39 N.Y. 231 | NY | 1868
Although the plaintiff was not an alieu enemy at the time this demand was put in, he was an enemy adhering to an organized force at war with the government of the United States, which had been recognized as belligerents, both by the civil courts and the executive branch of the government. The same reasons which make it proper that an alien enemy should be incapacitated from making contracts or from maintaining actions, apply with equal force to any other kind of enemy, adhering to an organized force, which is prosecuting war against the government. In the one case, as well as the other, if the enemy had the legal capacity to do these things, it would lead to consequences which may have the effect of counteracting the operations of the war, of throwing obstacles in the way of the public efforts, and of causing disorder, imbecility, and an augmentation of treason. The fact that the enemy is also guilty of treason, in no way lessens the weight of these objections, but, on the contrary, increases them, by adding to his position of enemy the moral guilt of rebellion, and the possible evil effects of his example. Open organized rebellion is war, and must be opposed and encountered like any other war, with the same precautions, operations, and avoidance of obstacles.
In Mrs. Alexander's case (2 Wallace, 404) it was held, that all the people of any district that was in insurrection against the United States in the late rebellion were to be regarded as enemies, except in so far as, by action of the United States government itself, that relation may have been changed. Consequently, seventy-two bales of cotton belonging to Mrs. Alexander, seized by the federal force under General Banks on its expedition to the Red river, was considered a proper subject of capture; and it was asserted by the chief justice, *232 in delivering the opinion of the court, that they must be governed by the principle of public law, so often announced from that bench as applicable alike to civil and international wars, that all the people of each State or district, in insurrection against the United States, must be regarded as enemies, until, by the action of the legislature and the executive or otherwise, that relation is thoroughly and permanently changed. Thus, it is established by the highest authority, that an individual remaining voluntarily in territory of the Confederate States after the civil war has commenced, is subject to all the liabilities of an alien enemy; it is scarcely necessary to add, subject, also, to all the disabilities of an alien enemy.
The principles of the law of nations, as announced by Vattel and other writers on public law, fortify these conclusions. When a revolt rises from the form of an insurrection or rebellion into the proportions of a civil war, and when a nation becomes divided into two parties, absolutely independent, and no longer acknowledging a common superior, the State is dissolved; and the character of the war between the two parties, in every respect, is the same with that of a public war between two different nations. The obligation of observing the common laws of war is, therefore, absolutely indispensable to both parties, and the same which the law of nature obliges all nations to observe in the prosecution of war against each other. (See Vattel's Law of Nations, chap. 18.)
It cannot, then, be doubted, that a person adhering to the Confederate States in the late civil war is as incapable of prosecuting an action in this State, as if he was an alien enemy. It has been, however, always held, that this incapacity only applies to persons actually present in their own country at the time of the war. This is not, specifically, alleged of the plaintiff in the supplemental answer; but the general allegation that the plaintiff is a resident of the State of Florida, and has been for several years, is, probably, sufficient to bring him within the rule.
The judgment or order should be affirmed, with costs.
GROVER, J., dissented.
Judgment affirmed. *233
