had formed themselves into a confederation, under the title of the "Confederate States;" had adopted a federal constitution with all the necessary elements of government; and had appointed a president. They were in exclusive possession of the territory of these States, to the total and absolute exclusion of the former Federal Government. They had taken measures to raise an army, and had voted upward of $2,000,000 for the creation of a navy. In April, 1861, hostilities had actually commenced. By the 13th of April Fort Sumter had fallen. The arsenal at Harper's Ferry was seized a few days later. On the 15th the President of the United States called out the militia to the number of 75,000 men. On the 17th the president of the Confederate States issued a proclamation inviting applications for letters of marque and reprisal, to be granted under the seal of the Confederate States, against ships and property of the United States and their citizens."

On the 19th of April President Lincoln issued a further proclamation, declaring the ports of the seven States blockaded; and on the 27th issued a like proclamation with regard to the ports of North Carolina and Virginia, which, in the mean time, had joined the confederation. Here, then, were nine States, with a population of more than five millions of people, exclusive of the negro population, (in other words. one-fourth of the United States, shortly afterward to be joined by two other States,) which had established a de facto government, which gov ernment had possession of the entire territory within the limits of those States, and exercised all the powers and functions of government, with an organized army prepared to wage war with the rest of the States for the establishment of national independence, and which had actually commenced hostilities by the capture of forts occupied by Federal forces. No one could deny that this was in fact war, and war about to be conducted on a great scale-a war to which the original Government, the authority of which was thus contested in arms, could not deny the character of war, with all the incidents which attach to it.

On the 4th of May, 1861, (nine days before the date of Her Majesty's proclamation of neutrality,) Mr. Seward himself wrote to Mr. Dayton, at Paris:

The insurgents have instituted revolution with open, flagrant, deadly war, to compel the United States to acquiesce in the dismemberment of the Union. The United States have accepted this civil war as an inevitable necessity.1

From the beginning the operations of the war were carried on as in a war between nations, according to the usages of war among civilized states. No attempt was made to treat insurgent prisoners as traitors or rebels.

Under such circumstances, it is impossible to deny that a neutral state had a right to accord to the insurgent government the character of a belligerent. Whether it would be morally justified in doing so must depend on the circumstances in which it found itself placed relatively to the parties to the contest. All publicists are agreed that where an integral portion of a nation separates itself from the parent state and establishes, de facto, a government of its own, excluding the former government from all power and control, and thereupon a civil war ensues, a neutral nation is fully justified in recognizing the government de facto as a belligerent, though it has not as yet acknowledged it as a nation; and from the time of the acknowledgment of its belligerent status the government de facto acquires, in relation to the neutral, all

the rights which attach to the status of a belligerent of an established nationality.

"When," says Vattel, "a party is formed in a state which no longer obeys the sovereign, and is of strength sufficient to make head against him, or when, in a republie, the nation is di

Vattel.

vided into two opposite factions, and both sides take arms, this is called a civil war.”1

Again:

When the ties of political association are broken, or at least suspended, between the sovereign and his people, they may be considered as two distinct powers; and since each is independent of all foreign authority, no one has the right to judge between them. Each of them may be right. It follows, in virtue of the voluntary law of na: tions, then, that the two parties may act as having equal right.

Martens says:

Foreign nations cannot refuse to consider as lawful enemies those who are empow ered by their actual government, whatever that may be. This is not recognition of its legitimacy.

Hantefeuille says on this subject:

Hautefelle

En effet, les peuples étrangers ne peuvent intervenir entre les belligérants; la qualité de sujets révoltés, que l'une des deux donne à l'antre, doit être écartée par eux; ils ne sont, et ne peuvent être, juges de la justice ou de l'injustice de la guerre. Les nations qui désirent rester neutres doivent accepter la possession de fait ; si elles veulent être respectées par les deux parties, elles doivent les reconnaître et les respecter également tous les deux. Le prince étranger que refuserait de remplir les devoirs de la neutralité envers les insurgés ne saurait exiger d'eux d'être regardé comme neutre; il serait à leurs yeux l'allié de leur ennemi, et ils le traiteraient comme tel avec justice. D'un autre côté le souverain qui combat pour ramener sous son obéissance ses sujets revoltés ne saurait s'offenser que les neutres remplissent leurs devoirs envers ses ennemis, puisqu'il ne peut exiger qu'ils deviennent ses alliés, et que, s'ils refusaient de remplir ces devoirs, ils seraient effectivement ses alliés, les ennemis de ses adversaires.3

Professor Bluntschli, though writing adversely to Great Britain on the Alabama question, yet, as to the status of the confederates as belligerents, has the following passages:*

Professor Bluntsch

Du reste, le parti révolté qui opère avec des corps d'armée militairement organisés, et qui entreprend de faire triompher par la guerre son programme politique, agit, alors qu'il ne forme point un état tout au moins comme s'il en constituait un, au lieu et place d'un état, (an Staates statt.) Il affirme la justice de sa cause et la légitimité de sa mission avec une bonne foi égale à celle qui se presume de droit chez tout état belligérant. (Pages 455, 456.)

Again:

Pendant la guerre on admet, dans l'interèt de l'humanité, que les deux partis agissen de bonne foi pour la défense de leurs prétendus droits. (Page 455.)

And at pages 461, 462:

Si l'on tient compte de toutes ces considérations, on arrive à la conclusion suivante : C'est que, à considérer d'un point de vue impartial, tel qu'il s'offrait et s'imposait aux états européens, en présence de la situation que créaient les faits, la lutte engagée entre l'Union et la confédération-c'est-à-dire, entre le nord et le sud-il était absolument mpossible de ne pas admettre que les États-Unis fussent alors engagés dans une grandət guerre cirile, où les deux parties avaient le caractère de puissances politiquement et militairement organisées, se faisant l'une à l'autre la guerre, suivant le mode que le droit des gens reconnaît comme régulier, at animées d'une égale confiance dans leur bon droit. Les uns pouvaient éprouver plus de sympathie pour l'Union, qui avait pour eux toute la supériorité d'un état reconnu et d'une autorité constitutionelle, d'autres pouvaient faire des vœux pour le succès de la confédération, qui n'était pas encore reconnne comme état féderal nouveau, mais qui espérait de se conquérir une existence propre. Tout le monde était d'accord qu'il y avait guerre et que dans cette guerre il y avait deux parties belligérantes.

The principles by which a neutral state should be governed as to the circumstances under which, or the period at which, to acknowledge the belligerent status of insurgents, have been nowhere more fully and ably, or more fairly, stated than by Mr. Dana, in his edition of Wheaton, in a note to section 23:

The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires and can alone justify this step by the government of another country is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebelhion, and of censure upon the parent government. But the situation of a foreign state with reference to the contests, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition. It is certain that the state of things between the parent state and insurgents must amount, in fact, to a war, in the sense of international law-that is, powers and rights of war must be in actual exercise; otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests, are the existence of a de facto political organization of the insurgents 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 a state; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war; and it may be war before they are all ripened into activity.

As to the relation of the foreign state to the contest, if it is solely on land, and the foreign state is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the center of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign state must decide whether to hold the parent state respon(Mr. Canning to Lord Granville on the Greek war, June 22, 1826.) If the foreign state sible for acts doneby theinsurgents, orto deal with the insurgents as a de facto government. recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr. 105.) In a contest wholly upon land, a contiguous state may be obliged to make the decision whether or not to regard it as a war; but, in practice, this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, then the relations of the foreign state to this contest are far different.

In such a state of things the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers of both sides may stop, search, and capture the foreign merchant-vessel; and that vessel must make no resistance and must submit to adjudication by a prize-court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant-vessel; and that vessel may resist all attempts in that direction, and the ships-of-war of the foreign state may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals. If it is not war, no such tribunal can be opened. If it is war, the parent state may institute a blockade jure gentium of the insurgent ports, which foreigneis must respect; but if it is not a war, foreign nations having large commercial intercourse with the country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belliger.

ents. If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or dispatches, or military persons, come into play. If it is not a war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility may be breaches of neutrality laws; while, if it is not a war, they do not come into that category, but under the category of piracy or of crimes by municipal' law. Now, all citizens of a foreign state, and all its executive officers and judicial magistrates, look to the political department of their government to prescribe the rule of their conduct in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelligible manner for all possible contingencies by the simple declaration that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the political department of a foreign state to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be made upon one of these grounds. To decide whether the recognition was uncalled for and premature requires something more than a consideration of proximate facts, and the overt and formal acts of the contending parties. The foreign state is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organizations and preparations on each side; the probable extent of the conflict by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchantvessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign state may protect itself by a seasonable decision; either upon a test case that arises, or by a general prospective decision; while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. The recognition of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against everything but neutrality-laws; their flag and commissions are acknowledged, their revenue-laws are respected, and they acquire a quasi political recognition. On the other hand, the parent government is relieved from responsibility for acts done in the insurgent territory; its blockade of its own ports is respected; and it acquires a right to exert, against neutral commerce, all the powers of a party to a maritime war.

Mr. Dana, though writing after the present dispute, and with reference to it, pronounces no opinion upon it, but the principles he has thus laid down enable us to judge of the matter without difficulty.

The Santissima

This question was the subject of a solemn decision in the case already cited of the Santissima Trinidad. One of the points there raised being that the government of Buenos Ayres, under Trinidad. whose commission the vessel had taken prizes, was invalid, the inde'pendence of that State not having been recognized by the Government of the United States, Mr. Justice Story thus disposes of the objection: There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and therefore it is not entitled to have her ships of war recognized by our courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and bas avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports, under the law of nations, must be considered as equally the right of each; and, as such,

must be recognized by our courts of justice until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this court, and we see no reason to depart from it.'

An attempt has indeed been made to show that the judgment in the foregoing case has been overruled or shaken by the succeeding judg ment in the case of the Gran Para, in which it is alleged that, notwithstanding the commission of a belligerent power, a vessel was held to be subject to the jurisdiction of a court of the United States. I have already shown that, in that case, in which the validity of a capture made by a privateer fitted out in the United States was questioned by reason of the illegal character of the capturing vessel, the latter was not a ship-of-war commissioned by a belligerent government, but simply an American vessel commissioned as a privateer; nor, indeed, sailing as a privateer under the commission of a recognized belligerent. She still remained, therefore, the private property of an American citizen, unprotected by any commission whatever, and a capture made by her could not be held to be good prize.

In the recent case of the British bark, the Hiawatha, and of the Mexican schooner Brillante, which were captured by ships of the United States for endeavoring to run the blockade, and which had been condemned as prize, an appeal having been brought, and an objection having been taken that the Confederate States could not properly be held to be belligerents, and that consequently the President had no right to establish a blockade, Mr. Justice Grier, in delivering the judgment of the majority of the Court, lays down the following important propositions:

on.

Insurrection against a government may or may not culminate in an organized rebellion; but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents-the number, power, and organization of the persons who originate and carry it When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereigu, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.

The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and miseries produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.

It is not the less a civil war with belligerent parties in hostile array, because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or state be acknowledged, in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad, (7 Wheaton, 337,) this court say: "The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war."

The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this court are now for the first time desired to pronounce, to wit, that insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an "insurrection."

1 British Appendix, vol. iii, p. 86.