Act to prohibit American vessels from proceeding to, or trading with, the enemies of the United States, and for other purposes." It imposed forfeiture on every vessel that should depart from a United States port for a foreign port; and fine and imprisonment upon the master guilty of violating the act. Like penalties were provided against "an attempt to transport" by land. The deci sions with reference to that and other statutes for non-intercourse and embargoes, indicate that the phrase "proceeding to" has received the construction given above. A departure, under one of its sections, and an attempt to transport, under another section, were respectively overt acts of "proceeding to" the interdicted port or district. The William and Grace, Marriott's Decisions 76: The Rebecca, Id. 197; The Julia, 1 Gall. 43; The Friendship, Id. 45, 55; 7 Cranch 356; 9 Id. 102; 7 Id. 100; 2 Wheaton 148. The next two points as presented depend for solution upon the same principles.

By the language of said Act of July 13th, the prohibition is to be in force only "so long as such condition of hostility shall continue," and the President's Proclamation of August 16th 1861, excepts from the interdict such of the states therein named (including Tennessee), and such parts of said states "as may maintain a loyal adhesion to the Union and the Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents." The claimant's proctor contends that "the condition of hostility," &c., is a matter in pais, upon which the Court is to hear the testimony of witnesses. He offers to prove by such witnesses that no such condition existed at Memphis when his shipment was made; also, the loyalty of that city, and that it was then occupied and controlled by United States forces. Indeed, for the purposes of this trial, the District Attorney admits, as a matter in pais, that Memphis was so occupied and controlled at the time, and that hostilities were not flagrante bello, actually raging in that city at the time; submitting to the Court, however, the question as to the competency of such modes of proof.

The doctrine involved has been fully discussed in several cases

decided by this Court during the last fifteen months, and was virtually settled long ago by the United States Supreme Court. The judiciary, under the constitution, cannot declare war or make peace. It is clothed with no such power, and cannot be clothed with it. Whatever power is vested by the constitution in one department of the government cannot be usurped by another. If one should wholly refuse to act, or should undertake to divest itself of, or abdicate, its legitimate functions, it would by no means follow that another department, expressly limited to specified duties, would thereby acquire ungranted powers. The abdication of executive functions by the executive, for instance, would not constitute the judicial the executive department of the country; nor would a failure or refusal of the legislative to pass needed statutes constitute the executive the law-making power. Each department has its true boundaries prescribed by the constitution, and it cannot travel beyond them. United States vs. Ferrera, 13

How. 40; Little vs. Bareme, 2 Cranch 170.

The condition of peace or war, public or civil, in a legal sense, must be determined by the political department, not the judicial. The latter is bound by the decision thus made. The Act of 1795 and the Act of July 13th 1861, vest the President with the power to determine when insurrection exists, and to what extent it exists.

The United States Constitution vests Congress with the power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion;" "to declare war, *** and make rules concerning captures on land and water." In the execution of that power, Congress passed the acts cited above.

By the Act of 1795, the Supreme Court says, "the power of deciding whether the exigency had arisen upon which the govern ment of the United States is bound to interfere, is given to the President. * * After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the Court, while the parties were actually contending in arms for the possession of the

government, call witnesses before it and inquire which party repre sented a majority of the people? **If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy and not of order. Yet if this right does not reside in the courts when the conflict is raging; if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. ** At all events it (the power to decide) is conferred upon him (the President) by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals." 7 How. 43-4; also, see Martin vs. Mott, 12 Wheat. 29–31.

The same doctrine has been uniformly maintained from the commencement of the government. The absurdity of any other rule is manifest. If during the actual clash of arms, Courts were rightfully hearing evidence as to the fact of war, and either with or without the aid of juries, determining the question, they should have power to enforce their decisions. In case of foreign conflicts neither belligerent would be likely to yield to the decision and in case of insurrection, the insurgents already in arms against the Constitution and laws, would not cease their rebellion in obedience to a judicial decree. In short, the status of the country as to peace or war, is legally determined by the political and not the judicial department. When the decision is made the Courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection, must also decide when hostilities have ceased, that is, when peace is restored. In a legal sense, the state of war or peace is not a question in pais for Courts to deternine. It is a legal fact ascertainable only from the decision of the political department. 3 Wh. 246, 610; 4 Wh. 52, 497; 7 Wh. 283; 12 Wh. 19; 4 Cr. 241; 2 Pet. 253; 12 Pet. 511; 13 Pet. 315; 7 How. 1; 14 How. 46, 283.

Under the Act of July 13th, the President, on the 16th of August 1861, proclaimed Tennessee in a state of insurrection. The legal status thus determined must remain so long as the condition of hostility continues. He has never made a counter proclamation,

nor has peace been officially announced. As a legal condition that status is independent of actual daily strife in arms. A legal condition of hostilities may exist between this and a foreign nation, long after the last battle has been fought between the opposing armies. That condition ceases when peace is concluded through competent authority: not before. The distinction is between war flagrante, and nondum cessante. So far, however, is it from being true that the condition of hostilities does not still exist, that it is evident, even as a matter in pais, that Tennessee is still in an insurrectionary position. The presence of the United States armies in Memphis and elsewhere within that state, for the purpose of maintaining Federal authority against armed insurgents, is a wellknown necessity. There has been as yet no return of that State to a peaceful status under the Constitution and laws enabling the civil tribunals, by ordinary process, to enforce United States authority. Within any construction which could be fairly given to the President's Proclamation, no "part of that state maintains as yet a loyal adhesion to the Union and Constitution." It is the duty of the President, however, to decide that point. Until he decides to the contrary, the Court must hold that the legal condition. of hostility continues.

The exceptions in the Proclamation, so far as made by the President, Courts can and must enforce. But, if it be correct that by the terms of that proclamation the President intended to devolve on the Courts the duty of determining judicially the status of a state, or part of a state, by an inquiry into its loyalty, or its occupation from time to time by United States forces, irrespective of a decision thereon by the executive: still Courts could not thus acquire the power. The limits upon their constitutional and legal functions could not thus be enlarged. Political power could not be so delegated to them. They cannot be charged with any duties not judicial: "judicial power" alone is vested in them under the Constitution; and the cases to which it extends are clearly defined: United States vs. Ferreira, 13 How. 40. They cannot go beyond that well-defined limit. But the Act of July 13th gives the conditions on which the Proclamation issues, and declares its effect.

It must pronounce what states or part of a state are in insurrec tion; for it is the official promulgation of the fact as found by the President. The exception quoted above does not change the rule. At the date of that document (August 16th 1861), Tennessee was proclaimed to be in insurrection, except as to such parts thereof where a certain condition of affairs existed, or might from time to time exist. How can any part of that state be brought within the exception for judicial cognisance? Only by the action of competent authority. The status of the part can be determined by the President alone. Has he officially decided the status by force of which the exception would operate, or Courts can judicially scertain Memphis to be no longer in hostile condition? Or, was not that language used solely with a view to the proviso in the 5th section of the Act? It can hardly be supposed that he contemplated opening to unrestricted intercourse every town or district of an insurrectionary state, which the United States armies might occupy from time to time, on their march, irrespective of further action; thus leaving a town open to trade to-day and closed to-mor row, according to the shifting exigencies or convenience of military operations and without any Treasury regulations therefor.

It is evident, however, that the language used in that exception was not designed to leave so important a question open to doubt, uncertainty, or the contingencies of military movements from day to day. It was employed, perhaps, out of abundant caution, so as to announce that, from time to time, exceptions would be put into practical effect by him according to the rules stated or to bring such parts of those states within the terms of the proviso, so that the Secretary of the Treasury might make the needed regulations therefor. A practical exemplification thereof is found in the case of South Carolina and Louisiana. Those states were included in the proclamation of August 16th 1861, and also in the previous proclamation of blockade; yet by another proclamation dated May 12th 1862, the President declares, that, by virtue of the powers vested in him by said Act of July 13, the blockade of the ports of Beaufort, Port Royal, and New Orleans, should cease after the first day of June following, except as to contraband