Ford v. Surget/Concurrence Clifford

MR. JUSTICE CLIFFORD concurred in the judgment of the court, and delivered the following opinion:--

Parties belligerent in a public war are independent nations; but it is not necessary that both parties should be acknowledged as such in order to the enjoyment of belligerent rights, as war may exist where one of the belligerents claims sovereign rights against the other, the rule being, that when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be open, civil war exists, and hostilities may be prosecuted to the same extent as in public war. Prize Cases, 2 Black, 666; Vattel, 425.

Two hundred bales of cotton owned by the plaintiff were burned by the defendant, during the war of the rebellion, at the time and place alleged in the declaration; and the plaintiff, since the restoration of peace, instituted the present action of trespass, in the State court, to recover damages for the loss. Service was made, and the defendant appeared and pleaded the general issue and several special pleas.

Reference need only be made to two of the special pleas: 1. That the defendant burned the cotton in obedience to an order of the Confederate States, given through the commanding general of their army and the acting provost-marshal of the county. 2. That the Confederate congress passed an act that it should be the duty of all military commanders in the service of the Confederate States to destroy all cotton, tobacco, or other property that might be useful to the enemy (meaning the military forces of the United States), whenever in their judgment the same should be about to fall into their hands, and that the defendant burned the cotton in litigation in pursuance of that act and the said orders of the said military commander and provost-marshal.

Suffice it to say, in this connection, the plaintiff demurred to all the special pleas; and the subordinate court overruled the demurrers, and the parties went to trial. Hearing was had before the jury, and they returned a verdict in favor of the defendant. Judgment was accordingly rendered upon the verdict; and the plaintiff removed the cause to the high court of errors and appeals of the State, where the parties were again heard, and the State appellate court affirmed the judgment of the court of original jurisdiction. No exceptions were filed by the plaintiff in either of the subordinate courts, but he sued out the present writ of error, and removed the cause into this court.

Since the case was entered here, the plaintiff assigns the following errors: 1. That the Supreme Court of the State erred in sustaining the Circuit Court in overruling the demurrers of the plaintiff to the special pleas filed by the defendant. 2. That the Supreme Court of the State erred in refusing to grant certain instructions to the jury, which cannot be considered, it not appearing that there was any trial by jury in the Supreme Court; nor would either party be benefited if it were otherwise, as all the material questions presented for decision in the prayers for instruction are involved in the rulings of the court in overruling plaintiff's demurrers to the defendant's special pleas.

Insurrection may or may not culminate in an organized rebellion, and it may or may not assume such aggressive proportions as to be justly denominated territorial war, the universal rule being that rebellion becomes such, if at all, by virtue of its numbers and the organization and power of the persons who originate it and are engaged in its prosecution. But when the party in rebellion hold and occupy certain portions of the territory of the rightful sovereign, and have declared their independence, cast off their allegiance, and formed a new government, and have organized armies and raised supplies to support it, and to oppose, and if possible to destroy, the government from which they have separated, the world and the law of nations acknowledge them as belligerents engaged in civil war, because they claim to be in arms to establish their liberty and independence in order to become a sovereign State.

History furnishes many examples of war between the government de jure of a country and a government de facto of a seceding portion of the same country; and in such cases jurists hold that other powers are entitled to remain indifferent spectators of the contest, and to allow impartially to both belligerents the free exercise of those rights which war gives to pubilc enemies against each other, such as the right of search, the right of blockade, the right of capturing contraband of war and enemy's property laden in neutral vessels. Twiss, Law of Nations (2d ed.), sect. 239.

Rebellions of the kind, when they become too formidable to be suppressed by the duly constituted civil authorities, authorize the de jure government to blockade the ports within the territory occupied by the insurgents, and to notify the same to foreign powers that the same will be enforced pursuant to the law of nations. Official notice of such a proclamation makes it the duty of foreign nations to conform to the international rules of war in that regard; and the same jurist says that the foreign power must at once decide upon one of three alternative courses of action. It may assist the government de jure as an independent power, or it may assist the insurgents, in either of which cases it becomes a party to the war; or it may remain impartial, still continuing to treat the government de jure as an independent power, whilst it treats the insurgents as a community entitled to the rights of war against its adversary. Such a concession is indispensable, as the neutral power will find it impossible to recognize the character of one as a belligerent without recognizing the belligerent character of the other, unless the war is confined entirely within the territory of the contending parties and does not extend in any respect to the highway of nations. Id. p. 500.

Belligerents engaged in war may exercise the right of blockade, and they may capture contraband of war and enemies' property laden in neutral vessels; and if so, the contest, though it originated in rebellion, must in the progress of events, when it assumes such proportions as to be justly denominated civil war, be recognized as entitling both parties to the rights of war just as much as if it was waged between two independent nations.

Lawful blockade can only be established by a belligerent party, the rule being that a neutral country has a right to trade with all other countries in time of peace, and when in time of war the right is subjected to the conditions or restrictions resulting from blockade, the interruption of the untrammelled right can only be justified because the party imposing the conditions and restrictions is invested with belligerent rights under the law of nations. Ex parte Chavasse, In re Grazebrook, 4 De G., J. & S. 655; The Helen, Law Rep. 1 Ad. & Ec. 1; DeBurgh, Marine Int. Law, 123; The Trinidad, 7 Wheat. 340.

Independent powers at war may seize and confiscate all contraband goods, without any complaint the part of the neutral merchant; and that right is conceded even when one of the parties is not acknowledged as a de jure government, in case of insurrection, where the contest has assumed such proportions as justly constitute it a civil war in the international sense. 1 Kent, Com. (12th ed.) 92.

Other nations as well as the United States conceded belligerent rights to the Confederate States, as all admit, which renders it unnecessary to inquire whether the concession was rightful or premature. Matters to be taken into the account in determining such a question, it is said, are whether the insurgents present the existence of a de facto political organization, sufficient in character, population, and resources to constitute it, if left to itself, a State among the nations reasonably capable of discharging the duties of such an organization. Due weight should be given to the then existing character of the actual conflict, having respect to the military force on each side and the action of the parties in conducting military operations against each other; as whether or not they conduct such operations in accordance with the rules and customs of war, as by the use of flags of truce, cartels, and exchange of prisoners, and whether the parent State treats captured insurgents as prisoners of war. Inquirty may also properly arise whether the insurgents have employed commissioned cruisers at sea, and whether the rightful government has exercised the right to blockade the ports of the insurgents against neutral vessels merce, and that of stopping and searching neutral vessels engaged in maritime commerce. If all these elements exist, says Dana, the condition of things is undoubtedly war, and it may be war before they are all ripened into activity. Dana's Wheaton, p. 34, note.

Apply those rules to the case, and it is as clear as any thing in legal decision can be, that the Confederate States were belligerents in the sense attached to that word by the law of nations. During the military occupation of the territory within the Confederate lines the sovereignty of the United States was so far suspended, that the Federal laws could no longer be enforced there, and the inhabitants passed under a forced allegiance, and were bound by such laws as the usurping government saw fit to recognize and impose. United States v. Rice, 4 Wheat. 254.

Civil war, says Vattel, breaks the bands of society and government, or at least suspends their operation and effect; for it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the State and resisting the lawful authority, they, the two parties, are not the less divided in fact. . . . They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and being unable to come to an agreement have recourse to arms.

Publicists and courts of justice everywhere concur in these sentiments, and in certain corollaries which the author deduces from the attending circumstances; to wit, that the common laws of war-those maxims of humanity, moderation, and justice previously pointed out-ought to be observed by both parties in such a conflict. Vattel, 425.

For the same reasons which render the observance of those maxims a matter of obligation between State and State, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties in the case of civil war. Should the sovereign conceive that he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, as in the example given in the note, and if he does not observe the terms of the capitulations and all other conventions with his enemies, they will no longer rely on his word. Should he burn and ravage, they will follow his example, and the war will become cruel, horrible, and every day more destructive to the nation.

War, it is said, may exist without a formal declaration; and the decision of the court is, that the laws of war as established among nations have their foundation in reason, and tend to mitigate the cruelties and miseries which such conflicts produce. Prize Cases, 2 Black, 669. Hence, say the court, the parties to a civil war usually concede to each other belligerent rights, for they exchange prisoners, and adopt the other courtesies and rules common to public or national war; nor is it necessary that the independence of the revolted province or State should be acknowledged in order to constitute it a party belligerent in a war, according to the law of nations; and the reason given for the rule is one of frequent illustration, which is, that foreign nations acknowledge it as war by a declaration of neutrality, of which two examples are given in the opinion of the court from which these rules are drawn. 1. When the United States recognized the existence of civil war between Spain and her colonies. The Trinidad, 7 Wheat. 327. 2. When the Queen of England issued her proclamation of neutrality recognizing hostilities as existing between the United States and the Confederate States.

Other nations followed with a similar declaration or by silent acquiescence; and in speaking of that fact this court say, that a citizen of a foreign State, in view of such a recognition, is estopped to deny the existence of a war, with all its consequences as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war which all the world acknowledges to be the greatest civil war of the human race, and thus cripple the arm of the government and paralyze its power.

Such a war usually operates as a temporary suspension of obedience of the revolting party to the lawful sovereign; but other nations may, until the revolution is consummated, remain indifferent spectators of the controversy, treating the government as sovereign and the new government as a society entitled to the rights of war against its enemy, or they may espouse the cause of the party which they believe to have justice on its side. In the first case, the foreign State fulfils all its obligations under the law of nations, and neither party has any right to complain, provided that it maintains an impartial neutrality; but in the latter case, the foreign State becomes the enemy of the party against which it declares, and the ally of the other. Lawrence's Wheaton, 40, and notes.

Belligerent rights cannot be exercised when there are no belligerents. Conquest of a foreign country, if permanent, gives absolute and unlimited right; but no nation can make such a conquest of its own territory. If a hostile power, either from without or within a nation, takes possession and holds absolute dominion over any portion of its territory, and the nation by force of arms expels or overthrows the enemy and suppresses hostilities, it acquires no new title, but merely regains the possession of what it had been temporarily deprived. Id. 605; The Amy Warwick and Cargo, 24 Law Reporter, 494.

Cotton was the article destroyed, which was the subject during the war of special legislation by each belligerent power. It was treated by the army, the navy, and the civil arm of each as possessing extraordinary qualities, and as different from other property, even in the hands of non-combatants. It formed the basis of the credit which the Confederates were seeking to establish abroad for the prosecution of the war. Its retention in the Southern States and withdrawal from market, except when for war purposes, were considered by the Confederate authorities as of vital importance; for it was hoped that its withdrawal from market would hasten a recognition of the independence of the States in rebellion, and the raising of the blockade which was destroying their resources and crippling their armies.

Prior to the burning of the cotton, the Confederate congress had directed by a legislative act, as a war measure, that cotton and tobacco liable to fall into the hands of the Federal forces should be destroyed; and the history of the period shows that immense quantities of these articles were accordingly destroyed. Regulations upon the subject were adopted by the authorities of the United States; and those regulations, as well as the decisions of the Federal courts, show that both the civil and military authorities deemed it of great importance, to prevent its accumulation in the hands of the Confederate authorities.

Capture of cotton, says Mr. Chief Justice Chase, seems to have been justified by the peculiar character of the property and by positive legislation. It is well known that cotton constituted the main reliance of the rebels to purchase the munitions of war in the foreign market, and it is matter of history that rather than permit it to come into the possession of the national troops, the rebel government everywhere deboted it, however owned, to destruction. Mrs. Alexander's Cotton, 2 Wall. 420.

Judicial history shows that, early in 1861, the authorities of seven States, supported by popular majorities, combined for the overthrow of the national Union, and for the establishment within its boundaries of a separate and independent confederation. Pursuant thereto, a governmental organization representing those States was established at Montgomery, first under a provisional constitution, and afterwards under a constitution intended to be permanent. In the course of a few months four other States acceded to that confederation, and the seat of the central authority was transferred to Richmond. It was by the central authority thus organized and under its direction that civil war was prosecuted, upon a vast scale, against the United States for more than four years, and its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. Thorington v. Smith, 8 Wall. 7.

Difficulty, says the Chief Justice, would attend the effort to define the precise character of such a government; but he continues to remark to the effect that the principles relating to de facto government will conduct to a conclusion sufficiently accurate. Examples of a de facto government are given by him, where the usurpers expelled the regular authorities from their customary seats and functions, and established themselves in their places, and so became the actual government.

Such adherents to a usurping party in certain cases may not incur the penalty of treason, as the de jure government when restored usually respects their public acts; but the Confederate States were never acknowledged by the United States as a de facto government in that enlarged sense. Instead of that, it was regarded as simply the military representative of the insurrection, notwithstanding the duration and vast proportions of the revolt. Eleven States were engaged in it, and the prior existing governments were overthrown and new governments erected in their stead, in violation of the Constitution and the acts of Congress; and yet it cannot be denied but that by the use of these unlawful and unconstitutional means a government in fact was erected, greater in territory than most of the European governments, complete in the organization of all its parts, containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions from the period of its commencement to its final termination, during all of which time many belligerent rights were conceded to it by the United States; such as the treatment of captives both on land and sea as prisoners of war, the exchange of prisoners as in international war, their vessels captured recognized as prizes of war and dealt with accordingly, their property seized on land referred to the judicial tribunals for adjudication, their ports blockaded and the blockade maintained by a suitable force, and notified to neutral powers the same as in open and public war. Mauran v. Insurance Company, 6 Wall. 1.

Governments de facto are described by Mr. Chief Justice Chase as divided into classes; and, after having given a description of two of the classes, he remarks that there is another, called by publicists a de facto government, but which might perhaps be more aptly denominated a government of paramount force. Its distinguishing characteristics as given by that magistrate are as follows: 1. That while it exists it must necessarily be obeyed, in civil matters, by private citizens, who, by acts of obedience rendered in submission to such force, do not become responsible as wrong-doers for those acts, though the acts are not warranted by the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force. 2. Historical examples are then given of that sort of de facto government; to wit, the temporary government at Castine during the war of 1812, and the temporary government at Tampico during the Mexican war. United States v. Rice, 4 Wheat. 253; Fleming v. Page, 9 How. 615; The Nuestra Senora, 4 Wheat. 502.

Those were cases where regular enemy governments acquired the temporary possession of territory during war with the country of which the territory so possessed was a part; and this court adverted to that difference in the case under consideration, but decided unanimously that the government of the insurgent States must be classed among the governments of which those are examples. Among the reasons assigned in support of the conclusion were the following: 1. That rights and obligations of belligerence were conceded to it in its military character very soon after the war began, from motives of humanity and expediency. 2. That the whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of the territory were held, in most respects, as enemies; and, as a final conclusion, the court decided that to the extent of the actual supremacy maintained, however unlawfully acquired, the power of the insurgent government cannot be questioned. Thorington v. Smith, 8 Wall. 11; Halleck, Int. Law, c. 3, sect. 21, p. 74; United States v. Klintock, 3 Wheat. 150.

Attempt was made early in the war of the rebellion to maintain the theory that the officers and seamen of the Confederate cruisers were pirates, and not entitled to belligerent rights in case of capture. Ships and cargoes at sea were destroyed by such cruisers, and the owners, holding policies of insurance, brought suits to recover for the loss. Payment in certain cases was refused, the defence being that the policies did not cover the loss where the capture was by pirates. Such a case was presented to the Supreme Court of Massachusetts, but the court decided that the persons who seized and burned the ship were not to be regarded as pirates, within the ordinary signification of that word as used in the law of nations, or as commonly understood and applied in maritime contracts and adventures; that they were not common robbers and plunderers on the high seas. The court admitted that the acts of the cruisers were unlawful, and that they could not be justified in the courts of justice, but it proceeded to state that the proofs offered showed that they acted under a semblance of authority which took their case out of that class which can be properly termed ordinary piracy; that the proofs offered showed that they sailed under a letter of marque issued by a government de facto, claiming to exercise sovereign powers, and to be authorized to clothe their officers and agents with the rights of belligerents and to send out armed cruisers for the purpose of taking enemy's vessels jure belli.

Nor is that all. It was also offered to be proved that at the time of the loss the de facto government had proceeded to raise armies and put them into the field, by which an actually existing state of war between it and the United States was created, which had led two of the leading nations of Europe to recognize the persons who had thus conspired together against the authority of the United States as exercising the rights and entitled to the privileges of a belligerent power. Such a seizure, under such circumstances, by an armed cruiser of such de facto government, the court held was a capture within the meaning of the policy, and that the insurers were not liable for the loss. Dole and Another v. Merchants' Mutual Marine Insurance Co., 6 Allen (Mass.), 373; Planters' Bank v. Union Bank, 16 Wall. 495.

Two cases of a similar character were pending at the same time in the Circuit Court of the United States for that district, both of which were decided in favor of the insurers upon the same ground. In the first case, the facts were agreed between the parties, as will be seen by the report of the case. Dole et al. v. New England Mutual Marine Insurance Co., 2 Cliff. 394. Both judges sat in the case, and their united opinion is fully reported. They decided that, where a ship was taken and burned by the commander of a rebel privateer during the late rebellion, the capture was not a taking by pirates or assailing thieves, inasmuch as it appeared that the policy was executed before the rebellion broke out, and that the commander acted under a commission in due form issued by the government of the rebellious States, and it appears that both parties acquiesced in the decision of the court.

Nor could they well do otherwise, as the agreed statement showed that the rebel States before the loss occurred had organized a confederacy and a government for the same, and had established a written constitution; that such a form of government was in fact organized in all its departments,-legislative, executive, and judicial; that they had raised and organized an army and created a navy, elected a congress, and published a legislative act declaring that war existed between the United States and the Confederate States, and providing measures for its vigorous prosecution; that they were carrying on hostilities at the time the loss occurred against the United States by land and sea, and were in the exercise of all the functions of government over all the territory within their actual military limits.

Pressed with those facts, the plaintiff abandoned the further prosecution of the claim in the first suit, and sued out a writ of error in the second, which was subsequently heard and decided in this court. Mauran v. Insurance Company, 6 Wall. 1. Offers of proof in this case occupied the place of an agreed statement of facts in the other; but the Supreme Court affirmed the judgment of the Circuit Court, holding that the Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as the ruling or supreme power of the country within their military dominion, and that captures made by their cruisers were excepted out of the policy by the warranty of the insured.

Questions of the same character were also presented to the Supreme Court of Pennsylvania about the same time as those presented to the Supreme Court of Massachusetts, where the questions were decided in the same way. Fifield v. Insurance Company of Pennsylvania, 47 Pa. St. 166. Three opinions were given in the case, in addition to the opinion of the court delivered by the Chief Justice. His first effort was to show that the cruiser was not a pirate, in which he remarked, that if she was not a privateer she was a pirate, and that if she was a privateer she was made so by the commission she bore, the legal effect of which must depend upon the status of the Confederate States, in respect to which his conclusion was that any government, however violent and wrongful in its origin, must be considered a de facto government if it was in the full and actual exercise of sovereignty over a territory and people large enough for a nation; and he quotes Vattel in support of the proposition, and finally decided that the cruiser was a privateer and not a pirate, and that the loss was a capture within the excepting clause of the policy, and not a loss by pirates, rovers, or assailing thieves. Emerigon, Ins., c. 12, sects. 28, 412.

Mr. Justice Strong concurred in the judgment, and gave an elaborate opinion, in which he stated that he could not doubt that these revolting States, confederated as they had been, claiming and enforcing authority as they had done, were to be regarded as a government de facto.

Two objections to that proposition had been made at the bar: 1. That their claim of sovereignty had been constantly opposed; 2. That their boundaries were uncertain and undefined,-to both of which the judge responded to the effect that neither of the objections were satisfactory: that they were none the less a government de facto because they had had no interval of peaceful existence, nor because the geographical boundaries of the district over which their power is exclusively felt were not well defined.

Antecedent to that, the same court decided a similar case, which was also a marine risk, in the same way. Two points ruled by the court in that case are pertinent to the present investigation: 1. That the loss was covered by the policy, it being a case of capture by armed men professing to act under and by authority of the Confederate States. 2. That the government of the United States had so conducted the contest and so treated the Confederate States as to make it a war in substance as essentially as it could be between foreign powers. Monongahela Insurance Co. v. Chester, 43 Pa. St. 49; Hamilton v. Dillin, 21 Wall. 87.

Support to that proposition, of a decisive character, is found in the opinion of the court in the Prize Cases, in which Mr. Justice Grier says, It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies' property, because it is claimed and held in possession by an organized, hostile, and belligerent power. Prize Cases, 2 Black, 674.

Corresponding litigation arose about the same time in other courts, and among the number in the Supreme Court of Maine, where the case was argued by the same eminent counsel as in that cited from the Massachusetts reports. Dole et al. v. Merchants' Mutual Marine Insurance Co., 51 Me. 465. Somewhat different views are expressed by the court, but it admits in conclusion that the decision might have been placed on a different ground, and proceeds to remark that war in fact existed at the time of the loss; that hostile forces, each representing a de facto government, were arrayed against each other in actual conflict. Its existence, says the court, would not have been more palpable or real if it had been recognized by legislative action, and though it was a civil war, it was not the less a capture for that reason. 51 id. 478; Horn v. Lockhart, 17 Wall. 55.

During the late rebellion the Confederate States and the States composing it, say the Supreme Court of North Carolina, were to all intents and purposes governments de facto with reference to citizens who continued to reside within the Confederate lines; hence the Confederate States and the Constitution of the State and the acts of their congress constituted, as to such citizens, during the rebellion, the law of the land. Franklin v. Vannoy et al., 66 N. C. 145; Reynolds v. Taylor, 43 Ala. 420.

Where cotton was destroyed during the late war between the Confederate States and the United States by order of the county provost-marshal, acting in obedience to the orders of the Confederate commanding general, the Supreme Court of Mississippi held that the agent who obeyed these orders is not liable in an action by the owner to recover the value of the property, the court holding that the Confederate States had the rights of a belligerent power, and that it is a legitimate belligerent right to destory whatever property is the subject of seizure and condemnation, in order to prevent its falling into the hands and coming to the use of the enemy. Ford v. Surget, 46 Miss. 130. Exceptional cases supporting the opposite view may be found in the State reports; but they are not in accord with the decisions of this court, and are in direct conflict with the great weight of authority derived from the same source.

Without due examination, it may be supposed that support to the opposite theory is derived from the recent decision of this court, in which it is held that certain confiscation proceedings prosecuted under an act passed by the Confederate congress are void; but it requires no argument to show that the remarks upon the subject in the opinion of the court were wholly unnecessary to the decision, as the proceedings were obviously in aid of the rebellion, the intent and purpose of the prosecution having been to raise means to prosecute war against the United States. Conrad v. Waples, 96 U.S. 279. Authorities to show that all such acts are void are too numerous for citation, no matter what may have been the status of the Confederate States.

Certain decisions of this court hold that the acts of a body exercising an authority in an insurgent State as a legislature must be regarded as valid or invalid, according to the subjectmatter of legislation; but the Chief Justice decided in the case hereafter referred to that the governor, legislature, and judges of the State of Virginia, during the war, constituted a de facto government, giving as a reason for the conclusion that they exercised complete control over the greater part of the State, proceeding in all the forms of regular organized government, and occupying the capital of the State. Evans v. City of Richmond, Chase, Dec. 551.

Beyond all doubt, the Confederate government at the period of the alleged wrong was the supreme controlling power of the territory and people within the limits of their military dominion, and it is equally certain that the citizens resident within those limits were utterly destitute of means to resist compliance with military orders emanating from the commanding general, especially when given in obedience to an act of the Confederate congress. United States v. Grossmayger, 9 Wall. 75; Sprott v. United States, 20 id. 459.

Cotton during the war was regarded by both belligerents as the subject of seizure and condemnation, and as falling within that class of property which a belligerent might destroy to prevent its falling into the hands of the enemy and augmenting his resources. Proof that the orders were given as alleged is sufficient, as that is fully admitted by the demurrer.

Unless the Confederate States may be regarded as having constituted a de facto government for the time or as the supreme controlling power within the limits of their exclusive military sway, then the officers and seamen of their privateers and the officers and soldiers of their army were mere pirates and insurgents, and every officer, seaman, or soldier who killed a Federal officer or soldier in battle, whether on land or the high seas, is liable to indictment, conviction, and sentence for the crime of murder, subject of course to the right to plead amnesty or pardon, if they can make good that defence. Once enter that domain of strife, and countless litigations of endless duration may arise to review old animosities and to renew and inflame domestic discord, without any public necessity or individual advantage. Wisdom suggests caution, and the counsels of caution forbid any such rash experiment.

Viewed in the light of these suggestions, I am of the opinion that there is no error in the record, and that the decree of the Supreme Court of the State should be affirmed.