In practically all respects the laws governing the military occupation of hostile foreign territory apply to the military occupation of hostile domestic territory in time of a civil war which has assumed a public character.

In the case of New Orleans v. Steamship Co.,41 from which quotation has already been made, the court said: "Although the city of New Orleans was conquered and taken possession of in a civil war waged on the part of the United States to put down an insurrection and restore the supremacy of the National Government in the Confederate States, that government had the same power and rights in territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war." 42

40 Instructions, etc.

41 20 Wall. 387 ; 22 L. ed. 354.

42 Citing the Prize Cases, 2 Black. 635; 17 L. ed. 459; Mrs. Alexander's Cotton, 2 Wall. 404; 17 L. ed. 915; and Mauran v. Insurance Co., 6 Wall. 1; 18 L. ed. 836.

The fact that the sovereign State continues to claim sovereignty and to exercise powers as such does not prevent it from exercising at the same times all the rights of a belligerent. This was conclusively determined in the Prize Cases.43 In that case, as will be remembered, it was held that it lies within the discretion of the President as commander-in-chief of the army, a discretion not reviewable by the courts, to determine when an insurrection or civil war has assumed such proportions as to warrant him in declaring it a public war, and the insurrectionists belligerents. When this is done, the war becomes a territorial one, and all inhabitants of the revolting district become ipso facto public enemies.

In Mrs. Alexander's Cotton44 the court declared: "It is said that though remaining in rebel territory, Mrs. Alexander has no personal sympathy with the rebel cause, and that her property therefore cannot be regarded as enemy property; but the court cannot inquire into the personal character and dispositions of individual inhabitants of enemy territory. We must be governed by the principle of public law, so often announced by this 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."

In Miller v. United States45 was sustained the authority of the acts of Congress of 1861 and 1S62, providing for the confiscation of certain classes of private property owned by persons living in the insurrectionary districts, the acts being upheld not as criminal statutes but as an exercise of belligerent right. Had the acts been simple municipal laws inflicting a punishment for an offense against the sovereignty of the United States, they would, the court said, be in violation of the Fifth and Sixth Amendments to the Constitution, but, being a legitimate exercise of a belligerent power, they were constitutional, not only with reference to the hostile, but to the friendly inhabitants of the hostile territory, as well as to those persons who, though not inhabitants of the hostile territory, should in any way aid or abet the insurrection. The right of confiscation and other belligerent rights thus exercisable by the military authorities within the United States during civil war must, in every case, be authorized by some competent officer or tribunal acting under the sanction of an act of Congress. That is to say, the individual soldier or officer is not allowed individually, and without obtaining the decree of a competent military or other tribunal, to seize private property as a prize of war. This principle was discussed in the early case of Brown v. United States.46 As was said in that case, "War gives the right to confiscate, but does not itself confiscate the property of the enemy." For this an act of Congress is necessary. "When war breaks out, the question what shall be done with enemy property in our country is a question rather of policy than of law. The rule which we apply to the property of our enemy will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary."

43 2 Black, 635; 17 L. ed. 459. 44 Wall. 404; 17 L. ed. 915. 45 11 Wall. 268; 20 L. ed. 135.