, and military as well as civil measures adopted in pursuance of them. During some portions of the period of rebellion flagrant war existed, not only in the

April 2, 1863.—Whereas certain States, by proclamation of August 16, 1861, were declared in insurrection; and whereas experience has shown that the exceptions made embarrass the enforcement of the act of July 13, 1861, the exceptions are revoked, and the following States declared in rebellion: South Carolina, (except Port Royal,) Georgia, Alabama, Florida, (except port of Key West,) Mississippi, Louisiana, (except port of New Orleans,) Texas, Virginia, (except forty-eight counties of West Virginia,) North Carolina, (except port of Beaufort,) Tennessee, and Arkansas. September 24, 1863.-Releases blockade of Alexandria, Va.

February 18, 1864.-Releases blockade of Brownsville, Tex.

November 19, 1864.-Releases blockade of Fernandina and Pensacola, Fla., and Norfolk, Va.

June 13, 1865.-The President declares the insurrection in the State of Tennessee to have been suppressed, and the authority of the United States therein to be undisturbed.

April 5, 1866.—After reciting the various proclamations, the President states that whereas no armed resistance to the authority of the United States exists in the following States, it is declared that the insurrection which heretofore existed in those States is at an end, and is henceforth to be so regarded: South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, Virginia, North Carolina, Tennessee, and Arkansas. 49 Mrs. Alexander's Cotton, 2 Wallace, 419.

50 Cross v. Harrison, 16 Howard, 164; Whiting, War Powers, 55; Article 2 of Francis Leiber, rules for government of the armies, Scott's Digest Military Laws, p. 442, sec. 1142; Elphinstone v. Bedreechund, 1 Knapp's P. C. R., 300, cited in Coolidge v. Guthrie, by Swayne, J., U. S. circuit court southern district Ohio, October, 1868. Appendix to 43d edition Whiting's War Powers, 591, edition 1871. Letter of Hon. Hamilton Fish, Appendix C to this report.

Wal

For sundry cases relating to the rebellion, see The Prize Cases, 2 Black, 635; Mrs. Alexander's Cotton, 2 Wallace, 404; The Venice, 2 Wallace, 258; The Baigorn, 2 Wallace, 474; Mansan v. Insurance Company, 6 Wallace, 1; The Ouachita Cotton, lace, 52; Hanger v. Abbott, 6 Wallace, 532; Coppell v. Hall, 7 Wallace, 542; McKee r. United States, 8 Wallace, 153; United States v. Grossmayer, 6 Wallace, 72; Vallandigham's case, Appendix to Whiting's War Powers, (43 ed. of 1871,) 524; The Circassian, 2 Wallace, 150; Cummings v. Missouri, 4 Wallace, 316; Ex-parte Garland, 4 Wallace, 374; Mississippi v. Johnson, 4 Wallace, 497.

511 Bishop, Crim. Law, (5th ed.,) secs. 301, 305, 838, and numerous authorities cited. Stewart v. State, 1 Ohio State R., 66–71.

52 Constitution, art. 4, sec. 4.

53 See McPherson's Hist. of Rebellion, 317, &c., and McPherson's Hist. Reconstruction, passim.

Act of March 2, 1867, 14, Stat., 428. Act of March 23, 1867, 15 Stat., 2.

a August 20, 1866, all the States declared as out of insurrection.

NOTE.-Joint resolution of June 18, 1866, extends act of July 4, 1864, (chap. 240,) to counties of Berkely and Jefferson, W. Va.

H. Rep. 134- -14

States proclaimed as in rebellion, but, as we all know as a matter of history, in Missouri, Kentucky, Maryland, West Virginia, and temporarily in parts of Indiana, Ohio, and Pennsylvania. The war in the three former States partook of the character of civil war, and of an invasion from the rebel States, while in Indiana, Ohio, and Pennsylvania, it was purely of the character of invasion.5 The war in Missouri, Kentucky, Maryland, and West Virginia, so far as resident insurrectionists organized or engaged in rebellion, was none the less civil war, because these States were not proclaimed as in rebellion.55

54

The lawful State governments were not subverted in these States as they were in the eleven rebel States, but the fact of flagrant war without any proclamation or declaration by Congress is a matter of history, and is judicially recognized by the courts.56

War, either foreign or civil, may exist where no battle has been or is being fought.57

The rights, duties, and liabilities of governments in cases of foreign war or invasion are generally well defined by the laws of nations. But before stating these as they are established by the usage of nations and laid down by writers, it is important to see how far they apply in cases of a civil war.

It may be stated, then, in comprehensive terms, that the usages and laws of nations, applicable in cases of war between independent nations, apply generally to civil wars, including the recent war of the rebellion, and especially when, as in the States proclaimed in insurrection, the lawful State governments were entirely overthrown, and the courts and ciyil authority of the National Government equally disregarded and powerless.

The Supreme Court of United States decided in December, 1862, while the war was in progress, that—

The present civil war between the United States and the so-called Confederate States has such character and magnitude as to give the United States the same rights and powers which they might exercise in case of a national or foreign war." 58

The court determined also that citizens in the rebel States owed " supreme allegiance to the" National Government, and that "in organizing this rebellion they have acted as States."

In the prize cases it was insisted by counsel "that the President in his proclamation admits that great numbers of persons residing" in the rebel States "are loyal," and the court were asked to hold "that they have a right to claim the protection of the Government for their persons and property, and to be treated as loyal citizens.” But the court answered this by declaring that—

*

All persons residing within this territory whose property may be used to increase the

54" Ex parte Milligan, 4 Wallace, 140.

See report of the Judge-Advocate-General to the Secretary of War, on the "Order of the American Knights," or "Sons of Liberty," a western conspiracy in aid of the southern rebellion. Washington, Government Printing Office, 1864.

55 Prize Cases, 2 Black, 636.

55 Prize Cases, 2 Black, 636; Ex parte Milligan, 4 Wallace, 140; Whiting's War-Power of the President, 140; President Grant's veto message, June 1, 1872; id., June 7, 1872; d., January 31, 1873; id., February 12, 1873; Lawrence's Wheaton, 513, note. 57 Const., art. 3., sec. 3, clause 3; Ex parte Milligan, 4 Wallace, 127, 140, 142. Luther v Borden; Grant v. United States, 1 Nott & Hopkins, Court Claims, 41; S. C., 2; id., 551; Whiting's War-Powers, 43; Ex parte Milligan, 127: The court say to justify martial law "the necessity must be actual and present; " Paschal, Annotated Const., 212, note 215; Ex parte Bollman, 4 Cranch, 126; United States v. Burr, 4 Cranch, 469-508; Sergeant, Const., ch. 30, [32;] People v. Lynch, 1 Johns., 553.

58 The Prize Cases, 2 Black, 636; Vattel, 425, § 294.

revenues of the hostile power are in this contest liable to be treated as enemies though not foreigners.59

The inhabitants of the invaded States of Indiana, Ohio, and Pennsylvania, never having rebelled, are all to be deemed loyal except on proof to the contrary.

Having thus marked out the boundaries of the theater of the war of the rebellion, and ascertained the status of all within the States proclaimed in rebellion, or where actual rebellion existed, and in the invaded but not rebellious States, it becomes proper to ascertain the rights of the National Government over these, and its liability to the inhabitants for injuries to person or property of whatever kind. It may be proper to say first, however, that the power of a nation over its own rebel citizens is greater in a civil war than over alien enemies, because over the former it" may exercise both belligerent and sovereign rights ” 66 -that is, the belligerent rights of war, and the sovereign right to confiscate and punish for treason-while over alien enemies it can only exercise belligerent rights.

The inquiry also arises, within what boundaries are citizens to be regarded as enemies? Certainly not in Indiana, Ohio, or Pennsylvania, for there was no insurrection in those States. There was only invasion. In some portions of Kentucky, Missouri, and Maryland, and for limited times, there was insurrection, but these States were not proclaimed as in insurrection, and, as States, they never were so in fact. These States are therefore to be deemed loyal, and the citizens thereof as having all the rights of loyal citizens, except so far as they were in fact disloyal, and subject only to the sovereign and belligerent rights of the Government.62

In the prize cases, Nelson, J., said, "This act of Congress, [July 13, 1861,] we think, recognized a state of civil war between the Government and the Confederate States, and made it territorial." The Government was at war with all the rebel States, just as much so as it was in other wars with England or Mexico. In the Venice, 2 Wallace, 274, Chief Justice Chase said: "Either belligerent may modify or limit its operation as to persons or territory of the other, but in the absence of such modification or restriction judicial tribunals cannot discriminate in its application." The District of Columbia was never declared in insurrection, but martial law was proclaimed, and it was subjected to the laws of war. It was a fortified military stronghold, and all civil authority was superseded so far as deemed necessary, and the civil safeguards of the Constitution withdrawn from the inhabitants.6 63

59 Prize Cases, 2 Black, 674, 678, 693; Halleck's Laws, of War, 425, 446; Mrs. Alexander Cotton, 2 Wallace, 419; Whiting's War-Power of the President, 58; Vattel, 425, § 293; Bynkershoek, Laws of War, 25; United States vs. Anderson, 9 Wallace, 64; Whiting's "War-Claims" affixed to "War-Powers" (43d ed.) of 1871, p. 335; Marcy's Letter to Jackson, January 10, 1854, House Ex. Doc. 41, 1st sess. 33d Cong.; Huberus, tom. ii, 1. i, tit. 3, De Conflict Lex., § 2; Jecker vs. Montgomery, 18 Howard, 112; The Peterhoff, 5 Wallace, 60.

60 Prize Cases, 2 Black, 673; 4 Cranch, 272; Whiting, War-Powers, 44-47. But see Lawrence's Wheaton, 2d anotated ed., sup., 33. Whiting, in his War-Powers, says: “Rebels in civil war, if allowed the rights of belligerents, are not entitled to all the privileges usually accorded to foreign enemies," 43d ed. of 1871, p. 331.

61 Ex parte Milligan, 4 Wallace 3, 127.

62 Prize Cases, 2 Black, 274; Ex parte Milligan, 4 Wallace, 127; President Grant's veto messages of June 1 and June 7, 1872, and February 12, 1873; Debates on Sue Murphy, claim 71, Globe, 299, 386, 86, 161, 278.

63 DEPARTMENT OF STATE, Washington, February 6, 1874. SIR: By direction of the Secretary of State, I have to acknowledge the receipt of your letter of the 3d instant, in which you request to be informed as to the date of the

The obligation of a government after a civil war is terminated to those whom the severe rules of the laws of war denominate "enemies," is on the strict principle of such laws as stated by writers on the subject no greater than to alien enemies whose territory is invaded in an international war. But a humane government may always in such a case discriminate between alien enemies in fact, and its own citizens who are not so in fact, but only by legal construction. It is also conceded that the rule of law which stamps as "enemies" in a rebel State men who are in fact loyal to the flag, sometimes operates harshly. But the highest court has declared them enemies at given times and under certain circumstances, and this has been done upon principles recognized among civilized nations which antedate our Constitution.

Harsh as the rule sometimes is in its application, there are reasons of State policy on which it rests, or it would not exist as law. It may be proper to refer to some of them. It is a matter of history that secession was carried in the rebel States, with one or two exceptions, against the real wishes of a decided majority of the voters and people.64 They proclamation declaring martial law in the District of Columbia, and, second, the period of continuance of martial law within the same.

The date of the President's proclamation declaring martial law in the District of Columbia is September 15, 1863, (13 Stat. at Large, p. 734,) and the continuance thereof in the language of the proclamation was throughout the duration of the said rebel

lion."

There might and probably would be a difference of opinion as to the date at which martial law ceased to exist in the District. The President's proclamation of the 2d of April, 1866, (14 Stat. at Large, p. 811,) may without impropriety be taken to fix the limitation referred to, but the Department does not wish to be understood as expressing an opinion on that point, as it would seem more properly to present a question for the opinion of the Attorney-General.

I am, very respectfully, your obedient servant,

SEVELLON A. BROWN, Chief Clerk. HENRY H. SMITH, Esq., Clerk of the Committee on War-Claims, House of Representatives. See the trial of the conspirators, May, 1865; Attorney-General's opinion, July, 1865; 11 Opinions, 297.

In Ex parte Milligan, 4 Wallace, 137, Chase, C. J., said:

"The Constitution itself provides for military government as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former.

*

*

"We think, therefore, that the power of Congress, in the government of the land and naval forces, and of the militia, is not at all affected by the fifth or any other amendment. It is not necessary to attempt any precise definition of the boundaries of this

power.

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*

"There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war, without the boundaries of the United States, or in time of rebellion and civil war, within States or districts occupied by rebels treated as belligerents; and a third, to be exercised in time of invasion or insurrection within the limits of the United States, or, during rebellion, within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."

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64 Alabama.-Delegates to convention elected December 24, 1860. Popular majority claimed at 50,000. Ordinance of secession passed by a vote of 61 to 39, January 11, 1861, the minority being from counties where the free population predominated. (Greeley's American Conflict, vol. 1, p. 347.)

Arkansas.—Legislature voted a call for convention, which met November 16, 1860.