United States v. The F. W. Johnson

The citation for this case is 25 Fed. Cas. 1232, Case No. 15,179. The case comes to us from the Federal District Court of the District of Maryland in the September Term, 1861. Judge William F. Giles presided.

The F. W. Johnson was captured 25 miles south of Cape Henry with 28 tons of railroad iron on board. The F. W. Johnson was owned by Virginia citizens and its port was Norfolk, Virginia.

Judge Giles tells us: “It has been contended by the counsel for the claimants that in the present unhappy division in our country the government at Washington has no power, either under the constitution of the United States or by the recognized principles of the law of nations, to treat the inhabitants of the states which claim to have seceded, as enemies, and to exercise in reference to them those belligerent rights which all concede belong to parties engaged in a public war. And by a public war is here meant a war between independent sovereign states. Now, I am sitting in this case, in a prize court, and the supreme court said, in the case of The Rapid, 8 Cranch [12 U. S.] 155, and The Adeline, 9 Cranch [13 U. S.] 264, ‘that the law of prize is a part of the law of nations.’ And I am, therefore, to decide this question by the principles of that universal law to which all civilized princes and states acknowledge themselves to be subject.” [25 Fed. Cas. 1232]

He continues, “More than one-third of the confederacy has claimed to separate from the rest, and they are now fighting about the construction of the organic instrument of the government,—one side alleging that under a true construction of the constitution each state has a right to withdraw from the Union whenever its people so determine; the other, that no such right exists, and that to attempt to secede is rebellion, and not the exercise of any constitutional right. And in the states which have claimed the right to withdraw, there are now open no courts of the United States, and the laws of the United States cannot now be executed in those states by the ordinary course of judicial proceedings. Is this not civil war? And has it not been so regarded by the executive department of the government? This is clear from the proclamations of the president of the 15th of April, of the 19th of April, of the 27th of April, and of the 3d of May and of the 10th of May,—all recognizing the fact that the civil power of the government is no longer capable of enforcing the laws, and calling to its aid the power intended to be provided by the acts of 1795 [1 Stat. 424] and 1807 [2 Stat. 443], and also, using the power of blockade, a war power belonging only to belligerents either in a civil or foreign war. And the legislative department has also recognized this contest as a war. For, during the last session of congress, it not only did so by the laws which it passed for the raising of armies and providing means for their support, but in express language, on four different occasions, as will be seen in reference to the laws of the extra session of July last. [12 Star.] pp. 268, 274, 315, 326. And the last law (page 326) to which I refer, not only recognized a war as existing, but it approved and sanctioned all the proclamations of the president, thereby making valid the blockade declared by the president in his proclamations of the 19th and 27th of April, if the president alone, ‘as commander in chief of the army and navy of the United States,’ did not possess this power under the existing circumstances of the country.” [25 Fed. Cas. 1232, 1232-1233]

Having established a civil war exists as recognized by the President and the Congress, Judge Giles now looks into whether or not the United States Government has the authority to wage this war: “The supreme court (Chief Justice Taney delivering the opinion), in the case of Luther v. Borden, 7 How. [48 U. S.] 45, say: ‘Unquestionably a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the states of the Union as to any other government. The state itself must determine what degree of force the crisis demands, and if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the state as to require the use of its military force, and the declaration of martial law, we see no ground upon which the court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and overcome the unlawful opposition.’ ” [25 Fed. Cas. 1232, 1233]

He next discusses what international law authorities of the time wrote: “Now, what say the writers on the law of nations? Vattel says, in book 3, c. 18, p. 425: ‘When a party is formed in a state who no longer obey the sovereign, and are possessed of sufficient strength to oppose him, or where, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. Some writers confine this term to a just insurrection against their sovereign, to distinguish that lawful resistance from rebellion which is open and unjust resistance. But what appellation will they give to a war which arises in a republic torn by two factions, or in a monarchy between two competitors for the crown? Custom appropriates the term of civil war to every war between the members of one and the same political society.’ And Wheaton, in his great work on International Law, says, on page 365: ‘A civil war between the different members of the same society is what Grotius calls a mixed war. It is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling the contending parties to all the rights of war as against each other, and even as respects neutral nations.’ ” [Ibid.] He concludes this part of his ruling, “I am therefore clear in the opinion that as a blockade is an acknowledged belligerent right under the law of nations where war exists the blockade of the Southern ports was lawfully proclaimed by the president.” [Ibid.]

Judge Giles asks if the US could execute both sovereign and belligerent rights, and has this answer: “Phillemore, in his Commentaries on International Law (volume 3, p. 740). gives us a simple rule by which to determine this question: He says: ‘In the case of a civil war, the English law furnishes a good criterion as to whether the country is to be considered at peace or at war—that whenever the king’s courts are open it is a time of peace, in judgment of law.’ Judged by this standard, then, as the federal courts are closed in the Southern states, there is a state of civil war. And the government is remitted to its belligerent rights, to be exercised in accordance with those maxims of humanity, moderation and honor, which the law of nations has prescribed to be observed by both parties in every civil war.” [Ibid.]

While Judge Giles decides not to condemn the ship as a  prize due to there not being enough proof that she was enemy property, his ruling does invalidate the concept of unilateral state secession, because if unilateral secession had been a legally accomplished act, he could not have ruled this was a civil war. It would have been a public war between two countries. It wasn’t. It was a civil war between two parts of the same country. And he gives authoritative definitions that conclusively show the neoconfederate lie that a civil war is only a war for control of a country has no validity.

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